author: WOODSON, J.

text:
    WILLIAM STRAUCHON, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY.
    Division One,
    February 28, 1911.
    1. NEGLIGENCE: Demurrer to Evidence: Prima-Facie Case. A demurrer to the evidence admits as true every fact and inference that may reasonably he deduced therefrom; and if plaintiff makes out a prima-facie case, according to that rule, a demurrer to the evidence cannot he sustained.
    2. -: -: -: Crossing Track: Excessive Speed. Plaintiff was walking at the rate of three or four miles an hour, and when he was sixteen to eighteen feet from the track saw a car coming two hundred feet away, which he supposed was running at its usual speed. At the ordinance maximum rate of twenty miles an hour, it would have reached him in seven seconds, and at the rate he was walking he would have crossed the track and been eight feet beyond in seven seconds. When he reached the track the car struck and injured him. There was positive evidence that the car was running from thirty to forty miles an hour. Held, that plaintiff made out a prima-facie case, and it was error to sustain a demurrer to the evidence.
    3. -: Excessive Speed. To operate a street car in excess of the maximum rate permitted by ordinance is negligence per se.

    4. -: Contributory. If defendant is guilty of negligence and plaintiff is not, hut is injured as a result of defendant’s negligence, plaintiff is entitled to recover damages.

      5. -: -: Observing Speed of Car: Erroneous Judgment. A footman, who, in attempting to cross a street railway track, looks and see's, from a straight line or an acute angle, a car approaching two hundred feet away, is not chargeable with contributory negligence in supposing that, at the usual speed of cars on the track at the point, he will' have ample time to cross, and thereafter gives no further heed to its approach, if in fact it was running at an unusual speed, and in excess of the maximum ordinance rate, and there is substantial evidence to the effect that, had it been running at its usual and lawful rate, he could have crossed in safety. Mere errors of judgment, where ordinary care is used, are not generally set down as amounting to negligence. The traveler has the right to presume, under such circumstances, that the car is being run within the prescribed rate.
    Appeal from Jackson Circuit Court. — Hon. Thomas H. Reynolds, Special Judge.
    Reversed and remanded.

      Guthrie, Gamble S Street for appellant.
    (1) Tire demurrer admitted every fact favorable to tbe plaintiff which tbe jury could infer from tbe evidence. Marshall v. Scbricker, 63 Mo. 308; Mauerman v. Siemerts, 71 Mo. 101; Franke v. St. Louis, 110 Mo. 516; Patton v. Bragg, 113 Mo. 595; Berry v. Railroad, 124 Mo. 24.4; Bender v. Railroad, 137 Mo. 240; Deitring v. Railroad, 109 Mo. App. 541; Moore v. Railroad, 194 Mo. 9. (2) Defendant was negligent in running tbe car at a speed in excess of the ordinance limit. Duffy v. Railroad, 19 Mo. App. 380; Gratiot v. Railroad, 116 Mo. 450; Bluedorn v. Railroad, 121 Mo. 258; Hutchinson v. Railroad, 161 Mo. 246; Riska y. Depot Co., 180 Mo. 168; Epstein v. Railroad, 197 Mo. 720; Powers v. Railroad, 202 Mo. 267; King v. Railroad, 211 Mo. 1; Everett v. Railroad, 214 Mo. 55; McKenzie v. Railroad, 216 Mo. 1. (3) It was negligence for tbe motorman not to cheek tbe car or sound his gong when he saw plaintiff approaching tbe track with a demeanor indicating an intention to cross ahead 'of the car. Kolb v. Eailroad, 102 Mo. App. 143; Biska v. Eailroad, 180 Mo. 168; Deitring v. Eailroad, 109 Mo. App. 524; Heintz v. Eailroad, 115 Mo. App. 667; Zander v. Eailroad, 206 Mo. 445; Powers, v. Eailroad, 202 Mo. 267; Gront v. Eailroad, 125 Mo. App. 552; Waddell v. Eailroad, 213 Mo. 8; Felver v. Eailroad, 216 Mo. 195; Dahmer v. Eailroad, 136 Mo. App. 443. (4) Plaintiff, having looked at the car, was not necessarily negligent in failing to discern its excessive speed, for mere error of judgment is not negligence in law. Thompson on Neg., sec. 1669; White’s Supp. to Thomp. Neg., sec. 1669; Eswein v. Eailroad, 96 Mo. 290;- Kellny v. Eailroad, 101 Mo. 67; Gratiot v. Eailroad, 116 Mo. 450; Hutchinson v. Eailroad, 161 Mo. 246; Conrad Gro. Co. v. Eailroad, 89 Mo. App. 391; Eiska v. Depot Co., 180 Mo. 168; Deitring v. Eailroad, 109 Mo. App. 524; Heintz v. Eailroad, 115 Mo. App. 667; Powers v. Eailroad, 202 Mo. 267; Grout v. Eailroad, 125 Mo. App. 552. (5) Even if plaintiff was negligent, the motorman by reasonable care could and should have discovered his peril in time to avoid the injury. O’Keefe v. Eailroad, 81 Mo. App. 386; Morgan v. Eailroad, 159 Mo. 262; Hutchinson v. Eailroad, 88 Mo. App. 376; Fearons v. Eailroad, 180 Mo. 208; Moore v. Eailroad, 194 Mo. 1; Eppstein v. Eailroad, 197 Mo. 720; Powers v. Eailroad, 202 Mo. 271; Zander v. Eailroad, 206 Mo. 464; Waddell v. Eailroad, 213 Mo. 8; Everett v. Eailroad, 214 Mo. 55; Felver v. Eailroad, 216 Mo. 195; Dahmer v. Eailroad, 136 Mo. App. 443.

      John II. Lucas for respondent.
    (1) Earning v. Eailroad, 157 Mo. 508; Holland, v. Eailroad, 210 Mo. 350; Laun v. Eailroad, 216 Mo. 580; Green v. Eailroad, 192 Mo. 137; Schmidt v. Eailroad, 191 Mo. 228; Stotler v. Eailroad; 204 Mo. 628; Bodan v. Eailroad, 207 Mo. 411; McGrebry v. Bail-road, 221 Mo. 32; Degonia v. Railroad, 224 Mo. 599; Boring v. Railroad, 194 Mo. 549; Cole v. Railroad, 121 Mo. App. 609; Grout v. Railroad, 125 Mo. 559: (2) Reis v. Railroad, 179 Mo. 7; Van Bach v. Railroad, 171 Mo. 346; Sikes v. Knott, 197 Mo. 714; King v. Railroad, 211 Mo. 14; Gumm v. Railroad, 141 Mo. App. 313; Reno v. Railroad, 180 Mo. 469.
   WOODSON, J.

The plaintiff brought this suit against the defendant, in the circuit court of Jackson county, to recover $10,000 damages for personal injuries received by him in consequence of the alleged negligence of the company, in running, one of its cars against and striking him with great force and violence.

The petition seeks to recover upon the negligence of the defendant in running the car in violation of the speed ordinance of Kansas City, also upon the so-called humanitarian doctrine.

Both of these causes of action are stated in the same count .in the petition; since, however, no point is raised in that regard, or as to the propriety of joining those two causes in the same petition, we dismiss it without further comment, as its sufficiency is not challenged.

The answer was a general denial, and a plea of contributory negligence; and the reply was a general denial of the answer.

