N. E. 338; Porter v. Silver Creek, etc., Coal Co., 84 Wis. 418, 54 N. W. 1019; Clark v. Liston, 54 Ill. App. 578. Indeed, 20 Am. & Eng. Ency. of Law (2d Ed.) p. 57, states a well formulated rule on this subject in the following language: "If the place is unsafe because of the nature of the work, and a servant suffers injury in consequence thereof, he cannot hold the master liable, provided reasonable precautions were taken by the master to avoid injury. The risk of injury from such cause is one of the risks assumed by the servant.” It seems that this rule is conclusive of the case at bar. Here the injury which befell the respondent came upon him from a falling stone resultant of a blast, and was incident of the employment. It came about from the nature of the work being performed at the quarry, and the master, having given plaintiff and all others employed warning thereof by causing one of its employés to sound the usual alarm by whooping, prior to the exploding of the blast, which was a reasonable precaution taken by the master under the circumstances of the case to aid respondent in protecting himself from injury, the respondent is certainly precluded from recovery thereby.

What has been said above on the question of nonliability of the appellant for the injury in this instance is treated of in many cases as arising by virtue of the nonapplication of the principle of safe place, because the danger from which the injury arose was but a passing danger, temporary in its nature, and arose from the prosecution of the work itself. Upon the theory that the principle of safe place does not apply in such cases, recovery has been denied in the cases above cited. The law, therefore, did not require the master to furnish a safe place as against such temporary dangers, and the failure to provide such safe place was not negligence on its part. The same result as that predicated upon the nonapplication of the principle of safe place is usually reached in the application of the principle of assumption of the risk. That doctrine can be applied to this case with equal force as that last above discussed; for, upon entering the employment at the quarry, respondent assumed the risks which were ordinarily incident to the employment in which he engaged, and, in addition to such risks, by entering or continuing in the employment without complaint, he assumed the risks of extra hazards, the dangers of which he knew and understood, or the dangers of which were obvious. Lee v. Railway (Mo. App.) 87 S. W. 12; Mathias v. K. C. Stockyards Co. (Mo. Sup.) 84 S. W. 66; Dean v. St. Louis Woodenware Co. (Mo. App.) 80 S. W. 292; Browning v. Kasten, 107 Mo. App. 59, 80 S. W. 354; Adolff v. Columbia Pretzel & Baking Co., 100 Mo. App. 199, 73 S. W. 321; Bradley v. Railway Co., 138 Mo. 293, 39 S. W. 763; Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102, 27 L. R. A. 441;

Epperson v. Postal Tel. Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. 1050; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Aldridge, Adm'r, v. Midland Blast Furn. Co., 78 Mo. 559; Sullivan v. India Mfg. Co., 113 Mass. 396. According to the testimony of the respondent, he knew full well the resultant falling of stones after these blasts, and gave testimony to the effect that such stones, as large as his fist and smaller, had fallen around his place of refuge on the bridge frequently theretofore, and that he had seen them fall from 100 to 300 yards in the river from block shots. It is a matter of common knowledge that a falling stone as large as one's fist is dangerous in the extreme and liable to produce death by striking upon the head. Respondent, then, had full knowledge of the dangers, and by continuing in the service thereafter he would be precluded from recovery by virtue of assuming such risk in continuing therewith, with full knowledge of its dangers.

