source: Caselaw Access Project

author: GRAVES, J. KENNISH, J.

license: Public Domain

text:
    MARY C. BURGE v. WABASH RAILROAD COMPANY, Appellant.
    In Banc,
    June 10, 1912.
    1. LAWS: Amendment: Reference to Section Amended. A statute may be amended by reference to the section of the Revised Statutes to be amended,, by a statute declaring what words are to be stricken out and what words are to be inserted in lieu of those stricken out, and by setting out the whole section ,as thus amended.
    2. -:-: Title: Heading of Chapter. The title prefixed to a chapter of the Revised Statutes- may be im-ade a part of the amendatory act by suitable words of reference contained in the heading, caption or title of the amendatory act; and a title of the amendatory act identical with that of the chapter in the Revised Statutes complies with the Constitution, if the matters in the body of the act are germane to the provisions of the section of the Revised Statutes of which they are to become a part.
    3.---: -: -: Meaning of One Subject. The provision of the Constitution that “no bill shall contain- more •than one subject, which shall be clearly expressed in its title," is to be wisely and liberally interpreted, is not to be so applied as to thwart the efficiency of intelligent and salutory legislation, and does not forbid the inclusion in one bill under one general title of subjects naturally and reasonably related to each other.
    4. -: -: -: -: Damage Act: Amendment • of 1905. The title to the act is: “An- Act to amend section 2864 of chapter 17 of the Revised Statutes of the State of Missouri, 1899, entitled, ‘Damages and Contributions in Actions of Torts.’ Section 1. Death resulting from negligence of co-employee, officer or agent — amount of damages — who may sue for recovery.” The body of the act consists of one section. Held, provisions in the body of the act (1) abolishing the defense of fellow-servants, (2) adding the automobile to the other dangerous agencies for the negligent operation of which a recovery for personal injuries may be had, (3) adding street and electric railways to the category of other carriers, (4) inserting the word “penalty,” and providing that in case of personal injury resulting in death the penal sum to be recovered should be between $2000 and $10,000 instead of $5000 as theretofore, and (5) providing that the administrator might sue in certain contingencies, were all germane both to the title and to the provisions of Sec. 2864,, R. S. 1899, which the act undertook to amend.
    5. NEGLIGENCE: Crossing: Looking and Listening. A railroad crossing is of itself a signal of danger. The law imposes upon a traveler the duty of exercising caution at such a place. He^ must make some effort to find out if there is an approaching train before he drives upon the track. He can close neither his eyes nor his ears. If he fails to exercise that caution he is guilty of such negligence as bars a recovery, unless the facts bring the case within the humanitarian rule.
    6. -: -: What Others Saw and Heard: Presumption. The presumption that a traveler about to- cross a railroad track at a public road crossing was in the exercise of due care can be indulged only when there is no evidence upon the point. Where other witnesses not so well situated heard the roar of the approaching train and it could have been seen by the traveler for 900 feet from -a place of safety before entering upon the track, and he drove ahead with his eyes fixed forward on his horse, and neither looked nor listened, until the alarm, whistle was sounded 340 feet from the crossing, there is no room for the presumption of due care; for what others, saw he could have seen, and what others heard he could have heard.
    7. -: -; — : Neither Looking nor Listening: Humanitarian Rule. Where the traveler was guilty of contributory negligence in attempting to- cross the railroad track without either looking or listening, when to have done either meant safety, there can be no recovery for his death under the humanitarian rule where there is no substantial evidence that the train, could, have been stopped between the time his peril was discovered and his injury. In this case, the train was running: from sixty to ninety miles an hour, and the engineer could not. have seen the traveler about to cross the track until it roundedl a curve 1000 feet away, the alarm whistles were sounded and! the air-brakes put on before he was hit, and the train ran 1700 feet after he was hit; and there is no substantial evidence that it could have been sooner stopped.

      Held, by KENNISH, J., dissenting, that, there being evidence that the traveler was seen attempting to cross the track while the train was four or five hundred feet away and that the train could have been stopped within that distance by the exercise of ordinary care, the judgment for plaintiff should not be reversed outright, but reversed and the cause remanded.
    8. -: -: -: -: Stopping Train: Question: Material Elements. In.- stopping a train due regard must be had for the safety of the passengers, the make-up and equipment of the train, and the grade and condition of the track (whether dry or wet, etc.); and a question asking an expert witness in what distance a train running sixty miles an hour might have been stopped, which omits those material elements, should not be allowed; nor is an answer thereto of “about four hundred feet” of any probative force.
    9. -:-:-:-:-r In Eleven Seconds. To hold the engineer of a train going sixty miles an hour guilty of negligence under the humanitarian rule for failure to discover a traveler’s pe'ril, sound the alarms and apply the brakes, all in eleven and four-elevenths seconds, is to require him to act with the rapidity of electricity, and is to stretch the rule of ordinary care beyond reasonable limits.
    10. -: Speed of Train: In Country. The rate of speed of a train at an ordinary and usual country crossing has no hearing upon the question of negligence, except as an element in determining within what distance the train may be stopped. Outside of cities and towns the law does not prescribe the rate of speed of railroad trains at public crossings; and the running of a train at a. very high rate of speed at such a crossing is not negligence.
    Appeal from Randolph Circuit Court. — Hon. A. P. Terrill, Judge.
    .'.Reversed,

      J. L. Minnis and Robertson & Robertson for appellant.
    (1) The defendant’s demurrer at the close of the evidence for the plaintiff and its demurrer at the close of all the evidence, should have been granted. At the close of the evidence for the plaintiff, the evidence showed that a view of the train nine hundred feet away could be obtained at any time while a person was going up the incline to the tracks or while upon the tracks. Furthermore the evidence showed that the train was heard by a person further away from the track than the deceased, at the time deceased was thirty-five feet from the crossing and further, that the train was visible to a person at a point nearly one hundred feet further north and away from the crossing than the plaintiff’s husband, at the time he was about to go upon the crossing. No witness for the plaintiff states that the decedent did stop, look or listen, but some say he did none of these things. But whatever of presumption of due care, if any, can arise, it. is certainly rebutted by the physical facts and the testimony of witnesses, who in less advantageous positions than the deceased, both heard and saw the train before the plaintiff got upon the track, and it must be concluded that if he looked he saw, and if he listened he heard, so that his going upon the track at this time, whatever he may have done or may have omitted to do in looking out for his own safety, was negligence and the plaintiff cannot recover. McGee v. Railroad, '214 Mo. 535; Stotler v. Railroad, 204 Mo. 619; Holland v. Railroad, 210 Mo. 338; Green v. Railroad, 192 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Boyd v. R'ailroad, 105 Mo. 391; Walker v. Railroad, 193 Mo. 453; Hutchison v. Railroad, 195 Mo. 546; Mockowick v. Railroad, 196 Mo. 550; Spillane v. Railroad, 135 Mo. 424. The evidence -showed that the train was in plain view of plaintiff’s husband before he went upon the track, and therefore the rate of speed was immaterial. Stotler v. Railroad, 204 Mo. 619; Schmidt v. Railroad, 191 Mo. 215; Green v. Railroad, 192 Mo. 131. There was no evidence to take the case to the jury upon the humanitarian doctrine. Nivert v. Railroad, 232 Mo. 626; Sites v. Knott, 197 Mo. 712; Krehmeyer v. Railroad, 220 Mo. 639; Guyer v. Railroad, 174 Mo. 344; Yan Bach v. Railroad, 171 Mo. 338; Davies v. Railroad; 159 Mo. 1. The fate of speed of the train could not he considered as having any bearing upon the ease as it could not be considered as negligence. McGee v. Railroad, 214 Mo. 535;' Salter v. Railroad, 88 N. Y-. 42; Railroad v. Lee, 68 111. 556; Railroad v. Walker, 113 Ind: 196; Railroad v. Cromer, 106 Ga. 296; Railroad v. Clark, 73 Ind. 168; Parker-son v. Railroad, 80 S. W. 468; Powell v. Railroad, 76 Mo. 80; Maher v. Railroad, 64 Mo. 275; Boyd v. Railroad, 105 Mo. 371; Goodwin v. Railroad, 75 Mo. 73; Lord v. Railroad, 82 Mo. 139; Kreis v. Railroad, 148 Mo. 321. There was nothing in the case calling for a reduced speed less than the train was running. Only ten families reside in this vicinity. They were some distance from the railroad track and all on the north side of it. They did not cross this crossing while journeying to or from Huntsville nor in the course of their affairs. There was no eyidence of any extraordinary use of this crossing, calling for greater care than is usual. Therefore no rate of speed could be considered negligence. Cases, supra; Tobias v. Railroad, 103 Mich. 330. The evidence on the part of the defendant, with the exception of that bearing upon the rate of speed of the train and that upon the question of the crossing signals — both, in this case, immaterial matters, was simply corroborative of that of the plaintiff. Furthermore the defendant’s witness Mrs. Emma Patrick, who watched the deceased all of the time until he was struck, swore that he neither stopped, looked nor listened. There being no evidence whatever to contradict this witness and all of the other-evidence in the case pointing to this state of fact, there is nothing whatever in the case to take it to the jury. Stotler v. Railroad, 204 Mo. 619; Green v. Railroad, 191 Mo. 131; Schmidt v. Railroad, 191 Mo. 215; Boyd v. Railroad, 105 Mo. 371; Walker v. Railroad, 193 Mo. 453. (2) It was error to allow the witness Taggert to testify as an expert and give his opinion as to the distance in which a train running at the rate of sixty miles an hour could be stopped. The witness did not qualify as an expert and furthermore the question calling for his opinion was not a proper question. It not only did not take into consideration the weight and the equipment of the train and the condition and grade of the track, and moreover did not attempt to specify the same conditions as were present at • the time of the killing of plaintiff’s husband. Gourley v. Eailroad, 35 Mo. App. 92; Livery Co. v. McKelvey, 55 Mo. App. 245; Mammerberg v. Eailroad, 62 Mo. App. 563; Senn v. Eailroad, 108 Mo. 150; Heinzle v. Eailroad, 182 Mo. 554; Euschenberg v. Eailroad, 161 Mo. 81; Culbertson v. Eailroad, 140 Mo. 59.