The facts are few and simple, and are briefly and clearly stated by counsel for plaintiff, and -not denied or 'criticised by counsel for the opposition. They are as follows:

“Independence avenue runs east and west. Cleveland avenue enters it on the south side, but does not cross Independence. Monroe avenue enters Independence avenue on its north side a short distance west of where Cleveland enters it on the opposite side; from Monroe to Cleveland there is a jog on Independence of’ about one hundred to one hundred twenty-five feet to the eastward. The next street west of Monroe is Askew, which also enters Independence avenue from the north. Gladstone Boulevard is four or five blocks west of Cleveland avenue, and Indiana avenue crosses Independence between Gladstone and Askew, a short distance west of the latter. There is a steep down grade on Independence avenue beginning near Gladstone and extending as far east as Askew, but from Askew to Monroe the grade, though down, is not so steep. In fact, it is almost level.
“Mr. Strauchon testified that he started southward from the northeast corner of Monroe and Independence avenue to cross the latter, and as he did so he looked westward and saw the car 'coming. It was then west of Askew. He walked southward at an ordinary gait, about four miles per hour, to a point near the north rail of the north track (the distance from curb to track is not disclosed) when he again looked at the car. He saw that it was then as much as two hundred feet away from him. Although he looked at the car attentively, he did not discern that it was approaching at unusual speed. • He had but fifteen to. eighteen feet furtlier to go to clear the south track. He thought he had ample time to cross, and would have had if the car had been running at its usual speed. He remembers nothing further that occurred until the next day, when he found himself at his home in bed, bandaged and unable to move. He was a resident of Kansas City, living near the place of the accident, on Cleveland avenue. He knew of the ordinance speed limit, although he had not read the ordinance. The court refused to permit him to testify what he understood the speed limit to be.”

We quote the following from his testimony: “Q. State what occurred? A. Well, I just started to cross the street. When I started I looked up west and saw the car coming in the next block, and I went on across. That was about all that I know. Q. Where were you when yon last saw that car? A. Right at the north track. Q. You were at the north track? A. Yes, sir. Q. When you reached the north track where did you see this car? A. It was about half way up between Monroe and Askew. Q. That would be a distance of how many feet? A. Two hundred, I should judge. Q. How far did you have to walk from that point in order to clear the south track? A. Possibly eighteen feet — fifteen feet. Q. Fifteen to eighteen feet? A. Yes, sir. Q. And the ear was two hundred feet away? A. Yes, sir. Q. Hid you know the rate of speed at which the car was coming? A. No, sir, I did not. I supposed it was running in the usual manner — at the usual rate. Q. From where you were when you looked at the car, the last you recollect, did you see anything unusual, or could you see anything unusual in regard to its speed? A. No, sir. Q. Have you any recollection as to what occurred after that? A. No, sir.” On cross-examination he testified: “Q. You don’t remember of seeing or knowing anything about the car after you were on the north-bound track? A. No, sir. Q. You mean by that, Mr. Strauchon, that you were not paying any attention to the car, or that you were just crossing there and don’t remember what happened? A. I thought I had plenty of time to get over all right — I would ordinarily. Q. When you were there, just going on to the north track, did you turn your head or merely turn your eyes ? A. No, I looked. Q. You turned your head so as to get a good look at it? A. Yes, sir; I looked right straight at the car. Q. How long did you look, just a passing glance? A. Just an instant; I didn’t stop at all. Q. You kept right on walking? A. Yes, sir. Q. You were walking at your ordinary gait? A. Yes, sir.”

Plaintiff introduced the testimony of two passengers who were on the car, Mr. Long and Mr. Hogin. Both saw plaintiff through the window of the front vestibule. Mr. .Long says that when he first saw him he was walking almost straight southward, and had approached within about three or four feet north of the north track, and the car was then two hundred and forty to two hundred and seventy feet from him; that plaintiff continued steadily southward at an ordinary walk and without a pause or any indication that he was aware of danger, across the north track and onto the south track ahead of the car; that when plaintiff reached about the center of the south track, the witness, who had been watching him intently, averted his face. The next he saw of Mr. Strauchon was after the car had struck him. It ran onward past the place of collision two or three times its length, or about one hundred feet. This carried it clear across Cleveland avenue so that it stopped on the far side of Cleveland. The witness then got off, went back and found Mr. Strauchon lying in the street between the south track and the curb west of Cleveland, a distance which he estimates at twenty or thirty feet. The other testimony indicates that he was lying further west. Mr. Long, who was in the railroad business and had traveled a great deal for years and was well qualified to-give an opinion, says the car had been traveling apparently in a race with an automobile that was runr ning alongside at a high speed without any check, from as far west as Gladstone to where it struck plaintiff, very much in excess of the usual speed of the cars there, and at a rate of thirty-five to forty miles per hour. That no bell was rung or warning given until plaintiff was on the track directly in front of the car, and but a few feet ahead of it. He also testified that from the- north rail of the north track to the south rail of the south track was a distance of about fifteen or sixteen feet, and hence plaintiff walked about eighteen or twenty feet from the place where the witness first saw him to the place where he was struck.

The other passenger was Mr. Hogin. He testified that when he first saw plaintiff the car was about two hundred feet from Mr. Strauchon, and that Strauchon was then about midway between the north curb and the north track. But how many feet this would be from the track he was not asked and does not say. He says plaintiff continued to walk southward in an ordinary gait of three or four miles per hour. The witness realizing the speed at which the car was approaching Mr. Strauchon, arose from his seat and stood in the aisle watching him, and did not take his eyes off him. He says that Strauchon proceeded without any pause across the north track, and was stepping onto the south track when for the first time the motorman sounded his gong and made an attempt to stop the car, which was then within thirty feet of plaintiff, and going at a speed of twenty-five to thirty miles per hour. At the sound of the gong plaintiff looked up, jumped forward to get off the track, and was struck before he could get entirely clear, so that he was thrown to the south side of the car. This was forty or fifty feet west of Cleveland, and the car after striking plaintiff ran clear across Cleveland, a distance of about 130 feet. This witness also agrees with Long as to the race of the car down the hill with the automobile, and says that before the car reached Askew there was a passenger’s stop signal given by means of a push button which the motorman disregarded, and that the car rushed by Askew without slacking speed an instant, and continued at full speed until it was almost upon plaintiff.

Another witness, Mr. Northrop, a merchant whose store is on Independence avenue, a half block west of Askew, tried to board the car at Askew, but it did not stop. He testifies that he was formerly a street car conductor in the defendant’s employ, accustomed to judge the speed of cars, and that this one was going thirty-five miles per hour-when it passed him at Askew, one block west of where it struck Strauchon; which is relevant, because Mr. Hogin says it did not slacken speed from that time until it was within a few feet of plaintiff. He, like Mr. Hogin, says Mr. Strauchon fell about fifty feet west of Cleveland.

¥m. T. Ross, an ex-motorman, testified that if it took as much as one hundred and fifty feet within which to stop a car of this type at that place, it must have been going at least thirty-five miles per hour.

The only other witnesses who testified were Mrs. Northrup, whose testimony was immaterial, and the physicians, Herr and Von Quast.

The ordinance speed limit was proven as pleaded. The “Independence Line,” which the ordinance exempts', is not the Independence Avenue Line on which the collision occurred. The latter is a street in Kansas City, and defendant conceded that at the place in question the speed limit was twenty miles per hour.

Here the plaintiff rested his case, and thereupon counsel for defendant interposed an instruction in the nature of a demurrer to the evidence. Counsel for plaintiff objected to this instruction, which objection was, by the court, overruled. The court then gave the instruction as asked, and counsel for plaintiff duly excepted, and took a non-suit with leave to move to set the same aside. Within proper time counsel for plaintiff filed a motion to set aside the non-suit theretofore taken, and for a new trial, which was by the court overruled; to which action of the court plaintiff excepted, and duly appealed the cause to this court.

I. It is elementary in this State that a demurrer to the evidence admits as true every fact and inference that may be reasonably deduced therefrom. [Crossett v. Ferrill, 209 Mo. 704; Meily v. Railroad, 215 Mo. 567.]

