author: ROY, 0.

text:
    W. B. STONE v. KANSAS CITY AND WESTPORT BELT RAILWAY COMPANY, Appellant.
    Division Two,
    July 14, 1914.
    1. COMMON SOURCE OF TITLE: Possession Under Erroneous Description. It is not necessary, to constitute a common source of title, that both parties should have a good title from the common source. That would be impossible. All that is necessary is that both parties claim under the common source. So where one of defendant’s predecessors in title took possession of a right of way under a deed from the owner of the land under whom plaintiff claims, which deed misdescribed one of the lots over which the grant was made, that makes a common source of title which cannot be impeached by defendant except by showing a title superior to that of the common source.

      2. QUIETING TITLE: Evidence: Deed: Made by Order of Court. In a suit to quiet title a joint deed to the property in dispute made by the owner’s assignee in bankruptcy' and by a substituted trustee under a deed of trust, was properly admitted in evidence, over an objection that the power of the makers was not shown, where the deed recites that the land was sold under an order of the court in bankruptcy and under the provisions of the deed of trust.
    3. DEED OF TRUST: Substitute Trustee: Sheriff: Ex parte Appointment. The fact that the court’s appointment of the sheriff as substituted trustee to sell land was made on an ex parte application of the beneficiary in the deed of trust, does not render the appointment invalid.
    4. VENDOR AND PURCHASER: Real Estate: In Possession of Third Party. He who buys property in the open and visible possession of a third person is chargeable with notice of the title and right of that person in the premises.
    5. -: Foreclosure Deed not Recorded: Purchase of Equity of Redemption. A recorded deed of trust is constructive notice that the legal title is outstanding in the trustee, and one who, without notice of the foreclosure of the deed of trust, purchases the equity of redemption ten years after the foreclosure but before the recording of the foreclosure deed, is .not entitled, in a suit to quiet title, to have the foreclosure deed declared void, although meanwhile he has completed and operated a railroad upon the land in question.
    6. --: Adverse Possession: Evidence. Evidence held insufficient to establish title in defendant by adverse possession.
    7. ACTIONS: Parties: Bound by Prior Adjudication. As regards the subject-matter, parties to a prior suit and their privies are concluded,-in a second suit, as to all matters which, were or might have been submitted to the court for its consideration on the issues in the first case.
    Appeal from Jackson Circuit Court. — Hon. E. E. Porterfield, Judge.
    Affirmed.

      John H. Lucas and Halbert H. McCluer for appellant.
    (1) The court erred in not declaring as a matter of law that respondent was not entitled to recover. (a) There was no showing that the United States had ever parted with its title to the land. Sec. 4 of the 5th Clause, Act of Admission, Stats. 1909, p. 38; See. 6316, R. S. 1909; Stephenson v. Stephenson, 71 Mo. 127. (b) The trust deed from Campbell to Swearingen did not sufficiently describe the land, (c) The trustee’s deed under the above deed did not sufficiently describe the land, (d) The sale.by substitute trustee and assignee in bankruptcy was not shown to have been made with authority and was hence invalid. In re Snedaker, 3 B. R. 155; In re People’s Mail Steamship Co., 2 B. R. 170; Davis v. Carpenter, 2 B. R. 125; Jones v. Leach et al., 1 B. R. 165; In re Yogel, 2 B. R. 138; Lee'v. Franklin, 3 B. R. 53; In re Rosenberg, 3 B. R. 33; In re High, 3 B. R. 46. (e) In .the absence of an agreement to the contrary the taking of the land for the purpose of a right of way was an appropriation of a right of way of the usual width, being the amount allowed by law. Hargis v. Railroad, 100 Mo. 210; Campbell v. Railroad, 110 Ind. 490'; Railroad v. Cochrane, 3 Lea (Tenn.), 478; Railroad v. McReynolds, 48 S. W. (Tenn.) 253. (2) Adverse user gave the appellant a prescriptive right and the court erred in not so deciding. Boyce v. Railroad, 168 Mo. 583; Railroad v. Michener, 117 Ind. 462; Prather v. Telegraph Co., 89 Ind. 501; Schultz v. Lindell, 30 Mo. 310; Johnson v. Prewett, 32 Mo. 553; Powell v. Davis, 54 Mo. 315; Callahan' v. Davis, 103 Mo. 444; Ragan v. Railroad, 144 Mo. 636.' (3) The Perkins suit was not an adjudication of this matter, and the conversation about same cannot aid respondent. Stumpe v. Kopp, 201 Mo. 423; Lemmons v. McKinley, 162 Mo. 530. (4) Respondent was precluded from a recovery by failure to record the deed to Perkins until long after purchase and improvement by appellant’s grantor. (5) Appellant’s rights have not been lost by abandonment. Railroad v. Railroad, 129 Mo. 62; 1 Am. & Eng. Ency. Law, p. 1; Scarritt v. Railroad, 148 Mo. 683; Constitution, art. 12, sec. 14; State v. Railroad, ■'239 Mo. 234. (6) The court erred in admitting each of the following items of evidence. (a) Deed from substitute trustee and assignee in bankruptcy, (b) Appointment of substitute trustee. (c) Evidence about claims made in the Ragan case. (d) Evidence as to claim in the Ragan cáse and instruction asked in that case, and in not striking out that evidence, (e) Refusing to strike out exhibits 6, 15 and 18, and each of them as requested by appellant, (f) Exhibit 41, being the amended petition.in the Ragan case and exhibit 42 being disclaimer. (g) Petition, summons and judgment in the suit of Perkins v. Appellant et al. (h) Evidence of N. F. Heitman about what was said in settlement of the Perkins case.

      McCune, Harding, Brown & Murphy and Spencer F. Harris for respondent.
    (1) The description in the deed of trust from Campbell to Swearingen is sufficient. Loyd v. Oates, 143 Ala. 433; McAllister v. Henea, 71 Miss. 259; Waugh v. Richardson, 30 N. 0. 470; Henry v. Whitaker, 82 Tex. 5; Cornwell v. Thurston, 59 Mo. 156; Frank v. Meyer, 97 Ala. 437; Rainwater v. Stevens, 15 Mo. App. 544. (2) The description in the trustee’s deed is good. (3) The sale by trustee and assignee in bankruptcy is good. The law presumes the necessary orders were procured. Rockwell v. Brown, 54 N. Y. 210; Ivy v. Yancey, 129 Mo. 509. (4) There is no presumption in the. absence of a license to enter, that the railroad occupied a right of way to the full extent allowed by law. Railroad v. Rickards, 38 Neb. 847. (5) The original right of way, if any was ever obtained, was never occupied and was abandoned long prior to 1887. Roanoke v. Railroad, 108 Mo. 50. (6) There was not sufficient showing of adverse possession to vest title in appellant. Jones on Easements, sec. 857; Herbert v. Merrifield, 133 Mo. 270; Elliott on Railroads (2 Ed.), see. 948; Railroad v. Galt, 133 111. 670. (7) The deed from the Cases to Kansas City, Memphis & Mobile Ry. Go., being foreclosed, was not color of title when possession was taken in 1887. Jones on Easements, sec. 857; Wier v. Marsh, 21 Tex. 97; Choateau v. Riddle, 110 Mo. 366; Snyder v. Railroad, 112 Mo. 540. (8) The Case deed cannot constitute color of title as possession was not taken by the first taker under such deed. Norfleet v. Hutchings, 68 Mo. 598.- (9) Where holder of legal title is in possession of whole tract, and claimant under color of title deed enters, such claimant can only acquire title by adverse possession to part actually occupied. Ozark Plateau v. Hayes, 105 Mo. 151; Bradley v. West, 60 Mo. 40; Leefer v. Baker, 68 Mo. 450; Lynde v. Williams, 68 Mo. 369. (10) Right of way deed over lot 104 is no presumption of intent to convey right of way across lot 101. Railroad v. Rickards, 38 Neb. 847. (11) The case brought by Stephen Perkins settled all questions as to the width of the right of way. Bradley v. West, 60 Mo. 69. (12) The failure to record the trustee’s deed, cannot affect respondent’s right, as deed of trust under which sale was made was of record before the Case deed was executed. ■
   ROY, 0.

