child in a position of danger in time to have avoided the accident by the use of ordinary care, yet failed to do so. The answer was a general denial, and three affirmative pleas: First, negligence on the part of those having charge of the boy, in 'permitting him to unnecessarily go over defendant's track at the time and place of the accident, well knowing that defendant's train was due to pass about that time'; second, negligence of the child himself in ‘undertaking to cross defendant's track while the train was in plain view, and known by him to be approaching said crossing'; third, that the child knew that the train was coming, and deliberately waited until it was within a short distance of him, and then recklessly attempted to cross immediately in front of the engine. Reply, general denial.

"The evidence on the part of the plaintiffs tended to show as follows: Defendant's railroad runs east and west through Warrensburg, which is a city of the third class. Warren avenue crosses the railroad at right angles in a thickly populated part of the city. The passenger station and side track of defendant are just east of Warren avenue. The train in question, headed east, approached the Warren avenue crossing from the west, running fast. The child at the same time, headed north, approached the crossing from the south, running along the east sidewalk of Warren avenue. The engine and the child reached the point of crossing at the same instant. The child was struck by the cowcatcher or the pilot beam, and was killed. The engine stopped 150 feet east of the crossing. The child and his brother, who was one year older, lived with their grandmother on Warren avenue, south of the railroad. They went to school every day. Their road to and from school was across this track. They were therefore familiar with the location. Their grandmother and their teacher had frequently warned them to be careful to look out for trains when they crossed the track. On this day the two brothers were going north along the east side of Warren avenue, starting from a point 270 feet south of the railroad. They were running-the elder in the lead. The elder got safely across, but barely escaped, while the younger was struck and killed. There was a freight train standing on a side track just east of the crossing, 'with steam on and puffing,' and the attention of the boys was attracted to it as they ran along. The passenger train from the west approached the crossing at a swift speed. without giving any signal by bell or whistle. The last signal given was at the Ft. Scott crossing, a quarter of a mile west of Warren avenue. The situation was such that the engineer would have seen the boys if he had looked at any time while he was traversing a distance of 500 or 700 feet before reaching the crossing, when they were from 130 to 150 feet of it, and they would have seen the locomotive if they had looked when they and

the locomotive were within the same relative distances. There was no evidence tending to show that this child saw the train coming, but he would have seen it if he had taken the precaution to look in that direction. He was therefore guilty of negligence, if a child of his maturity or lack of maturity is chargeable with negligence.

"At the close of the plaintiffs' evidence the court instructed the jury to find for the defendant. From the judgment on the verdict rendered in conformity to that instruction the plaintiffs appeal.

"It is unnecessary to set out the testimony at more length or in more detail. What is above stated tends to show that defendant's servants in charge of the locomotive were guilty of negligence in failing to give the signal required by law, and it points to that negligence as the proximate cause of the accident. It also tends to show that the engineer, seeing the children running into peril, aiming as if to cross in front of the train, could have averted the accident by stopping the train, or at least by sounding the whistle. It also tends to show conduct on the part of the deceased child that would have justified the court in giving the instruction given, on the theory of contributory negligence, if it had been the conduct of a person of mature years. This conduct on the part of the deceased child affects the plaintiffs' case based as well on one of the charges of negligence specified in the petition as on the other, if it affects it at all. Running on or in dangerous proximity to the railroad track without looking or without heeding was an act which united with the negligence of the engineer to produce the result, and although, as a general rule, the engineer, when he saw a person running towards the track, had a right to presume that that person would use his eyes and see the train, and stop to let it pass, yet if he could see, from the size of the person approaching, that it was a child too young to be counted on to exercise the required discretion, he had no right to act on that presumption. The main question, therefore, in this case, is, was this child of sufficient maturity to be held accountable for his imprudent act, as for contributory negligence? A question of this kind is sometimes one of fact, and sometimes one of law. If the facts are such that reasonable men cannot differ in opinion about them, it is a question of law for the court to decide; but, if reasonable men might reach different conclusions on the facts, then it becomes a question which the court should submit to the jury. In this case the court took it to be a question of law, and so decided it. We have Isaid that it is sometimes a question of fact, and sometimes a question of law; and such is the form of expression frequently used by law writers on this subject, and in a certain sense it is correct. Strictly speaking, however, the question of whether a child is old enough to be held responsible for his con

duct, as for contributory negligence, is always a question of fact, appealing to common sense, rather than to the science of law, for an answer. But when the evidence is all one way, and such that there can be but one answer to the question, the court should decide it without submitting it to the jury.

