author: PARIS, J.

text:
    TIMOTHY P. FITZMAURICE, Appellant, v. JOHN TURNEY.
    Division Two,
    March 24, 1914.
    1. PRIVATE ROAD: Failure to Open: No Damage. Where the only inconvenience' shown hy the evidence which resulted to plaintiff from defendant’s failure to open to its full width, while an appeal was pending, a private road ordered by the court to be opened, was a delay of two or three hours at one time in getting through the road or lane with a hay rake, the maxim de minimis lex non• curat applies in a consideration of plaintiff’s suit for damages.
    2. -: -: Penalty: Limitations; So much of the penalty allowed by the statute for failure to open up a private road condemned for use of plaintiff as accrued more than three years next before plaintiff files his petition is barred by Sec. 1890, R. S. 1909.
    3. —--: Judgment to Open: Supersedeas: Suit for Penalty: Appeal 'Pending. The taking of an appeal from the order of the county court directing a private road to be opened, and the giving of a supersedeas bond, so far prevents the judgment rendered by the county court from becoming a final one that no action to recover the statutory penalty for failure to open the road will lie until final judgment has been rendered by the appellate court. And that is true notwithstanding Sec. 10440, R. S. 1909, provides that no appeal from the county court shall, “prior to the determination thereof in the circuit court, operate as a supersedeas of the proceedings in the county court,” since appeals in all matters affecting private roads are governed by section 3056, and not by section 10440, and hence the penalty prescribed by section 10454 is not recoverable while said appeal is pending, an appeal bond having been given and approved.
    4. -: -: No Time Fixed: No Penalty Recoverable. After a judgment of the circuit court ordering the opening of a private road has been affirmed by the Supreme Court and its mandate sent down to the circuit court, said court should fix a time within which said road is to be opened; and until said time is fixed by an order of court, the successful plaintiff cannot recover from the derelict landowner the penalty prescribed by Sec. 10454, R. S. 1909.
    -Appeal from Holt Circuit Court. — Hon. William C. Ellison} Judge.

      Affirmed.

      W. H. Haynes and Harry M. Dungan for appellant.
    The petitioner was entitled to the nse of the whole width of twenty feet, as established by the court, and for which he paid damages. If the landowner had the right to reduce the width to twelve feet, and in some places to eight feet, as the evidence shows, then he had a right to reduce it to a less width. The judgment of the court, establishing the road, fixed the width at twenty feet and nothing less in surrendering possession by the landowner for the road will answer. He is subject to the penalty, fixed by the statute, unless he surrenders the full width. The evidence in the case amply establishes the fact that, from the day fixed by the county court, to wit, May 1, 1905, for the opening of the road, until the trial of this cause in the circuit, to-wit, April 29, 1910, a period of five years, the respondent disobeyed the solemn judgments of three courts.

      H. T. AlJcire for respondent.
    Plaintiff’s alleged cause of action is for the recovery of the statutory penalty for failure to comply with the order of the county court to open the road as established by the judgment of said court. The statute upon which such action is based is penal in its nature. And “This being true the statute must-be strictly construed and applied only to such cases as come clearly within its provisions and manifest spirit and intent. The rule seems to be that in an action under such statutes, it is especially necessary that the petition should state facts which will authorize an infliction of the penalty, and if the petition does not state the facts to bring the party liable under the statute by its very terms, the defects therein cannot be cured by a verdict.” Bradshaw v. Teh Co., 150 Mo. App. 715. (2) The appeal from the judgment of the county court removed the cause to the circuit court for trial anew “in the same manner as if such cause had originated in such appellate court, without regarding any error, defect, or informality in the proceedings of the county court,” and operated as a supersedeas of the judgment of the county court. Secs. 3956, 4091, R. S. 1909; Colville v. Judy, 73 Mo, 651; State ex rel. v. Wiethaupt, 238 Mo. 155; State ex rel. v. McElhinney, 246 Mo. 44. (3) The uncontradicted testimony showed that within sixty days after the date of the judgment of the circuit court, respondent did open a roadway substantially as established by the judgment of the said circuit 'court. This road was thereafter continuously used by the appellant and by the public as a public road and appellant was thereby estopped from recovering the penalties sued for,
   PARIS, J.

— Plaintiff sued in the Holt Circuit Court for accrued penalties under section 9466, Revised Statutes 1899, now section 10454. He bases his action on a judgment of the county court against defendant for a private road by-which he avers it became defendant’s duty to open this road for plaintiff’s travel and use on May 1, 1905. This plaintiff says defendant failed and refused to do from May 1, 1905, till plaintiff filed this action, 1542 days thereafter — . the date of filing the action does not otherwise appear —for which default plaintiff prays judgment for the penalty affixed by statute in the total sum of $7710. The court nisi at the dose of plaintiff’s evidence, sustained a demurrer thereto, and plaintiff appealed.

As to the antecedent facts, the petition avers and the proof shows that on March 15, 1905, plaintiff procured a judgment in the county court of Holt county condemning as a private way of necessity for plaintiff over defendant’s land, a strip off the farm of defendant twenty feet wide and 506 feet long. For his damages a jury in the county court assessed against plaintiff and in favor of defendant here, the sum of $350 and costs. The county court entered a proper judgment of condemnation. The plaintiff paid to the county treasurer the sum so found by the jury as damages for defendant, and the county court ordered defendant to open this strip as a private road for plaintiff’s use on May 1, 1905. Defendant appealed to the ■circuit court, filing a timely appeal bond in the sum ■of $200. On a trial in the circuit court the findings and judgment of the county court were in all things affirmed, defendant’s damages were again fixed at $350. ■the strip of land condemned for plaintiff as a private way, and defendant given till thirty days after May ■3, 1905, within which to open the strip to plaintiff’s use. Defendant thereupon appealed to this court, where the judgment of condemnation was affirmed and all mooted matters down to the judgment finally settled. [Fitzmaurice v. Turney, 214 Mo. 610.] This ■case was decided here on the 25th day of November, 1908, and the mandate of this court was ordered by the said Holt Circuit Court to be “spread on the record” thereof on January 16, 1909.

It appears from the evidence, offered that along the route over which the said private road was sought, there had been for some forty-five years, as one witness says, a lane, called a “cattle-lane,” which prior to the condemnation suit was closed by gates which were usually kept locked. This lane varied in width from about eleven feet at the narrowest place therein to about fifteen and a half feet at the widest point thereof, and except for a distance of 143 feet where the condemned strip began veering away from the lane on a tangent, the old'lane was within the said strip; only some fifty-seven feet of the land being wholly off the strip.

The circuit court when it tried the original condemnation suit, fixed June 2, 1905, instead of May 1. 1905, as fixed by the county court, as the date at which the strip should be opened. Plaintiff did not appeal “Something near sixty days, may be” — to use the words of plaintiff here — after the condemnation suit was concluded below, which would put it about July 1, 1905, the gates to the old lane were opened, and thereafter for the full remaining period of the 154.2 days sued for and more, plaintiff, as well as the neighbors and the public so desiring, used this lane as a road freely, without let or hindrance, except such inconvenience as arose from its narrowness. Till this suit was brought no objection, formal or informal, seems ever to have been urged or voiced by plaintiff against the road’s narrowness. No execution was sued out, or any “precept” asked for or issued by the county court to further open this lane as and for the road condemned, But one instance of inconvenience, or lack of sufficient width of the road for plaintiff’s uses, is shown by the record. This consisted of difficulty in getting a hay rake through the lane; plaintiff averring that he once spent two and a half hours in getting a twelve-foot hay rake through this lane. In all other ways and in all other respects, so far as the record discloses, the road was open sufficiently for the uses and needs of plaintiff. In damages as compensation for this inconvenience and for accrued penalty plaintiff sues for $7710.

Defendant put in no evidence, since the case fell down short of this point. In his answer he discloses a very comprehensive defense: (a) a general denial of all things not thereafter expressly admitted; (b) that the several appeals, appeal bonds having been given, acted as supersedeases; (e) that all penalties accruing three years next before action brought are barred by the Statute of Limitations; (d) that the road was almost wide enough, and (e) that plaintiff by his use of the road for many years without objection, waived its lack of full width.

Upon the court’s sustaining the demurrer of defendant to the evidence of plaintiff, the latter appealed, assigning as error generally the act of the trial court in sustaining the said demurrer. Appellant ingenuously admits in his brief that he does not know what, induced the court to sustain this demurrer, and in effect we are asked to ascertain for him, if we can. To this effort we devote the subjoined opinion.

I. Before reaching the merits and the points mooted, we deem it our duty to say that this action, as did its predecessor here between the same parties, bears every earmark of a spite suit. There was little if any merit in the preceding case (Fitzmaurice v. Turney, 214 Mo. 610), and but little in this, though the courts have been vexed with one phase or the other of it for nine years almost. The only actual delay or inconvenience, upon which real damages to plaintiff could have accrued, so far as the record shows, was that accruing to him from the fact that on one occasion it took bim two and a half hours to get a rake through this lane. We do not know how long it would have taken bim to have gotten this rake through if the road had been twenty feet wide, nor do we know how much his time was worth per hour; so, we cannot tell even now exactly the sum of plaintiff’s actual loss on account of defendant’s default. We do know, however, that seven thousand seven hundred and ten dollars is entirely too much to ask, such sum being something over eleven hundred dollars per front foot of land detained from opening to plaintiff’s use. No court anywhere could be found to enforce so unconscionable a demand, and especially as a sequel to actions so useless and uncalled for. We think that if other reasons bottomed upon rules of law now fairly well settled had failed us, we might well have invoked the maxim de minimis lex non curat, applied it to the inconvenience suffered, and so disposed of the case.