This is a proceeding to quiet title to real estate. There was a judgment for plaintiff from which defendant has appealed.

The petition was filed September 26,1908, and contains the following: “Plaintiff for his cause of action against said defendants states that he is the owner of all of lots 101 and 104 in Campbell’s Addition to the town of West-port, now a part of Kansas City, Jackson county, Missouri, except a right of way over and across said lots, extending for a distance of ten feet on each side of the center line of the present railroad now located over and across said property. Plaintiff further states that defendants, Kansas City and Westport Belt Railway Company and the Metropolitan Street Railway Company claim an interest in and to a part of said property adverse to that of plaintiff, the part claimed by said defendants, being a strip of ground over and across said lots, extending fifty feet on each side of the center line of said railroad.” Then follows the usual prayer for relief in such cases.

The answer contains the following: “Comes now the Kansas City & Westport Belt Railway Company, and for its separate answer to the petition of the plaintiff filed herein states that it is now, and has been for thirty years or more, the owner of the easement over and upon, and in the possession of, the property described in plaintiff’s petition, to-wit: All of lots 101 and 104, Campbell’s Addition to the town of Westport, now a part of Kansas City, Jackson county, Missouri. Wherefore defendant prays the court to enter a decree herein declaring this defendant to be the owner of the easement referred to herein over said lots, and further declare that plaintiff has no right, title or interest in or to said property, and for its costs herein expended.”

The reply was as follows:

“Now comes plaintiff and for reply to the answer filed herein by defendant Kansas City & Westport Belt Railway Company denies that said defendant is in possession of or entitled to any right of way or easement over the land described in plaintiff’s petition, except the right of way in such petition described, and denies that defendant has been in possession of any right of way over said land except the right of way described in plaintiff’s petition, for a period of thirty years or for any other period of time.

“Plaintiff for further reply to said answer says that if said defendant or any person or corporation under whom it claims ever had any right of way over and across said land, except the right of way described in plaintiff’s petition, it or they have long since been lost and extinguished by abandonment.

“Plaintiff for further reply to said answer says that all the rights of said defendant Kansas City & Westport Belt Railway Company over and across said property was fixed and determined by a judgment of the circuit court of Jackson county, Missouri, at Kansas City, in an action wherein Sophia Perkins, John S. Perkins and Robert Perkins, under whom plaintiff claims title to the property described in plaintiff’s petition, were plaintiffs, and the Kansas City, Osceola & Southern Ry. Co., John I. Blair, DeWitt C. Blair, C. Ledyard Blair, Clarence B. Mitchell, Henry Pfeiffer and said defendant Kansas City & Westport Belt Railway Company, were defendants, in which judgment the right of said defendant to an easement or right of way over and across said property was fixed and determined and such right of way established as described in plaintiff’s petition. Wherefore plaintiff asks judgment as in his petition prayed. ’ ’

On April 23, 1868, Theodore S. and Oliver Case, having color of title to said lots 101 and 104, and being in possession thereof, executed a deed of trust on the lots to George W. Doggett as trustee to secure the payment of a debt to Stephen Perkins, with the usual provisions for sale by'trustee in case of default, but there was no provision for a sale by a substitute trustee. It was acknowledged, and recorded on April 29, 1868.

The plaintiff read in evidence an entry in the records of the circuit court of Jackson county, dated October 31, 1874, as- follows:

• “This day comes Stephen Perkins, by his attorney, and presents his petition, sworn to, stating among other things that he is the beneficiary or cestui que trust in a certain deed of trust executed on the 23d day of April, 1868, by Theodore S. Case, Julia M. Case and Oliver Case, to George W. Doggett, trustee, conveying certain real estate and personal property therein described, and situated in the city of West-port, county of Jackson and State of Missouri, to said Doggett in trust to secure the payment of certain notes therein described of which said Perkins was then and still is the legal owner and holder. That a part of the interest and principal of said notes remains due and unpaid and that said George W. Doggett, trustee, has since died, leaving no one authorized by the terms of said deed to execute the same, and praying the court for the appointment of the sheriff of the county trustee to execute said trust.

“It is therefore ordered and adjudged that C. B. L. Boothe, sheriff of the county, be and is hereby appointed trustee in place and stead of said George W. Doggett, deceased, to execute said trust:”

There was no showing of the service of any summons or notice on any one to appear in such proceeding. The defendant objected to such evidence on the ground of irrelevancy, incompetency and immateriality, and because the court had no power to make such appointment on the showing.recited in the order. The objection was overruled.

• Plaintiff read in evidence a deed of assignment by the register in bankruptcy in the District Court of the United States for the Western 'District of Missouri, assigning the property and estate of Oliver Case & Co. and Theodore S. Case, bankrupts, to John A. Ross, assignee in 'bankruptcy.. Also a deed dated June 18, 1877, executed by John A. Ross, assignee in bankruptcy, as aforesaid, and by C. B. L. Boothe, sheriff, the substitute trustee, to Stephen Perkins, foreclosing the deed of trust dated April 23,1868, to which defendant made the formal objections, and also objected on the ground that it-was not shown that the parties had any authority to make the deed. That deed was not. recorded until June 22, 1891. It recited that it was made in pursuance of an order of said district court and that the sale had been approved by that court.

On August 27,1873, after the execution of the foregoing deed of trust and' before its foreclosure, the Oases executed a conveyance of a right of way to the Kansas City, Memphis & Mobile Railroad Company, twenty-five feet wide on each side of the center line of its railroad through lots 102, 103, 104 and 178 in said addition. There was no lot 178 in that addition. Immediately following the execution of that deed, the grantee graded its road through lots 101 and 104 on the line where defendant’s track now runs.

After the purchase by Stephen Perkins under the foreclosure of the deed of trust on the lots, he took possession and built a fence around the lots including the grade of the railroad.

