nals. Sometimes one will give signals which cut off cars, and maybe the other will do that. On this occasion one of them was cutting off the cars, and the other was setting the brakes. The head brakeman who was cutting out the cars was the one who spoke about the switching that they were doing. He was up toward the engine of the train. The other brakeman was further down in the yard, where he had set some brakes on the cars. The head brakeman was the man who was down with the engineer picking up the cars and having them set in on the long track. The head brakeman had charge of the switching. The train crew was switching four or five minutes. The conductor was up at the caboose a quarter of a mile away. The head brakeman always has charge of the switching in the absence of the conductor."

The plaintiff further testified that when he supposed the switching was done he asked the head brakeman, "Are you all done your switching?" and he answered, "Yes." "When he had this conversation the brakeman was on the west side of the car with his feet on the ladder, and I was on the east side of the car; we were just the width of a car apart. I was probably a foot or two from the car. I spoke very loud as they started to pull out. He answered back in a loud tone, 'Yes, sir.' I then went back to make this repair. This broken coupling was several cars from the end of the train. I made the connection and found it was a little too short, and pounded the ring together so that it would link together. The head brakeman knew I was car repairer there. I had repaired cars on this train before. To repair this link or chain I had to go in between the two freight cars. While I was in there they kicked another car on to the car I was working on, caught this finger and cut a great gash, and cut this one entirely off, all but a little bit. I have no use of the second finger of the left hand to lift anything. The car struck me in the right hip when they came together.”

The plaintiff on cross-examination further testified that at the time he talked to the brakeman the locomotive was pulling three cars down to the south end of the side track, and that they had to be disposed of and put on some track-that they were not done putting the train all away; that he did not know whether or not, when he asked the head brakeman the question just stated, the latter understood him (plaintiff).

About 20 days after that of the injury the plaintiff made a written statement to the defendant in relation to his injury and the cause of it, and in this statement it was affirmed that: "On arrival of Number 5. K. C., at Laclede, I looked east side of train over while train was standing at crossing. Got on train; went down in yard; got off at south end long track; looked over west side train. They made two or three switches and backed in on side track; cut off two or

three cars with engine, and pulled out. I asked brakeman, 'Are you all done? He said, 'Yes.' He was on west side of car, and I was on east side. I don't know whether he understood me or not."

Watson, the head brakeman, testified that he did the switching and cutting out the cars under the instruction of the conductor, that he knew the plaintiff was defendant's car inspector, and that he had frequently inspected and repaired witness' trains prior to the injury. He knew that plaintiff was present when the switching was being done, and he (plaintiff) was sitting close to the track, and two or three car lengths from the switch stand. He was sitting there watching the trucks as they passed; that the plaintiff did not speak to him there, nor did he (witness) know that plaintiff had left the place where he was sitting and gone between the cars.

It is thus disclosed that at the time of plaintiff's injury the defendant's servants were engaged in the operation of switching its cars within its private yards, through which there appears to have been no public way. The plaintiff, who was defendant's car inspector, was lawfully in its yard at the place where the switching was going on. In performing the duty of inspecting the defendant's incoming trains, he would examine them first one side and then the other, and, if anything was discovered requiring repairs, he would immediately proceed to make the same. There is nothing in the evidence tending to prove that on the occasion when plaintiff was injured the defendant's servants engaged in switching negligently shunted the cars. The defendant owed the plaintiff the duty of exercising reasonable care. A railway yard is a dangerous place, but before the company operating it can be made liable for an injury received by one who is lawfully within it, it must be shown that the injury resulted from the negligent or wrongful act of the company or its employés. Thompson on Negl. 1849; Railway v. Whitbeck, 57 Kan. 729, 48 Pac. 16.

It may, we think, be asserted as an indisputable proposition that, unless the employés of the defendant who were engaged in the switching knew or ought to have known when they shunted the car which struck one of the two standing on the side track which the plaintiff was then between, there can be no recovery for the injury to plaintiff resulting from the impact. There is nothing in the evidence which directly or inferentially shows any such knowledge. It is true the plaintiff testified that the head brakeman, in answer to the question, "Are you done switching?" answered, "Yes." But he testified further that he did not know whether the brakeman understood his question. It is clear to us that if he asked the question the brakeman did not understand him, for it is admitted by plaintiff that when he received