II. It is clear that the contention of respondent here, who was defendant below, that so much of the penalty here- sued for as accrued more than three years next before the day on which plaintiff filed his petition, is barred by section 1890, Revised Statutes 1909. This needs no argument, since this is an action for a penalty, and all such are barred in three years. [Section 1890, supra; State ex rel. v. Arkansas Lumber Co., not yet officially reported.] This view, however, does not dispose of all of the case, but only two years of it.

III. It is strenuously contended by learned counself for plaintiff that section 10440 applies to the appeal here, and that since the above section provides that no appeal from the county court shall “prior to the determination thereof in the circuit court, operate as a supersedeas of the proceedings of the county court,” action against defendant lies for this penalty, the several appeals taken in the former case to the circuit court and to this court notwithstanding. This is the controlling question in this case, and with a fact or two, hereafter to be considered in connection with it, disposes of the whole case.

As far back as 1881 it was held by this court that an appeal is given in a proceeding in the county court to condemn a private way of necessity, not by virtue of the statute providing for appeals in the matter of damages and for opening and vacating public roads, but by virtue of the general statute conferring the right of appeal; or to be exact, by virtue of the statute conferring appellate jurisdiction on circuit courts “from the judgments and orders of the county courts, in all cases not expressly prohibited by law.” [Colville v. Judy, 73 Mo. 651.] This identical question was up for ruling in the late ease of State ex rel. v. Wiethaupt, 238 Mo. l. c. 163. After a very learned and exhaustive examination into the history of the law-relating to public roads, and comparing it with that providing for the condemnation of private ways of' necessity, it was ruled that appeals in all matters affecting private roads are governed by section 3956, as contended here by respondent, and not under section 10440, as appellant urges. That case on this point is decisive of this case, for having carefully examined these two statutes and the history of them and the views of the learned judge who wrote the opinion of , the court in State ex rel. v. Wiethaupt, we see no reason to disagree with the conclusion which was there reached. [State ex rel. v. McElhinney, 246 Mo. 44.] We refer the bar to the case of State ex rel. v. Wiethaupt, supra, and so need not again burden the books with a discussion of the question. If then the appeal here is governed by section 3956, and not by section 10440, it is evident that the bottom falls out of plaintiff’s case. For while it is true that section 10454, upon which this action is bottomed, provides thus:

“If any owner of real estate, against whom final judgment has been given as designated in the preceding section, shall neglect or refuse to open said road within the time specified in the said judgment, he shall forfeit and pay to the person in whose favor judgment was given five dollars per day as a penalty for each day that it remains unopened, to be recovered in an action of debt before any court having jurisdiction; and the county court shall have power, and it is hereby authorized upon the application of the person interested, to issue its precept, directed to the officer of its court, to open said road immediately, and the costs of the proceeding shall be paid by the person so refusing to open said road: Provided, the damage shall have been previously paid to the county treasurer, as designated in this article;” nevertheless the taking of an appeal and the giving of a supersedeas bond, so far prevents the judgment rendered by the county ■court from, becoming a final one within the purview of the above section, that no action of this sort will lie till final judgment has been rendered by the appellate court.

This view disposes of the case, except it may be ashed, whether even under this view there be not left a period of time under the facts here for which the right is left in plaintiff to recover penalty from a period thirty days after January 16, 1909, till the road was finally opened to the full condemned width in June or September, 1909? This question is bottomed on the suggestion that the affirmance of the judgment in Fitzmaurice v. Turney, 214 Mo. 610, had the effect to reinstate in full virtue and force the judgment of the circuit court of Holt county, which gave to defendant thirty days after May 3, 1905, within which to open this road.

Pretermitting as not necessary to a decision here on this point, the question of waiver urged against plaintiff, on -account of his use without objection for many years of the road lacking full width as it did. and also the further question as to whether plaintiff may in any case lie quietly by for many years and let the penalty he avers to be due him grow to monumental dimensions before he demands it in fact or by bringing suit; we are yet constrained to hold that recovery under the facts here cannot be had for this period even, or for any time whatever, regardless of the matter of waiver, and regardless of the rule which forbids acts of neglect or dereliction of duty, by which the damages accruing to a person are augmented. This for the reason that when the judgment below in the original action between the parties here was affirmed by this court and went back to Holt county, the only order made there was that it should be “spread upon the record.” No time was fixed within which defendant should thereafter open the condemned road to the full width of twenty feet. The provisions of section 10453 contemplate that the owner of land condemned for a private road may be by the court given an extra period of time to construct fences and “to gather growing crops,” if the facts shall make necessary the granting of such additional time, not exceeding six months for the first and all necessary time for the latter of these purposes. The appeal did not destroy the right of one standing in the shoes of defendant to have the circuit court consider the existing conditions and write into its judgment an order fixing the time within which' such defendant could build his fences and remove and gather his crop, if perchance he had crops upon the ground at the time the case got back to PLolt county. In the absence of a time fixed and given by the judgment of the circuit court of Holt county of January 16, 1909’, defendant was not compelled to open this road at any definite date, so far as the penalty here is concerned. The order made by the Holt circuit court after the former case got back there, was otherwise, to say the very least, exceedingly informal. [McQuillin’s Missouri Practice, sec. 2295.] There should have been included in it an order fixing, or renewing, the time to defendant to deliver possession, since the old or former order as to such time had lapsed by reason of the appeal and the delay thereunto incident. As it happened here, the time formerly given might have been amply sufficient. But we are compelled to make a general rule which will apply to all cases. The next case of this sort may be affirmed in a case where much fencing is required and when there is a crop upon the land in dispute which will require six months or more within which to mature. This is a penal action of a sort so severe as to be almost confiscatory, and in the absence of a renewal order to deliver possession in complicance with the provisions of section 10453, plaintiff cannot recover even for the time elapsed after January 16, 1909. We have already disposed of other days for which the penalty is sought. These views lead us to the conclusion that the learned judge nisi was correct in his ruling, and that the judgment should be affirmed. It is so ordered.

Walker, P. J., and Brown, J., concur.


source: Caselaw Access Project

author: WILLIAMS, C. PER CURIAM.

license: Public Domain

text:
    JENNIE TAYLOR, Administratrix of the Estate of ALBERT P. TAYLOR, v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division Two,
    March 24, 1914.
    1. HYPOTHETICAL QUESTION: Results of Injuries: Province-of Jury. A hypothetical question asked of a doctor, to wit, whether the injuries detailed as arising from the accident, might, could or would have resulted in the condition testified to by the doctor, was not erroneous as invading the province-of the jury.
    2. -: -: -: Later Injury. Where the evidence-showed that the plaintiff was suffering from paralysis after1 the injury in question and long before his eye was blackened by a blow, and that the paralytic condition grew no worse-after the blow, a question asked of a doctor was not improper which related hypothetically the details of- a fist fight occurring1 after the alleged negligent injury by defendant and required the doctor to say whether plaintiff’s subsequent condition “might, could or would have been the result of that blow, or1 . it might, could or would have been the result of the injuries" suffered through defendant’s negligence. As the question is-worded it is perhaps an attempt to have the witness say which was the more likely cause, and in that regard approaches the-danger zone, but under the evidence, and considering the answer made, there was no error.
    3. NEGLIGENCE: Instructions: Excessive Speed of Car: Humanity Rule. Instructions on excessive speed and on the-humanitarian doctrine are held not to be inconsistent in this action for damages for personal injuries suffered in a collision, with defendant’s street car.
    4. -: Evidence: Humanity Rule. Evidence held sufficient1 to take to the jury the question whether defendant’s servants, after they had discovered, or should have discovered, plaintiff’s-peril, could have stopped their car, with safety to the passengers, in time to avoid collision.
    5. --: -: Excessive Speed of Car. Evidence held sufcient to take to the jury the question whether defendant’s street car, which injured the plaintiff, was negligently operated at a rapid rate of speed.
    6. -: Plaintiff’s Own Evidence: Humanity Rule. Where plaintiff testified: that when he saw defendant’s street car the front feet of the horses drawing the wagon in which he rode were between the rails and the car was sixty or seventy yards distant; that he thought there was plenty of time to cross and therefore did not try to jump (and in this he is corroborated both by the driver of the wagon and by another man riding therein); that at the time he thought the wagon was traveling about six miles an hour and had about seventeen feet to go in order to clear the track; that he thought the car was running from twenty-five to thirty miles an hour and that it had from 180 to 210 feet to go; that he then turned away and when his attention was called by a shout the car was almost upon the wagon, and before he could change position the collision occurred, and where there was evidence tending to show that the motorman was negligent, it cannot be said that plaintiff’s own testimony shows that his own negligence was the proximate cause of the accident so as to defeat a recovery under the humanity rule. To bar recovery in such cases it must appear that the plaintiff negligently entered the danger zone too late for defendant to save him by exercising the care required under the situation.
    7. -: -: Contributory Negligence. Nor can it be said that plaintiff, who was not the driver of the team and had no control over it, was guilty of contributory negligence which would as a matter of law preclude a recovery on the ground of the car’s excessive speed.
    8. -: Contributory: Not Pleaded, and Not Proved by Plaintiff's Evidence: Argument of Counsel. In the absence of a plea of contributory negligence, and in the absence of such evidence upon the part of plaintiff as would justify the court in finding him guilty of contributory negligence as a matter of law, the defendant cannot avail itself of such defense even though plaintiff’s evidence tends to prove it. Nor in such case can defendant’s counsel argue contributory negligence to the jury.
    9. APPEAL: Motion for New Trial: Remarks of Counsel. In order to be matters for appellate review, errors asserted to have been made by opposing counsel in his remarks to the jury must be preserved in appellant’s motion for a new trial.