According to that rule of evidence, did the appellant make out a prima-facie ease for the jury? In our opinion he did.

The evidence shows that appellant started south from the northeast corner of Monroe and Independence avenue to cross the latter,, and as he did so he looked west and saw the car coming, which was then west of Askew street. He was walking at an ordinary gait of three or four miles an hour, and when he reached a point a few feet north of the north rail of the north track, the exact distance not shown, he again looked and saw the car approaching him, about two hundred feet away. He looked at and saw the car approaching and estimated the distance it was from him, yet he did not discern that it was approaching at an unusual rate of speed. That he thought he had ample time to cross both tracks in perfect safety before the car would or could reach the line of his crossing, as he had only sixteen to eighteen feet to travel to clear both tracks,' while the car had about two hundred feet to run while he would have walked that sixteen or eighteen feet. That when he reached the center of the south track, the car struck and injured him. Now, .it must be remembered that the demurrer admits that evidence as true. That being so, then, if appellant had but eighteen to twenty feet to travel in order to clear both tracks, as some of the evidence tended to show, and was traveling practically at four and one-third feet per second, he would have gone that distance in four and three-fourth seconds; and if the car was at the same time about two-hundred feet away., as the evidence tended to show, and had it been traveling only twenty miles an hour, which was the limit of the speed as prescribed by the ordinances of Kansas City, then it would have been traveling at a rate of speed of practically twenty-nine-feet per second; and at that rate it would have taken practically seven seconds for it to have traveled the-two hundred feet mentioned; and during that time-appellant would have passed over both tracks two and a quarter seconds prior to the time the car would have-reached the point where he would have passed over them; and had appellant continued on south at the same speed of four and one-third feet per second, he would have been about eight feet south of the south rail of the south track when the car would have reached the point where he would have passed over the .tracks. But instead of the car running at only twenty miles an hour, it was running from thirty to forty miles an hour, which was at a rate of speed from forty-four to fifty feet a second. If the car was traveling only forty-four feet per second, then it would have, taken it practically four and a half seconds to have traveled the two hundred feet; and if it was running fifty feet per second, then it would have taken it four seconds to have run the two hundred feet, neither of which would have given appellant time to have passed the tracks. (Those figures and distances are only approximations.)

It necessarily follows from that showing, that the car was being operated in excess of the speed limited by the ordinance, and that in consequence thereof appellant was injured; and under the decisions of this court such excessive speed was negligence per se. [Gratiot v. Railroad Co., 116 Mo. 450; Bluedorn v. Railroad Co., 121 Mo. 258.]

We are, therefore, of the opinion, as previously stated, that the appellant made out a prima-facie case. In fact, we do not understand counsel for respondent to seriously controvert that conclusion; but it strenuously insists that appellant’s own evidence showed such contributory negligence on his part as should prevent a recovery; and for that reason the demurrer was properly'sustained.

This proposition will receive consideration in the succeeding paragraph of the opinion.

II. This brings us.to the only remaining proposition presented by this record for our determination, namely: Does the record show that the appellant was guilty of negligence which directly contributed to his injury? If so, then, under a uniform and unbroken line of adjudications of this court, he cannot recover, except, of course, under the humanitarian doctrine, which is foreign to the question now in hand. If upon the contrary appellant was not guilty of such negligence, then, of course, he was entitled to a recovery, and, in that event, the trial court erred in sustaining the demurrer to the evidence.

Counsel for respondent insist that since appellant testified- that he looked and saw the car which struck him approaching him from west of Askew Street, and again when it was about two hundred feet west of the place where he was struck, he was guilty of negligence in not also observing its speed, and avoiding coming in coni act with it; and having failed to do so, he was guilty of negligence. Ordinarily that might be a statement of a sound legal proposition, but not so under the facts disclosed by this record.

The evidence shows that when appellant first saw the approaching car it was four or five hundred feet west of him, and that he was then leaving the northeast corner of Monroe Street and Independence avenue for the purpose of crossing the latter. That when he was within fifteen to eighteen feet of the point of collision- he saw the car approaching two hundred feet west.

According to those figures, we have a triangle with a base two hundred feet in length, representing the car tracks from the point where appellant last saw the car approaching him to the point of the collision; the perpendicular of the triangle was fifteen or eighteen feet, say the distance from the point where he was when he last noticed the ear to the place of injury, and the hypothenuse thereof, which represents the appellant’s line of vision from the top of the perpendicular west to the point where the ear was, namely, two hundred feet west.

If the perpendicular was eighteen feet, then the hypothenuse was 200.808 feet in length, and the angle opposite the perpendicular was 5° 9'. If the perpendicular was only fifteen feet instead of eighteen as some of the evidence tended to show, then the angle of appellant’s vision would have been something less than that previously mentioned.

Prom that evidence, it will be observed that appellant’s viewpoint was practically in front of the approaching car; and under that state of facts, the latter testified that while he saw the car approaching, yet by looking at its approach from that acute angle he was unable to ascertain its exact speed; and having had nothing specially to call his attention to its speed, he naturally supposed that it was running at the ordinary lawful rate, and was not running in violation of the ordinance of the city; and relying upon that presumption, and knowing that he would have had ample time in which to have crossed the tracks in perfect safety had it' not been running in violation of law, he proceeded to cross in front of the car without paying any further attention to its approach.

The demurrer admits that evidence to be true; and upon those admitted facts, counsel for respondent insists that they show contributory negligence, as a matter of law, and should bar appellant’s right to a recovery in the cause.

We are unable to lend our concurrence to that insistence, for the reason that common "knowledge and universal experience teach us, that when one views an approaching train from a point directly in front of it, or from a very acute angle, as was shown by the evidence in this case to be true, it is much more difficult to judge of its speed than if it is viewed from the side thereof, or from an obtuse angle. That fact is recognized by the law, and has been so held repeatedly by this court.

Moreover, appellant testified that he looked for and saw the car approaching him, but through no fault of his he failed to discern the fact that the car was .running in excess of the speed limited by the ordinance.

At ‘ most, the conduct of the. appellant, as shown by this evidence, can only be characterized as poor judgment, and it does' hot degenerate into negligence.

Judge Thompson in his work on Negligence, vol. 2, p. 358, sec. 1669, in treating of this question, says: “Mere errors of judgment, where ordinary care has been exercised, are not generally set down as amounting to negligence. This rule is sometimes applied so as to exonerate travelers, killed or injured at railway crossings, from the imputation of contributory negligence — as where the traveler, unable to see the approach of the train until close upon the track, makes an error of judgment in attempting to cross ahead of it, instead of trying to stop suddenly to avoid the danger. . . . The rule is the same where the traveler is injured through miscalculating any other element of safety or danger.”

And in White’s Supp. to Thomp. Neg., p. 318, sec. 1669, it is said: “ It is not required that a traveler should anticipate that an approaching train will proceed at an unlawful or unusual rate of speed, and he will not be charged with negligence, as a matter of law, in attempting to cross, if, in view of the distance at which the track seems to be clear, he would have time to cross before a train going at the usual and lawful speed would reach the crossing.”

In Gratiot v. Missouri Pacific Ry. Co., 116 Mo. l. c. 464, this court said: “Although defendant saw .the train, and afterwards and before it struck him attempted to cross the railroad track, yet, if he did not know what train it was and that it was usually run at a rate of speed prohibited by the ordinance, he had the right to presume that it was running within the prescribed time, at a rate not exceeding six miles per hour, and if such had been the case and he would have had time to have gotten across the track in safety before it could have moved to where the collision occurred from where it then was, or he could have gotten his -horse out of the way of the train in time to have avoided the collision, he was not guilty of such contributory negligence as would have justified' the court in taking the case from the jury.”