On January 28, 1887, the Kansas City & Southeastern Railroad Company became the owner by. mesne conveyances of the railroad and its right of way through lots 101 and 104, all of which were at that time enclosed by said fence. It constructed its road along and over that old grade during that year. At what period during that year the work was done is not shown. The evidence does not show that the road bed occupies any ground more than ten feet from the center of the track. In 1891 the railroad company repaired and improved its track through those lots and piled material for bridges and track construction on the lots along its track, the distance- from the track not being definitely shown. In the years 1891 and 1892, cars of freight were placed on the track at that place and unloaded there by wagons which came on the unenclosed lots for that purpose. During the work of 1891, dirt was taken from places within twenty-five feet on each side of the center of the track for improvement of the roadbed. There was rock there, and the dirt was not taken over six inches deep.

On July 20, 1897, the defendant became the owner of the railroad by deeds which described its right of way as a hundred feet wide.

Stephen Perkins died intestate, leaving a widow, Sophia, and his children, John S. and Robert EL, his sole heirs, who on August 30,1897, brought suit ag’ainst this defendant in the circuit court, the petition alleging that Stephen Perkins was the owner of said lots in his life time, and that he died intestate, and that the plaintiffs therein, as his widow and heirs were the owners of said lots. It then contains the following:

“That heretofore, to-wit, on the-day of August, 1897, the above named defendants did wrongfully take and appropriate for the purpose of a railroad right of way a strip of land running diagonally through said lots to the extent of ten feet on each side of the center line of the railroad roadbed, as the same is now located and situated on said lots. That said defendants took and appropriated said strip of land as aforesaid without any condemnation proceedings, or other lawful right to do so, and without the consent of the plain- • tiffs, or either of them, and did so without paying any compensation whatsoever, and that no compensation has ever been paid to the plaintiffs, or either of them, on account of the wrongful- taking of said strip of ground for public use as aforesaid.”

The petition then offered to convey the title to the right of way to defendant, and prayed for $5000 as damages for the appropriation.

On October 12, 1901, judgment was rendered in that case as follows:

“Now on this day the above entitled cause coming on regularly tó be heard and the defendant, Kansas City & "Westport Belt Railway Company and defendants having filed their answer herein, and the plaintiffs appearing by N. F. Ileitman, their atto.mey, and the defendants appearing by Johnson & Lucas, their attorneys, and the parties duly waived a jury in open court, and the court having heard and duly considered the pleadings, evidence and arguments of counsel, finds the issues in favor of the plaintiffs and assesses plaintiff’s damages at the sum of six hundred dollars.

“Wherefore, it is considered, ordered and adjudged by the court that plaintiffs have and recover of and from the defendants the sum of six hundred dollars and costs of suit on account of the appropriation of a right of way for railroad purposes over the premises described in plaintiff’s petition, situate in Jackson county, Missouri, to-wit: Lots one hundred and one and one hundred and four in Campbell’s Addition to the town of Westport, now a part of Kansas City, Missouri, across the above described tract of land as-said right of way is now located thereon; said appropriation of said right of way having taken place without the payment’of just compensation, as alleged in plaintiff’s petition. And defendants did in open court pay to the plaintiffs the damages as aforesaid and the plaintiffs acknowledge satisfaction of the judgment aforesaid.

“Wherefore, it is ordered, adjudged and decreed by the court that the title to said premises be fully vested in the above named defendant Kansas City & Westport Railway Company, free and clear from any and all claims.”

With reference to that suit, John S. Perkins for-plaintiff testified as to conversations between bim and his counsel, Mr. Heitman, on one side, and Mr. Lucas, counsel for defendant, and Mr. Miller, its president, on the other side. He testified as follows:

“Q, State what was said by Mr. Lucas and Mr. Miller with reference to the right of way. A. Of course, I was introduced first and Mr. Heitman said we came over in regard to that matter, and I don’t remember all that was said; but Mr. Lucas says, we are entitled to fifty feet. I says, well, if you take fifty feet you ruin the balance of our lot, it does not leave us any frontage, and we would want pay for all of it, for the whole property. And we talked on a little bit and he said to Mr. Miller that we can get along all right with twenty feet, and my recollection is that Mr. Miller decided that twenty feet would be sufficient, and that was the final windup of it. I don’t remember just exactly all that was said, it has been a good while ago, but that was the final windup and he decided-—

“Mr. White: We object to what was decided.

“Q. Just tell what was said. A. They said they would take the twenty feet and agreed on the price.

“Q. What were they to pay for it? A. Six hundred dollars and pay the court costs.

‘ ‘ Q. Did they at any time claim to own or occupy more than twenty feet?

“Mr. White: I make the same objection as made to the principal question, and for the same reason.

“Objection overruled. To which ruling and action of the court the defendant then and there at the time duly excepted and still excepts.

“A. No, sir, they never claimed any.

“Q. Did they at any time afterwards, up to the time you sold it, make any claim to more than twenty feet? A. No, sir.”

On cross-examination the following occurred:

“Q. The suit had already been filed? A. It had been filed virtually by agreement between the parties that that was all that they would need. It was a friendly suit.”

In reference to that matter Mr. Lucas testified:

“Q. You bought a right of way from the Perkins in those negotiations? A. Did what?

‘‘Q. -Bought a right of way? A. No, sir, I bought peace. I had a right of way but I bought peace, just as I have done fox twenty years in railroad litigation. They claimed adversely and I purchased my peace in the matter of these people.

“Q. You purchased what they were claiming? A. I purchased whatever rights they were asserting there at that time.

“Q. Did you assert at that time any rights to any more than you purchased? A. I don’t recall whether I made any statement about any rights more than I purchased, or not, for I don’t recall the conversation. I have got only a faint impression in my mind that somebody introduced me to Mr. Perkins, and I don’t recall now whether I ever saw him more than that once.

“Q. The right of way you did pay for was ten feet on each side of the center line? A. I would not be able to tell you -that. The pleadings would show whatever that was.

“Q. Wasn’t the matter of the width of the right of way taken up at that time by you and Mr. Heitman and Mr. Perkins, and didn’t they offer you whatever you were willing to pay for, and you said that was all you needed, was what your track occupied, and that was -all you wanted? A. I would be unable to answer about that conversation, because my mind is indistinct about it. If some circumstance was recalled I might remember what the conversation was, but I will say in a general way, of course I wouldn’t attempt to conclude my company’s right by any negotiations for- any less from Mr. Perkins, who was insisting he had a right there. I don’t remember what the defense was that I believed I had, whether I claimed to have a deed or by virtue of condemnation. If it is important I can refresh my recollection by the files in the Perkins case, but in any event, whatever I did there was simply to buy peace.”

In 1904 the defendant again used twenty-five feet on each side of the center of its road to pile material, and to get dirt for the repair of its track. On March 5, 1905, plaintiff obtained a warranty deed from the widow and heirs of. Stephen Perkins for the lots subject to a right of way for defendant’s road ten feet wide on each side of the center of its track. The right of way was never fenced from the balance of said lots until just before this suit was brought, when a fence was put up along the boundaries of the twenty-foot strip. Defendant tore that fence down and put up one along the outer boundaries of the land in controversy.

