source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    ADOLPH HOVARKA, by next friend, v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    November 22, 1905.
    1. NEGLIGENCE: Falling On Track. Where a school boy, in at tempting to cross a street railway track, slipped and hurt himself, and lay on the track trying to rise and pull himself off, and he testifies that when he first saw the cai’, after he fell, it was the width of three or four houses away, and the motorman testifies that he did not see the boy at all, that the track was an up-grade and the car could have been stopped in ten feet, and the evidence shows that he could have seen the boy for 200 feet or more had he looked, the court did not err in refusing to nonsuit the case.
    2. -: Ordinary Care: Definition.- The degree of care covered by the words “ordinary care” varies according to the circumstances. The condition suggests thé proper degree of care which a motorman in charge of a street car must exercise to avoid striking or running over persons on the track. And where there are children on the track coming from school, it is not proper to use the words “ordinary care” undefined and unexplained in the instructions; and, hence, the court did not1 err in striking out those words, and inserting in lieu thereof the words “proper care to discover persons in danger of being injured, as such care is defined in other instructions,” and in those instructions requiring the motorman to keep a vigilant watch, etc.
    3. -: -: Wrongful Definition: When Not Error. Although the trial court may not have correctly defined the words “ordinary care,” or failed to give instructions on the subject that clearly defined the words, yet if there was no room in the case for a question of the degree of care the motorman ought to have exercised, the court’s short-coming in that regard could not possibly have injured defendant’s case, and the error, if any, was harmless.
    4. -: Instruction: Omission of the Motorman’s Duty. The instruction as asked told the jury that if plaintiff was old enough to appreciate the danger of running in front of a car, it was his duty to keep a careful lookout and keep far enough away to avoid a collision with the car, and that if by looking he could have seen the approaching car but failed to look and ran into the side or corner of the car, the verdict must be for defendant. Held, that the instruction leaves out of view the duty of the motorman in the emergency to discover the boy’s perilous condition and to try to avert the accident, and was, therefore, properly refused.
    5. -: -: No Evidence. The court is justified in refusing an instruction where there is no substantial evidence on which to base it.
    • Appeal from. St. Louis County Circuit Court.— Hon. Jno. W. McElhinney) Judge.
    Affirmed.

      KisJcaddon £ Matthews with. Boyle £ Priest for appellant.
    (1) The mere fact that an accident occurred in which plaintiff was injured is no evidence of negligence on the part of the defendant. Fuchs v. St. Louis, 167 Mo. 6201. (2) The rule res ipsa loquitur does not apply under the pleadings and evidence in this case. Bartly v. Railroad, 148 Mo. 138; Neville v. Railroad, 158 Mo. 293; Smith v. Railroad, 113 Mo. 82. (3) When the testimony of plaintiff’s witnesses contravenes the physical facts, snch testimony has no probative force, and should be disregarded. Nugent v. Kaufman, 131 Mo. 252; Kelsay v. Eailroad, 129 Mo. 376. (4) Where the testimony introduced by plaintiff affords no substantial ground for the allegation of defendant’s negligence, the court should so instruct. Boyd v. Eailroad, 105 Mo.. 371; Smith v. Eailroad, 113 Mo. 70; Eoberts v. Tel. Co., 166 Mo. 384. (5) When the testimony introduced by plaintiff shows that he is guilty of contributory negligence, the jury should be instructed to find for defendant. Hudson v. Eailroad, 123 Mo. 445, 101 Mo. 30; Curley v. Eailroad, 98 Mo. 13; Van Bach v. Eailroad, 171 Mo. 346; G-iardina v. Eailroad, 185 Mo. 330. (6) The fourth and fifth instructions as asked by defendant ought to have been given, and the court erred in modifying them and of his own motion giving them in their modified form. Bowles v. Hunter, 91 Mo. App. 337; Jordan v. Webber, 72 Mo. App. 328; Zimmermann v. Eailroad, 71 Mo. 491; Yamell v. Eailroad, 75 Mo. 583; Abbott v. Eailroad, 83 Mo. 278; Murray v. Eailroad, 176 Mo. 190.’ (7) In the fourth and fifth instructions above mentioned the court changed the term “ordinary care” to the terms “proper care,” and interlined a direction to the jury to other instructions for a definition of “proper care.” No such other instructions were given. These instructions, as given by the court of its own motion, are erroneous for the changes and interlineations, and because as given they are not complete and are misleading. The court having undertaken to give the instructions ought to have compléted them by giving the definition. Authorities cited to point 6 and the following instances where words were used in a technical sense, and it has been held they required definition: “Consequential damages” and “direct and immediate damages:” Eailroad v. Dowley, 50 Mo. App. 487. “Heat of passion:” State v. Andrew, 76 Mo. 101. “Warranty:” Flint v. Ball, 43 Mo. App. 510'. “Premeditation:” State v. Harris, 76 Mo. 363. “Reasonable doubt:” State v. Christian, 66 Mo. 143. “Matters material to the issue.” State v. Chyo Chiagk, 92 Mo. 416; State v. Miller, 100 Mo. 622. “Adverse possession:” Googher v. Niece, 75 Mo. 383; Dyer v. Brannock, 2 Mo. App. 432. “Gross negligence:” Mueller v. Ins. Co., 45 Mo. 88; Wiser v. Chesley, 53 Mo. 549; Mason v. Stock Yds. Co., 60 Mo. App. 100'. “Due diligence:” Turner v. Railroad, 76 Mo. 263. “Acting in good faith:” Dry Goods Co. v. Schooby, 66 Mo. App. 415. “Material facts:” Digby v. Ins. Co., 3 Mo. App. 603. “Exemplary damages:” Hayes v. Railroad, 15 Mo. App. 584. It has even been held that the words “preponderance of evidence” are, with the average juryman, susceptible of, and very likely to receive, an infinity of construction. Clarke v. Kitchen, 52 Mo. 317; Carson v. Porter, 22 Mo. App. 185; Young v. Ridenbaugh, 67 Mo. 584. How much more then should the court, when giving an instruction of its own motion, define the term “proper care,” a term unknown in its ordinary sense to the law of negligence, and especially should he do so when he refers in the instruction to other instructions for the definition. It is submitted that a failure to give the defining instructions in such case is error. (8) Negligence and ordinary . care should be defined, or the instructions given should state under the evidence what facts constitute ordinary care and negligence, and submit the truth or falsity of the facts to the jury for their finding. Wiser v. Chesley, 53 Mo. 548; Mueller v. Ins. Co., 45 Mo. 88; Wyatt v. Railroad, 62 Mo. 410; Gorby v. Railroad, 93 Mo. 451;

      M. Hartman, A. L. Grace and R. L. Shackleford for respondent.
    . (1) The evidence is clear that at the time the boy fell upon the track, he did not see the car, and the car was at least seventy-five feet, and perhaps more, away from Mm, and by tbe exercise of a vigilant watch, the defendant’s motorman eonld have easily stopped the car, and averted the injury, and therefore the evidence makes out a strong case for the plaintiff, and the defendant’s demurrer was properly overruled. (2) While it may be true that the mere fact that the boy was injured is not sufficient in itself to show liability as against the company, yet that fact, together with all the evidence in the case, clearly discloses the. fact that the company’s servants in charge of the car were negligent. (3) The sixth contention of the defendant is, that when the testimony introduced by plaintiff shows that he is guilty of contributory negligence, the jury should be instructed to find for the defendant. To this contention the plaintiff says that he was not guilty of contributory negligence, and was not guilty of negligence at all,, for at the time he undertook to cross the railroad track, he had ample time to- cross it, and would not have, and could not have been injured by the car, for the car was not within seventy-five feet of him, and but for the fact that, the track being muddy, he slipped and fell and injured himself so badly that it was impossible for him to recover from his stunned condition in time to leave the track, before the car had come upon him and injured him. Not only so, but the law is that the plaintiff is presumed to be in the exercise of ordinary care as defined in the instructions given the jury by the court, and thei testimony in this case clearly shows, not only that the boy was not guilty of any Mnd of negligence, but did just what any person would have done under the circumstances. In cases where contributory negligence is to be established by those who contend for it, the testimony must show it by a preponderance of the testimony in order that the presumption of law must be removed, and in this case defendant signally failed to introduce a sufficient amount of testimony to overcome the presumption of the law that plaintiff was in the exercise of proper care at the time he was injured, and also fails to establish that the boy was guilty of any negligence whatsoever. Jennings v. Railroad, 112 Mo. 268; Hilz v. Railroad, 101 Mo. 42; McPherson v. Railroad, 97 Mo. 253; Bowen v. Railroad, 95 Mo. 276; C'rumpley v. Railroad, 111 Mo. 152; Weller v. Railroad, 164 Mo. Í82. The law presumes plaintiff to have been in the exercise of proper care in going over the street at the crossing where he attempted to cross the street car track. Petty v. Railroad, 88 Mo. 320; Schlereth v. Railroad, 115 Mo. 87; Crumpley v. Railroad, 111 Mo. 158; Hutchinson v. Railroad, 161 Mo. 246. (4) The defendant is correct when it says that the term proper care is not known in the realm of negligence. Proper care simply means ordinary care; in the usual sense of the word, but as used by the court, was simply used as a reference to call the jury’s attention to other instructions where the duty of the motorman in the exercise of his care was properly defined. Riska v. Railroad, 180 Mo. 168; Conrad Grocer Co. v. Railroad, 89' Mo. App. 391; Schmidt v. Railroad, 1491 Mo. 282; Fath v. Railroad, 105 Mo. 537; Deitring v. Railroad, 109; Mo. App. 524.
   VALLIANT, J.

