osition puts into the mail his answer accepting it, or does any equivalent act." Hauck Clothing Co. v. Sharpe, 83 Mo. App. 385. An offer and acceptance constitute a bargain. Stotesburg v. Massengale, 13 Mo. App. 226. On this question we take it for granted that It is not necessary to quote authorities. We will not comment on the authorities cited by appellant to sustain its position, for the reason that they do not apply.

As the plaintiff had contracts binding him to deliver potatoes of the kind and quantity described, and as he was compelled to go on the market and purchase others for the parpose of complying with his contracts, he was entitled to the difference between what he was to pay Kennedy and what he was compelled to pay for them in the market. The damages were not in any sense speculative, but were actual and certain in amount.

The case was tried upon the correct theery, and there was no error in giving plaintiff's instructions.

Affirmed. All concur.

MOFFATT COMMISSION CO. v. UNION PAC. R. CO.

(Kansas City Court of Appeals. Missouri. June 5, 1905.)

1. CARBIERS-INJURY TO GOODS-ACT OF GOD. While a carrier is responsible for an injury caused by the concurrence of its negligence with an act of God, yet such injury must be a natural and probable consequence of the negligence, and not an unusual and unanticipated consequence, such as an injury to goods caused by in unprecedented and unforeseen flood, to which the carrier's negligent delay in moving the goods subjected them.

2 SAME-BREACH of Contract.

A carrier is not liable, on the theory of breach of contract, for the destruction, by an foreseen and unanticipated flood, of goods which it delayed to transport, as such consecence was not in the contemplation of the parties as a probable result of the breach.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by the Moffatt Commission Company against the Union Pacific Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Harkless, Crysler & Histed, for appellant. N. H. Loomis and I. N. Watson, for respondeat.

ELLISON, J. This action is to recover damages by reason of the negligence of defendant in delaying the delivery of two cars of wheat, whereby they were destroyed by a food of such unprecedented character as to be admitted to be an act of God. The judgment in the trial court was for the defendant.

It appears that two cars of wheat were shipped by different persons over defendant's red to Kansas City, Mo.; that one car was signed to the Murphy Grain Company, and the other to the Benton Grain Company.

Each of these companies had samples of the grain on May 28, 1903, at the board of trade. Plaintiff bought the wheat from these samples on that day, and ordered the grain companies to send the cars to the yards of the Hannibal & St. Joseph Railroad Company. It is a matter of dispute as to what time in the afternoon of the 28th the defendant got the order. It was the custom of the company, and perhaps the expectation of parties dealing with it, to "card" such cars for transfer next day when the order was given before 4 o'clock the preceding afternoon. If the order was given after 4 o'clock, it could not be carried out until the second day. The cars could have been transferred the next day (the 29th) after the order given at the board of trade, but on the next day (the 30th) the great flood of 1903, caused by the overflow of the Missouri and Kansas rivers, suddenly advanced to such unprecedented stage as to make it impossible to move the cars, and it finally reached such height as to practically destroy the grain. Plaintiff does not claim that the cars could have been moved on or after the 30th, but bases its right to recover solely on the charge that defendant was negligent in not transferring them on the 29th.

1. In view of our conclusions as to the law of the case, we will assume that defendant got the order to transfer the cars from its track to the yards of the Hannibal Company in time on the afternoon of the 28th to have made the transfer, in usual course of such business, on the 29th, and that in not doing so it was guilty of negligence. Is the defendant liable on account of such negligence for a loss occasioned by the act of God? It is generally stated to be the rule of law, and it is so held in this state, that where there is negligence concurring with the act of God, and but for such negligence the injury would not have occurred, the person guilty of the negligence will be liable. Davis v. Ry. Co., 89 Mo. 340, 1 S. W. 327; Pruitt v. Ry. Co., 62 Mo. 540; Coleman v. Ry. Co., 36 Mo. App. 476. But the injury must not be too remote. It must be a natural and probable consequence of the negligence. That is to say, the injury must have some natural connection with the negligence, in the probable course of affairs. Holwerson v. Ry., 157 Mo. 231, 57 S. W. 770, 50 L. R. A. 850; Brewing Ass'n v. Talbot, 141 Mo. 674, 42 S. W. 679, 64 Am. St. Rep. 538. If the injury, as a consequence of the negligence, is beyond the usual experience and expectation of mankind, there ought not to be a liability. It would not be improper to ask the question, what are the probable consequences which might happen from the neglect?-not, what are the possible consequences. Stone v. Ry. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794. In Scheffer v. Ry. Co., 105 U. S. 249, 26 L. Ed. 1070, Scheffer was injured through the negligence of the railway company, so that he became insane and committed suicide. It was held that the death in that manner was not the natural