"This case is therefore reduced to this question: Was it so manifest that this child was of an age and attainments sufficient to understand and appreciate the consequences of his imprudence that there could be no two honest and reasonable opinions about it? If yea, the judgment was right; if nay, it was wrong. There is little if any difference of opinion among law writers on this subject, and not much difference in the forms of expression in stating opinions. In 7 Am. & Eng. Ency. L. (2d Ed.) p. 405, and following, it is said: "Thus what would be ordinary care for one person might be culpable negligence in another, and conduct which on the part of a person of full age and average capacity would be held contributory negligence, as a matter of law, might be ordinary care in a child of tender years. Hence it follows that children so young as to be non sui juris cannot be guilty of contributory negligence. And children who have attained an age where they are not wholly irresponsible are not required to exercise the same care and prudence that would be demanded of an adult similarly situated, but only the care of a child of equal age, and ordinary childish care and prudence. And even when a child has reached years of discretion, and become, as a matter of law, responsible for his conduct, no higher degree of care will be expected of him than is usually exercised by persons of similar age, judgment, and experience.

And conversely a much higher grade of care and watchfulness must be exercised to avoid injuring children than would constitute ordinary care towards an adult; that is, what is ordinary care towards an adult of full capacity may be culpable negligence towards a child. As the standard of care thus varies with the age, capacity, and experience of the child, it is usually, if not always, where the child is not wholly irresponsible, a question of fact for the jury whether a child exercised the ordinary care and prudence of a child similarly situated; and, if such care was exercised, a recovery can be had for an injury negligently inflicted, no matter how far the care used by the child falls short of the standard which the law exacts for determining what is ordinary care in a person of full age and capacity.' Beach on Contrib. Neg. § 117, says: It is a question of capacity, and it has been found a very difficult question, and has been in many courts a very fruitful source of controversy, as to what age is sufficient to constitute an infant sui juris. Unless the child is exceedingly young, it is usually left to the jury to determine the measure of care required of the

88 S.W.-40

*

particular child in the actual circumstances of the case. Where there is no doubt as to the capacity of the child, at one extreme or the other, to avoid danger, the court will decide it as a matter of law. Thus courts have held, as a matter of law, children of various ages from one year and five months to seven years non sui juris.' The author then goes on to discuss the subject of negligence of parents, or of persons in loco parentis, imputable to the infant; discussing Hartfield v. Roper, 21 Wend. 615, 34 Am. Dec. 273, and cases that have followed it, holding that where the injury to the child is the result of the negligence of the defendant, combined with that of the parents, the plaintiff cannot recover. One of the pleas of the defendant in this case is based on that theory. 1 Thomp. on Neg. § 443, says: "The question whether in a particular case an injured child, not wholly irresponsible, exercises the care and caution usually looked for in other children of like age and capacity, is generally for the jury.' Among the cases cited by that textwriter is Burger v. Ry., 112 Mo. 238, 20 S. W. 439, 34 Am. St. Rep. 379, which was the case of a boy nine years and ten months old, of whom it was said by this court: 'It must be conceded that, for a boy of his age, plaintiff was shown to possess unusual capacity. It may also be conceded that the act of plaintiff, when measured by the standard applied to an adult person of ordinary prudence, was a negligent act.' Judge Macfarlane, speaking in that case for the court (loc. cit. 249, 20 S. W. 439, 34 Am. St. Rep. 379), said: 'A boy may have all the knowledge of an adult respecting the dangers which will attend a particular act, but at the same time he may not have the prudence, thoughtfulness, and discretion to avoid them which are possessed by the ordinarily prudent adult person. Hence the rule is believed to be recognized in all the courts of the country that a child is not negligent if he exercises that degree of care which under like circumstances would reasonably be expected of one of his years and capacity. Whether he used such care in a particular case is a question for the jury. Beach on Contributory Negligence, § 117; Eswin v. Railroad, 96 Mo. 290, 9 S. W. 577; O'Flaherty v. Railroad, 45 Mo. 70, 100 Am. Dec. 343; Plumley v. Birge, 124 Mass. 57, 26 Am. Rep. 645; Meibus v. Dodge, 38 Wis. 300, 20 Am. Rep. 6; Railroad v. Young, 81 Ga. 397, 7 S. E. 912, 12 Am. St. Rep. 320.' That is the doctrine of this court, announced in many other decisions. Spillane v. R. R., 135 Mo. 414, 37 S. W. 198, 58 Am. St. Rep. 580; Ruschenberg v. R. R., 161 Mo. 70, 61 S. W. 626; Campbell v. Ry., 175 Mo. 161, 75 S. W. 86. If the law is correctly stated in the quotations from the above named text-writers, and in our own decisions above cited on this subject, how can we say that the court was justified in refusing to submit this question to the jury? Is it not a question on which there might be an honest