      10. REVIVOR: Judgment Assigned Before Litigant’s' Death. The administratrix is the proper party to he substituted for a litigant who has died pending an appeal from a judgment in his favor, even though the litigant had assigned his judgment.-
    Appeal from Jackson Circuit Court. — Eon. W. 0. Thomas, Judge.
    Affirmed.

      John E. Lucas, Piatt & Lea and T. R. Marks for appellant.
    (1) The petition charges last chance- and excessive speed, repugnant causes of action, (a) The evidence fails to sustain either. Therefore, (b) objections to the evidence and (c) demurrers to the evidence should have been sustained, (a) Gabriel v. Railroad, 130 Mo. App. 651; Krehmeyer v. Transit Co.. 220 Mo. 639; Grout v. Electric Ry., 125 Mo. App. 552; (b) Rinard v. Railroad, 164 Mo. 284; (c) Kinlen v. Railroad, 216 Mo. 158; Moore v. Iindell Ry. Co., 176 Mo. 532; Wallack v. Transit Co., 123 Mo. App-. 167; Guiney v. Electric Co., 167 Mo. 595; Moekowik v. Railroad, 196 Mo. 570; Gettys v. Transit Co., 103 Mo. App. 564; Hudson v. Railroad, 101 Mo. 13; Corcoran v. Railroad. 105 Mo. 399; Weller v. Railroad, 120 Mo. 635; Holland v. Railroad, 210 Mo. 350; Schmidt v. Railroad 191 Mo. 215; Kenney v. Railroad, 105 Mo. 284; Lann v. Railroad, 216 Mo. 563; Holmes v. Railroad, 190 Mo. 105; Markowitz v. Railroad, 186 Mo. 359; Hogan v. Railroad, 150 Mo. 54; Reno v. Railroad, 180 Mo. 486; Eppstein v. Railroad, 197 Mo. 733; Yan Bach v, Railroad, 171 Mo. 346; Boyd v. Railroad, 105 Mo. 381; Guyer v. Railroad., 174 Mo. 351; Roenfeldt v. Railroad, 180 Mo. 565; Porter v. Railroad, 199 Mo. 99. (2) The medical experts, over defendant’s objection, were permitted to invade the province of the jury in .answering improper hypothetical questions. This is error. Glasgow v. Railroad, 191 Mo. 347; Smart v. Kansas City, 208 Mo. 203; Sntter v. Kansas City, 138 Mo. App. 105; Baehr v. Casualty Co., 133 Mo. App. 541; Thomas v. Railroad, 125 Mo. App. 138. (3) Plaintiff’s instruction one authorizes recovery under the humanitarian rule; No. 3 on account of excessive speed. Both are argumentative, illegal and inconsistent. Gabriel v. St. Ry., 130 Mo. App. 651; Krehmeyer v. Transit Co., 220 Mo. 639; Grout v. Electric Co., 125 Mo. App. 552; McKenna v. Railroad, 54 Mo. App. 161; White v. Railroad, 202 Mo. 555; Cytron v. Transit Co., 205 Mo. 716; Bunyan v. Railroad. 127 Mo. 18; Williams v. Railroad, 114 Mo. App. 8, (4) Defendant’s refused instructions Nos. 4, 5, 7, 9. 10, 11, 12, 13 and 15 are proper under the evidence of plaintiff, the petition and the instructions given for plaintiff. Moore v. Lindell Ry. Co., 176 Mo. 532; Deane v. Transit Co., 192 Mo. 584; Mockowik v. Railroad. 196 Mo. 570; Wallack v. Transit Co., 123 Mo. App., 167; Tillman v. Transit Co., 102 Mo. App. 553; Allen v. Transit Co., 183 Mo. 424; Pirn v. Transit Co., 108 Mo. App. 716; Ramp v. Railroad, 133 Mo. App. 703; Hebeler v. Railroad, 132 Mo. App. 551; Engelking v. Railroad, 187 Mo. 164; Collins v. Fillingham, 129 Mo, App. 344; Charleton v. Railroad, 2001 Mo. 439; Van Dyke v. Railroad, 130 S. W. 8; Bunyan v. Ry. Co., 127 Mo. 18; Evans v. Railroad, 178 Mo. 517. (5) Plaintiff testified he saw the car approaching, knew the speed at which it was coming, knew he could avoid it in safety and made no effort so to do. The court erroneously refused to permit defendant to argue this evidence and made erroneous comments in the presence of the jury as to the legal effect of the same. Moore v. Lindell Ry. Co., 176 Mo. 532; Rose v. Kansas City, 125 Mo. App. 231. (6) Counsel for plaintiff, over defendant’s objection, went outside of the record and was guilty of misconduct in final argument of the case. Stetzler v. Railroad, 210 Mo. 704; Rose v. Kansas City, 125 Mo. App. 231; Neff v. Cameron, 213 Mo. 369; Haynes v. Trenton, 108 Mo. 133; Tuck v. Traction Co., 140 Mo. App. 335; Eppstein v. Railroad. 197 Mo. 738. (7) Every action shall be prosecuted in the name of the real party in interest. R. S. 1909, sec. 1729. Albert P. Taylor did not enlist for the war hut for first engagement only. As appears by the abstract of record in this cause he obtained judgment on the 28th day of October, 1909, against the defendant in the Circuit Court of Jackson County, Missouri, and thereafter on the 2nd day of November, 1909, made written conveyance of said judgment upon the margin of the record thereof, duly attested by the clerk of the court, said conveyance and attestation being in words and figures as follows, to-wit: “Kansas City, Missouri, Nov. 2, 1909. For value received, I hereby sell, assign and transfer this judgment to Charles E. Small. (Signed) Albert P. Taylor. Attest: Oscar Hochland, Clerk, By D. M. McClanahan, D. C.” This assignment is in accordance with Sec. 2156, R. S. 1909, and as by said statute provided vests the legal title to such judgment and cause of action absolutely and wholly in Charles E. Small. Bank v. Bulkley, 68 Mo. App. 332. An assignment and transfer of the judgment in the foregoing manner transfers the cause of action to the assignee and vests in him the right to maintain all actions' and proceedings therein and thereon in his own name. Bick v. Robbins, 131 Mo. App. 670; Secs. 2156, 2159, R. S. 1909.
    Gage, Ladd & Small for respondent.
    (1) Plaintiff’s petition, which charges the negligence of defendant to consist of a negligently rapid rate of speed, of negligently failing to, stop the car and of negligently permitting same to strike the wagon in which the plaintiff was riding, does not contain allegations that are contradictory or inconsistent. White v. Railroad, 202 Mo. 439. (2) Instructions 1 and 3 given for plaintiff follow the petition and axe not inconsistent with each other' and were properly given. White v. Railroad, 202 Mo. 439; Shipley v. Railroad, 144 Mo. App. 7. (3) Defendant’s contention that plaintiff’s instruction No. 1 was erroneous, because it said nothing about regard for the safety of passengers and operatives in stopping the car, is without merit, because “ordinary care” necessarily includes such care as would be consistent with the safety of the passengers and operatives, and, furthermore, plaintiff’s expert Hill’s testimony was based on due regard to the safety of the passengers and operatives and the jury could not have been misled. Bunyan v. Railroad, 127 Mo. 12. (4) There was abundant evidence of defendant’s negligence and that it caused the injury complained of. White v. Railroad, 202 Mo. 439; Shipley v. Railroad, 144 Mo. App. 7. (5) On the undisputed evidence of the defendant, it was guilty of negligence as a matter of law either in running too fast or stopping too slow, which was the proximate cause of plaintiff’s injury. Shipley v. Railroad, 144 Mo. App. 7. (6) The negligence, if any, of Jaggard, the owner of the team, and of Ollie King, the driver, cannot be imputed to the plaintiff. Agnew v. Railroad, 125 Mo. App. 587; Zaloutchin v. Railroad, 127 Mo. App. 577. (7) Plaintiff himself was not guilty of contributory negligence as a matter of law. (8) Defendant having failed to stand on its demurrer to plaintiff’s testimony, and having introduced evidence on its own behalf, the whole testimony, that of defendant as well as plaintiff, must be considered in determining whether plaintiff was guilty of contributory negligence as a matter of law. (9) The answer containing simply a general denial and no plea of contributory negligence, and the plaintiff on all the testimony not being guilty, as a matter of law, of contributory negligence, that issue could not be submitted to the jury and defendant’s instructions referring to plaintiff’s contributory negligence were properly refused. Collins v. Fillingham, 129 Mo. App. 340; Zaloiitchin v. Railroad, 127 Mo. App. 577; Schullze v. Railroad, 32 Mo. App. 440; Brown v. Railroad, 31 Mo. App. 675; Thorpe v. Railroad, 89 Mo. 650; Petty v. Railroad, 88 Mo. 306; Craine v. Railroad, 87 Mo. 588; Taylor v. Railroad, 26 Mo. App. 336; St. Clair v. Railroad, 29 Mo. App. 76. (10) The driver’s negligence, if any, not being imputable to the plaintiff and there being no contributory negligence in the case, the court had a right to so instruct the jury, as it did do at the end of plaintiff’s first instruction. (11) There being no question .of contributory negligence in the case, it is not necessary to invoke the so-called “humanitarian doctrine” to avoid the consequences of contributory negligence. The only question in the case is, was the defendant guilty of negligence causing or directly contributing to the injury? (12) But even if the plaintiff’s case depended upon the humanitarian doctrine, it is settled in this court that such doctrine is not based upon and does not necessarily admit negligence on the part of the plaintiff, but is also applicable to cases where plaintiff is free from negligence, or what is the same thing, to cases where the plaintiff is not guilty of negligence as a matter of law, and there is no plea of contributory negligence. Shipley v. Railroad, 144 Mo. App. 7. (13) The objections to the answer of Dr. Stemen that he thought plaintiff’s injuries were permanent will not avail defendant anything. 1st. Because there was no objection to the question and the answer was repeated at the request of the learned counsel for defendant. 2d. Because the answer related to a scientific fact to which experts are competent to testify. Koenig v. Railroad, 173 Mo. 698. (14) There is. nothing in defendant’s objection that the hypothetical question to Dr. Chambliss contained the word would as well as might and could cause, etc. The Supreme Court has expressly so ruled. Taylor v. Railroad, 185 Mo. 239. There is no other cause to which plaintiff’s paralysis could be attributed, and therefore, if there had been any error in the question complained of it would have been harmless. (15) The learned counsel of defendant is in error when he complains of the argument of plaintiff’s attorney. There was nothing wrong with said argument. (16) The court properly rebuked the defendant’s learned counsel during his argument. He tried to get the jury to give instructions to itself which the court had refused to give them, and the court finally stopped him as it had a right to do. (17) There is nothing in appellant’s showing in opposition to administratrix’s motion which should prevent the substitution as prayed for by her. If the judgment were to be affirmed, execution upon it, if any, would, by the express provisions of the statute, necessarily issue in her name, with an endorsement by the clerk thereon that it was to the use of Mr. Small, the assignee of the judgment. R. S. 1909, secs. 2136, 2158; Welch v. St. Louis, 12 Mo. App. 516. The sole plaintiff, appellee, having died, his administratrix is the proper person to be made party in his stead. The appellant says in its answer that if this judgment were reversed and the cause remanded it would necessarily proceed in the name of Small, the assignee. The administratrix disputes this because there never has been any assignment or transfer of the cause of action to Mr. Small; the assignment was simply of the judgment, and was only intended as security, as hereinbefore shown, and this cause of action being one which survives to the administratrix under the provisions of section 5138, she has, notwithstanding the assignment, a very large interest in the judgment. But even if the effect of the assignment of the judgment were to transfer the cause of action, the suit need not necessarily proceed, after such assignment, in the name of the assignee. It may still be prosecuted in the name of the assignor or his personal representative. R. S. 1909, sec. 1924. Under this provision the suit may, if the assignee wishes, and the assignor does not object, proceed in the name of the assignor, and, as this court has said: “This is, however, a matter between the assignor and assignee ... it is no concern of the defendant.” Renfro v. Prior, 25 Mo. App. 402-. And the Supreme Court, in a case where there had been an assignment of the cause of action, and which afterwards proceeded in the name of the original plaintiff, said: “If the plaintiff saw fit to waive his right to demand an indemnifying bond for his own protection, and allow the suit to he proceeded with in his name, it is not a matter of which defendant can complain.” Asher v. Railroad, 89 Mo. 116; Bank v. Wickham, 23 Mo. App. 666; State ex rel. v. Pitman, 131 Mo. App. 299; Smith v. Phelps, 74 Mo. 598; State ex rel. v. Philips, 97 Mo. 331. The same rule prevails in other jurisdictions: Moss v. Shear, 30 Cal. 468; Iiestres v. Brennan, 37 Cal. 385; Peters v. Gallagher, 37 Mich. 406; Moon v. Harder, 38 Mich. 566; Jordan v. Ping, 32 Iowa, 64; Snyder v. Phillips, 66 Iowa, 481; Kreuger v. Sylvester, 100 Iowa, 647; Investment Co. v. Hughes, 89 Fed. 182; Lowell v. Parkinson, 4 Utah, 34; Johnston v. King, 88 Wis. 211; Sinclair v. Stanley, 69 Tex. 718. Therefore, both the administratrix of the assignor and the assignee having expressed their desire that the case proceed in the name of the administratrix, the appellant is not in a position to urge that the case proceeded in the name of the assignee, because it does not lie in the appellant’s mouth to say anything about it.
   WILLIAMS, C.