Plaintiff, a ten-year-old boy, was run over by a street car of defendant and received severe injuries, resulting in the amputation of his left leg between the hip and the knee. He recovered a judgment against the defendant for $6,500, from which the defendant prosecutes this appeal.

The petition charges negligence in failure to observe the vigilant watch ordinance, also failure to observe the fender ordinance, and failure to sound a gong at the crossing. At the close of the evidence the court by instructions took away from the jury the questions of negligence relating to the fender and the gong, and submitted the case on the sole question of negligence in failing to observe the vigilant watch ordinance.

Plaintiff’ introduced the ordinance in evidence. That ordinance appears in so many cases in our reports that it is unnecessary to copy it here in full, but of which it is sufficient to say that it requires the motorman to “keep a vigilant watch for all vehicles and persons on foot, especially children, either on the track or moving towards it, and on the first appearance of danger to such persons or vehicles, the car shall be stopped in the shortest time and space possible.”

The defendant was operating a single-track street railroad which comes south on Mississippi avenue until it reaches Gravois street, and then continues its course southwest on that street.

According to the plaintiff’s testimony the accident occurred in this manner:

The scene of the accident is shown in a diagram, in evidence, whereon appears Shenandoah avenue running from northwest to southeast and crossing Gravois street at an acute angle, also Salena street coming from the south and terminating in the plaza formed by the acute intersection of Shenandoah avenue with Gravois street. There are four crossings over Gravois street shown on this diagram; the first at or near Salena street, the second 88 feet and 6 inches west, the third 104 feet and 6 inches further west, and the fourth 108 feet still further west. At the first there is a slight curve in Gravois street, but from that point on west the street and track are straight. The evidence leaves it not entirely certain as to which of these four crossings was the one on which the plaintiff fell, but defendant’s counsel seem to conclude that it was the third, and we think that they are correct in that. The street had been recently sprinkled and was slippery with mud.

The plaintiff was returning from school in the afternoon, going along the north sidewalk of Gravois street, aiming to cross over and go south on Shenandoah avenue. He left the sidewalk and ran south over the crossing until he reached the railroad track where he slipped and fell between the rails and hurt himself so that he could not arise; lie attempted to do so but fell again, and while lying there a car of defendant came along and ran over him, mangling his left leg and inflicting other serious injuries on him. The car had stopped at the first or Salena street crossing to discharge passengers and had attained a speed, estimated by the plaintiff’s non-expert witnesses, of nine or ten miles an hour.

There was a man on the front platform of the car who was there for the purpose of receiving instructions from the motorman in the art of running a trolley car. This man and the motorman were at the time of the catastrophe and just before, looking at each other, talking and gesticulating. From the point where the boy left the sidewalk to cross the street he could have seen a car coming in his direction a distance of probably two hundred feet and when he reached the track in the middle of the street he could have seen it further, and the motorman could have seen him as well. Plaintiff testified that when he started across he looked in the direction a car was to be expected, but saw none; it was only after he had fallen and" was lying between the rails of the track that he saw the car and it was then the distance of the width of “three or four houses.” He said: “I slipped and fell down, and I had my head turning east when I saw the" car coming .... I hurt myself in the right side so much that I couldn’t get up. Q. How did you get off the track? A. Well I had my two feet in the track and I was getting my right foot out slow and when I was getting my left foot out the car caught me. . . . It ran my leg over right down here.”

The only other eye-witness for plaintiff to the accident, Eugene Erdman, a boy thirteen years old, gave practically the same account of it that the plaintiff himself gave.

Counsel for appellant think that the testimony for defendant tended to show that the boy was running across the street from the north sidewalk and after he had crossed to the south side of the track, a spring wagon in which were two women came along on that side going east, the horse running away, and the boy, to escape being run over by the horse, turned around and ran against the southeast corner of the car, fell and was run over.

The only witness for defendant who claimed to have seen the car strike the boy was August Bliefernich, and this is what he said: “Well, I was standing right in front of my door and I seen the car coming up Gravois road and coming up right fast — not awful fast, but right fast, and I was just looking at the car, but I didn’t see the car stopping, and I looked at the car and I looked at them school boys just coming from the school and in a little while I heard some women folks hallooing, and I looked at the car and I saw a little boy knocked down from the left corner of the front of the car and the boy tried to get up again, but the car knocked him down again and the ear ran over him.” He also said that after striking the boy the car ran sixty five or seventy feet, that two days afterwards he measured the distance. On cross-examination he was asked: “Q. The two women in the wagon did you see. — A. I didn’t see any women at all. That time when the boy was knocked down there wasn’t any wagon at all there.”

Miss Queenan, a passenger on the car, a witness for defendant, came nearer sustaining defendant’s runaway-horse theory than any other witness; this is what she said: “I noticed two women coming down in a spring wagon driving awful fast and the window was down and I saw the women try to control the horse and just then a little boy ran across in front of the horse and right towards the car, and then the car stopped, and as I looked back I couldn’t see anything and I got to the rear of the car and saw the conductor pick the little boy up.”

The motorman’s testimony was to the effect that he stopped at the Salena street crossing, then started on again, and his attention was attracted by two women driving a light spring-wagon coming towards him about three or four car lengths ahead, and fearing that the horses were beyond control and might run into his car he checked his speed and rang his bell violently, when the women screamed, “and I saw that there was something wrong and I saw something run against the side of my car and I didn’t know what it was until afterwards; I just got a glimpse of it.” He said he never saw the boy at all, that at that time he was going up a grade about twenty-five feet to the block, was going not more than five miles an hour, and stopped the car as soon as the woman screamed, stopped within a car’s length; that he was not talking to the man on the platform with him, but was looking ahead all the while. On cross-examination he said that if he saw a human being in danger he could stop the car going as it then was inside of ten feet.

The man on the front platform with the motorman testified substantially to the same effect. He did not see the boy at all, only knew that something had happened when he heard the screaming of the passengers in the car and the women in the wagon, then the motorman stopped the car.

I. At the close of the plaintiff’s case the defendant asked an instruction to the effect that the plaintiff was not entitled to recover, which was refused and exception taken. The refusal of that instruction is the first assignment of error.

In support of that assignment appellant contends that there was no evidence of defendant’s negligence, that the plaintiff’s evidence showed that he was guilty of contributory negligence, and that the occurrence was an unavoidable accident combined with plaintiff’s negligence.

We see no basis in the plaintiff’s evidence for that contention. The plaintiff testified that he looked to the east but saw no car, and his witness said that when he had started across there was no car in sight. But even if this car had passed the curve in Gravois street so as to bring it into the view of the boy before he started across, it was too far away to render it dangerous or imprudent for him to attempt to cross as he did; under the conditions shown by his evidence, he would have safely passed over if he had not fallen in the track. And if the motorman from the Salena street crossing had seen the boy at that distance running across the street, he was so far away that he would have had a right to presume that the boy would cross before the car could reach him. Estimating the distance that the car was from that crossing which we have called the third, at the time the boy started to cross the street, in the light of the testimony of either the plaintiff or defendant, it was ample to have justified the boy, if he had been looking, in thinking that he could cross the track before the car would reach that crossing, and also to have justified the motorman, if he had been looking, in reaching the same conclusion. Therefore, no charge of negligence on the part of the boy can be predicated on his act in attempting to cross under those conditions, and no charge of negligence on the part of the motorman can be predicated on his act in not attempting to stop the car as soon as he saw the boy (if he had seen him) attempting to cross at that distance. There was nothing in the mere act of attempting to cross at that distance in front of the car to suggest the idea of danger to either the boy or the motorman.

But when the boy slipped and fell between the rails, attempted to rise and fell again, and lay there struggling to move his body out of the track —then the situation was changed — then if the motorman had been looking ahead he could not have failed seeing the boy and realizing his danger. The boy said that after he had fallen and lay there trying to get out of the way he saw the car coming and it was then at the distance of “three or four houses” away; how far away he was when he first fell the evidence does not show, but even in the distance of three or four houses there was enough space in which to have stopped the car if the motorman had been observing. The motorman himself said that going as he was, at a slow rate and up-grade, he could have stopped the car without injury to anyone within ten feet. But if he had been going as fast as the other witnesses said he was, he could have stopped in the space of the width of three or four houses.

The only escape from the conclusion that the injury was willful is in that that the motorman was negligent in not looking in that direction. The evidence for the plaintiff was that the motorman and the man who was on the platform with him were looking at each other, talking to each other and gesticulating.