I. Objections were made to several of the deeds introduced in evidence by plaintiff in the chain of title to the Cases. We shall not consider the merits of those objections. The Cases are the common source of title. To constitute a common source of title, it is not necessary that both parties should have a good title from the common source. That would be impossible. All that is necessary is that both parties claim under the common source. The deed for the right of way from the Cases, made in 1873, described the lots as Nos. 102, 103, 104 and 178. There was no lot numbered 178. Immediately after the making of that deed the road was graded through lots 101, 102, 103 and 104. There is no doubt that lot 101 was intended instead of lot 178. Possession for the purpose of grading the track was undoubtedly taken under the Cases and because of that deed for the right of way. That makes a common' source of title which cannot be impeached by defendant except by showing a title superior to that of the common source. [Miller v. Hardin, 64 Mo. 545; Feller v. Lee, 225 Mo. 319.]

II. Appellants insist that the deed made jointly by the assignee in bankruptcy and'by the substituted trustee under the deed of trust to Stephen Perkins was improperly admitted in evidence. The objection to the deed was that it was “incompetent, irrelevant and immaterial, because it is not shown that the parties had any power to make the .deed. ’ ’ The deed recites that it was sold under an order of the court in bankruptcy and under the provisions of the deed of trust. It also recites that the sale was approved by the court. There was no objection on the ground that the orders, of the court were not shown in evidence. We hold that the objection was properly overruled.

III. The fact that the sheriff was appointed as a substitute trustee under the deed of trust on an ex parte application of the benefieiary in. the' deed of trust does not invalidate such appointment. Sections 1 and 2, Revised Statutes 1855, pages 1554-5, provide for the appointment of the sheriff as such substitute trustee on the application of the beneficiary in a deed of trust. By the act of February 2, 1872 (Laws 1872, p. 67, sec. 1), it was provided that on such application the court should appoint “the sheriff or some other suitable person of the county” as such trustee. That section is now 11920, Revised Statutes 1909. In Martin v. Paxson, 66 Mo. l. c. 265, it was said: “No notice of such application is necessary; none is'required by the statute. The proceeding is ex parte, and upon affidavit only; and by the provisions of the statute in force at the time the substitution in the present ease was made, no question could arise as to the propriety of the appointment to be made by the court, as, under that statute, no other person than the sheriff of the county could be 'appointed. ’ ’

In Thompson v. Foerstel, 10 Mo. App. 290, the appointment of a person other than the sheriff was upheld. In Hitch v. Stonebraker, 125 Mo. l. c. 138, this court said that such statute was in derogation of the common law and should be strictly construed. In Tatum v. Holliday, 59 Mo. 422, and in State ex rel. v. Griffith, 63 Mo. 545, it was held that a sheriff, acting under such statutory appointment, does so officially. His bond as such sheriff secures his faithful discharge of the duties of such trustee. We are not deciding as to whether the court can appoint “some other suitable person,” but we do hold that the appointment of the sheriff on such ex parte application is valid.

IV.- The deed by the assignee in bankruptcy and the substitute trustee under the deed of trust was withheld from record from its date, June 18, 1877, until June 22, 1891. Appellant’s brief contains the following :

“In the time intervening the Kansas City & Southeastern By. Oo. purchased the property, took possession, completed the road, and expended a large sum of money in so doing, and had operated the road for about four years.

“Bespondent’s grantor, having withheld his deed from record and stood by and witnessed the purchase and improvement of the property by appellant’s grantor, cannot now make claim against appellant. ’ ’

When the Kansas City & Southeastern got its deed to the road on January 28, 1887, these lots including -the right of way were enclosed. with a fence and were in the possession .of Stephen Perkins. “He who buys a piece or property m the open, and visible possession of a third person is chargeable with notice of the title and right of that person in the premises.” [Wiggenhorn v. Daniels, 149 Mo. l. c. 165; Squires v. Kimball, 208 Mo. l. c. 119.]

The defendant and all those under whom it claims were at all times affected with constructive notice by the record that the legal title to the lots was outstanding in the trustee under the deed of trust in which Doggett was named as trustee. As between the trustee and Stephen Perkins that legal title passed by the foreclosure sale. The purchase of the equity of redemption, after the foreclosure and before the recording of the foreclosure deed, without notice of such foreclosure to the purchaser of the equity, would not have the' effect of entirely avoiding that sale as between the purchaser of the equity and the purchaser under the foreclosure. At most, such failure to record would only let in the purchaser, of the equity to redeem the land from the the deed of trust. "We are frank to say that we have found no case squarely in point. But it has been held that where the foreclosure sale is irregular and not void, such irregularity can only be taken advantage of in an action to redeem. [Adams v. Carpenter, 187 Mo. 613.] In such action to redeem, the plaintiff herein wotld.be in the position of holding the legal title which was formerly in the trustee.

Y. We thus find, as a result of the foregoing conclusions, that the record title to the land in controversy is in the plaintiff, and the question -remains as to whether defendant has acquired title by adverse possession. The evidence does not show at what time in the year 1887 the'track was constructed across the lots. On August 30, 1897, the Perkins suit against this defendant was instituted. It does not appear that ten years had intervened since the track was constructed. The witnesses Heitman and John S. Perkins for plaintiff testified that such suit was filed under an arrangement by which it was agreed that twenty feet was all defendant wanted for its right of way. Mr. Lucas, witness for defendant, disclaimed being able to remember what was said in that conversation. We are justified in finding that such suit was brought under snch agreement. Such being the case, the defendant was not on August 30, 1897, asserting any claim to the land in controversy, but had yielded such claim. - It had not prior to that time acquired title by adverse possession, because there is a lack of evidence to show that ten years had then expired since the track was built. One who asserts title by adverse possession has the burden of proving it. [Hulsey v. Wood, 55 Mo. 252.]

Defendant having on August 30, 1897, ceased to make any claim to the land in controversy, whatever right it may have by adverse possession must have accrued since that date. The possession under claim of right must have been continuous. Possession under a claim of right since 1897 cannot be tacked onto such possession under claim of right prior to 1897, because of the break in the claim.

We therefore inquire whether, since 1897, the defendant has had the continuous adverse possession of the land in dispute under a claim of right.

The judgment in the Perkins case is res judicata against the defendant on the proposition that defendant was not, at the date of the institution of that suit, the owner of the twenty-foot strip either by paper title or by adverse possession. The evidence in this case does no^ s^10'w' whether the deeds in defendant’s chain of title were in evidence in that case. They were proper evidence and might have been introduced in that case to show defendant’s title to the twénty-foot strip. So far as the subject-matter is concerned in another suit, the parties to the former suit and their privies are concluded as to all matters which were or which might have been submitted to the court for its consideration on the issues in the first case. [Donnell v. Wright, 147 Mo. l. c. 647; Hamilton v. McLean, 169 Mo. 1. c. 73.]

The court adjudged in the Perldns case that the deeds under which defendant claims did not constitute title to the twenty-foot right of way. That judgment, itself, decreed the title to that strip to defendant in consideration of the $600 damages adjudged to the plaintiffs therein. Since that decree defendant has not held that right of way under any color of title. but under an actual title, i. e., that judgment. The defendant certainly does not hold actual adverse possession of the twenty-foot strip under color of title to the whole fifty feet.