      E. J. Howard for respondent.
    (1) The petition states a cause of action, with or without considering the statement to the jury by counsel for respondent. The statement merely outlines the facts expected to be proven in support of plaintiff’s case as stated in the petition. Plaintiff may plead several distinct acts of negligence in one count of the petition, and if one negligent act be proven plaintiff is entitled to recover. Watcher v. Transit Co., 108 Mo. App. 645; Holden v. Eailroad, 108 Mo. App. 665; Haley v. Eailroad, 197 Mo. 15.' The question of which of two or more acts of negligence was the proximate cause of the accident does not arise when the first act concurred with the other in producing the result. New-comb v. Eailroad, 182 Mo. 721. While no particular rate of speed is negligence per se, in absence of a statute or ordinance, yet the circumstances and surround-, ings may be such as to render a rate of speed negligence, even in the country and over a country crossing. The law of negligence relating to country crossings is the same as in the city; the law has no greater regard for the traveler in the city than for one in the country. Baker v. Eailroad, 147 Mo. 140. While in the absence of municipal regulation no rate of speed is negligence per se still it does not follow, that the defendant may at all times and places run its train at any rate of speed. This was a proper element to be taken into consideration in determining whether the defendant was guilty of negligence at the crossing. There must be a reasonable and fair regard for persons and property in running through villages and over frequently used public crossings, and the rate of speed must be made to conform reasonably with the surroundings. Stepp v. Railroad, 85 Mo. 234. While no rate of speed is per se negligence, in absence of statute, yet it may be considered with other circumstances on the question of negligence. Campbell v. Railroad, 59 Mo. App. 151. The jury may take into consideration on the question of negligence, evidence that the train was running at an unusual rate of speed in a thickly populated place and that no warning of its approach was given. Duffy v. Railroad, 19 Mo. App. 380; Stephens v. Railroad, 86 Mo. 226; Stepp v. Railroad, 85 Mo. 234. It cannot be held as a matter of law that a passenger train because in a country district can run at any speed. Dean v. Railroad, 199 Mó. 386; Haley v. Railroad, 197 Mo. 15; Beier v. Transit Co., 197 Mo. 215. There is no evidence in this casé to show that plaintiff’s husband failed to properly judge or attempted to judge the rate of speed at which the train was running at the time he met his death; and even if there was any evidence tending to show such attempt to judge the rate or failure to judge the rate properly, in this case, it would not necessarily convict deceased of contributory negligence ■ as contended by appellant. Linden v. Transit Co., 103 Mo. App. 574; Hanheid v. Transit Co., 104 Mo. App. 323; Shafstaff v. Railroad, 175 Mo. 142; Moritz v. Transit Co., 112 Mo. App. 657; Sullivan v. Railroad, 117 Mo. 214; Hall v. Railroad, 124 Mo. App. 661. (2) The demurrer at the close of plaintiff’s case was properly overruled; there was absolutely nothing in the evidence adduced by plaintiff, to show in the slightest degree, that plaintiff’s husband was guilty of any contributory negligence whatever, but on the contrary the evidence and the physical facts show that he was in the exercise of due care when he drove upon the defendant’s track. The burden was on defendant to prove that he was guilty of such contributory negligence as to preclude recovery. The demurrer at the close of all the evidence, was also properly overruled. When defendant does not stand on its demurrer at close of plaintiff’s case but produced its evidence, it must be held to have waived its first demurrer. Pry v. Railroad, 200 Mo. 381; Forbes v. Dunnivan, 198 Mo. 193; Jordan v. Transit Co., 202 Mo. 338. (3) The only question before this court now, is whether or not there was anything in the case to take it to the jury. This court will not sit as a jury, on this or any other case. If there is any issue in the case, for the jury, and no substantial error was committed in the trial against appellant, the court will not disturb the verdict. Under the evidence, the negligence of the defendant is thoroughly established, in not giving the statutory signals, by running at a high and dangerous speed, which under the .circumstances of this case, was negligence and under the humanitarian doctrine. The only remaining question is, was there such contributory negligence on the part of plaintiff’s'deceased husband developed in the case as to preclude recovery. Whether or not plaintiff’s deceased husband was negligent in going upon the track, of defendant, under the ■circumstances of this case was a question for the jury. Hall v. Railroad, 124 Mo. App. 661; Murry v. Transit Co., 108 Mo. App. 501. (4) The company is clearly liable in this case under the humanitarian doctrine. Zanders v. Transit Co., 206 Mo. 464; Powers v. Transit Co., 202 Mo. 267; Holmes v. Railroad, 207 Mq. 149'; Wise v. Transit Co., 198 Mo. 546; Ross v. Railroad, 113 Mo. App. 600; Schmidt v. Railroad, 191 Mo. 235. The allegation of excessive rate of speed, and failure to check ear after seeing plaintiff, is not inconsistent; both may be true. White v. Railroad, 202 Mo. 539'; Moore v. Transit Co., 194 Mo. 13.
   GRAVES, J.

This cause has a checkered career. Going to the Kansas City Court of Appeals from the trial court it came here upon a constitutional question. Assigned to Division One of this court and there written by one of our learned commissioners, the judges of that division failed to agree upon an opinion and thus a transfer to this court. The case made runs along these lines:

Plaintiff is the widow of T. H. B. Burge, an aged gentleman, who was struck and killed by one of defendant’s passenger trains at a public crossing near Huntsville in Randolph county. The negligence charged in the petition is:

“That said agents, servants, employees and officers of defendant in charge of said locomotive and train of cars, failed to ring the bell on said locomo-■ tive at a distance of eighty rods from said crossing- and to keep the same ringing until said locomotive had crossed said highway, and that said agents, servants,, employees and officers also failed to sound the steam whistle of said locomotive at the distance of eighty rods from said crossing and to sound said whistle at intervals until said locomotive had crossed said highway.
“That said locomotive and train of cars at the time of the killing of her said husband as aforesaid, was being run by defendant’s said agents, servants, officers and employees at a high and dangerous speed which was careless and reckless upon and across said public crossing, which said crossing is and was in a thickly populated neighborhood near the city limits of Huntsville, Missouri, and which said public crossing is and was very frequently used by the public traveling between the cities of Huntsville, Missouri, and Moberly, Missouri, all of which was well known to said officers, agents, servants and employees of defendant,, then and there in charge of said locomotive and. train •of cars, which, killed plaintiff’s said husband as aforesaid;
“That said public crossing is a dangerous one, •owing to the lay of the ground and the fact that there is a sharp curve in said tracks of defendant, a short •distance east of said public crossing, from which direction said train was running at the time of the killing of plaintiff’s said husband as aforesaid and owing to that reason and the further fact that said locomotive and train of cars was being run at such.a high and dangerous speed as aforesaid, by said agents, servants, employees and officers of defendant, upon and across said public highway, in a populous neighborhood, and the fact that said public highway was so frequently used as aforesaid, at the time of said killing of plaintiff’s said husband as aforesaid, it was the duty of said agents, - servants, employees and officers of defendant then and there in charge of said locomotive and train of cars, to give the statutory and other signals and to run said locomotive and train of cars at a reasonable and careful speed and to keep a sharp lookout for travelers upon or near said public crossing, all of which said agents, servants, employees and officers of defendant negligently failed to do. That said officers, agents, employees and servants of defendant in charge of said locomotive and train of cars, at the time plaintiff’s said husband was killed as aforesaid, saw, or by the exercise of ordinary care could have seen him in time to avoid killing him.
“That said train was a regular passenger train running from Moberly to Kansas City, Missouri, and was about an hour behind its regular schedule time, which fact was unknown to plaintiff’s said husband, and said train was being run by said agents, servants, employees and officers of defendant, at the time plaintiff’s said husband was killed as aforesaid, upon and across said public crossing, at an exceedingly high and dangerous speed, which was unknown to plaintiff’s said husband, nor could he have known of said high and dangerous speed by the use of ordinary care, and at the time when the said buggy in which plaintiff’s said husband was driving, as aforesaid, and the horse hitched to same was on the tracks of defendant at the point where said highway crosses said tracks, said train was at a distance of not less than 340 feet from and east of said crossing, from which said direction said locomotive and train of cars was running at the time, and that before plaintiff’s said husband could get across said tracks and into a place of safety, although he used every endeavor to do so, owing to the high and dangerous, careless and reckless speed at which said locomotive and train of cars was being run by the agents, servants and employees and officers of' defendant as aforesaid, her said husband was negligently struck and killed as aforesaid, by said locomotive and train of cars.”

Answer was (1) a general denial and (2) some-three separate statements of the plea of contributory negligence. Reply general denial. Verdict and judgment for plaintiff in the sum of $2000 from which defendant appealed as aforesaid. 'In Division we were-all of opinion that there was reversible error in the case in the instructions given,, but diversity of opinion arose on the question of liability or no liability. We shall discuss but two questions, i. e., the constitutional question, which gives us jurisdiction, and the question of defendant’s liability under the admitted facts.

I. Bond, commissioner in the divisional opinion, has thoroughly and satisfactorily discussed the constitutional question involved, and we adopt his views. Pie said:

