the decree (opinion) as the law in the case, and must carry it into execution according to the mandate. That court cannot vary it or examine it for any other purpose than execution.

The courts of this state have not construed the law exercising the writ of mandamus as strictly as have the federal courts. Notably, in Castello v. Circuit Court, supra, where the court had made a mistake on a question of law, it was held that a writ of mandamus would lie, which was cited with approval in Bayha v. Philips, supra. In the latter case the action of the court was justified upon the ground that the Supreme Court had "superintending control" of the appellate court. "Superintending control" of the circuit court is also vested in this court. Perhaps it was such control that largely influenced the decision of the Supreme Court, referred to, in extending the functions of said writ, instead of confining it to the strict common law rule. If such be the case, this court would necessarily be governed by a similar construction of the law applicable to such writs. But under the strict common-law construction applied to this case, the resort to the writ in question was proper.

But respondent contends that relator cannot avail itself of the writ, because the right of appeal or right of error exists. State ex rel. v. Buhler, 90 Mo. 560, 3 S. W. 68. But we do not understand that either of these remedies is open to plaintiff, as the action of the circuit court on the mandate is not such as that either will lie. The position assumed would force plaintiff to retry the motion for an injunction, and then appeal or sue out a writ of error. Such reasoning leads to the grossest absurdity, as it would operate to annul the mandate and render nugatory the finding of this court.

The respondent having failed to justify his action by the return to the alternative writ, the same is hereby made peremptory. All concur.

(Nov. 28, 1904.)

PER CURIAM. It is stated in the opinion of Metropolitan Land Company v. Manning, 98 Mo. App. 259, 71 S. W. 696, that state and county taxes become due in this state on the 1st day of September. That statement was based on the briefs of opposing counsel. It was so asserted by the land company, and acquiesced in by each of the briefs for Manning, including the motion for rehearing; the contention for Manning being that a forfeiture did not occur until the time when penalties for nonpayment would attach, viz., the 1st day of January. It seems that in fact the statute does not in express terms name September 1st, or any other day, as a fixed time when taxes are due and payable. The several provisions of the statute show that the time when the taxbooks are to be turned over to the collectors by the county clerks would be, if not the 1st of Sep

DEMURRER TO EVIDENCE-REVIEW-INJURY TO EMPLOYÉ SAFE PLACE TO WORK.

1. An assignment of error in the overruling of a demurrer to plaintiff's evidence will not be considered unless the whole evidence is set out in hæc verba in the abstract.

2. Where plaintiff's duty required him to remove obstructions from defendant's elevator, which was clogged, at the bottom of the shaft, where it was dark, and defendant failed to furnish light sufficient to enable plaintiff to perform this duty with reasonable safety, defendant is liable for the injury resulting from such fail

ure.

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

Action for personal injuries by Orr Nash against the Kansas City Hydraulic Press Brick Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harkless, Crysler & Histed, for appellant. Buckner & Grady, for respondent.

SMITH, P. J. Action to recover damages for personal injuries resulting from the negligence of the defendant. The petition alleged that the defendant maintained and operated a plant for the manufacture of brick, in which said plant it used certain hoppers or feeding bins in which dirt was thrown and rolled into fine dirt, which fell below said hoppers or bins, and then was caught up by certain cups fastened to an endless chain or belt, propelled by steam. and carried upward to a point where it was dumped into another hopper or bin; that these cups so fastened to said endless chain or belt are inclosed at the bottom by means of a shaft made of lumber; that said shaft and said cups on said endless chain or belt were so negligently built and constructed. kept and maintained, that the same during the progress of running said machinery would become clogged and stopped at the bottom of said shaft by means of the dirt which would accumulate at said point; that the bottom of said shaft was underground, and so inclosed as to render the place exceedingly dark; that during the conduct and operation of said plant said shaft would frequently become stopped and clogged up, so that the said cups on said endless belt or chain would stop and cease to move up or

*Rehearing denied November 28, 1904.

