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    THE STATE v. E. M. BAKER, Appellant.
    Division Two,
    December 10, 1912.
    1. JURISDICTION: Want of to be Affirmatively Shown: Appeal The rule that want of jurisdiction must be affirmatively shown extends to the manner of organizing and opening court, and accordingly the Supreme Court refuses to consider appellant’s contention that the record in this case does not show that the order made by the judge of division one of. the Jackson County Criminal Court, requiring the judge of division two to open a term of court, was put in writing or served on the judge of division two as required by law.
    2. CONTINUANCE: Appeal: Record. The propriety of refusing a continuance is not legally before the Supreme Court, where the bill of exceptions does not show the application therefor, and does show that the defendant answered ready when the case was called.
    3. EVIDENCE: Homicide: Insanity: Collateral, Kindred. Evidence as to the insanity of collateral kindred of the defendant in a homicide ease is not relevant under the defense of insanity.

      4.-: -: -:-: Cumulative. Tie showing in evidence that an aunt of defendant was insane-rendered unnecessary all cumulative evidence as to others of his aunts and uncles, and precludes a ruling as to whether such aunts and uncles are defendant’s collateral kindred in the sense conveyed by the rule of exclusion.
    5. -: -: -:-: Non-Expert’s Opinion. Where the facts are in evidence upon which a non-expert witness based an opinion as to the insanity of defendant’s grandfather, and the erroneous exclusion of the opinion itself did not materially weaken the effect of the evidence, such exclusion does not call for the reversal of this conviction of defendant for murder.
    6. -: -: -:-: Harmless Exclusion. In this prosecution for murder, to. which the defense of insanity was interposed, the exclusion of testimony of family tradition that the mind of defendant’s grandfather, who lived to he eighty or ninety years old, had been had for years, and that he lost his mind and had to he taken care of toward the last, was not reversible error. There was other evidence that quite a number of years before his death his mind failed, and, aside from that, it was no serious impeachment of defendant’s sanity that his grandfather’s^ mind, failed at an advanced age.
    7. INSTRUCTIONS: Murder. An instruction in a murder case is not erroneous because it reads: “and by the means and in the manner charged in the indictment and explained by instructions . . . herein.”
    • 8. -: -: State v. Duestrow. Instructions in a murder case based upon those in State v. Duestrow, 137 Mo. 41, -are upheld.
    9. -: Convicted of Murder: Manslaughter. A defendant convicted of second degree murder cannot complain of an instruction given, on the subject of manslaughter.
    10. ATTORNEYS: Improper Remarks in Argument. Where an attorney for the State made improper remarks to the jury in his argument, and withdrew them, only to make others of like kind and again withdraw them, the Supreme Court affirms the judgment convicting defendant of murder, only because there are no serious doubts in the minds of the court, arising out of the evidence, as to defendant’s guilt.
    11. JURORS: Competency. Taking their examination as a whole, as it is set out in the statement of this case, two jurors are held competent in a prosecution for murder to which the defense of insanity is interposed.

      Appeal from Jackson Circuit Conrt. — Hon. E. E. Porterfield, Judge.
    AFFIRMED.

      Boyle & Howell, Joseph 8. Broolcs and Langs-dale & Sowell for appellant. ‘
    (1) The conrt erred in sustaining objections to tbe questions asked of E. J. Smith, relative to the grandfather and other near relatives, of defendant. Baldwin v. State, 12 Mo. 223; State v. Schaefer, 116 Mo. 101'; State v. Bryant, 93 Mo. 273; Appleby v. Brock, 76 Mo. 317; Moore v. Moore, 67 Mo. 195; Crown v. Peters, 63 Mo. 434; State v. Speyer, 194 Mo. 459; State v. Duestrow, 137 Mo. 87. (2) The court erred in sustaining objections to the questions asked of J. W. Stephenson, relative to Nancy Smith, an aunt of defendant, and other near relatives of defendant. Authorities under point 1. (3) The court erred in sustaining the objections to the questions asked D. F. Baker. .Matters of family history are exceptions to the hearsay rule. The necessity principle applies.’ 2 Wigmore on Evidence, Secs. 1480, 1481, 1502; Vow-les v. Young, 13 Vesey, 140. (4) The court erred in giving instruction 12. It is vague and indefinite, and was confusing and misleading. It permitted the jury to find the defendant guilty of murder or manslaughter on the same state of facts and further failed to prescribe what degree of murder. It was further erroneous in directing the jury’s attention to the indictment and other special instructions for, the facts upon which to base its verdict. Besides the general doctrine announced by the' instructions is contrary to law. State v. McCasky, 104 Mo. 644; Andjins v. Hartman, 196 Mo. 539; Glasgow v. Railroad, 191 Mo. 347; Webb v. Carter, 121 Mo. App. 147; Jordan v. Transit •Co., 202 Mo. 418; State v. Chambers, 87 Mo. 406; State y. Scott, 109 Mo. 226; State v. David, 131 Mo. 380. (5) Instruction 13, given on behalf of the State is erroneous. It incorrectly states the law. It further directs a verdict against the defendant without telling the jury of what offense they should find him guilty. It does not require that the act should have been done wrongfully, premeditatedly, with malice aforethought or deliberately, but uses in lieu thereof the word's “as charged.” Authorities under point 4; State v. Parker, 172 Mo. 191; State v. Marsh, 171 Mo. 523.

      Elliott W. Major, Attorney-General, and John M. Dawson, Assistant Attorney-General, for. the State.
   ROY, C.

Under an information charging murder in the first degree, the defendant was convicted of murder in the second degree and sentenced to fifteen years in the penitentiary, and has appealed.

The defense was insanity. The evidence for the State tended to show a strong case of “wine and woman.” Prior to his acquaintance with deceased, the defendant was an apparently prosperous contract- or and builder in Kansas City. He had a family consisting of a wife and three children, of whom a son and daughter were grown. The son was married and worked with the father. The two daughters were at home. Defendant was attached to his home and family. He lived in a house belonging to the wife. It was encumbered. About four years, before the trial he met Euby Hirsch, the deceased, who was about eighteen years old, and illicit relations between them began at once. He became infatuated with her, and, according to his statement, gave her forty or fifty dollars a month. When his bounty slackened, she threatened him that she would reveal the situation to his wife. She sued him for $8000 as damages for an assault. He had the house where she lived raided by tbe police, and sbe was fined twenty-five dollars as an inmate of a bawdybonse. Tbe snit against bim was then dismissed for want of prosecntion. Tbeir rela-' tions continued. He became more and more addicted to liquor. His business, to a large extent, left bim, or was neglected. He borrowed small sums of money to satisfy her demands, and suspected her of using tbe money be gave her in keeping up other men. Sbe went on a visit to Topeka. He sent her ten dollars to pay her expenses borne. When sbe arrived in Kansas City, at bis request, sbe made an appointment to meet bim, and failed to keep it.

Tbe evidence for tbe State was to tbe effect that be corresponded with her through a saloon, and that on tbe night of tbe killing be put a pistol in'bis pocket, went by tbe saloon, got one or more drinks, and went to tbe flat occupied by Ruby Hirscb and her mother.

A witness, Emil Myer, testified that when defendant reached tbe Hirscb home, tbe witness bad been there about two hours, and bad gone into tbe bath room adjoining tbe front room, when tbe defendant called; that tbe bath room door was slightly open; and that tbe defendant, on coming into tbe front room, said to Ruby, “You done me dirty,” and sbe said, “No, I didn’t. Mama wanted me to stay here.” That defendant said, “Where’s that ten I sent you?” Sbe said, “If that is what you want, I will get that for you and you can go.” That then defendant pulled a pistol from bis pocket and fired at her five times. Sbe fell unconscious and was taken to tbe general hospital, where sbe died tbe following night of her wounds.

Tbe defendant, in. a statement made by bim tbe morning after tbe killing and while under arrest, said that be remembered putting tbe pistol in bis pocket and taking a drink at Riddle’s saloon tbe night before, but that be did not remember what occurred after that.

The mother of Ruby Hirsch testified that she was on the hack porch and heard a shot fired and heard Ruby scream, then heard four more shots, and when witness got into the front room she saw Ruby lying on the floor and the defendant standing over her, pointing the pistol at her. She did not remember what was said by either her or the defendant. The witness ran out calling her other daughter and left defendant standing there. "When she got hack, the defendant was gone. About four o’clock the next morning, he passed across from the opposite side of the street to his house, barefoot and hatless, in his shirt sleeves, and was arrested by the officers who were waiting for him. His discarded clothing was found a few blocks away between the sidewalk and the street in the weeds which were mashed down and “looked like he had been wallowing around there.”

The defendant was born in Scotland county, Missouri, and lived there until about thirteen years of age, going with his family in 1878 to the vicinity of Phillipsburg, Kansas, where the family lived on a farm. He was badly afflicted with asthma until he left Missouri and had'frequent spells of suffocation on account of that affliction, and was known to wake at night and try to climb the walls of the room.- His asthma disappeared after he went to Kansas; but the evidence of his brothers and sisters showed that he had spells of melancholy, and was weak and unable to work for a large part of the time while in Kansas.

His mother, according to the evidence of the family and relations, was weak and nervous, and died of paralysis at the age of forty-six. By reason of the paralytic stroke she was bedridden for two years. She had asthma all her life and was a great sufferer from it. She had spells of smothering and of sick headache every few days. She would at some of those times say “you children don’t look right to me.” She was mentally all right when she did not have those choking spells. "While in snch condition she was conscioiis bnt conld not talk. One of her sons, John, testified that she was nervons and had heart trouble and smothering spells in which she would pass away just like somebody dying, and would come to with a grip and jerking, with eyes set hack like a dead person, and her mind would wander, and she would say, ‘ ‘ This is not my home.” A nephew of hers testified that she was “weakly, nervous, excited and broke down.”

Defendant’s father died at about eighty years of age, having been paralyzed about seven years. One of his sons and a daughter testified that prior to his paralysis he was a robust, strong man. The daughter said that he had a fainting spell once while chopping sunflowers out of the corn.

The defendant had two sisters and three brothers who lived to he grown. All were afflicted with asthma in their childhood, the most of them getting better of it as time went by. Albert, one of the brothers, died at the age of forty, some of the witnesses saying that he died of asthma, and others that he died of consumption. John, another brother of defendant, lives in Oklahoma. He testified that he had one hard spell of asthma after going to Kansas and that it still affects his heart and that it appears like it is going to stop beating.