But, aside from this, we are not compelled to depart from the primary rule of assumption of the risk to find the law which would preclude a recovery in this case; for the stone which inflicted the injury upon respondent came as a result of a blast exploded in the necessary discharge of the work at the quarry and without negligence on the master's part. We all know that in the operation of stone quarries blasts are discharged for the purpose of raising the stone from its stratum, and that as a result of such explosion, fragments of stone, large and small, are thrown high into the air; that gravitation will bring them to the earth with such force as is liable to inflict severe injury to one in their path. The risk attendant upon the work which is so prosecuted is not an extra hazard, but is essentially and necessarily an ordinary hazard and risk of the employment, and is therefore assumed by the servant by impliIcation in his contract of hire. The United States Court of Appeals for the Eighth Circuit, in the case of Browne v. King et al., 100 Fed. 561, 40 C. C. A. 545, said: "In entering the employment of the defendant the plaintiff assumed the ordinary risks incident to the employment engaged in. These risks were such usual hazards, dangers, and perils as belonged to the peculiar occupation of blasting rock with dynamite, including the carelessness of those engaged with him in the same work and employment. The employer was bound to furnish a reasonably safe place and appliances with which to do the work. But where the nature of the business is extremely dangerous, and conditions are necessarily continually changing by reason of placing and setting of blasts whereby dangerous conditions arise continually through the acts of the servant, without the knowledge of the master, the employer cannot be held responsible therefor without his fault, but such temporary dangerous con

ditions arise from the nature of the employDent, and are among the natural and ordinary risks and hazards attending the emplement, for which the defendant is not alle See, also, the following cases: Livengood v. Joplin, etc., L. & Z. Co., 179 M. 229, 77 S. W. 1077; Epperson v. Postal Tel Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. Bradley v. Railway Co., 138 Mo. 293, W. 763; Fugler v. Bothe, 117 Mo. 475, 28 W. 1113; Steinhauser v. Spraul, 127 Mo. 541, 28 S. W. 620, 30 S. W. 102, 27 L. RA. 41; Junior v. Elec. Co., 127 Mo. 79, 28. W. 988; Aldridge v. Midland Blast Fura. Co., 78 Mo. 559; Lee v. Railway (Mo. App) 87 S. W. 12; Bunt v. Sierra, etc., Geld Min. Co., 138 U. S. 483, 11 Sup. Ct. 44, 34 L. Ed. 1031; Davis v. Mining Co.,

Fed. 122, 54 C. C. A. 636; Finalyson v. tea, etc., Min. Co., 67 Fed. 507, 14 C. C. 1492; Railway Co. v. Jackson, 65 Fed. 48, 12 C. C. A. 507; Meehan v. Speirs Mfg. Co., 172 Mass. 375, 52 N. E. 518; Whittaker v. Bent, 167 Mass. 588, 46 N. E. 121; Durst Carnegie Steel Co., 173 Pa. 162, 33 Atl. 1102: O'Connell v. Clark (Sup.) 48 N. Y. Supp. 4 Sullivan v. India Mfg. Co., 113 Mass. 20 Am. & Eng. Ency. Law (2d Ed.) 57. From what we have said, it is apparent that the judgment cannot stand. The injury Thich the poor man received was severe and permanent, and no doubt hastened his Path; but, under the law as it is, there Ts no obligation upon the employer to comesate him or his estate therefor, and we Cast apply the principles of law as we find hem in the adjudicated cases, regardless of the feelings of sympathy which we may enertain for the injured party. It is wholly necessary to discuss the question of contutory negligence so ably presented in de briefs.

The judgment must be reversed. It is so rdered.

BLAND, P. J., concurs. GOODE, J., ab

ORUM v. METROPOLITAN ST. RY. CO.* Kansas City Court of Appeals. Missouri. June 5, 1905.)

OBJECTIONS

ERRONEOUS INSTRUCTIONS AFTER VERDICT. Where plaintiff alleges that she boarded a for the purpose of becoming a passenger, dant cannot complain, after verdict, of inos submitting to the jury to find whethhe was a passenger.

MISLEADING INSTRUCTIONS.

In an action for injuries sustained in alightfrom a street car, where plaintiff alleged after the car came to a full stop at the place for cars to stop for the purpose of bating passengers to alight, etc., and there To evidence that the car stopped from any

cause than to discharge passengers, inons submitting the hypothesis of the car g at a place where passengers were in

Bearing denied June 26, 1905.

the habit of alighting, and of the car stopping at the place where passengers were in the habit of alighting from some other cause than that of discharging passengers, were misleading and confusing.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Sarah A. Corum against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

John H. Lucas and Ben T. Hardin, for appellant. Ellison & Turpin, for respondent.