down, and when it became stopped and clogged the only means provided for unstopping and starting said cups in said shaft was to descend into this underground place at the bottom of said shaft, and remove the obstruction from the bottom of said shaft, which was attended with great danger; that | the plaintiff had been engaged as a common laborer at said plant, and was unacquainted with the manner of operating said machinery, or the appliances used to unstop said machinery when clogged up, or the dangers attending said operation; that the plaintiff, as servant of said defendant, was required by defendant to clean out said obstruction and unclog said shaft and to start revolving the cups on said belt or endless chain, as aforesaid, and that he went down into said underground apartment as directed by said defendant, and proceeded to remove said obstructions; that he opened the door to said shaft, and with his shovel proceeded and undertook to remove said obstruction; that as said obstruction was removed said cups on said endless chain or belt began rapidly to revolve, catching said shovel and plaintiff's hand with such force as to tear from its socket the little finger of the left hand, and badly lacerating the other fingers there on; that defendant was negligent in that said apartment at the bottom of said shaft was not properly lighted so that plaintiff could see whilst working about said obstruction. There were many other allegations contained in the petition, which we need not set forth. The answer consisted of a general denial, to which was added the pleas of contributory negligence and assumption of the risk. There was a trial by jury, and at the conclusion of all the evidence the defendant interposed a demurrer thereto, which was by the court denied.

When a case is brought here by appeal or writ of error and the defendant assigns for error the action of the trial court in denying a demurrer interposed by him to the evidence adduced by the plaintiff in that court, we will not consider such assignment unless the whole evidence is set out in hæc verba in the abstract. This rule has been long established and steadily observed. Goodson v. Ry. Co., 23 Mo. App. 76; Meriwether v. Howe, 48 Mo. App., loc. cit. 152; Doherty v. Noble, 138 Mo. 25, 39 S. W. 458. The abstract in the present case presents a number of excerpts of the evidence taken from the bill of exceptions, and mingled with statements of the substance of other parts of it or with defendant's conclusion as to what such other parts of it conduces to prove. The abstract therefore does not present the entire evidence, and accordingly we cannot review the actions of the trial court on the demurrer.

The defendant contends that the court erred in giving an instruction for the plaintiff which told the jury that if it "shall believe from the evidence in this case that the

plaintiff was an employé of the defendant, and that he was engaged in feeding one of the defendant's bins at its brick factory, and that while so engaged the machinery conveying the dirt up to the bin became clogged up and stopped, and it became necessary for the plaintiff to unstop the same, and that it was a part of his duty to do so, and in doing so he went down to the bottom part of said shaft for that purpose, and that at the bottom of said shaft it was dark, and not a reasonably safe place to work, and the defendant knew of such conditions, and that while in the act of removing said obstruction in a careful and prudent manner the machinery commenced suddenly to revolve and caught the plaintiff's hand and injured it, and that it was occasioned because the place was dark and not a reasonably safe place to work, then you will find a verdict for the plaintiff, unless you further believe and find from the evidence that plaintiff himself was guilty of negligence contributing to his injury, or that he assumed the risk of injury in doing the work at the time and place in question, as defined in other instructions herein." The defendant insists that in the light of Bradley v. Ry. Co., 138 Mo. 293, 39 S. W. 763, and Sinberg v. Falk Co., 98 Mo. App. 546, 72 S. W. 947, it is faulty in that it "absolutely required it to furnish plaintiff a reasonably safe place to work, and authorized a recovery if it did not do so, without regard to whether it was as reasonably safe as the nature of the business would permit." The common law enjoins upon the master the duty to furnish the servant a place where the work is to be carried on that is reasonably safe. Many of the adjudications supporting this statement of the law will be found cited in Musick v. Packing Co., 58 Mo. App. 323, Zellars v. Water & Light Co., 92 Mo. App. 107, and in Thompson on Negligence, Rules, etc., p. 1405 et seq. But this rule is not without its exceptions, one of which is that where, at the place in which the servant is required to work the conditions are continually changing, or where the changing conditions are created by him—as, for example, when he is engaged in the work of railway construction, street grading, the erection of buildings, and the like-then the place is required to be as safe as such conditions will permit. The application of this exception is well illustrated by the two cases just cited. This case falls within no exception of the rule. Here the place where the plaintiff was required to work was located in a manufacturing establishment. It was fixed, stationary, and not shifting. Here there was no changing of the existing conditions, and therefore the rule, and not the exception, was applicable. The petition is not a pleading that one would at once recognize as having come from the hand of an accomplished artist, but, while this may be so, we think it will be seen from an examination of so much of it as we have herein