“Appellant attacks the constitutionality of the Act of April 13, 1905 (Laws 1905, p. 135), amendatory of section 2864, Revised Statutes 1899, on the ground that ‘said act-contains more than one subject, and the subjects of said act were not clearly expressed' in the title thereto, and for that reason said act is contrary, to section 28, article 4, of the Constitution of Missouri.’
“This point was first raised in the supplemental motion for a new trial, which also contained a second attack on the constitutionality of the act on the assumption that its effect was to leave the amount'to he recovered, in action thereunder, to the discretion of the jury within the limit of $2,000 and $10,000. This insistence was, however, abandoned in the brief later filed by appellant, in view of the adverse ruling in Young v. Railroad, 227 Mo. 307. This leaves for disposition only the constitutional question raised in the language quoted above. The act appears to the Session Laws, supra, with caption, title, section index, enacting clause, and the first few lines, to-wit:
“ ‘damages and contributions in actions of tort.
“ ‘An.Act to amend section 2864 of chapter 17 of the Revised Statutes of the State of Missouri,'1899, 'entitled “Damages and contributions in. actions of tort. ’ ’
“ ‘Section 1. Death resulting from negligence of co-employee, officer or agent — amount of damages— who may sue for recovery.
“ ‘Be it enacted by the General Assembly of the State of Missouri, as follows:
“ ‘Section 1. That section 2864 of chapter 17 of the Revised Statutes of the State of Missouri, 1899, be and the same is hereby amended,’ etc.
“The practice of amending statute-laws by reference to the sections contained in the volumes of the. authorized revisions of the laws of this State is the established law. [State v. Doerring, 194 Mo. l. c. 408; State v. Murlin, 137 Mo. 297; State v. Brodnax, 228 Mo. l. c. 54; State ex rel. v. County Court, 128 Mo. l. c. 440-441; Ferguson v. Gentry, 206 Mo. 189.] The process by which such amendments may be made is prescribed in the Constitution, in a provision, that it shall not be done by simply striking ont or inserting designated words, but, ‘the words to be stricken out, or the words to be inserted, or the words to be stricken out and those inserted in lieu thereof, together with the act or section amended, shall be set forth in full as amended.’ [Constitution, art. 4, sec. 34.] The act (an excerpt from which is quoted above) was enacted, as will appear from an inspection of the Session Acts, in strict compliance with the provision of the organic law and the practice sanctioned by the decisions of this court.
“This leaves only for consideration, whether the amendatory act was rendered void under the further provision of the Constitution of this State, that ‘nó bill . . . shall contain more than one subject, which shall be clearly expressed in its title.’ [Constitution, art. 4, sec. 28.]
“The first appearance of the act permitting a recovery of damages of a special nature and amount by special persons is in the revision of 1855, chap. 51, p. 647. It then bore the heading and title, to-wit: ‘Damages. An act for the better security of life, property and character.’ With some amendments it has been continued in every subsequent revision of the laws of this State. A recent amendment was- enacted in 1905. At that time the Damage Act was embraced in the revision'of the statutes in 1899, chap. 17, secs. 2864 and 2865 under the title, ‘Damages and Contributions in Torts.’ As it was amended in 1905, the act is now included- in the revision of 1909, chap. 38, secs. 5425 and 5426. The title of article first of this chapter, is ‘Damages in Actions for Torts.’
' “The original titles of acts are often discarded when the acts are afterwards inserted in the body of the revised laws. The titles prefixed to the chapters of the various revisions is done ‘by an arrangement- and heading of the general statutes authorized b.y law.’ [State v. Doerring, 194 Mo. l. c. 411; R. S. 1889, sec. 6610; R, S. 1899, sec. 4193; R. S. 1909, sec. 8090.] Snell titles may be made a part of tbe amendatory act by suitable words of reference contained in the beading, caption or title of the amendatory act. [State v. Doerring, supra, l. c. 412.]
“In tbe case at bar tbe title of tbe amendatory act is identical with that of tbe chapter which it proposed to amend. Hence, it is clear that if ,the matters of amendment are germane to tbe provisions of tbe section of which they are to become a part, then tbe amendatory act was not-an unconstitutional exercise of legislative power.
“Tbe'amendatory act, by specific reference to tbe section of tbe Damage Act proposed to be changed, called tbe attention of tbe members of tbe Legislature to tbe law as it bad existed for more than fifty years, and which entitled certain persons to recover a penalty from ’carriers and other persons for injuries occasioned by negligence. Pew provisions of tbe law bad been more fruitful of litigation, and tbe provisions of no statute were more generally understood by tbe people, as well as tbe law makers, than tbe one providing for such recoveries. Tbe statute bad received careful and full consideration, interpretation and enforcement by tbe courts. It bad become tbe warp and woof of tbe law governing actions for personal injuries, and tbe substance of its provisions was a matter of general knowledge. It is difficult to conceive that any legislator was unaware of tbe legislative purpose of tbe Act of 1905 after having read or seen tbe title, purposes and reference contained in tbe chapter and beading of that bill. In a similar case it was held, that a reference in an amendatory act to tbe chapter 'of tbe revision relating to ‘Dower’ carried to tbe minds ' of tbe legislators full cognizance of tbe nature and scope of tbe various provisions under that bead in tbe chapter mentioned. [Ferguson v. Gentry, 206 Mo. l. c. 195.]
“The first thing which the amendatory act did was to abolish the defense of fellow-servants in actions based on the statute.- Plainly, this was not the introduction of a matter foreign to the legislative purpose expressed in the act. The next thing done was the adding of the automobile to the other dangerous agencies for negligence in the operation of which a recovery might be had. Self-evidently, this was not an incongruous subject. The third matter of amendment was the inclusion of street and electric railways in the category of other carriers. Obviously, there was no dissimilarity in the actionable character of the injury caused by negligent operation of a street and electric railroad from that inflicted by the other carriers mentioned in the statute. Fourth, the amendment provided that the word penal should be inserted in the act. It was expressly ruled that this was the character of the act prior to the amendment. [Young v. Railroad, 227 Mo. 307.] Fifth, the amount of penalty was charged from $5000 to not less than $2000' nor more than $10,000. This was directly sanctioned in the case of Young v. Railroad, supra. Lastly, there was a provision that in the case of the failure of other representatives, the administrator of the deceased might institute the action. This was merely a provision for the survival of a cause of action, and did not render the act in anywise inharmonious with the objects and purposes of the Legislature, when the original law was passed. It was not the purpose of the Legislature, prior to this amendment, to afford the beneficiaries of this section of the Damage Act the right merely to recover for injury to their property rights, but the chief object of the original law was to secure the personal safety of persons liable to suffer from' the negligent operations of dangerous agencies, by imposing a fixed penalty upon the owner or proprie- ° tor. The object of the Legislature was to redress the wrongs done to personal rights rather than to property rights. It is upon this ground that it was ruled by this court, speaking through Woodson, J., that prior to the present act, the right of action for statutory damages accruing to a minor child by the ■death of his parents who perished in the same railway ■collision would not survive on the death of the child in favor of its administrator. [Gilkeson v. Railroad, 222 Mo. 173.] The ground of this decision makes it clear that the express provision contained in the act under review, for the survival of such an action to the administrator of the party entitled to sue, is a matter naturally incident to an enlarged redress under the section of the statute comprising the Damage Act, and would not be germane or proper (as contended by appellant) as an amendment to the administration law which is normally concerned with property rights. The provision of the Constitution which the amendatory act is supposed to offend has been considered carefully on many appeals. The principle to be extracted from the rulings then made is, that it must be wisely and liberally interpreted and should not be applied so as to thwart the efficiency of intelligent and salutary legislation, and that it does not forbid the inclusion in one bill under one general title of any subject naturally connected or reasonably related to each other.
“Our conclusion is, that the amendatory Act of 1905 both as to its title and as to the matter of amendments proposed was enacted therein in strict compliance with the provisions of the Constitution under review, and that it is in all respects a valid enactment, as now found in section 5425 of the Revised Statutes of 1909. The objection to the recovery in this case on the theory that the act whereunder the statute was brought is unconstitutional, is not well taken.”

II. Going now to the merits of the case a short summary of facts is required. The public crossing at which, the accident occurred is just east of Huntsville, one-fourth mile or a little more from the city limits. Going from Huntsville east toward Moberly the wagon road runs along the railroad right of way,, but north of it, until it gets to this crossing. At this point the road turns on an angle and runs south until the railroad right of way is crossed, and then it runs east along the south side of the right of way. Coming-from the north side of the right of way to the south side thereof at this crossing, there is an ascending incline of fifty feet, to the railroad track, as given by one of the witnesses. East of this road crossing is a considerable curve in the railroad tracks, but under the evidence a man in a buggy approaching the tracks-upon this incline could be seen from. 900 to 1000 feet or perhaps a fraction more. The man so situated' could see the approaching train for a like distance.

The deceased came from the west along the public road on the north side of the railroad track. He was-in an open buggy, and plaintiff’s witnesses say it-was making no noise as it passed along. He was driving" at a leisurely gait with his eyes forward upon his horse. Reaching the crossing he turned south and went up this incline or embankment. One witness says that as he proceeded up the incline his eyes were fixed forward toward his horse, and he neither looked to the right nor the left. About the time he reached the tracks or was entering thereon he evidently saw the train, for several witnesses say he struck his horse as if to hurry him over the tracks. The evidence does not agree as to just when he struck the horse. One witness says the horse was four or five feet from the track when the old man raised up and struck him, and other witnesses say the horse’s feet were on the track. The horse got across and was not injured. Witnesses of the plaintiff place the speed of the train as “pretty fast,” “faster than usual,” 60 to 70 miles per hour, and 85 to 90 miles per hour.

The train was coming from the east. Witnesses for the plaintiff, further from the track than the deceased, heard the train. In fact all heard the noise of the train, unless it was the deceased. Whether the •crossing signals were given is a disputed question. All agree that danger signals were given, hut differ slightly as to when. Some say just about the time of the collision, but one witness for the plaintiff, in good position to see, says they were sounded the distance of three telegraph poles or' 340 feet to the east of the crossing. As to whether the train was running upon an up or down grade at that point does not appear. As to whether it was running upon a wet or dry track the evidence is silent. As to the equipment and make up of the train on that day there is no evidence. It appears to have been a regular passenger train, but running about an hour behind schedule time.

Witnesses for plaintiff all testify to the danger signals being given. Some of her witnesses who were passengers upon the train testify that they felt the application of the air to the brakes about the time of the danger whistles, and one of them says that after hearing the signals and feeling the jar from the application of the air, a forward glance out of an open window brought to view the horse as he escaped over the tracks. The train passed west of the crossing 1700 feet before coming to a stop.

For the defendant it was shown that the train was running from 45 to 50 miles per hour; that just after the crossing signal was given at the whistling post, the engineer noticed the deceased approaching the track; that the danger signals were immediately given, and air applied to the brakes. The engineer when further asked if he did all that he could to stop the train, answered: “Everything in Gfod Almighty’s power that could be done.” On the application of the air and the warning signals he is corroborated by plain • tiff’s witnesses as above pointed out.

Plaintiff placed on the witness-stand a former railroad engineer, who testified that the train should have been stopped within about four hundred feet. This matter we will discuss in a further paragraph.

It is clear from the statement of facts that the deceased was guilty of negligence as a matter of law. A railroad crossing is within itself a signal of danger. The law imposes upon the traveler the duty of exercising caution at such places. He must make some effort to find out if there is an approaching train before he drives upon the tracks. Pie can close neither his eyes nor his ears. The means of self-protection given him must be used. A failure so to do constitutes negligence. In this case witnesses more unfavorably located than was deceased heard the “roar” of the approaching train. "What the witnesses heard the deceased could have heard had he been in the exercise-of due care. What they saw he could have seen by the-exercise of due care. The fact that they heard the approaching train is conclusive that he was not exercising his sense of hearing to determine whether or not. there was an approaching train. The fact that the-train could have been seen 900 or more feet east of the crossing shows that he was not exercising his sense of sight. There is no room for the presumption of due-care in this case. Such presumption is a presumption of fact, and upon the appearance of the facts in evidence the presumption takes flight, and no longer has-a place in the case. [Higgins v. Railroad, 197 Mo. 318; Tetwiler v. Railroad, 242 Mo. 178; Morton v. Heidorn, 135 Mo. l. c. 617, and cases therein cited.]