Another brother of defendant, "W. F. Baker, fifty-six years old, was a witness at the trial. • He suffers from asthma, but' appears to he otherwise in good health.

Two sisters of defendant testified by deposition. Both suffered from asthma. One got relief after moving to New Mexico. The other still suffers from it. She had spells or spasms until about fifteen years old. Since then she has spells with her heart and with asthma. She is very nervous. A nephew of defendant who is a son of his brother John, at the age of twenty-three had a spell of typhoid fever, with complications of asthma, and was in the insane asylum of Oklahoma from September to April.

H. 0. Baker, a paternal uncle of defendant, lived to the age of eighty-eight. During the last five or six years of his life, his mind failed him, so that he would run away from his home, tear up his bedding, etc.

Prank Baker, an uncle of defendant, had two sons Marion and Wash who were shown to be poor business men, and who acted in a peculiar and erratic manner. George Baker, a grandson of Prank Baker, and a second cousin of defendant was an idiot.

Nancy Smith, a paternal aunt of defendant was adjudged insane in 1903 in the probate court of Scotland county. She had a daughter, Jennie, who, as the evidence tended to show, was weak minded. The defendant’s paternal grandfather had been married three times and had eighteen children. A witness stated that “quite a number of years before his death he didn’t know his own folks. He didn’t know his children at times and wanted to go home. lie would get away and couldn’t find his way back.”

E. J. Smith testified by deposition for defendant, stating that he knew John Smith, defendant’s grandfather, for thirty or forty years, beginning when he (Baker) was about fifty. He was then asked whether John Baker during the last years of his life was of sound or ansound mind. He answered that “ it was unsound.” He was then asked, “What, if anything, caused you to form that opinion,” and answered, “Quite a number of years before he died, he didn’t know his own folks. He didn’t know his children at times and wanted to go home. Pie would get away and couldn’t find his way back.”

At the trial the answer of the witness stating that John Baker was of unsound mind was, on objection of the State,' excluded; but the answer to the subsequent question was read in evidence. The following from the deposition of D. F. Baker, a cousin of defendant, was offered by defendant and excluded by the court:

“Q. State whether or not yon have heard members of yonr father’s family discnss the mental condition of yonr grandfather, John Baker. A. Yes. I heard them talk abont them.
“Q. State if yon know what the family history was npon that suggestion. A. Well, they claimed his mind had been had for years and towards the last that he got so he lost his mind and had to he taken care of.”

As to the sanity of Marion Baker, a son of Frank Baker, and a second cousin of the defendant, Mr. E. L. Clark, who had been sheriff of the county and was a second cousin of Marion, stated Marion would talk at random and would go to Iowa and leave his growing crops which his father would have to care for. D. F. Baker, a brother of Marion, testified by deposition that he did not think Marion was of a thoroughly sound mind, because of the way he conducted his business ; that he had left a growing crop of corn and his stock and gone to Iowa and stayed all fall and winter, and his father had to attend to those things for him. That testimony of D. F. Baker was on the motion of the State excluded.

On the same question, E. J. Smith testified by deposition (referring to Marion Baker), “I didn’t think he had a sound mind. In fact he wasn’t capable any time. Neither Wash or Marion was capable of transacting their business. They ran through with everything their father gave them.” On objection of the State, all that was' excluded except the first sentence.

J. W.- Stephenson testified by deposition as follows: “He (Marion) was about the same as Wash. He couldn’t manage his business. His father always had to transact the business on his farm and keep the run of things.” Which evidence was excluded on behalf of the State.

As to the sanity of Wash Baker,1 a son of Frank and a second cousin of the defendant, the record is as follows:

J. W. Stephenson testified by deposition, “I never thought he (Wash) was bright, didn’t think he was exactly right. Well, I don’t know as I could describe his action. He acted kinda curious, kinda silly minded.” The first sentence of the above was excluded on objection of the State.

E. J. Smith by deposition testified that Wash was of unsound mind and that witness formed that opinion from his dealings and transactions of business.

D. F. Baker, a brother of Wash, testified by deposition: “Well, I didn’t consider him [Wash] of a sound mind. My father bought a little place down east of town that he first lived on and assisted him and looked' after Ms business practically while he lived, up to his death, and succeeded in keeping that property in his name, but after he died he soon ran through with all he had. ’ ’

That evidence of D. F. Baker was on the State’s objection excluded.

E. L. Clark testified, “His [Wash’s] speech was rambling. He did all kinds of tricks. He had a sore leg and would show it to people who did not want to look at it. He was forty-five or fifty years of age. Always doing pranks that no one cared to see, standing on his head, standing against the wall and trying to stoop over without bending his knees. Did it so often that people made light of it. You could make fun of him to his face and he wouldn’t realize it. He had a man prosecuted, and the judge couldn’t keep1 him from saying what he wanted to say.”

On the question of the sanity of Frank Baker, a paternal uncle of the defendant, J. W. Stephenson, testified by deposition, “I don’t think his mind was right. ’ ’

On objection of the State it was excluded. The witness stated no facts on which he based his opinion, except that he was acquainted with Frank Baker.

E. L. Clark, a relative who had been sheriff of Scotland county, after stating that H. C. Baker, who died at the age of about eighty-eight years, for five. or six years before his death would get lost and te'ar his bed clothing, and could not understand what was told him, when asked whether any of the brothers of H. C. Baker were other than normal, rational people, said, “No, sir.” Frank Baker was a brother of H. C. Baker'.

There was evidence of many witnesses that defendant, prior to the killing, was of a melancholy disposition and sometimes forgot things that had recently occurred' until he would be reminded of them, and that he walked stooping forward,- not noting persons and things around him.

A large number of witnesses testified that prior to the last few years the defendant was an active, alert, clear-headed business man.

The defendant did not testify, but his statement made the morning after the killing was read in evidence.

On the 24th of January, 1911, the court overruled defendant’s application for a continuance and set the ease for trial on January 30, 1911, on which date the defendant announced ready for trial.

On his voir dire, juror J. H. Moberly said, “If a man is insane he should be punished some way, piob-ably not entitled to capital punishment, death, or anything of that kind, but if he is insane, then I consider him an improper man to run at large and be among the community; that he might damage others. He should be sent to the penitentiary or some other place.”

“Q. Suppose tbe instructions of tbe court said to you if you believed be was insane at tbe time of tbe homicide being committed, and bad since recovered, that you should discharge and acquit him. A. After be was proven insane?

“Q. Yes. A. I would not be very strong in favor of turning him loose.

“Q. So that, when you get down to tbe last analysis of tbe situation, you entertain rather a strong feeling against tbe defense of insanity in murder cases, don’t you? A. Yes, sir; I am not very favorable to those cases. I am not prejudiced against these people. They have my sympathy, but tbe outside world has my sympathy, and I would not be in favor— after they commit murder, kill somebody, I don’t think they should have a chance to do it again. I have some prejudice against the defense of insanity.

“Q. Is your prejudice directed against a bogus defense of insanity, or does it apply to an insanity defense honestly interposed as well? A. Well, it is mostly against a bogus defense. It is all against a bogus defense. I would consider an insanity defense honestly interposed, and would give the evidence such weight as the law would tell me I ought to give, and I would follow the instructions of the court in such a case. I would be inclined to think such a defense was bogus, until they showed me the contrary. If the defendant’s insanity is established to my reasonable satisfaction, I would follow the instructions of the court.

“Q. I want you to answer me this question without any ‘if’s.’ Are you absolutely sure you cán give the State and the defendant a fair and impartial trial ? A. I could do it, but I would rather not sit on this case. I am sure I could give them a fair trial. ’ ’

Juror Forbes stated that he could give the State and defendant a fair trial. “Q. Any doubt about it? A. I say if— Q. Don’t talk to me about ‘if’s.’ I want to know if you are absolutely sure you can give to the State and this man a fair and impartial trial? A. I know I could do that according to the evidence. I am not prejudiced. I am not very favorable towards those cases of insanity. I am unfavorably opposed to turning them loose to do something else of a similar character. If there was evidence that he was insane, I wouldn’t like very much to see him turned loose. I would be afraid of him. Q., Even if shown by the evidence, to your reasonable satisfaction that he had since recovered from it, you would be afraid he might have another spell of insanity, and you would hate to turn him loose then? A. We have places to keep those people and they should not be running at large. Q. If he has recovered since the homicide, how would you feel about it? A. Well, there might be a strain of insanity that he would be a dangerous man loose. Q. And you would be in favor of locking him up anyhow? A. Well, I suppose that would be left to the court to decide what to do about it.”

The defendant’s challenge of those two jurors was disallowed, and Mr. Moberly was left on the trial panel.

Counsel for State in their arguments used the following language:

(Mr. Jacobs) “It is a remarkable fact that when a crime is so inexcusable, when no justification and no defense can be found for it, it is a fact that when every source known to clever counsel has been exhausted they always and invariably take their stand upon that worn-out and threadbare ground of insanity and mental derangement.”
(Mr. Jost) “I want to say to you as God is my judge, if I had the decision of this case myself, if I could say the word that would pass the judgment it would be a judgment of guilty. I say it on my conscience and my honor.” Also: “The proper thing here is second degree murder. This man is guilty of it, if there ever was a criminal brought to the bar charged with the crime, he is guilty. ...”
On objection the last statement was withdrawn.
“Mr. Jost also said: “And now, gentlemen of the jury, let me say this much, and I say it on my honor as a man, I say it on my conscience, I say it to you, gentlemen of the jury, because I believe it to he true, this man is guilty of murder and he ought to be convicted.
“I say, men, that this further consideration is to he urged here. There is a limitation upon the prosecuting attorney and I have got to observe it, and it would he unfair and improper for me not to observe it, but I can say this much, men, and still he within the limits of my privilege, that the only evidence of this man that you have comes from witnesses who are acquainted with him and from no other source; and •the only statements of this defendant that is before you, is the written statement here in evidence. I say that — and I am still within my privilege when I say, that the only utterances of this defendant that you have got here to consider is the written statement of his here, taken by Capt. Whitsett. ...
“Mr. Boyle: If your Honor please, I want to make an exception to that argument of counsel as it does by indirection that which the law forbids him to dó by direction, as it is an indirect statement to the jury that the defendant hasn’t spoken. ...
“Mr. Jost: It is no such thing.
“The Court: I will sustain the objection and withdraw the remark from the jury.
“Mr. Jost: Very well, I will withdraw that.
“The Court: That statement of the attorney for the State is withdrawn from the consideration of the jury and you will not consider it in arriving at your verdict.
“Mr. Jost: Very well. Then I will say this much. I can at least say this ranch: that the only attack on this statement that the defendant made is by some one else.
“Mr. Boyle: If yonr Honor please, Mr. Jost has again. . . .
“Mr. Jost: I will withdraw it. I want to get through. I want to get through this argument.
“Mr. Boyle: I am not going to simply permit you to dispose of my objection by a wave of the hand. I have certain rights I am going to maintain.
“Mr. Jost: I will withdraw it.
“Mr. Boyle: You can’t inject-poison and then take it out that way. You know this defendant has some rights. I am objecting to the statement of Mr. Jost, as made here, as he again does ’the same thing your Honor admonished him about a moment ago.
“Mr. Jost: I am going, I haven’t.made any statement, I withdraw it. There is not anything before the court.
“The Court: Proceed.”

