es, and that but for such additional switches, etc., would not have been necessary, and you further find that such additional use of said main track, if any, damaged plaintiff's property, then you should find damages for plaintiff on such additional use occasioned, if any."

See

In so giving the charges quoted we think there was error as assigned. Thereby damages were authorized because of a mere extension in the use of the right of way beyond that originally contemplated, as determined by the jury. No evidence other than the deeds mentioned is cited as showing the limits of the use to be made of the right of way as originally contemplated. The deeds spoke for themselves. It was for the court, and not the jury, to determine and declare their legal effect, which was, otherwise than as indicated by the charge, to confer upon appellant the right to use its right of way for railway purposes, restricted only by the right of the public to the reasonable use of McClelland avenue, and the right of all persons not to have a nuisance imposed. Olive v. Sabine & E. T. Ry. Co. (Tex. Civ. App.) 33 S. W. 142; S. A. & A. P. Ry. Co. v. Faires (Tex. Civ. App.) 26 S. W. 82; Cane Belt Ry. Co. v. Ridgway (Tex. Civ. App.) 85 S. W. 496; Railway v. Grossman (rehearing pending), 12 Tex. Ct. Rep. 743; City of Houston v. G., C. & S. F. Ry. Co. (Tex. Civ. App.) 35 S. W. 74; Territory of New Mexico v. United States Trust Co., 172 U. S. 171, 19 Sup. Ct. 128, 43 L. Ed. 407; Gulf, C. & S. F. Ry. Co. v. Oakes, 94 Tex. 155, 58 S. W. 999, 52 L. R. A. 293, 86 Am. St. Rep. 835; Railway Co. v. Pape, 62 Tex. 313; Texas & Sabine Ry. Co. v. Meadows, 73 Tex. 32, 11 S. W. 145, 3 L. R. A. 565; Railway v. Railway, 71 Tex. 165, 9 S. W. 94; Lewis on Eminent Domain, §§ 565-567; 1 Wood on Railway Law, 654, note 1.

As submitted in the charge, the jury, in order to assess damages, were not required to find that the use of McClelland avenue had become so enlarged as to constitute a nuisance, but were permitted to assess damages for a mere increased use of the right of way that may have been occasioned by the location of the depot. The right to so locate and use the depot was lawfully acquired-it is not even disputed-and the mere fact that this was the occasion of the increased use of the right of way cannot alter the principle. Whatever may be the cause, the right to use is the same. The only limitation is that the use of the right of way must be reasonable, and not extend to the point of becoming a nuisance. The mere imposition of more railway tracks, however, or an increased use of tracks beyond what may have been originally thought to be probable, does not constitute a nuisance. Rainey v. Red River, Texas & Southern Ry. Co. (Tex. Civ. App.) 80 S. W. 95. The natural development of the locality and change in conditions may make such enlarged use necessary for the public good. Such changed

conditions are to be expected, and should be taken into contemplation.

Dodge, at the date of his deed of dedication, had full title to McClelland avenue, and of the land of which appellee's lot constitutes a part. He then had in such land every right or privilege that could be carved out of it. He could convey the whole absolutely, or such estate therein as he chose, upon any or no consideration, as he might desire. He in fact platted the land, and dedicated specified parts thereof to the public as passageways. The dedication of an easement or passageway over McClelland avenue, however, was not made absolute in the general public. Dodge reserved the right, which affected all lands then owned by him, to select one or more railway corporations to which he might also grant an easement or right of passage over this street. This reserved right, of course, should not be construed as giving Dodge power to thus enable railways to wholly occupy and use the avenue, to the entire exclusion of the general public, for to so construe the provision would constitute a repugnant clause, enabling Dodge to entirely defeat the dedication to the public, restricted though it was, and which therefore could not be upheld. In this case, however, the public right is not involved. It is not insisted that the use of the avenue as a passing way has been unnecessarily or unreasonably impeded. The question as presented by the record is one of private right merely. Appellee, a private person, complains that by the construction and operation of appellant's railway his property has been injured; and his right of recovery should be restricted, in the absence of allegation and proof of such use of McClelland avenue as constitutes a nuisance, to such injury, if any, as has been done appellee's property by the erection of a depot, and the use and operation of appellant's railway on land not embraced within said avenue.