As said in the last named ease such presumption-is only applied in the absence of any evidence upon the question. In the Tetwiler case, supra, the court modified by a separate opinion the opinion of Brown,. C., upon this very question. We there said: “In this-case I only concur in the result reached by our learned commissioner. I do not agree to what he says about the ‘presumption of due care.’ This is a presumption indulged by the law ex necessitate. When the man is dead and there is no evidence as to his conduct at the time of the accident, the law through the very necessity of the case indulges the presumption of due care. Presumptions of this character are presumptions of fact — and the presumption takes flight upon the appearance of the facts themselves. When the facts themselves are in evidence there is no place for . a presumption as to those facts. The presumption is only indulged in the absence of evidence as to the fact of due care. In this ease the partner of deceased was a witness on behalf of plaintiff and detailed the facts surrounding the accident. Such proof of the facts is the matter to be weighed by the jury, and there should not be added in the scale a presumption of fact which has been displaced by the proof of the fact. Such I think is the rule of this court.”

In the Morton ease, supra, which was, .a will contest, and in which an instruction was condemned because it added to the scale the weight of a presumption of fact, when the facts were in evidence, this court said: “When the cause was submitted to the jury, there was no presumption of the law that the document was testator’s ‘free and voluntary act.’ There was evidence before them which all the parties and the court alike interpreted as tending to prove undue influence. Both adversary parties asked and obtained' instructions on that theory. In that state of the case it was not proper to give proponents of the will the benefit of a so-called presumption which is merely one of fact, applied in the absence of any evidence permitting a different influence. We have so often of late gone over the ground presented by the giving of such instructions, in declaring the law of negligence, that we need not repeat the argument used to indicate the vice of such declarations to a jury. We merely cite some of the decisions on that point, and add that we consider such a mode of instruction equally as bad when applied to the subject of undue influence as to that of negligence. [Ham v. Barret (1859), 28 Mo. 388; Myers v. Kansas City (1892), 108 Mo. 480; Bluedorn v. Railroad (1894), 121 Mo. 258; Schepers v. Railroad (1895), 126. Mo. 665; Payne v. Railroad (1895), 129 Mo. 405.]”

So we say in this case, there is no presumption of due care upon the part of the deceased. The evidence shows just how and what he did. It shows that he failed to hear, when to listen was to hear, because all the witnesses heard. The evidence shows that he did not look, because it was open daylight, and to look was to see. Not only so but the evidence further shows that he looked straight ahead toward his horse, and neither turned to the right nor the left, the directions from which danger might arise. Under this state of facts, we must hold deceased guilty of negligence as a matter of law, which negligence contributed to and caused his death. There is left only the humanitarian rule and this question we take next.

III. Passing now to the humanitarian rule, how stands the plaintiff’s case? To our mind there are two satisfactory reasons for holding that no case was made even under this rule of law. Even if it be granted that other matters of evidence would tend to brilLg the case within the rule, yet there is a failure of substantial evidence that the train could have been stopped within the space at which deceased was discovered, or could have been discovered, in a position of peril. We refer to the testimony of the so-called expert placed upon the stand by the plaintiff. This expert, James A. Taggert, said that for twenty-two years he was a locomotive engineer, but that he had not been such for the last fourteen years. His testimony then further runs thus:

“Q. Have you kept pace with the improvements in the last few years? A. Not altogether, a good many changes have been made in the air-bjake; of course I have not taken particular attention to things.
“Q. Do you know number thirteen which runs from Moberly to Kansas City? A. Yes, sir.
“Q. Did you ever run on this end of the. road for the Wabash Eailroad? A. Yes, sir.
“Q. How long? A. Two or three years; didn’t run a regular passenger train on this end and I used to be here once in awhile.
“Q. I will ask you to state to the jury how long, in your judgment, based upon your experience as a railroad man and your knowledge of the appliances —railroad appliances — would it take a train composed of an engine and three cars — passenger coaches —to make a stop in an emergency at sixty miles an hour, in what distance?
“To which question counsel for defendant objected, for the reason that it does not embody the state of facts proven in this case; neither does the witness show that he is qualified to answer; he is not now in the employ of the company and has not been in the employ of any company for the last twelve or fourteen years and there is no evidence that this train was equipped as they were twelve or fourteen years ago, or that this man would have knowledge of the subject sufficient to give expert testimony.”
“Q. Do you know how this train, number thirteen, was equipped about June, 1906? A. Of'course we have air on everything, here, now, freight trains and all, engines are all equipped with air.
“By Mr. Eobertson: Q. You don’t know anything about this particular train this day, do you? A. No, sir.
“By the Court: Let him answer the question.
“By Mr. Howard (To the stenographer): Please read the question.”
“ (The stenographer then read the question as follows :)
“Q. I will ask you to state to the jury how long in your judgment, based upon your experience as a railroad man and your knowledge of the appliances— railroad appliances — would it take a train composed of an engine and three cars — passenger coaches — to make a stop in an1 emergency, at sixty miles an hour— in what distance?
“Counsel for defendant object to this question for the reason last above given.
“Which said objection the court overruled, and to the action of the court in overruling the said objection, the defendant, by its counsel, then and there at the time, duly excepted and saved its exceptions.
“By the witness: In an emergency — what I would call an emergency—
“By Mr. Robertson: We object.
“By the witness: In an emergency, about four hundred feet. ’ ’

Neither the question nor the answer was proper in this case, and when they are stricken from the record, as they should have been upon the motion to that effect by the defendant, there is nothing left to sustain the verdict. There is no evidence of the equipment and make up of this train. There is no evidence as to the grade of the track, nor as to the condition of the track at the time. Nor is there any evidence as to how the train was loaded. In stopping a passenger train for any purpose, due regard must be had for the safety of the passengers. This element, a very material one, is left out of the question. Other material elements as to make-up and equipment of the train, and grade and condition of track, are all left out.

In Gourley v. St. Louis and S. F. Ry. Co., 35 Mo. App. l. c. 92, it is said: “Just within what distance a train might be stopped in a given case, with safety to property, and the lives of persons thereon, would depend upon the speed of the train at the time, the grade of the track, the size of the train, whether tEe cars were loaded or empty, and the kind of brakes used.” And on page 95 in the same case it is further said: “The attention of the witness should have been called to the particular train, the speed at which it was moving’, and the condition of the grade at the place where the accident occurred.”

In Mammerberg v. Street Ry. Co., 62 Mo. App. l. c. 567, Smith, P. J., says: “The hypothetical questions, if such they may be called, were not so framed as to call the attention of the witness to a particular train, the speed it was moving and the condition of the grade at the place where the injury occurred. The hypotheses of the question were not sufficiently comprehensive. Nor did such hypothetical questions call for the opinion of the witness under circumstances and conditions similar to those disclosed by the evidence in the case. According to the rules to which reference has been made, this objectionable testimony should not have been admitted.”

So, too, has said this court, in Culbertson v. Street Ry. Co., 140 Mo. l. c. 59, whereat we said: “The witness, without any qualification, was permitted to state within what distance a train could be stopped. In what distance a train under ordinary circumstances could have been stopped is one thing and a very different thing within what distance this train could have been stopped, due regard being had to the safety1 of the train in making the ‘let-go,’ and of the safety of the passengers, at this particular place and under the peculiar circumstances after the gripman discovered Culbertson was trying to pass on the east.”

And in Heinzle v. Railroad, 182 Mo. l. c. 554, we further said: “It seems to us that the witness was clearly qualified from experience and personal knowledge of the situation to testify as an expert, but the proper predicate was not laid upon which he should have been permitted to express an opinion in that it was too restrictive and did not embody important facts in the case. It should have embraced the time and space within which a car like this one could have been stopped by a reasonably skillful motorman, after he discovered or might have by reasonable care discovered the little girl in danger, with due regard to the safety of the passengers. [Ruschenberg v. Railroad, 161 Mo. 81; Culbertson v. Railroad, 140 Mo. 59; Mammerberg v. Railroad, 62 Mo. App. 563.] ” The italics are ours.

Again in Senn v. Railroad, 108 Mo. l. c. 151, this court through Macearlane, J., said: “So the liability of defendant depends upon whether the car could have been stopped after the first appearance of danger, and it became important to know in what distance that particular car, at that place, with the condition of the track then existing, could have been stopped. We do not think this witness was sufficiently informed of the facts, as they were stated in the hypothetical question, to make his opinion admissible.”

In Ruschenberg v. Railroad, 161 Mo. l. c. 81, we said: “Error is predicated, also, on the exclusion of an answer to the witness Meyers to the following question: ‘What means would you employ as a motorman to stop a car in the shortest time and space possible?’ The witness had testified that he had formerly been employed as motorman for four years on the Franklin avenue car line in St. Louis,, but was at the time of the trial a member of the fire department, and that a large-sized double-truck car running down a grade with a fall of one inch and three and one-half hundredths to the one hundred feet, and running at eight miles an hour on a dry track, could be stopped in a distance from forty to forty-five feet by using a brake, and if the slack was taken up could stop it in twenty or twenty-five feet. After this, he was asked what means he would have used to stop the train in the shortest time and space possible. The court correctly ruled that the question was improper. It should have been, within what time and space could a car like this have been stopped by a reasonably skillful motorman, after the motorman discovered, or might have by reasonable care discovered, the plaintiff’s son in danger, with due regard to the safety of the passengers on the carV’ Again the italics are ours.

Due regard for the safety of the passengers is an element that must be considered in all such cases. "We emphasize this because upon the cross-examination of the witness Taggert, the means, which he says he would use in bringing such a train to a stop, leaves out of consideration this material element. It might be possible, a thing which we do not believe, that a train of three passenger coaches running at sixty miles an hour could be stopped in 400' feet, or “about four hundred feet” as the witness puts it, but we would not want to be a passenger on a train so stopped. Our doubts upon this point are fully justified by the evidence. Passengers on this particular train felt the application of the air to the brakes before the collision, and yet this train with the brakes on ran over a quarter of a mile, or 1700 feet before a stop was made.