ELLISON, J. Plaintiff was injured while in the act of alighting from one of defendant's street cars. She charges that by reason of the negligent act of defendant's servants in starting the car too quickly she was thrown to the ground while in the act of stepping off. The judgment was in her favor. It appears that plaintiff was at the corner of Twelfth and Main streets, in Kansas City, one evening when it was raining; that she desired to go to Walnut street (one block east), and there take what was known as a "Fifteenth Street car"; that she boarded a cable car at Twelfth and Main, intending to take a transfer and get off at Walnut, but before she was aware of it she had passed Walnut two or more blocks, and as the car was approaching Oak street she signaled for it to stop; that upon its stopping she attempted to get off, and on account of not being given sufficient time she was thrown to the ground while alighting as stated. She had not paid her fare, but was ready to do so if the conductor had gotten around to her. There was ample evidence tending to support the charge of negligence against defendant; but we have had the following suggestions urged upon us by defendant, as showing that it has not had such a trial as is vouchsafed by the law:

De

The petition, instead of charging outright that plaintiff was a passenger, alleged that she got upon the car for the purpose of becoming a passenger. The instructions she had given in her behalf submit for the jury to find whether she was a passenger. fendant contends that such instructions made and submitted an issue not offered by the petition, and in support thereof cite the case of Raming v. Street Ry., 157 Mo. 504, 57 S. W. 268, where it was held that an allegation of boarding a car with intention of becoming a passenger was not an allegation of being a passenger. But whatever error there may be in the instructions in this case in this respect is against the plaintiff, since it puts upon her the additional burden of showing that she was an actual passenger, though not alleged to be in her complaint. We think defendant's mode of attack should have been by demurrer. Having gone to trial, we think no complaint should be heard after verdict.

Again, the petition charges that "after the car arrived at the corner of Twelfth and Oak

streets in said city, and came to a full stop at the usual place for cars to stop for the purpose of permitting passengers to alight," while the instructions only submit the hypothesis of the car "stopping at a place where passengers were in the habit of alighting."

Again, instruction No. 3 for plaintiff submits the hypothesis of the car stopping at the place where passengers were in the habit of alighting from some other cause than that of discharging passengers, that plaintiff had a right to alight from said car without making a request therefor, etc. There is no evidence whatever that the car stopped at the usual place for passengers to alight from any other cause than to discharge passengers. It is true that witnesses stated that a man came out into the street and got on the moving car before it got to the usual stopping place, and that the car slowed up seemingly for him to get on, but did not stop, though it was going very slow. So, if we should say the jury were authorized to infer that the car came to a stop at such place, and plaintiff attempted to get off, it would not show liability on defendant, since plaintiff had no right to attempt to leave the car at such place. Railroad v. Mills, 91 Ill. 39; Jackson v. Ry. Co., 118 Mo. 221, 24 S. W. 192.

The instructions have mingled causes of liability under certain states of evidence and pleading not found in this case with causes which are in the case, and thus tend to mislead and confuse the jury. On retrial they should be drawn so as to clearly present the issues as made by the pleadings and evidence in this case, without confounding such issues with those which have heretofore arisen in other cases, the particulars of which are not found in this. An idea which might be perfectly clear as shown by pleadings and evidence in Railroad v. Mills, 105 Ill. 63 (approved in Jackson v. Ry. Co., 118 Mo. 221, 24 S. W. 192) would be confusing and misleading in this case, which had not the same features disclosed by the evidence. Railroad v. Mills is first reported in 91 Ill. 39, and it will be found from that report that the case was reversed for new trial on an instruction withi much less tendency to confuse than is found in the instructions here considered.

The judgment is reversed and the cause remanded. All concur.

KEENE V. SAPPINGTON.* (Kansas City Court of Appeals. Missouri. May 22, 1905.)