It is, perhaps, unnecessary to discuss the defendant’s evidence introduced to sustain the theory that the plaintiff ran into the car to escape being run over by a runaway horse, because the jury have passed upon it and that settles a question of fact under conflicting evidence in an appellate court, but we feel justified in saying that if the verdict had been for the defendant on that theory (and that is the only theory advanced) it would be very difficult to find any substantial evidence in the record to sustain it.

There was no error in refusing the instruction for a nonsuit.

II. The defendant asked several instructions, some of which were modified by the court before they were given, and the modification of two of them is assigned as error.

One of these instructions as asked was to the effect that it was the duty of the plaintiff before going on the track to look and listen; that if by looking or listening he could have seen or heard the car, but failed to do so, and went on the track so close to the car that the motorman, by the exercise of ordinary care, could not have seen him, then the verdict must be for the defendant, even though the jury should find that he would have crossed the track in safety if he had not fallen.

The other was to the effect that if the plaintiff went onto the track so close to the car that the motorman could not, with the appliances he had, stop it in time to avoid the collision, by the exercise of ordinary care, and that if the plaintiff had not placed himself in that position he would have escaped injury, then the verdict should be for the defendant, even though the jury believe if he had not fallen he would have crossed in safety.

The court struck out of these instructions the words "ordinary care," and inserted in lieu thereof in the first the words “proper care to discover persons in danger of being injured, as such care is defined in other instructions,” and in the second the words “proper care and diligence to stop the car, as such care and diligence are defined in other instructions.”

The only other instructions in which.there was anything declaring what was proper care under those circumstances were the first and second instructions given for the plaintiff, in the first of which it is said: “And if the jury further find from the evidence that the defendant’s motorman and conductor in charge of said car either saw, or by keeping a vigilant watch for persons on foot either on the track or moving towards it and in danger of being injured by said car would have seen plaintiff on said track or near it, and in danger from said car, and thereafter could have averted injury to plaintiff by using every effort to stop said car consistent with the safety of said car and its passengers, and failed so to do and thereby plaintiff was struck and injured by said car,” and in the second instruction this: “and if the jury further find that defendant’s motorman and conductor did not keep a vigilant watch for persons on foot either upon defendant’s track or moving towards it, and if they had. kept such vigilant watch they would have seen the plaintiff on or near defendant’s track and in danger of being struck and injured by said car and by stopping said car within the shortest time and space possible would have averted the injury to plaintiff and neglected to do so.” Those were probably the “other instructions” referred to in the modifications.

Passing for the present over the question of whether there was any evidence on which to base those instructions as asked by defendant, the court would have been justified in refusing them as asked, because of the unexplained words “ordinary care” as defining the motorman’s duty. The ordinance required the motorman to keep a vigilant watch, and on the first appearance of danger to stop the car in the shortest time and space possible, and in that respect under the circumstances of this case the ordinance imposed no stricter duty than did the common law. Here were children on the street coming from school, one of defendant’s witnesses said “a whole lot of them.” That condition itself suggested the proper degree of care, and whilst it may be technically correct to say that all that the law requires under such circumstances is ordinary care, yet the degree of care covered by that term varies according to the circumstances. When we are instructing a jury we should make the technical term intelligible. The stereotyped definition of ordinary care serves well enough in many cases but is unintelligible and misleading in others. In 2 Thompson on Negligence, sec. 1424, it is said: "The degree of care which the law demands of the street railway company, especially where it makes use of an underground cable or of an electric wire for the propulsion of its cars, is, no doubt, in legal strictness, defined by the words ‘ordinary care.’ But the use of this expression, in instructing a jury, would obviously mislead them, in the absence of further explanation, by leading’ them to suppose that the street railway company discharges its duty to children on the streets by extending to them the care which ordinary persons use under ordinary circumstances. Such is not the law. The care here meant and demanded by the law is a degree of care proportioned to the danger to children, and, as in other cases, it increases with the increase of the risk of such danger. It is therefore a correct use of language to characterize it as a high degree of care and watchfulness, and to say that the motor-man of an electric car is bound to exercise a high degree of watchfulness in operating the car in a public street where he has reason to expect that little children are playing near the track. Nor will this be a fixed measure of care under all circumstances, but will vary with time, place, and circumstances, increasing with the increase of the risks to be avoided. The law will, for example, demand greater care and vigilance in running an electric car over a public street crossing which is much frequented by children going to and returning from school, at a time when they may reasonably be expected to be using the crossing, than is demanded at other places. As young children are notoriously less capable of caring for themselves than adults are, the law demands of such a company greater vigilance and caution in keeping its car well in hand and in controlling its movements so as to prevent injury to small children, than it demands in the case of adults."

The learned trial judge was right in refusing to give the instructions as asked defining the motorman’s duty not more explicitly than by the words ordinary care, but he would have made the instructions less liable to misinterpretation if he had written another instruction expressly defining what he meant by proper care. Or he might with propriety have given the instructions as asked (if they had been otherwise unobjectionable) using the words “ordinary care” and then have followed them with another instruction defining the term ordinary care as applied to the motorman’s duty in that particular emergency.

But conceding that the modifications were lacking in perspicuity it could not possibly have injured the defendant’s case. There was no room in the testimony of either the plaintiff or the defendant for a question of degree of care the motorman ought to have exercised. If the theory of the case as made by the testimony on the part of the plaintiff is correct, then the plaintiff would not have been run over by the car if the motorman had exercised even the slightest degree of care, and if the theory which counsel for appellant think the testimony on the part of the defendant tends to prove is correct then the motorman could not have avoided the injury if he had exercised the very highest degree of care possible.

The plaintiff either fell between the rails and lay there struggling to arise in plain view of the motorman when the car was at least seventy-five or a hundred feet away, or else he ran from the south side of the street and against the southwest corner of the car sq suddenly that the motorman although he was looking in that direction did not see him at all. Between these two conflicting and utterly irreconcilable alleged conditions, what possible effect could it have on the verdict of the jury to instruct them on the degree of care the law required of the motorman? If the one story is true there was not the slightest imaginable degree of care shown, and if the other is true the exercise of the highest degree of care would not have averted the accident.

There was no error affecting the merits of the case to the injury of defendant in the modification in these instructions.

III. The defendant asked but the court refused this instruction: “If the jury find from the evidence that the plaintiff was not upon the track upon which the car was moving, but ran into the side or corner of the car, and was struck by the comer of the car and not by the fender, and that the plaintiff was of such age, judgment and discretion as to know and appreciate the danger of being so near the track as to be struck by a passing car, then it was the plaintiff’s duty to keep a careful lookout for the approaching car, and keep far enough away from the track to avoid coming in collision with the car, and if the jury further find that the plaintiff could, by looking out for the approaching car, have seen the same coming in time to have kept far enough away from the track to avoid collision, then the plaintiff cannot recover in this action, and your verdict must be for defendant.”

Analyzed, the instruction means that if the plaintiff was old enough to appreciate the danger of running in front of a car, it was his duty to keep a careful lookout and keep far enough away to avoid such collision, and that if by looking he could have seen the car but failed to look and ran into the side or corner of it, the verdict should be for the defendant.

That instruction leaves out of view the duty of the motorman in the emergency entirely. According to the doctrine there declared, if the boy neglected to use his eyes and ran into danger, the motorman was under no obligation to try to avert the catastrophe, and was not blameworthy either whether by failing to look he did not see the danger, or seeing it he made no effort to avert it. That is not the law.

The court would have been justified in refusing this instruction on the ground also that there was no substantial evidence to sustain it. In their brief the learned counsel for appellant say that the evidence shows that the plaintiff ran safely across the track, then discovered his danger from the runaway horse and ran back into or against the car. There is no one witness who tells that story, nor can that theory be built up by adding the testimony of the witnesses together.

The motorman said that he was looking straight ahead from the time he left the Salena street crossing, that he saw the women in the wagon and the horses apparently beyond control, they were three or four car lengths ahead of him when they attracted his attention, he rang his gong violently fearing they might run. into him, he saw no boy at all but he heard the women in the wagon and the women passengers in the car screaming, he saw something run against the side of his car, what it was he did not know, and he saw that something was wrong, and therefore he stopped the car in about one car’s length. If that testimony is true how was it possible for the boy to have first passed over the track in safety and then run back, thus passing to and fro across the direct line of the motorman’s vision, while the motorman though looking ahead all the while did not see him at all? He saw the women and the horses plain enough and had no difficulty in making out what they were and he said he saw something strike his car but whether it was a boy or something else he had no idea.

The only witnesses for defendant who professed to have seen this child and the horse and the wagon at the same time were two young women passengers, much of whose inaccuracy of detail might with credit to them be attributed to the excitement of the catastrophe. One of these thought she saw a boy run like a flash across the front of the fast coming horse, but he passed out of her view before he reached the car; her testimony gives the impression that the boy was aiming to cross the street from the south to the north side, it gives no basis for the conclusion that he had passed over the track from the north side and retreated from the horse. The other one said that when the noise attracted her attention she looked up from a book she was reading and saw the wagon coming and at the same time saw the boy standing on the side of the track. Thus in the same moment of time one saw him running, one saw him standing, while the motorman who was in a better position to see than either of them did not see him at all and the man standing by the side of the motorman did not see him. The other witnesses saw only one horse, while the motorman saw two horses in the wagon.