The court gave an instruction on manslaughter in the fourth degree based on an involuntary killing, and refused one on the same subject asked by defendant based on a voluntary killing.

Appellant criticises the following portion of instruction numbered 12 given for the State: “Therefore, if you believe and find from the evidence, that the defendant, under the circumstances, and while being in the condition aforesaid, and by the means and in the manner charged in the indictment and explained by instructions numbered 1, 2 and 3 and 3-a herein, shot and killed Ruby Hirsch, then you will find the defendant guilty of murder or manslaughter in the fourth degree.”

The record fully shows the opening of the criminal court of' Jackson county at its April term, 1910, at* which term the information was filed. There was a continuance to the October term and again to the January term, 1911, when, on application of defendant, he was granted a change of venue to Division Two of that court.

On Jannary 2,1911, the following entry was made of record in said criminal court: “Now at this day the Honorable Ralph S. Latshaw, judge of Division One (1) of the criminal court of Jackson county, Missouri, files notice in writing to Honorable E. E. Porter-field, judge of Division Two (2) of the criminal court of Jackson county, to open said Division Two of the criminal court of Jackson county, in compliance with Sec. Two (2), page 210, Session Acts of Missouri, 1907.”

The bill of exceptions shows that the trial was in Division Two of the court.

I. Appellant makes the point that the record does not show that the order made by the judge of Division One was put in writing or served on the judge of Division Two. We will not go into a discussion of the provisions of the Act of 1907 (Laws 1907, p. 209). We simply reaffirm the salutary rule that want of jurisdiction must be affirmatively shown. It will not be presumed from the mere failure of the record to speak on that subject. [State v. Baty, 166 Mo. 561; McClanahan v. West, 100 Mo. 309.]

And State v. Baty, supra, is authority for the proposition that such presumption is in favor of the valid organization and opening of the court, as well as of the jurisdiction over the subject-matter and the parties.

II. The bill of exceptions does not show the application for a continuance, but does show that the defendant announced ready when the case was called for trial on January 30. The propriety of the court’s action in refusing a continuance is not legally before us.

III. Under the ruling of this conrt in State v. Soper, 148 Mo. l. c. 234, and State v. Pagels, 92 Mo. l. c. 307, evidence as to the insanity of collateral kindred is not relevant under the defense of insanity. The court did not err in excluding evidence as to the mental condition of the cousins and other collateral kindred of the defendant. Much of that kind of evidence was introduced, of which the defendant got the benefit. As to whether uncles and aunts are collateral kindred in the sense here under discussion we will not undertake to say, as the evidence shows that in 1903 Mrs. Smith, defendant’s aunt,-was adjudged insane. Such fact made all cumulative evidence on that subject unnecessary.

IV. It will he noticed from the statement of facts that the trial court admitted that part of the deposition of E. J. Smith which stated the facts which he observed with reference to the condition of the mind of John Baker, defendant’s grandfather, in the last years of his life, he having lived eighty or ninety years; but excluded the statement that his mind was unsound. Prom reading the record, we infer that the trial court distinguished between insanity and unsoundness-, and excluded that answer because he used the word unsound instead of the word insane. However that may be, the facts on which the excluded opinion was based are in evidence; and those facts contain in themselves the opinion of the witness. The witness stated, “He didn’t know his own folks. He didn’t know his own children at times and wanted to go home. He would get away and couldn’t find his way back. ’ ’ It was said in Huffman v. Huffman, 217 Mo. l. c. 230, that the facts upon which the nonexpert’s opinion is based are the principal element-of the testimony, and the opinion of the witness is only a secondary matter. The opinion of the witness should have been admitted, but its exclusion under the circumstances did not materially weaken the effect of the evidence.

Y. We shall not decide the question as to whether family tradition is admissible as evidence on the question of the sanity or insanity of a deceased ancestor. The court excluded the evidence of D. F. Baker as to the family tradition that John Baker’s mind had been bad for years and that towards the last he got so bad he lost his mind and had to be taken care of. The evidence in the case shows that John Baker was married three times and was the father of eighteen children and died at eighty or ninety years of age.

There was other evidence in the cause that ‘‘ quite a number of years before his death” his mind failed.

Conceding for the moment the competency of family traditions, the exclusion of it in this case was under the circumstances not reversible error. It certainly is no serious impeachment of the defendant’s sanity that his grandfather had at that extreme age “fall’n into the sear, the yellow leaf.”

VI. Appellant makes the point that instruction numbered 12 for the State refers the jury to the indictment and other instructions for the facts upon which to base their verdict. The language of the instruction is “and by the means and in the manner charged in the indictment and explained by instructions numbered 1, 2 and 3 and 3-a herein.” The use of the word “indictment” instead of information is of no importance. If the instruction had referred the jury to' the indictment or information for the facts charged and there stopped, it would have been error. It adds £ ‘ and explained by instructions,” etc. It is true that instruction does not tell the jury of what offense -they may convict the defendant. It leaves that matter to the other instructions which clearly distinguished between the facts necessary to constitute the different degrees of the offense charged. Instruction 13 for the State did not undertake to distinguish the degrees of the offense, but was confined to the question of motive.

Many criticisms of the instructions are made by the appellant, but we find that they are taken almost bodily from State v. Duestrow, 137 Mo. 44. Such' changes as were made were properly made to fit the facts of this case.

VII. The facts of this case distinguish it from State v. Speyer, 194 Mo. 459, in which there was an instruction on manslaughter. In this case the court instructed on manslaughter in the fourth degree based on an involuntary killing and refused an instruction asked by defendant on manslaughter in the fourth degree based on a. voluntary killing. In our opinion there was no manslaughter in the case.

A stereotyped instruction is as follows: “He who wilfully, that is, intentionally, uses upon another, at some vital part, a deadly weapon, such as a loaded pistol, must, in the absence of qualifying facts, be presumed to know that the effect is likely to be death, and knowing this, must be presumed to intend death, which is the probable consequence of such an act, and if such deadly weapon is used without just cause or provocation, he must be presumed to do it wickedly and from a bad heart.” [State v. Duestrow, supra.]

There was no pretense of any provocation or justification or excuse in this case. The jury found in effect that he was not insane. The defendant cannot complain of the instruction given on the subject of manslaughter, as he was not convicted of that degree of the offense. [State v. Privitt, 175 Mo. l. c. 231.] There was no evidence to support the instruction asked by him on that subject.

VIII. The remarks of Mr. Jost in his argument to the jury calling attention in an indirect and covert way to the failure of the defendant to testify were improper. Surely the representative of the State who pursues a violator of the law should be willing to keep within the certain limits of that law. In this case the language was withdrawn hy Mr. Jost and by the court, and the jury were told to disregard it. The worst of it all was the immediate repetition >of the offense, but that was followed hy an immediate withdrawal hy counsel of the language used.

No case has yet held that remarks of counsel in argument which were withdrawn by counsel constituted reversible error. We are not willing under the facts of this case to so hold. In the Spivey Case, 191 Mo. l. c. 112, and in the Deitz Case, 235 Mo. 332, counsel repeatedly offended in this respect and disregarded the cautions of the court. In this case counsel withdrew his remarks. We do not mean to say that a withdrawal will in all cases cure the error.

The act of counsel for the State in calling G-od to witness the sincerity of his belief in the guilt of the defendant was out of place. Every effort to substitute the opinions of others for those of the jury as to the guilt of one accused of crime is to be strongly condemned.

If there were serious doubts in our minds, arising out of the evidence, as to the defendant’s guilt, we would reverse the case on account of the misconduct of counsel. We affirm the case because we are satisfied the same result would have been reached in any event.

IX. The examination of the jurors Moberly and Forbes shows that they were men of intelligence and disposed to follow the line of their duty under the instructions of the court. The defendant’s counsel seem to have been so impressed with Mr. Moberly’s attitude that they left him on the trial panel. Of course that did not deprive defendant of his right to insist upon the point here. Taking their examination as a whole, we think they were competent jurors.

The judgment is affirmed.

Blair, G., concurs.

PER CURIAM.

The foregoing opinion of Roy, G., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: BLAIR, C. PER CURIAM.

license: Public Domain

text:
    GEORGE W. RINKEL, Appellant, v. GEORGE W. LUBKE et al., Executors et al.
    Division Two,
    December 10, 1912.
    1. EVIDENCE: Sanity of Grantor of Land: Record of Former Trial. The record of a will contest in which, the verdict was that the testator lacked testamentary capacity in November, 1892, is not evidence that the same man was of unsound min.d ■' in August, 1890.
    2. APPEAL: Petition: Evidence. In a suit to declare what purports to he a warranty deed a mortgage, it is alleged in plaintiffs petition that the grantee falsely and fraudulently represented to the grantor that there were two deeds of trust on the property and the deed in suit was intended to secure that indebtedness. Held, that, since there was no direct evidence at all and no circumstantial evidence of consequence to support such allegation, and since "the appellant practically ignored it in his briefs upon appeal, the Supreme Court also may well ignore it.
    3. DEED: Absolute on Face: Mortgage: Evidence. To destroy the presumption that a deed absolute upon its face is absolute in fact, the evidence must be clear and convincing and exclude every reasonable doubt.
    4. -: —-:-: -: Holding. Held, in an action to have a deed purporting to be absolute declared a mortgage, and to recover the proceeds of real estate, that the evidence is insufficient to support the action.
    5. APPEAL: Equity: Rulings on Evidence. The Supreme Court does not. usually reverse judgments in equity because of erroneous rulings in admitting and excluding evidence, but reaches its judgment on the competent evidence; without regard to the trial court’s rulings.