In Crispen v. Hannavan, 50 Mo. l. c. 544, it was said: “Ordinarily, the possession of' one who does not hold the true title can extend only to the land in actual occupancy. The owner, who holds constructive possession of all lands not actually occupied by others, cannot he disseized by a mere claim. There must be something more. In addition to the actual occupancy of a part — the open, notorious and continuous possession as owner- — there must he a claim to the whole, by the same right under which the part actually occupied is held, and such claim must be bona fide and evidenced by some paper or proceeding, or relation, that makes the claimant the apparent owner of the whole. [Fugate v. Pierce, 49 Mo. 441.]”

After the decree in the Perkins ease the plaintiff’s deeds did not constitute color of title to the land in controversy. A claim of right under color of title includes good faith, and good faith is destroyed when the color of title is adjudged worthless as between the parties. [Sholl v. Coal Co,, 139 Ill. 21; Hintrager v. Smith, 89 Iowa, 270.]

Appellant claims that under the authority of Har- . gis v. Railroad, 100 Mo. 210, it will be presumed that defendant’s possession extended to the full statutory width of a hundred feet. . That case says that such is the presumption where there is nothing appearing to the contrary. In this case defendant does not even claim a hundred feet, and its actual possession is confined to the twenty-foot strip decreed to it by the court. It has no color of title outside the twenty-foot strip.

There are numerous other questions raised in the. briefs of counsel, but the propositions above announced áre decisive of the matters involved. The judgment is affirmed.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: WILLIAMS, C.

license: Public Domain

text:
    GEORGE B. NEAR v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    Division Two,
    July 14, 1914.
    1. EVIDENCE: Sufficiency: Demurrer. In passing upon the sufficiency of the evidence, when challenged hy demurrer, the general rule is that plaintiff’s evidence (if not impossible or opposed to the physics of the case or entirely beyond reason) is taken as true and plaintiff is further entitled to the benefit of every reasonable inference of fact arising on all the proof. But this does not relieve plaintiff from the necessity of producing' substantial testimony to prove the issues involved. ' A mere glimmer or spark, a mere scintilla, will not do.
    2. NEGLIGENCE; Master and Servant: Inspection of Freight Cars by Railroad. As regards liability to its employees, it is 'the duty of a railroad company to discover dangerous defects in cars and equipment received from other roads, if the defect be such as can be discovered by the exercise of ordinary care.
    3. -: -: -: Ordinary Care: Defective Brake. The plaintiff, a switchman employed by defendant, was injured while setting a tunnel brake, on a box car received from . another road and previously inspected by defendant. Plaintiff’s evidence tended to show that the brake was defective; that after it was broken from one-third to two-thirds of the broken end looked like a fresh break; that the break occurred near the place where the staff entered the brake wheel; that the break was irregular, beginning one-fourth to one-sixteenth of án inch outside the socket of the brake wheel and extending a like distance down into the square portion of the staff covered by the wheel socket; that the old break appeared on the end of the broken portion which extended out of the socket; and that the staff broke because of said defect while plaintiff was applying the brake, causing him to fall and be injured. Plaintiff testified that he tested the brake when he first boarded the car, and that it sounded all right. Held, that plaintiff failed to make a case for the jury, there being no obligation on the defendant to use more than ordinary care in. inspection, whereas only extraordinary precaution, such, for example, as taking the brake to pieces, would have revealed the defect.
    Appeal from Jackson Circuit Court. — Hon. James E. Goodrich, Judge.
    Reversed and remanded.

      W. F. Evans and Cowherd, Ingraham, Durham & Morse for appellant.
    Plaintiff failed to establish a case, (a) There must be some substantial evidence to uphold a verdict. Dutcher v. Railroad, 241 Mo. 167; McNulty v. Railroad, 166 Mo. App. 461; Champagne v. Harney, 189' Mo. 729. (b) The only duty resting upon defendants was reasonable inspection. Gutridge v. Railroad, 94 Mo. 474; O’Flanagan v. Railroad, 145 Mo. App. 283; Howard v. Railroad, 173 Mo. 529. (c) The physical facts negative all question of negligence. Champagne v. Harney, 189 Mo. 726; Phippin v. Railroad, 196 Mo. ■ 343; MeClanahan v. Railroad, 147 Mo. App. 409. (d) The custom followed by the railroads of the country in the matter of inspection was the measure of ordinary care. Brunke v. Railroad, 115 Mo. App. 39; O’Mellia v. Railroad, 115 Mo. 221; Kane v. Falk Co., 93 Mo. App. 215; Hunt v. Seal Co.; 104 Mo. App. 389; White v. Railroad, 84 Mo. App. 417; Henry v. Railroad, 66 Iowa, 52; Maynard v. Buck, 100 Mass. 40; Reed v. Railroad, 94 Mo. App. 371. The mere breaking of the staff was not in itself proof either of the defect or of negligence in failure to discover the same. Elliott v. Railroad, 204 Mo. 1; McGrath v. Transit Co., 197 Mo. 104; Yarnell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. Ill; Wornstein v. Railroad, 195 Mo. 440; Bowen v. Railroad, 95 Mo. 274; Bohn v. Railroad, 106 Mo. 429; Howard v. Railroad, 173 Mo. 531. (e) To warrant a verdict on an inference of negligence that must be the only inference fairly deducible from the evidence. McGrath v. Transit Co., 197 Mo. 104; Ryan v. McCully, 123 Mo. 646; Pink v. Railroad, 161 Mo. App. 325; Smith v. Bank, 99 Mass. 612; Smart v. Kansas City, 91 Mo. App. 593. The master is entitled to the presumption of ordinary care until negligence is proven. Elliott v. Railroad, 204 Mo. 14; Yam nell v. Railroad, 113 Mo. 570; Murphy v. Railroad, 115 Mo. Ill; Hornstein v. Railroad, 195 Mo. 440.

      Boyle, Guthrie, Howell & Smith and Jos. S. Brooks for respondent.
    (1) There was substantial evidence to sustain the verdict. It was the duty of the appellant to exercise ordinary care to discover defects in the brake-staff. It was for the jury to say whether or not reasonable and proper care was exercised in the inspection of the brake-staff. The weight of the testimony was a question for the jury. Gutridge v. Railroad, 105 Mo. 520; Dutcher v. Railroad, 241 Mo. 167; Railroad v. Slattery, L. R., 3 App. Cas. 1155; Mosely v. Railroad, 132 Mo. App. 649; Winkle v. Dry Goods Co., 132 Mo. App. 666. (2) It is elementary in this State that a.demurrer admits every fact to be true- which the evidence in the case tends to prove, whether by direct testimony, or by reasonable deductions to be drawn therefrom. Von Trebra v. Gaslight Co., .209 Mo. 658-; Meily v. Railroad, 215 Mo. 586; Hach v. Railroad, 208 Mo. 601 ; Kinlen v. Railroad, 216 Mo. 155. (3) A demurrer to the evidence should never be given in any case where the facts bearing upon the issues are disputed, or un■disputed and admit of different constructions and inferences, or about which reasonable minds might differ. Williamson v. Transit Co., 202 Mo. 376. (4) A railroad company is bound to inspect foreign cars just as it is required to inspect its own. Gutridge v. Railroad, 94 Mo. 474. (5) The gravamen of the situation here is not the failure to inspect, but the failure to make proper inspection. 0 ’Flanagan v. Railroad, 145 Mo. App. 283; Gutridge v. Railroad, 105 Mo. 527. (6) The inspector should adopt such reasonable methods and apply such reasonable tests as are likely to discover defects, if they exist. It is not sufficient, merely to look at a brake-staff nine feet from the ground in passing by; such an inspection is not reasonable. It would not be likely to' discover defects even if they did exist. Gutridge v. Railroad, 105 Mo. 527; Wood v. Railroad, 187 Mo. 445; Allen v. Railroad, 26 Cent. Rep. 297; 0 ’Flanagan v. Railroad, 145 Mo. App. 281. (7) Ordinary care is great care when there is an extraordinary hazard; what is ordinarily done is not conclusive of due care. Tallman v. Nelson,-141 Mo. App. 484; Jewell v. Powder Co., 166 Mo. App. 567; Hovarka v. Transit Co., 191 Mo. 454; O’Dowd v. Railroad, 166 Mo. Ap-p. 669. (8) The standard, by which a given act is to be classified as careful or negligent, is fixed by an inflexible rule of the substantive law, and not by usage or custom. Brunke v. Telephone Co., 115 Mo. App. 38; White v. Railroad, 84 Mo. App. 417; Wig-more on Evidence, sec. 461.
   WILLIAMS, C.