Because of the error discussed, the judgment is reversed, and the cause remanded for a new trial.

ST. LOUIS, M. & S. E. RY. CO. v. SHANNON. (Supreme Court of Arkansas. June 24, 1905.) 1. RAILROADS KILLING CATTLE NEGLIGENCE-EVIDENCE-COMPETENCY.

In an action against a railroad for the killing of cattle in the nighttime, testimony of a witness that he had never ridden on an engine, but that he knew how far a common headlight would light up a track, from standing by the side of engines in the nighttime, and that such light would light up for a specified distance, was competent.

[Ed. Note.-For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 2203, 2268.] 2. SAME-EVIDENCE-SUFFICIENCY.

In an action against a railroad com for the killing of cattle in the nighttin dence held sufficient to show negligence an inferior headlight.

Appeal from Circuit Court, Randolph County; John W. Meeks, Judge.

Action by A. K. Shannon against the St. Louis, Memphis & Southeastern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

L. F. Parker and Orr & Luster, for appellant. C. H. Henderson, for appellee.

RIDDICK, J. This was an action by A. K. Shannon against the railway company to recover damages for the loss of two cows and a calf killed by the train of the company. He recovered judgment for $45. The accident happened on a dark and rainy night. The engineer testified that the train consisted of an engine, a baggage car, and passenger coach. He said that he was keeping a careful lookout, and discovered the cattle when they were about 90 or 100 feet ahead; that the headlight on the locomotive was a common oil headlight, and on such a night did not light up the track for more than 90 or 100 feet; and that he could not have discovered the cattle sooner than he did. He further testified that the train was running about 15 or 18 miles an hour, and that, though there were only two cars attached to the engine, he could not have stopped under about 200 yards. But a witness for plaintiff testified that, though he had never ridden on an engine, he knew how far a common headlight would light up a track; that he had stood by the side of engines on rainy nights, and in that position could see the track for 200 yards ahead. While this evidence was not very satisfactory, we think it was competent, and it tended to show that the headlight on the engine of defendant, which only gave light for 90 or 100 feet ahead, was of a very inferior kind, and that the company was guilty of negligence in using such a light. For this reason, we think it cannot be said that the verdict is without evidence to support it.

One of the instructions given by the court, if it stood alone, might be misleading; but, when the whole charge is considered, we are of the opinion that it was substantially correct.

Appeal from Little River Chancery Court; James D. Shaver, Chancellor.

Suit by one Arnold against one Wagner to quiet title. From a judgment in favor of plaintiff, defendant appeals. Reversed.