APPEAL-COSTS-TAXATION-EXCEPTION. Where a party made no exception to a judgment against him for costs at the term at which it was rendered, such judgment will not be reviewed on appeal.

[Ed. Note. For cases in point, see vol. 13, Cent. Dig. Costs, §§ 803-810.]

*Rehearing denied June 26, 1905.

On appeal, defendant moved to dismiss the case because plaintiff failed to file an itemized account of his cause of action, and for the reason that his complaint did not state a cause of action. The court sustained said motion, and rendered judgment against plaintiff for the costs of the suit. Afterwards, on the same day, the court, on its own motion, set aside the order dismissing the suit, and repeated the order against plaintiff for costs, whereupon plaintiff and his lawyer left the courtroom, and did not again appear in court during the term. The court, without the application of either party, continued the cause until the next term. At the term subsequent to that which the court rendered judgment against him for costs, plaintiff filed his motion to have the costs retaxed, which the court overruled. From this judgment, plaintiff appealed. The plaintiff made no exception to the judgment against him at the term during which it was rendered. We are therefore in no condition to review the action of the court in that particular. It was too late to except to the action of the court at a subsequent term. This is well-settled law. Affirmed. All concur.

ROSS v. METROPOLITAN ST. RY. CO.* (Kansas City Court of Appeals. Missouri. June 5, 1905.)

1. STREET RAILROADS-INJURY TO PEDESTRIAN -CONTRIBUTORY NEGLIGENCE EVIDENCE.

In an action against a street railroad company for injuries to a pedestrian who was struck by a car, evidence held to show plaintiff guilty of contributory negligence.

2. SAME-DUTY TO CONTINUE TO LOOK AND LISTEN.

It is the duty of a person crossing railway tracks to devote his attention to his line of travel during the time he is within the range of passing cars, and to look and listen until he is safely across, and it is not sufficient merely to look before going on the track.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, §§ 207, 208, 215.]

Rehearing denied June 26, 1905.

3. SAME-DISCOVERED PERIL-HUMANITARIAN DOCTRINE.

Though one cannot recover for injuries where his own negligence contributes in any degree to the immediate cause of the injury, re if he has negligently exposed himself to danger, which another perceives in time to avoid mry, but fails to do so, such other is liable, and the contributory negligence of the injured person is no defense.

Ed Note.-For cases in point, see vol. 37, Cent. Dig. Negligence, § 115.]

4. SAME-DUTY OF MOTORMAN.

It is not the duty of a motorman operating a street car to stop merely because he observes a pedestrian approaching the track, but be is only required to stop when something in the conduct of the pedestrian indicates that he is aware of the presence of the car, and apt to be struck by it.

[Ed. Note.-For cases in point, see vol. 44, Cent. Dig. Street Railroads, § 197.]

& SAME-QUESTION FOR JURY.

In an action against a street railroad company for injuries to a pedestrian who was struck by a car, evidence held to justify submission to the jury of the question whether defendant's motorman observed plaintiff's danger in time to have avoided the injury.

Appeal from Circuit Court, Jackson County; James Gibson, Judge.

Action by Myron E. Ross against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Afirmed.

John H. Lucas, for appellant. Frank P. Walsh and E. R. Morrison, for respondent.

JOHNSON, J. Action to recover damages for personal injuries alleged to have been caused by defendant's negligence. Judgment was for plaintiff in the sum of $2,000.

One

The refusal of the trial court to direct a rerdict for defendant is assigned as error. The pertinent facts disclosed by the evidence are as follows: On the evening of July 30 1901, plaintiff was injured at the intersection of Fifteenth and Holmes streetso public thoroughfares in Kansas City. Two lines of cable cars operated by defendat had their junction at that place. the Fifteenth street line) ran east and west Fifteenth street. The cars of the other the Holmes street line) ran to and from their western terminus on Fifteenth street to Holmes, and thence south. The junction Tas effected by curved tracks, one of which that connecting the south track on Fifteenth with the west track on Holmes) was used by cars south bound. The length of the arve, measured upon the rail nearest the 5thwest corner, was 70 feet. Where it beon Fifteenth street, the rail was 17 feet bebes from the curb; at its end on Holmes was 12 feet; and at a point 40 feet from de beginning, 5 feet 9 inches. Plaintiff, comfrom the west on the sidewalk along the Futh side of Fifteenth street for the purpose of boarding an east-bound car, left the sidenk a few feet west of the corner, and proeded in a northeasterly direction to cross de curved tracks. From the point where he 88 S.W.-10