And in Murray v. Transit Co., 108 Mo. App. l. c. 507-508, the St. Louis Court of Appeals said: “A man might easily misjudge the speed of a car or its distance from him, after straining his senses to ascertain whether he could safely venture on the track; might make an honest mistake and under an erroneous impression concerning the car’s speed or distance, go forward and be hurt. Whether plaintiff’s misapprehension was induced by carelessness or by a deception of the senses, or an error of judgment, was a matter for the jury. . . . The plaintiff swore he saw the car which hurt him, but did not realize its speed, and supposed he could cross the track before it would reach him. If this statement is true-, is he to be charged with negligence as a matter of law, or was the issue of his negligence for the jury! We hold it was for the jury, not feeling competent to say that by ordinary prudence the plaintiff was bound -to observe the ear was under a speed so high as to make it perilous to go on the track ahead of it, when it was half a block distant.”

In Heintz v. Transit Co., 115 Mo. App. 667, l. c. 671, it is said: “His judgment was at fault, and if he is to he convicted of negligence, as a matter of law, it must be on the ground that he did not realize the speed at which the car was running. He was in front of the car and it was coming toward him. In this situation-it was difficult, if not impossible, for him to correctly estimate its speed.”

In Powers v. Transit Co., 202 Mo. 267, l. c. 280, this court said: “But assuming, as she had a right to do, that the ear was not being run at a rate of speed in excess of that prescribed by ordinance, and that she did not know, or, in the exercise of ordinary care, could not have known that it was so running, she was not guilty of negligence in proceeding to cross the street, using ordinary care and caution in so doing. Whether she looked or not was, of course, a question for the jury. The evidence all shows that the car was running at an excessive rate of speed when deceased left the the sidewalk and looked to see, as the law presumes she did, if the car was approaching, which at that time must have been nearly a block away. She walked not directly towards the track, but in a southwesterly direction. From the time she left the sidewalk, until struck by the car, the motorman saw her, and when he apprehended danger to her he threw off the power, began sounding the bell and hallooing to her, but she paid no attention to either, seemed unconscious of danger, and took no notice of the warning. The motorman could have stopped the car in from twenty to twenty-five feet' had it been running at the rate of eighteen miles an hour, and in a much shorter space had the car been running at a rate of speed not exceeding eight miles per hour. If the motorman saw the deceased all the time after she left the sidewalk until struck by the car, he must have seen her perilous position in time to have checked up the car and avoided the injury.”

The case at bar is a much stronger case than the last one cited. There the ease rested upon a technical presumption; while here the appellant’s.testimony tended strongly to prove all those things to be true which there rested upon presumption only; and the demurrer in this ease admitted that testimony to be true.

It is useless to pursue this review of authorities further, as they all point unerringly to the same conclusion.

For the reasons before suggested, we are of the opinion that the trial court erred in sustaining the demurrer to appellant’s evidence.

The judgment is, therefore, reversed, and the cause remanded for a new trial.

All concur, except Valliant, J., absent.


source: Caselaw Access Project

author: LAMM, J.

license: Public Domain

text:
    FREDERICK SCHUEPBACH, Appellant, v. LACLEDE GAS LIGHT COMPANY.
    Division One,
    February 28, 1911.
    1. APPEAL: Erroneous Instruction: Correct Verdict. If the trial court gave an erroneous instruction for defendant, and in spite of it a verdict was returned for him, and that verdict is right under the law, the court will not, on plaintiffs appeal, reverse the judgment and remand the< cause because of error in the instruction. The Legislature has the right to enact the statute declaring that a verdict is not to be reversed, unless error materially affecting the merits was committed; and the merits, when plaintiff has no cause of action, relate solely to ther judgment, and if it is right the appellate court should not set it aside because of erroneous instructions given.
    2. NEGLIGENCE: Accident: Falling Through Trap Door. Both plaintiff and defendant’s servant were where they had a lawful right to be. The servant had gone to the basement to inspect a gas meter, and having finished his work came up the stairway, at the head of which was a trap door, and at the same time plaintiff was using a public telephone there, and almost immediately after the door was raised,. the plaintiff, who did not know there was such a door there stepped back, and fell through to the basement floor and was injured. Defendant’s servant did not know of the presence of the telephone or of plaintiff, and neither saw the other. Held, the servant was not negligent while about his master’s business, and hence the master is not liable.

      3. -: Instruction: Failure to Look. Failure to use ordinary care- to discover plaintiffs peril is sometimes negligence; but an instruction so declaring ought not to be given where there is no evidence upon which to base it.
    Appeal from St. Louis City Circuit Court. — Eon. Jas. E. Withrow, Judge.
    Affirmed.

      <7olm A. Talty for appellant.
    Appellant was lawfully upon the-premises in question. It was a public place, into which he had been invited by the proprietor for his benefit and for the purposes carried on therein. The respondent’s servant opened-the trapdoor and left it open. He caused the existence of this pitfall, and stated in his testimony, without objection being made, that he knew that this trapdoor open was a matter of imminent peril to persons in and about the premises. He knew the natural and probable consequences of his act in opening the trapdoor and allowing it to remain open. “The liability of a person charged with negligence does not depend upon the»question whether, with the exercise of reasonable prudence, he could or ought to have' foreseen the injury complained of, but he may be held liable for anything which, after the injury is complete, appears to have been a natural and probable consequence of his act or omission.” Fishburn v. Railroad, 127 la. 492; Dean v. Railroad, 199 Mo. 411. Therefore, to say the least, it was not only his duty to warn appellant or close the trapdoor after he saw him in a position of danger, but it was his duty to use ordinary care to see and ascertain whether appellant was in a position of danger. Actual knowledge of danger is not necessary; proof of facts from which knowledge may be implied is sufficient, negligently remaining ignorant being an equivalent to actual knowledge. Actual notice is not necessary where the danger could have been discovered by the exercise of due care, in this case ordinary care. 6 Thompson, Neg. 7529 and vol. 1, 294; Guenther v. Eailroad, 108 Mo. 18; Phillips v. Eailroad, 211 Mo. 419; Dahlstrom v. Eailroad, 96 Mo, 99; Fassbinder v. Eailroad, 126 Mo. App. 570; Heberling v. Warrens-burg, 204 Mo. 604; Loehringer v. Construction Co., 118 Mo. App. 163; 29 Cyc. 431.

      Percy Werner for respondent.
    Under the facts the ease should never have been permitted to go to the jury, and it is therefore immaterial whether the instructions given in behalf of the defendant were erroneous. Chandler v. Gas Company, 174 Mo. 328; State ex rel. v. Elliot, 157 Mo. 618. Bespondent insists that the instructions given for defendant were correct expositions of the law. If the plaintiff, as a licensee of the owner of that dramshop, as between him and such owner, took things as he found them and used the telephone at his own risk (and such is undoubtedly the law; see Kelly v. Benas, 217 Mo. 9), then, certainly, the employee of the defendant, who was there attending to the business of his employer, and who had no connection with the dramshop, owed no duty to the plaintiff except that of not injuring him after he knew that he was in a place of danger. And this is what the jury was told in the instruction which plaintiff’s counsel criticizes. Phillips v. Eailroad, 211 Mo. 419; Loehring v. Construction Co., 118 Mo. App. 173; Eeynolds v. Van Beuren, 155 N. Y. 120.
   LAMM, J.

Plaintiff, counting on negligence, sues in the circuit court of the city of St. Louis, for $15,000 damages for personal injuries. A verdict going against him and judgment following, he appeals— complaining of one of defendant’s instructions. It is argued, contra: (T) That the criticised instruction is good law. (&) Further, that the judgment, should stand though the instruction be bad — this on the theory that plaintiff made no case for the jury on the evidence; ergo, if the verdict had been for him, it would have had no legal foot to stand on and (the result being right) a mere error in instructions does not go to the merits.