— This is a suit to recover damages for personal injuries received by one Albert P. Taylor in a collision with one of defendant’s cars while said Taylor was crossing Nineteenth street on Cherry street in Kansas City, Missouri, about eight p. m., September 20, 1907. Plaintiff recovered judgment in the trial court in the sum of $6250, and the defendant perfected an appeal to the Kansas City Court of Appeals. After the appeal was taken, plaintiff died. The case was revived in the name of Jennie Taylor, as administratrix of his estate. • In an opinion written by the Kansas City Court of Appeals the judgment was affirmed, but one of the judges of said Court of Appeals deeming its decision contrary to previous decisions of the Supreme Court, the cause was duly certified and transferred here.

That portion of the plaintiff’s petition charging negligence is as follows:

“Defendant, through the negligence and unskilfulness of its officers, agents, servants and employees in running, conducting and managing a car of the defendant, which was being moved by the defendant at an unusual and rapid rate of speed along said track while in charge of its said officers, agents, servants and employees, negligently and carelessly ran the said car into, upon and against the wagon in which plaintiff was riding, as aforesaid, with great force and violence.
‘ ‘ That the officer's, agents, servants, and employees of the defendant in charge of said car, and who were then engaged in running, conducting and managing said car, saw, or by the exercise of ordinary care on their part might have seen, said plaintiff and become aware of the danger to which he was exposed while crossing said Nineteenth street, and while said wagon was on said track, crossing the same, in ample time to have stopped said car before it struck said wagon, as aforesaid, and thus have avoided injuring plaintiff, but that said officers, agents, servants, and employees of said defendant so in charge of said car, negligently failed to stop said car and negligently caused and permitted the same to strike said wagon as aforesaid, whereby plaintiff was violently knocked down and against said wagon and gig and ont of said wagon to the street,” etc.

The answer was a general denial.

The evidence tended to establish the following facts: Plaintiff, thirty-three years of age, in good health, at about 8 p. m., September 20, 1907, together with four companions came out of a restaurant on the southeast corner of Nineteenth and Cherry streets in Kansas City, Missouri, and got into a farm wagon which had been left standing on Cherry street a few feet south of Nineteenth street,, and started to drive north on the east side of Cherry street across said Nineteenth street, intending to go to a certain freight depot where they were expecting to receive a shipment of race horses. The wagon was an ordinary farm wagon with its bed and sideboards, twenty-six inches deep. On the front part of the wagon bed was a spring seat, upon which were seated Ollie King, the driver of the team, and George Wilson. Jim Allen was standing up in the wagon bed, just bach of the spring seat. Back of Allen a driving cart was resting with its axle across the top of the wagon bed and one half of its wheels extended above the wagon bed. Back of the driving cart a man by the name of Jagjard, the owner of the team and wagon, was seated or standing and just back of Jaggard, and near the rear end of the wagon bed, plaintiff was standing.

On the southwest comer of this crossing a two-story building stood flush with the sidewalk, and on the same corner, between the curb and sidewalk, was a gas light. There was also a gas light on the northeast corner of this crossing. Nineteenth street, at this place, was forty-nine and one half feet wide from property line to property line, thirty-four feet wide from curb to curb, and was fourteen feet from the south curb to the south rail of defendant’s track. About one hundred and eighty-eight feet west of the Cherry street crossing an alley crossed Nineteenth street. Nineteenth street at this alley was one foot, three and one-half inches higher than at the Cherry street crossing, but Nineteenth street was practically level for at least a distance of four blocks west of Cherry street. Defendant’s cars on Nineteenth street always ran eastward.

Plaintiff testified that as the wagon started across Nineteenth street he looked first to the east bnt his view was obstructed by the building on the southeast comer of the crossing. He then turned and looked toward the west and saw the car coining from the west which looked to be sixty or seventy-five yards away; that at this time the horses were on the track between the two rails; that it was about seventeen feet to the horses’ heads from where he was standing in the back end of the wagon; that after looking at the car he thought the wagon had plenty of time to get across ahead of it; that the car did not slacken its speed before it hit the wagon; that the car was running twenty-five or thirty miles an hour; that the team was traveling about six miles an hour; that he was standing between the shafts and the two wheels of the cart and did not know whether he had plenty of time to get out of the wagon or not but that he did not think it was necessary to jump out and did not make any effort to get out; that after looking at the car he turned toward Mr. Jaggard and was talking to him and again looked around in the direction of the car and the light of the car was right onto the wagon, and the collision immediately occurred, the car striking the wagon near one of the rear wheels; that just before the car struck the wagon, Mr. Jaggard halloed to the driver, “Look out there” and that the driver hit the horses with the whip causing them to jump in order to clear the track. Plaintiff was knocked unconscious by the collision and did not regain consciousness until some time later in the City Hospital. Plaintiff remained in the City Hospital six days and was then removed to the Bethany Hospital in Kansas City, Kansas, where he remained about twenty days.