J. M. Carter, for appellant. E. F. Friedell and W. H. Arnold, for appellee.

WOOD, J. This is a suit by appellee against appellant to quiet title to the northwest quarter of Sec. 24, T. 13 S., R. 32 W., in Little River county. Appellee deraigned title through various parties from the United States to himself. He also deraigned title to the south half of the northwest quarter, supra, through John B. Jones, from the state of Arkansas. Under the overdue tax law the appellant claimed title by virtue of a donation deed executed June 21, 1871. The chancellor tried the issue upon facts precisely similar to those set forth in Wagner v. Arnold, 72 Ark. 371, 80 S. W. 577, and held that appellee's title was valid and superior to the title of appellant, and canceled appellant's donation deed and quieted the title of appellee to the land in controversy. For the reasons given in Wagner v. Arnold, supra, that was error, for which the judgment must be reversed. As to the north half of the northwest quarter of said section, the decree will be entered here for appellant, dismissing the complaint of appellee as to said tract. But as to the south half of the northwest quarter, supra, it appears that the court did not pass upon appellee's claim of title through the overdue tax decree set up in his complaint. Appellant claims in his brief that this claim was abandoned. Appellee claims that it was not abandoned. The record is silent upon the question. The chancellor found "that the plaintiff, John H. Arnold, claims said tract of land [the northwest quarter, supra] and deraigns his title in the following manner. to wit: The state of Arkansas to the heirs of George W. Underhill, deceased; Virginia Diamond, as sole surviving heir at law of George W. Underhill, deceased, to John B. Jones; John B. Jones to the Pulaski Land Company; and the Pulaski Land Company to John W. Arnold, the plaintiff." The chancellor, having found that this title to the whole tract was "valid, and superior to the title of defendant," deemed it unnecessary to presume to pass upon the claim of title also set up by plaintiff to the south half of the northwest quarter, above mentioned. But the record only shows that the court did not pass upon this claim. It does not show that plaintiff abandoned it. Inasmuch as it appears that the lower court did not pass upon and determine whether this claim of appellee to the south half was superior to the title of appellant, we will remand the cause as to that claim, with directions to the lower court to proceed, if the plaintiff so desires, to pass upon that issue.

A petition in an action by a passenger against a street railway, alleging that defendant's conductor called out the street of plaintiff's destination, and, after stopping the car, negligently started the same while plaintiff was alighting, whereby she was injured, and that in violation of a city ordinance the conductor allowed plaintiff to leave the car while it was in motion, which violation directly contributed to plaintiff's injuries, states two causes of action-one at common law for negligence, the other for damages from violation of the ordinance.

2. ACTIONS SEPARATELY.

JOINDER OF CAUSES

Under Rev. St. 1899, § 593, requiring separate causes of action united in the same petition to each be separately stated, with the relief sought in each, so that they may be distinguished, an action for damages at common law for negligence cannot be joined in the same count with one for statutory negligence.

[Ed. Note. For cases in point, see vol. 1, Cent. Dig. Action, § 410.]

3. SAME-IMPROPER JOINDER-MOTION TO REQUIRE ELECTION.

Where a petition improperly joins two different causes of action in the same count, the remedy is by motion to require plaintiff to elect on which count he will proceed to trial.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 1199, 1200.] 4. CARRIERS-EVIDENCE DECLARATIONS OF INJURED PARTY.

In an action against a street railway for injuries sustained while alighting from a car, a witness was properly permitted to testify that plaintiff "would bring her hand up to her side, and say that her side hurt her, and that she had such pains in the hollow of her neck and the back of her head," the evidence being clearly with reference to plaintiff's expressions of pain felt at the time, and not made after instituting the suit.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, §§ 377-382.]

5. SAME SUBMISSION TO JURY SUFFICIENCY OF EVIDENCE.

In an action against a street railway for injuries received by plaintiff, a passenger while alighting from a car, evidence held sufficient to authorize submission of the case to the jury.

6. SAME ALLOWING PASSENGERS TO ALIGHT FROM MOVING CAR-CITY ORDINANCE.

A city ordinance providing that conductors shall not allow ladies or children to leave or enter cars while in motion, is not unreasonable or void in that it imposes on the carrier the duty of controlling the acts of passengers, when the passenger is at liberty to do as he pleases.

7. SAME-POLICE POWER.

The ordinance being in the nature of a police regulation for the safety of passengers is within the power and authority of the city to pass under its charter.

8. SAME CONTRADICTORY HARMLESS ERROR.

INSTRUCTIONS

In an action against a street railway for injuries received by a passenger while alighting from a moving car, an instruction requir ing in one part the exercise by those in charge of the car of "a very high degree of care," and in another part of "ordinary care" by the conductor, if erroneous, was in defendant's favor, and not reversible error.

9. SAME-Error.

An instruction that if the conductor, in addition to warning plaintiff not to step from the car before she alighted therefrom, "exercised reasonable care to prevent her from alighting therefrom," she could not recover, was not

error.