The story of the case may be outlined by fetching a small compass. Thus:

The case on the pleadings.

The petition runs on the theory that plaintiff was lawfully in a certain building using a telephone; that a certain one of defendant’s servants in the line of his service, while plaintiff was telephoning, opened a trapdoor in the floor in plaintiff’s rear and negligently left it open, without plaintiff’s knowledge and without giving him any warning or notice; and that plaintiff, unaware of his danger, in leaving the telephone, stepped into the opening in the floor thus made, fell into the basement and suffered grave injuries.

The answer, barring conventional admissions, denies the charging allegations and pleads contributory negligence, in that plaintiff without exercising ordinary care stepped backwards into the hole without looking to see whether the trapdoor was up or down.

'The reply denies the contributory negligence.

The case on the facts.

Defendant stood mute at the trial — plaintiff having fully' exploited the mine of facts by putting on the stand all the known eye-witnesses, including’ defendant’s servant, whose alleged negligence is complained of. There is little conflict between plaintiff’s witnesses, and what little there is will presently appear. On June 2, 1906, there was a dramshop on the ground floor at the northwest corner of Jefferson and Chippewa streets in St. Louis, run by one Labenberger. In the basement were gas meters belonging to defendant, used in its business in measuring gas distributed to customers. One Burke was in defendant’s employ as an inspector of gas meters, and on that day in his line of duty went into the basement to inspect meters, in the usual way and with the consent' of the manager of the dramshop. To get to this basement one had to open a trapdoor in the floor and descend a stairway there. Burke had never been on the premises before, and on this day, armed with a memorandum book and an electric searchlight, went into the dramshop, opened the trapdoor, went down the stairway, pulling the trapdoor to, and went about his inspecting work for ten or fifteen minutes. The size of Labenberger’s barroom is dark. On its north side, extending to within about four feet of the west side, was a piece of wall furniture know as a “bar fixture.” Its use is not disclosed by the record and a judicial guess in that behalf (by a Missouri court) ought to be worthless. In front of this fixture and running parallel therewith, about three feet away, extended a counter, presumably some sort of a convenience .for bibulous ends. The barkeeper plied his trade between the counter and the fixture, his liquor within reach — the general public having business, if any, before and not behind this counter. To the west of the wall fixture, also against the north wall, was an icebox. Hard by the icebox was a door leading to a toilet room and barber shop used by the patrons of the dramshop and others. Either this door or another close-by door led into a lunch room.. Whether the lunch- room was an appendage or independent of the barroom, we do not know, but, at any rate, the door was used to enter the lunch room from the dramshop. The arrangement outlined was such that a small part of the barroom in the northwest corner is called a “passage-way,” say, four feet wide, for use in going to the toilet, to the barber shop or to the lunch room. This passage-way was not partitioned or walled off, but was bounded on the west by the west wall of the room and on the east partly by the icebox, the end of the bar fixture and end of the counter. On the south it opened into the lobby of the dramshop and either on the north or west of the passage-way was said door or doors. The trapdoor was six or seven feet long, about three feet wide and extended about twenty inches into this passage-way, running east between the bar fixture and counter for four or five feet, covering the whole of that space. The trapdoor opened from north to south. There was a sign in front of the dramshop indicating that a "pay telephone” was inside. Repairs in the barroom and the putting in of a new icebox caused the telephone to be taken from the wall. At the time in hand it was screwed to a board and this board was either reclining against the wall in the passage-way or was on a common chair close by the icebox. There is not a particle of evidence that Burke, a stranger to the premises, knew there was a pay telephone used by the public or patrons of the dramshop or knew of the use of the passage-way to the toilet, the lunch room or barber shop or saw the detached telephone by the wall or in the chair. To raise this trapdoor one had to go around the west end of the counter, behind it, and to the east end of the trapdoor. When the trapdoor was up, the hole in the floor, as said, took up the entire space for several feet between the counter and the wall fixture, so that no one could come from or go behind the counter without putting the door down, and when anyone came np from the basement, opening the trapdoor to go out, he would find himself behind the counter shut in by the hole and would have to put the door down as part of the floor before he could get out into the lobby of the barroom and go his way. So when the trapdoor was up there was an opening of 20 inches in the passage-way. Some of plaintiff’s evidence is to the effect that plaintiff was already in the barroom when the gas inspector came in, opened the trapdoor and went into the basement, shutting the door after him. Other evidence of his is to the effect that the inspector was in the basement when plaintiff entered the dramshop. Be that one way or the other, it was in the middle of the afternoon. The barroom was -flooded by the full light of a summer’s day and there was nothing to hinder anyone seeing all there was to see. Two friends of plaintiff were in the barroom. It,seems all three went in together. Plaintiff was a patron of the place now and then, but whether he loitered «at the counter in this instance is not clear. He had used the phone once before that day and this time came in to telephone for one of his said friends about a school entertainment. Presently, he' went-to the west end of the counter to said chair and either found the telephone board in the chair or took it from the floor and set it in the chair. The hack of the chair was towards the west wall and the front of the chair was to the east, its front legs about a foot from the trapdoor. He straddled the chair, facing the west, his hack to' the east, and in that position telephoned. If Burke came into the saloon after plaintiff, and went down the trapdoor, plaintiff did not see him do it. All sides agree' that plaintiff was not telephoning when Burke opened the trapdoor to go into the basement and that he vas telephoning while Burke was down there. All sides agree that Burke did not know that plaintiff was astraddle the chair telephoning, while the former was in the basement, nor did plaintiff know Burke.was below, nor did he know of the existence of the trapdoor. These two men finished their business at about the same time. Burke came up. the stairway from the basement, facing the east, with his back to plaintiff, and plaintiff sat or stood with his back to Burke. It seems Burke had put his electric searchlight in his pocket, and as he came to the head of the stairway was engaged in putting his memorandum book in his pocket. The hook was of some size and he was for the instant engaged in fumbling for his pocket with one hand. He had one hand on the trapdoor or towards the door as it rested back against the counter, and plaintiff, at about that time unfortunately, arose from his chair, took a step or moved a few inches backward and fell prone into the deepest part of the hole. The thing happened “quickly.” One witness risked the opinion that the door was open a “minute” or “three-fourths of a minute.” Another would not put an estimate on it, but the only substantive evidence worth while is to the effect that it happened so quickly that the onlookers, plaintiff’s friends, had no time to realize the danger, collect their thoughts and cry out a warning in time to save him. In fact, the noise of plaintiff’s fall seems to have been the first thing to attract the attention of his friends, who were standing, one of them at least, close to plaiutiff at the west end of the counter. The friend standing there (Bryant) was interested in the telephone message — in fact, plaintiff was telephoning for him and at his instance. There is testimony that the barkeeper had just passed over the place where the door was, returning from the icebox. There is testimony indicating that when the witnesses fixed their minds on the relative positions of the parties, plaintiff was falling and Burke was out and had turned or was turning from facing the east to facing the west. Plaintiff did not turn his head in the direction .of the hole before he went backward into it. Burke says he was just turning around when plaintiff fell and saw him for the first time as he was falling. As we read the evidence neither of plaintiff’s friends saw the direction Burke was looking right before plaintiff fell. As said, the noise of his fall excited their attention and when they then looked at Burke (taking the whole situation in by a swift glance) they saw him facing west toward plaintiff. They all agree he was bound to face east when he came to the top of the stairs and, in order to face west, as he was facing when their attention was drawn to him, he must have taken time to turn aronnd after reaching the floor of the barroom. The case proceeds on the self-evident theory that the trapdoor would have to be opened at first partly and then fully as Burke progressed step by step up the basement stairway. It proceeds further on the theory that plaintiff’s shoulder was dislocated and his arm paralyzed by his fall. The testimony so shows.