The first instruction having been given, then an instruction permitting a finding against either defendant should have been given. Defendant Walsh asked such an instruction, and it was refused." Said first instruction is as follows: "The jury is instructed that it was the duty of the defendant city to keep Woodland avenue and Howard street, at the place where said streets cross each other, in a condition of reasonable safety for legitimate travel thereon by night as well as by day." Said instruction is admitted by the defendants to be correct as an abstract proposition of law, but they deny that it had any application to the facts. While it is true, as a general rule, that it became the duty of defendant city to keep its streets in a reasonably safe condition for travelers passing over them in the exercise of due care, the evidence showed that the street in question was not in a safe condition, for it was torn up for the purpose of constructing a sewera necessary improvement which the city was authorized to make. The case is not founded upon the theory that it was the duty of the city in this particular instance to keep its street in a reasonably safe condition, but upon the theory that it was in an unsafe condition, and defendants did not use proper care in providing means by which travelers might be protected from injury while passing over it.

This case is a fair illustration of the inadvisability of instructing juries on mere abstract questions of law. And, while such a practice in many instances may not have the effect to mislead a jury, it may do so. And, as the court saw fit to grant a new trial for the error, we do not feel at liberty to interfere with its discretion in so doing. function of granting new trials belongs naturally and peculiarly, though not exclusively, to trial courts, and only in cases free from doubt will the appellate court reverse such discretion in the plain and apparent interest of justice." Longdon v. Kelly, 51 Mo. App. 572.

"The

But we cannot agree with the trial court that there was error in refusing to give defendant Walsh's instruction that the jury might find separately as to him. The city could not have been liable under the proof unless the defendant Walsh had been guilty of negligence on his part. The city's negligence, if any, must have been in failing to perform a duty that its codefendant failed to perform. Had not defendant Walsh dug and left an unguarded hole in the street, no duty devolved on the city. If Walsh had placed barriers and lights at the place, then the finding should have been not only for him, but also for his codefendant. And under the facts there could have been no separate liability, for, if either had complied with the law and placed the barriers and lights, the verdict should have been for both.

It is further contended that instruction No. 4 given for plaintiff was also error. This in

struction was as follows: "(4) The jury are instructed that even though you may believe from the evidence that the plaintiff may have had a diseased or affected spleen, yet if you find that the plaintiff was injured, if she was injured by the fault of the defendants, as defined in other instructions given you, and that said injury, if any, directly caused an enlargement of said spleen or developed pains in the spleen, then defendants are responsible for all the ill effects, if any, which naturally and necessarily followed the injuries, if any, in the condition of health in which plaintiff was in at the time, and it is no defense that the injuries may have been aggravated and rendered more difficult to cure by reason of plaintiff's state of health, or that by reason of the diseased condition of the spleen the injuries were rendered more serious to her than they would have been to a person in robust health." The argument is that, whereas the petition alleged that the injury to plaintiff's spleen was caused by the fall she received, the evidence showed that it was previously diseased; therefore the evidence did not support the allegations of the petition, and plaintiff was not entitled to recover on that allegation. In support of this theory we are cited to Watson on Damages, 206, which reads: "It has been held that there can be no recovery on account of the aggravation of existing physical ailments, in the absence of allegations thereof in the declaration. On the other hand, it has been decided that the plaintiff may show his delicate state of health at the time of the injury complained of, and the fact that the consequences were more serious than they would have been in a robust man, without special allegation of said facts in his petition. But there can be no recovery for the aggrava tion of an existing disease where the declaration is framed upon the theory that the particular disease was produced by the injuries and not merely aggravated thereby." The distinction is clearly made between that where an injury produces a condition, and where it aggravates one already existing. But it seems to us that it is not a substantial dif ference. If an injury results either in producing a diseased condition or aggravates one already in existence, the result, in the eye of the law, is the same, for the reason that the aggravation is the result of the injury. Therefore, if the diseased condition of plaintiff was aggravated by the fall she received, it necessarily follows that she was injured. Plaintiff alleged that she was injured in her spleen, and the evidence, tending to show that it was only an aggravation of an existing disease, tended to prove also that it was an injury notwithstanding. The authority cited, with others not noted, is a fair illustration of the tendency to draw a distinction the effect of which is to evade substantial justice by mere technicalities.

We can find no error in either the giving or refusing of instructions, save the giving

1. Rev. St. 1899, § 810, providing that any judge of the Supreme Court or either of the Courts of Appeals, in cases appealable to those courts, on inspection of the record, may in certain cases grant an appeal within one year next after the rendition of the final judgment or decision of the cause, confers no right of appeal when an appeal taken under section 813 is pending.