In Banc. Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

Action by Mary McHugh against the St. Louis Transit Company. Judgment for plaintiff, and defendant appeals. Reversed.

Boyle, Priest & Lehmann and Geo. W. Easley, for appellant. A. R. Taylor, for respondent.

BURGESS, J. This is an action for damages alleged to have been sustained by the plaintiff, resulting from injuries received in an accident which occurred at the intersection of Delmar and Euclid avenues, in the city of St. Louis, on the 1st day of April, 1901, by reason of one of the cars of the defendant, in which plaintiff was a passenger, being started forward with a jerk just as plaintiff was in the act of alighting therefrom. The petition alleges that as such car approached said Euclid avenue and Delmar avenue defendant's conductor in charge of said car called out "Euclid Avenue!" and said car was stopped at or near said crossing, plaintiff's destination, and plaintiff thereupon, at said invitation, proceeded to alight from said car whilst the same was so stopped, and whilst she was in the act of alighting, and before she had reasonable time or opportunity to do so, defendant's servants in charge of said car carelessly and negligently caused and suffered said car to be started, whereby the plaintiff was thrown from said car, and sustained great and permanent injuries upon her body and legs, and also great and permanent internal injuries, sustaining an injury to her knee and to her side, causing a compression to her side and chest and injury to her lungs, and causing her to have pleurisy, and also injuring her head, and causing a great and permanent injury to her nervous system. And the plaintiff avers that at the time of her said injury there was in force in the city of St. Louis an ordinance of said city by which it was provided that conductors of street cars should not allow women or children to enter or leave the car whilst the same was in motion, yet the plaintiff avers that defendant's conductor in charge of said car, in violation of said ordinance, caused said car to start in motion whilst plaintiff was leaving it, and allowed the plaintiff to leave said car whilst the same was in motion, which violation of said ordinance directly contributed to cause plaintiff's said injuries. The answer was a general denial and a plea of contributory negligence on the part of plaintiff in attempting to alight from a moving car 150 feet east of the eastern line of Euclid ave

nue.

The plaintiff's evidence tended to show

that she was at the time of the accident about 25 years of age, and receiving $14 per month for her services as housewoman; that on the day of the accident to her she boarded defendant's west-bound car at Pendleton and Finney avenues, about 8 o'clock in the evening, and that her destination was Euclid avenue, or 4900 Delmar avenue; that on the same car with her there were five other passengers, four in the front part and one in the rear part of the car; that when the conductor called for plaintiff's fare she requested him to let her off at 4900 west, or Euclid avenue; that when the car reached said avenue or number it stopped, and the conductor from the platform spoke to plaintiff, saying "this is 4900," and told her to get off, whereupon the plaintiff arose in her seat and went towards and upon the rear platform of the car, and took one step, when the car was moved forward with a jerk, which threw her to the ground, and caused the injuries complained of; that after being thrown from the car plaintiff was taken to St. Joseph's Hospital, where she remained 10 days under the treatment of physicians then in the service of the St. Louis Transit Company; that upon leaving the hospital she returned to Mrs. Dunn's, where she had been employed at the time of the injury, and was thereafter under the treatment of Dr. Grant. Plaintiff stated in her testimony that she was injured on the back of her head and on her side, and that her knees and arms were bruised; that she was rendered unconscious by the fall, and did not regain consciousness until after she reached the hospital; that after the accident and up to the time of the trial she had a pain in her side, and had been subject to fainting spells, and had pains in her head constantly; that she was unable to discharge her duties as servant to Mrs. Dunn until May following her injury. Plaintiff proved that she paid $30 for medical services.

Mrs. Dunn, witness for plaintiff, stated that before the injury plaintiff's health was good, but that when she returned after the injury she would complain of her side hurting her, and of pains in the back of her neck and head; that she would have fainting spells, and at those times would fall forward on the floor, dropping anything she might have in her hands; that these spells at first occurred once or twice a week, and sometimes would be 10 days apart, and then several weeks or a few months apart, and then come very close together again.