before transcribed states a good cause of action, and that the hypotheses of the instruction in question are within the limits of the issue. It appears from the evidence that the machinery used in the shaft was defective and out of repair, and that it very frequently became so choked and clogged by the fine dirt which accumulated at the bottom of such shaft that it would not run until such accumulation was removed. The bottom of the shaft was in a subcellar, which was dark, and without the help of artificial light the physicial conditions there could not be discerned. The defendant sometimes furnished its employés descending to the subcellar to remove the clog in the machinery a torch to light the cellar. At the time the plaintiff was hurt there was no torch accessible to him. The plaintiff, who was placed in charge of the elevating machinery in the shaft, finding that it would not further run because it was clogged at the bottom of the shaft, went down there, as he had many times before, and there, in the darkness then prevailing, took a spade and proceeded to remove the cause of the clog, and while so doing the machinery started and caught his shovel, whereby his fingers were jerked in and injured by the cups or buckets. On the day of the plaintiff's injury the machinery had become clogged and had stopped two or three times before the time plaintiff was injured. The evidence was to the further effect that the plaintiff, on account of the darkness, could not see the bottom of the shaft, and that he had to simply feel to get the dirt that had run down the shaft and stopped the machinery. If the bottom of the shaft where it was the duty of plaintiff to go to perform the work there required was a place that was rendered dangerous and unsafe by the neglect of the defendant to light the same, and that the plaintiff was injured in consequence of such neglect, then there is liability. The master's duty extends to the procurement of and keeping in repair all the appliances necessary for the safe performance of the servant's duties, and any failure in these respects is a breach of duty to his servants. Railway v. Taylor, 69 III. 461, 18 Am. Rep. 626, was where a brakeman was signaled upon a very dark night to make a flying switch, and, owing to the insufficiency of the brakes and an insufficiency of lights, the brakeman was hurt, and the defendant was held liable. Wood on Master & Servant, § 398. The plaintiff's duties required him to unclog the defendant's elevator at the bottom of the shaft, where darkness prevailed; and, if the defendant failed to furnish light sufficient to enable him (plaintiff) to perform that duty with reasonable safety, then it is liable for the injury resulting in consequence of such failure. The following authorities support this conclusion: Musick v. Dold Packing Co., 58 Mo. App. 323; Irmer v. Brewing Co., 69 Mo. App. 17; Sawyer v. Paper Co., 90 Me. 354,

38 Atl. 318, 60 Am. St. Rep. 260; Syrup Co. v. Carlson, 155 Ill. 210, 40 N. E. 492; Haley v. Transit Co., 76 Wis. 344, 45 N. W. 16; Craig v. Saratoga (D. C.) 87 Fed. 349; Lumber Co. v. Rauen, 58 Fed. 668, 7 C. C. A. 424. It is therefore our conclusion that the plaintiff's said instruction embodied a correct expression of the law under the pleadings and evidence, and was properly given.

Perceiving nothing in the record requiring that the judgment be overthrown, it will accordingly be affirmed. All concur.

OWEN v. CHICAGO, R. I. & P. RY. CO.* (Kansas City Court of Appeals. Missouri. Nov. 7, 1904.)

TRIAL DAMAGES-OPINION EVIDENCE-HARMLESS ERROR-WATER COURSES-OBSTRUC

TION-FLOOD-EVIDENCE.

1. On an issue as to the damage to plaintiff's land caused by overflow, the opinions of witnesses as to the amount of damage are inadmissible.

2. Where, on an issue as to the amount of damage caused by overflow, witnesses based their estimates on the value of the crop before the overflow, deducting therefrom the value of the crop remaining, and in answer gave the value of the crop per bushel, and the number of bushels per acre, and the number of acres, the fact that the questions also erroneously called for the opinions of the witnesses as to the amount of damage was harmless.

3. In an action for damages occasioned by a flood caused by obstructions left in a stream by defendant, evidence by witnesses who had experienced floods at the same point, when there were no obstructions, as to how much higher the obstructions caused the water to rise, and how much longer it remained over the land, was properly admitted.