and probable consequence of the negligence, and could not reasonably have been foreseen or expected. It might be negligence to delay putting certain goods under shelter in the month of July to protect them from rain or thieves; but if left out, and the unheard-of occurrence (in this climate) of a freeze at that season was to occur and destroy them, would there be any natural connection between the neglect and the loss? And so it has been held in this state there where the carrier negligently delayed the transportation of goods, so that the public enemy came upon them and took them from him, he was not liable; it not being shown that he knew of the presence of the hostile force. Clark v. Ry. Co., 39 Mo. 184, 90 Am. Dec. 458; Bal lentine v. Ry. Co., 40 Mo. 491, 93 Am. Dec. 315. The same principle is announced in an interesting case in Pennsylvania. Morrison v. Davis, 20 Pa. 171, 57 Am. Dec. 695. And in Denny v. Ry. Co., 13 Gray, 481, 74 Am. Dec. 645, which, as in this case, was where a flood injured goods which would not have been exposed but for the carrier's delay, yet he was held not liable. And so in the like case of Railroad Co. v. Reeves, 10 Wall. 176, 19 L. Ed. 909. In Morrison v. Davis, supra, the court, after stating that one is only liable for the natural and proximate results of his negligence, gives this illustration: "A blacksmith pricks a horse by careless shoeing. Ordinary foresight might anticipate lameness, and some days or weeks of unfitness for use, but it could not anticipate that by reason of the lameness the horse would be delayed in passing through a forest until a tree fell and killed him or injured his rider; and such injury would not be a proper measure of the blacksmith's liability." And (borrowing the idea from an illustration in counsel's brief) if a train should for two hours be negligently delayed in leaving a station, and meantime a storm should arise, and lightning strike a car and destroy property, the carrier would not be liable. The result would be beyond natural expectation, not within the thought or foresight of any one, and altogether fortuitous and disconnected from the negligent act of delay. So the rule may be stated to be this: That the act of God must be the sole cause of the loss or injury, and, whenever the negligence of the carrier mingles with the act of God, as a co-operative cause, he is liable, provided the resulting loss is within the probable consequences of the negligent act; otherwise it will be too remote and disconnected to be considered the proximate cause. As is said in St. Louis, I. M. & S. R. Co. v. Commercial Union Ins. Co., 139 U. S. 237, 11 Sup. Ct. 554, 35 L. Ed. 154, it would be considered "simply as one of a series of antecedent events, without which the loss could not have happened." If, as said in Wolf v. Express Co., 43 Mo. 421, 97 Am. Dec. 406, the act of God might have been avoided by foresight

or diligence (with reference, of course, to such act), then there is liability. It follows that, if there was no notice or expectation of such visitation of God, there is no liability, for in such case there is no concurrent negligence at time and place. The immediate injury and result in this case was occasioned by the sudden great and unprecedented flood of 1903. It was a result almost altogether out of the course of nature. Its like had probably not occurred in the memory of any one living. Loss from such a cause was wholly unlooked for, and was not to be expected or even taken into consideration by the most cautious.

2. So, if we should regard the case as one arising from a breach of the contract to transfer the freight from one yard to another for delivery to the assignee of the consignee, the result would be the same. The consequences of a breach of contract must be such as were or should have been in the contemplation of the parties as a probable result of the breach. Hyatt v. Ry. Co., 19 Mo. App. 287, 300; Pruitt v. Ry. Co., 62 Mo. 527; Murdock v. Ry. Co., 133 Mass. 15, 43 Am. Rep. 480; Walsh v. Ry. Co., 42 Wis. 23, 24 Am. Rep. 376; Hobbs v. Ry. Co., 10 Law Rep. (Q. B.) 111. In the last case it is said that: "What infinite difficulty there would be in attempting to lay down any principle or rule which shall cover all such cases! But I think that the nearest approach to anything like a fixed rule is this: That, to entitle a person to damages by reason of a breach of contract, the injury for which compensation is asked should be one that may be fairly taken to have been contemplated by the parties as the probable result of the breach of the contract. Therefore you must have something immediately flowing out of the breach of contract complained of-something immediately connected with it, and not merely connected with it through a series of causes intervening between the immediate consequence of the breach of contract and the damage or injury complained of." Archibald, J., in the same case, expressed his view in the same way: "I concur in the observations which have been made by my lord and my learned brothers, and I would only add, without expressing anything in the form of a rule, that, in case of breach of contract, the party breaking the contract must be held liable for the proximate and probable consequences of such breach; that is, such as might have been fairly in the contemplation of the parties at the time the contract was entered into."