This is a suit to recover damages for personal injuries. Plaintiff recovered judgment in the sum of fifteen thousand dollars in the circuit court of Jackson county, Missouri, and defendant appealed. That portion of the petition containing the charge of negligence was as follows :

“The defendant did negligently deliver to and cause the plaintiff to work as such switchman upon a certain freight car, not owned by defendant, and negligently failed to properly inspect the same before cansing plaintiff to work on same, which said car was worn, defective and ont of repair in this that there was npon the said car a certain hand br.ake consisting substantially of a wheel revolving npon a shaft or staff for the purpose of tightening brakes on said car, the said shaft or crank of which was and had for a long time theretofore been worn, defective and ont of repair, cracked and broken, and but a very small and insufficient portion thereof remained intact, and same was not sufficiently strong to resist the application of a reasonable and proper amount of power used npon said wheel for the purpose of setting such brakes; all of which was unknown to the plaintiff but was or could, by the exercise of due care, have been known to the defendant.”

The evidence on the part of plaintiff tended to show the following facts: At the time of receiving the injuries, plaintiff was an, employee of defendant company, in the' capacity of field switchman, in the company’s switch yards in Kansas City, Missouri. His hours of work were in the. nighttime. The duty of the switch screw, with which plaintiff was working, was to switch freight cars from the connecting lines onto the proper tracks of the defendant’s switch yards. The cars from the connecting lines would be attached to an engine of the defendant company and moved into the defendant’s switch yards and plaintiff, acting as field switchman, would throw the respective switches so as to shunt the respective cars npon their proper switch track destination; that in doing this it sometimes became necessary for plaintiff after letting a car into the switch track to climb npon the same and stop it by setting the brakes on the car. Plaintiff was injured about 2 a. m., and on the night in question the switch engine and switch crew with which plaintiff worked took a “drag” of cars (inclnding one box oar of the Pennsylvania Railroad, which was the car that injured plaintiff), from the connecting tracts of the Chicago, Milwaukee and St. Paul Railroad to the defendant’s yards for the purpose of shunting the respective cars of said “drag” into the proper switch destination. It was intended that the Pennsylvania car should be placed on switch track No. 26, but on account of some mistake, not important to the present controversy, plaintiff opened the switch to track No. 27 and the Pennsylvania car was shunted into that switch track. After the ear came upon that switch track, plaintiff climbed upon the forward end of said car for the purpose of riding the car down the switch and stopping it at its proper place by setting the brake on the car. This car was equipped with what is known as a tunnel brake. The tunnel brake is attached to the car in the following manner. The brake staff, being a piece of iron about an inch and one-half in diameter, is attached to the end of the car on the outside of the car, approximately five feet above the bottom of the car, and projects out from the car a distance of eight or ten inches. On the outer end of this brake staff the brake wheel, twenty-two inches in diameter, is located, the end of the brake staff being square so as to fit into a square socket in the wheel. The ratchet wheel is attached to this brake staff near the place where the staff enters the end of the car. The brake staff is supported at the outer end by an iron brace or bracket which comes out from the body of the car and encircles the brake staff near the place where it enters the socket of the brake wheel. The brake chain is attached to the brake staff at some point between the ratchet wheel and the brace. The end beams at the bottom of the box car extend out a distance of approximately eighteen inches, which furnishes á platform upon which the person operating the brake may stand. On the night in question, after plaintiff had climbed on the front end of the moving car, lie first tested the brake to see if it was working properly. This was done by turning the brake ' wheel so that the slack was taken out of the chain and turning the brake until he heard the brake shoes catch on the wheels; that it “sounded all right” and that thereafter the car progressed about three car lengths and up near the place where plaintiff desired to stop the car and then plaintiff commenced to set the brake. While in the act of setting the brake, the brake staff broke in two allowing the brake wheel to drop off,thereby causing the plaintiff to lose his balance and fall in the middle of the track in front of the moving car. The-car continued down the track and over plaintiff. At the time of the accident plaintiff was about forty years old, in good health, weighing about 205 pounds. Some of the bones in his left foot were broken or thrown out of place; his right leg was broken between the knee and the hip and his right foot was injured. After the car stopped plaintiff crawled out from under the car and called for help. Describing his injuries at that time, plaintiff says: “I was bruised all over; I had pains all over.” He was then taken to the hospital and given treatment. At the time of the trial, which occurred about a year and a half after plaintiff was injured, he weighed about 185 pounds and was unable to walk without the aid of crutches; his right ankle was stiff and his left ankle was very . nearly stiff — the bones in both ankles being affected with ankylosis; the muscles of the right leg were somewhat atrophied and the right leg was partly paralyzed. He testified' that he could not walk without the aid of crutches and that he had been unable to do any work since the accident and the doctor testified that his injuries were permanent. Plaintiff’s evidence further tended to show that the brake staff broke near the place where it goes into the socket of the brake wheel; that the break was irregular, starting at a distance of from one-sixteenth to one-fourth of an inch from the brake wheel and extending in an irregular manner a similar distance down into the square portion of the brake staff, which was covered by the socket of the brake wheel. Mr. Munson, who was the foreman of the switching crew with which plaintiff was working on the night of the injury, heard plaintiff call for help and went down to where plaintiff was lying on the ground. This witness picked up the brake wheel and examined the place where the staff had broken and said that the cross-section of the portion of the broken staff which had remained in the brake wheel showed that about two-thirds of the break was an old break and the remainder appeared to be a fresh break; that the old break extended to about two-thirds of the circumference of the staff; that the broken portion of the staff projected about one-sixteenth of an inch from the socket of the brake wheel on one edge of the socket and that the fresh portion of the break was down in the socket. Claud M. Donahue was working for the defendant company as a switchman in another part of its yards at the time plaintiff was injured and was present when Mr. Munson examined the brake wheel containing a portion of the broken staff. This witness said that about one-third of the break appeared to be an old break and the rest of the break was bright, appearing to be a new break; that a portion of the brake staff, where the cross-section showed the old break, protruded out of the brake wheel socket about one-fourth of an inch; that “it was broke angling like you would break a stick or anything; there was about one-quarter of an inch was up and the other went back into the square place in the brake wheel.” When asked what part of the circumference of the broken cross-section appeared to be an old break he said: “At that time it was about half an inch or something that a way.” Plaintiff’s evidence further tended to show that it was the custom in the switchyards for the company’s car inspectors to inspect the exchanged cars before the switchman took charge of them. It further appears from the evidence that in making inspections of these cars the inspector makes a memorandum of any defects he discovers and a copy of these memoranda is furnished the railroad company from whom the car is received. Plaintiff introduced as a witness Mr. Robert Morrow, the foreman of the car department of the Chicago, Milwaukee & St. Paul Railroad Company, and this witness produced an inspection sheet, which had been furnished his company by the defendant company, with reference to an inspection made on this car by the defendant’s inspector at 3 p. m., the day before the accident. This report showed that there were no side doors on the car; that one end sill and one intersill were broken and that there was a hot box on- the brake end of the car and that the car was leaking coke at the right and left side doors. Plaintiff’s evidence further tended to show that when brake staffs break or crack, the breaking or crack occurs either at the place where the bolt goes through which fastens the chain- onto the brake staff or at the place where the brake Staff goes into the socket on the brake wheel. Plaintiff’s evidence further tended to show that the brace which came down from the end of the car to hold the brake shaft in line encircled the brake staff at a distance of about one-eighth of an inch to three-eighths of an inch from the hub of the brake wheel. During the progress of the trial, the original wheel containing what purported to be the remnant of the broken brake staff was exhibited to plaintiff’s witness Mr. Munson and he was asked if it was the same in appearance as when he examined it on the night plaintiff was injured. He testified that it appeared the same except that the broken portion of the shaft did not appear to project out of the wheel socket as far as it did when he examined it.