      Appeal from St; Louis City Circuit Court. — No». Matt Q. Reynolds, Judge.
    Arrirmed.

      W. B. Thompson and Ford W. Thompson for appellant.
    (1) The court erred in excluding the memorandum in the private book of accounts of F. W. Henze, dated August 1, 1896. 2 Wigmore on Evidence, Secs. 1455, Í458, 1464; Greenleaf on Evidence (16 Ed.), Secs. 150-152. (2) The court committed error in excluding the testimony of L. F. Ottofy with reference to conversations with F. W. Henze. ( Hamil v. England, 50 Mo. App. 346. Counsellor plaintiff stated to the court what he proposed to prove by the attorney, and the record shows that the evidence attempted to be adduced from the attorney was competent and material. Hickman v. Green, 123 Mo. 179. The communication made by Henze to Ottofy subsequent to the termination of the contest of the will, and when preparations were being made to take an appeal, was not privileged. Gerhardt v. Tucker, 187 Mo. 46 ; Rosseau v. Bleau, 131 N. T. 177; Collins v. Robinson, 72 Hun. 495; Koe-ber v. Somers, 108 Wis. 497; Railroad v. Brookings, 51 S. W. 53; 10 Ency. Evidence, 25b; State v. Faulkner, 175 Mo. 597; State v. Lehman, 175 Mo. 625, (3) The court erred in excluding the record of the contest of the will of F. W. Hamburger, Sr.: (a) Because the parties in the pending suit are either the same or in privity with the parties to the former suit, (b) The .judgment entered in said suit was competent evidence tending to prove the averment of the petition, that Hamburger was and had been for a long time incapable of managing his affairs and mentally incapacitated for the transaction of any business; that Henze had an influence over Hamburger, Sr., and also tended to show Henze exerted said influence for his own benefit. Phillips v. Jamison, 51 Mich. 153. Judgments are admissible in evidence when the same subject-matter again comes in controversy between the same parties.

      George W. Lubke and George W. Lubke, Jr., for respondents.
    (1) The entry in Henze’s private cash hook was not copipetent as a hook entry in the absence of a showing how the hook was kept. Wigmore on Evidence, Secs. 1523 to 1528. Nor was it competent as an admission in the absence of a showing that it was seen by some person other than Henze in his lifetime. Nelson v. Boland, 37 Mo. 433; Robinson v. Cushman, 2 Denio. (N. T.) 149; United Press v. Abell Co., 80' N. Y. Supp. 149; Brewing Co. v. Pearson, 74 N. Y. Supp. 187. (2) The testimony proposed to be given by L. P. Ottofy, attorney for Henze, as to conversations with him during the pendency of the suit , to contest F. W. Hamburger, Jr.’s, will was rightfully excluded ■by the court because it was a privileged communication. It was immaterial that some one other than Henze paid Ottofy. According to the petition and record of that case Ottofy was Henze’s attorney. Cross v. Riggins, 50 Mo. 335; Hull v. Lyon, 27 Mo. 570; Johnson v. Sullivan, 23 Mo. 474; Cray v. Fox, 43 Mo. 570; Aultman v. Daggs, 50 Mo. App. 280; Fry v. Estes, 52 Mo. App. 1; Farrell v. Insurance Co., 66 Mo. App. 153; Pinson v. Campbell, 124 Mo. App. 260; Smoot v. Judd, 161 Mo. 689; R. S. 1899, Sec. 6362. (3) The parts of the record in the suit to contest the will of F. W. Hamburger, executed Nov. 2, 1892, more than two years after the execution of the deed in question, were not competent for any purpose in this case. They could not prove Hamburger’s mental condition in August, 1890, two years before the will was executed, and could not prove any fraud practiced by Henze on Hamburger in the execution of the deed. (4) The purport of all the evidence excluded by tbe court below is preserved by the bill of exceptions. This evidence will, therefore, be considered by this court in the determination of this cause and admitted or rejected. If after considering and ruling on the excluded evidence this court reaches the conclusion that the judgment of the court below was for the right party that judgment will not be disturbed, but affirmed. Walther v. Null, 233 Mo. 104; Lindhorst v. Asylum, 231 Mo. 679'; McKee v. Downing, 224 Mo. 115; Jones v. Thomas, 218 Mo. 508; Hanson v. Neal, 215 Mo. 271; Gibbs v. Haugh-owout, 207 Mo. 384. (5) Considering all the evidence in the case, that excluded as well as that admitted, plaintiff is not entitled to recover. In order that a deed absolute on its face may be reformed and declared to be a mortgage, there must be proof so clear and unequivocal that a debt due from the grantor to the grantee existed and that it was the intention of the parties that the deed should be only a security, that no reasonable doubt is left in the mind of the chancellor as to the agreement of the parties. If no debt is proved to exist, there can be no mortgage. Worley v. Dryden, 57 Mo. 266; Bobb v. Wolff, 148 Mo. 335; Jones v. Rush, 156 Mo. 364; G-erhardt v. Tucker, 187 Mo. 46; Bailey v. Trust Co., 188 Mo. 483; Jones v. Hubbard, 193 Mo. 147; Duell v. Leslie, 207 Mo. 658; Donovan v. Boeck, 217 Mo. 70; Whelan v. Tobener, 71 Mo. App. 361.
   BLAIR, C.

As. the residuary legatee of Frederick W. Hamburger, Jr., who in turn was the sole heir of Frederick W. Hamburger, Sr., appellant instituted this suit in the circuit court of the city of St. Louis to recover the proceeds of certain realty in St. Louis county conveyed by Hamburger, Sr., to Frederick W. Henze by a deed absolute on its face but alleged to have been in fact a mortgage. Three of the respondents are the executors and the others the devisees of Henze. The deed to Henze .recited a consideration of $5000 ($4000 cash and a balance of $1000 dne on two deeds of trust), and the property it conveyed consisted of sixty small lots, each about twenty-five by one hundred and twenty feet, the tract being known as the Oak Hill property, situated on what is called the St. Charles Eock Eoad in St. Louis county. The judgment below was for defendants.

The deed assailed was dated August 11, 1890, and the petition alleges that while it is absolute on its face it was executed by Hamburger solely for the purpose of vesting in Henze the legal title to the Oak Hill property to secure the payment of certain indebtedness of Hamburger, Sr., to Henze, and was for a time recognized and acknowledged by Henze to be simply a mortgage. It is further alleged that at the time the deed was executed Hamburger, Sr., was mentally incapable of transacting business and that Henze induced him to execute the deed by falsely and ■ fraudulently representing to him that there were then on the property two deeds of trust securing $1000, and that the deed executed was intended to secure that indebtedness. It is further alleged that there were, in fact, no deeds of trust outstanding against the property. Other allegations are that Henze did not assert title in himself until after the death of both the Hamburgers, father and son, and then he did so by having the deed to him recorded a second time, January 21, 1897; that plaintiff had no knowledge of the facts set forth until after Henze’s death in 1905; that some of the lots were sold by Henze in his lifetime and the others by those defendants who are legatees of Henze, and prays an accounting and judgment against the executors for the amount realized by Henze from the lots he sold, less amounts found due him, and against Henze’s legatees for the sums realized by them.

Separate answers were filed, one by the executors and one by the devisees under Henze’s will. Each admitted Henze’s death, the probate of his will and the issuance of letters testamentary and denied all other allegations, and, in addition, contained pleas of the five and ten-year Statutes of Limitation.

The evidence showed that for some years prior to 1890 Frederick W. Hamburger, Sr., had owned the Oak .Hill propery and another tract known as the Darby Hill property, making his home on the latter. In 1888 he platted the first named parcel. Hamburger, Sr., and Henze were brothers-in-law and as early as 1878 Henze had loaned Hamburger money, taking a deed of trust on the Oak Hill property. August 11,1890', Hamburger, Sr., and wife executed the deed now assailed. It was absolute on its face. Frederick W. Hamburger, Jr., also signed this deed as a witness to his father’s signature. November 29, 1892, Hamburger, Sr., died leaving a will (which was subsequently set aside), and the executor thereof filed an inventory of the estate which included none.of the Oak Hill property except one lot. Subsequently the will was set aside and Hamburger, Jr., sole heir of Hamburger, Sr., was appointed administrator d. b. n. and adopted the inventory filed by the quondam executor. In the meantime Henze had been selling lots in the Oak Hill tract, at least one such sale having been made prior to Hamburger, Sr.’s,- death. The evidence is conflicting on the question whether Henze or Hamburg'er, Sr., exercised dominion over the Oak Hill property in 1891 and 1892 but there is practically no dispute as to Henze’s possession after 1893, and it is admitted he paid the taxes falling due after the date of the deed to him.

April 30, 1896, Frederick W. Hamburger, Jr., died, leaving a will whereby he devised to appellant all his property except legacies of insignificant amount to certain relatives, one of these legatees being Henze’s wife. January 21, 1897, the deed- of August 11, 1890, was recorded anew, the first record of it not conforming to the deed with, respect to the description of one of the lots. Appraisement and inventory of the estate of Hamburger, Jr., were filed May 7,1896, and included only the Darby Hill property, disclosing that it was subject to three deeds of trust aggregating $4750, the last two being for $1000 and $750 respectively, and being made to secure loans from appellant to Hamburger, Jr. April 10', 1897, this property was sold under the first deed of trust ($3000) and was bought in and subsequently sold by appellant’s sister. A short time thereafter the heirs of Hamburger, Jr., including Henze’s wife, instituted proceedings to have his will declared invalid. Henze was joined with his wife as a party. Judgment went against the contestants. March 21,1905, Henze died leaving the will referred to above. Before his death he had sold most of the lots but, except as to a few, it does not appear when, to whom or for what prices these sales were made. The remaining lots were devised to certain of the respondents herein and they had sold these lots prior to the commencement of this suit, March 21, 1907. In 1890 the Oak Hill property had been platted but the streets had not been made and the witnesses referred to it as “acre property.” It consisted of about seven acres and the testimony as to its value in 1890 ranged from $350 an acre to five dollars a front foot.