stepped from the curb to the first rail, he traveled a distance of 7 feet 2 inches. A few feet beyond this-the evidence does not disclose just how far-he was struck by a Holmes street car rounding the curve from west to south, and injured. No claim is made of an excessive verdict. Therefore it is unnecessary to describe the injuries inflicted.

It is asserted by defendant, and we think conclusively shown by the evidence, that plaintiff failed to act with proper care for his own safety. In broad daylight, with nothing to obstruct his view, and knowing of the presence of the car, he walked into the collision. He attempted to exonerate himself from blame with the following account of his misadventure: He had been standing upon the sidewalk 25 or 30 feet-the exact distance is unimportant-west of the corner, engaged in conversation. As he started on his way he saw the car standing on Fifteenth street at the entrance to the curve, about 35 feet from where he was afterwards struck. As he stepped from the curb, he looked again, noticed the car had not moved, and, dismissing it from his attention, proceeded at an ordinary walk. The bell was not rung and no warning given until the car was upon him. He was struck by the south corner of the fender which projected from the front end of the car. Owing to the sharpness of the curve in the track, this corner of the fender was at the time, as near as can be ascertained from the evidence, from 3 to 4 feet from the inside rail, so that the distance from the curb where plaintiff last observed the car to the place of contact was from 10 to 11 feet. The cable which furnished the motive power did not round the curve. The grade slightly declined to the east and south. Therefore, with the car standing as described by plaintiff, it could be moved only by force of gravity. To credit plaintiff's story requires the belief that while he was walking a distance of 11 feet-an act which did not consume more than two seconds-the car started, gained headway, and traveled 35 feet. A few figures and a moment's reflection will demonstrate the impossibility of the occurrence as described, particularly in view of the fact that no witness gave the speed of the car beyond 7 miles per hour, and the great weight of the evidence fixed it at about 5. But accepting plaintiff's statement, even in the face of the physical conditions which so plainly contradict it, his con duct must nevertheless be pronounced grossly careless. He had no right to assume when he stepped from the curb that his way was clear. A person crossing railway tracks, in the observance of ordinary care, must devote his attention to his line of travel during the time he is within the range of passing cars. He should not content himself with a last look when entering into the sphere of danger, and then blunder on, oblivious to his surroundings, but must continue to look and listen until safely across.

Plaintiff's counsel evidently recognized the indefensibility of their client's pretension that he acted with due care in walking against a moving car, for they refrained from submitting to the jury, in the instructions asked by them, any other issue of negligence than that involved in the alleged neglect of the gripman to make proper effort to stop the car after becoming aware of plaintiff's danger.

Assuming, then, that plaintiff was negligent in failing to observe the approach of the car, that defendant also was negligent in not ringing the bell or giving other warning, and that both of these acts concurred in placing plaintiff in a position of danger, no recovery can be permitted without it appears that these concurring acts of negligence were superseded as a proximate cause of injury by the sole negligence of the defendant, for the rule is elementary that if the plaintiff, by his negligent act, contributes in any degree to the immediate cause of injury, he has no cause of action, whatever the negligence of the defendant may be. The doctrine of comparative negligence has been repudiated repeatedly by the appellate courts of this state. Boyd v. Railroad, 105 Mo. 371, 16 S. W. 909; Holwerson v. Ry. Co., 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850; Fellenz v. Ry. Co. (Mo. App.) 80 S. W. 49; Moore v. Ry. Co., 176 Mo. 528, 75 S. W. 672. But when a plaintiff has reached a position of peril, not in wantonness nor with intent to expose himself to injury, but through inattention and carelessness, and is unconscious of his danger until too late to extricate himself, the negligence of the defendant, who, comprehending his situation in time to avoid injury, deliberately runs him down, occupies the whole field of culpability, to the exclusion of all other acts of negligence, and presents itself as the sole producing cause. In