The only witness for defendant who' professed to have seen the car strike the boy said that there was no horse or wagon there at all when the collision occurred; that when he heard women screaming he looked and saw a little boy knocked down by the car; the child tried to get up and as he was rising the car knocked him down again. We never heard of a ear behaving in that way before.

There is no use to dwell upon the contradictions of these witnesses for defendant, we have only referred to their testimony to show that not one tells the whole story and the several stories cannot be put together to make out the hypothesis propounded in this instruction.

We find no reversible error in the record. The judgment is affirmed.

All concur, except Marshall, J., not sitting.


author: MARSHALL, J.

text:
    WIDMAN INVESTMENT COMPANY, Appellant, v. CITY OF ST. JOSEPH.
    Division One,
    November 22, 1905.
    1. GRADING STREET: Damage to Abutting Property: Special Benefits. In a suit by the owner for damages to land abutting on a street, caused by changing tbe grade thereof, whether the change be from the natural to an artificial grade or from one artifical grade to another, the measure of his damages is the difference in value of the property before and after the change of grade, less any special benefit not common to all property in the neighborhood, caused by such change of grade or improvement; and this is the rule whether the cost of the improvement be paid by the city or taxed as benefit assessments against the abutting property; and, hence, in such case it is proper to instruct the jury not to consider the fact that the cost of the improvement was taxed against the abutting property.
    2. -: Lowering tjracie: Damage: Question For Jury. There is no standard measure of damages by which it can be determined that the lowering of the grade of a street in front of property from three to nine feet damages the property. The question must be left to the sound discretion of the jury.
    3. -: -: Verdict: Passion and Prejudice. Plaintiff’s land prior to the establishment of the grade was in its natural condition and on that side of the eighty-foot street was even with the grade. The center of the street was allowed to remain substantially on its natural grade, and the street on plaintiff’s side was graded down from three to nine feet and the earth taken therefrom was placed on the opposite side, thereby making the street level. Twelve expert real estate men testified that plaintiff’s property was damaged from $5 to $12.50 per foot in consequence of lowering the grade in front thereof, and two of plaintiff’s officers testified that the property had been selling at $25 a foot before the change, and after the change no offers were made for it exceeding $17 or $18. Only one witness, a banker, who loaned money on real estate, testified that the property was worth as much after the change as before. Held, that a verdict for defendant cannot be said to be so clearly the result of passion or prejudice on the part of the jury as to authorize the appellate court to set it aside.

      4. VERDICT: Twelve Witnesses Against One: Expert Opinion: Passion or Prejudice. The fact that twelve expert witnesses gave their opinion one way and one expert witness gave his opinion to the contrary, and the jury chose to believe and accept the testimony of the one, does not establish the fact that the verdict was the result of passion or prejudice. Mere numbers do not constitute the weight of the testimony, and at best the opinions of experts is advisory and not binding upon the jury. So long as there is substantial evidence to support the verdict, it is the province of the jury to believe it.
    Appeal from Buchanan Circuit Court. — Eon. A. M. Woodson, Judge.
    Affirmed.

      Culver & Phillip for appellant.
    (1) It is unquestionably true that a city is liable under the Constitution for damages to a property-owner caused by grading a street. Smith v. St. Joseph, 122-Mo. 643. It is equally true that where the property-owner is not required to pay the cost of the grading, the measure of damages is the difference between the market value of the property immediately before and immediately after the grading, resulting from the change of grade; and that.the jury, in order to determine the damages, must deduct the special benefits to the property resulting from the grading of the street. Hickman v. Kansas City, 1201 Mo*. 110. But it is also true that the special benefits resulting from the grading cannot be offset against the damages where the property-owner pays for the grading, unless the cost of the grading is deducted from the amount of special benefits. City of Bloomington v. Pollock, 31 N. E. 146. The case just cited is squarely in point and so clearly states the proposition that argument is unnecessary. It is dear, therefore, that the .trial court erred in instructing the jury that it should offset against the damages the amount of the special benefits accruing to plaintiff’s property as a result of the grading; but that the cost of the grading which plaintiff paid should not be considered. If the defendant wanted the jury to offset damages by the special benefits, then it should have asked the jury to give plaintiff credit for what those special benefits cost it. If the defendant was not willing the plaintiff should have credit for what the special benefits cost it, then it had no right to have the jury deduct these benefits from the damages sustained. In other words, it was error to tell the jury to consider the special benefits without telling them to consider their cost to plaintiff. (2) The court erred in refusing plaintiff’s instruction B. It is not essential to plaintiff’s right to recover that the grade of the street be changed its entire width. If the grade of the east half was changed and damage resulted plaintiff was entitled to compensation, though the grade of the west half was not materially changed. Stickford v. St. Louis, 7 Mo. App. 217; Stickford v. St. Louis, 75' Mo. 309. (3) The verdict in this case is clearly the result of passion and prejudice on the part of the jury.

      William B. Norris and Edwin M. Spencer for respondent.
    (1) If appellant’s criticism upon the two instructions he correct, and the law is as he contends for, still there was no error in the court’s giving the instructions as they were given, for the reason that appellant failed to introduce any evidence tending to show the amount of the special taxbill issued against his property for the grading of King Hill avenue, or that appellant had paid, or would he required to pay the same. The court could not have told the jury that they must deduct, from the special benefits .resulting from the grading of the street, the cost of the grading to appellant, when there was no evidence to show that the appellant did pay anything for grading of said street. So, it is therefore self-evident that appellant cannot complain of instructions 2 and 6, for his record is not in such a condition as to raise the question presented by him in his brief. However, the doctrine contended for by appellant is not the law of this State. Hickman v. Kansas City, 120 Mo. 123. The rule in this State for the taking of property has always been the difference in market value immediately before and immediately after the taking, and so the rule has always been held to apply to the damaging of property. (2) The jury heard the evidence and saw the witnesses and were familiar with the conditions that surrounded the trial of this case. They accepted by their verdict the defendant’s contention and found a verdict for the defendant city. The trial judge adopted their view and refused to set aside the verdict on the ground that it was against the evidence and the weight of the evidence. From an examination of the evidence, it will be seen that tbe question whether plaintiff’s property was damaged or benefited by the grading of King Hill avenue, was a debatable one. Under the circumstances, it has been the universal practice of this court to refuse to interfere with the verdict of a jury.
   MARSHALL, J.

This is an action for $6,000 damages for change of grade of King Hill avenue, a public highway in the defendant city. There was a verdict and judgment for the defendant, and after proper steps the plaintiff appealed.

The facts in judgment are these:

The plaintiff owns seventeen lots abutting King Hill avenue on the east, and having a frontage of four hundred feet by a depth of one hundred and ten feet. Under ordinance No. 3194, approved September 16th, 1901, the city caused King Hill avenue to be graded to a grade established by the ordinance. Prior to that time the street had never been graded or improved and the land covered by the street was in its natural condition. The lay of the land was naturally higher on the east than it was on the west side of the street, and plaintiff’s land, prior to the establishment of the grade by the ordinance aforesaid, was substantially even with the grade on the east side of the street. Under the grade established by the ordinance the center of the street, which was eighty feet wide, was allowed to remain substantially on its natural grade. The east half of the street was graded down, and the earth taken therefrom was placed on the west half of the street, thereby making the street level. The effect of the grading on the east half of the street was to excavate the earth from zero at the center of the street eastwardly to the street line, at which there was a cut varying from three to eight and a half feet. This left the plaintiff’s property that much above the grade of the street, and it is to recover damages therefor that this action is prosecuted.

At the outset it was admitted that the ordinance authorizing the grading of the street provided that the cost of the grading should be assessed against the abutting property and special taxbills should be issued therefor; but no such special taxbills were introduced in evidence, nor did it appear that the plaintiff had paid anything on account of the cost thereof, nor what the cost thereof to the plaintiff’s property amounted to.

The plaintiff called twelve witnesses, who were engaged in the business of dealing in real estate in St. Joseph, who testified that the damages to the property would amount to from five to twelve dollars and fifty cents per front foot, though their testimony was modified to some extent on cross-examination. There was testimony adduced on behalf of the plaintiff, that it would cost thirty cents per yard to do the grading, but there was no testimony adduced showing how many yards of grading was done. Two of the officers of the plaintiff company testified that before the grading was done the property was actually selling at $25 per foot, and that after the grading the most they were offered was $17 to $18 per foot. On behalf of the defendant one witness, a banker, testified that the plaintiff’s property was vacant property, and that before the grading was done it was worth $10 a foot, and after the grading was done it was worth the same amount, that is, that was the loan value of the property, the amount for which a loan upon the same could have been obtained, the market value was about $13 a front foot before as well as after the grading was done.

At the request of the plaintiff the court instructed the jury as follows:

“1. The court instructs the jury that the natural surface of a street or highway of this city is the legal grade thereof until it is changed by ordinance. And the city had no right without the consent of the owner of the abutting property to change the grade of the street from the natural surface thereof if such change damages or injures the abutting property as hereinafter defined without paying or tendering the owner of such abutting property, the damages occasioned by such change of grade.