To show Hamburger, Sr.’s, incapacity to execute the deed of August 11, 18901, appellant offered the petition, instructions, verdict and judgment in the contest proceedings in which Hamburger, Sr.’s, will was set aside, but the court excluded this.

The evidence relied on to show that the deed mentioned was really a mortgage consisted mainly of statements of Henze.

Mrs. Gaines, sister-in-law of Henze, said that before the suit to set aside Hamburger, Jr’s., will was instituted Henze said to one of the attorneys that he had no interest in the matter and wanted his wife’s share to go to witness, and said to her that if the will of Frederick W. Hamburger, Jr., was not set aside, Rinkel “would get it all.” Whether this occurred prior to the sale of the Darby Hill property under the deed of trust does not appear.

James M. G-renolds testified that within a year before the senior Hamburger died he heard Henze tell Hamburger, Jr., that he, Henze, held a mortgage on the Salzman avenue place and if the son behaved himself the property would be all his. Witness lived in one of Henze’s places from 1888 to 1893 and then moved away.

Mrs. Bernardine Hamburger, whose husband is a nephew of Frederick W. Hamburger, S,r., testified that after the death of Frederick W. Hamburger, Jr., Henze said to her that in case he and Mrs. Henze died there “was plenty for both sides” and that he would “look out that Rinkel and Thompson won’t get hold of this. ’ ’ She said he was talking of the land the railroad company bought.

Appellant testified the first information he had that the deed of August 11, 1890, was in a fact a mortgage was received from the witness Mrs. G-aines just before this suit was begun; that at the time suit was begun to set aside the will of Frederick W. Hamburger, Jr., all real estate inherited by the latter from his father had been sold under deed of trust and there was, apparently, no property belonging to the estate; that he found an unreleased deed of trust to Henze against the Darby Hill property; that the note secured had previously been paid and Henze, when applied to in 1903, executed without objection a deed of release to Mollie H. Rinkel and William B. Thompson, who seem then to have owned the Darby Hill tract.

Appellant also offered in evidence certain mem-oranda, offering in that connection testimony that the handwriting was that of Henze and the book was one kept by him and found in his safe after his death. The part offered was as follows:

Appellant then called an attorney who represented the contestants in the snit to set aside the will of the junior Hamburger and offered to prove by him that Henze, though a party, did not employ or pay him and then offered to prove by the attorney that after judgment for the contestee in that case, and while the contestants were preparing to take an appeal, he had a conversation with Henze in which Henze stated he knew there was no property which could be affected by the will except the Oak Hill property; that it stood in his, Henze’s, name and the intention of the contestants was to prevent appellant from getting it; that all other property owned by Frederick W. Hamburger, Jr., had been sold under deed of trust. This the court excluded.

The same witness testified he had examined the records of St. Louis county and there were no unreleased deeds of trust against the Oak Hill property August 11, 1890.

For defendants Ernest Gleditzsch testified that Hamburger, Sr., in 1889 attempted to sell him one of the Oak Hill lots, but he did not purchase; that after-wards he concluded to buy and in 1891 saw Hambur- ' ger, Sr., and was told by him he had sold the place to Henze and to see Henze about it. Hamburger said be sold tbe place in order to clear tbe Darby Hill property where be lived, clear up bis debts, and have tbe Darby Hill tract unincumbered.

It also clearly appeared from tbe testimony of Frank C. Schmidt that tbe reason tbe deed of August 11, 1890, was recorded anew in 1897, was that in copying it into tbe record tbe first time it was recorded, there was a partial omission of tbe description of one of these lots; that this lot was sold and tbe purchaser complained to Henze that tbe title was bad; that, tbe latter promised to look into it and, later, in 1896 or 1897, told the grantee be bad “a record of tbe deed made,” bad “straightened tbe thing out.” Later the lot owner secured a certificate showing perfect title.

Two deeds of trust on tbe Darby Hill property showing releases dated September 11, 1890, were put in evidence. One was for $500 and tbe abstract does not give tbe amount secured by tbe other.

I. Tbe only evidence offered which it is suggested tended to show that in August, 1890‘, Frederick W. Hamburger, Sr., was mentally incapable, was tbe record in tbe contest .of bis will in which tbe verdict and judgment could hardly be said to mean more than that in November, 1892, be lacked testamentary capacity. There was no offer to prove otherwise whether bis mind was sound in August, 1890, and no offer to show that bis condition in November, 1892, was tbe same as in August, 1890'. The issue in tbe case mentioned was tbe mental capacity of Hamburger November 2, 1892, and, though tbe judgment be assumed to be admissible, it could not alone have justified tbe trial court in finding be was insane nearly two and a half years theretofore and, consequently, could, not justify this court in making such a finding now.

Tbe allegation that Hamburger, Sr., was mentally incapable to execute tbe deed of 1890 must be ignored in the further consideration of the case. In fact, appellant’s counsel seem to lead the way in respect to this, there being no contention in this court that the deed was invalid for the reason mentioned.

II. There is no direct evidence of any kind and no circumstantial evidence of any consequence that Henze made any representations to. Hamburger, Sr., false or otherwise concerning the existence of deeds of trust on either the Oak Hill or Darby Hill property. The consideration clause in the deed is not set out literally in the abstract and the only statement relating to that feature is added in pen and ink and is as follows: ‘ ‘ The consideration in this deed was the payment of $4000', the grantee agreeing to pay the balance of $1000 on two deeds of trust on said property” and is the language of the abstracter, not of the deed. It appears there were two deeds of trust on the Darby Hill property in August, 1890, and these were released of record September 11, 1890. There is no direct evidence that Hamburger paid Henze any money at any time. One of the deeds of trust mentioned secured $500 and the amount secured by the other is not shown by the record though it was before the trial court.

No effort was made to dispute the recital of the deed that part of the consideration was $4000 in cash. Appellant having practically ignored in his evidence, and in his briefs here, the allegations to the effect there was no consideration for the deed, we may with propriety, at this stage of the case, follow his example.

III. The somewhat confusing allegations of the petition are clarified by appellant’s course on- the trial in practically confining his evidence to the allegation that the deed of August 11, 1890, was in fact a mortgage. This deed is absolute on its face and to destroy the presumption arising therefrom that it is and was, as it purports to be, absolute in fact, it is neces sary that the evidence adduced to prove it to be a mortgage be clear and convincing and exclude every reasonable doubt. [Gerhardt v. Tucker, 187 Mo. l. c. 57; Jones v. Rush, 156 Mo. l. c. 376.]

There is no direct evidence of any agreement between Frederick W. Hamburger, Sr., and Frederick W. Henze except that contained in the deed. The language of the deed is merely that of an absolute conveyance. Frederick W. Hamburger, Jr., under whom appellant claims, witnessed Ms father’s signature to the deed to Henze. The deed was recorded immediately and besides the actual knowledge Hamburger, Jr., would seem to have had of it, its record became constructive notice to him, after his father’s death at least, of the fact the deed existed and showed the record title to be in Henze, Hamburger, Jr., after his father’s death, obtained a judgment invalidating the will executed by his father November 2, 1892, and thereby became entitled to all' property owned by his father at his death. As administrator d. b. n. he adopted an inventory of the estate to which he was sole heir, which inventory purported to list all realty of the estate but did not include the Oak Hill property, except the one lot insufficiently described in the first record of the deed of August 11, 1890; This inventory thus adopted took full cognizance of the deed mentioned and proceeded on the theory it was absolute in fact, and must have been based upon an examination of the record of the deed since it was partly predicated upon an error in that record. In view of these facts the testimony of Grenolds that Henze’s statement to Hamburger, Jr., said to have been made within a year before Hamburger, 'Sr.’s, death, had reference to the Oak Hill property is not to be given much credit. Hamburger, Jr., did not so understand it. His subsequent adoption of the inventory which did not include the Oak Hill property (except the one lot), and his failure to take any note of the matter though he was paying up other debts of the estate, and his closing np the administration in 1895 without listing the alleged debt or the property now claimed to have secured it, and his failure to take any steps of any kind in regard to the property, even as to the payment of tases, are not consistent with the testimony Gren-olds gave and the knowledge Hamburger, Jr., unquestionably had if Grenolds’s testimony was in all respects true. Besides, during the life of Frederick W. Hamburger, Jr., Henze was selling these Oak Hill lots and the deeds thereto were being recorded in St. Louis county. Grenolds’s testimony is explicable, in view of Hamburger, Jr.’s, subsequent conduct, only on the theory that he was mistaken as to the date of the conversation to which he testified or as to the property referred to in that conversation. He was testifying, fifteen or sixteen years after the event, to a casual conversation in which Henze was impressing upon Hamburger, Jr., the necessity of conducting himself properly. Grenolds’s understanding of Henze’s statement is wholly out of accord with young Hamburger’s subsequent conduct, and the latter’s interest in the property was such that his acts, and omission to act, in recognition of Henze’s title effectually eliminate Grenolds’s testimony from the case.

The testimony of Mrs. Gaines possesses no real probative force. She finally testified that: “All he [Henze] said, as far as I remember was ‘now, if you don’t set aside that will, you get nothing and Mr. Rinkel will get it all.’ ” She had attempted to say Henze was referring to the Oak Hill property, but both her direct testimony and cross-examination show that was but her own inference from the language quoted and that quoted was all Henze said. Further, the date of the conversation was not given except that it was before the suit to set aside the will of Frederick W. Hamburger, Jr. Whether it was before or after the sale of the Darby Hill property under the deeds of trust does not appear. If before such sale, what was said was as referable to the Darby Hill property as any other. It does not appear, either, that Henze was advised, of the insolvency of the estate of Frederick W. Hamburger, Jr., and if he was not, the statement made conld as well have referred to the general estate on the assumption, usually tenable, that there was property of some kind to be distributed under the will.

