source: Caselaw Access Project

author: GRAVES, J. VALLIANT, J.

license: Public Domain

text:
    THE STATE ex rel. CAROLINE E. PONATH v. HUGO MUENCH, Judge, et al.
    In Banc,
    July 20, 1910.
    1. TRUSTEESHIP: Appointing Successor: Final Judgment. Where the trustee, to whom by the will certain lands have been conveyed to be held by him in trust for certain persons, files a petition in court asking that bis resignation be accepted and that his successor be appointed, and tbe beneficiaries as defendants file their answer admitting the allegations of the petition and joining in its prayer, tbe court has jurisdiction to accept the trustee’s resignation and to appoint a successor and to vest in such successor the title to tbe property, and that is a final disposition of the matters brought to issue therein by the petition and answer.
    2. -: -: In Old Case with Same Title. And where a successor was appointed to said trustee, and afterwards said successor appeared in court and asked to be relieved and that a new trustee be appointed, the court had jurisdiction of the suhject-matter of his petition, and the appearance of all the beneficiaries gave it jurisdiction of them; and though such successor gave to his petition the style the petition had' in the first case, naming the same persons as plaintiff and defendants, and the case was given the same number on the docket, that was not fatal to either .jurisdiction, and the appointment hy the court of another successor was valid.

      Held, by VALLIANT, J., dissenting, that the circuit court has a general jurisdiction of the suhject-matter of accepting the resignation of trustees and appointing their successors, but it does not have jurisdiction of a concrete case of that kind unless a petition is filed in court in the way •prescribed by law, and it is not legally brought if the petition is filed in a case over which the court has -lost jurisdiction, and entitled the same way. The trustee’s petition to be relieved and to have his successor appointed was an entirely new suit, calling for new process and a new adjudication, and unless so brought the court acquired no jurisdiction over the subject-matter, and its appointment of a trustee was invalid — though the trustee therein appointed who qualified is answerable as a de facto trustee for her acts of administration.
    3. -: -: -: Appearance by Attorney: Estoppel. And though relator (a beneficiary) appeared by attorney in response to- said successor’s petition, yet if said successor’s res- ■ ignation was accepted and relator was appointed trustee and accepted such appointment and qualified, she is estopped to deny she was properly in court; and the mere fact that the cause was wrongfully entitled (that is, with the trustee named in the will as plaintiff and the beneficiaries as defendants and was not brought as a new case in the name of the successor or petitioner as plaintiff) cannot furnish a cloak to escape the results of her own acts. Had she appeared in person the decree accepting the trustee’s resignation and • appointing her as successor would have been valid; and her acceptance of the appointment must be held to be a ratification of her attorney’s act in appearing 'for her.

      Held, by VALLIANT, J., dissenting, that she is not estopped to deny the validity of the order under which she took possession of the estate, but she is estopped to deny that she took possession and acted as trustee.

      4. APPEARANCE: By Attorney: Presumption: Collateral Attack. Where the judgment recites that relator appeared by attorney, the presumption is that, being a regular attorney at law, he appeared by her authority, and it devolves upon her to disprove his authority; and in a collateral attack on the judgment, such as by a writ of prohibition to prohibit the trial court from taking further jurisdiction of the cause, if the lack of the attorney’s authority to enter her appearance is not pleaded, it will be presumed that he had such authority.
    Prohibition.
    Writ denied.

      T. J. Rowe, Thos. J. Rowe-, Jr., and Henry Rowe for relator.
    Three terms after the final decree was entered in the case and with none of the defendants in court, October 22, 1902, the court accepted the resignation of the Lincoln Trust Company as trustee and appointed Caroline Bircher trustee. The court had no jurisdiction to enter this order, and the said judgment appointing Caroline Ponath (nee Bircher) trustee, was and is null and void1. Henry Boemler could not waive service for the defendants. An attorney at law has no authority to waive service for client of original process. Bradley v. Wel°b, 100 Mo. 258. An attorney, under ordinary circumstances, has power to acknowledge service of process issued in the cause for which he has been retained, and his written admission of service is binding on his client, with the single exception of the service of the original summons or subpoena against a defendant. In respect to such process, there must be specific authority to make such an admission, or to waive it by entering an appearance for the defendant. 3 Am. and Eng. Ency. Law (2 Ed.), p. 323; Bradley v. Welch, 100 Mo. 258. The defendants were not in court from the date of the decree, February 25, 1902, to the present time, and1 all the judgments and orders made in said case from February, 1902, to the present time are null and void. People v. District Court, 26 Colo. 386; Jones v. Brown, 6 1ST. W. 140; Grove v. Van Duyn, 44 TST. J. L. 654; Bingham v. Henrici, 16 Atl. (Pa.) 618; Bassick Co. v. Schoolfield, 10 Colo. 46; Andrews’ Stephen’s Pleading (2 Ed.), p. 34; Georgia v. Stanton, 6 Wall. 50; Luther v. Burden, 7 How. 1; Fletcher v. Tuttle, 150 111. 41; Kerfoot v. People, 51 111. App. 409; Dicey v. Reed, 78 111. 206; United! States v. Arredondo; 6 Pet. 709; People v. Liseomb, 60 N. V. '559; Reynolds v. Stockton, 140 U. S. 254; Munday v. Vail, 34 1ST. J. L. 418; Jacobson v. Miller, 41 Mich. 90; Cromwell v. Sac. Co., 94 U: S. 351; Hope v. Blair, 105 Mo. 93; State ex rel. v. Muench, 217 Mo. 124. This case is bottomed on facts the same as the McManus case supra, and on the authority of that case the preliminary order should be made permanent. The suit, commenced in February, 1902, by Espensehied against Bircher et al., was for the sole and only purpose of permitting him to resign as trustee and appoint his successor. No new matter was alleged in the answer of defendants. The defendants, in propria persona, admitted the allegations of the petition, and joined in the prayer for relief. No new issue was raised by the pleadings. Hope v. Blair, 105 Mo. 93. The issue made by the pleadings was fully and finally determined on February 25, 1902. None of the defendants was ever properly or legally in court after the entry of the decree in February, 1902.

      Block $ Sullivan, B. B. Brewer and 3. A. & G. R. Hamilton for respondents.
    (1) Relator’s motion for judgment upon the respondents’ return must be taken to admit all facts well pleaded in the return. State ex rel. v. Elkin, 130 Mo. 103; Wand v. Ryan, 166 Mo. 649; State ex rel. v. Sheppard, 192 Mo. 505. (2)- Where a regular attorney at law appears for a defendant, it will be presumed! that he had authority to do so even though- the appearanee be for a defendant who has not been served with process. Bradley v. Welch, 100 Mo. 268; Weeks on Attorneys, p. 38; Farmers’ Bank v. Railroad, 119 Mo. App. 7; Cemetery Assn. v. McCune, 119 Mo. App. 354; Valle v. Picton, 91 Mo. 207; Brown v. Arnold, 131 Fed. 725; Bonnifield v. Thorpe, 71 Fed'. 927; Markey v. Railroad, 185 Mo. 350; Savings Union v. Long, 123 Cal. 107’; Railroad v. Fox, 56 Neb. 746; Ebel v. Stringer, 73 Neb. 249; Sanders v. Price, 33 S. E. 731; Uehlein v. Burke, 119 la. 742; Reynolds v. Fleming, 30' Kan. 114; Osborne v. Bank, 9 Wheat. (U. S.) 739; Bacon v. Mitchell, 14 N. D. 454. (3) The relief prayed for should not be granted, because the record in this case shows that at the time the Mercantile Trust Company was appointed trustee, and at the time the judgment sought to be prohibited was rendered, and at the time the St. Louis Union Trust Company was appointed trustee in succession to the Mercantile Trust Company, the relator and all the other parties whose appearance was necessary had voluntarily entered their appearance in said proceedings. Julian v. The Star, 209 Mo*. 94; Rector v. Circuit Court, 1 Mo. 607; Shockley v. Fisher, 21 Mo. App. 556; Farrell’s Admr. v. Brennan, 25 Mo.'App. 81; State v. Woolery, 39 Mo. 527; Thurman v. James, 48 Mo. 235 ; Boulware v. Railroad, 79 Mo. 494; Meyer v. Broad-well, 83 Mo. 573; Bankers’ Life Assn. v. Shelton, 84 Mo. App. 635; Clark v. Brotherhood, 99 Mo. 687; Fitterling v. Railroad, 79 Mo. 504; Harrison v. Murphy, 160' Mo. App: 466; Bank v. Railroad, 119 Mo. App. 1; Real Estate Co. v. Lindell, 133 Mo. 386; Baisley v. Baisley, 113 Mo. 545; Ivy v. Yency,. 129 Mo: 501; Crawford v. Railroad, 171 Mo. 77; Rodney v. Gibbs, 184 Mo. 16; Markey v. Railroad, 185 Mo. 350; Seay v. Sanders, 88 Mo. App. 479; Cook v. Spence, 122 S. W. 340'.
   GRAVES, J.

This is an original action in prohibition. Relator was formerly Caroline E. Bircher. Tbe original petition was against Hon. Hugo Mnencb, Judge, and tbe St. Louis Trust Company, as respondents, but by order of this court other respondents were permitted to come in and defend. In tbe first place, preliminary order to show cause was granted by one of tbe judges of this court, and thereafter tbe order as to tbe volunteer respondents was made. To this order to show cause all of tbe respondents made return, whereupon relator moved for judgment on tbe pleadings and that tbe preliminary order in prohibition be made permanent. Tbe facts are largely of record and undisputed. These facts when stated obviate an analysis of tbe petition and answers.