“2. You are instructed that in considering whether or not any special benefits were conferred upon plaintiff’s property you cannot take into consideration such benefits, if any, as were conferred upon property generally in the locality of the grading or elsewhere by reason of the fact, if it be a fact, that after said grading King Hill avenue was a better street for travel generally by the public.

“4. If you find for plaintiff, the measure of damages in this case is the difference, if any, in the market value of the property owned by plaintiff and mentioned in evidence immediately before said grading was done and immediately after it was finished, as caused by the grading done in front of and abutting said property.”

Of its own motion the court instructed the jury as follows:

“2. It is admitted in this case that the plaintiff, Widman Investment Company, was the owner of the property mentioned in evidence at the time King Hill avenue was graded in 1901, and that said property fronts and abuts on said avenue; and it is further admitted that the defendant city caused said King Hill avenue where said property fronts and abuts the same, to be graded to its full width, and that no damages done on account of such grading was assessed, paid or tendered plaintiff.

“If, therefore, the jury find and believe from the evidence that at the time King Hill avenue was graded by the city of St. Joseph in front of and abutting the property of plaintiff, the surface of such street, or any portion thereof, as it existed just prior to said grading, was lowered, and that in consequence thereof said property of plaintiff was left above the surface of said street after it was graded, and that the access to said property from said avenue was thereby destroyed or rendered difficult, and that said property was thereby damaged and that the special benefits, if any, conferred upon said property by reason of the grading of said avenue, were less than the damages, if any done said property, then you will find for the plaintiff."

At the request of the defendant the court gave eight instructions, but only the second and sixth are assigned as error, and they are as follows:

“2. If the jury believe from the evidence that the property of the plaintiff was in any manner specially benefited by the grading of King Hill avenue adjoining the same, and that the amount of said special benefits is equal to or greater than the damages, if any, done to said property by reason of said grading, then the plaintiff cannot recover and your verdict should be for the defendant.

“6. The jury are instructed that in weighing the evidence in this case and making up, their verdict they should not give any consideration whatever to the fact that the cost of' improving King Hill avenue was charged as a special tax against the adjoining property. The law assesses such cost against the adjoining property and the city is in no event liable to pay such tax and the owner of the land so assessed is not entitled under the law to recover the same from the city either directly or indirectly.”

The plaintiff seeks to reverse the judgment on two grounds, to-wit: first, that the trial court erred in giving defendant’s instructions numbered 2 and 6, and in refusing plaintiff’s instruction B; and second, that the verdict is against all the evidence and is clearly the result of passion and prejudice on the part of the jury.

I.

The first error assigned by the plaintiff is the giving of instructions numbered 2 and 6 for defendant. Those instructions are as follows:

“2. If the jury believe from the evidence that the property of the plaintiff was in any manner specially benefited by the grading of King Hill avenue adjoining the same, and that the amount of said special benefits is equal to or greater than the damages, if any, done to said property by reason of said grading, then the plaintiff cannot recover and your verdict should be for the defendant.

“6. The jury are instructed that in weighing the evidence in this case and making up their verdict they should not give any consideration whatever to the fact that the cost of improving King Hill avenue was charged as a special tax against the adjoining property. The law assesses such cost against the adjoining property and the city is in no event liable to pay such tax and the owner of the land so assessed is not entitled under the law to recover the same from the city either directly or indirectly.”

Since the clear and exhaustive opinion by Brace, J., speaking for this court, in Banc, in Hickman v. Kansas City, 120 Mo. 110, it has heretofore been considered that all questions relating to the liability of a city for the change of grade of a street, whether from the natural to an artificial grade or from one artificial grade to another, had been set at rest; but plaintiff now claims that the decision in that case, and the decision of Division Number 2 of this court in Smith v. St. Joseph, 122 Mo. 643, did not consider or take into account the consideration of whether the abutting owner was chargeable with the cost of the grading of the street, and whilst conceding that where the cost of grading is paid by the city, the measure of damages announced in those eases is the correct rule, claims here that where the cost of grading is assessed against the abutting property as a special tax, a different condition is presented, which was not considered or passed upon in those cases, and that instructions numbered 2 and 6, given for the defendant in this case, are based upon the rules announced in the Hickman and Smith cases, and are erroneous as applied to the case at bar. The plaintiff concedes that the ordinary rule is that the measure of damages where private property is damaged by public improvement, such as the establishment of a grade of a street by changing the natural grade to an artificial grade, is the difference in value of the property before and after the change of grade, less any special benefit not common to all the property in the neighborhood, caused by such change of grade or improvement. But the plaintiff contends that in ascertaining that amount, in cases where the cost of grading is assessable against the abutting property, such cost should be deducted from the special benefit aforesaid. In other words, appellant claims that it is the net benefit, as it terms it, which must be deducted from the damages, and argues that without this it would force the abutting owner to make a double payment. That is, the benefit accruing to the abutting owner specially would be deducted from the damages done by the improvement, and thereby the abutting owner would pay once for the benefits arising from the grading, and when he paid the special tax for the grading he would thereby pay a second time for the same benefit. In support of this contention plaintiff relies upon the cases of City of Bloomington v. Pollock, 31 N. E. 146, and Carroll v. City of Marshall, 99 Mo. App. 464. On the other hand, it is conceded that under the charter and ordinance of the defendant city, the cost of grading the street may be assessed as a special tax against the abutting property, and, as instruction No. 6 given for the defendant points out, the city cannot be made liable therefor either directly or indirectly, and that to allow such costs to he deducted from the special benefits before the special benefits are deducted from the damages, would in effect make the city pay the cost of the grading instead of requiring the abutting owner to do so as the law provides.

Instruction number 2 given for the defendant follows accurately the measure of damages announced in instruction number 5 given in Smith v. St. Joseph, 122 Mo. l. c. 647, and is in strict harmony with the law as to the measure of damages in such cases promulgated by this court in Hickman v. Kansas City, 120 Mo. l. c. 121, where the whole subject was exhaustively discussed and the conclusion reached that, whilst a different rule obtains in other jurisdictions, the law had long been settled in this State that in such cases the measure of damages is the difference in value of the abutting property before and after the change of grade. It is not easy to express in language the exact line of demarcation between the rule laid down in those cases and the contention of the appellant in this case. The major premise of the syllogism is the right of the abutting owner to be compensated in damages for injuries to his property caused by a change of grade of a street. The minor premise is, that in ascertaining the amount of damages, the special benefits conferred on the abutting property by the change of grade must be deducted from the damages. The conclusion is the difference between the two. Now on behalf of the plaintiff the contention is that the sole basis for assessing the cost of improving a street against the abutting property, is that the abutting property has received a benefit commensurate with the special assessment, and if that amount is deducted from the damages, caused by a change of grade, in the first instance, and the abutting owner has to pay the special tax bill thereafter, or has already paid it, it will amount to a double payment for the same special benefit; but on the other hand it is claimed that if the cost of making the improvement must be paid by the abutting owner and cannot be charged against the city, then by allowing that cost to be deducted from the special benefits accruing to the property from a change of grade, and those benefits are deducted from the damages caused by the change of grade and sought to be recovered in an action of this character, then the effect would be to make the city pay indirectly for the cost of improving the street, which under the law, is properly assessable to the abutting property. If the cost of grading is properly a part of the special benefits to be deducted from the damages, then it follows' that in cases where the cost of grading is assessable against the abutting property that amount should be deducted from the special benefits before the special benefits are deducted from the damages. Otherwise, the abutting owner would pay twice for the same benefit. On the other hand, if the cost of grading is not properly included in the special benefits to be deducted from the damages, and such cost is deducted from the special benefits, the effect will be to make the city pay for the cost of grading, when under the law that cost cannot be charged to the city, but must be borne by the abutting owner. And likewise where the cost of the grading is payable by the city and not by the property owner, if the special benefits spoken of in the cases aforesaid include such cost, and those special benefits are deducted from the damages, the effect necessarily is to make the property-owner pay for the cost of grading where the city is liable therefor.

These considerations necessarily and logically lead to the conclusion that the cost of grading is not included in the special benefits accruing from a change of grade which must be deducted from the damages in actions under the Constitution of 1875, predicated upon section 21 of article 2 of the Constitution. The special benefits there spoken of do not mean the cost of grading, curbing, macadamizing or improving the surface of the roadway. For there is no difference in principle between grading and curbing, macadamizing and improving tbe surface of tbe roadway. To adopt the contention of the plaintiff would be equivalent to making the city pay for all such improvements of the streets by having them deducted from the special benefits before the special benefits are deducted from the damages; and thus relieve the property-owner from the burden of the cost of improving the streets, when by law he was chargeable therewith; or else would make the city liable therefor when by law it was not chargeable therewith. The conclusion is inevitable that such matters should not be taken into account at all in determining the damages to the property caused by the change of grade, and that they are not properly included in the meaning of special benefits as employed in such proceedings, but that the special benefits spoken of in such cases mean something other than the improvement of the street after the grade is established. This is the only practical and logical view to take of the matter, and this is the view the circuit court took of this case, and its ruling in that respect was correct.