difference of opinion among reasonable men? "The learned counsel for respondent refers to the fact that this child had been going four years to school. If so, he must have commenced at the age of four years, for he was only eight when the accident occurred. But can the court say with certainty, as a matter of law, that in those four years he had learned prudence? It is also argued that the child's grandmother and teacher had often warned him of the danger in crossing the railroad, and therefore he was not ignorant of the danger. But as above quoted, this court has said: 'A boy may have all the knowledge of an adult respecting the dangers which will attend a particular act, but at the same time he may not have the prudence, thoughtfulness, and discretion to avoid them.' The argument for respondent on this point might even lead some minds to the opposite conclusion to which it has led the counsel for respondent. The teacher and the grandmother had better opportunity to know the boy and know his capacity than did the trial court, yet they seem to have apprehended that he did not have sufficiently mature judgment to avoid this very danger, and they showed their anxiety for his safety by warning him. If he had heeded the warning, he would not have run into the danger, but do children always heed warnings? Or can we say with the certainty of law that when a child has been warned of a danger he is as to that danger like a person sui juris? One of the pleas of defendant is that the parents were negligent in allowing the child to go on the street across the track unattended. That plea looks both ways. If he was too young to be allowed to go out on the street by himself, he was not of sufficient maturity to be adjudged, as a matter of law, chargeable with contributory negligence; and, if he was of sufficient maturity to be so adjudged, then his parents were not negligent in allowing him to go out on the street alone. It is therefore a proposition on which even the defendant's pleading suggests a doubt, and invites a verdict on the fact.

"Another one of defendant's arguments is that the child knew the train was coming, saw it, and yet jumped right in front of it. In one of its pleas the defendant says the Ichild saw the engine coming, purposely waited until it got close to him, and then recklessly ran in front of it. Much stress is laid on that argument in respondent's brief. But that also is liable to lead some minds to a conclusion the opposite to that for which it is advanced. There is nothing to suggest a suspicion that the child wanted to commit suicide. If, therefore, as the learned counsel think, he saw the train coming, waited until it was close, and then tried to beat it over the crossing, rushing headlong and heedlessly into imminent danger, his act was very suggestive of a lack of that prudence which we would expect to be shown by a person old enough to take care of himself. If the evidence justifies the inference that the counsel

for respondent draws, we could account for the act, if it were committed by a person of mature years and good sense, only on the ground of intentional suicide; but when committed by a child it suggests only a lack of understanding of the danger, or a lack of such prudence as comes only with years.

"In what is above said we have not intended to express any opinion on the question of fact, but only to show that it is a question of fact about which there may reasonably be differences of opinion, and it is a question that ought to have been submitted to the jury. The court erred in giving a peremptory instruction to find for defendant.

"The judgment is reversed, and the cause remanded to be retried according to the law as herein expressed.

"BRACE, C. J., concurs. MARSHALL, J., dissents. LAMM, J., not sitting. A majority not concurring, the cause is transferred to the court in banc."

O. L. Houts and Chas. E. Morrow, for appellants. R. T. Railey, for respondent.

Under Rev. St. 1899, c. 8, art. 9, § 795, providing that judgments shall not be set aside for irregularity on motion, unless such motion be made within three years after the term at which judgment was rendered, the Supreme Court will not ordinarily, on writ of error, direct the correction of the judgment, if no steps to that end have been taken in the trial court, but will do so where the writ of error was sued out within one year after the judgment, and at the time of hearing more than three years have elapsed after the term at which the judgment was rendered, so that otherwise the plaintiff in error would be without remedy.

2. BONDS JUDGMENT SECURITY FOR FUBTHER BREACHES.

Under the express provisions of Rev. St. 1899, c. 6, art. 1, § 473, a judgment for the penalty of a bond securing the performance of covenants should provide that it shall stand as security for further breaches, and it is error to provide that upon payment of the damages already accrued the judgment shall be satisfied.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Bonds, § 253.]

Error to St. Louis Circuit Court, Franklin Ferris, Judge.

Action by the Fidelity & Deposit Company of Maryland against Gustavus Schuchman and others. There was judgment for plaintiff for part of the relief demanded, and it brings error. Reversed.

Robt. L. McLaran, for plaintiff in error. Barclay & Fauntleroy, for defendant in error.