The first question is: On such record, did plaintiff make a case to go to the jury? In other words, will we reverse and remand for another trial, because the court misdirected the jury when plaintiff is not entitled to recover at all?

(a). In reversing judgments and remanding cases for another trial a court of errors moves strictly in a statutory orbit. As an appeal is a mere creature of the statute, the disposition of an appeal in an upper court is subject to statutory regulation. What the statute grants, it may regulate, modify or take away. By express mandate of the lawgiver we are forbidden to reverse any judgment, unless we believe error was committed materially affecting the merits of the action. [Sec. 2082, R. S. 1909.] Attending to that statute and applying the touchstone of proper interpretation (i. e., keeping in view the old law, the mischief and the remedy), it is apparent that its force is spent in so reforming judicial procedure that a judgment may not be reversed for error creeping into the trial below, which did not produce an evil result, or touch a vital spot, vie., the merits of the action. Under that statute the proposition that all error is presumed to be injurious is no longer to be applied rigidly in all eases as a live legal precept. Now, what are the merits of a cause of action when plaintiff on the record has no cause of action at all? Plainly, the merits in that case relate solely to the judgment itself. If, in the case put, the verdict and judgment be right, error antecedent thereto is healed by virtue of the right result attained, the error becomes harmless, immaterial, non-reversible. Such has come to be the accepted doctrine in establishing a working theory for the administration of the foregoing rule of written law; for, speaking with precision, the law is not an exact, but a practical, applied science, and looks to practical results in dispensing justice. Accordingly, if- a court below, giving a wrong reason, reaches the right conclusion, its conclusion will not be disturbed above. So, .if a jury could find but one verdict on the facts and finds that verdict, a misdirection by the court does not touch the “merits” of that case. Under the statute in hand, if the court told the jury to go south and they went north and north was the only road the law would allow them to go, we cannot reverse and remand in order that the court might tell them on a new trial to go north. So, if the court give too little, too much, or bad law for a party litigant, and yet the jury stumble into a verdict consonant with justice, and the only one the facts allow, under the statute-in hand, we must let that judgment alone; for, as said, it is trite doctrine that bad instructions will not explode a verdict and judgment on appeal when the verdict found and the judgment rendered are the only ones the law tolerates. [Mockowik v. Railroad, 196 Mo. l. c. 568, and many cases cited; Moore v. Railroad, 176 Mo. l. c. 545, and many cases cited.] Therefore, before considering the instruction complained of, we may pass, or we do, to the question whether plaintiff made a ease.

(b). We think there is no liability.' The case is bottomed on the negligence of defendant’s servant while about his master’s business and acting in the line of his duty. If there was no negligence, there can be no recovery, and we see none as a matter of law. Both Schuepbach and Burke were where they had a right lawfully to be. They were both invitees and neither owed the duty of a proprietor of the premises to the other. [Reynolds v. Van Beuren, 155 N. Y. l. c. 128.] Neither of them was to blame for the 'existence of an unguarded trapdoor in a used passage-way in a room to which the public were invited. The blame for that dangerous contrivance must rest elsewhere. If Burke did not know that Schuepbach, astride the chair, was telephoning so close to the trapdoor that a slight voluntary or involuntary movement would precipitate him in a pit newly opened, no more did Schuepbach know of the trapdoor and that Burke was below and likely to make a pit'for him to fall in at the moment of his exit from the basement. The blame for permitting this -unhappy assembly of things, persons and probable results must rest elsewhere. If it be taken that Schuepbach was without blame in,sitting with his back to the trapdoor when using the telephone, by the same token Burke was without blame in opening the trapdoor and coming up the stairway with his back to Schuepbach; for that was the natural and ordinary way to come from the basement. They were back to back through no fault of either. Neither of them expected or looked for the other at the instant. Therefore, if one was in fault in that regard so was the other. So, they stand in equal fault, if fault it was, in not looking backward to spy out danger. In coming from the basement evidently there would be a time when the trapdoor, at first partly open, would eventually be and remain for a little while wide open while Burke was yet coming up the stairway, and while he was turning around. The blame for that condition of things could not rest on Burke while using the trapdoor by permission of the proprietor and in the usual way. The case then narrows itself so that it hangs, if at all, on a single and slight thread, viz., was Burke guilty of negligence after he reached the floor in allowing the trapdoor to remain open an unnecessary length of time. And in answering that question it may be assumed that it was his duty to use due care to close the trapdoor within a reasonable time, having regard to the circumstances of the case, the danger of injury to persons in the room. Pie was his brother’s keeper to that extent. It may be assumed, also, that if average fair-minded men could fairly entertain two views of whether Burke used ordinary care at the time, the issue of negligence was for the jury.

Barring those non-comp os and those under disability of infancy, given an adult, as here, then the law holds such adult to the standard of care of an ordinary prudent person, according to circumstance.

Mr. Justice Holmes (Common Law, p. 108), speaking to the matter, says, “If a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the.courts which they established decline to take his personal equation into account.’’

Judging the actions of Burke, then, from the standpoint of an ordinary prudent person, we cannot see, as a matter of law, that there could be any dispute among'fair-minded, average men over his lack of negligence. He did not leave the trapdoor and go away. Nor did he dawdle and trifle. He had not stood there absorbed in mental abstraction. He was attending straightway to his immediate business, putting his book in his pocket and turning around to put down the trapdoor and walk over it to the lobby to leave the place. His culpability must not be adjudged by what transpired in a second or two — an instant. The average man does not ordinarily act instantaneously. He must have time to see, to think, to comprehend and act. If those present in the room, and particularly the personal friend of plaintiff, who was watching him while telephoning, did not see and apprehend his predicament in time to gather their thoughts and even instinctively utter an exclamation of warning, it would he hard lines to hold Burke to a greater standard of diligence. If Burke did not act amiss, then his master stands acquit. The first glance he got of Schuephach, he was falling and that is about the first glance anyone got of him after the pit yawned. The thing that happened, therefore, being (as between plaintiff and defendant, a mishap and an untoward event neither designed nor to be expected, had in it the fortuitous element of an accident, as that word is technically defined in the law.

(c). The instruction complained of confined the duty of Burke to diligence after he had actual knowledge of the danger to plaintiff. After other narrations, it says: “And you are instructed that if defendant’s servant went on the premises in question solely in connection with his business as a gas meter inspector, and that he used the usual means of ingress and egress open to him for the purposes of his said business, and had no actual knowledge of the danger to plaintiff in time to have prevented the injury to him "by the exercise of ordinary care, then your verdict should be for defendant. ’ ’ The vice of the instruction is said to consist in the limitation aforesaid, in that the duty of Burke was to use ordinary care to look about and see plaintiff as well as ordinary care after he was seen to prevent his injury. In a proper case the criticism of learned counsel for plaintiff would be just, but in this case the abstract rule of law invoked hhs no application. In the first place, liability could not be predicated from failure to look out fop plaintiff, because there is no evidence of any lack of ordinary care in that regard. Again, as said in paragraph “(b),” there was no evidence of any negligence; therefore, there could be no recovery.

The judgment is right. Let it be affirmed. It is so ordered.

All concur, except Valliant, J., who is absent.


author: GRAVES, J.

text:
    NEWTON J. ABBOTT, Appellant, v. KANSAS CITY ELEVATED RAILWAY COMPANY and METROPOLITAN STREET RAILWAY COMPANY.
    Division One,
    February 28, 1911.
    NEGLIGENCE: Right of Wife to Sue for Death of Husband. The court declines to reconsider the decision in Strottman v. Railway Co., 228 Mo. 154.
    Appeal from Jackson Circuit Court.- — Hon. E. E. Porterfield, Judge..
    Affirmed.