Since the foregoing was written, an opinion by Judge Goode in the case of Grier v. Ry. Co., 108 Mo. App. 565, 84 S. W. 158, has been reported, in which we find support for what we have said in the first division herein.

Approving the view taken by the trial court, we affirm the judgment. All concur.

1. SERVANT'S INJURIES-CONTRIBUTORY NEGLIGENCE.

A servant is not precluded from recovery for injuries sustained by the negligence of the Easter if the risk, which was known to the servant, is not of such a character that a reascuably prudent person would not continue in the service.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 574-600.] 2. SAME EVIDENCE.

Where in a mine it was customary to push giant powder into holes in the rock by means of pieces of gas pipe with wooden plugs driven in the end, and a miner, finding that the pieces of gas pipe were in use by others temporarily, placed a stick of powder by means of a shank of a steel drill belonging to himself, and was injured by an explosion from a spark resulting from the contact between the steel drill and the flinty rock, he could not recover. because of his contributory negligence.

Appeal from Circuit Court, Jasper County; Hugh C. Dabbs, Judge.

Action by J. N. Whaley against M. L. Coleman and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

Thomas & Hackney and Edw. J. White, for appellants. Howard Gray and H. H. Bloss, for respondent.

BROADDUS, P. J. The plaintiff's suit is for damages alleged to have been sustained by him while in the employ of defendants, a zine mining co-partnership. The plaintiff, an experienced miner, was injured on August 3, 1902, by the premature explosion of a stick of giant powder, which the plaintiff's assistant, under his direction, was pushing into a drilled hole, using for the purpose the shank of a steel drill. It was shown that the holes, after being drilled, were usually filled with the explosive late on each day, and exploded before the next shift of miners began their work. The hole into which plaintiff and his helper, a man by the name of McKinley, were patting the explosive, was drilled in flint rock. It is conceded that a spark of fire was thrown off from the flint when it was struck with the steel drill, which spark, coming in contact with the giant powder, caused the explosion. The steel drill was not an instrument intended for the purpose of what the miners call "loading the drill holes," or "shoving the powder" into them. But sections of gas pipes with wooden plugs in the ends were generally used, because they were less liable to cause explosions. At the time in question plaintiff endeavored to get a certain piece of gas pipe for his purpose, but, as it was being used by other workmen, he substituted the steel drill. It is shown, however, that he could have obtained the former by waiting a short while. All the miners were aware of the danger of using a steel drill for loading or tamping the drilled holes. It was also shown that gas pipes, unless they

had a wooden plug driven in the end, were a little less dangerous than steel. It appeared that defendants had furnished two of the latter and several others without the wooden plugs. However, it was a fact that at times plaintiff and others used the steel drill with the knowledge and consent of defendant's foreman, and when plaintiff called his attention to the matter, and requested to be furnished with gas pipes, he said: "All right; go ahead, and use the steel. It will be all right; but don't punch the powder." Plaintiff did not request the foreman to furnish him a gas pipe with a wooden plug, but one about 10 feet long, as he had objections to some of those in use because they were not sufficient in length. At the close of plaintiff's case, and also at the close of all the evidence, the defendants asked the court to instruct the jury to find for them, which the court refused to do. The verdict and judgment were for plaintiff, from which defendants appealed.

The contention of defendants is that the plaintiff's injuries were the result of his own negligence, and that he assumed the risk; that the court admitted incompetent evidence; and that it committed error in giving and refusing instructions. It is conceded that the steel drill used by plaintiff's helper under his direction was unsafe and dangerous, of which plaintiff, an experienced workman, was fully aware. But he seeks to avoid the responsibility of using the instrument on the ground that he had called the attention of defendants' foreman to the matter, and that he continued to use it under a promise that he would be furnished one safer and more suitable for the work. The general rule in such cases is that, if the servant continues his employment, he is not precluded from recovering for injuries sustained by reason of the negligence of the master if the risk is not of such a character that a reasonably prudent person would not continue in the service. Nash v. Dowling, 93 Mo. App. 156; Holloran v. Iron Foundry Co., 133 Mo. 470, 35 S. W. 260; Weldon v. Ry., 93 Mo. App. 668, 67 S. W. 698; Hamilton v. Mining Co., 108 Mo. 377, 18 S. W. 977; Wendler v. Furniture Co., 165 Mo. 528, 65 S. W. 737. And whether a servant would be justified in continuing his services under the circumstances is a question for the jury. Francis v. Ry. Co., 127 Mo. 658, 28 S. W. 842, 30 S. W. 129; Williams v. Ry. Co., 109 Mo. 475, 18 S. W. 1098; Ry. Co. v. Mares, 123 U. S. 710, 8 Sup. Ct. 321, 31 L. Ed. 296; Hamman v. Coal Co., 156 Mo. 232, 56 S. W. 1091; Adams v. Harvesting Co. (decided by us, but not yet officially reported) 86 S. W. 484. But there are exceptions to all general rules. Where there is no conflict, but the evidence is all one way, and there can be but one conclusion, the matter becomes a question of law for the court. The use of the steel drill by the plaintiff was an act of the grossest negligence. It is a matter of common experience that where