This however is adrift. The gist of the matter is that this opinion of Taggert is worthless and of no probative force in the ease, and this for the reason that he had placed before him no facts upon which he could predicate a valuable opinion. This opinion being without probative force, under the facts and the law, a fatal gap appears in plaintiff’s case even under the humanitarian rule.

But we go further. If this train was running sixty miles an hour, then it made eighty-eight feet per second. Under the evidence it is clear that deceased could not have been seen, owing to the curve in the track, until the train was within 900 to 1000 feet of him. Taking the outside limit of 1000 feet, the engineer only had 11 4-11 seconds, from the time his engine rounded the curve, to discover the peril of deceased, to sound his alarms, and to apply his brakes. Human beings can’t work with the rapidity of electricity. Thoughts must be gathered and nimble fingers and hands put in motion. Seconds fleet by. They are unlike minutes. We say in this case as we did in the Degonia case, 224 Mo. l. c. 596: “Yet defendant is held liable for not saving life, with only ten seconds — ten ticks of the watch — in which to act.” In the case at bar if the train was going as fast as some of plaintiff’s witnesses put it there was less than ten seconds in which to act, and even if going as slow as defendant’s witness put it, there was but little more. We do not believe that the facts of this case authorize its submission to the jury even upon the humanitarian rule. The engineer says that he did all he could, and in this he is corroborated by plaintiff’s witnesses who feit the jar of the train when the air-brakes were applied.

IY. Whilst the evidence in this case discloses that there were a number of houses in the neighborhood of this crossing on the north side of the railroad, yet under the proof no increased use of this crossing is shown to have been occasioned thereby. The facts are that to the east of this crossing there was a coal mine, as we gather it from the evidence. This was on the north side of the track. The travel was from thence west to Huntsville, but was on the north side and not necessarily over this crossing. In fact under the evidence in this case this crossing is the ordinary and usual country crossing.

The petition lays much stress upon the rapid rate of speed. Plaintiff was impressed with that idea and some of the witnesses were evidently so impressed, when they testify to a speed of ninety miles per hour. Under the disclosed facts the rate of speed had no special bearing upon this case, except as an element in determining within what distance the train might have been stopped. The rule is firmly fixed in this State. We had the identical question up in McGee v. Railroad, 214 Mo. l. c. 541, and there said: “It has always been held by this court that in the country, between stations, away from congested populations, it is not negligence for passenger trains to run at a rapid speed over road-crossings. If this long-established and well-lmown interpretation of the law was not satisfactory to. the Legislature, it must be conclusively presumed that it would have taken up the question of rapid transit under the modern demands" of commerce and established a legislative rule regulating train speed at country crossings. The allegations of the petition is that regard stated no cause of action under this proof.”

In the early case of Goodwin v. Railroad, 75 Mo. l. c. 76, this court held it was error upon the part of the trial court to refuse to give this instruction: “Outside of cities and towns the law does not prescribe the rate of speed of railroad trains at public crossings. ’ ’

And in the earlier case of Maher v. Railroad, 64 Mo. l. c. 275, this court said: “No conceivable rate of speed is per se negligence, except where the law of the State, or a municipal corporation, authorized to do so, prescribes a limit.” Other cases might be cited, but these suffice to amplify the rule.

Again it was the duty of deceased to look and listen before entering upon the crossing. This under the evidence he did not do. The rate of speed, although negligent, does not excuse his contributory negligence. This is true even when the train is being run in excess of ordinance speed. [Stotler v. Railroad, 204 Mo. 619.] As said in the Stotler case, had the deceased looked he could have seen the rapid rate of speed. ' Our cases are so thoroughly reviewed in this Stotler case, that we content ourselves with a mere citation of it, and refer the reader to that opinion for a review of the Missouri case law. In the case at bar we conclude (1) that under the facts the humanitarian rule finds no lodgment, and (2) that the deceased came to his death by his own contributory negligence. The jury was evidently so impressed. At least such is a reasonable conclusion from a mere $2000 verdict in a death case.

The judgment in this case should be reversed outright, and it is so ordered.

All concur except, Valliant, G. J., absent, and Kennish, J., who dissents; 'Lamm, J., concurs in result.

DISSENTING OPINION.

KENNISH, J.

This case was transferred from Division One to the Court In Banc, upon an opinion written by Bond, C., holding that the trial court did not err in refusing defendant’s demurrer to the evidence and in submitting the case to the jury, but that because of error in an instruction for the plaintiff the judgment should be reversed and the cause remanded. That opinion was concurred in in division by Valliant, C. J., and Woodson, J., the latter concurring in all “except what is said about the statute being penal.” Lamm, J., was dubitcmte, and Graves,' J., dissented because in his judgment the cause should be reversed without remanding. It is the opinion of the writer that the judgment should be reversed and the cause remanded for a new trial for the reasons stated in the opinion of Judge Bond, and further that the judgment should not be reversed without remanding, for the reasons stated in the same opinion.

The opinion of' the court herein reverses the judgment without remanding and from that disposition of the case I respectfully dissent. If the conclusion reached by the court is well founded then the trial court should have given defendant’s instruction directing a verdict for the defendant at the close of all the evidence. That question is ably discussed in the opinion written by Judge Bond and I adopt what is there said upon that point as expressive of my views. It is as follows:

“It is next insisted that the demurrer to the evidence at the close of the trial should have been sustained. In considering this assignment of error, we must regard ihe entire testimony from the most favorable standpoint to plaintiff, since the defendant waived its demurrer at the close of plaintiff’s evidence by thereafter putting in its own testimony. [White v. Railroad, 202 Mo. 539.] In substance, the petition alleged negligence arising out of conjunctive acts. The testimony for plaintiff tended to prove .each and all of these allegations. The evidence of both parties tended to prove that plaintiff’s husband was seen driving across the track by the fireman and engineer when he was four or five hundred feet ahead of the train. There was also evidence tending to show that a similar train could have been brought to a standstill within that distance. The evidence as to the failure to sound the bell or blow the whistle was positive, and that of itself was sufficient to make out a prima facie case for plaintiff. [R. S. 1909, section 3140; McGee v. Railroad, 214 Mo. l. c. 544-545.] Hence, unless the deceased is shown by the entire testimony to have been guilty of negligence which directly contributed to his own injury, the case was properly sent to the jury. The only evidence, based on the actions of the deceased, which tends to show that he had any knowledge while driving across the track that a train was approaching is, that he rose in his buggy, in the act of crossing, and lashed his horse in a fruitless endeavor to escape being struck by the train. The train was one which ran according to a fixed schedule, for it was made up at Moberly, Missouri, and ran from there through the town of Huntsville to Kansas City. The crossing in question was just outside of the eastern limits of Huntsville. The train was running an hour behind time. The crossing was a public one, and adjacent to it was a considerable settlement, known as West Kimberly. The inference is not inadmissible that travelers using that crossing were acquainted with the schedule time of this well-known train. This and the absence.of crossing signals may account for the failure of the deceased to fully observe the duty of stopping, looking in both directions and listening for the approach of the train before entering upon a public crossing, if he failed so to do. But assuming that he was negligent in not taking these precautions and that by his negligence he was in a place of peril after driving on the track, still there is ample testimony in this record that the train approaching that crossing had just emerged from a curvature and was four or five hundred feet from him at the time, and that if it had been running at the rate of fifty or sixty miles an hour it might have been stopped in time to avoid the accident, and that he was actually seen at this distance and in this extremity by the fireman and by the engineer and by passengers on the train. This testimony combined with other testimony to the effect that it was possible within that distance to stop a train running at such a rate of speed, furnished sufficient basis for the application of the rule making it the duty of the defendant to exercise ordinary care to prevent the killing of a person who was seen to be trying to extricate himself from danger, and furnished a legal basis from which the jury were entitled to find that the proximate negligence which caused the death of plaintiff’s husband, was the failure of the defendant to observe, that duty. Whether the deceased was negligent or not in getting into danger, he was afterwards seen to be trying to escape. It was then the imperative legal and moral duty of defendant’s agents to seize the last clear chance to save his life by exercising ordinary care to stop the train. This is the highest teaching of Christian culture. The rule is ingrained in the web of the law of Missouri; We, therefore, rule that the trial court did not err in submitting this case to the jury. ’ ’


author: PERRISS, J.

text:
    D. H. SMITH, Appellant, v. CITY OF SEDALIA, Appellant.
    In Banc,
    June 20, 1912.
    1. SUIT PENDING: Sewage on Farm: Permanent Injury. A suit brought in 1895 by the owner for injuries to his farm caused by the construction by a city of a main sewer in 1893 to within six hundred feet of the farm, whose sewage is there emptied into a creek which flows through the farm, polluting its waters, rendering them unfit for the use of man or beast and contaminating the air with noxious odors, but which has not since been further extended, although the amount of sewage has been increased, owing to the growth of the city and the construction of district sewers, in which damages in the market value of the farm and depreciation in its rental value are demanded, still pending and undecided, is under the statute (Secs. 1800 and 1804, R. S. 1909), if pleaded, a bar to another suit brought in 1902 ih which damages to the rental value of the farm, caused by the same sewer, are claimed. The sewer is permanent in character and evidently was intended to be permanent; and the appropriation of the farm is the same, as to the measure of damages, as if the city had in 1893 or previously instituted condemnation proceedings to acquire the use of the stream, ih which case there could have been but one assessment of damages due to the permanent injury, past and future. And the petition in the first suit asking for damages to the market value of the farm and for a depreciation in its rental value was broad enough to embrace a claim for depreciation in rental value alone asked for in the second suit. The owner is entitled to depreciation in the market value of the farm if the injury be permanent, or to be compensated for actual loss of rents, or for destruction of use and .occupation, ■but he is not entitled to all three, as separate damages, even if all three be shown. Full damages can be awarded to defendant in the first suit still pending.
    2. -: -: -: Injunction. The owner of a farm cannot have damages from the city for turning its sewage into a creek upon his farm, and also an injunction to restrain the nuisance, the injury being of a permanent character. A recovery of damages for the appropriation of the creek by the city has the effect of confirming the right of the city to sewer into the stream as effectually as if that right had been obtained through condemnation.
    3. -: -: -: -r-: Consequential Damages: Payment Before Appropriation. The Constitution does not require consequential damages to be paid in advance of the work. So that a city which constructed its sewer to within six hundred feet of plaintiff’s farm was not required to pay him the damages that would result to the farm before there turning the sewage into a stream which runs through the farm and whose waters were thereby polluted, since such damages were consequential; and an injunction will not lie to restrain the city from making such wse of the stream until it can bring a condemnation suit, nor does its. failure to pay in advance in any wise impair plaintiff’s right to compensation.
    4. -: -: -: -: Remedy at Law: Great Public Injury. The court will not enjoin the further operation of a city’s great and costly sewer system, with the attendant danger to public health and convenience, at the suit of a farmer into a stream on whose farm the sewage is emptied, who has an ample remedy at law'for damages.
    Appeal from Moniteau Circuit Court . — Hon. W. H. Martin, Judge.
    Affirmed (in part).