Plaintiff’s evidence tended to show that before the accident he was a strong, healthy man; that from the accident he received a cut on the back of the head and over his eye which had to be sewed up by a surgeon. For several days after being taken to the hospital he was unconscious and incoherent in his speech and was suffering from concussion of the brain and partial paralysis of his right arm, right leg and right side. Other injuries which were were unimportant are also mentioned. Evidence also tended to show that plaintiff was permanently injured; that the muscles of his right limb were atrophied and that the power and motion of his right side and right limbs were impaired about one-half. That it was nine months after the injury before plaintiff did any work and from that time on worked about one-half the time doing light work such as driving livery teams, hitching, unhitching and currying horses and worked some in St. Louis driving a team to an asphalt wagon.

The evidence on the part of plaintiff showed that a car of this kind, going fifteen miles an hour, could be stopped within a distance of fifty or sixty feet taking into consideration the safety of the passengers^. Defendant’s evidence in this regard tended to show that it would take one hundred feet in which to stop the car. Two of plaintiff’s witnesses testified that while standing on the southwest comer of Cherry and Nineteenth streets they saw the accident; that they first say the car near the alley west of Cherry street; that it was going “fast” and did not lessen its speed before it hit the wagon. One of these witnesses described the speed of the car as “awful fast.” A city ordinance fixing the maximum speed of street cars for the vicinity of the accident provided that “all cars shall be run at all times and places at a reasonable rate of speed under the particular circumstances, and in no event at a greater rate of speed than fifteen miles an hour.” Some of plaintiff’s witnesses testified that the car ran nearly to the alley east of Cherry street after striking the wagon and before coming to a stop. Defendant’s eyewitnesses testified that the car went about a car’s length beyond the wagon and then stopped. The motorman was knocked unconscious by the collision but did not receive serious injuries. One of the men in the wagon was thrown through the front end of the car by reason of the impact. The driver of the wagon and Mr. Jaggard, owner of the team, testified that they first saw the car when it was near the alley west of Cherry street and that they thought they had time to clear the track before the car reached the crossing, and that the team was traveling 3% miles per hour. Both the driver and Jaggard were knocked unconscious by the collision but both recovered.

Defendant’s evidence tended to show that the car was running at a speed of about fifteen miles an hour, and that the car was geared for eighteen miles per hour as maximum speed. One of defendant’s witnesses testified that he was a passenger and that the car was running at the usual speed when it struck the wagon and that he did not notice any change in the speed of the car just before it struck the wagon. One of defendant’s witnesses (a passenger standing in the front vestibule of the car at the time of the accident) testified that he first noticed the horses when the car was about a car’s length and a half from the team and that about this time the motorman threw on the brakes, turned off the current and dropped down to save himself. Another passenger standing in the front vestibule testified for defendant that he first saw the team when they were about ten feet from the car; that the car was running at common speed and the horses were walking and that the motorman got the brakes on about the time the car hit the wagon.

The motorman testified, for defendant, that he first saw the team going over the track when the car was about sixty feet west of the team, that at that time the car was traveling fifteen miles an hour; that when he saw the team he threw off the power; tried to set the brakes; rang the bell and then the car struck the wagon and the impact rendered him unconscious; that he regained consciousness that night at the City Hospital and was not seriously injured; that just before the accident he was running his ear down the street paying strict attention to business, looking down the track; that the hind legs of the horses were just about to the north rail when he first noticed the team; thát the car was thirty-two feet long and that at the speed at which it was going it could have been, stopped in three car lengths. The evidence tended to show that the motorman was not a skilful motorman, his experience in runnings cars being limited to about two and one-half months work as “extra man.” During this time, he was not on the defendant company’s “regular list” but was on the “extra list,” making extra trips or regular trips when the regular motormen laid off for any purpose. As extra man, however, he worked nearly full time.

One of defendant’s witnesses testified that at the time of the accident he was looking out of a second-story window above the restaurant on the southeast corner of Nineteenth and Cherry streets and saw the car when it was about thirty or forty feet from where the wagon attempted to cross, and that the horses were about ten or fifteen feet from the car track and that the car struck the wagon about “middle-ways.”

There was some evidence to the effect that before the accident plaintiff had engaged in some fist fights while he lived at Slater, Missouri, and that several months after the injury plaintiff returned to Slater, Missouri, and in an encounter in a saloon there received a black eye. Plaintiff admitted this on cross-examination, bnt stated that by reason of the injuries received in the collision he was nnable to defend himself and that the fight ended with the one blow which he received and that the only result of the fight was the black eye which caused him to remain at home for a day or two, as he says, to keep people from seeing his black eye.

Plaintiff’s instructions numbered one and three, of which defendant complains, are as follows:

“1. The court instructs the jury that it was the duty of defendant’s motorman in charge of the car mentioned in the evidence, to exercise ordinary care to keep a vigilant watch-out ahead for persons and vehicles upon or approaching the track upon which the car in question was running at the crossing of Nineteenth and Cherry streets; if, therefore, you believe from the evidence that the plaintiff was, at the time and place in question, in a position of imminent peril of being struck by the car mentioned in the evidence by reason of the fact that the team or the wagon attached thereto in which he was riding was upon the railroad track or upon Nineteenth street and approaching the track upon which said car was running, and that the motorman saw him or said wagon and the persons therein in such position of danger, if any, or, by the exercise of ordinary care, could have so seen it or them in time to have stopped said car by the exercise of ordinary care and thus have avoided striking the wagon and injuring the plaintiff but negligently and carelessly failed to do so, and if you further believe from the evidence that by reason of the foregoing careless negligent acts of the said motorman, if you find them to have been careless and negligent, the wagon in which plaintiff was riding was struck and plaintiff was thrown out of the same and injured, then your verdict must be for the plaintiff, even though you believe and find from the evidence that the plaintiff or those with whom he was riding, or those who were driving said wagon, negligently placed him and themselves in dangerous proximity to the street car mentioned in the evidence at said crossing of Cherry and Nineteenth streets.”
“3. The court instructs the jury that if they believe from the evidence that on or about the 20th day of September, 1907, the plaintiff was traveling northward on Cherry street at the intersection of Nineteenth street in Kansas City, Missouri, and riding in the rear end of a two-horse lumber box farm wagon, and while plaintiff was crossing said Nineteenth street and traveling near the east side of said Cherry street, said defendant, through the negligence and unskilfulness, if any, of its servants and employees in running, conducting and managing a car of the defendant which was being moved by the defendant at a rapid rate of speed along the track of defendant in said Nineteenth street, if you believe from the evidence that it was so moved, while in charge of its said servants and employees, negligently and carelessly ran the said car into, upon and against the wagon in which plaintiff was riding, with great force and violence, and injured the plaintiff, they will find their verdict for the plaintiff.”

I. Appellant contends that the court erred in permitting medical experts, over the objections of defendant, to invade the „ ... . . provmce of the jury by answering certain improper hypothetical questions. Said questions and answers were as follows:

“Q. Suppose that on or about the 20th of September, 1907, the plaintiff was riding in a wagon crossing the street ear track and the car hit the wagon and knocked him out on the pavement and hit the back of his head so as to cause, apparently, at least, a laceration of the scalp, and also a bruise over the left eye, and that he had concussion of the brain; that they took Mm to the city hospital right away and the doctors found him suffering with concussion of the brain; and supposing that he was knocked unconscious at the time and was afterwards incoherent in his speech for some days, and he continued in that condition, and was afterwards moved over to Bethany Hospital in Kansas City, Kansas, and continued in that condition for a couple of weeks — this more or less unconscious condition at times — I will ask you whether or not in your opimon these injuries that he sustained in this street car collision, he having received no other injuries in the meantime, might, could or would have resulted in this paralyzed condition you discovered the first time you examined.
“A. I tMnk it might, could and would have caused this condition that I found existing at the time.
“Q. Now, Doctor, supposing that afterward in April he had a little fight, or a man assaulted him andl struck him a blow over the right eye that blacked his eye, but did not knock Mm down, nor confine Mm to his bed, but that he stayed at home for a day or two on account of having this black eye, I will ask you whether the subsequent condition in which you found him, and present condition, might, could or would have been the result of that blow, or it might, could or would have been the result of the injuries wMch I first mentioned in my other question.
“A. I don’t think the latter injury had anytMng to do with the paralysis because it existed prior to that time, and the extent of the paralysis, so far as the members of the body are concerned, is the same now as it was before. The paralysis does not seem to have changed in any way.”