Caroline E. Ponatb, formerly Caroline E. Bircber, was one of tbe beneficiaries of a will made by one Charles A. Bircber. By tbe terms of such will Fred F. Espencbied and George H. Steinberg were conveyed certain property to be held in trust for tbe said Caroline E. Bircber (now Ponatb) and others. To tbe February term of tbe circuit court of tbe city of St. Louis Fred F. Espencbied filed bis petition asking to be relieved of such trust and praying that a new trustee be named. From bis petition it appears that George H. Steinberg bad theretofore been permitted to resign and be bad been made tbe sole trustee.

Upon tbe filing of Espencbied’s petition each and every party interested, including Caroline E. Bircber (now Ponatb), entered their appearance and joined in tbe prayer of Espencbied to be relieved from tbe trust. Upon tbe petition of Espencbied and the answer of tbe interested parties, tbe court entered a decree in substance as follows: (1) that Espencbied was relieved from tbe trust obligations created by tbe will; (2) tbe Lincoln Trust Company was designated as bis successor; (3) an accounting was required by Espenehied to his successor; (4) costs were adjudged to be paid by the estate. This judgment was entered on February 25, 1902. This seems to have ended the matter until October 20, 1902, when we find a record entry showing a report from the Lincoln Trust Company and petition to resign. Just following is a decree and judgment which is vital in the present proceeding. On October 22, 1902, the circuit court entered the following decree:

‘ ‘Now at this day come all of the defendants by their attorney, Henry Boemler,- Esq., and the Lincoln Trust Company, heretofore on the 25th day of February, 1902, appointed successor to the plaintiff, Frederick F. Espenehied, in the trust created under the last will and testament of Charles A. Bircher, and said Lincoln Trust Company presents to the court its report of its- administration of said trust estate since the date of its appointment, showing an expenditure by it of $127.38 more than the income received by it from the assets of said trust, and that it has incurred in the administration of said trust estate, the sum of $386.60 for court costs and legal services, and requesting that the sum of $200 be allowed it for its services, as trustee herein, and said Lincoln Trust Company also presents to the court its petition for leave to resign said trust, and the court, having heard and duly considered the same, and defendants by their said attorney consenting thereto, doth order, adjudge and decree that said Lincoln Trust Company be, and is hereby relieved of and from the trust in it vested and imposed under the last will and testament of Charles A. Bircher, deceased, and the decree of this court entered February 25, 1902, in this cause, and that said report be' and is hereby in all respects approved, and that said Lincoln Trust Company. for its services as trustee herein, be and is hereby allowed the sum of $200', and that it have credit against said trust estate of said sum of $127.38, advanced by it, and $386.60, and that for all of said sums, aggregating $713.98, it have, and there is hereby declared in its favor, a lien against the assets of said trust estate in the hands of its successor; that it turn over to said' successor the possession of the real estate described in its said report, and stand, discharged.
“And the defendants, beneficiaries of said trust, by their said attorney, also present their petition to the court, praying the appointment of the defendant, Caroline Bircher, as the successor of said Lincoln Trust Company in the trust created under the will of said Charles A. Bircher, deceased, and the decree of this court entered March 2, 1889', mentioned in the petition herein, and the court having duly considered the same, doth order, adjudge and decree that said Caroline Bircher be and is hereby appointed the successor of said Lincoln Trust Company in said trust, and that. the title, estate and trust in and to the property described in the petition which was vested in and imposed upon said Lincoln Trust Company under the terms of said will and the decree of this court be and the same is hereby vested in and imposed upon said Caroline Bircher, and that said Caroline Bircher as such trustee, be and is hereby authorized and empowered to do and perform all things which might be done and performed by said Lincoln Trust Company or said Frederick F. Espenehied, under the terms of said will and said decrees of this court, subject, however, to the rights of said Lincoln Trust Company to be reimbursed for its services, expenses and outlays herein, as herein-before provided.
“And the court doth further order that before entering upon the performance of the duties of said' trust, said Caroline Bircher give bond in the sum of five thousand dollars, with sureties satisfactory to the beneficiaries of said trust to be approved by the court, and that she or her successor herein report to this court annually on the first Monday of October, the condition of said trust estate, and give an account of her or his administration of the same. It is further ordered and adjudged that the costs of this proceeding be paid out of the said trust estate. Bond of Caroline Bireher, trustee, in sum of five thousand dollars, with the St. Louis Union Trust Company as surety, approved by the court and filed. ’ ’

It should he borne in mind that this decree was entered in the old case of Espenchied v. Caroline S. Bireher et ah, of which defendants Caroline E. Bireher was one. Under this decree Caroline E. Bireher (now Ponath)' qualified and for four years acted as trustee. The case was numbered in the circuit court throughout as No. 23449. At the June term, 1906', on June 15th, Daniel Dillon and B. E. Brewer withdrew as counsel for Caroline E. Ponath (formerly Bireher), and other beneficiaries filed their petition for the removal of the said Caroline E. Bireher (now Ponath) as trustee, and the court made an order to show cause.

June 19', 1906, the parties appeared in court and the hearing of the order to show cause was continued to June 21, 1906.

The next order is on July 2, 1906. At this date the complainants withdrew their petition for removal and Caroline E. Ponath resigned as trustee, and the Mercantile Trust Company was appointed as her successor. This decree, which is important, reads:

“Now at this day come again Caroline S. Bireher, Amelia W. Bireher and Mary A. Henner, by their attorneys, and comes also the trustee herein, Caroline E. Bireher, now Caroline E. Ponath, by her attorney, and thereupon it is ordered by the court that the resignation of said Caroline E. Ponath, as trustee, filed in this cause on the 2d day of July, 1906, be and the same is hereby accepted.
“And it is thereupon ordered, adjudged and decreed by the court that the Mercantile Trust Company of the city of St. Louis he and is hereby appointed trustee in the place and stead of said Caroline E. Ponath, formerly Caroline E. Bircher; and the court doth further order, adjudge and decree that all the title, power and authority heretofore possessed by and vested in said Caroline E. Ponath (formerly Bircher), as such trustee, he vested and possessed by said Mercantile Trust Company.
“It is further ordered and adjudged by the court that said Caroline E. Ponath (formerly Bircher) forthwith turn over, transfer and deliver to the said successor, Mercantile Trust Company, all property of every kind and description in her hands or under her control as such trustee, and by proper deeds of conveyance forthwith convey and transfer to the said successor all lands and real estate wherever situated now held by her as such trustee, whether the title appears of record in her name as Caroline E. Bircher, or Caroline Bircher, trustee, or in the name of Caroline E. Bircher or Caroline E. Bircher, without the word ‘Trustee’ being added thereto and that she take proper receipts from the said successor and file the same with her report.
“It is further ordered and adjudged by the court that said retiring trustee file her final account in this court within fifteen days from this date, with receipts and other vouchers for all moneys paid out by her as trustee, and all money and property turned over to her said successor, and upon the approval of her final report, she shall stand discharged as such trustee.
“It is farther ordered that the Mercantile Trust Company, successor trustee herein, file in this court on the first day of October and the first day of April of each and every year, during the continuance of this trust, a full itemized report of all money received and all money paid out by it as such trustee, and of the property remaining on hand belonging to said trust estate and the condition thereof.”

August 1,1906, the Mercantile Trust Company filed its written acceptance of the trust. August 13, 1906', it filed a petition for an amendment to the decree appointing it as trustee, and also a petition for an order upon Caroline E. Ponath to require her to turn over property and file vouchers for money expended by her as trustee. It would appear that statements of account were filed by Mrs. Ponath, and the Mercantile Trust Company was given until October 1, 1906, to file objections and exceptions thereto.

September 25, 1906, the Mercantile Trust Company took a further order on its petition theretofore filed, by which the relator, Caroline E. Ponath, was required to turn over and deliver all deeds and title papers conveying real estate to her as trustee, and also all personal property in her hands belonging to said estate, or show cause why the same had not been done at ten o’clock of October 1, 1906, in Division One of said court.

December 22, 1906, the issues raised by the exceptions entered to the report of Caroline E. Ponath were referred to a referee to hear testimony and report his findings to the court.

February 18, 1907, the Mercantile Trust Company filed its resignation as trustee, together with its account of its proceedings as trustee. On the 23d of February, certain of the beneficiaries, the' relator not being one of the number, filed a request for the appointment of a trustee. This request was for the appointment of Charles L. Weber. Caroline E,. Ponath. as the record shows, opposed this appointment, and on February 25, 1907, the court declined, to accept the resignation of the Mercantile Trust Company at that time, and Weber was not appointed.

On March 21, 1907, the first referee named by the court refused to act, and by order of court a new referee was named with the same powers.

On June 25,1907, there was a judgment and decree hy which the exceptions of Caroline E1. Ponath to the report of the referee were overruled and the report of the referee confirmed in all things. By this decree and judgment the Mercantile Trust Company was decreed and .adjudged to have and recover of Caroline E. Ponath the sum of $2348.60', due the trust estafe, together with the costs of reference. Other matters in the decree have reference to amounts due and payable to other beneficiaries from the trustee, and are not material here. On the same date, Caroline E, Ponath' filed motion for new trial. August 3,1908, with all the parties before the court, the Mercantile Trust Company was permitted to resign, and the St. Louis Trust Company was named as its successor.

May 1, 1909', execution was issued against Mrs. Ponath on the judgment aforesaid for the said sum of $2348.60;

September 1, 1909', the preliminary order to show cause was issued by one of the judges of this court in vacation.