MARSHALL, J. This is a proceeding in equity for the correction and reformation of a certain indemnifying bond for $20,000, given by the defendant Schuchman to the defendant Viernow, dated June 30, 1897, and by the defendant Viernow assigned to the plaintiff on the 15th of September, 1898. The prayer of the petition is that the bond be corrected and reformed, and that the plaintiff have judgment for $20,000, the penalty of the bond, and that execution issue for the sum of $3,940 damages for the breach of the bond and for interest from March 30, 1899. The circuit court entered a judgment correcting the bond as prayed, and further ordered "that the plaintiff recover of the defendant Gustavus Schuchman, the sum of $20,000, the penalty of the bond sued on, together with its costs and charges herein expended, and that its damages be assessed at the sum of $5,104.55, which includes an attorney's fee of $500; and it is further ordered and adjudged that plaintiff have execution against said defendant Gustavus Schuchman for said sum of $5,104.55, its damages so assessed as aforesaid, together with its costs, and that the judgment be satisfied upon the payment of said sum." The abstract of the record shows that the defendant Schuchman filed a motion for new trial, that the same was overruled, and that on the 1st of February, 1902, said defendant appealed the case to this court, and was given time in which to file a bond and a bill of exceptions. The records of this court show that no such appeal was ever filed in this court, and that no steps whatever were taken thereon in this court. The return of the circuit clerk to the writ of error herein certifies the fact to be that no appeal bond 'and no bill of exceptions were filed in said cause. The judgment appealed from was rendered by the circuit court on the 22d of February, 1902. Thereafter, on the 20th of January, 1903, the plaintiff sued out this writ of error, and now asks this court to reverse the judgment and remand the cause to the circuit court, with directions to re-enter the judgment so that it shall read that the plaintiff have execution for the damages assessed, and that the judgment shall remain as a security for further breaches of the bond, instead of reading that the judgment be satisfied upon the payment of the damages.

Ordinarily this court would not grant the relief sought, but would leave the parties to their statutory remedy, under section 795, art. 9, chapter 8, Rev. St. 1899, to have the judgment corrected by the trial court, on motion, for irregularity. Under the statute aforesaid such action cannot be taken in the trial court after the expiration of three years after the term at which the judgment was rendered. That time has now expired. The writ of error herein was sued out within one year after the judgment was entered, in conformity to

section 837, art. 12, c. 8, Rev. St. 1899. Unless, therefore, the plaintiff is granted the relief sought in this proceeding, it will be remediless in the premises. The bond sued on is such a bond as is contemplated by section 473 et seq., art. 1, c. 6, Rev. St. 1899, and is a bond conditioned to do a collateral thing. It is, therefore, such a bond as the statute contemplated shall be merged in the judgment and execution issued for the amount of the damages assessed, and the judgment shall stand as security for further breaches. The judgment of the circuit court, therefore, to the effect that the plaintiff should recover the penalty of the bond, that execution should issue for the damages assessed, and that upon payment of the damages the judgment shall be satisfied, did not comply with the requirements of the statute. The plaintiff is, therefore, entitled to the relief sought, and, under the circumstances, that relief can only be granted by this court under this writ of error, and to prevent a failure of justice the relief should be granted.

The case is here upon the record proper, and the point involved appears upon the face of the record proper. The facts shown by the record proper are: That in May, 1896, Robert Rutledge, as trustee, leased to the Tacoma Building Company, for a term of 99 years, certain premises in the city of St. Louis. The lease, inter alia, required that the lessee should pay the taxes, and should erect a building on the premises to cost not less than $100,000. The defendant Viernow was the principal, if not sole, owner of the stock of the Tacoma Building Company. To secure the performance of the terms of the lease, the building company executed to the lessor a bond, and the plaintiff herein became the surety on the bond. Thereafter Viernow transferred all his interest in the building company to the defendant Schuchman and took from him the indemnifying bond here sued on. The building company failed to comply with the terms of the lease, in that it failed to pay the taxes for the year 1896, amounting to $2,801.12. The lessor brought suit against the building company and the plaintiff as surety, and recovered damages for $3,165.84. The surety paid the judgment, and thereupon Viernow assigned to the plaintiff the bond he had taken from the defendant Schuchman, and the plaintiff brought this suit upon the same, with the result hereinbefore stated.