Mrs. Bernardine Hamburger in her testimony does not identify the property referred to by Henze when he said ‘ ‘ there was plenty from both sides, from my wife’s side and from my side . . . and I am going to look out that Rinkel and Thompson won’t get hold of this.” She says he was “talking about the land the railroad had bought,” but the record does not disclose what property that was or that Henze said anything else about it. In no event conld this statement of Henze be taken to mean he had but a mortgage on the Oak Hill property. It really amounts to a statement that he and his wife had property which on his and her deaths would go to the kin. The probability of the wife dying under an impending operation gave origin to the conversation in which the statement is said by the witness to have been made.

The memorandum said to have been entered by Henze in his cash book apparently does not refer to the deed of August 11, 1890, since the memorandum itself indicates the deed therein referred to was not recorded anew but was returned to Henze and “nothing done with the deed.” The entry as to the delivery of the deed for recording was made under date of “August, 1896.” The marginal note of return of the deed by Roster to Henze is dated January 15, 1896. The conclusion that this last date is an error, probably induced by the presence of the date immediately above, and that the real date of the marginal entry was January 15, 1897, is the most reasonable. Adopting this conclusion the memorandum and note could hardly have referred to the deed of August 11, 1890, since it was recorded anew January 21, 1897, and in view of Schmidt’s testimony no reason appears why it should have been recalled and then redelivered for record, without memorandum thereof, prior to January 21, 1897.

In the circumstances, we think the entry from the cash hook of no importance, without further evidence connecting it with the deed assailed, and consequently, find it unnecessary to determine the question of its admissibility.

A deed of trnst dated May 15, 1879, on which Henze had noted a payment of interest and $115 on the principal and indorsed on the deed a statement, dated February 26, 1891, that Hamburger, Sr., owed him, Henze, nothing at that time, was put in evidence by appellant’s counsel. There is another undated notation on the deed to the effect it was to be returned to Hamburger, Sr., “after rec. the new one.” Without the aid of dates memoranda of this kind are of practically no value and the only one which is dated is squarely opposed to the idea of the existence of a mortgage or any debt due from Hamburger, Sr., to Henze in 1891.

The weight of the evidence is that Henze had possession of the property at least from and including 1893 forward. The evidence of Hamburger, Sr. ’s, possession during 1891 and 1892 is unsatisfactory. For instance, one witness who testifies to that effect also testifies Hamburger sold Gleditzsch the lot he bought. This is clearly incorrect, Gleditzsch having purchased from Henze. Again, some of the witnesses recall Hamburger, Sr.’s, possession from the fact of his filling up a pond and platting the property. The property was platted in 1888 and the pond filled before the platting was done. That Henze’s grantees and tenants were in possession of part of the property in 1893, and that Hamburger, Jr., exercised no dominion over it from that time on appears from the weight of the evidence. In addition the testimony of Grleditzsch, who went to Hamburger, Sr., in 1891 to purchase one of the lots and who was told by him that Henze owned the property and to see him, is clear and the date fised by the fact of witness’s removal to the city the preceding fall, 1890.

There is ample evidence that $5000 was an adequate price for the property. At any rate there is no such evidence that the price was inadequate as to convince us, in view of the trial court’s finding, that this element now deserves to he considered as important.

The evidence for appellant, so far as reviewed, is weak and equivocal (Gerhardt v. Tucker, supra) and has, when considered as a whole, little or no probative force, many of the circumstances developed strongly tending to support the deed assailed and being inconsistent with the idea of its being other than its language indicates.

It is urged, however, that Mr. Ottofy’s offered testimony was admissible and that it was error to exclude it. It is unusual to reverse judgments in equity on records like that before us because of erroneous rulings in admitting and excluding evidence, this court, on the hearing here, admitting and considering such evidence as it deems admissible, and excluding from consideration evidence improperly admitted and reaching its judgment on the competent evidence offered without regard to the trial court’s rulings in' that connection. [Hanson v. Neal, 215 Mo. l. c. 271; Jones v. Thomas, 218 Mo. l. c. 544.]

If the case be considered as if Mr. Ottofy’s testimony in regard to his conversation with Henze had been admitted and the objections to his competency as a witness be waived for the moment, there arises, practically, the question whether his offered testimony would support a judgment for appellant. The conversation to which he was offered as a witness occurred perhaps ten years before the trial, the exact time not being stated. The testimony belongs to that class of evidence which courts receive and act upon with much caution. Besides, the offer was not to show the deed of August, 18901, to be a mortgage, but, in effect, that the property belonged, outright to the estate of Frederick W. Hamburger. At least the one meaning is as applicable as the other. The statement attributed to Henze was therefore equivocal and taken at its face value and though accepted as true, does not amount to a direct admission that a mortgage existed. This last was the only issue actually tried.

On the whole record we cannot say there is no reasonable doubt in the case, and judgment- of the trial court denying a decree for appellant on theN evidence is affirmed.

Boy, G., concurs.

PER CURIAM.

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

All the judges concur.


author: KENNISH, J.

text:
    RICHARD H. CRAINE, Appellant, v. METROPOLITAN STREET RAILWAY, DAVID WILSON and KANSAS CITY.
    Division Two,
    December 10, 1912.
    1. NEGLIGENCE: Peremptory Instruction: Presumption. The action of the trial court in giving, at the close of plaintiff’s case, a peremptory instruction to find for defendant, must be reviewed under the well-recognized rule that the testimony in plaintiff’s favor is presumed to be true and that he is entitled to every inference that may reasonably and fairly be drawn therefrom.
    2. -: Pleading: Different Acts. In negligence cases plaintiff may allege as many grounds of negligence causing the injury as he may desire, provided they are not inconsistent with each other; and the several acts of negligence are not inconsistent unless there is such repugnancy between them that proof of one necessarily negatives the other.
    3. -: Basis. The basis of an action of negligence is the duty owed by the person sought to be charged to the person injured.

      4.-: Pleading: Inconsistencies: Closing Bridge: Erecting Guards. An allegation of a Breach, of duty to close a Bridge to public travel the moment a part'of the floor thereof was removed is inconsistent with a charge of a Breach of duty to erect guards along the opening.
    5. -: Repairing Bridge: Paramount Right. The right of a city to repair a Bridge in a puBlic street is paramount to the right of the puBlic to its use; and the city seeks to avail itself of this right by erecting a large sign at each end of the bridge, warning the public that it is unsafe and closed to public travel.
    6. -: -: Street: Reasonably Safe: Attendant Circumstances. A city owes a duty to the puBlic to keep its Bridges and highways in a reasonably safe condition for travel; yet when liability is sought to be enforced against it for injuries received by a traveler across a bridge which is being repaired and which is dangerous, the question is the duty which the city owed him under the attending facts and circumstances under which the injury was received. •
    7. -: Liability of City: Bridge: Purpose of Barriers: Knowledge of Danger. The purpose of giving notice of the dangerous condition of a bridge in a puBlic street and of erecting harriers at its entrance is to acquaint travelers of the danger; but if the traveler is possessed of knowledge of the danger independently of such notice or barrier, the absence of the notice, or his failure to see it if given, does not affect his legal rights, and failure to give the notice or to erect the barrier is of no legal importance.
    8. -: -: Assumption of Risk by Traveler. Where no element of danger in the conditions existing at the time the plaintiff attempted to drive his horse across tire Bridge was unknown to him,, and he voluntarily, in broad daylight, drove upon the bridge from which the flooring on one side had been removed, and his horse, becoming frightened from clouds of smoke from a railroad engine passing underneath; turned, backed the buggy and fell through the opening, he cannot recover from the city for his injuries. Having full knowledge of the danger to be encountered, he assumed the risk.
    9. -: Traveler: Ordinary Care. It is not the exercise of ordinary care for a traveler in a buggy to voluntarily drive across a long bridge twenty or twenty-five feet above the ground, with two wheels within four feet of an opening therein five feet wide and extending the full length of the bridge, knowing that trains and engines frequently pass underneath and emit clouds of smoke, when another convenient and entirely safe way can be taken. The risk is hazardous and voluntarily assumed.

      10.-: -: -: Choosing Dangerous Way. Where two ways are open to a street traveler, one safe and the other unsafe, and known by him to he, to choose the unsafe way is such a lack of ordinary care as to defeat recovery.
    Appeal from Jackson Circuit Court. — Eon. Herman Bntmbach, Judge.
    AFFIRMED.