      Charles E. Teater and Montgomery $ Montgomery for plaintiff-appellant.
    (1) The first point of the city that the nuisance complained of is a permanent injury and that all damages must in consequence thereof be recovered in one action has been heretofore adjudicated and put at rest in Smith v. City, 152 Mo. 300; and further the statement to the effect that the sewer was completed in Oetober, 1893, is erroneous, as it appears from tbe record that districts 10; 11, 15> and 16, were added to the system from May 28,1894, to July 18,1898; and the plaintiff, having sued for loss of rent's with a count in equity for the abatement of the nuisance by injunction in the first suit which was still pending, and having again in this second suit prayed the abatement of the nuisance, could not recover permanent damages in this second suit; nor can the plaintiff without his consent by election be forced to have permanent damages assessed in this action which would thereby deprive him of his right in equity for an abatement of the nuisance, and of his constitutional right to have his damages assessed and paid before his rights in his property are divested. Smith v. City, 152 Mo. 300’; Sec. 21, art. 2, Constitution; 4 Sutherland on Damages (3 Ed.), sec. 1046; Consumers Co. v. Pinkert, 92 S. W. (Ky.) 957; Morgan v. Danbury, 67 Conn. 484; Uline v. Railroad, 101 N. Y. 122; Vogt v. Grinnell, 98 N. W. (Iowa) 782; Carmichael v. Texarkana, 94 Eed. 564. (2) The second point made by the city to the effect that error was committed in excluding evidence tending to show that the surface drainage washed on plaintiff’s land before any sewer was built, and was more injurious than the condition after its construction, was practically made res adjudiccita in this case in Smith v. Sedalia, 182 Mo. 9, and the further contention made in this point by the city, that the burden was on the plaintiff to show that he was injured by the defendant’s acts, was ruled to the contrary in Smith v. Sedalia, 182 Mo. 12, where this court says: “If the facts averred do constitute a nuisance, it is sufficient for the plaintiff to prove them, and it is not necessary that he should also prove that he has been especially injured by such nuisance.” Smith v. McConathy, 11 Mo. 522; Jones v. Hannovan, 55 Mo. 468; Paddock v. Somes, 102 Mo. 237; Bungenstock v. Drainage Dist., 163¡ Mo. 222; Mize v. Glenn, 38 Mo. App. 104. (3) The plaintiff was entitled to a peremptory instruction to the jury, that a finding must be in his favor, in .as much as the defendant, by its answer admitted that it had collected sewage in a sewer system and had cast it on the plaintiff’s land, which admitted facts constitute .a nuisance. Smith v. Sedalia, 182 Mo. 12. (4) The fourth contention for the city, that the jury should not have been instructed to give damages for the depreciation in rental value and injury to the comfortable use and occupation, is precluded by the specific ruling of this court on this particular instruction in Smith v. Sedalia, 182 Mo. 1.1 and 12, which particularly directs such a recovery of damages in this exact language. Furthermore, the plaintiff’s testimony showed not only a depreciation of one-half of the rental value of the 200 acres of woodland pasture, constituting the south half of the farm, but also showed that the residence on the farm, lying north from the running sewage, was made disagreeable by the foul ■ smells blown therefrom. Smith v. Sedalia, 182 Mo. 10. (5) The jury should not have been instructed, as asked by the defendant, and as contended for in its fifth point of its brief, that unless the waters of Cedar Creek running through plaintiff’s lands were polluted by the construction of defendant’s sewer system to a greater degree than they would have been from the natural drainage running into said creek, if the sewer had not been built, then the finding should be for the defendant. The defendant’s answer 'and the undisputed facts, show that the defendant had collected sewage and had thrown, it in a- body on plaintiff’s land and that constituted a nuisance, and, irrespective of whether damages ensued, or even if benefits thereby resulted, it would have been error to have instructed the jury to find, under circumstances as set forth above, for the defendant. Smith v. Sedalia, 182 Mo. 12; Jones v. Hannovan, 55 Mo. 4681 (6) A case involving this same sewer between the same parties has twice been before this court and is reported in 152 Mo.
      283, and 182 Mo. 1. Plaintiff’s remedy is in equity for the abatement of the nuisance. Its jurisdiction is predicated upon the broad ground of preventing irreparable injury, interminable litigation, a multiplicity of actions and the protection of plaintiff’s right of property. No other court can afford a full and complete remedy in such cases. It has been universally exercised in similar cases. Paddock v. Somes, 102 Mo. 240; Welton v. Martin, 7 Mo. 310; Smith v. McConathy, 11 Mo. 522; Baker v. McDonald, 178 Mo. 472; Realty Co. v. Deere, 208 Mo. 83; Mining Co. v. Joplin, 124 Mo. 135; Samons v. Gloversville, 175 N. V. 346; Ice Co. v. Philadelphia, 156 Pa. St. 54; Pettigrew v. Evansville, 25 Wis. 223; Butler v. Thomas-ville, 74 Ga. 570; O’Brien v. St. Paul, 18 Minn. 176; Atty.-Gen. v. Birmingham, 4 K. & J. 528; City v. Bond, 96 Ind. 242; Ashley v. Port Huron, 35 Mich. 301; Voight v. Grihnell, 98 N. W. (la.) 782; Madison v. Sulphur Co., 83 S. W. (Tenn.) 658; Barnett v. Cemetery, 159 111. 390; Truett v. Assn., 50 L. R. A. 564; Foncannon v. Kirksville, 88 Mo. App. 279; Edmondson v. Moberly, 98 Mo. 526; Safe Dep. Co. v.- Kennett, 101 Mo. App. 394; Gould on Waters, sec. 546; Bank v. Kercheval, 65 Mo. 688 ; Gould v. Rochester, 105' N. Y. 46; Chapman v. Rochester, 110 N. Y. 276; Carmichael v. Texarkana, 94 Fed. 565; Good v. Altoona, 162 Pa. 493; Beach v. Elmira, 22 Hun, 163; Merton v. Chester, 2 Del. Co. 459; Morgan v. Danbury, 67 Conn. 484; Valparaiso v. Moffett, 12 Ind. App. 250; Morse v. Worcester, 139 Mass. 389; Nolin v. New Brittain, 69 Conn. 668; Hooker v. Rochester, 37 Hun, 186; Cator v. Board, 5 Best S. 115; Wharf Co. v. Portland, 67 Me. 46; Mansfield v. Hunt, 19 Ohio C. C. 488; Owens v. Lancaster, 182 Pa. 257; Jacksonville v. Doan, 145 111. 28; Evansville v. Decker, 84 Ind. 325; Van Pelt v. Davenport, "42 la. 308; Perry v. Worcester, 6 Gray, 544; Draper v. Mackey, 35 Ark. 497; Woodyear v. Schaffer, 57 Md. 12; Holsman v. Bleaching Co., 14 N. J. Eq. 347; Mayor v. Mfg. Co., 59 Md. 96. (7) It is no objection to the exercise of injunctive relief that the city has adopted the natural course of drainage, has spent large sums in constructing its system of sewers and it has no other outlet for the sewage. Smith v. 'Sedalia, 152 Mo. 302; Beach v. Elmyra, 22 Hun, 163; Byrnes v. Cohoes, 12 N. Y. S. C. 602; Hooker v. Rochester, 37 Hun, 184; Peterson v. Santa Rosa, 1191 Cal. 347; Platt v. Water bury, 77 Conn. 550; Safe Dep. Co. v. Kennett, 101 Mo. App. 394; Gould on Waters, sec. 546; Addison on Torts (2 Ed.), sec. 1085; Wood on Nuisance (3 Ed.), secs. 427-434-782; Dwight v. Hayes, 150 111. 273; Robb v. La Grange, 158 111. 28; High on Injunction (2 Ed.), sec. 810. The city should proceed in accordance with the requirement of sec. 21, art. 2, of the Bill of Rights of the Constitution and the statutes and condemn the right of way for the sewage by paying plaintiff such damages as should be awarded him. The law is not disposed to help one who will not help himself and the remedy so easily at hand and convenient is a perfect answer to all the complaints of the city in this respect. Mining Co. v. Joplin, 124 Mo. 135; Yan De Yere v. Kansas City, 107 Mo. 84; Uline v. Railroad, 101 N. Y. 114. (8) No acquiescence or consent of the plaintiff is shown. His simple silence under the circumstances disclosed by the evidence created no estoppel. By no act or conduct of his was the city led into any course of proceeding. They continued to construct additional sewer system after plaintiff had commenced his action- to abate the nuisance. They did it under claim of right. Smith v. Sedalia, 152 Mo. 283; Chapman v. Rochester, 110 N. Y. 226; Galloway v. Railroad, 128 N. Y. 153; Maupin v. Railroad, 171 Mo. 195y Lead Co. v. White, 106 Mo. App. 232; Thomas v. Cannery Co., 68 Mo. App. 359; Spurlock v. Sproule, 72 Mo. 510; Bales v. Perry, 51 Mo. 449. Any acquiescence could at most create only a license revocable at pleasure. Dwight v. Hayes, 150 111. 281; Pitzman v. Boyce, Ill Mo. 387; Lead Co. v. White, 106 Mo. App. 222; Scheurich v. Light Co., 109 Mo. App. 406; Muellor v. Fruen, 36 Minn. 273; Leonard v. Spencer, 108 N. Y. 338; Tiedeman on Eeal Property, sec. 653. (9) The pendency of the former action for damages for a different period of time is not a cause for abating present action. Such action was not vexatious or unnecessary. It was necessary to prevent the bar of the Statute of Limitation. The causes of action are not identical. Eodney v. Gibbs, 184 Mo. 10; Warder v. Henry, 117 Mo. 541; State ex rel. v. Dougherty, 45 Mo. 294. (10) The interest of the public and those connecting with the city’s sewer system, will not be affected by a proper * decree of injunction which can preserve the status for such time as may be necessary for the city to proceed with diligence and without delay to a condemnation of the right to conduct its sewage over plaintiff’s land instead of wilfully persisting in its unlawful act as an intentional tort-feasor to the plaintiff’s damage. Gray v. Patterson, 48 L. E. A. 722; Mills v. Cambridge, 117 Mass. 401.