Speaking for myself alone, I can conceive of no special benefit that can accrue to abutting property by the change of grade of the street, whether from its natural grade to an artificial grade or from one artificial grade to another, except in cases where the abutting property is higher than the grade and the change of grade consists in raising the grade of the street so as to bring it nearer to the level of the abutting propery, or where the abutting property is below the natural or artificial grade and the grade of the street is lowered so as to bring the property nearer to the grade of the street. Of course it could not be successfully claimed that the raising of the street above the grade of the abutting property would specially benefit the abutting property. On the contrary, it would necessarily damage it, for it would entail upon the owner of the abutting property the necessity of raising the grade of his property so as to bring it to tbe level of the grade so changed or established of the street. Where the grade of the street is above the grade of the abutting property, and the grade of the street is lowered, of course the abutting property is benefited pro tanto, for it will save the expense of filling up by as much as the grade of the street is lowered.

In my judgment these are the full amounts of special benefits which should be considered in determining the amount of damages caused by a change of grade, and in such instances the benefits would necessarily exceed the damages, and hence the abutting owner would not be entitled to recover anything. This view to my mind relieves the situation of all embarrassment, and leaves the question of the amount of damages done by the change of grade, totally distinct and separate from the question of who should pay the cost of improving the surface of the roadway, and leaves the cost of such improvement to be borne by the city or the abutting owner as the law may prescribe.

n.

The second contention of the plaintiff is that the court erred in refusing its instruction B.

The gist of this instruction is that although the jury may believe from the evidence that the grade of the street at its center was not materially changed, still if they believe that the east half of the street immediately in front of the plaintiff’s premises was changed in grade, the plaintiff was entitled to recover.

There was no conflict in the evidence that the grading consisted in taking the earth from the east side of the street and putting it on the west side, leaving the center substantially as it was before. Necessarily whatever damage there was to the plaintiff’s premises consisted in lowering the grade in front of it. Instruction 2, given by the court of its own motion, fully instructed the jury that if the surface of the street or any portion thereof, as it existed just prior to the grading, was lowered, and that in consequence thereof plaintiff’s property was left above the surface of the street as graded, and that access to the property was thereby destroyed or rendered difficult, and if the property was thereby benefited and the special benefits were less than the damages, the jury should find for the plaintiff.

That instruction fully covered every principle that was involved in plaintiff’s instruction B that was refused by the court.

III.

The last point relied on by the plaintiff is that the verdict is dearly the result of passion and prejudice on the part of the jury. This contention is based upon the following considerations, to-wit: first, that the lowering of a street grade from three to nine feet in front of abutting property necessarily causes damages to the abutting property; second, that twelve expert real estate men testified that the plaintiff’s property was damaged from five to twelve dollars and fifty cents a foot in consequence of the change, and two of the officers of the company testified that the property had been selling at twenty-five dollars a foot before the change and after the change no offers were made for it exceeding seventeen or eighteen dollars a foot, and that only one witness, a banker, who loaned money on real estate, testified that the property was worth as much after the change of grade as it was before. Upon these predicates the plaintiff argues that a verdict in favor of the defendant necessarily shows on its face that it was the result of passion and prejudice on the part of the jury.

The deduction drawn is a non sequitur. The fact that twelve expert witnesses gave their opinion one way and only one expert witness gave his opinion to the contrary, and the jury accepted and chose to believe the testimony of the one as against the twelve, does not establish that the verdict was the result of passion and prejudice. It is the special province and privilege of the jury to weigh the evidence and to decide as they find the facts to be, and it matters not that one side produced many more witnesses than the other, for mere numbers do not constitute the weight of the testimony. At best the opinion of experts is merely advisory and not binding upon the jurors. Concededly there was substantial testimony to support the finding and in such cases the court does not interfere with the verdict even though it might have reached a different conclusion if it was the trier of the facts. [James v. Insurance Co., 148 Mo. 1.]

At first blush it might seem that lowering the grade of a street in front of property from three to nine feet would cause damage to the property, but whether or not property is damaged is a question of fact. The law affords no standard of measurement of damages in such cases whereby the damages can be ascertained according to a yardstick. Such matters are left to the sound judgment of the jury, and where there is substantial evidence to support the finding and the finding has been approved by the trial judge, this court never interferes. There is no further suggestion in this regard of passion or prejudice on the part of the jury, therefore this contention must be resolved against the appellant. Aside from these considerations it is largely a question of judgment and taste whether property is of more or less value when it is even with or above the grade of the adjoining street.

For these reasons the judgment of the circuit court is affirmed.

All concur, except so far as it is stated to be the individual opinion of the writer.


text:
    NORBORN A. MITCHELL v. JULIA H. MITCHELL et al., Appellants.
    Division One,
    November 22, 1905.
    1. APPELLATE PRACTICE: Defective Abstract: Examination of Transcript. The appellate court will not in an equity case look beyond the printed abstract to the full transcript to ascertain the true facts in judgment.
    2. -: -: Index. The abstract must contain an index.
    3. -: -: Affirmance of Judgment. Where no intelligent understanding of the case can be had or any intelligent discussion of the questions raised can be made, from the abstract filed in this court, the judgment will be affirmed, although from the meager evidence set out in what purports to be an abstract that judgment may appear to be wrong.
    Appeal from Oregon Circuit Court. — How. W. N. Evans, Judge.
    Affirmed.

      Wm. Wehrenbrecht for appellants.
   MARSHALL, J.

This is a bill in equity for the specific performance of an alleged contract to convey certain real estate amounting to eighty acres in Oregon county, Missouri. There was a decree for the plaintiff and the defendants appealed.

The abstract of the record prepared by appellants is so meager as to convey a very imperfect idea of either the pleadings or evidence upon which the trial court rendered judgment. The abstract shows on its face that it does not attempt to mate a fair statement of the evidence adduced, and in respect to matters essentially pertinent and material to the determination of the case, refers to the transcript without attempting in any manner to state even the substance of the mattears referred to. Letters which are said to have an important and decisive bearing upon the controversy are referred to, but not reproduced, abstracted or even their substance stated. If only the facts stated in the abstract of the record appeared to the trial court, it is inconceivable how any lawyer would have undertaken to maintain an action of this character based upon such facts, and it is likewise inconceivable how any court could have entered a decree in favor of the plaintiff upon such facts. The plaintiffs have filed no counter abstract, statement or brief, hence but two courses are open to this court, one, to affirm the judgment for failure to comply with the rules of the court and furnish the court with such an abstract as those rules require, and, the other, to undertake to review and pass upon the correctness of the judgment of the learned trial judge with only such an unsatisfactory and incomplete abstract of the record and showing of the facts in judgment, as is presented in this ease, for it is not the practice of this court to look beyond the abstract of the record to the full transcript to ascertain the true facts and thus make up an abstract of the record and a statement of the ease for itself.

The case is here upon what purports to be a complete transcript. In such cases rule 12 of this court requires the plaintiff to prepare, serve on the respondent, and file in this court an abstract of the record. Rule 13 requires that such an abstract "shall have a complete index at the end thereof, and shall set forth so much of the record as is necessary to a full and complete understanding of all the questions presented to this court for decision. “Where there is no question made over the pleadings, or over deeds or other documentary evidence, it shall be sufficient to set out the substance of such pleadings or documentary -evidence. The evidence of witnesses shall be stated in a narrative form except when the questions and answers are necessary to a complete understanding of the evidence,” etc.

In Garrett v. Mining Co., 111 Mo. 279, and in Murrell v. McGuigan, 148 Mo. 334, this court held that an index is as imperatively required under the rule as the abstract itself, and enforced the rule because] no index accompanied the abstract. The abstract of the record in this case contains no index whatever.

In Brand v. Cannon (118 Mo. l. c. 597), it was held that the onus of preparing a proper abstract was upon the appellant, and that the requirements of the rule were not satisfied by the filing of an insufficient or garbled abstract, and further that the appellant could not shift the burden upon the respondent to piece out an improper abstract by filing a counter abstract.

In Bradley v. Bradley, 119 Mo. 58, the rule was held to require the abstract to set out the entire evidence, questions and answers, of each witness, where there was a conflict in the testimony and where this court was asked to look into and determine the facts and to decide the case upon the questions of fact.

In Reed, Admr., v. Peck, 163 Mo. l. c. 336, it was said: “ ‘It will not do to allow plaintiff’s counsel to cull over the record and present such evidence as they may think pertinent and material; the entire evidence must be set out, so that this court may, for itself, determine its materiality and probative force.’ So in Davis v. Vories, 141 Mo. 234, it was held that this court will not pass upon the insufficiency of the evidence where it. is not fully set out in the record.” In Whitehead v. Railroad, 176 Mo. l. c. 479, it was said: “Moreover, it often happens that a fragment of testimony standing alone appears to be incompetent, or was erroneously excluded, but when viewed in the light of all the testimony and the rulings of the court it is entirely proper or at least harmless. We have been very conservative in the enforcement of these rules, but a number of cases will show that when the plaintiff disregards the rule to such an extent that his so-called abstract will necessitate the preparation of one by this court, or the burden and cost of so doing will be entailed on the respondent, we have enforced them by dismissing the appeal."