2. Rev. St. 1899, § 813, provides that the appellant shall cause to be filed in the office of the proper appellate court, 15 days before the first day of the term of the court, a perfect transcript of the record and proceedings in the cause, or, in lieu of such transcript, a certified copy of the record entry of the judgment appealed from. Rule 25 of the Kansas City Court of Appeals provides that the date of the allowance of the appeal, and not the time of filing the bill of exceptions after the appeal is granted, shall determine the term to which the appeal is returnable. Held, that where an appeal was granted on November 11, 1903, it was essential that appellant file with the clerk a transcript of the record or certificate of the judgment 15 days before the March term, 1904, of the court, and failure to do so was not excused because appellants were misled as to the time when they were to file their bill of exceptions.

Appeal from Circuit Court, Schuyler County; Nat M. Shelton, Judge.

a

Action by Evan A. Smith against Henry P. Flick, administrator, and others. From judgment for plaintiff, defendants appeal. Affirmed.

E. R. Bartlett and Rufus Anderson, for appellants. Fogle & Eason, for respondent.

BROADDUS, J. The history of the case is as follows: On the 9th day of November, 1903, the cause was tried, and plaintiff recovered a verdict and judgment against defendants for $330. On the 11th day of said month, motions for new trial and in arrest of judgment were filed, heard by the court, and overruled. On the same day an affidavit for appeal was filed, appeal granted to the Kansas City Court of Appeals, and leave taken to file appeal bond during the term of court then in session in the sum of $700; and leave was also granted defendants to file their bill of exceptions within 90 days from that date. On June 22, 1904, the plaintiff (respondent here) filed a motion in this court to affirm the judgment of the circuit court on the ground that defendants (appellants here) had failed to prosecute and perfect their appeal. On July 1st, next thereafter, appellants filed a motion asking this court to grant an appeal. It is apparent that defendants were misled and labored under a mistake as

to the time in which they were to file their bill of exceptions, and so did not file it until after the time fixed by the order of the court; and, when tendered, the judge refused to sign and seal it, and make it a part of the records of the court.

Under section 810, Rev. St. 1899, any judge of the Supreme Court or either of the Courts of Appeals, in cases appealable to said courts, upon inspection of the record, may grant an appeal within one year next after the rendition of the final judgment or decision in the cause. The defendants rely on this statute to obtain an appeal. But the purpose of this statute was to afford the losing party the remedy by appeal when he has not already availed himself of that right, where it is made to appear from the record that error has been committed, materially affecting the merits of the action. The Legislature did not intend to confer the right to take such an appeal when there was an appeal then pending.

Under section 813, Rev. St. 1899, and rule 25 of this court, the appellants were required to file a transcript of the record or certificate of the judgment in the case 15 days before the March term, 1904, of this court. Under the rule, "the date of the allowance of the appeal, and not the time of filing the bill of exceptions after the appeal is granted, shall determine the term of this court to which the appeal is returnable."

The appeal having been taken in due form, it was the plain duty of appellants to file with the clerk of this court a certificate of judgment-it not being in their power to file a full transcript of the cause-within the time prescribed by said section and rule. It is no excuse for not so doing that they were misled as to the time in which they were to file their bill of exceptions. The omission of the defendants to comply with said statute and rule was a failure to prosecute their appeal, for which reason the motion to affirm the judgment is sustained, and defendants' motion for an appeal to be granted by this court is overruled. All concur.

ESLER v. WABASH R. CO.⭑

(Kansas City Court of Appeals. Missouri. Nov. 7, 1904.)

RAILROADS-ACCIDENT AT CROSSING-RELATIVE RIGHTS OF PARTIES-TRIAL-IN

STRUCTIONS-APPEAL.

1. A person driving a wagon has the same right over the public highway that a railway has over its tracks, both being bound to exercise care and caution to avoid collision.

2. In an action for injuries caused by being struck by a train at a crossing, an instruction that plaintiff is entitled to recover if he was injured by reason of defendant's negligent failure to give signals, and without fault on his part, is proper, other instructions explaining what would constitute fault on the part of plaintiff.

*Rehearing denied November 28, 1904.

3. A person slowly approaching a railroad track in a noiseless vehicle need not stop to look and listen.

4. A party cannot complain of error in his own favor.

5. The appellate court will not interfere with the trial court's disposition of a motion for a new trial on conflicting affidavits as to newly discovered evidence.

Appeal from Circuit Court, Chariton County; John P. Butler, Judge.