The original case in the circuit court of the city of St. Louis was entitled:

“Fred F. Espenchied, Plaintiff, v. “Caroline S. Bircher, Mary A. Henner, and George F. Henner, her husband, Louisa E. Henner and Emil E. Henner, her husband, Caroline E. Bircher, Saloma G. MacBride and Henry J. MacBride, her husband, Amelia Bircher and John R. Bircher, Defendants.
“In the Circuit Court, City of St. Louis, February Term, 1902.”

The several subsequent orders seem to have been made in that case. The record, excepting the first answer filed, shows the appearance of the several parlies by attorneys.

The relator, and the other parties in the lower court, except the trust companies named, are the beneficiaries of the trust created by the will of Charles A. Bircher, deceased. The beneficiaries,* excluding relator, join the St. Louis Trust Company and Judge Muench as respondents in this court.

i This sufficiently states the purport of the pleadings and therefore the issues involved here.

The point made by relator is that each and every order made after the acceptance of the resignation of Espenchied, and the appointment of the Lincoln Trust Company as trustee, was beyond the jurisdiction of the court, and the circuit judge should be prohibited from further attempting to proceed in the cause.

I. The relator plants her case here upon the opinion of this court in State ex rel. McManus v. Muench, 217 Mo. 124. Up to a certain point the case is very, much like the McManus case.

In that case there was a will creating a trust estate. The trustee died. One of the beneficiaries thereupon filed a petition in the circuit court asking for the appointment of a successor in trust. McManus was made a party defendant. The petition asked for relief thus, (1) the appointment of a successor in trust and (2) -an order vesting title in such successor. The petition suggested a successor. McManus admitted ■ all facts pleaded as to the necessity of a successor in trust and the vesting of title in him, but took issue upon the propriety of appointing the party suggested by the petitioner. On those issues the matter was heard and the court appointed a trustee and vested title in him.' The one appointed, however, was not the one suggested by the petitioner. The court, however, added this clause to its decree: ‘ ‘It is further ordered, adjudged and decreed that this cause shall be retained in this court, as to the plaintiff and defendant, Thomas Ward McManus, and as to said trustee, Matthew Park, •until the further order of this court in respect to all matters connected with the qualifications of said Matthew Park, as trustee, and his administration of said trust. ’ ’

Later, the court made an allowance to the trustee for the services of his counsel. Then following this allowance, the trustee caused notice to he served upon McManus and also the petitioner Camille Burrows, that he would on a day named apply to the circuit court for an order to borrow money on the trust estate to pay debts. McManus paid no attention to this notice and made no appearance. Under this application and notice the trial court, acting upon the assumption that by the phrase of its original decree above quoted it had full jurisdiction of the trust estate, made an absolute order of the sale of the property. McManus later asked for an appeal, but this was denied him, and thus his application for a writ of prohibition to this court, which was granted and made permanent. In the opinion, we held that the portion of the decree attempting to hold jurisdiction of the cause for the administration of the trust was beyond the purview of the pleadings, and therefore to that extent was an unwarranted assumption of jurisdiction, and that the steps thereafter taken under and by virtue of such clause of the original judgment was an unwarranted assumption of jurisdiction by the circuit court, and all acts in that behalf were prohibited.

To the case at bar is certainly applicable the following language used in the McManus case: “It is next argued that the original decree was by consent, and, finally, that no appeal was taken, therefore the decree was effectual to hold the trust estate in administration. But if the chancellor, as we have held, reached out his arm too far and grasped a jurisdiction not within the issues, then that part of the decree ■outside the issues became coram non judice and void. In that view of the case no appeal was necessary, and the void part of the judgment is subject to collateral attack. ’ ’

In the case at bar the original petition avers that by a previous decree of the court had upon the application of George II. Steinberg, the said Steinberg was permitted to resign and the petitioner was made sole trustee. The petitioner, Espenchied, then avers that his business occupations are such as to preclude him from performing the duties entailed by the trust instrument, and asks that he be relieved, and a successor appointed. To this petition which oniy asked for the acceptance of Espenchied’s resignation as trustee, and the appointment of a successor, the beneficiaries of the trust, including relator, filed an answer in words as follows: “Now at this day come the defendants . . . and enter their appearance to this action and waive the issue of a summons therein and for answer to the petition of the plaintiff therein say that they admit the allegations of the petition and join in the prayer for relief.”

In this answer we have omitted the names of the parties defendant, but they are the relator and the voluntary respondents herein. This answer was signed in person by all parties, and therefore the right of the court by its judgment to relieve Espenchied and appoint his successor is unquestioned. Nor is the judgment entered upon this application questioned. Such judgment, as appears from the abstract thereof, given above, is only to the effect of relieving Espenchied from the duties of trustee, and appointing the Lincoln Trust Company as his successor. The court in that decree did not even undertake to continue its jurisdiction by an order to that effect as in the McManus case. Relator contends that the purpose of that litigation was at an end when the court by its decree accepted Espenchied’s resignation and appointed his successor, and the trial court evidently so thought, because it attempted at that time no further jurisdietion. That this judgment was a final disposition of the matters brought to issue by the petition and answer is fully settled in the McManus case, supra, and we think rightfully settled.

And were it not for other matters urged, which we consider in subsequent paragraphs, this case would be determined by the McManus case. Respondents urge that there is a difference between this case and the McManus ease, and this question we discuss next.

II. As indicated above the relator contends that the judgment and decree of February 25,1902, wherein Espenchied was relieved of duty and the Lincoln Trust Company was appointed as his successor was an end to that litigation, and if the McManus case is authority, such is the law. The pleadings therein asked for no more and the judgment granted no more. After the Lincoln Trust Company was appointed, under this decree, it acted under the will creating the trust, and not especially under the decree. The court did not even undertake to assume further control of the estate, if in law it might have so assumed. Under the petition in the McManus case, fully as broad, we held it did not have the right to so assume further jurisdiction. 'So far' there is no trouble. But respondents contend that thereafter the parties all appeared before the court and that the orders and judgment made were and are binding.

It must be conceded that the Lincoln Trust Company, successor to Espenchied, had the same right to apply to the court to be relieved of its trust, as did Espenchied in the first place. It must be further conceded that if it did so apply for relief and the relator was properly in court, then she was bound by the decree therein made. As we take it the point urged in this case is that the matter was raised in the original case and not in a new case, and further that the relator was never served with process, hut as the record shows, appeared only through attorney.

We are not impressed with some of the contentions in this regard. It does appear that the Lincoln Trust Company actually filed a petition to be relieved from its position as trustee, and asking for the appointment of a successor. It does appear that relator, and other beneficiaries, only appeared through attorney, and that no additional process was had or served upon them. But it further appears that the beneficiaries interested, through their attorneys, including the relator, asked for the appointment of relator as a successor to the Lincoln Trust Company. In obedience to this request, whether through attorneys or otherwise, the relator was appointed, and after her appointment she qualified and acted. Can she now question the authority of her attorneys in thus entering her appearance? We think not. She accepted the benefits of this decree, acted under it, and is certainly now estopped from questioning it. We take it that the mere informality of docketing the application of the Lincoln Trust Company under the title of the old case is not fatal. The Lincoln Trust Company had the right to file such a petition with reference to the trust estate created by the will. It did filé such petition. The relator appeared to such petition by attorney, and afterward accepted the benefits of a decree made therein. To our mind she is estopped from questioning the decree. The court had jurisdiction of the subject-matter, i. e., the application of the Lincoln Trust Company to be released and the appointment of a successor, and if it acquired jurisdiction of the parties, its judgment cannot be questioned. The only question raised as to this decree is that relator was not properly in court. When she accepted the judgment of the court, as she did, it occurs to us that, as to that judgment she is precluded from questioning it. In other words she is estopped by her own acts and admissions. The mere fact of the canse being wrongfully entitled should not furnish a cloak to escape the results of her own act. Had the cause been given 'the new title of Lincoln Trust Company, trustee, v. Caroline E. Ponath et ah, there would be no question. The fact that it was entitled as of the old cause, we think does not change the character of the judgment and decree which relator accepted and acted under. The judgment is as if the cause was otherwise entitled. It* involved, on the pleadings, the right of the Lincoln Trust Company to resign its trust, and the right of the court to appoint a successor. Counsel for all the beneficiaries asked that Mrs. Ponath be named as successor and this request was granted by the judgment. Mrs. Ponath accepted this trust under this decree, and in so doing must have ratified the act of counsel, if in fact they had not appeared with original authority. As to this decree she can not blow hot and cold. She cannot in a breath deny the authority of the decree and in. another accept the benefits thereof.

In 16 Cyc. 795, the rule is thus stated: “Where a party with knowledge of the facts assents to or participates in judicial proceedings without objection, he is bound .by such proceedings as against one who has been misled by his conduct.” See, also, Hereford v. National Bank of Missouri, 53 Mo. 330.

What we have thus far said is upon the theory that counsel were in fact without authority to represent relator in the beginning. By her act of accepting the judgment and decree, and acting thereunder, she ratified the acts of counsel.

But there is a further question as to the act of counsel, which we take up next.

in. Respondents urge that upon the face of the record it appears that counsel appeared for relator, and that this carries with it the presumption that they acted by authority. It should be noticed that the peti-

tion for the writ of prohibition does not aver that the action of counsel was without authority. No question of this fact is made. The record pleaded for relator shows that the attorney appeared for relator, but the petition for the writ of prohibition does not deny his authority to so appear. As to the attack upon this judgment of the.circuit court, this proceeding is a collateral attack. The judgment is attacked upon the ground of what it shows itself and not upon extraneous matters. The judgment recites that relator appeared by attorney, but does not recite that the relator had been served with process. Whilst it should be held that an attorney has no right without specific authority to waive the service of original process in the case (3 Am. and Eng. Eincy. Law [2 Ed.], p. 323), yet where a regular attorney at law has appeared in the case and thereby entered the appearance of the party, it will be presumed that he acted with authority, at least until such time as his authority is expressly denied. [Weeks on Attorneys, p. 338; Bradley v. Welch, 100 Mo. l. c. 268.]