It is contended by appellant that the question would have been proper if the expert witness was asked whether in his opimon the injury “might or could” have produced paralysis, but that by adding the word “would” to the question it became improper and invaded the province of the jury. We are unable to agree with this contention. We see no material distinction between the meaning of “would” and “might or could” as used in the question. “Would,” in the sense here used, is defined as “expressing what might be expected;” Webster’s New International Dictionary, under title “Would.” The use of the word “would” did not constitute error. This view is not out of harmony with the holdings of this court in Taylor v. Railroad, 185 Mo. 239; State v. Hyde, 234 Mo. 200; and does not conflict in any manner with the holdings in Glasgow v. Railroad, 191 Mo. 347; Roscoe v. Railroad, 202 Mo. 576, or Smart v. Kansas City, 208 Mo. 162. In the Glasgow case, supra, the doctor testified that the injury “w>as due to the fall.” In the Roscoe case, supra, the doctor testified that the injured man’s-inability to sleep and the pains he suffered in his head and back “was due to the injury” which he received in the collision. In the Smart case, supra, the doctor was permitted to testify that “the injury precipitated-the amputation:” Those answers were the points upon which the respective decisions evidently turned and it is readily seen that the situation in each of the last three mentioned cases is different from that above discussed in the case at bar.

The second question in the case at bar might be-subject to criticism if it should be interpreted to bean effort to have the expert say which of two causes did produce the plaintiff’s condition. [Smart v. Kansas City, supra.] The way the question is worded it is-perhaps an attempt to have the witness say which was-the more likely cause, and in that regard approaches-somewhat the danger zone. However, taking into consideration the evidence in this case and the answer-made to the question, we do not think error was committed. The evidence showed that plaintiff was suffering with, paralysis after the collision and long before he received the black eye from the fist blow. It conld not be said that the fist blow produced the condition of paralysis which the evidence shows existed prior to receiving the blow. On the other hand, the evidence shows that plaintiff’s paralytic condition grew no worse after receiving the black eye. Had the doctor not answered the last question, there is no reason to suspect that the jury woqld have found the plaintiff’s condition was caused by the fist blow. Therefore, even though the question and answer should be conceded, arguendo, as improper, we are unable to see, under the circumstances here, wherein defendant was injured thereby. The remarks of Lamm, J., concerning a similar situation, in the case of Bragg v. Met. Street Ry. Co., 192 Mo. 331, l. c. 344, are very applicable here: “Furthermore, in our opinion, if the objection was broad enough to include such contention and was leveled directly thereat, yet the question propounded to Dr. Snell is not obnoxious to such criticism in a case like this, where the whole case proceeded on both sides on the theory that the acident happened and that respondent was injured, and where, as here, the controlling defense is directed to the nonliability of appellant for that accident and that injury.”

II. Appellant contends that the court erred in giving plaintiff’s instructions numbered one and three; that “No. 1 authorizes recovery under the humanitarian rule; No. 3 on account of excessive -speed, inconsistent. Both are argumentative, illegal and

It will be noticed that these two instructions follow the two theories of liability alleged in the petition. The petition assigns two grounds of negligence. One ground (that embraced in instruction No. 3) is that “defendant through the negligence and unskilfulness of its officers, agents, servants and employees in running, conducting and managing a car of the defendant which was being moved by the defendant at an unusual and rapid rate of speed along said track while in charge of its said officers, agents, servants and employees, negligently and carelessly ran the said car into, upon and against the wagon in which plaintiff was riding as aforesaid with great force and violence,” etc. The other ground (that embraced in instruction No. 1) proceeds upon the humanitarian rule. It is contended that these two grounds are inconsistent, that one disproves or destroys the other; that one is based upon “slow stopping” and the other on “fast running.” The fallacy of this contention is revealed when it is recalled that the humanitarian rule is not based upon ■“slow stopping,” as intimated by appellant but rather upon a failure to stop at all or an absence of slackened speed, under certain circumstances. It therefore becomes apparent that a failure to stop or slacken speed is not inconsistent with running fast. Both conditions might exist at the same time, and especially so when, as here, the petition or evidence fails to allege or show that the fast running was so excessive as to prevent the stopping of the car within the time and distance prescribed by the humanitarian rule. This proposition has been directly passed upon and a conclusion contrary to appellant’s contention announced in the case of White v. Railroad, 202 Mo. 539, l. c. 558. To the same effect is Farrar v. Railroad, 249 Mo. 210.

We conclude that said instructions properly declared' the law applicable to the issues and evidence.

III. It is further contended that the evidence fails to sustain either of plaintiff’s theories upon which he see^s a recovery and that therefore the demurrer to the evidence should have been sustained. In support of this contention, it is claimed that: (1) The evidence does not show that after defendant saw or by the exercise of ordinary care conld have seen plaintiff’s peril the car conld have been stopped, consistently with the safety of the passengers, in time to have prevented the collision; (2) The evidence does not show that the car was being negligently operated at a rapid rate of speed.

We are unable to agree with appellant’s above contention. As to the first point, we call attention to the fact that one of plaintiff’s witnesses testified that the car, if going at a speed of fifteen miles an hour, could be stopped in fifty or sixty feet, taking into consideration the safety of the passengers; defendant’s motorman says the car, at the rate it was going, could have been stopped in three car lengths, or ninety-six feet. One of defendant’s witnesses testified that the car going at a speed of fifteen miles an hour could have been stopped in one hundred feet with reasonable safety to the passengers, and that if the car was going thirty miles an hour it would take “about two hundred feet” in which to stop the car. Another speed expert testified for the defendant that if the car was going fifteen miles an hour it could be stopped in one hundred feet, and if the car was going twenty-five or thirty miles an hour it could be stopped “pretty nearly as quick as you could at fifteen, because it takes so long to wind up the brake anyway.” The evidence on the part of plaintiff tended to show that when the team first went upon the track the car was from one hundred and eighty to two hundred and ten feet away. The crossing was lighted by two gas lights and there was certainly nothing to obstruct the motorman’s view or keep him from seeing the horses after they went upon the track, if he had been in the exercise of the degree of care which the law imposes upon him.

As to the second point, it is sufficient to say that there was evidence tending to show that the car was run at an excessive rate of speed, one witness testified it was running twenty-five or thirty miles an hour, another witness said it was running “awful fast.” Several witnesses testified that the car did not slacken its speed before it struck the wagon. There was therefore evidence sufficient to submit to the jury the •question as to whether the car was negligently operated at rapid speed.

IY. A further contention is made that the demurrer to the evidence should have been sustained on the ground that “it appears from plaintiff’s own testimony that his own negligence was the proximate cause of the accident.”

Plaintiff testified that when the wagon started north across Nineteenth street he did not know which way the cars ran on that street and first looked toward the east and then turned and looked to the west and saw the car coming sixty or seventy yards distant. At this time the horses’ front feet were between the rails and he thought there was plenty of time for the wagon to cross ahead of the car and did not therefore think it necessary for him to jump from the wagon. He is corroborated in this by both the driver of the wagon and also by Jaggard who was near him in the back portion of the wagon. At this time he thought the wagon was traveling about six miles an hour and had about seventeen feet to go in order to clear the track. He thought the car was running at a speed of from twenty-five to thirty miles an hour and that it had one hundred and eighty to two hundred and ten feet to go. He then turned and was engaged in conversation with Jaggard, and a little later, his attention being aroused by what was said by Jaggard directing the driver to “look out,” he looked up and saw the car almost upon them, and before he had time to change his position the collision occurred.

In the discussion in the preceding paragraph, it was found that there was evidence tending to show that the motorman by tbe exercise of tbe proper degree of care, under the circumstances, could bave seen plaintiff in a position of peril in time to bave saved bim by tbe exercise of proper care. Under sucb conditions, it could not be said that bis negligence was. tbe proximate cause of tbe injury so as to defeat a recovery under the humanity rule. [White v. Railroad, supra, l. c. 564.] In order to justify tbe designation of plaintiff’s negligence as tbe proximate cause of tbe injury and therefore prevent tbe operation of tbe humanity rule tbe situation must be sucb that plaintiff’s negligence caused bim to enter tbe danger zone too late for defendant to save bim by tbe exercise of tbe care required under tbe situation. Tbe correct rule, applicable here, was announced by Lamm, J., in the case of Ellis v. Metropolitan Street Railway Co., 234 Mo. 657, as follows:

“When a person, out of danger, negligently moves from his place of safety to one of danger from an oncoming street car, so close to it and under sucb circumstances that bis danger could not be reasonably apprehended by those in charge of tbe car (who see or might see bis peril) in time to bave saved bim by tbe exercise of ordinary care, then tbe negligence of tbe traveler is either tbe proximate cause of bis own injury, or, in case tbe element of defendant’s negligence be also present, then tbe negligence of tbe street traveler and tbe negligence of tbe carrier are coincident and concurrent — they (excluding tbe idea of comparative negligence) may be said to balance or offset each other. In either of which hypothesis there is no room at all for tbe application of tbe humanity rule. If a given case in that regard is so plain that average fair-minded men cannot reasonably differ about it, a recovery may be denied as a matter of law. That result has been reached in many cases cited. But if there is a ground for fair difference of opinion about it, then the question is for the jury. We think that at bottom much of the apparent discord between the cases cited for defendant and those cited for plaintiffs disappears when the facts in each adjudged case are rigidly subjected to the foregoing test.” [Id., l. c. 672-3.]