Plaintiff read in evidence article 6, entitled "Of Street Cars," and subdivision 5 of section 1246, of the Revised Ordinances of the city of St. Louis, as follows: "Conductors shall not allow ladies or children to leave or enter the cars while the same are in motion."

Adolphus Brown, witness for the defendant, testified that he was the conductor in charge of the car at the time plaintiff claims

she was injured. He testified, in substance, that there were at the time of the accident only three passengers on the car-the plain-, tiff, a Miss Walsh, and another lady, whose name he did not mention; that plaintiff asked him to let her off at Euclid avenue, and that as the car passed Bayard avenue he called out, "Euclid avenue, 4900!" that plaintiff came back in a rush, and stepped on the platform and down on the first step; that he then grabbed hold of her, saying, "Hold on, lady; don't jump off until it stops;" that as he said this she jumped off backwards; that the point at which she jumped off backwards was 150 feet east of Euclid avenue, and that at the time the car was moving at a speed of about 15 miles an hour; that after the plaintiff jumped and fell he got off immediately and ran to her assistance, and that plaintiff was then taken to the doctor's office. He stated that after the other passengers got off to help plaintiff the car did not stop, but continued on for eight blocks west; that he grabbed the plaintiff with both hands, and pulled her shawl off her. This statement was contradicted by the plaintiff, who stated that she did not have a shawl on, but a jacket, which was buttoned.

Miss Walsh's testimony tended to corroborate the testimony of the conductor.

Plaintiff recovered judgment for the sum of $3,300, from which judgment, after unsuccessful motions for new trial and in arrest, defendant appeals.

This appeal was granted and the appeal perfected prior to the announcement of the decision of the court in banc in the case of Gabbert v. Chicago, Rock Island & Pacific Railway Company, 171 Mo. 84, 70 S. W. 891, and the point as to the adoption of the amendment providing for a verdict by less than 12 jurors was brought into question by instructions and the motion for new trial. At the opening of plaintiff's case, and again at the close of all the evidence, defendant moved the court to require plaintiff to elect upon which cause of action alleged in the petition she would proceed to trial. Defendant insists that the petition contains two separate and distinct causes of action, and that the court erred in overruling said motions. The argument is that the first cause of action is for the negligent acts of the conductor in calling out "Euclid Avenue," stopping the car at the plaintiff's destination, and while she, at his invitation, was proceeding to alight therefrom, while the car was standing, and before she had reasonable time or opportunity to do so, the car was negligently caused and suffered to be started, whereby the plaintiff was thrown and injured; while the other cause of action is for the negligent act of the conductor in allowing the plaintiff to leave the car while the same was in motion, in violation of an ordinance, which violation directly contributed to plaintiff's injury. That the petition states two causes of action is, we think, clear the first an