steel and flint are forcibly brought in contact the result will be sparks of fire, and that fire coming in contact with powder produces an explosion. And no one knew such to be the case better than plaintiff. He was not authorized by anything that was said by the foreman to use the drill, because he was equally as well informed of the danger as the foreman. On the face of things, the risk was so glaring, and at all times impending to such a degree, that no person of ordinary prudence could for a moment have believed that the drill could be used, by the exercise of ordinary care, with safety. A servant is not bound to obey the master when he has reason to anticipate that danger in the service is always impending, and that he is liable to suffer injury at any moment, which the greatest care and caution on his part will scarcely avert. And besides, he was not bound to use the steel drill. He could have waited for the gas pipe a short time, it being only in temporary use by others. But he voluntarily selected the steel drill, the most dangerous implement for the purpose. There is no dispute on that point. It was his own implement. For which reason he was not entitled to recover. Nolan v. Schickle, 69 Mo. 336; Moran v. Brown, 27 Mo. App. 487. His excuse was that it was as well that he should use the steel as for the others to do so. A servant who, as between two methods, selects that which is the most dangerous, and is injured in consequence, is guilty of negligence, and not entitled to recover. Moore v. Ry. Co., 146 Mo. 572, 48 S. W. 487. As the plaintiff was not entitled to recover, the court committed error in not sustaining defendants' demurrer to the evidence. As the question already determined is decisive of the case, other questions raised become immaterial.

For the reason given the cause is reversed. All concur.

From a judgment in favor of the garnishee, plaintiff appeals. Reversed.

Street, Eastin & Corby, for appellant. R. L. Spencer, for respondent.

BROADDUS, P. J. On May 1, 1902, plaintiff recovered judgment against the defendant William E. Gibson for $3,217.83. Execution was issued thereon, directed to the sheriff, who on the 23d day of said month summoned James A. Gibson as garnishee. The latter filed a general denial. During the course of the proceeding plaintiff filed an amended denial to garnishee's answer, and garnishee filed an amended reply thereto, upon which the cause was tried. The court, after the close of the evidence, instructed the jury to find for the garnishee. A verdict was accordingly rendered, and judgment given thereon, from which plaintiff appealed.

The allegations of plaintiff's pleading are that defendant entered into various contracts, with the knowledge and consent of the garnishee, from which certain indebtedness accrued to him, and that said garnishee collected the proceeds of said contracts, and now retains them in fraud of defendant's creditors. One of these contracts was to construct certain walls and abutments for the St. Joseph Stockyards Company, entered into on the day of, 1902, and one for paving a certain street in the city of St. Joseph. Plaintiff alleges that the gar nishee collected and had on hand from said contract the following amounts of money, to wit: June 2, 1902, $305.10; June 16, 1902, $463.80; and on May 26, 1903, $500 from the St. Joseph Stockyards contract; and on October 3, 1903, $1,160.75 from the street-paving contract. The garnishee answered substantially that defendant became so involved financially that he was unable to finish said street contract, and that he assigned the same to one Solomon Connett; that it was agreed by said Connett at the time he took said assignment that he would reimburse to the garnishee the sum of $250 for labor already performed on the contract, and for which he had assigned labor claims for work done on the same; and that afterwards, in May, 1902, said Connett entered into an agreement with the garnishee by which the latter took an assignment of said contract, and in consideration thereof he released defendant and the said Connett from their obligation to repay to him said sum of $250; and that garnishee entered into and performed said street-paving contract at his own expense, and that the money arising therefrom is now on deposit to await the disposition of this suit, as agreed by the parties hereto. The defendant also sets up as a defense that W. E. Gibson was on the 13th day of January, 1903, duly declared a bankrupt by the United States District Court at St. Joseph, and on April 9, 1904, received his discharge from said court, and that thereby

the judgment of plaintiff against W. E. Gibson was discharged, which in law is a bar to this action against him. The other allegations of the petition he meets by a general Cenial.