Neither should it be said that plaintiff was guilty of contributory negligence which would as a matter of law preclude his right of recovery under the theory submitted in plaintiff’s instruction 3. Plaintiff was not the driver of the team and had no control over the team. The fact that he misjudged the distance the car was from the wagon when he first looked and thought there was sufficient time for the wagon to cross ahead of. the car and therefore remained in the wagon instead of trying to jump out, would not under the circumstances shown by the evidence render him guilty of contributory negligence as a matter of law. [Heintz v. St. Louis Transit Co., 115 Mo. App. 667; Strauss v. Railroad, 166 Mo. App. 153, l. c. 154; Farrar v. Railroad, 249 Mo. 210, l. c. 219.]

In the case of Krehmeyer v. Transit Co., 220 Mo. 639, where the plaintiff was the driver in control of the team and under a state of facts more unfavorable to plaintiff than here, it was held by a majority of the Court in Banc that the question of plaintiff’s contributory negligence was for the jury and that his contributory negligence did not preclude a recovery as a matter of law. [Id., l. c. 651 and 685-6-7.]

Y. Appellant, by a number of instructions, requested the court to submit to the jury the question of plaintiff’s contributory negligence, refusal of the court to give said instructions is assigned as error.

The answer did not contain a plea of contributory negligence. But it is insisted that even though the general rule is that contributory negligence is an affirmative defense which must he pleaded, yet an exception to the general rule allows the defendant to avail itself of the said defense whenever contributory negligence appears from the plaintiff’s testimony, and that this exception is ■ sufficient in its scope to entitle defendant to the right of having such question submitted to the jury. It is needless to cite authorities in support of the proposition that where it appears from plaintiff’s evidence that he is guilty of contributory negligence, as a matter of law, the court is justified in taking, and should take, the case from the jury, this on the theory that plaintiff’s own testimony shows an absence of defendant’s liability. But as to the proposition here urged it is sufficient to say that this court in both divisions has by recent rulings announcéd that in the absence of a plea of contributory negligence, and the absence of such evidence upon the part of plaintiff as would justify the court in finding plaintiff guilty of contributory negligence as a matter of law, the defendant is not entitled to avail itself of such defense and to have submitted to the jury the question of such contributory negligence, even though plaintiff’s evidence does tend to'prove contributory negligence upon his part. [Collett v. Kuhlman, 243 Mo. 585, l. c. 591; White v. Railroad, 250 Mo. 476, l. c. 482.] In the latter case the question is discussed at length and it is therefore unnecessary to pursue the subject further here.

VI. It is further urged that the court erred in not permitting respondent’s counsel to argue the question of plaintiff’s contributory negligence to the jury. Under the pleadings, issues and instructions the question of plaintiff’s negligence was not a question for the jury’s deter mination or consideration and the action of the court in that respect was proper.

Complaint is also made of certain statements made by respondent’s counsel in arguing the case to the jury. But as to this contention, it is sufficient to say that the appellant’s mo-¡¿on for a new trial contains no mention of error arising from statements made by respondent’s counsel in the course of his remarks to the jury and it is therefore not a matter for appellate review.

VII. After judgment was entered in the trial court the plaintiff assigned said judgment to Charles E. Small, one of plaintiff’s attorneys, to secure to the law firm of which said Small is a member the payment of their fee for legal services rendered in plaintiff’s behalf. The amount of said fee is not shown, but the assignee in his affidavit filed in the Kansas City Court of Appeals says that the fee is much less than the amount of the judgment.

After the assignment of said judgment the plaintiff died. His death was suggested to the Kansas City Court of Appeals, and upon the application of the administratrix of his estate to be substituted as party plaintiff in the stead of said Albert P. Taylor, deceased, the court made an order reviving the cause in the name of the administratrix unless cause to the contrary should be'shown by appellant at the next term of said court, and summons was issued, which, together with a copy of the order, was served upon the appellant. In answer to said order to show cause appellant filed in said Court of Appeals its answer and brief and contended that said Small under and by virtue of said assignment became the absolute and legal owner of this action and the real party in interest herein, and asked that the order theretofore made substituting the administratrix as party plaintiff be set aside and an order made substituting as party plaintiff herein said assignee, Charles E. Small. The Court of Appeals refused appellant’s request. It is now urg'ed by appellant that the cause should abate for the reason that the said ‘ ‘ administratrix is an improper party to prosecute this cause.”

The assignment did not have the effect of assigning the cause of action. But even in a case where the cause of action was assignable and the cause of action had, in fact, been assigned during the pendency of the suit, it was held that under the provisions of section 1924, Revised Statutes 1909, the cause could continue in the name of the original party and that “it is not a matter of which defendant can complain.” [Asher v. Railroad, 89 Mo. 116.]

Furthermore, this is not an action upon the judgment but is more in the nature of a continuation of the original suit. [Macklin v. Allenberg, 100 Mo. 337.] If the judgment should be reversed and the cause remanded, the case, if it proceeded further, would have to proceed in the name of the administratrix or her successor, party plaintiff, as the real party in interest. If the case is affirmed the assignee would proceed to collect the judgment not by proceeding upon the original cause of action but by execution or other proceeding upon the judgment or rights incident thereto.

It therefore follows that the cause was properly revived in the name of the administratrix. [R. S. 1909, secs. 2077 and 5438.]

The judgment is affirmed. Roy, G., concurs.

PER CURIAM.

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

Walker, P. J., and Brown and Paris, JJ., concur.


author: WALKER, P. J.

text:
    J. SAM BROWN, Appellant, v. L. M. CHANEY et al.
    Division Two,
    March 24, 1914.
    1. SUIT FOR TAXES: Description of Land. In a suit for delinquent taxes a necessary part of the cause of action is a definite description of the property in the petition; and a description is sufficient if it will, by its own terms, enable the property to be located. Tested by this rule, a description in the petition as “Lot 66, Block K., W. & B. Map, City of Nevada,” is a sufficient description of “Lot 66, Block K, Wood & Blanchard’s Map of the City of Nevada,” since it is reasonably certain that there is only one lot 66 in Block K in said city, and that if there is more than one such numbered lot and block, there is only one “Wood & Blanchard’s Map” on which there are a lot and block so designated. Likewise, a description in the petition of “lots 7, 8, 9 and 10, Block 10, Robinson-Martin’s Add. to City of Nevada” is a sufficient description of “lots 7, 8, 9 and 10, block 10, in Robinson & Martin’s Addition to the city of Nevada.”
    2. TAX SALE: Inadequacy of Price: Must Be Pleaded. In a suit to set aside a sale of land to pay taxes, inadequacy cf price must be affirmatively pleaded or else it will not he a ground of relief. And if brought into the allegations only incidentally and no reference thereto is made in the motion for a new trial, the question of inadequacy of price is not before the appellate court for consideration.
    3. -: Equitable Relief. If a private citizen, in his relations to others, must do equity before he can ask equity, then in his relation to the State he must at least do his duty as a citizen before he can successfully obtain the aid of a court of conscience to relieve him from the State’s rightfully imposed burdens. A citizen, who was a man of affairs, the owner of much real estate, with extended experience in the transaction of business and an office within a block of the court house, who sat quietly by while the city levied taxes on his lots and gave no heed to a suit brought to enforce the lien, of which he was informed by personal service, is in no position to ask a court of equity to give him relief from a sale of the lots, regularly made, for a small sum, to satisfy the judgment regularly obtained.

      Appeal from Vernon Circuit Court. — Eon. B. G. Thurman, Judge.
    Aeeikmeu.

      M. T. January and A. E. Elliott for appellant.
    (1) A tax suit is a proceeding practically in rem and the petition is the foundation, and it must contain a full and accurate description of the real estate to be charged. The revenue law authorizes abbreviations in assessments, but not in the tax petition. O’Day v. McDaniel, 181 Mo. 5291. (2) Inadequacy of price, coupled with irregularities in the proceedings, will authorize the setting aside of a judicial sale. State ex rel. v. Elliott, 114 Mo. App. 562. (3) The consideration named in a deed is evidence as between the parties, but is no evidence against a third party. Coleman v. Lucksing-er, 224 Mo. 18; Allen v. Kennedy, 91 Mo. 324. (4) The plaintiff had a right to ask in his petition, and the court to grant, equitable relief, if necessary, to establish his title. E. S. 19091, sec. 2535.

      Scott S Bowher for respondents.
    (1) The description in the deed and in the petition in this case was- sufficient. State ex rel. v. Cowgill, 81 Mo. 381; Miller v. Keaton, 236 Mo. 694; Morrison v. Turnbaugh, 192 Mo. 427. (2) Mere inadequacy of consideration is not sufficient to set aside a tax sale without other equities. Mangold v. Bacon, 229' Mo. 459. (3) Mere irregularity in a tax sale is not sufficient to avoid the sale in a collateral attack made in a suit to ascertain and determine title. Miller v. Keaton, 236 Mo. 694; Morrison v. Turnbaugh, 192 Mo. 427. (4) A tax deed regular on its face is prima-facie evidence of title, and of the truth of the recitals therein. Sec. 11501, E. S. 1909.
   WALKER, P. J.

— This is an action to quiet title under section 2535, Revised Statutes 1909. Two separate* suits were brought to determine the title of the land described herein, and the issues being the same, they were consolidated and tried as one case, and will be so considered here.