the car even before plaintiff left the sidewalk. One answer to this contention is sufficient to dispose of it. Plaintiff is bound by his own admissions. In his anxiety to defend his conduct, he asserted with emphasis that up to the time he stepped from the sidewalk he was watching the car. If this is true, which must be conceded in the consideration of this question, for it is an admission against interest, there was nothing in plaintiff's actions prior to his step from the curb to indicate that he was proceeding to enter into danger, and the gripman was under no obligation to infer that, because he was walking in the direction of the track, he might not stop before reaching it. On the contrary, while it was the duty of the gripman, in taking his car around this busy junction corner, to proceed cautiously and to keep a sharp lookout (Holden v. Ry. Co., supra; Winters v. Ry., 99 Mo., loc. cit. 517, 12 S. W. 652, 6 L. R. A. 536, 17 Am. St. Rep. 591) he was not required to assume that approaching pedestrians would act carelessly in going upon the track in front of him. His duty to stop began when he saw or might have seen that plaintiff was negligently proceeding to a collision, unobserving and unaware of the presence of the car. The fact that a person leaves the sidewalk and comes near the track is not enough in itself to impose the duty to stop. People frequently do this. There must be something noticeable in the conduct of the approaching footman to apprise an observer of his contemplated movement into danger to make it incumbent upon the defendant to stop. A rule more favorable than this to pedestrians would seriously impede the operation of street cars, and unfairly interfere with the progress of their passengers, who have an equal right with others to the use of public ways. Bunyan v. Ry. Co., 127 Mo. 17, 29 S. W. 842.

tiff but serves to afford a condition for the operation of the final act. Bunyan v. Citizens' Ry. Co., 127 Mo. 12, 29 S. W. 842; Holden v. Mo. Ry. Co., 177 Mo. 456, 76 S. W. 973; Heinzle v. Ry. Co. (Mo. Sup.) 81 S. W. 848; Sepetowski v. St. Louis Transit Co., 102 Mo. App. 110, 76 S. W. 693; Jett v. Ry. Co., 178 Mo. 664, 77 S. W. 738; Meeker v. Ry. Co., 178 Mo. 173, 77 S. W. 58; Cooney v. Ry. Co., 80 Mo. App. 226; Morgan v. Ry. Co., 159 Mo., loc. cit. 275, 60 S. W. 195.

Under this view, the inquiry arises, is there any substantial evidence in the record from which, as a reasonable inference, it may be said defendant failed to follow the "humanitarian rule"? Some witnesses testified that, from the time plaintiff separated from his companion, they observed from his conduct that his attention was distracted, and that he was proceeding in the direction of the track without looking to see if his course was clear; and it is argued that, if this was noticeable to others, it must have been to the gripman, whose duty it then became to stop

fendant) testified that he first became aware of plaintiff's peril when he saw him step from the curb; that his car was going at half speed (about five miles per hour) and that it was then from 14 to 18 feet from the place of collision; that he instantly applied the brakes to stop in the shortest possible distance, and brought the car to a full stop in 10 feet from where plaintiff was struck. From this testimony it must be conceded that defendant's humanitarian duty began with the act of plaintiff in stepping from the sidewalk. The gripman then knew that plaintiff was moving to a collision unaware of his situation, and fully realized the imperative necessity of stopping. If he did all that he reasonably could have done to that end, defendant cannot be held liable; but, if he failed to attempt the performance of his plain duty, it was proper to let the case go to the jury. The gripman, standing with his hands upon the brake lever, was in a position to set the brakes instantly, and this he claims to have done, Plaintiff had 10 or 11 feet to