      A. F. Smith, Boyle S Howell and Guthrie, Gamble & Street for appellant.

      John H. Lucas and Chas. N. Sadler for respondents.'
   GRAVES, J.

Plaintiff sues herein for personal injuries, as well as for injuries to his team and wagon, occasioned by the collision of one of defendant’s cars with his team and wagon on February 2, 1903'. He charges that the collision was occasioned by the negligence of the defendant.

The case has a checkered career, and is not briefed here upon the merits, counsel preferring to first draw the fire of this court upon a preliminary question, suggested in their brief. They suggest that with this preliminary question out of the way, they desire to file in this court their briefs formerly filed in the Kansas City Court of Appeals, when the case was there upon an appeal by defendant.

Counsel in brief here say: “In view of the holding of this court in the ease of Strottman v. St. Louis, etc., Co., 228 Mo. 154, we appreciate the plaintiff’s case is not an easy one. We have therefore taken the liberty of presenting no elaborate brief in this court on the merits of this ease, but will ask that the court indulge ns with leave to file herein -a copy of our original brief and onr brief on the motion for rehearing in the Kansas City Conrt of Appeals, which show our views on the law of this case, and if this conrt shall hold that we are entitled to a consideration of the case on its merits, we will be glad to revise our brief on the merits and furnish the necessary copies to comply with the rules of the court. ”

This history of the ease thus runs as we gather it from the records and briefs- with us. Plaintiff sued upon the same cause of action in the circuit court of Jackson county, and obtained a. verdict and judgment for $3500, from which the defendant appealed. [Abbott v. Railroad, 121 Mo. App. 582.] That court upon a full consideration of the facts reversed said judgment. Thereafter the plaintiff reinstituted his suit, and upon a trial thereof the trial court gave a peremptory instruction to find for defendant.' Plaintiff took an involuntary nonsuit, and after unsuccessful steps to reinstate his case, has appealed here.

His counsel in their brief concede that if the ruling of this court in Strottman v. Railway Co., 228 Mo. 154, is sound law, then plaintiff has no standing in this court. They insist that we reconsider that case. This Strottman case was presented to the Court in Banc upon exceedingly elaborate briefs upon both sides. It was well and fully argued upon both sides at the hearing, and we hardly think this court was remiss in its consideration of the novel ' question, for the first time presented to this court. We took occasion to thoroughly review the statutes of this State, the case law of the State, and the reasonableness of Mrs. Strottman’s contention in view of the judicial history of the State. With this review this court without a dissenting voice held that under the circumstances of the Strottman case the plaintiff was barred from further action. The. facts of the case at bar bring it fully within that ruling. With that ruling we are satisfied and shall not depart therefrom. Prom this it follows that the judgment nisi in the ease at bar was for the right party, and the same is affirmed.

All concur except Valliant, J., absent.


author: WOODSON, P. J.

text:
    JOHN W. VANDEVENTER, Appellant, v. FLORIDA SAVINGS BANK.
    Division One,
    February 28, 1911.
    1. APPELLATE JURISDICTION: Acquiescence. The court will not permit parties to confer jurisdiction upon it either by stipulation or by acquiescence.
    2. -: Assignment and Payment of Note: Deed of Trust. Where it is admitted that plaintiff is the owner of the land, and that the note for $200 was originally secured by a valid deed of trust thereon, and the only issues in the case are whether or not the note was assigned to defendant and whether or not it was paid prior to assignment, title to real estate is not involved, and the Supreme Court has no jurisdiction over ’ the appeal from a judgment declaring defendant “is the owner of said note and entitled to the lien on said premises as created by said deed of trust, to the extent and amount of the sum now due and unpaid on said note.”
    Appeal from Monroe Circuit Court. — How. David H. Eby, Judge.
    Transferred to St. Louis Court of Appeals.
   WOODSON, P. J.

The plaintiff instituted this suit against the defendant in the circuit court of Monroe county, which resulted in a judgment in favor of the latter, and the former appealed the cause to this court.

The petition filed therein (formal parts omitted) is as follows:

“Plaintiff states that defendant is a hanking corporation duly organized and existing under the laws of the State of Missouri and engaged in the hanking business in Monroe county in said State.
■ “Plaintiff for cause of action states that he owns and claims to have the title in fee simple, free and clear of all incumbrances whatsoever, in and to the following described real estate, situate in the county of Monroe and State of Missouri, to-wit: The northwest one-fourth of the southeast quarter and the northeast one-fourth of the southwest quarter of section four, township fifty-four of range eight.
“Plaintiff further states that on the 29th day of March, 1897, one John P. Gross, who then owned the above described premises, being joined by his wife, made, executed and delivered a certain deed of trust, conveying said premises to one A. D. Bell, in trust, for W. B. Yanschoaick and J. T. Kendall, administrators of the estate of J. H. Hobbs, deceased, to secure to said administrators the payment of a certain promissory note; that defendant claims to have obtained title to said note by assignment from said administrators and in consequence thereof to have a lien on said premises under and by virtue of said deed of trust, but that plaintiff avers that said defendant has no interest in or lien upon said premises, for that said defendant did not acquire title to said note, and for the further reason that said note was fully paid off and discharged while in the hands of said administrators and the lien, of the said deed of trust was thereby extinguished.
“Wherefore plaintiff prays the court to try, ascertain and determine the interests of plaintiff and defendant, respectively, to the real estate hereinbefore described, and by its decree to adjudge, settle and define whatever interests the several parties, plaintiff and defendant, may have in and to the same.”

The answer (formal parts omitted) is as follows:

“Now at this day comes the defendant herein, and for its answer to plaintiff’s petition herein filed, admits that it is a corporation duly organized and existing under the laws of the State of Missouri, as therein alleged, and for its further answer to plaintiff’s petition denies that plaintiff is the owner in fee simple, free and clear of all incumbrances whatsoever, of the following real estate, situate in the county of Monroe and State of Missouri, to-wit: The northwest one-fourth of the southeast quarter and the northeast one-fourth of the southwest quarter of section four, township fifty-four, range eight west.
“Defendant admits that on the 29th day of March, A. D. 1897, one John P. Goss, who then owned the above described premises, being joined by his wife, made, executed and delivered a certain deed of trust, conveying said premises to one A. D. Bell, in trust for W. B. Vanschoaick and J. T. Kendall, administrators of the estate of J. H. Hobbs, deceased, to secure to said administrators dhe payment of a certain promissory note, and admits that defendant claims to have obtained the title to said note by assignment from said administrators, and in consequence thereof to have a lien on said premises under and by virtue of said deed of trust, and avers the fact to be, that on the 11th day of February, 1899, and while said note was yet the property of the said W. B. Vanschoaick and J. T. Kendall, as administrators of the estate of J. H. Hobbs, the said Kendall and Vanschoaick, as administrators of the estate of the said J. H. Hobbs, for value received, assigned said note and delivered the same to this defendant, and that in consequence thereof this defendant became and now is the owner of said note and the owner and entitled to á lien on said premises under and by virtue of the said deed of trust, so made and executed by the said John P. Goss, and his said wife, and as the owner thereof is entitled to the lien on said premises and to the rights therein as conveyed by said deed of trust; and for its further answer denies that said note was fully paid off and discharged while in the hands of said administrators and the lien of the said deed of trust thereby extinguished.
“Wherefore, the defendant prays the court for an order declaring this defendant to be the owner of said note and to be entitled to the. lien on said premises as created and is, under and by . virtue of the terms of said deed of trust, and to declare the defendant to be the owner of and entitled .to a lien to the extent and value of the amount due and unpaid upon said note for which said deed of trust was given to secure the payment of, and for such other, further and general orders and decrees as it may be entitled to in the premises.”