The appellant resided in the city of Nevada, where he owned a large number of lots or tracts of land. He failed to pay the taxes on seventeen of these tracts for the year 1904, permitting the same to become delinquent, and in 1909 the treasurer of Vernon county, in which Nevada is located, under his authority as ex-officio collector of the revenue, said county being under township organization, brought suits in the circuit court against appellant as the owner of said delinquent lots to enforce the payment of taxes for said year. Personal service was had on the appellant. On a hearing before the court, judgments were rendered in said suits at "the May term, 1910, and at the following October term, said delinquent tracts were sold under special executions and were bought by different parties. Respondent Chaney at' said sale bought the tract described in the petition as “Lot 66, Block K, W. & B. map, City of Nevada,” for six dollars, and “lots 7, 8, 9 and 10, Block 10, Eobinson-Martin’s Add. to City of Nevada,” for four dollars and deeds to said Ohanev were thereafter made in conformity with the law. Respondent has since conveyed Lot 66, Block K, by quitclaim deed to George H. and Anna M. Speece, for $400.

Appellant’s petitions allege oversight as the cause of his failure to pay the taxes on said lots; that the tax petition insufficiently described “Lot 66 of Block K, W. & B. map of Nevada,” the correct description of which is “Lot 66, Block K, Wood & Blanchard’s map of the City of Nevada;” and that “lots 7, 8, 9 and 10, Robinson & Martin’s Add. to City of Nevada” should have been described as “in Robinson & Martin’s addition to the City of Nevada, Missouri;” that this misled bidders and caused said lots to sell below their real value; that he has tendered respondent Clianey the amount of his bids with interest and expenses, which the latter has refused. Wherefore appellant tenders in court and offers to pay such sums as the court may find respondent Chaney is entitled to by reason of his purchase of said lots, and that the court may set aside said tax deed to respondent and the quitclaim deed to said Speeces, and ascertain and determine the title to said land as between appellant and respondents, and decree that appellant is the owner in fee to said land and that respondents have no right or title thereto.

The answer of respondent Chaney is first a general denial, and, second, that he bought said land at a tax sale, obtained title thereto and as to Lot 66, Block K, conveyed same to George H. and xinna M. Speece.

The answer of respondents Speece is first a general denial, and, second, that they claim the premises described in plaintiff’s petition as the owners in fee.

Upon a hearing of these cases before the trial court, a judgment was rendered in favor of the respondents from which the appellant appeals.

Before and during the time of the proceedings herein, the appellant was continuously a resident of the city of Nevada, and had an office within a block of the courthouse. The cause of the non-payment of these taxes as alleged in the petition, and as testified to by appellant, was simply that he had neglected to pay same. No issues are raised as to the regularity of the proceedings other than that the description of the property was insufficient.

An examination of the petition and record entries, therefore, other than to determine their sufficiency in regard to the matter referred to, is not. necessary.

T. The rule is well established in this jurisdiction that a proceeding to enforce the State’s lien for unpaid taxes is practically one in rem. In suits of this character a necessary part of the cause of action is a definite description of the property in the petition. [O’Day v. McDaniel, 181 Mo. 529, 534; Vaughan v. Daniels, 98 Mo. 230, 234; Milner v. Shipley, 94 Mo. 106, 109.] A description is sufficient if it will, by its own terms, enable the property to be located.- This is manifest in-the cases cited in support of the rule. In the case at bar, the lots and blocks are definitely named, but in one instance only the initials of the name of the map are given, and in the other, the word “addition” is abbreviated thus: “Add.” While there is no testimony in regard thereto, it is reasonable to presume-that there is only one “Lot 66, Block K” in the city of Nevada, and further, if there is more than one such numbered lot and block, that there is only one “Wood. & Blanchard’s map” in which there is a lot and block so designated; if so, then the initials “W. & B.” following the number of the lot and block sufficiently indicate-that “Wood & Blanchard’s map” is referred to, and, therefore, serve as an aid to enable the property to be more readily located. We are, therefore, of the opinion that the description is in this regard sufficient to state a cause of action, and that the contention of the appellant should be denied.

In regard to the description of the other tracts r The lots and block are definitely numbered, and the addition in which they are located is specifically named, followed by the abbreviation “Add.” By parity of reasoning, if judicial notice may be taken of the fact that “Supt.” means superintendent as indicating a managing agent, as was held in Southern Mo. Land Co. v. Jeffries, 40 Mo. App. 360, and that even an information in a criminal case is sufficient, although the letters “Jno.” are used instead of the word “John,”' as was held in State v. Granger, 203 Mo. 586, we are not inclined in the instant -case, especially where the remainder of the description sufficiently locates the property, to hold that the abbreviation of the word “addition” as “Add.” following such description is not sufficient. See in this connection Rosenberger v. Railroad, 96 Mo. App. 504, 507. If further authority be needed to attest the correctness of this conclusion in regard to these descriptions, it is to be found in State ex rel. v. Vaile, 122 Mo. 33, 48, where it is held that the use in a tax bill of such common abbreviations as “ex.” for “except,” “a.” for “acres,” and “cor.” for “corner” is allowable under the statute. [Sec. 1850, R. S. 1909.]

II. Appellant contends that inadequacy of price will suffice to authorize the reversal of this case. In Mangold v. Bacon, 229 Mo. 450, we held unequivocally, following the general rule heretofore announced in this regard, that “a judgment based, largely or partly, on a finding that the price paid for the land at the tax sale was grossly inadequate, where the petition does not in plain terms count upon inadequacy of price as a ground for setting aside the sale, and where when the value of the land first came up at the trial the court ruled that under the petition that question was not in the case, and defendant accepted that ruling, though the court afterwards admitted some evidence of value 'subject to objection,’ cannot stand.” Subsequently in the same case on a second appeal (237 Mo. 496, l. c. 521) we held that where the petition sufficiently pleaded the inadequacy of price “a court of equity, acting with caution and only in an aggravated case and when no aid from other equitable consideration is at hand, may set aside a sheriff’s deed on the sole ground of a consideration so grossly inadequate as to shock the conscience.” The gist of the court’s ruling in the last case is that if there be no fact or circumstance other than inadequacy of price, then the inadequacy must, in itself, be such as to raise the presumption of fraud, or it will not avail. As to whether the rule, as here generally stated, is under all the facts, applicable to the case at bar, we will discuss later.

Admitting for the nonce the general application of the rule, it cannot apply where the inadequacy is not pleaded, not by implication or as a conclusion of law, but by an affirmative allegation. We state this unqualifiedly, because unless so pleaded it does not become an issue in the case. We do not understand that the Mangold case last referred to announces a different doctrine.

Only in an incidental way does the appellant plead the inadequacy of price. He states in his petitions that his property was and is worth $1400, and that it was sold by the sheriff and bought in by the defendant ■Chaney for ten dollars. Then follows a specific allegation as to the defective descriptions, which is the burden of the plaint for relief, the paragraph closing with the following: “by reason of all of which bidders were deterred and said land sold much below its real value and was sacrificed.” This is all the reference near or remote to inadequacy of price. Even if it be held sufficient as an affirmative plea for relief in this regard, all reference thereto is absent from the motion for a new trial where the errors of the trial court are required to be embalmed to entitle them to an examination here. Not having been planted, therefore, in the pleading nor preserved in the motion for a new trial, the ground of this contention, under the most lax construction of the rules of appellate procedure, is not before us.

We find further no reference to inadequacy of price in the assignment of errors, but as appellant refers thereto in his “points and authorities,” this might be deemed sufficient under our ruling in Collier v. Catherine Lead Co., 208 Mo. 246, and in Mugan v. Wheeler, 241 Mo. 376, if the error complained of had theretofore been properly preserved. In his brief (but not elsewhere) appellant contends that the case should be reversed on account of “inadequacy of price and irregularities; ’ ’ the former not having been preserved as error is, as we have said, not before us, and the latter, consisting wholly of the alleged insufficiency of descriptions, we have held without merit.

III. The appellant, therefore, is left with the contention alone that he is nevertheless entitled to equitable relief. Why or in what manner *s 110^ disclosed. However, we will let the facts as presented at the trial speak for themselves to determine whether in equity and good conscience there is merit in his plea. Appellant had resided for years in the city of Nevada where he had an office for the transaction of his business, within a block of the courthouse. He was, in the language used to designate one of much property, “a man of affairs.” He was of extended experience in the transaction of business, he had much real estate in the town and county. He had been paying taxes, as he himself states, for years ,and as his counsel says arguendo, “he neglected to pay those due on the property in question and suffered it to be sold for a song.” We will not be led into the alluring field of controversy as to whether one, as a citizen, does not owe a higher duty to the State, in the payment of taxes, than in the discharge of an ordinary obligation to an individual, but we may be permitted, at least, to pertinently observe that if one, in his relations to individuals, must do equity before he can ask equity, then in his relations to the State he must at least do his duty as a citizen before he can successfully seek the aid of a court of conscience to secure relief from the State’s rightfully imposed burdens. Proximity and tbe sources of information arising therefrom afforded him ample opportunity for knowing that the taxes were due; personal service informed him that suit had been brought to enforce their payment; that notice which judicial action gives to the public brought to his attention the rendition of the judgment and the proposed sale of the land to satisfy same. Apprised of all these facts, he sat idly by and permitted the land to be sold for a song, within earshot of his office. His plea for equitable relief under such circumstances should fall upon deaf ears.

Prom all of which it follows that the judgment of thé trial court should be affirmed, and it is so ordered.

Brown and Faris, JJ., concur.