      Bush L. Fisette and Bird & Pope for appellant.
    (1)’ The court erred in giving defendants’ instructions in the nature of demurrers to plaintiff’s evidence at the close of plaintiff’s evidence. (2) The court erred in overruling plaintiff’s motion to set aside the involuntary nonsuit taken by plaintiff after the giving of said instructions of defendants in the nature of demurrers to plaintiff’s evidence. Ordinary care means such care as an ordinarily prudent person would exercise under the same or similar circumstances. Mitchell v. Railroad, 132 Mo. App. 294; Perrette v. Kansas City, 162 Mo. 251; Bradley v. Railroad, 138 Mo. 310; Diamond v. Kansas City, 120 Mo. App. 185; Dunphy v. Stock Yards Co., 118 Mo. App. 507; Schroeder v. Transit Co., Ill Mo. App. 67; Kube v. Transit Co., 103 Mo. App. 593; Stanley v. Railroad, 114 Mo. 606; Loewer v. Sedalia, 77 Mo. 446. The fact that Craine knew of the danger would not necessarily preclude him from recovery. The use of a street, sidewalk, bridge or crossing known to be defective or obstructed, which is not so obviously dangerous that no prudent person would attempt to use it, is not negligence as a matter of law which will bar a recovery for an injury caused by the defect or obstruction. Phelan v. Paving Co., 227 Mo. 666; Waltmeyer v. Kansas City, 71 Mo. App. 354; Maus v. Springfield, 101 Mo. 613; Gerdes v. Foundry Co., 124 Mo. 347; Cohn v. Kansas City, 108 Mo. 393; Barr v. Kansas City, 105 Mo. 550; Smith, v. St. Joseph, 45 Mo. 449; Rusher v. Aurora, 71 Mo. App. 418; Beauvais v. St. Louis, 169 Mo. 500; Deland v. Cameron, Í12 Mo. App. 704; Loe-wer v. Sedalia, 77 Mo. 431; Brands v. Oar Co., 213 .Mo. 698; Mitcliell v. Railroad, 132 Mo. App. 152; Womach v. St. Joseph, 168 Mo. 241; Pauck v. Provision Co., 159 Mo. 478; Kossman v. St. Louis, 153 Mo. 298; Chil-ton v. St. Joseph, 143 Mo. 202; Flynn v. Neosho, 114 Mo. 571; Boulton v. Columbia, 7 Mo. App. 523; Culver-son v. Maryville, 67 Mo. App. 347; Pembroke v. Railroad, 32 Mo. App. 62; Railroad v. Prescott, 59 Fed. 654; Railroad v. Crist, 116 Ind. 446; 7 Am. & Eng. Ency. Law (2 Ed.), 392, 411; Huhn v. Railroad, 92 Mo. 447. And whether the danger was so obvious and imminent as to make it contributory negligence to cross the bridge in question is generally a jury question. Deschner v. Railroad, 200 Mo. 310; Mockovik v. Railroad, 196 Mo. 550; Allen v. Transit Co., 183 Mo. 411; Curtis v. McNair, 173 Mo. 271; Leslie v. Railroad, 88 Mo. 51; Adams v. Railroad, 100 Mo. 556; Millsap v. Beggs, 122 Mo. App. 11; Francis v. Rail- • road, 127 Mo. 658; O’Melia v. Railroad, 115 Mo. 219; Wyatt v. Railroad, 55 Mo. 485'. Tbe fact that a person had another route open to him will not debar his recovery, unless the taking of that route was the only prudent thing to do. Phelan v. Paving’Co., 227 Mo. 666; Ashley v. Road Co., 99 Mo. App. 186; Conner v. Nevada, 188 Mo. 149; Curtis v. McNair, 173 Mo. 271; Kossman v. St. Louis, 153 Mo. 293; Schroeder v. Transit Co., Ill Mo. App. 67; Culverson v. Mary-ville, 67 Mo. App. 347; Loewer v. Sedalia, 77 Mo. 413; G-raney v. St. Louis, 141 Mo. 180. Plaintiff’s conduct was undoubtedly influenced by others going over the bridge, and by the fact that defendants furnished a flagman to direct plaintiff and others over the bridge. Curtis v. McNair, 173 Mo. 271; Flynn v. Railroad, 78 Mo. 195; Brunke v. Tel. Co., 115 Mo. App. 36; Francis v-. Railroad, 127 Mo. 675; Railroad v, Prescott, 59 Fed. 654; Beed v. Bailroad, 94 Mo. App. 371; Bohn v. Bail-road, 106 Mo. 429; 7 Am, & Eng. Ency. Law (2 Ed.), 378. The defendants were clearly negligent in leaving the open space next to the driveway on the bridge. Poster v. Swope, 41 Mo. App. 145; Powers v. Insurance Co., 91 Mo. App. 55; Loewer v; Sedalia, 77 Mo. 431; G-raney v. St. Lonis, 141 Mo. 180; Wiggin v. St. Louis, 135 Mo. 558. Where defendants’ negligence has influenced plaintiff’s conduct, they are estopped from making the defense that the plaintiff was negligent. Millsap v. Beggs, 122 Mo. App. 11. Where defendants’ negligence concurs with an accident, defendants are liable. 7 Am. & Eng. Ency. Law (2 Ed.), 398. Sufficiency of barricade as a warning is a question of fact for the jury. Feldkamp v.'Kansas City, 75 Pac. 464; 29 Oye. 475. It must be presumed that eaeh of the defendants thoright the bridge was reasonably safe, or else they would have closed it for traffic. How can they now say that it was so obviously dangerous that no prudent man should have ventured over it? And especially in view of the fact, that they provided a flagman to direct the traveling public across the bridge ?

      A. F. Evans, Hunt G. Moore, John H, Lucas, and Cowherd, Ingraham, Durham & Morse for respondents.
    (1) Under the evidence the defendants were not guilty of any negligence toward the plaintiff. Phelan v. Paving Co., 227 Mo. 704; District of Columbia v. Moulton, 182 U. S. 576; Haller v. St. Louis, 176 Mo. 613; Cohn v. City of Kansas, 108 Mo. 393. (2) Under the evidence plaintiff was guilty of such contributory negligence as to bar a recovery. Cohn v. Kansas City, 108 Mo. 393; Woodson v. Bailroad, 224 Mo. 701; Wheat v. St. Louis, 179 Mo. 581; Kaiser v. St. Louis, 185 Mo. 373; Diamond v. Kansas City, 120 Mo. App. 185.
   KENNISH, J.

This is an appeal from the circuit court of Jackson county, in an action brought by Bichard H. Craine against the Metropolitan Street Railway Company, David Wilson and Kansas City. The petition is in two counts, in the first of which plaintiff seeks to recover damages in the sum of $15,000 for personal injuries received by him while driving across a bridge in said city, and in the second to recover the sum of $175 for the loss of his horse and damage done to his buggy at the time he received his said injuries. At the close of plaintiff’s evidence the • court instructed the jury to return a verdict in favor of each of the defendants, whereupon plaintiff took a nonsuit, with leave to move to set the same aside. Plaintiff filed a motion to set aside the nonsuit, which was overruled, and he appealed to this court.

The two counts of the petition are the same except that the first is based on plaintiff’s personal injuries, while the second is based on the loss of his horse and damage to his buggy. Each count of the petition, so far as the allegations therein are material to a decision of the questions before us, alleges in substance the following facts:

That the defendant Metropolitan Street Railway Company runs and operates a line of its street railway upon and over Southwest boulevard, a public street and thoroughfare of defendant Kansas City, within the corporate limits of said city; that on November 29, 1907, and prior thereto, there was a bridge on and along said Southwest boulevard where the said boulevard crosses the tracks of the Kansas City Belt Line Railway Company, and that on said date said bridge was in a defective, unsafe and dangerous condition, in this, that said defendants had torn out planks and timbers between the street car tracks running over said bridge, and between the tracks and the trusses on one side of said bridge, leaving large openings therein, and. had “carelessly and negligently failed to gnard the same in any manner to prevent teams and persons from being precipitated down therein, and had carelessly and negligently made said openings without providing material or timbers and planks to pnt in place of the old timbers and planks torn from said bridge by them as aforesaid;” that defendants knew, or by the exercise of ordinary care conld have known, of the dangerous and unsafe condition of said bridge, a sufficient length of time before said November 29 to have repaired the same; that defendants failed and neglected to repair said bridge, and “wrongfully and negligently maintained and permitted said bridge to be and remain in said dangerous and unsafe condition, and carelessly and negligently failed and neglected to close the same to public travel;” that on said November 29, at about 11:30 o’clock a. m., while plaintiff was driving a horse and buggy across said bridge, and while an engine was passing beneath said bridge and throwing out immense volumes of smoke and steam, thereby frightening said horse, the passing of engines beneath said bridge and the throwing out of smoke and steam being a common occurrence, as the defendants well knew or by the exercise of ordinary care and caution would have known, plaintiff and his horse and buggy, by reason of the. defective, dangerous and unsafe condition of said bridge, were precipitated and thrown down through said opening in said bridge, with great force and violence, whereby, etc. *

The answer of defendant Metropolitan Street Railway Company was a general denial. Defendants David Wilson and Kansas City each filed an answer containing a general denial and a defense of contributory negligence.

The evidence introduced by the plaintiff tended to show the following facts:

The bridge in question was bnilt fifteen or twenty years before the date of plaintiff’s injury. The defendant street railway company maintained double tracks across it, and the public used it as a thoroughfare for vehicles and pedestrians. As it was constructed and used it was merely a continuation of Southwest boulevard across and twenty or twenty-five feet above the tracks of the Kansas City Belt Line Railway Company. There was a space of twenty-seven feet between the trusses on the east side and those on the west side which was used by street cars and vehicles, and outside of the trusses were walks used by pedestrians. Between the inside rails of the two street car tracks there was a space of six feet. On either side of the double tracks was a narrow driveway for vehicles, the distance between the outside rails and the trusses being six feet. At the time of the accident, and for two months prior thereto, defendant David Wilson, under a contract with the defendant city, was engaged in repairing the bridge. The city and the street railway company had an agreement to divide the cost of the repairs between them. In making the repairs the plank flooring between the inside rails of the two tracks had been torn out, leaving an unguarded opening about five feet wide and extending the entire length of the bridge. The flooring between the outside rail and the trusses on the west side had also been torn out, leaving an opening ■six feet wide, which also extended the full length of the bridge. When these openings were made in the •floor there was placed at each end' of the bridge a -sign three feet wide and six feet long on which was printed in large letters a warning to the public that the bridge was unsafe and was closed to traffic. Notwithstanding these signs and the opening in the floor, ■the public continued to use the bridge to a considerable extent as a public thoroughfare for vehicles. During a part of the time the floor was in this condition an employee of the street railway company was stationed on the bridge and “flagged” cars and vehicles across. With the floor between the tracks and in the driveway on the west side torn out, vehicles conld cross the bridge only on the east side, and as there' was not room for a car and a vehicle or for two vehicles to pass on that side, this flagman wonld signal cars and vehicles to wait at one end of the bridge until a car or vehicle coming from the other direction had crossed, and wonld then signal the waiting car or vehicle to proceed.

Plaintiff, a building contractor, sixty-three years of age, lived in Eosedale, a small town near Kansas City, and on the morning of the accident started to drive from his home into the city in a one-horse buggy. He had driven across the bridge frequently while the floor was in the same condition as it was that morning. When he had made these former trips he was sometimes flagged across, and at other times when the flagman was not in sight he would cross without waiting for a signal. He had observed the openings in the floor and was fully aware of the exact condition of the bridge. When he reached the bridge that morning he did not see the flagman and started to drive across without waiting for a signal. The six foot driveway on the east side of the bridge was so narrow that it was difficult to drive between the outside rail of the street car track and the trusses of the bridge and for that reason he drove with the left wheels of the buggy about a foot inside of the east rail, which brought the left wheels within four feet of the opening in the center of the bridge. When he was about half way across, an engine passing along the railway tracks beneath emitted a large cloud of smoke which came up through the opening just to the left and in front of the horse. The horse became frightened, either at the smoke or the noise of the engine, and attempted to wheel around. There was not room for the horse and buggy to turn, and in attempting to turn the horse hacked the buggy into the opening between the tracks, and plaintiff, the horse and the buggy all fell through the opening to the tracks below, seriously injuring plaintiff, killing the horse and damaging the buggy.