It thus appears that the lease was for a term of 99 years, and that the bond given by the building company to the lessor, on which the plaintiff was surety, was conditioned for the faithful performance by the building company of the terms, conditions, and covenants of the lease, and would therefore continue during the term of the lease. It further appears that the bond given by the defendant Schuchman to Viernow, when the latter sold and assigned his interest in the building company to the defendant, was a similar obligation and

would run for a similar length of time. It is therefore manifest that, as the bond was merged in the judgment, the liability of the defendant would be materially diminished if the obligations of the bond were permitted to be discharged upon the payment of the damages assessed for a single breach of the terms of the bond. The obligations of the lease were continuing, and might or might not be met by the obligor. The bond was conditioned for the faithful performance of the terms and conditions of the lease by the lessee, and was, therefore, coextensive with the lease, and continued as long as the lease ran. By paying the damages assessed for the single breach of the bond, the obligor in the bond could not discharge all of the obligations assumed by the bond. The judgment of the circuit court here complained of would have the effect of so discharging him, if allowed to stand. The judgment was not such a judgment as the circuit court is required by the statutes to enter in such cases. Burnside v. Wand, 170 Mo. 531, 71 S. W. 337, 62 L. R. A. 427.

The judgment is therefore reversed, and the cause remanded, with directions to the trial court to set the same aside and to re-enter it for the penalty of the bond and for the amount of the damages assessed, and to further provide therein that the judgment shall stand as security for further breaches. All

concur.

STATE ex rel. GAULT et al. v. GILL et al. (Supreme Court of Missouri. June 1, 1905.) 1. SCHOOL DISTRICTS - ORGANIZATION-STATUTORY PROVISIONS-CONSTRUCTION.

In view of the history of Rev. St. 1899, $ 9860, providing that "any city, town or village," the plat of which has been previously filed in the recorder's office, may be organized into a single school district, first adopted in Gen. St. 1865, p. 274, c. 47, § 1, by inserting the word "incorporated" before the word "city," and then expressly repealed by Act March 21, 1870 (Laws 1870, p. 127), and a new section enacted by eliminating the word "incorporated," which has since been in force as embodied in section 9860, the section applies to unincorporated and incorporated villages, and any village, incorporated or unincorporated, the plat of which has been filed in the recorder's office, may be organized into a school district.

2. SAME.

Rev. St. 1899, § 9861, which provides for the organization of a common school district into a village district, with the special privileges granted by the statutes, authorizes the organization of any common school district into a village district; and the fact that the village in the district is unincorporated and the plat thereof defective does not affect the validity of a village district organized from a common school district in the manner provided by law. 3. SAME-PETITION TO CHANGE INTO VILLAGE DISTRICT-DUTY OF DIRECTORS ORDERING ELECTION-NOTICES-WITHDRAWAL.

Where the directors of a common school district received a proper petition requesting an election on the question whether the district should be changed into a village district, as authorized by Rev. St. 1899, § 9861, and they ordered an election and gave notice thereof as

required by the section, a majority of the board could not thereafter order the withdrawal of the notice of election; the duty of the board in ordering an election and giving notice thereof being mandatory and ministerial.

In Banc. Appeal from Circuit Court, Jackson County; Shannon C. Douglass, Judge.

Quo warranto proceedings by the state, on the relation of J. W. Gault and another, against E. B. Gill and others, to oust defendants from the offices of school directors of a school district. From a judgment for defendants, relators appeal. Affirmed.

Ward & Hadley, for appellants. Frank P. Sebree, Silver & Brown, and E. B. Gill, for respondents.

BRACE, C. J. Quo warranto to oust defendants from the offices of school directors of the school district of Dallas, in Jackson county, Mo. Appeal from the Jackson county circuit court. Judgment below for the respondents, and the relators appeal.

On the 13th of May, 1903, and for many years prior thereto, there was a common school district in said county, duly organized as school district No. 4, township 48, range 33, in which there resided about 50 qualified voters, and in which there was an unincorporated village called Dallas, a plat of which had been duly executed, acknowledged, and recorded in the office of the recorder of deeds of said county on the 15th of January, 1903. By section 9861, art. 2, c. 154, Rev. St. 1899, it is provided: "Whenever it may be desired to organize a common school district into a city, town or village school district, with special privileges granted under this article, the board of directors shall, upon the reception of a petition to that effect and signed by ten qualified voters who are resident taxpayers of the district, order an election held for that purpose, and shall give notice of such election by notices posted in five public places within the district for fifteen days prior to the day of such election, said meeting to be held at 2 o'clock p. m. at the public school house in said district, if there be one, but if there be no public school house, then at such place within the district as may be designated in the notices; and when said meeting is assembled, it shall elect a chairman and secretary, who shall keep a correct record of the proceedings of said meeting, and turn the same over to the board, properly signed and attested by the chairman, and the board shall have a copy of the same entered upon the district records. Said election may be held at an annual or at a special meeting, and the order of business under this section shall be as follows: First-To organize as a city, town or village school district; those voting for the organization shall have written or printed on their ballots 'For Organization,' and those voting against the organization shall have written or printed on their ballots 'Against Organization'; and each person desiring to