Action by Fred Esler against the Wabash Railroad Company. There was verdict for plaintiff, and from an order granting a motion for a new trial he appeals. Reversed.

Aubrey R. Hammett, for appellant. George S. Grover, for respondent.

ELLISON, J. Plaintiff brought this action for personal injuries which he alleges he received by a collision with one of defendant's engines, which was at the time going at a high rate of speed. Plaintiff obtained a favorable verdict, which, on defendant's motion, was set aside, and a new trial granted for error in instructions. Plaintiff appealed.

There was evidence tending to show that plaintiff and his brother were seated in a two-horse farm wagon driving along a public road near Huntsville, approaching a crossing of defendant's railroad track. It was in the evening, but not yet dark. The road was soft from recent rain, and the wagon was not making any noise. As he approached, his view down the track was obstructed first by some sheds, and also by a freight train standing on a side track. Plaintiff looked at points where he could see, and did not discover the approaching train. He listened continuously, and did not hear it. He did not stop, as that would not have aided his hearing, since the wagon was noiseless. As he came out from behind the freight train the defendant's engine, pulling one of its fast trains at great speed, was nearly upon him. He jumped up in the wagon, and began to whip and urge his horses across the tracks. The horses and fore part of the wagon got over, but the engine struck the rear of the wagon, throwing plaintiff a great distance and injuring him.

The record shows that the "motion for new trial is sustained on the ground that the court erred in giving instructions for plaintiff numbers 2 and 4, and in giving defendant's instruction number 4, and is otherwise overruled." Plaintiff's instruction No. 2 was that plaintiff had the same right to pursue his course along the highway and over the crossing that defendant had to run its cars over its track, and that in the exercise of such rights both were bound to use caution and care to avoid collisions, and that if the jury believed that plaintiff was injured in consequence of being struck by defendant's locomotive, without any fault of plaintiff contributing to such injury, and that defendant's servants in charge of the engine

14. See Appeal and Error, vol. 3, Cent. Dig. § 4052.

failed to ring the bell or sound the whistle in the manner set out and described in other instructions, and that such injury to plaintiff resulted from defendant's failure to so ring the bell or sound the whistle in the manner described in other instructions, the verdict would be for plaintiff. Plaintiff's instruction No. 4 was that if the jury believed that the road upon which plaintiff approached the crossing was soft, and that the wagon was moving slowly and not making any noise, then it was not necessary for plaintiff to have come to a stop before attempting to cross said track, unless by so doing he could have better listened or looked for the approaching train. We are of the opinion that no error was committed in giving those instructions. It is properly said in No. 2 that plaintiff had the same right to pursue his course over the public highway that defendant had over its track, but that both were bound to the exercise of caution and care to avoid collisions. That statement is supported by authority. Kennayde v. Ry. Co., 45 Mo. 262; Zimmerman v. Ry. Co., 71 Mo. 477. That view was expressed for the Supreme Court by Tichenor, Special Judge, in Baker v. Ry. Co., 147 Mo. 140, 48 S. W. 838.

It is then stated that if plaintiff was injured by reason of defendant's negligence in failing to ring the bell or sound the whistle, and without any fault or negligence on his part, he could recover. Other instructions in the case fully explained to the jury what would constitute such fault or negligence by plaintiff, and we do not find any just cause of objection to the instruction.

Instruction No. 4 stated the law properly. That one should ordinarily stop, as well as look and listen, when about to cross a railway track, is very true. But it is not in all cases an arbitrary and absolute requirement that he should do so. If his vehicle is noiseless, and stopping would be no aid to his hearing, why should he stop? He must look and listen; but if, as in this case, the slowly moving vehicle does not interfere with these functions, there is no necessity to stop. Baker v. Ry. Co., 147 Mo. 140, 48 S. W. 838; Petty v. Ry. Co., 88 Mo. 306; Kelly v. Ry. Co., 88 Mo. 534; Stepp v. Ry. Co., 85 Mo. 235; Johnson v. Ry. Co., 77 Mo. 546. These observations are based on the evidence in behalf of plaintiff, as they should be, since the instructions in his behalf are founded on such evidence.

The court's modification by striking out a portion of defendant's instruction No. 3 was proper. The record, which we quoted above, gives, as a part of the court's reason for granting the new trial, the giving of de fendant's instruction No. 4. That instruction was erroneous. It made it the absolute duty of plaintiff to stop, and that if he did not the verdict to be for defendant. Defendant should not have asked it, and, of course, cannot complain of its being given.