Defendant’s evidence tended to show the following facts: The brake wheel which was the one in use on the night in question was introduced in evidence and in the socket of the brake wheel was the square portion of what was purported to be the broken end of the brake staff. This wheel and broken portion of the staff were exhibited in this court upon the oral argument of the case. Defendant’s witnesses testified that the brake wheel and the broken portion of the staff were the same in every particular as they were when the break first occurred. The exhibit in its present condition shows that.the entire break, at least with reference to the outer surface of the brake staff, is confined within the wheel socket. The surface of the broken staff does not project out of the socket, but in the center of the cross-section of the broken staff a portion projects about one-sixteenth of an inch beyond the level of the socket. Other witnesses for defendant testified that they examined the broken staff a short time after the accident and that the break occurred where the square portion of the staff joins onto the round portion. Mr. Hartman, the blacksmith for the defendant company, testified that he had been doing railroad blacksmithing work for twenty-three years and that he repaired this broken staff after the accident and that this was the only broken staff of that kind that he had ever been called upon to repair. Mr. Zeigler, defendant’s foreman of the repair track at the time of the accident, testified that.the method of inspecting ears, coming from other roads into the Frisco yards at the time of this accident, which was the same inspection given by all the railroads under similar circumstances, was for the inspector to look for all breaks that he could see with his eye; that brake staffs became cracked by reason of being struck by some object and that if they were struck they will either be bent or break clear off and that the inspector in inspecting the car would look at the brake and if it appeared to be straight and all the parts there he would not give it any further inspection and that it is not the practice for the inspector to get np near the brake staff and closely scrutinize it; that in his experience he never knew of a brake staff being cracked by being struck by something that was not bent so as to be noticeable by the inspector. John T. Bauch testified that he was car inspector for the Frisco at the time of the accident and that he, together with another inspector, made an inspection of the car in question, the day before the accident, and found the defects therein as shown in the list furnished to, the Chicago, St. P'aul & Milwaukee Railroad Company. This witness testified that the usual and cus- . tomary manner of inspecting brakes on cars of this kind was to look up while standing on the ground at the end of the car and that if all the parts of the brake appeared to be in place and the brake did not appear • to be bent in any way they would not make any closer inspection and that this was the way he inspected the brake on the car in question. The witness further testified that during his work as an inspector he had never found one of these tunnel brakes broken. The evidence on the part of defendant further tends to show that this manner of inspecting interchanged cars was the one in general use by all railroad companies. Defendant’s evidence further showed that the tunnel brakes on cars of this kind are placed five feet and five inches above the end sill of the car and that the end sill is four feet and four inches above the ground, making the brake staff nine feet and nine inches from the ground, and that the brake wheel sets out from the end of the car nine and one-half inches. Mr. Donahue was introduced by plaintiff in rebuttal as an expert to testify to the manner or method in use throughout the country on the various roads with reference to inspecting interchanged cars of this kind that have end brakes. This witness testified as follows: ‘ ‘ They get up to test them (tunnel brakes); get up on the cross-beam timber, that goes across the end of the car, and twist them np to see that the chains, ratchet wheels, dogs and everything is in working order. ’ ’

Appellant contends that plaintiff failed to establish a case and that its demurrer offered at the close of all the evidence should , , , • have been sustained.

In passing upon the sufficiency of the evidence, challenged by demurrer, the general rule is that plaintiff’s evidence (“if not impossible or opposed to the physics of the case or entirely, beyond reason”) is taken as true and plaintiff is further entitled to the benefit of “every reasonable inference of fact arising on all the proof.” [Stauffer v. Railroad, 243 Mo. 305, l. c. 316.] • But this does not .relieve plaintiff of the necessity of producing substantial testimony to prove the issues involved. “A mere glimmer or spark, a mere scintilla will not do.” [Dutcher v. Railroad, 241 Mo. 137, l. c. 167.]

The negligence charged was that "defendant negligently failed to properly inspect the brake.

Plaintiff’s evidence tends to show that the brake in question was defective; that after it was broken, from one-third to two-thirds of the broken end had the appearance of an old break and the remainder had the appearance of a fresh break; that the break occurred near the place where the large brake wheel fastened onto the end of the brake staff; that the break was irregular, beginning one-fourth or one-sixteenth of an inch outside the socket of the brake wheel and extending a like distance down into the square portion of the staff covered by the wheel socket; that the old break appeared on the end of the broken portion which extended out of the socket; that the staff broke because of said defect while the brake was being applied by plaintiff, causing him to fall and receive his injuries.

Under the circumstances it was the duty of defendant company to discover the dangerous defects in the cars and equipment received by it from other roads, if the defect was such as conld have been discovered by the exercise of ordinary care upon its part. [Gut-ridge v. Railroad, 94 Mo. 468; same case on second appeal 105 Mo. 5201.]