      W. W. Blair, 0. C. Kelly, W. M. Williams, W. G. Lynch, M. A. McGruder and E. W. Coney for defendant-appellant.
    (1) The sewer system complained of was built in permanent form and will continue to discharge the sewage of the city into the stream in question, “without change from other cause than human labor.” It is, therefore, a permanent injury to plaintiff’s land, if any injury it be at all, and all the damages resulting from a permanent nuisance must be sued for in one action. Springs Co. v. McCray, 56 S. E. 216; Paris v. Allred, 43 S. W. 62; Madisonville v. Hardman, 92 S. W. 930; Troy v. Eailroad, 55 Am. Dec. 187; Huntington v. Stemeh, 77 N. E. 407; Gas Co. v. Thomas, 59 N. W. 925; Baldwin v. Gas Co., 10 N. W. 317; Powers v. Council Bluffs, 45 Iowa, 652. There was no occasion for harassing the defendant with .a second suit. All the damages from a permanent injury may be assessed at one time. The plea that another suit was pending between the same parties for the same cause of action when the present suit was begun, was well taken and constituted a proper defense. R S. 1899, secs. 598', 602; 1 Ency. PI. & Pr. 750*., It is no answer to say that plaintiff only asked for damages in the first suit on account of depreciation in the rental value, to the time of filing the petition in that case. If the injury was permanent, all the damages claimed could and should be included in one action. Smith v. Sedalia, 182 Mo. 12; Slattery v. St. Louis, 120 Mo. 183; Powers v. Council Bluffs, 45 Iowa, 652; Powers v. Railroad, 158 Mo. 87; Bungenstock v. Drainage Dist., 163 Mo. 222; Walters v. St. Louis, 132 Mo. 1. A plaintiff having one cause of action cannot split it up and bring several suits, and when this is done the first suit may be pleaded in abatement to the subsequent ones. Wagoner v. Jacoby, 26 Mo. 532; Mateer v. Railroad, 105 Mo. 320. (2) The sewer was completed and the injury to plaintiff’s land if any, done in October, 1893. This action was not begun until March 6, 1902. The Statute of Limitations of five years was a good defense to the present suit. Springs Co. v. McCray, 56 S. E. 216; Hay v. Lexington, 71 S. W. 867; Powers v. Council Bluffs, 45 Iowa, 652; Powers v. Railroad, 158 Mo. 87. (3¡) The court below tried the case upon an improper theory as to the measure of damages and erred in overruling defendant’s objection to that theory and in admitting testimony as to the depreciation in the rental value of the farm. Slattery v. St. Louis, 120 Mo. 183; Tegler v. Kansas City, 95 Mo. App. 166; Paris v. Allred, 43 S. W. 62; Gras Co. v. Thomas, 591 N. W. 925 ; City v. Hardman, 92 S. W. 930' (4) Error was committed in excluding evidence tending to show that the condition of Cedar Creek, on account of the surface drainage which was washed into it before any sewer was built, was worse and more injurious to plaintiff’s land than the condition of said creek after the building of the sewer. The burden was on the plaintiff to show that he was injured by the defendant’s acts, and this evidence was competent upon that question. 3 Sutherland on Damages (2 Ed.), sec. 1037. (5) The court properly refused the injunction prayed by plaintiff. He had a plain and adequate remedy at law for the assessment of all damages, past, present and prospective, for any injury sustained by him in consequence of the construction of defendant’s sewer system. Powers v. Railroad, 158 Mo. 87; Paris v. All-red, 43 S. W. 62; Vickers v. City of Durham, 44 S. E. 685.; Madisonville v. Hardman, 92 S. W. 930; Herr v. Asylum, 61 S. W. 283; Huntington v. Stemeh, 77 N. E. 407; Gas Co. v. Thomas, 59 N. W. 925; Springs Co. v. McCray, 56 S. E. 216; Bungenstock v. Drainage Dist., 163 Mo. 198. (6) The sewer system was completed, at a cost of almost one hundred thousand dollars to the citizens of Sedalia, immediately after the 8th of October, 1893, and there has been no change after that time. This suit for an injunction was not begun until nearly nine years thereafter, plaintiff in the meantime being a resident of the city of Sedalia., owning a residence and store-houses therein, which he connected with said sewer system, and, at the time he was applying for an injunction, was himself receiving the benefit of said sewers. After this long delay and acquiescence on his part and the use of said sewer for his own. benefit, he is not entitled to relief in equity, but will he remitted to his remedy at law. Logansport v. Uhl, 50 Am. Rep. 109; Traphagen v. Jersey City, 29 N. J. Eq. 206; 16 Ency. Law (2 Ed.), p. 357; 22' Cyc. 779', c and d; "Welton v. Martin, 7 Mo. 307; Property Co. v. Railroad, 115 Mo. 613. (7) “The interests of the public are to he taken into consideration by the court, and when the issuance of an injunction will cause serious public inconvenience or loss, without a correspondingly great advantage to the complainant, no injunction will be granted.” 22 Oye. 784-K.; Herr v. Asylum, 61 S. W. 283; Gray v. Patterson, 48 L. R. A. 721; Logansport v. Uhl, 50 Am. Rep. 109'; Torrey v. Railroad, 18 1ST. J. E. 293; 29 Oye. 1231-K; Vickers v. Durham, 44 S. E. 685; Edwards v. Mining Co., 38 Mich. 46.
   PERRISS, J.

The following statement of facts is taken from the opinion of the Kansas City Court of Appeals rendered in this cause at the April term, 1912:

“The cause of action alleged in the petition is the wrongful pollution of a natural watercourse which runs through plaintiff’s farm of four hundred acres, just north of Sedalia. The cause of the pollution is sewage from the city collected by defendant’s system of sewers and discharged into the stream from the mouth of the main sewer at a point about 200 yards from the south boundary of plaintiff’s farm. The length of the stream through the farm is about one mile, and the sewag*e is carried — so plaintiff contends in his petition and proof — over the entire course of the stream through the farm. The water is made unfit for the use of man or beast and the adjacent air is contaminated with noxious odors. The farm is highly improved, was devoted principally to stock raising, and, before the creation of the nuisance of which plaintiff complains, the stream afforded a bountiful supply of pure and wholesome water for the live stock pastured on the farm. At first the séwers of Sedalia were private, but in 1887 they became public, and the city extended the system from time to time. The mouth of the main sewer, built under an ordinance passed in 1887, was 4140' feet south of plaintiff’s land. In 1891 the sewer was extended 2640 feet northward, and in 1893 another extension of the city brought its terminus to a point only 600- feet from the south line of the farm. No extensions or changes have been made in the main sewer since that year. The present snit was instituted in the circuit court of Pettis county in March, 1902. The petition is in two counts. In the first, plaintiff seeks to recover damages inflicted by the nuisance during the preceding five years, and the damages claimed are those resulting from the injury to the rental value of the farm during that period. The second count pleads a cause in equity, and o the prayer is that defendant ‘be enjoined from depositing sewerage from its said sewer system into the bed of Cedar Creek or elsewhere, from which the same may be carried into or upon the premises of plaintiff, and upon final hearing of the cause will adjudge the acts of the defendant wrongful in creating a nuisance and order the same abated,’ etc.
‘ ‘ The suit was taken to Moniteau county on change of venue. The cause pleaded in the first count was tried to a jury in 1905, resulting in a verdict and judgment for plaintiff for $2000. At the same term the court tried the issues tendered in the second count and decided them in favor of defendant. Plaintiff appealed from the judgment rendered on the second count, and defendant appealed from the judgment on the first count.
“In April, 1895', plaintiff commenced a suit in the circuit court of Pettis county against defendant on account of the same nuisance. He claimed damages resulting from the depreciation of the value of the 'farm and its rental value. A trial in Pettis county resulted in a verdict for defendant, but plaintiff’s motion for a new trial was sustained, and defendant appealed to the Supreme Court, where the judgment granting a new trial was affirmed. [Smith v. Sedalia, 152 Mo. 283.] Afterward, on motion of plaintiff, the venue of the action was changed to Johnson county, and on a trial there before a jury defendant again prevailed, but, as before, the court sustained plaintiff’s motion for a new trial, and defendant appealed to the Supreme Court. The judgment granting a new trial was affirmed at the April term, 1904. [Smith v. Sedalia, 182 Mo. 1.] Since then that action has been suffered to sleep in the circuit court of Johnson county, where it is still pending, and the activities of the parties have been centered on the present action. Defendant contends in its answer and briefs that the pendency of the first suit is a bar to the prosecution of the second.”

The appeals were allowed in the first instance to this court, but later the cause was transferred to the Kansas City Court of Appeals. [228 Mo. 505.] Upon a hearing in that court, the judgment was reversed and the cause remanded with directions to enter judgment for defendant on both counts. On rehearing, the judgment rendered on the original hearing was reentered. The court held the pending suit filed in 1895 a bar to this suit. One of the judges, however, deeming the decision in conflict with the decisions of this court in Smith v. Sedalia, 152 Mo. 283, and Smith v. Sedalia, 182 Mo. 1, the cause was certified to this court for final determination.

In addition to the above statement of facts, it may be proper to say that in the first suit filed by plaintiff in 1895, above referred to, he not only claimed damages as stated, but also, in the same count, prayed for an injunction to restrain the city from further maintaining and operating said sewer. The case, however, was tried as if it were simply a suit at law for damages, and was so construed by this court on the appeal reported in 152 Mo. 283.

The allegations concerning the injury caused by the sewer are substantially the same in both cases, with this exception, that in the present case there is no allegation of depreciation in the value of the farm, but the allegation is confined to the use and rental value. In the first suit damages were claimed for the period of time from plaintiff’s purchase up to the date of filing the- suit.