In this case we have no denial of the rig*ht of counsel to appear for relator, but in addition we have relator acting under a judgment and decree procured by such attorneys. In Weeks on Attorneys, p'. 338, supra, it is said: “And now, although an attorney cannot, without special authority, admit service of jurisdictional process upon his client, yet it has been presumed in collateral proceedings, and on appeal or in error, that a regular attorney at law, who appeared for a defendant, though not served, had authority to do so.” This authority was recognized in the Bradley case, and it sounds reasonable.

This being, in effect, .a collateral attack upon the circuit court judgment the presumption of authority upon the part of the attorney obtains. So that even if the relator was not estopped by the matters discussed in the preceding paragraph, she is still preeluded under the present pleadings from raising the issue.

In Cemetery Assn. v. McCune, 119 Mo. App. l. c. 354, speaking of attorneys, the court said: “An attorney at law is an officer of the court and is not required to produce a warrant of attorney to show that he is authorized to bring a particular suit or to appear as an attorney in any case pending in the court. His professional obligations raise the presumption that he has such authority. [Valle v. Picton, 91 Mo. 207; Robinson v. Robinson, 32 Mo. App. 88.] ”

The Supreme Court of California in the case of S. F. Savings Union v. Long, 123 Cal. l. c. 113, thus puts it: “It is always presumed, until the contrary appears, that an attorney is duly authorized to appear for and represent any parties for whom he assumes to act. This confidence, which underlies all judicial action in this country, rests not only upon a belief in the honor and integrity of the attorney, but upon the fact that he is a sworn officer of the court. ’ ’

In Uehlein v. Burk, 119 Iowa l. c. 743, that court says: “It is the settled rule in this State that, where attorneys have appeared in an action for a defendant, authority for so doing will be presumed, and that the burden is upon the defendant to show that no such authority in fact existed. [Harshey v. Blackmarr, 20 Iowa 161.] ”

Likewise is the rule stated by the Kansas Supreme Court in Reynolds v. Fleming, 30 Kas. 111, whereat it is said: “The authority of an attorney to appear for the party whom he professes to represent, is presumed until the contrary is shown; and it devolves upon the party impeaching the authority to show by positive proof that it is invalid.”

The United States Circuit Court of Appeals has passéd upon the question in the very recent case of Brown v. Arnold, 131 Fed. 723. The first syllabus properly gives the substance of the holding of the court, and reads: “The assumption by an attorney at law of authority within the scope of the ordinary power of a practicing lawyer to act for a party to an action or suit is presumptive proof of actual authority to so act. The power assumed by an attorney at law in the conduct of an action is valid until disproved, not void until proved.”

Other cases might be cited, but the foregoing seem to point out the rule. The judgment in this case recites the appearance of the relator through attorneys, and the presumption is that they acted with authority. Indulging such presumption, the judgment is valid and binding upon relator until such time as she may show the absence of authority of the attorneys to appear for her.

IV. "We shall not go into detail on the several succeeding judgments, because what we have just said practically disposes of each one of them. In the judgment appointing the Mercantile Trust Company as successor to Caroline E. Ponath, the appearance of Mrs. Ponath is shown throughout. It is true the decree says that she appeared “by her attorney,” but this question we have disposed of in the foregoing paragraph.

It should be held in mind that each succeeding trustee had the right to seek the court for release, as did the original trustee, Espenchied. These successive judgments show that they did seek such release, and in so- doing rendered their account. The record shows that Mrs. Ponath in tendering her resignation tendered an account of her stewardship of this estate. This asking to be released of the trusteeship- was an act of her own volition. She invoked the jurisdiction of the court, not necessarily in the old Espenchied- case, but in the matter of the trust estate created by the will nf Charles A. Bircher.' When she thus invoked the jurisdiction of the court in that matter, the court became possessed of the cause, irrespective of the old case. The subject-matter was clearly within the jurisdiction and hy applying to the court for a release and for an adjudication of her accounting, Mrs. Ponath brought her person within the jurisdiction of the court.

We shall not pursue the matter further. What we have said as to the first judgment applies with equal force to each and every succeeding judgment. It applies to the judgment in which Mrs. Ponath is most interested, i. e., the one wherein exceptions were taken to her accounts, and upon a hearing judgment was entered against her. As suggested above, in the proceeding which resulted in this latter judgment she was one of the movents. In fact she was the movent. It is true that charges had been preferred against her and to these charges she had appeared, but these charges were dismissed, and she then becoming the moving factor tendered her resignation, together with her accounts, and asked an examination of her accounts and a discharge from the trusteeship. Out of this case grew the judgment against her in favor of her successor in trust. She appeared throughout as indicated by the record. She excepted to the referee’s report. After judgment she filed motion for new trial. This case is clearly distinguishable from the McManus case. There, McManus, though served with a notice, failed to appear. In the case at bar the application of each succeeding trustee was in fact a new ease. The court became possessed of jurisdiction of the subject-matter and the parties, when a trustee filed a petition for release and an accounting and the beneficiaries appeared. Such was successively done with each of the several trustees, and the mere fact that these several petitions were wrongly entitled does not change the contents of the petition nor the relief asked. All things considered we are of opinion that the preliminary rule should be quashed and the permanent writ of prohibition refused. It is so ordered.

All concur, except Burgess, J., not sitting, and Valliant, J., who dissents in separate opinion.

DISSENTING OPINION.

VALLIANT, J.

I am unable to concur in the conclusions reached in the second, third and fourth paragraphs of the opinion of my learned brother Graves in this case. I have no doubt hut that on the facts stated Mrs. Ponath is answerable in a proper proceeding for her administration of the trust estate while she was de facto trustee. And I do not question the validity of her acts as they may affect innocent third parties while she was so acting. But in my opinion the whole proceedings after February 25, 1902, when the decree was entered accepting the resignation of Espenchied, appointing the Lincoln Trust Company as his successor and requiring him to account to his successor for his trusteeship, was coram non judice. If, after that, the Lincoln Trust Company wanted to resign, it could have done so by filing an original suit in the court for that purpose, which suit might have been assigned to that division of the court or to some other. His was an independent suit. The decree in Espenchied’s suit exhausted the subject of that suit and the court’s jurisdiction over it ended when the term closed. The court co.uld not, even when it held jurisdiction of that case, have ordered an accounting and rendered judgment against Espenchied in favor of his successor for a balance that might have heeri found due, because there was nothing in the pleadings calling for such judgment; the court did all that it could do under the pleadings in that case, it accepted the resignation of the trustee, appointed his successor and clothed him with authority to demand and require a settlement. "When the term closed the booh was sealed and could not be again opened.

In tbe majority opinion, referring to tbe proceedings subsequent to February 25, 1902, it is said tbe court bad jurisdiction of the subject. If by that is meant that a circuit court has jurisdiction of such subjects, I concur, but if it is meant that this particular circuit court at that time bad jurisdiction of this particular subject I do not concur. A court having jurisdiction of such subjects in tbe abstract can acquire jurisdiction of a particular subject in tbe concrete only when it is brought to tbe bar of tbe court in a way prescribed by law.

Mrs. Ponatb’s liability to answer for her trusteeship arises not from tbe so called decree appointing her, but from the fact of her taking possession of tbe estate and assuming to act as trustee in tbe management of it. She is not estopped to deny tbe validity of tbe order under which she took possession, but she is estopped to deny that she did take possession and did act as trustee. In my opinion tbe writ of prohibition ought to go.


author: FOX, C. J.

text:
    MARTHA VAN DYKE v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
    In Banc,
    July 20, 1910.
    1. NEGLIGENCE: Walking on Track: Demurrer. Deceased was an experienced switchman, and had for five months been working in the railroad yards, and knew that many passenger trains passed, and knew their schedules. He went to a hand car, got a crowbar, and started back towards a car on another switch track on the opposite side of the main tracks, at which he had been working. He stepped upon the main track and turned down it, and, in the most favorable light in which the testimony can be considered, had gone only about twenty-one feet, when a train, running on schedule time, but in excess of the ordinance rate, struck him and killed him. He neither looked nor listened, though the train could have been seen for one thousand feet. The whistle sounded three short toots. Held, that a demurrer to plaintiff’s case should have been sustained.

      2. -: Humanitarian Rule. The humanitarian rule cannot be applied in all its strictness to section men whose business it is to work upon cars in railroad yards, for they are supposed to look out for their own safety, and know, or must be presumed to know, when trains running on schedule time pass. And if, being in a place of safety, they suddenly step upon the track in front of an oncoming train running on schedule time, and only a few feet away, without looking for it or listening, and walk in front of it, and are struck, when those in charge of the train, by a reasonable use of the appliances at hand, could not avoid striking them, there can be no recovery, even though the train was running 'at an illegal rate.
    3. -: Evidence: Opinion. Testimony of a witness that it was his “opinion” that deceased walked “about two or three' rails” on the track after he stepped upon it before he was struck by the train, is a mere careless and thoughtless expression of an opinion, and ought not to be considered as evidence at all.
    Appeal from Bnclianan Circuit Court. — Hon. G. A. Mosman, Judge.
    Reversed.