The same rule has been enforced and observed in Halstead v. Stone, 147 Mo. 649; McCullough v. Dewitt, 163 Mo. 306; Smith v. Baer, 166 Mo. l. c. 404; Western Storage Co. v. Glasner, 150 Mo. 427; Williams v. Stroub, 168 Mo. l. c. 355; and Vandeventer v. Gross, 190 Mo. 239.

As far as can be gleaned from tbe abstract of tbe record filed in this case, tbe petition charges that tbe plaintiff and one C. W. Mitchell entered into an oral agreement on tbe --- day of November, 1892, whereby C. W. Mitchell agreed to sell and convey to tbe plaintiff tbe land in suit, not describing it in any manner whatever, upon tbe following terms: “That if tbe plaintiff would move bis family to tbe premises known as tbe Boze Mill property, then belonging to tbe said C. W. Mitchell, and take charge of tbe same, together with all other property, and manage tbe affairs of said C. W. Mitchell in bis business, that be, tbe said C. W. Mitchell, would convey to him, tbe said plaintiff, tbe above described land. That plaintiff bas fully complied with all tbe terms, and in reliance upon tbe same, plaintiff built dwelling bouses, cleared and fenced lands, etc., all to tbe value of $750,. but that C. W. Mitchell neglected to convey.”

The prayer of the petition is that the contract be specifically enforced. The action is against Julia H. Mitchell, Henry C. Mitchell et al., and Henry C. Mitchell, administrator. C. W. Mitchell, with whom the contract is alleged to have been made, is not a party to this action, nor is there any averment in the petition, as stated in the abstract of the record, connecting the defendants in any manner with C. W. Mitchell, or explaining why these defendants, instead of the contracting parties, have been sued. The abstract then states that the defendants’ answer is a general denial.

Turning now to the abstract of the testimony it appears that the plaintiff and C. W. Mitchell were brothers and that certain of the witnesses were the widow and children of C. W. Mitchell. The abstract of the testimony adduced on the part of the plaintiff covers five pages, and consists of the testimony of James Jones, who was county assessor from 1896 to1900, and is to the effect that C. W. Mitchell told the assessor on one occasion during that period, to assess eighty acres to the plaintiff, saying he intended to make a deed for him therefor; that the assessor spoke to the"plaintiff about it on two occasions and both times the plaintiff refused to allow the land to be assessed to him. The abstract further contains what purports to be the testimony of one C. E. Austin to the effect that in September, 1900, he had a conversation with C. W. Mitchell in which the latter said he intended to make a deed to the plaintiff for eighty acres of land, and that he said he had not made a deed to the plaintiff because he was afraid he would sell the land and move off. Wade Heiskel said he had talked with C. W. Mitchell several times, but could not remember the time or place of the conversation, and that said C. W. Mitchell said he desired to make a deed to the plaintiff and that he, the witness, got an idea that C. W. Mitchell was going to make him a deed, and the reason he did not make the deed at that time was that he was afraid the plaintiff would move off and sell the land, and he wanted the plaintiff to stay there and have a home for his family. The witness had been employed by C. W. Mitchell to make a survey of all of his land, including the eighty acres, but no separate survey of the eighty acres was ordered or made.

T. S. Coleman testified that C. W. Mitchell told him to pick out a dwelling site on the eighty acres that would be a healthy location; that he wanted to give the plaintiff a healthy location, as the plaintiff was not used to the country; that C. W. Mitchell told him he had agreed to let plaintiff have eighty acres.

Bailer Mitchell, a son of the plaintiff, testified that he had a conversation with O. W. Mitchell, his nncle, in which he asked him how “we was to pay for the land and he said we was to work and clear the land down to the river to pay for it. We was to work and go halves on stock and he to furnish the feed." But when asked what G. W. Mitchell said were the terras of the contract between him and the plaintiff the witness answered : “I never asked him about that.” The witness further testified that part of the time his father got half of the proceeds of the cattle.

This is the substance of the testimony adduced on the part of the plaintiff as shown by the abstract of the record. The abstract of the record contains four and one-half pages of testimony said to have been introduced by the defendants, and is to the effect that C. W. Mitchell owned land in Oregon county, the extent thereof is not stated, which included eighty acres not described; that at some time, not stated, C. W. Mitchell placed the plaintiff in charge of the land, left with him four horses, two mules, some cattle and seventy-five or a hundred head of hogs, and that the plaintiff was to manage the place and receive half of the net increase of the cattle, and perhaps one half of the profits arising from the cultivation of the land; that for the year ending December 31, 1902, the plaintiff paid Henry C. Mitchell, a son of C. W. Mitchell, the sum of $65 as rent for all the land owned by C. W. Mitchell, in section 9, which included the land in controversy.

The abstract of the record further contains a quotation from a letter dated March 2, 1896, from the plaintiff, presumably to C. W. Mitchell, although it is not stated to whom the letter was addressed, which excerpt proposes to do certain clearing for $6.50 an acre, haul the logs to the mill, put in posts and build fences and let it all go to pay for the eighty acres the plaintiff was living on, so as to get a home for the plaintiff. The abstract of the record refers to letters marked exhibits C and D, said to be contained in the transcript, but no statement is made in the abstract as to who wrote the letters or to whom they were sent.

This is the substance of the abstract of the record, and it is manifest that upon such a showing it is impossible for this court to intelligently review the action of the trial court. There is no statement in the abstract of the record that any bill of exceptions was ever filed in the cause. If full force be given to all that is said in the petition and the evidence adduced for the plaintiff as set forth in the abstract of the record, it is clear that under the rules laid down by this court in Goodin v. Goodin, 172 Mo. 40, and Gibbs v. Whitwell, 164 Mo. 387, and the cases cited in those decisions, no case entitling the plaintiff to specific performance has been made out.

But the plaintiff has secured judgment in his favor in the circuit court, and all reasonable presumptions must be indulged as to the correctness of that judgment. The burden is upon the defendants to show to this court, in the manner pointed out by law and the rules of this court, that the judgment complained of is not a righteous judgment. Upon such an abstract of the record as has been filed in this case no intelligent discussion of the question can be had by this court. If the judgment of the circuit court is wrong the defendants have failed to demonstrate it to this court or to put this court in a position where it can mate that fact apparent. Under the circumstances this court must defer to the finding of the chancellor.

The judgment of the circuit court is therefore affirmed.

All concur.


text:
    THE STATE ex rel. PATRICK J. TAAFFE, Administrator, Appellant, v. ELIZABETH GOGGIN.
    Division One,
    November 22, 1905.
    1. JUDGMENT OF PROBATE COURT: Conclusiveness Against Sureties: Suit in Equity. A judgment of the probate court on final settlement against the administrator, finding him to be indebted to the estate in a certain sum, is not binding upon! the administrator’s surety who died after the administration was begun and before the judgment was rendered — no effort having been made before final settlement to have an administrator appointed for the deceased surety’s estate.
    2. -: -: -: Fraudulent 'Conveyances. Where defendant’s grantor became a surety on an administrator’s bond andi subsequently made a voluntary conveyance of his real estate to his wife, and then died, and the probate court, finding no personal property belonging to his estate, ordered that no administration thereon be had, and subsequently on final settlement a judgment was rendered against the administrator for whom he was surety, and execution issued and was returned nulla J>ona, no effort having been made to have an administrator appointed to represent the surety’s estate, that judgment was not conclusive against the surety’s estate, nor can the judgment creditor therein show himself to be a creditor of the surety’s estate by merely showing a final unpaid judgment against his principal, and hence such judgment creditor cannot maintain a suit in equity to have the conveyance to the wife set aside as being fraudulent as to the surety’s creditors.
    Appeal from St. Louis City Circuit Court. — Hon. Warwick Hough, Judge.
    Affirmed.

      J ames P. Maginn for appellant.
    (1) A non-judgment creditor may proceed in equity if it be impossible for him to obtain a judgment at law. Nieters v. Brockman, 11 Mo. App. 600'; Kent v. Curtis, 4 Mo. App. 121; Lackland v. Smith, 5 Mo. App. 161; Dodd, Brown v. Levy, 10 Mo. App. 122; Pendleton v. Perkins, 49 Mo. 565; O ’Brien v. Coulter, 2 Black 421; Miller v. Davidson, 3 Gilm, 523; Smith v. Shepard, 2 Hay 163; Sharp v. Feltz’s Admr., 6 B. Mon. 16; Watts v. Gayle, 20 Ala. 823; Steere v. Hoagland, 39 Ill. 264; Unknown Heirs v. Kimball, 4 Ind. 546. (2) The judgment of the probate court, on the final settlement of Gay, surviving partner, was conclusive as to the liability of his sureties, and as to the amount of their liability. State ex rel. v. Donegan, 12 Mo. App. 198; McCarty v. Garneau, 4 Mo. App. 566; State ex rel. v. Bilby, 50 Mo. App. 168; State v. Holt, 27 Mo. 340; State ex rel. v. Cruesbauer, 68 Mo. 254; State ex rel. v. Eucker, 59 Mo. 17; Dix v. Morris, 66 Mo. 514. (3) The conveyances of John Goggin for nominal consideration through McCann & Brown, as conduits, to himself and wife,, as tenants by the entirety of all his property were, as against the plaintiff, a creditor, void. Shanklin v. McCracken, 151 Mo. 587; Lander v. Ziehr, 150 Mo. 403; Hoffman v. Nolte, 127 Mo. 120; Crook v. Tull, 111 Mo. 289; Loehr v. Murphy, 45 Mo. App. 524; Sloan v. Terry, 78 Mo. 625 ; Jordan v. Buschmyer, 97 Mo. 94; Patton v. Bragg, 113 Mo. 595; Snyder v. Free, 114 Mo. 360'; Patten v. Carey, 57 Mo. 118; Holloway v. Holloway, 103 Mo. 274; Potter v. McDowell, 31 Mo. 62. (4) Plaintiff is an existing creditor within the statute against fraudulent conveyances. Bump on Fraudulent Conveyances (4 Ed.), secs. 501-2 and 3; May, Fraudulent Conveyances, star page 57; In re Eidler, 22 Chan. Div. L. E. 80; Frees v. Baker, 81 Tex. 221; Van Wyck v. Seaward, 18 Wend. 382; Howe v. Ward, 4 Me. 195.