It appears from the evidence that the contract for the street paving was made by plaintiff and defendant some time in the jear 1901, and that in November of that year the partnership of plaintiff and defendant W. E. Gibson was brought into court, and their property placed in the hands of a reeiver, who, under authority from the court, sold several car loads of the firm's stone, then at Hallard, Mo., to defendant, a part of which was used on the street improvement eentract. Other stone was shipped in March and April, 1902, from Hallard by defendant, and used on said street. The receiver's report shows that on March 20, 1902, he collected from W. E. Gibson $61.15 for crushed rock and gutter stone. The report of the receiver also shows that between the 3d day of March and the 2d day of April, 1902, defendant purchased from him and shipped from the quarry at Wathena nine cars of rabblestone, which was also used on said street. Some work was done on the street in question in the fall of 1901, and the greater part finished during the months of March, April, and May of the next year. The books of Farmer & Dunn, who furnished material for the street work, showed that material was furnished from June 25th to July 12th, and charged to defendant, but that the garnisbee paid for it. A person who represented the property owners along the street stated that he did not know that the garnishee had anything to do with the work until it was completed. The contract for the work on the stockyards also required stone, sand, and lime. The stone came from Wathena, Kan. The waybills show that it was shipped over the railroad in the name of defendant, both as consignee and consignor, until May 23d, at which time the garnishment was served, after which time, for stone shipped, the garnishee was both consignee and consignor. The evidence disclosed that defendant was in charge of the work, and signed receipts for freight. The name of defendant was erased from the receipts after May 19th up to the time the freights were consigned to the garnishee. But it does not appear at whose instance this was done. Sand for the work was bought, charged, and delivered to defendant until May 14th, and after that time to garnishee. And the lime and cement were charged and delivered to defendant until May 19th. The book containing a charge of material to defendant of the date of May 19th was changed by a line drawn through the name of defendant, and by writing the name of garnishee over it. It was shown that plaintiff, after the date of his judgment, employed one GreenBeld to assist him in learning what property defendant owned. For that purpose he

visited defendant's house, but gained no information. In a short time thereafter he met the garnishee, and a conversation arose about Greenfield's visit to defendant's house, when the garnishee said to him that plaintiff was welcome to all he could get out of them, as matters had been "arranged" or "fixed." The defendants were father and son. The garnishee offered no evidence.

The assignment of the contract for the street improvement by defendant to Connett in January, 1902, and his subsequent assignment of it to the garnishee in May, without any apparent consideration for the same, indicates that Connett had no interest in the business whatever; and, besides, it is not alleged in garnishee's answer, nor does it appear from the testimony, that at any time he did any work or expended any money on the street improvements, although much work was performed and materials furnished between the time he received the assignment and his assignment of the contract in May to the garnishee, during which time the inference is that the work was being done and the materials furnished by defendant, as he was in charge, and no one else was connected with the business. It is not charged by the garnishee in his answer, nor shown by the evidence, that he paid any other consideration for the contract than the $250 he held for labor claims, although at that time the greater part of the work had been done, and the greater part of the materials furnished therefor by defendant. On the face of the record, Connett figures as an intermediary, without any interest of his own to serve. And we can see no purpose which he could serve, without the parties to the transaction had something in view that they did not wish to divulge. In view of the admitted pecuniary condition of defendant, the evidence tended to show that the intention was to hoodwink defendant's creditors. And this view is strengthened when we come to consider the fact that defendant received nothing from the garnishee for a great part of the work he had done and materials he had furnished under the contract. The fact that the garnishee had advanced $250 for labor claims on the work does not account for any sufficient consideration for the assignment of the contract at that time, as it was of much value by reason of the extent of its performance. To say the least of the transaction, it was an unusual way of doing business, and, as such, was a badge of fraud. Snell v. Harrison, 104 Mo. 158, 16 S. W. 152. It was a circumstance tending to show fraud. Burgert v. Borchert, 59 Mo. 80; Stewart v. Severance, 43 Mo. 322, 97 Am. Dec. 392. The change of consignor and consignee at once from defendant to garnishee, of materials shipped to be used in the work, so soon after the service of garnishment, the almost constant supervision of the work by defendant, and the language of the garnishee to Greenfield, that plaintiff was welcome to