The horse was perfectly gentle and plaintiff had several times driven it across the bridge while the openings in the floor were in the same condition as at the time of the accident. Before the work of repairing the bridge was commenced, trains and engines had frequently passed under the bridge while plaintiff was driving the same horse across it and the horse had not been frightened by the noise or the smoke. Plaintiff knew that the Belt Line Railway which ran beneath the bridge was used extensively for switching trains into and around Kansas City. When he started to drive across the bridge at the time of the accident he did not apprehend any danger in so doing. He could have reached his destination without crossing the bridge by driving east to .Summit street and thence north to the intersection of Summit street and Southwest boulevard. By taking the latter route he could have driven over paved streets, with only a slight difference in the distance traveled, but he would have encountered several steep grades that could be avoided by crossing the bridge.

The action of the trial court in giving a peremptory instruction at the close of plaintiff’s case must he reviewed under the well-recognized rule that the testimony in plaintiff’s favor is presumed to be true and that he is entitled to every inference which may reasonably and fairly be drawn from it. Applying this rule we have carefully read and considered the record and the authorities applicable thereto and have reached the conclusion that the judgment was right and should be affirmed.

The petition counts upon three grounds of negligence, namely, (1) failure to erect a guard along the opening in the bridge, (2) negligently making the opening in the bridge without providing timbers and planks to put in the place of the timbers and planks removed and (3) failure to close the bridge to public travel. It is a settled rule of pleading in negligence cases that a plaintiff njay allege as many grounds of negligence causing the injury as he may desire, provided they are not inconsistent with each other. And the courts have gone far in holding that the several acts of negligence relied upon are not inconsistent unless there is such a repugnancy between them that proof of one necessarily negatives the other. It is also the law that the basis of an action for negligence is the duty owed by the person sought to be charged to the person injured. Looking at the petition under these principles, it is apparent that the alleged breach of duty for failure to close the bridge to public travel “the moment said opening or openings were made” is inconsistent with a breach of duty in failing to erect guards along such opening. The failure of the defendant to observe the duty of erecting guards necessarily negatives the existence of a duty to close the bridge, and conversely. These observations are not made because of any defect of pleading, for no such question is presented, but rather in seeking to determine the real negligence relied upon and against which relief is asked.

It appears from the undisputed testimony that at the time of the injury the city was engaged in repairing the bridge and, as held by this court in the case of Phelan v. Paving Co., 227 Mo. 666, the right of the city to repair the bridge was paramount to the right of the public to its use. Of this paramount light the city undoubtedly sought to avail itself, for it erected a large sign at each end of the bridge, warning the public that the bridge was unsafe and closed to public travel. And if at the time of the injury the duty rested upon the city to keep the bridge in a reasonably safe condition for travel, then by the erection of the signs its liability would stand confessed. Whether the city had discharged its duty to the public in thus warning it against the use of the bridge, so that as a matter of law it «would be exempt from liability generally for injuries to persons attempting to cross while it was in that condition, we need not stop to inquire; for while the city owes a duty to the public to keep its bridges and highways in a reasonably safe condition for travel, yet when liability is sought to be enforced, the question is as to the duty owed to the plaintiff under the attending facts and circumstances when the injury was received. Applying that rule in this case, the failure to give notice of the dangerous condition of the bridge or to erect barriers is of no legal importance. The sole purpose of such notice and barriers is to acquaint the traveler with the danger, and if he is possessed of knowledge of the danger independently of such notice, then the absence of notice, or his failure to see it if given, would not affect his rights. [Dist. of Columbia v. Moulton, 182 U. S. l. c. 581; Cohn v. Kansas City, 108 Mo. 387; 29 Cyc. 474.]

In Dist. of Columbia v. Moulton, supra, discussing this question, the court said:

“As respects the notice owing to the plaintiff of the presence of the roller, we agree with the opinion of the Supreme Judicial Court of Maine in Lane v. Lewiston, supra, that where a steam roller is allowed to remain upon a municipal highway it is requisite that the municipality causing the obstruction should give reasonable notice to the traveling public of its presence, but that a view of its obstruction itself in time to avoid it without injury amounts to notice. In other words, as stated by the Maine court, ‘No one needs notice of what he already knows,’ and, ‘knowledge of the danger is equivalent to prior notice.’ [91 Maine, 296.] That the plaintiff had notice of the presence of the roller on Park street in ample time to have avoided it, is undisputed. When he turned from Fourteenth street into Park street it was broad daylight, there was nothing to obstruct his view westward, and in fact he testified that the roller was in plain sight. He was not induced or directed by the agents of the district to proceed past the roller. He knew that such objects sometimes frightened horses, but from his acquaintance with the disposition of his horse he believed that he could control the animal and drive safely past the roller, and he voluntarily undertook to do so. Now, it seems clear — particularly as the danger was neither hidden nor concealed —that the district was under no obligation to restrain the plaintiff from attempting to pass, either by closing Park street or by other means.”

As disclosed by the testimony, the danger in crossing the bridge was in the opening in the center, five feet in width, extending the full length thereof, and the possibility of noise or smoke and steam from an engine .passing under the bridge. The danger from the opening was not only obvious and in plain view, but plaintiff had previously crossed the bridge, driving the same horse, after the opening had been made and when it was in the same condition as on the date of the accident. He had even driven across when smoke and steam had been emitted from an engine below, so that no element of danger in the conditions existing at the time of the injury was unknown to him- Possessing full knowledge of the danger to be encountered, plaintiff, in broad daylight, voluntarily drove upon the bridge and must be held to have assumed the risk incurred in such a hazardous undertaking. [Phelan v. Paving Co., 227 Mo. 666; Dist. of Columbia v. Moulton, supra; Haller v. St. Louis, 176 Mo. 606; Wiggin v. St. Louis, 135 Mo. l. c. 565; Cohn v. Kansas City, 108 Mo. 387; Ray v. Poplar Bluff, 70 Mo. App. 252; Fitzgerald v. Connecticut River Paper Co., 155 Mass. 155.]

We characterize plaintiff’s conduct in driving across the bridge as hazardous advisedly, for, as a matter of law, we do not hesitate to say that it was not the exercise of ordinary care to drive across a long bridge, with two wheels of the vehicle within four feet of an opening five feet wide, twenty or twenty-five feet above the ground, knowing that engines and trains might be passing underneath, when another convenient and entirely safe way could have been taken. Can it be said that it was negligence of the defendants to expose plaintiff to a danger of which he was as well advised as they were, and yet hold that plaintiff was in- the exercise of ordinary care in voluntarily incurring such danger? We think not, and in so ruling we do not mean to he understood as holding that knowledge of a defect in machinery or of danger in a highway precludes a right of action to the person possessing such knowledge in all cases, for there may exist such considerations of duty or exigency as to present a question whether the risk was voluntarily assumed, notwithstanding knowledge of the danger. But the facts of this case do not raise such a question, for there was another «entirely safe way open to plaintiff, over paved streets and hut a few yards further, to reach his destination. By taking that course plaintiff could have avoided all danger of accident in crossing the bridge in its unsafe condition. Where, under such facts, two ways are open, one safe and the other unsafe, and the danger in the latter is known to the traveler, to choose the unsafe way is such a want of ordinary care as will defeat a recovery. [Cohn v. Kansas City, 108 Mo. 387; Ray v. Poplar Bluff, 70 Mo. App. 252; 28 Cyc. 1428.] In Cohn v. Kansas City, supra (l. c. 393), Black, J., speaking for this court, said:

“One who attempts to cross over a sidewalk as part of a road, known to him to be dangerous, when the dangerous place could have been easily avoided, as by passing around it, or taking another' side of the road, is wanting in due care, and the court may so say as a matter of law. [Erie v. Magill, 101 Pa. St. 616; Gosport v. Evans, 112 Ind. 133; Centralia v. Krouse, 64 Ill. 19.]
“In this case no want of care can he attached to the city from the mere fact of the existence of the excavation, for the city had the right to permit it to be made; and the work was progressing with proper haste. The only possible act of negligence on the part of the city is the failure to have railings along the end of the excavation at the middle of the street. Such a railing was not necessary to give the plaintiff warning of the existence of the excavation, for she saw it, and, therefore, had full notice of its existence.
“But, aside from all this, the plaintiff’s own evidence shows that the accident occurred in broad daylight. The plaintiff found the west sidewalk barricaded, saw this excavation and the men at work in it. She passed along the south side of it to the middle of the street, and, instead of passing on to the east sidewalk which she knew was unobstructed and perfectly safe, she attempted to pass along the narrow space between the excavation and the street railroad track. Two ways were open to her: One from the middle of the street across to the east sidewalk, which was perfectly safe; the other along the excavation and railroad track in the middle of the street which was obviously unsafe and dangerous. She .knowingly chose the latter, and in so doing she took upon herself the hazards attending the experiment. On well-settled principles of law, she has no ¡just cause of action against the city, and this is manifest from her own evidence. ’ ’

In briefs of counsel much space is given to the discussion of the recent well-considered case of Phelan v. Paving Co., 227 Mo. 666, a case closely analogous in its facts to the case in hand. We have carefully reviewed that case and cannot regard it other than as authority against appellant’s contention. It was there shown that the north half of the street was open to travel, but it was not in a safe condition by reason of the fact that the south half was then being reconstructed, a steam roller being operated thereon for that purpose, and material and appliances therefor were placed on the north half. The court held that the obstructions on the north half and the operation of the engine were open and known dangers of which plaintiff should he held to have voluntarily assumed the risk and from which no liability for injuries would arise. It was only the negligent operation of the engine, which the evidence tended to show frightened the horse and which was held the proximate cause of the injury, that entitled plaintiff to have his case submitted to the jury. If the negligent operation of the engine was the proximate cause of the injury in the Phelan case, the smoke or noise of the engine was likewise the proximate cause in this case. Indeed, if we assume that the engine emitting the smoke and steam was operated and controlled by the defendants, instead of by the railway company, there is little to distinguish the' two cases, so far as the legal questions presented are concerned, except that there was no evidence of negligence in the operation of the engine in the case at bar.

The testimony leaves no doubt that the plaintiff sustained serious injuries and loss by reason of the accident, but after viewing the testimony from every angle, we think bis case clearly falls within the doctrine of damnum absque injuria, and that the judgment should he affirmed.

It is so ordered.

Brown, P. J., and Ferriss, J., concur.