      William P. Sheridan for respondent.
    (1) A surety on an official bond is not a debtor before suit is brought and liability established thereon. State éx rel. v. Gambs, 68 Mo. 289. (2) Equity relieves only judgment creditors to set aside fraudulent conveyances, which hinder and delay the collection of their claims. Jacobs v. Smith, 89' Mo. 673; Wilson v. Hart, 98 Mo. 618; Mullen v. Hewett, 103 Mo. 639; Rey burn v. Mitchell, 106 Mo. 365; Clark v. Bank, 57 Mo. App. 277; Clark v. Laird, 60 Mo. App. 289; Crim v. Walker, 79 Mo. 335; Dodd, Brown v. Levy, 10 Mo. App. 121. Where the demand is legal, the complainant must ob-' tain a judgment at law before filing his bill. Kent v. Curtis, 4 Mo. App. 12T; Spitz, etc., v. Kerfoot, 42 Mo. App. 77; Crim v. Walker, 79' Mo. 335>. This rule prevails even though debtor be insolvent. Kent v. Curtis, 4 Mo. App. 124; Kankakee Woolen M. Co. v. Kampe, 38 Mo. App. 234. The only exception recognized by decisions of our courts is where the fund sought to be subjected to creditor is a trust fund, or, a court of equity has some original equitable jurisdiction. Kankakee Woolen M. Co. v. Kampe, supra. (3) In some instances stress is laid upon the fact that by statute the exhaustion of all legal remedies is a prerequisite. Kankakee Woolen M. Co. v. Kampe, 38 Mo. App. 2291. (4) An insolvent may make a voluntary transfer to his wife, which will be good as against subsequent creditors, unless it be made with the intent to hinder or delay them. Bank v. Overall, 16 Mo. App. 510; Loehr v. Murphy, 45 Mo. App. 519; Bank v. Overall, 90 Mo. 410. Actual fraud, or fraud in fact, must be proved in order to set aside a prior voluntary conveyance at a suit of subsequent creditor. Bayha v. Kessler, 791 Mo. 560.
   VALLIANT, J.

Suit in equity to set aside a deed by John Goggin, since deceased, to the defendant, his wife, on the ground that it was made to defraud creditors.

The case may be stated as follows.:

Peter Taaffe and Thomas E. Gay were partners in trade; the co-partnership was dissolved in 1891 by the death of Peter Taaffe; Gay qualified as administrator of the partnership estate and gave bond in the penalty of $5,000, with William P. Hourigan and John Goggin as sureties; the plaintiff qualified as administrator of the estate of Peter Taaffe. Pending the administration of the partnership estate, John Goggin, being then the owner of three lots of city real estate, made a deed conveying them without consideration to a friend who at once reconveyed them to Goggin and his wife as an estate of entirety. Goggin died in 1895, leaving but little personal property and no real estate, if the deeds in question are valid. In 1898 a final settlement of the partnership estate was decreed in the probate court, in which it was adjudged that Gay, the surviving partner as administrator, pay to the plaintiff as administrator of the estate of the deceased partner the sum of $10,390.62; execution issued on the judgment against Gay and was returned nulla bona and the judgment remains in full force and entirely unsatisfied.

The evidence of the defendant tended to prove that part of the real estate in question was the homestead, within the limits of the law, of John Goggin at the time the conveyances mentioned were executed, and that the reason for his executing the deeds was that he was about to undergo a surgical operation of a dangerous character and was advised that he might not survive it, and his motive was tó put the title to the property in his wife to avoid the trouble and expense of administration. The probate court, finding that there was no personal property more than the law gave the widow, ordered that there be no administration on the estate of John Goggin.

On that state of facts the circuit court rendered a decree in favor of the defendant and the plaintiff appealed.

On the part of respondent it is contended that since the judgment against Gay in the probate court was not rendered until six years after the conveyances complained of and more than three years after the death of Goggin he was not a debtor when he made the conveyances (citing State ex rel. v. Gambs, 68 Mo. 289), and was free to make deeds of gift, in the absence of proof of a fraudulent intent, citing Boatmen’s Bank v. Overall, 90 Mo. 410. And it is also contended that a suit in equity of this kind cannot be maintained until the plaintiff has obtained a judgment against the alleged debtor and exhausted his legal remedy.

On the other hand it is contended by appellant that the judgment in the probate court is conclusive against the surety, citing McCartney v. Garneau, 4 Mo. App. 566; State ex rel. v. Donegan, 12 Mo. App. 198; State ex rel. v. Bilby, 50 Mo. App. 168; State to use v. Holt, 27 Mo. 340; State ex rel. v. Cruesbauer, 68 Mo. 254; State ex rel. v. Rucker, 59 Mo. 17; Dix v. Morris, 66 Mo. 514. And appellant contends also that his case falls within the exception to the rule that equity in such case requires a party to first exhaust his legal remedy, that is, that equity never requires a vain act to be done, and therefore when it appears that to sue at law would be impossible or unavailing, it will not be required, citing Kent v. Curtis, 4 Mo. App. 121; Nieters v. Brockman, 11 Mo. App. 600; Lackland v. Smith, 5 Mo. App. l. c. 161; Dodd, Brown & Co. v. Levy, 10 Mo. App. l. c. 122; Pendleton v. Perkins, 49 Mo. 565.

The several propositions of law contended for by the learned counsel on each side are well established and it is only required to make the proper application of them to the facts of this case.

If the judgment in the probate court on the final settlement of the partnership estate was conclusive as to Goggin’s personal representatives, then the other facts in the case show that a suit at law to establish or collect the judgment against his estate would be a vain act. In such case, the administrator of the Goggin estate, if there should be one, could not dispute the judgment, and there being nothing of his estate except that covered by these deeds, there would be nothing to apply to the satisfaction of a judgment at law against the estate, nothing at least that a court of law could effectually reach. In that condition of affairs a suit at law would he hut an idle ceremony out of which nothing could be expected. Therefore, if the judgment of the probate court was conclusive as to the Goggin estate the plaintiff would not be denied the relief he seeks in a court of equity on the ground that he had not exhausted his legal remedy against that estate. But if that judgment was not binding on the Goggin estate, then it was not sufficient to establish the plaintiff as a creditor of the estate of such a character as to justify a court of equity in granting relief of the kind prayed.

We hold that under the facts in this case the judgment in the probate court on the final settlement of the administrator of the partnership estate was not binding on the estate of John Goggin, deceased.

Proceedings in the probate court are somewhat in the nature of proceedings in rem, and when the notices required by law have been given, all persons interested are chargeable with notice and have the right to be heard. The sureties on the administrator’s bond are interested in his final settlement and are entitled to be heard before a judgment, which is to be binding on them, is rendered, and have the right to appeal if they feel aggrieved. If they do not, after due notice of the purpose of the administrator to make final settlement has been given, appear in court, but let the judgment of final settlement go against their principal and take no part in the proceedings until the period for appeal has elapsed, they have no cause to complain, because they have neglected their opportunity and the judgment is conclusive on them. That is the theory of the cases above cited on this point. But in all those cases the sureties were living when the judgments against their principals were rendered and they were chargeable with constructive notice; here we have a case in which the surety was dead three years before tbe notice, if any, was given, or the judgment was rendered, and there was no administrator of his estate. If the plaintiff had so desired he conld have moved in the probate court, before the final settlement, and before he published notice of his purpose to make final settlement, to have an administrator appointed who could represent the surety’s estate and guard its interest. We cannot hold that a judgment rendered after the death of the surety, when there was no one to be affected by the notice, no one to represent his estate at the hearing in the probate court or to take an appeal if desired, is- conclusive on his estate.

Therefore, in this case it was not sufficient for the plaintiff in order to show himself a creditor of the Goggin estate to merely show the judgment of final settlement against the administrator; if he had otherwise an excuse for not suing at law he had no excuse for not attempting to establish his claim when he came into a court of equity by having an account taken.

We think the learned chancellor took the correct view of this case.

The judgment is affirmed.

All concur.