This brings us to the discussion of the vital question raised by this appeal, to-wit, was there substantial evidence tending to show or from which it could be reasonably inferred that the defect [n question was one that could have been discovered by defendant by the exercise of ordinary care on its part?-

It is impossible today down a rule of conduct which would serve as a test or .measure in all cases in ascertaining whether ordinary care had been exercised. This because that which might be found to be the exercise of ordinary care in a given case, with its attending facts and surrounding circumstances, might be negligence when applied to the facts and circumstances in another case. We would be safe in saying, however, that the rule of ordinary care would not require that to be done which would not occur to a reasonably prudent man, under like or similar circumstances, as necessary to be done.

In the case of Gutridge v. Railroad, 105 Mo. 520, l. c. 526-7, it was said:

“We cannot formulate any rule of law fixing definitely the standard of ordinary care. Every attempt to do it has resulted in failure. What is ordinary care in one case, might be the grossest negligence in another. A mere glance at one handhold might indicate to an ordinary observer that it was safe, while, on the other hand, a glance might discover its defectiveness, and again the conditions might be such that ordinary prudence would suggest and require a careful scrutiny. We must not confound what the law requires and what ordinary prudence requires. In determining whether a master has been ordinarily prudent in the keeping of the appliances he has furnished his servants in repair, many circumstances must be considered. Their construction, the materials composing thems their age, the uses to which they are put and the dangers attending their use, with many other varying circumstances must all be taken into the account.” (Italics ours.)

In the above case the fastenings of a handhold pulled out while the handhold was in- the grasp of a brakeman. The handhold-was fastened to the wooden part of the ear by means of screws. After the screws pulled out it was discovered that the wood around the screws had become rotten by reason of its length of use and exposure to the weather. This rotten condition of the wood could not be seen by inspection with the eye before the accident occurred. The appellant in that case contended that the duty to exercise ordinary care required only an examination of the handhold with the eye and that since the defect was one that could not have been discovered by the eye the court should hold, as a matter of law, that the defect was one which could not have been discovered by the exercise of ordinary care. The court refused to sustain the above contention and held that the question was one for the jury, giving as reasons therefor the fact that defendant was charged with knowledge that wood, especially when under .iron and exposed to the elements, would rot and the screws therein would thereby become loosened; that the screws had the appearance of being rusty and the wood the appearance of age and that under such circumstances “ordinary prudence requires a more careful examination than if the handhold was screwed down on an iron or other metal plate or was fastened by means of bolts and iron straps.” [Id. l. c. 527.] In other words in that case the very nature of the appliance when considered with the physics of the attending circumstances, was such as would cause a reasonably prudent man to expect danger or trouble from that source unless it was given more careful attention than simply inspecting the appliance with the eye. But in the present case the situation appears to be materially different. Under the proof in the present case there is no showing or proof from which it could be reasonably inferred that a reasonably prudent man would be led to believe that he might expect trouble or danger from the brake in question and therefore such a condition, as would call for a minute or close scrutiny of the brake. The defect existed in an iron bar which was between an inch and an inch and one-half in diameter. The break occurred within one-sixteenth or one-fourth of an inch of the place where the hub of the. brake wheel extends perpendicularly half an inch from the staff with the radius of the brake wheel extending in each direction from the hub approximately eleven inches. On the car side of this defect the brace and brace socket encircled the staff at a distance of one-eighth or three-eighths of an inch from the socket of the brake wheel so that even if this defect had been visible upon the surface of the staff prior to the accident (a matter concerning which the evidence is entirely silent), yet it is difficult to conceive how the defect could have been seen, located as it was down in the crevice formed by the brace socket and the hub of the brake wheel, except that the brake wheel be removed and a very careful scrutiny had of the end of the staff.

Under the circumstances can it be said that ordinary care would require the removal of the brake wheel and a detailed inspection of the staff at the place where the defect was afterwards found to exist? After careful consideration of the matter, we have come to the conclusion that any inspection which would have revealed the defect in question would have been one measured by the rule of extraordinary care or the highest degree of care as contradistinguished from ordinary care. The defendant was not required to exercise the highest degree of care and the law does not require the master to become an insurer of the safety of the servant.

In discussing a very analogous situation, the Supreme Court of Alabama, in the case of Campbell v. Railroad, 97 Ala. 147, l. c. 153, said:

“If one brake should be taken apart and examined, all should; and if all, then every other machine or appliance connected with the train and composed of adjustable parts. To do this would cripple and embarrass the operation of the road beyond any requirement of the law. We are of opinion that such an inspection is an extraordinary duty, called into being only by some exigency which would suggest to the mind of a reasonably prudent person a necessity for its performance. ’ ’

There is no showing made that defects of this kind are of frequent occurrence and that therefore an existing likelihood of expected danger from that source would cause a reasonably .prudent man to examine carefully for the expected or anticipated danger. In fact all the evidence on this point was introduced by defendant and to the effect that they are unusual and in fact very rare, and that when the brake staff does become cracked or broken it is caused by its being’ struck by some object, which either causes the staff to break entirely off or leaves the staff in a bent condition, sufficient to give the car inspector a warning that the matter requires a more critical examination.

We do not say that the above evidence offered by defendant must be taken as true but it is mentioned to call attention to the fact that plaintiff’s evidence wholly fails to establish the opposite and fails to supply substantial testimony from which the opposite could be reasonably inferred and therefore fails to show a situation which would call for such an inspection as would have revealed the defect iu the present case. The burden was upon the plaintiff to prove the issues upon which he seeks a recovery. This duty to furnish proof cannot be aided by conjecture but the fact must appear from substantial evidence or from a reasonable inference arising therefrom.

Plaintiff contends that the inspection sheet furnished by the defendant to the Chicago, St., Paul & Milwaukee Railroad Company shows that the car was defective and that the defects were such as to put the inspector upon notice that the brake required a close examination. But reference to the defects mentioned in the inspection sheet discloses that the defects therein mentioned were upon parts of the car wholly disconnected and apart from the brake staff and were not such as to cause special attention to be directed to the brake.

Plaintiff introduced, as an expert, a witness who testified concerning the manner or method in general use by the various railroads of the country in inspecting brakes of this character. This witness testified that the method of inspection in general use was as follows: “They get up to test them, get up on the cross-beam timber that goes across the end of the car, and twist them up to see that the chains, ratchet wheel, dog's and everything is in working order. ’ ’ But it is very apparent from the present record that such an inspection or test of the brake in question would not have disclosed its defective condition. This is precisely what the plaintiff did while riding the car down the yard to its destination. He testified that while riding the car down the yards he tested the brake to see if it was in working order by turning the brake until he heard the brake shoes catch on the wheels and that “ it' sounded all right. ’ ’ The staff did not break until later when he applied the greater force necessary in setting the brake.

After due and- careful consideration, commensurate with the importance of the case, we are unable to reach any other conclusion than that the facts of the situation, as developed by the present record, fail to show a situation from which the jury should be entitled to find or infer that the defect was not discovered because of the failure upon the part of defendant to exercise ordinary care, or in other words, the present record fails to show a situation from which it could be found or inferred that the defect in the brake would have been discovered had ordinary care under the circumstances been exercised.

The judgment is reversed and the cause remanded.

Roy, G., concurs.

PER CURIAM. — The foregoing opinion of Williams, C., is adopted as the opinion of the court.

Walker, P. J., and Brown, J., concur. Faris, J., concurs in reversal but dissents as to remanding.