The reply was as follows:

“Now comes plaintiff and for reply to defendant’s answer herein denies each and every allegation of new matter therein contained.”

The findings of fact were in favor of the defendant, and the decree was as follows:

“It is therefore considered, ordered and adjudged by the court that defendant, Florida Savings Bank, is the owner of said note and the lien on said premises as created under and by virtue .of said deed of trust, to the extent and amount of the sum now due and unpaid in said note; and that subject to the provisions of said deed of trust filed for record April 3, 1897, in the office of the Recorder of' Monroe County, Missouri, and recorded in said office in vol. 28 at page 329, the plaintiff, John W. Vandeventer, is the owner in fee- of said premises, the same being and being described as the northwest one-fourth of the southeast quarter, and the northeast one-fourth of the southwest quarter of section four, township fifty-four of range eight, and in Monroe county and in the State of Missouri. It is further ordered and adjudged by the court that said defendant have and recover from said plaintiff its costs herein incurred or expended, and that execution may issue therefor.”

I. Counsel for both parties seem to take it 'for granted that this suit was instituted under section 650, Revised Statutes 1899, and that it involves title to real estate. If those facts are true, then this court has jurisdiction of the cause, and the appeal' was properly brought here. If, upon the other hand, title to real estate is not involved, then this court has no jurisdiction, for the reason that the amount involved is only $200, nor is there a constitutional or Federal question involved, and the appeal should have been taken to the St. Louis Court of Appeals, notwithstanding the fact that neither party has raised the question.

This court must guard its own jurisdiction and will not permit parties litigant to confer jurisdiction upon it either by stipulation or by acquiescence.

The prayer of the petition and answer is that the court ascertain and determine the interests of each of the parties in and to the land described therein, under and by virtue only of the existence of the note and deed of trust. The title to the land is conceded to be in the appellant, and it is also conceded that the deed of trust was duly executed by the then owner, and was timely recorded in the Recorder’s office of Monroe county.

By reading the petition and answer in the light of those conceded facts, it will be clearly seen that there are but two issues tendered thereby; first, was the note mentioned therein legally sold and transferred by the administrators of the estate of J. H. Hobbs to the defendant? and, second, had the note been paid off and discharged prior to said sale and transfer?

Clearly, the determination of neither of those questions can or will affect the title to the real estate described. It was the execution of the deed of trust that created the lien upon the land ; and if it should be held that the note which the deed of trust was given to secure had not been paid, still that fact would not create a lien on the land, for the reason that if the lien exists, it is because of the execution of the deed of trust and the failure of the maker of the note which the deed was given to secure to pay it off.

In the case of Gay v. Savings & Building Association, 149 Mo. 606, the plaintiff brought injunction to prevent the sale of real estate under a deed of trust. There the plaintiff was the maker of the deed of trust, and sought to enjoin a sale of the mortgaged property on the ground that the debt had been paid, that is, he claimed that in an accounting with the defendant he was entitled to a credit of $800, which, if allowed, would cancel the debt. There, as here, the validity of the deed of trust was not in question; and in discussing that case the court said: “In any event it is only a question of the amount of money due oh the mortgage debt.” For that reason it was held that the court had no jurisdiction of the cause, and it was transferred to the Court of Appeals.

In the ease of Bonner v. Lisenby, 157 Mo. 165, the plaintiff brought a suit to cancel a deed of trust on the ground that the debt of $950; which it was given to secure, had been paid. In discussing that question, this court, in speaking through Valliant, J., on page 167, said: ‘ ‘ There is no question but that the land belongs to the plaintiffs and that the deed of trust is valid and that it is in force if it has not been paid. The decree in this case cannot affect the title to the land, that is, there is no question of title to be decided. It is a mere question of whether or not certain acts constitute payments; it is a controversy over a debt claimed on the one side to have been paid and on the other to be still owing. The land is only incidentally affected. This is not like the case where the validity of the deed of trust is attacked. In accordance with our recent rulings we hold that the title to real estate is not so involved in this case as to give this court jurisdiction. [Price v. Blankenship, 144 Mo. 203; Rothrock v. Lumber Co., 146 Mo. 57; Edwards v. Railroad, 148 Mo. 513; Gay v. Savings and Building Association, 149 Mo. 606.] The cause is therefore returned to the St. Louis Court of Appeals.”

In Vandergrif v. Brock, 158 Mo. 681, the plaintiff brought suit for an accounting, claiming that he had made payments on a note secured by a deed of trust on certain lands, which, if they had been credited on the note, would have fully paid the same, and asked for a cancellation of the deed. In treating that question, Brace, P. J., on page 686, in speaking for the court, said: “But it is obvious on the face of the pleadings, that the validity of the deed of trust and of the title thereunder is not in issue in this case. On the contrary the validity of the deed of trust is conceded, and upon it the plaintiff predicates his right of action to have credited upon the note secured thereby payments which he alleges he has made but which have not been credited. What he seeks is an accounting of those payments, and their application to the note secured by the deed of trust, with a prayer for the relief he would be entitled to if he succeeds in establishing those payments in whole or in part. There is no controversy whatever about the title to the land. In order to give this court jurisdiction it is not sufficient that title to real estate may be affected by the judgment, but that the title should be in issue on the trial in which the judgment is rendered, otherwise title to real estate is not involved in the case within the meaning of the Constitution. [Ozark Land Co. v. Robertson, 158 Mo. 322, and cases cited; Gay v. Savings & Bldg. Ass’n, 149 Mo. 606; Bender v. Zimmerman, 145 Mo. 636; Heman v. Wade, 141 Mo. 598; May v. Mortgage Trust Co., 138 Mo. 447; McGregor v. Pollard, 130 Mo. 332; Bailey v. Winn, 101 Mo. 649 ; State ex rel. v. Court of Appeals, 67 Mo. 199.] As was said per Black, J., in Bailey v. Winn, supra, approved in McGregor v. Pollard, supra: ‘It is not enough that the judgment, when carried into execution, will affect the title to land. The title must be involved in the suit itself, and be a matter about which there is a contest.’ . . . And the same answer must be returned to a like, inquiry in this case, in which the issue is of the same nature. ... It follows from what has been said that this case must be remanded to the St. Louis Court of Appeals for final determination, and it is so ordered.”

In Christopher v. People’s Home & Savings Association, 180 Mo. 568, the'validity of the deed of trust given on land to secure a certain bond and coupons attached was not called in question, but its cancellation was sought on the ground that the bond had been paid or otherwise satisfied. It was there held that this court had no jurisdiction of the cause, for the reason that the title to the real estate was not involved, and the cause was transferred to the Kansas City Court of Appeals.

To the same effect are Stark v. Martin, 204 Mo. 433; Turner v. Morris, 222 Mo. 21, and Loewenstein v. Insurance Co., 227 Mo. 100.

The case at bar does not proceed upon the theory that the deed of trust in question was procured by fraud, and constituted a cloud upon his title, and ask for its removal therefrom, as was done in the case of Loewenstein v. Insurance Co., supra.

We must confess that we are at a loss to know just what learned counsel seek to accomplish by this suit; nor can we see what is the object the decree here has accomplished. It simply declares that the respondent “is the .owner of said note and the lien, on said premises as created under and by virtue of said deed of trust to the extent and amount of the sum now due and unpaid on said note.” It does not decree whether the note has been paid or not, nor does the petition or answer ask for such a decree. But, however that 'may he, we are unable to see any difference in the principle underlying this case and the one upon which the oases previously cited are bottomed.

We are, therefore, of the opinion that this court has no jurisdiction of this case, and that it should he transferred to the St. Louis Court of Appeals; and it is so ordered.

All concur, except Valliant, J., absent.