      JR. T. Hailey, Martin L. Clardy, Woodson & Wood-son and Henry G. Herbel for appellant.
    (1) Defendant’s demurrer to the evidence should have been sustained, and the court erred in refusing same: First, because there was no evidence tending to show defendant was guilty of negligence which caused Van Dyke’s death; second, because all the evidence shows deceased was guilty of negligence which caused his death. Tanner v. Railroad, 161 Mo. 510; Reno v. Railroad, 180 Mo. 469. (2) If deceased got upon and walked down the track under the conditions stated, he was guilty of negligence which caused his death and would have prevented a recovery by plaintiff. Evans v. Railroad, 178 Mo. 508. Under such conditions it was not the duty of the engineer to be on the lookout for the safety of the section hands; all the law requires of the engineer is that he must not knowingly injure the trackmen. Evans v. Railroad, 178 Mo. 517; Moore v. Railroad, 176 Mo. 544; Vogg v. Railroad, 138 Mo. 172. Such employees must look after their own safety. Evans v. Railroad, 178 Mo. 517; Holwerson v. Railroad, 157 Mo. 233. The engineer had the right to presume the deceased would keep out of danger. Evans v. Railroad, 178 Mo. 517; Boyd v. Railroad, 105 Mo. 381; Sweeny v. Railroad, 150 Mo. 396; Moore v. Railroad, *176 Mo. 546; Ries v. Railroad, 179 Mo. 1. It is not even the duty of the section foreman or any one else to look after the safety of the section men; they must be on the alert and keep out of the way of the trains. Evans v. Railroad, 178 Mo. 514; Holwerson v. Railroad, 157 Mo. 240.

      W. K. Amick for respondent.
    The demurrer was properly overruled. There was ample evidence to go to the jury on the theory that defendant’s servants saw, or ought to have seen, the deceased on the track and in danger, and thereafter failed to give him warning of the train’s approach in time to get off the track, and failed to promptly make reasonable efforts to stop the train and prevent injury. This is the humanitarian doctrine and is well established. Moore v. Railroad, 194 Mo. 12; Rapp v. Railroad, 190 Mo. 161. There was no proof that deceased was negligent in going upon the tracks. The presumption is that he did look for the approaching train and exercised due care for his own safety. Eckhard v. Railroad, 190 Mo. 613; Riska v. Railroad, 180 Mo. 168. The deceased also had the right to presume that defendant’s train would not be run at a greater speed than that allowed by ordinance. He also had the right to. presume that the bell would be rung as required by ordinance. Riska v. Railroad, 180 Mo. 168; Weller v. Railroad, 164 Mo. 199. The presumption is that the deceased did look for the approaching train before going upon the track. And the fair'and reasonable inference under the evidence is that the train was not yet in sight when he went upon the track. In fact this may he presumed, for it is presumed that he exercised due care.
   FOX, C. J.

This is an action by plaintiff under section 2864, Revised Statutes 1899, to recover the penalty in said section prescribed for the alleged negligent killing of her husband by one of defendant’s trains.

Plaintiff had a verdict and judgment below for five thousand dollars, and defendant appealed to this court. Defendant urges that the facts disclosed failed to show plaintiff’s right to recover under the law, and that its demurrer to the evidence should have been sustained. This contention requires a close and detailed statement of the facts.

Defendant ran its trains in and out of St. Joseph, Missouri, on the tracks of the O. B. & Q., or Burlington Railway Company. The place of the accident is in' South St. Joseph, in the railroad yards, at a point twelve to thirteen hundred feet south and west of Illinois avenue in said city. Near the intersection of Illinois avenue (which street runs east and west) and the railroad tracks was a depot, and some of the distances named are calculated from the southern end of this depot. ' South of Illinois avenue are the railroad yards, a strip three hundred feet in width, fenced upon each, side with wire fence, and it was within this enclosure that the deceased met his death. Upon this property appear to have been signs indicating that it was private property and forbidding trespassing. It does appear from the evidence that at one point the wires had been cut and that there was a path across these yards. To the east of the yards were a number of houses, evidently owned by laborers in the employ of the packing houses, which were to the west of the switchyards. The evidence discloses the use of these yards by such employees in going to'and from their work, which nse seems to have been at the morning, noon and evening hours.

The Burlington Railway Company had two main line tracks in this enclosure. Upon one of these tracks all south-bound trains were run, and upon the other all north-bound trains were run. Van Dyke, the deceased, was in the employ of the Burlington Company, as section man, and for some months had been at work in these yards. Besides the tracks of the Burlington there were two other railroad companies which had main line tracks within this fenced enclosure. All Burlington and Missouri Pacific trains used the Burlington tracks. All told a great many trains passed this point in the course of a day.

Going now to the details of this accident, and its surroundings, we note that deceased was killed by a south-bound Missouri Pacific passenger train which left Union Station at 10:25 a. m. on July 7, 1904. The train was on the west main line Burlington track and was running on schedule time that day. It was due at the point of accident at about 10:35, if on time, and it was shown to have been on time. The schedule rate of speed at the point of accident was twenty-one miles per hour. Plaintiff’s evidence tended to show a speed that morning of thirty-five to forty miles per hour, while defendant’s evidence showed a rate of twenty-five miles per hour.

The depot referred to above is south of Illino.is avenue, and the south end of the depot is about one hundred and fifty feét south of the south line of Illinois avenue. From the evidence it appears that a train did not become visible to persons in the neighborhood where deceased was at work until it reached the south end of the depot. At a point between eleven hundred and twelve hundred feet south of Illinois avenue there began a cut-off track which connected the two main line tracks of the Burlington. The path spoken of above crossed near this point. To the west of the west main line track was what was called the ‘ ‘ team track, ’ ’ which connected with the west main line track about nine hundred and fifty feet south of Illinois avenue. Upon this track cars were continuously standing. To the west of this track and over near the west wire fence was a switch track, which came to an abrupt ending at a point something over thirteen hundred feet south of Illinois avenue. On the day in question a car had been partially derailed at the end of this track. In other words, the south end of the car and the trucks thereunder had been pushed beyond the end of the rails of this “stub” track. Deceased and others were engaged in getting this car back upon the track. Shortly before the accident deceased went north to the cut-over track above mentioned, to get a crowbar from a handcar which was standing on this cut-over track. In returning with the crowbar deceased walked for a space upon the west main line track with his hack to the coming train and was struck and killed. The principal point of dispute is the distance which deceased walked upon this track before being struck. Plaintiff urges that deceased was walking on this track for a space of ninety feet; defendant claims that he was on the track but for a short space.

Before going into the testimony of witnesses in detail other further general facts should be noted. The ear upon which deceased and others were working was thirty-four or thirty-six feet long, and the south four-wheel trucks were off the tracks and on the ground. The railroad rails were shown to be thirty-three feet in length. It also appears that after the accident and before the trial this “stub” track was extended about two-thirds of a rail-length, or twenty-two feet, and thus there is occasioned some of the discrepancies between the testimony of the two sides. Plaintiff’s measurements of distances were made a few days before trial and after the extension of this track for the distance aforesaid. In making their measurements the witness for the plaintiff, on the Monday before the trial, began at a point where the west rail of the cut-off track was six feet from the east rail of the main line track, and measured to a point seven feet beyond the rails of the “stub” track, and found the distance to be one hundred and ten feet. These are the figures given by witness Patton for the plaintiff and is her only measurement. Another witness says that an extension of two-thirds of a rail’s length, or about twenty-two feet, had been added to the track after the accident and before the measurements. The measurements made by defendant’s witness were made from a point where the west rail of the cut-off track was nine feet from the east rail of the main line, which would make their starting point somewhat south of the starting point taken, by plaintiff’s witness Patton. There had been marks placed upon the-rails indicating the position of the handcar, the point where deceased was struck and the point where he was picked up, with some other marked points. Prom the testimony it would appear that defendant’s starting point was correct. Plaintiff’s witness Mount practically so says, although he disputes another marked point, and Moore, another witness, says the mark as to where the handcar was located was properly placed.

At this point it. would be well .to state that but three eyewitnesses to the accident testified — Moore and Mount for the plaintiff, and the engineer for the defendant. In this connection we will give the measurements made by the defendant. As above stated, a civil engineer made measurements for defendant, beginning at a point where the west rail of the cut-off track was nine feet from the east rail of the main track. At this point there was a red mark on the rail, which Moore says correctly located the handcar, and which Mount says was practically correct. Eleven feet south of this mark was another, which defendant claims is the point where the deceased was struck. The witness Mount says this mark does not correctly locate the place, and that he so stated when it was put there. He says that the place where deceased was struck was ten or more feet south of this mark. But getting back to defendant’s measurement — it was eleven feet from the first mark (place of handcar) to the second mark (alleged) place of accident). This witness measured the distance from the handcar to the south end of where he was told the boxcar stood and that was sixty feet, and deducting the eleven feet would leave forty-nine feet from the second mark to the south end of the boxcar, under which the men were working.