I. The first and important question is whether the former suit is a bar to this one. The answer to this depends upon whether the injury complained of in that case was permanent in character. If it was, then as this is for the continuation of the same injury, the two cases present the same cause of action, and the pendency of the first suit is a bar to this, under sections 1800 and 1804, Revised Statutes 1909, which provide that another suit pending in this State for the same cause may be pleaded in bar of a second suit.

The main sewer which discharges into Cedar Creek was completed in 1893 up to within six hundred feet of plaintiff’s land, and its effect upon the stream became manifest at that time. It was designed to serve a large sewer system. This main sewer has remained without further change. It was evidently intended to be permanent. At the time of the trial it was the outlet to a sewer system which served the larger portion of the city of Sedalia, and which cost about $100,600-. No practical way has been demonstrated for disposing of this sewage other than by the use of this watercourse, which is the natural drain for that portion of the city. Plaintiff attempted, unsuccessfully we think, to show that a septic tank would satisfactorily dispose of the sewage. It is true that since the completion of this main sewer, in 1893, additional district sewers have been incorporated into the general system, and doubtless others may be added hereafter. It is also true that as the population grows the main sewer will discharge an increased volume of contents into the creek. * This increase in use, however, is incidental to all sewers, but does not affect the question of the permanent character of the injury. If condemnation proceedings had been instituted in 1895 to acquire the use of this stream, the damages would have been fixed for all time, notwithstanding the impossibility of ascertaining at that time the extent of future use that might be made of the sewer. For this reason the damages would necessarily be to some extent conjectural; but that fact would not deprive the city of the right to condemn, nor prevent the ascertainment of final damages. In 1893, therefore, the sewer was, so far as human wisdom could forecast, a permanent institution, subject only to an increase of use. Had the city then condemned, as plaintiff now claims was its duty, the watercourse would have been lawfully appropriated for such use as the wants of the city might require, but the damages would have been fixed then, as best could be done, for all time. When, therefore, plaintiff sued the city in 1895, his cause of action was complete for a permanent injury. He stated such a cause of action in April, 1895', according to our construction of his petition in that case. [152 Mo. l. c. 290, and 182 Mo. l. c. 6.] It is true the petition also alleges injury to the use and rental value, and also prays an injunction against the city; but if the injury was permanent the petition contains an allegation sufficient for a recovery on the ground of diminution in market value, which is the proper measure of damages for such permanent injury. Of the prayer for injunction we will speak later.

It-is urged that this sewer system is not permanent, because it is within the power of the city to discontinue its use. The plaintiff ought not to complain of this possibility, if Ms damages are fixed on the basis of a permanent injury. The same possibility exists in every taHng of property for public use. A railroad right of way or a street may be abandoned. We can only judge of the future by probabilities based on experience. So far as can be judged now, or could have been judged in 1895, this sewer is permanent. Nothing said by us in the former appeals is contrary to this conclusion. On the first appeal (152 Mo. 283) it was contended by the city that inasmuch as sewage from the city went into this creek prior to 18891, the date of plaintiff’s purchase of the land, the cause of action for permanent injury was completed before his purchase, and belonged to the prior owner. This claim was disallowed by the court, because it was not until after the purchase by plaintiff that the sewer was completed far enough to show the substantial nature of the injury. That decision holds, on this point, that the injury was not permanent prior to 1889. Nothing is said by us in the second appeal (182 Mo. 1) to the effect that the injury was not permanent. On the contrary, we say there that plaintiff is entitled to compensation for depreciation in the market value, if that be shown. This, of course, on the theory of permanent injury. We also say that he is to be compensated for actual loss of rents, if that be shown, and for destruction of use and occupation, if that be shown, but we did not mean that there could be a recovery for all three, nor that repeated suits could be maintained for any of the grounds of injury. The following authorities sustain our views as to the permanency of the injury and proper measure of damages: Slattery v. City, 120 Mo. 183; Bungenstock v. Drainage Dist., 163 Mo. 198; City v. Allred, 43 S. W. 62; City v. Hardman, 92 S. W. 930; Kellogg v. Kirksville, 132 Mo. App. 519. We cite, with approval, the following from the opinion of Johnson, J., of the Kansas. City Court of Appeals, in this case:

“These authorities compel us to say that the nuisance in question is permanent, and that plaintiff,^if injured thereby, had a cause of action for his damages past and future, all of which were comprehended in and were to be measured by the depreciation in the maket value of his land caused by the presence of the sewer. For eighteen years past the sewer had remained in its present condition. It is just as substantial and enduring as a railroad embankment, drainage ditch, highway bridge, street pavement, office building or city hall. It was built without any intention or expectation that it would be removed or materially changed for years to come, and if the present action was one for permanent damages and was the only suit pending between the parties, we would not hesitate in declaring that plaintiff had made out a case for the jury, and that the true rule for measuring his damages was the depreciation in the market value of the land. ’ ’
This suit is not grounded upon trespass merely, nor upon nuisance, although the injury takes the form of a nuisance, but upon the constitutional right to compensation for property damaged for public use (Webster v. Railroad, 116 Mo. l. c. 118; Turner v. Railroad, 130 Mo. App. 540); and it is so argued in plaintiff’s brief. The city, by proper proceedings to that end, had the right by statute to secure the use of this stream for sewer-purposes. The city did not condemn, but appropriated the use. Such action, however, does not deprive the plaintiff of his right to compensation, nor does it affect the measure of damages, which, for such use by the city, whether by condemnation or appropriation, is the diminution in market value of the land damaged. As this court said in McReynolds v. Railroad, 110 Mo. l. c. 488, “no g’ood reason, founded upon principle, can be assigned why the,same rule should not be applied in both classes of cases” (condemnation and appropriation); “the injury is the same, the damage is the same, and the compensation should be the same.”

Both suits brought by plaintiff are, substantially, actions for damages for injury to his land resulting from a wrongful appropriation by the defendant city. He concedes the right of the city to condemn, and complains because it has not done so, insisting in effect that the city shall put him in the position to claim permanent damages; but by his 1895 suit he has put himself in position to claim the same measure of damage in full compensation for the injury.

II, Holding as we do that the injury is permanent, and that damages in full compensation can be awarded in the suit pending in Johnson county, such damages to be measured by the decrease in market value of the land caused by the sewer, it is obvious that plaintiff cannot have such compensation, and also maintain a suit for injunction. A recovery of damages as indicated would have the effect of confirming the right of the city to sewer into the stream as effectually as if the right had been obtained through condemnation. [Doyle v. Railroad, 113 Mo. 280.]

' The plaintiff contends that the city should have condemned the watercourse for sewer purposes, that it should do so now, and that because it has not done so he is entitled to injunction. He did not seek to enjoin the building or extension of the sewer, although he saw the work done, and knew that its use must necessarily befoul his stream. This effect became obvious in 1891; yet he did nothing to oppose the extension of 1893:. The condition during this period appears from the following statement of the evidence made by Vauliant, J., in Smith v. Sedalia, 152 Mo. l. c. 291:

“That beginning in 18891, and continuing to 1895, the city constructed district sewers, eleven in number, emptying into the main sewer above mentioned: that until 1891, when the first extension of the main sewer in the direction of plaintiff’s farm was made, much of the offensive character of the sewage was dissipated in the open air before it reached the plaintiff’s land, although even then an examination of the water in the creek showed contamination, but that after the extension of 1891 and the second extension of 1893, with the addition of the several district sewers above mentioned, the water became entirely unfit for use and dangerous not only to the cattle, but also to the health and comfort of the tenants-of the farm; that in 1893 plaintiff made oral complaint, and in 1894 written complaint to the city officers of the same, but without avail. There was also testimony for the plaintiff tending to show the depreciation of the rentals and value of the land within the periods complained of.”

Plaintiff waited until the city had completed the structure which caused the damage, waited until it had become a necessity to Sedalia, and then ashed a court of equity to restrain the use by the city until it should acquire a right by condemnation, conceding at the same time that the city had a right to condemn. Inasmuch as in such condemnation he would get in damages just what he can get by the suit now pending, it follows that he had in 1895’ a complete remedy at law.

Plaintiff appeals to the constitutional provision against taking private property for public use without compensation, and particularly to this clause: “And until the same [compensation] shall be paid to the owner, or into court for the owner, the property shall not be disturbed or the proprietary rights of the owner therein divested.” But the city has not disturbed the property of plaintiff, nor divested him of any proprietary rights. It has not invaded his land, but has erected a structure no nearer thereto than sis hundred feet. The damages to plaintiff are consequential. As to such damages, the Constitution does not require that they be paid in advance of the work. The city had a right, under the statute, to utilize this watercourse for sewer purposes. [Secs. 1524, 1544, R. S. 1889; Secs. 9281, 9298, R. S. 1909; Mining Co. v. Joplin, 124 Mo. 137.] Its failure to first condemn in no way impairs plaintiff’s right to compensation. In fact, it would be difficult to measure such consequential damages before the structure from which they arise is erected and the injurious effects become manifest. The constitutional provision above referred to received full discussion in Clemens v. Ins. Co., 184 Mo. 46. In that case, after reviewing the authorities, Gantt, J., concludes: “Where the property of the citizen is not taken, and his proprietary rights not disturbed, but the damage to his property is purely consequential, he is not the entitled to have the same ascertained and paid before the proposed public work is done, and is not entitled to have the work done in pursuance of valid legislature and municipal authority enjoined until his damages are ascertained and paid, but that his remedy is one at law for damages.” Under this authoritative construction of the Constitution, but one question arises in this connection, namely, is the damage here consequential? We rule that it is.

For still another reason there can be no injunction in this case. The writ of injunction is an extraordinary remedy. It does not issue as of course, but somewhat at the discretion of the chancellor. It is his duty to consider its effect upon all parties in interest and to issue it only in case it is necessary to protect a substantial right, and even then not against great public interests. An apt discussion and application of this doctrine are contained in the opinion of Lamm, P. J., in Johnson v. Railroad, 227 Mo. l. c. 450.

Surely no chancellor would enjoin the further operation of this large and costly sewer system, with the attendant danger to public health and convenience, when it clearly appears that any injury caused to plaintiff by the sewer can be fully compensated by a pending action at law.

We approve the very able opinion written by Johnson, J., of the Kansas City Court of Appeals, in this case, and the conclusion reached therein.

The judgment below upon the first count is reversed, and affirmed upon the second count.

Kennish and Graves, JJconcur; Broiun, J., in result; Lamm, J., having been of counsel, takes no part in the case; Valliant, G. J., absent; Woodson, J., dissents.