action at common law for negligence; the other an action for damages alleged to have been sustained by plaintiff by reason of the alleged negligence of defendant's conductor in charge of the car in which plaintiff was a passenger in permitting her to leave said car whilst the same was in motion, in violation of the ordinances of the city of St. Louis. They are independent of each other, and upon either an action might be maintained, but they cannot, under the rules of good pleading, be embraced in the same count. If embraced in the same petition, they should be in separate counts, with a prayer for judgment at the conclusion of each count. When separate causes of action are united in the same petition, each must be distinctly and separately stated, with the relief sought to each cause of action in such manner that they may be intelligently distinguished. Section 593, Rev. St. 1899; Childs v. Bank of Missouri, 17 Mo. 213; Mooney v. Kennett, 19 Mo. 551, 61 Am. Dec. 576; Doan v. Holly, 25 Mo. 357; Marsh v. Richards, 29 Mo. 99; St. Louis, etc., Co. v. City of St. Louis, 86 Mo. 495; Christal v. Craig, 80 Mo. 367; Henderson v. Dickey, 50 Mo. 161; Kendrick v. R. R. Co., 81 Mo. 521; Linville v. Harrison, 30 Mo. 228; Jamison v. Copher, 35 Mo. 483; Ederlin v. Judge, 36 Mo. 351; Southworth Co. v. Lamb, 82 Mo. 242. While there was but one injury, and there could be but one recovery for it, any number of negligent acts preceding the injury and leading up to and contributing to it might properly be set forth in the same count of the petition, if of the same character. An action for damages at common law for negligence cannot be joined in the same count with one for statutory negligence for the very obvious reason that they could have no possible connection with, or in any way be dependent upon, each other. Kendrick v. Chicago & Alton R. R. Co., 81 Mo. 521; Harris v. Wabash R. R. Co., 51 Mo. App. 125. Hill v. Mo. Pac. Ry. Co., 49 Mo. App. 520, and same case in 121 Mo. 477, 26 S. W. 576, relied upon by plaintiff, does not announce a contrary rule. Upon the other hand, the acts of negligence preceding the injury in that case were all of the same character, and naturally led up to and contributed to the accident, while in the case at bar they were independent of, and had no connection with, each other. Each cause of action was founded on a different right, and each right separate from the other, because not derived from the same source or in the same manner. As the accident resulted from the same transaction, the causes of action could well be joined in the same petition, but in separate counts, with a prayer for judgment at the conclusion of each count. The court, at the instance of plaintiff, instructed the jury upon both causes of action, and authorized a recovery upon proof of either negligence or of a violation of the ordinance, and thus recognized the petition as stating two different causes of action. In

case a petition improperly joins two different causes of action in the same count, it has always been ruled by this court that the remedy is by timely motion to require the plaintiff to elect upon which count he will proceed to trial, as was done in this case. Mooney v. Kennett, 19 Mo. 551, 61 Am. Dec. 576; Otis v. Merchants' Bank, 35 Mo. 128; Kern v. Pfaff, 44 Mo. App. 32; Liddell v. Fisher, 48 Mo. App. 454; Christal v. Craig, 80 Mo. 367; Childs v. R. R. Co., 117 Mo. 414, 23 S. W. 373. The case in hand is clearly distinguishable from Bartley v. Trorlicht, 49 Mo. App. 216, and that class of cases, where a number of defects in machinery, all existing at the time of the injury, might cooperate with each other in producing it; and under such circumstances it would be proper to unite them, because the ultimate effect of all the defects produced the injury, and because capable of and likely to co-operate with each other in the result. The motions should have been sustained.

Mrs. Dunn, a witness for plaintiff, was permitted to testify, over objection offered by defendant, that plaintiff "would bring her hand up to her side, and say that her side hurt her, and that she had such pains in the hollow of her neck and the back of her head." This evidence was clearly with reference to plaintiff's expressions of pain felt at the time, and not made after the institution of suit, as claimed by defendant. It therefore falls within the rule announced by Mr. Greenleaf in his work on Evidence, as follows: "So, also, the representation by a sick person of the nature of symptoms and effects of the malady under which he is laboring at the time are received as original evidence. If made to a medical attendant, they are of greater weight as evidence, but if made to any other person they are not on that account rejected." Greenleaf on Evidence (Lewis' Ed.) vol. 1, § 102.

It is next claimed that the demurrer which was interposed to plaintiff's evidence should have been sustained, but we are unable to concur in this contention. The evidence, although conflicting, was, we think, sufficient to entitle plaintiff to have her case go to the jury.

It is also contended that the third instruction given for plaintiff should have been refused, because there was no evidence upon which to base it; but this contention is, we think, untenable.

Another contention is that the court erred in admitting the ordinance in evidence, upon the ground that it is unreasonable and void, in that it imposes upon the carrier the duty of controlling the acts of passengers, when the passenger is at liberty to act as he pleases. This same ordinance was before the St. Louis Court of Appeals in the case of Fortune v. Missouri Pacific Ry. Co., 10 Mo. App. 252, and it was then upheld upon the ground that it was for the safety of passengers traveling upon railways and steam cars within