The testimony further of these witnesses bearing upon the crucial points we will next outline. The first • witness, Ed. Moore, is very unsatisfactory. He says that he was cutting weeds along the track to the north of this boxcaí; that he and another man were cutting the weeds at the end of the ties about a rod or a rod- and a half north of this car; that Van Dyke left the south end of of the car and went to the handcar, took a drink of water, and then picked up this iron bar and started back; that he got in the main line track and started south; that in his opinion he walked two or three rails; that he passed witness. This witness being further pressed by counsel for plaintiff as to the point where deceased was when struck, said': “A. I could not tell you just exactly. There were weeds up quite high and I could not say exactly.” He says further on that the weeds were waist high in places; that the body was thrown up cab high, and that he believed it was south of where the men were working when it struck the ground. At another place the witness says that he went over the ground after the accident with two other men, and that deceased) had walked “just about three rails as near as I could make it;” that he timed the other men and it took them thirty-five seconds to walk the distance, and they were walking* ahont as Yan Dyke walked; that the train was running thirty-five to forty miles per hour at the time of accident. Witness also said that the iron bar which plaintiff was carrying on his shoulder was thrown six rail-lengths, struck and made a dent in a tie and then went three rail-lengths further; that he heard no bell. He first said he heard this train whistle for the men and then said he did not know whether it was this train or not. No other train was shown to be around there at this time.. On cross-examination this witness said Yan Dyke had been working in these yards from March 9th to July 7th, the day of accident; that the handcar was twenty-five feet north of the derailed car; that it was eight to ten feet from where the handcar was standing to the main line track; later he says he had no idea as to this distance. It appears that during the cross-examination of this witness Moore, the court adjourned over the night, and the witness went down and took another view of the situation. The next morning, being pressed again about the place where the engine overtook and struck deceased, and as to whether the deceased had walked ninety feet, the witness said:

“Q. You must answer this question: I am asking you what caused him to go sixty-five feet below that car, if they were only twenty-five feet apart— these two cars. You said he walked ninety feet? A-He went down the line a little west, just ready to make a step out and this train come on by and hit him.
“Q. Stepped out where? A. After he went down the line a little west.
“Mr. Amick: He didn’t say ‘step out.’
“(Next to last answer read).
“Judge Woodson: Q. Where did he step out? Stepped out where?
“Mr. Amick: I appeal to Your Honor.
“The Court: That is right. He didn’t say that— Just about ready to step out.
“Judge Woodson: Q. IIow do you know lie was ready to make a step out? A. Well, as lie was stepping, lie looked and got a glimpse of the train and it whirled him right around.
“Q. Where was he? When did he kind of whirl around? Where was he with reference to this car that he was going to? A. The handcar?
‘ ‘ Q. Where was he with reference to the freight car? A. He was just in the main line track — just going—
“Q. How far was he east of it — was he directly east or was he south or was he north of it? A. He was going south.
“Q. I didn’t ask you which way he was going. I asked you where he was. A. He was in the main line track.
‘‘ Q. How far south or north was he of this car that was derailed? A. I couldn’t tell you the distance, because I don’t know.
“Q. How far south or north was he of this car that was derailed? A.' I couldn’t tell you the distance, because I don’t know.
“Q. Was he north or was he south of itf A. Where that car was derailed¶
“Q. Yes, sir. A. Well, he was north of it.
“Q. How far north of it was he? A. Of course, I don’t know; but it might be about fifty feet; I would not say; of course, I don’t know.
“Q. He was fifty feet north of the car when he was struck when he started to turn around? A. Then, of course, he was struck there.”

The first question above quoted is explained by the fact that at one time the witness said that the handcar was only twenty-five feet north of the south end of the derailed car, and that deceased walked about three rail-lengths before being struck, which (counting thirty feet to the rail) would make ninety feet, or sixty-five feet south, of the place where the men were engaged at work. Further on this same witness says:

“Q. Don’t you know as a matter of fact that this derailed car at the end of this switch was about sixty feet north — about sixty feet south of the handcar? Now, I don’t want what you testified to before, but from your examination this morning, isn’t it your judgment that the distance from this handcar where Mr. Yan Dyke got the bar south to this car that you all worked at — wasn’t it about sixty feet of that north? A. It may be about — about .somewhere along there; I could not say.
“Q. That is your best judgment. Now then if that is true that it is about sixty feet, then he was ten feet south of the handcar was he — -you take fifty feet from sixty feet, and it leaves ten feet — it must have been ten feet from the handcar where he was struck? Isn’t that true? A. I believe it is.
‘ ‘ Q1. Now, I ask you this question: Have you ever seen any red marks right on the west side of the west rail of this cut-off where this handcar set, made there by a red pencil, at any time? A. I saw them after they was put there.
“Q. That red mark was where that handcar stood wasn’t it? A. Yes, it is about in line of that mark
Q. Did you see on the west rail of the west track any red mark made in pencil, the same as the one you have described? Did you see any on the west rail of the west track or the main line on which this train was running, a red mark at any time? A. I didn’t see it this morning; I have seen one there.
“Q. Now then, how far was that red mark south of the handcar? A. From the second mark you mean?
“Q. Yes, sir. How far was it right down the track — about how many feet? A. It was where Mr. Yan Dvke would have to take that bar?
“Q. Yes, sir. Down to that red mark? A. I could not say exactly. It was from ten to twelve feet, I should think.
‘ ‘ Q. How far was this mark on a straight line up and down — not diagonal across — but up and down the track? A. It would be somewheres about twelve or thirteen feet.
“ Q. Now then, when did you first see these marks ? A. I believe it was the next day afterwards they was put there.
“Q. Who put those marks there? A. I could not say, because I never saw the person put them there.
“Q. You went there, did you not, with Mr. Wood-son here and. these marks were pointed out as the place where the handcar was setting when he got the bar, and where he was when he was struck; and when he pointed this place out, you were there at the time and talked it over? A. Yes, sir.
“Q. Did you ever intimate to any one that they were not the places where he got on, the track and where be was struck? A. I didn’t make any remarks to anybody. . .
“Q. But they were there looking at these places —these marks, as the places where he got on the track and where be was struck and you never denied it? A. I didn’t take any notice of the marks.
“Q. Now, I will ask you as a matter of fact, if these marks do not correctly show the place' where he got on that track and the place where-he was struck? A. Of course, he had—
“Q. I say do they not show correctly where he got on the track and where he got struck? '
“The Court: Answer the question.
“A. I could not say, he had to walk down—
“Judge Woodson: Q. I asked you if these marks don’t designate correctly the place where he got on that main track and where he was struck on that track? A, Of course, the distance that I stood—
“The Court: Never mind; you have got to answer the question. Answer the question.^
“A. Just about.”

These are the marks testified to by the civil engineer, witness for defendant, as being eleven feet apart by actual measurement. Witness Moore further says that he did not see Van Dyke look or listen for the train . before going upon the track.

The next eyewitness for plaintiff, although he did not exactly see the actual striking, but did see the situation a moment prior, was. Prank Mount. This witness said:

“Q. Where was you? A. Underneath the car.
“Q. What .part of the car? A. About the middle west.
“Q. What kind of a car? A. A cattle car that was jacked up.
“Q. Freight car? A. Yes, sir.
“Q. What attracted your attention? A. Whistled —whistled for him to get off the track.
“Q. How soon after you saw him? A. I looked up as soon as I heard the whistle; I was pretty well on the outside of the car underneath. •
“Q. On which side? A. On the east side and I was pretty well over that side; I was underneath the car.
“Q. What did you see? A. I seen Van Dyke.
“Q. How soon after the whistle was it that you saw him? How soon did you look around after you heard the whistle? A. Just as soon as I heard it. They had whistled before I did look; as soon as they did — two or three —
“Q. Was the whistling all continuous? A. Yes, sir.
“Q. As soon as it whistled you looked? A. Yes, sir.
“Q. What did you see? A. I seen Van Dyke; .he was about to get struck; it seemed that something brought my head to the ground to keep frojn seeing him.
“Q. Where was he from you at that time? A. He was very near straight across from me.
“Q. Right opposite of you? A. He wasn’t plum opposite, but he was somewhere in the neighborhood of that.”

On cross-examination this witness said:

“Q. Now then I will get you to state what was the first thing you saw or heard that attracted your attention. A. I heard the whistle.
“Q. How many times did it whistle? A. I will tell you; I don’t mean that train was running wild and whistled close — I mean that it whistled as it does for danger.
“Q. It went toot — toot—toot? A. Yes, sir.
Q. How far — what direction was that from you when you heard it? A. It looked like it was straight across from me — to me.
“Q. When it whistled it was straight across? A. Yes, sir.
“Q. Where was the man standing when he was struck at that time? I mean Van Dyke? A. He was walking down the track.
“Q. In what direction from you? A. He was — ■ looked like he was straight across from me — right across from me. Ee might have been a little above; I guess he was a little above me.
“Q. Eow much above you toas Mr. Van Dykef A. I think that the man was a rail and a half north of me.”

The remaining eyewitness testifying in the cause was Mr. Hall, the engineer. His testimony was that when he first saw Van Dyke he was about one hundred feet ahead of the engine stepping up to the end of the tie on the left of the track; that he stepped into the track and took two or three steps and was struck; that when he first saw deceased he shut off the steam, applied the air and began to whistle; that the engine was within twenty or thirty feet of deceased when he began to whistle, owing to the fact that it took some little time to get hold of the appliances; that had deceased gone across the track instead of turning down it, he would have been saved; that his train could have been stopped in from 275 to 300' feet.

By the conductor and express messenger it was shown that danger signals by the whistle were given.

The testimony shows that laborers at the packinghouses cross over the tracks morning, noon and night, and that members of their families crossed there about noon taking over lunch, and that, the engineers knew these facts. This is the character of user shown.

There was a city ordinance which limited the speed of trains to five miles an hour, and this train was near the corporation line, but within the city limits. By rule of the company in evidence, section men were required to look out for trains and keep out of their way.

Under the evidence a train could have been seen when it reached the south end of the depot, and the south end of the depot, as stated above, was 150 feet south of Blinois avenue. The engineer could have seen a man on the track for about the same distance.

This substantially indicates the controlling facts as disclosed by the record -upon which this case was submitted to the jury.

At the close of the evidence the cause was submitted to the jury and they returned a verdict for the penalty provided by the statute — the sum of five thousand dollars. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. From the judgment rendered in accordance with the verdict returned the defendant in due time and proper form prosecutes its appeal to this court, and the record is now before us for consideration.

OPINION.

Upon the disclosures of the record before us it is apparent that the main question with which we are confronted is the propriety of the action of the trial court in declining to give, at the request of the appellant, at the close of all .the evidence,-an instruction in the nature of a demurrer to the evidence. The correct solution of this proposition must be sought by a careful analysis of the controlling facts developed upon the trial. "We have indicated in the statement of this cause substantially the nature and character of the testimony developed upon the trial, and after carefully considering in detail all of the testimony introduced at the trial we see no escape from the conclusion that the plaintiff in this case was not entitled to recover. When all of the testimony introduced in this cause is fully considered, viewing it from the most favorable light for the plaintiff, it fails to make out a case which authorized the submission of the cause to the jury.

Mr. Yan Dyke, plajntiff’s husband, was, at the time of the accident, a trackman in the employ of the Burlington Railroad Company; he was about thirty-one years old; his daily work was in these railroad yards. So far as the record discloses his eyesight was good as well as his hearing. He was familiar with the trains and the usual course of the trains, as well as the time of the passage of trains, at the point where the accident occurred. He had been working in these yards about five months. On the morning of the accident Mr. Yan Dyke was helping other trackmen replace a freight car on the west side track from which it had become derailed. In doing this work he went from the derailed car to a handcar that was on the east side track to get a crowbar to be used in the work of replacing the derailed car. This handcar was east and north of the derailed ear. As to the exact distance north there is some conflict in the evidence. Plaintiff’s husband got the crowbar and started bach with it on his shoulder. He stepped on the main tract, upon which defendant was operating its cars, turned south and walked in the direction of the derailed car, and while so walking an engine drawing a passenger train of the defendant coming down the main track struck him and killed him.

The controlling question in dispute is the distance which the deceased walked upon this track before being struck by the engine of the defendant. Learned counsel for respondent insists that the testimony as introduced by the plaintiff would fully warrant the conclusion that the deceased, after he stepped upon the track, walked eighty or ninety feet south before he was struck. Manifestly when the testimony introduced by the plaintiff is fully considered and viewing it in the most favorable light in her behalf, counsel for respondent is in error in this insistence. The measurement of the distance between the location of the handcar and the derailed freight car was made by Mr. Patton, in company with the learned counsel representing the plaintiff in this cause. This measurement was made on Monday before the trial, January 13, 1905. The measurement as made by Mr. Patton began at a point on the Burlington track where the east rail was six feet west of the west rail of the cut-off track where the handcar stood and ran to a point opposite and east of a point seven feet south of the south end of the switch or tail track where they supposed the freight car was off. That distance was found to be 110 feet and no more. Mr. Mount, a witness introduced by plaintiff, testified that since the accident the switch or tail track had been extended about two-thirds of a rail, which would be about twenty-two feet. The testimony upon this point is uncontradicted that after the accident and before the measurement as taken by Mr. Patton twenty-two feet had been added to the switch or tail track, and that such twenty-two feet were embraced in the measurement as made by Mr. Patton. The testimony shows that the derailed freight car was thirty-four or thirty-six feet long. Now if you will deduct two-thirds of a rail or twenty-two feet added to the switch or tail track, and also deduct thirty-five feet as the length of the derailed freight ear, both of which were embraced in the measurement as made by Mr. Patton, from the 110 feet, according to his measurement, you would have left fifty-three feet as being the distance from the north end of the derailed freight car to where the handcar stood' at the time- of the injury' and the testimony is undisputed that the: deceased, Mr. Van Dyke, was struck on the main line of the Burlington railroad at some point within the distance between the south end of the handcar and the north end of the derailed freight ear; In addition to this Mr. Mount, witness for the plaintiff, testified that at the time of this accident he was under the derailed freight car, near the west side, about the middle; that the train whistled two or three times, the witness thus expressing it, “it went toot- — ■ toot — toot.” While this witness, Mr. Mount, testified that it seemed to him when he looked up after hearing the whistle that it was right opposite where he was, he then explains and says, “not plum opposite, but in that neighborhood.” Afterwards in giving details he says that Van Dyke when the train whistled was about a rail and a half north of him. This witness was under the derailed freight car, about the middle; it was about seventeen and a half feet from where Mr. Mount was under the car to the north end of the car, the full length of the car being thirty-five feet. If you will deduct this seventeen and a half feet from the forty-nine and a half feet; the distance embraced within a rail and half which the witness says Mr. Van Dyke was north of him, you would then have Mr. Van Dyke about thirty-two feet north of the north end of the derailed freight car. The distance between the south end of the handcar and the north end of the derailed freight car being fifty-three feet, this would result in the conclusion that Mr. Van Dyke after stepping upon the main line of the Burlington track only walked about twenty-one feet, which would be about seven steps. This simply verifies other statements made by witness Mount when he was going over the Burlington tracks and certain marks were pointed out to him as being the point where Mr. Van Dyke was struck by the train. These marks were placed there in the measurement made by Mr. Irwin, who was a deputy county surveyor of Buchanan county. The mark as pointed out to the< witness Mr. Mount, was about eleven feet from the south end of the handcar, and witness Mount testified substantially that while in his opinion the mark representing where the handcar stood was correct that he could not say for sure, but he thought the mark representing the point where Mr. Van Dyke, the deceased, was struck by the engine, was not correct. In his opinion the mark should have been made ten feet further south. This world place Mr. Van Dyke at the time he was struck, twenty-one feet south of the south end of the handcar. This statement is strictly in accord with the result reached from his other statement that Mr. Van Dyke was a rail and a half north of him when he (Mount) was working under about midway of the derailed car. The correctness of the conclusion deduced from the statement of witness Mount that Mr. Van Dyke at the time he was struck was a number of feet north of the north end of the derailed car, is further emphasized when we take into consideration that this witness says that the train whistled three times and the whistling was continuous, and that the witness looked up and discovered that Mr. Van Dyke was about to get struck. He says at this point that it seemed that something brought his head to the ground to keep him from seeing him struck. This tends strongly to show that the whistling and1 the striking of the deceased, Mr. Van Dyke, was as the witness states, a number of feet north of the north end of the derailed car. While it may be that the occurrences about which the witness testifies about the time of the striking' of Mr. Van Dyke, may have taken a very short time, yet manifestly the whistling three times, which attracted the attention of the witness, Mr. Mount, and the realization by him that Mr. Van Dyke was about to be struck, then' something occurring that brought his head to the ground so that he did not see the striking of Mr. Van Dyke by the engine, must have consumed at least some length of time, and clearly a sufficient length of time, if the whistling was directly opposite the derailed car, that the striking of the deceased Van Dyke would have occurred south of the derailed car, which all of the testimony in this cause shows was not the case. .

Manifestly the • insistence of counsel for the respondent that Mr. Van Dyke had walked eighty or ninety feet after stepping on the main track of the Burlington railroad before he was struck is based upon the expression of opinion by witness Ed Moore. This witness in answer to a question propounded to him as to how far the deceased walked on the track, answered, “Well, my opinion — it was in my'Opinion about two or three rails.” When the whole of this witness’s testimony is considered it is made apparent that that answer was a mere careless and thoughtless expression of an opinion of a fact which in view of his other statements made in detail concerning the same subject, could not and ought not to be considered as evidence at all. As was said by this court in Koons v. Railroad, 178 Mo. 591, “this is not testimony of a fact which the witness knows, but is simply the opinion or impression of the witness formed since the accident.” Again it may be said that this did not amount to testimony establishing any fact or tending to do so for the further reason that it is in contradiction of the physical facts. As heretofore pointed out the distance between the south end of the handcar and the north end of the derailed car was far less than ninety feet. But aside from this the witness himself, subsequent to making the statement about Mr. Van Dyke walking two or three rails, clearly indicates by his detailed statement of the facts that he did not wish to be understood either by the court or jury that he was testifying that the deceased walked either sixty or ninety feet after stepping upon the main line of the Burlington railroad before he¡ was struck.

Witness Moore testified that he heard the whistle blow. ■ He says in answer to a question as to when he heard it blow, that “it whistled quite loud for us upon the 'track, but I was not paying attention to the whistle.” This witness also gave testimony concerning the distance between the handcar and the derailed freight car. His testimony at first upon this particular point was as follows: “Q. How far north of the freight car was the handcar at the time Van Dyke was struck! A. I don’t know, exactly, but it was— The Court: Answer as near as you can. A. About twenty-five feet, I should judge. Q. Twenty-five feet from where the handcar sat on the cut-off between the east and west Burlington tracks down to a point clear on as far south as the end of your car — you said twenty-five feet, I believe? A. That is my opinion; yes, sir.” This witness further testified that he could not say how many feet it was that Mr. Van Dyke walked after stepping upon the main line of the Burlington track near the handcar; but he does positively say when the question is propounded to him as to whether or not. Mr. Van Dyke at the time he was struck by the engine was north or south of the derailed car, that he was north of it. The inquiry was further made as to how far north of this derailed car was Mr. Van Dyke at the time he was struck. This witness answered, “Of course I do not know, but it might be about fifty feet, I would not say; of course I do not know.” This witness further answered the inquiry as to whether as a matter of fact this derailed car at the end of the tail or switch track was not about sixty feet south of the handcar, and he answered, “It may be about — about somewhere along there; I could not say.” Following this the inquiry was made of the witness Moore, stating to the witness that it being his best judgment that the derailed car was about sixty feet south of the handcar, and that having formerly expressed the opinion that Mr. Van Dyke might have been about fifty feet north of the derailed car at the time he was struck, under that state of facts, deducting the fifty feet from the sixty feet, would make the point where Mr. Van Dyke, the deceased, was struck, about ten feet from the handcar, and the witness was asked if that was not true, that the point upon the main track where the deceased was struck was about ten feet south of the handcar, and his answer was, “I believe it is.”

'This testimony fully corroborates the testimony of the engineer wherein he states that when he first saw the deceased he was one hundred feet in front of him at the east end of the ties and stepped two steps beyond the middle of the track and turned south and took not more than three steps and after he discovered him blew the whistle several times for him before he struck him. In the statement of Hall, the engineer, he says that it took him some little time to get to the whistle after he discovered Mr. Van Dyke in a place of danger. According to the testimony of the engineer Mr. Van Dyke was about ten feet south of the handcar when he was struck; this would be about three steps that the engineer says he took, and that conforms to the opinion as expressed by witness Moore, and as to the alarm whistles, the danger signals, the engineer is corroborated by witness Mount, as well as witness Ed Moore.

When yon carefully analyze the testimony of witness Moore, in his opinion the point at which the deceased was struck after he turned south upon the main track, was about ten feet south of the handcar. According to the testimony of witness Mount Mr. Yan Dyke was ten or eleven feet further south than witness Moore makes it, which would make it twenty-one feet south of the handcar.

There were only three eyewitnesses to the accident which resulted in the death of plaintiff’s husband— Frank Mount and Ed Moore, who were introduced by the plaintiff, and the engineer in charge of the engine that struck deceased. After a careful consideration of the testimony of Mount and Moore it is clear that their testimony upon the vital and pivotal point in this controversy does not contradict the testimony of the engineer. The only difference between the testimony of Mount and that of the engineer is that Mount places the point of the striking ten or eleven feet further south than the engineer. Manifestly .this does not contradict the engineer’s statement that he first saw Mr. Van Dyke about one hundred feet in front of him when he stepped upon the track, and that he used every effort, consistent with the safety of the passengers, to stop the train. Witnesses Mount and Moore, introduced by the plaintiff, not only do not contradict the testimony of the engineer, except in locating the point, of the striking of the deceased, which only makes a difference of a few feet, and this does not in any way make a material change in the location of the parties and as to what was done by the engineer after he discovered Mr. Yan Dyke upon the track. But on the other hand the testimony of the two eyewitnesses introduced by the plaintiff, when it is fully analyzed in accordance with the measurements made of the distance between the south end of handcar and the north end of the derailed car, substantially corroborates the testimony of the engineer in charge of the engine at the time of this fatal accident.

Applying the well-settled rules of law upon this proposition to the facts as developed upon the trial, and which have heretofore been substantially indicated, we repeat that plaintiff was not entitled to recover in this action. Plaintiff’s husband was an experienced section hand; he was perfectly familiar with the numerous trains that passed the point where this accident occurred, as well as the schedule time at which the trains passed. The testimony discloses that numerous trains, both passenger and freight, passed the point where Mr. Van Dyke was engaged at work, and he was perfectly familiar with the rule that required the_seetion men to keep a lookout for trains; notwithstanding this experience and his knowledge of the passage of trains, as well as the time of their passage, he steps upon the main track of the Burlington Railroad Company, upon which the defendant was operating its train, just about the time defendant’s train was due, and, so far as the record discloses, without looking, listening or paying any attention whatever, turned his back in the direction from which defendant’s train was approaching, without at any time turning around to look for the approach of such train; he only took a few steps — not exceeding seven, until he was struck. In other words, when the testimony is all considered in this case it in effect shows that Mr. Van Dyke stepped nearly directly in front of an approaching passenger train without paying the least attention to the approach of such train. The testimony discloses that he could have passed over the main track and been perfectly safe; but notwithstanding his full knowledge of the situation he voluntarily assumed the dangerous position upon the main track. This, in our opinion, was such, gross negligence that, if the well-considered adjudications upon that subject are to be longer followed, precludes the plaintiff from a recovery in this cause. The only testimony as to when the deceased was discovered upon the track is that given by the engineer, and the record discloses that after he discovered the deceased upon the track he used every reasonable effort to avoid the accidentgave the alarm signal as promptly as he was able to do under the circumstances.

Respondent insists that the judgment in this cause can and should be maintained upon the humanitarian rule that has frequently been announced by this court. In Evans v. Railroad, 178 Mo. l. c. 517, it was pointed out that “it will not do to apply this rule in all its strictness to section men whose business it is to work upon and keep in repair railroad tracks, for they are supposed to look after their own personal safety, and to know of the time at which trains pass, to look for them and see them, and to move out of the way. It is of common knowledge that these men often voluntarily wait until trains get dangerously close to them, and then step out of danger and let them pass by, and to require trains to stop upon all such occasions, when section men are discovered at work on the track, Avould not only be imposing upon railroads unjust burdens, but would greatly interfere with traffic and travel. Those in charge of trains have the right •to presume in the first place that such persons will keep out of danger, and not until they haA^e good reason to believe they will not do so, and then fail to use all proper means at their command to prevent injuring them, in consequence of which they are injured, or are injured by reason of the willful negligence of those in charge of the train, should the defendant be held liable. ’ ’

In Davies v. Railroad, 159‘ Mo. 1, it was expressly ruled that it was gross negligence for persons to assume a place of danger upon railroad tracks and thereby trust that the agents of the railroad company in the course of their employment will be more watchful of the safety of persons assuming such dangerous positions than themselves.

In Clancy v. Railroad, 192 Mo. 615; the plaintiff sought a recovery against the railroad company for injuries received. It appears from the disclosures of the record1 in that case that plaintiff was not an employee of the railroad company, hut was working in a trench for a gaslight company in a space between the two railroad tracks; that he had full knowledge that the cars were passing backward and forward upon the tracks by this place where he was at work. Some excuse was offered for his carelessness in not observing the cars in passing, that he was so engrossed in his work that he did not take notice of the approach of the cars. It was expressly ruled upon that state of the record that “the plaintiff, therefore, had no right to permit his mind to become so engrossed in his work as to become heedless of his danger, and as not to take proper precautions to observe the approach of cars.” That was the rule applied to plaintiff Clancy, who was not an employee of the railroad, but who was at work along the line of railroad for another party. Obviously the reasons are much stronger why that rule should he applied to the plaintiff’s husband in the case at bar, who was a. section man and whose duties especially required him to be on the lookout for approaching cars.

In Moore v. Railroad, 176 Mo. 544, the rule of law applicable to persons stepping upon railroad tracks in front of approaching trains was clearly pointed out and the rule as therein announced is clearly applicable to the plaintiff’s husband in this case, for he knew, or at least was presumed to know, the time of the arrival of that train, and just about the time the train was due he carelessly and recklessly stepped upon the track and without looking or listening, carelessly and negligently turned his hack in the' direction from which the train would approach that point. It was said by this court iu the last case cited (Moore v. Railroad), that “it has always been the law in this State that it is such gross negligence as precludes a recovery for a person to step on a railroad track directly in front of an approaching train and so close to it as to render it impossible tq stop the train in time to avoid injury ... and this is true even if the train was running at a rate of speed in excess of the maximum rate permitted by law. [Tanner v. Railroad, 161 Mo. 497.] For in such case the negligence of the injured party and not the rate of speed of .the train is the proximate cause of the injury.”

In McGrath v. St. Louis Transit Co., 197 Mo. 97, decided by Division No. 1 of this court, in which all concurred, the rules of law announced in the cases herein indicated of Evans, Davies and Clancy v. Railroads, were approvingly referred to and the doctrine as announced in those cases was followed and made the basis of the conclusion reached that the judgment in the McGrath case should be reversed.

The comparatively recent case of Degonia v. Railroad, 224 Mo. 564, in our opinion, is decisive of the case at bar. In that case Degonia was, like Yan Dyke in the case at bar, employed by the railroad company as a section man. Graves, J., speaking for the Court In Banc, said: “In the case at bar deceased knew that a train was due [so did Mr. Yan Dyke in this case know that a train was due]; he knew it was coming from the north [so did Mr. Yan Dyke, in this case know that the train was coming from the north]; very shortly beforehand he leaves a place of safety and assumes a place of danger, with his back to the north, from whence he knew a train was coming.” So in this case, Mr. Yan Dyke left a place of safety and assumed a place of danger, with his back to the north from whence he knew a train was coming. Finally the court in that case announced the conclusion in the following language: “In the case at har under the plaintiff’s proof the court should have declared as a matter of law that the deceased was guilty of contributory negligence. He had worked for a long time in these yards. The train that struck him was a regular train and running on schedule time. He knew the time of the train and the direction from which it was coming or, as an experienced employee, will he presumed to have so known. He was in duty bound not to become so engrossed in his own work as to endanger his own safety. Yet with his hack toward an oncoming train, without any precaution whatever, he continues his work. I shall not elaborate upon this, because the evidence is too clear to require elaboration” — citing in support of the conclusion reached the following cases: Davies v. Railroad, 159 Mo. 1; Evans v. Railroad, 178 Mo. 512; Wheat v. St. Louis, 179 Mo. 572; Clancy v. Railroad, 192 Mo. 615; McGrath v. Railroad, 197 Mo. 97; Cahill v. Railroad, 205 Mo. 393; Brockschmidt v. Railroad, 205 Mo. 435; Riccio v. Railroad, 189 Mass. 358. As before stated, this case obviously is decisive of the case at har. We see no necessity for pursuing this subject further. While this accident, like all others of a similar character, enlists our sympathy and was strikingly unfortunate, yet if we are to longer follow the well-considered adjudications upon this proposition, we repeat, there is no escape from the conclusion that the plaintiff in this cause is not entitled to recover.

Entertaining the views to which we have given expression, it follows that the judgment of the trial court should he reversed, and it is so ordered.