Appeal from Circuit Court, Mercer County; Paris C. Stepp, Judge..

Action by Robert L. Owen against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. A. Low, Orton & Orton, and Frank P. Sebree, for appellant. M. F. Robinson, E. M. Harber, Ira B. Hyde, and Arthur M. Hyde, for respondent.

ELLISON, J. This action was brought to recover damages to plaintiff's land, fences, and crop, said to have been caused by an overflow in the summer of 1903. The judgment below was for plaintiff.

Plaintiff's case is that defendant's negligence in and about the building and maintaining of one of its bridges across a stream running by his farm caused the water of a freshet in the year aforesaid to dam up and overflow his lands to an extent which would not have occurred, but for the negligent obstruction at the bridge. The negligence charged consisted in building the sides of a new bridge too low, in leaving piles standing in the stream, and in allowing to

*Rehearing denied November 28, 1904

remain in the bed of the stream a great length of time before and during the flood a lot of wrecked freight cars. Defendant concedes that the wreck ought not to have been left in the stream, but denies the proof of negligence in the other particulars. An examination of the evidence convinces us that there was sufficient tending to prove all three of the charges. There was evidence from which the jury might well reasonably infer that the new bridge was built with sides too low down. Besides, defendant had the court exclude evidence that its foreman was told that he was building below ordinary high-water line. We likewise find that there was evidence tending to prove that the extra amount of overflow caused by the obstruction was the immediate cause of the inJury to plaintiff's land and crops. So we need only consider objections to evidence and to plaintiff's instructions.

Defendant insists that witnesses were asked what plaintiff's damage was, and that by such mode of examination the witness was allowed to usurp the functions of the jury. The questions put to witnesses consisted of more than the mere asking the damage. That part of the question ought not to have been asked. But taking the whole questions asked in connection with the answer of the witnesses, should the judgment be reversed for that, or is the error harmless? The questions asked directed the witness to base his estimate on the value of the crop, and to deduct this from the value of the crop remaining after the flood. The answer of the witness did not state, except in one or two instances, the damage in a given sum, and in all instances gave the value of the corn per bushel, and the number of bushels per acre, the number of acres, and then the value per acre. The questions and answers show that the witnesses did not state, as a matter of independent opinion or judgment, the amount of damages. They each answered the questions by giving number of acres of crop or pasture, and its value per acre. A part of the question put to different witnesses was frequently improperly framed, but in each instance the whole question seemed to have been so understood by the

witnesses as not to cause an improper answer. But aside from and in addition to this, the instructions directed the jury properly as to the measure of damages, and how they should be estimated. All considered, we are not justified in disturbing the judgment on account of such objection. Spencer v. Ry. Co., 120 Mo. 154, 23 S. W. 126, 22 L. R. A. 668.

Witnesses who had experienced floods at this point at times when there were no obstructions here complained of were allowed to state how much higher the obstructions caused the water to rise, and how much longer it remained over the land. In our opinion, such question was unobjectionable, and affords no ground of complaint. We do not regard the authorities to be found in defendant's brief from this and other courts as in point.

The instructions for plaintiff are of some length, and need not be here set out. We do not consider them justly subject to defendant's criticism. In view of defendant's claim that it was not liable for damages caused by an extraordinary and unparalleled flood, the hypothesis is put to the jury that, in the event they believed it was such a flood, they would only allow such damages as the negligent obstruction of the stream caused, over and above what would have occurred from such a flood if the negligent obstruction had not existed. Other phases of defendant's nonliability for damages caused alone by an unforeseen and extraordinary flood were duly submitted. Indeed, the face of the whole record shows, and the jury necessarily understood, that there was no attempt made to have damages allowed which were the result of the act of God, disconnected from the negligent acts of defendant.

We regard the petition as sufficient, and that after verdict it does not justify the criticism that damages to fencing ought not to be allowed. And so we are of the opinion that the objection made to instruction No. 6, relating to damages for fencing lost and injured, and for injury to the land, is not well taken.

The judgment is affirmed. Judges concur.

The other

NOTES-EXECUTION - BURDEN OF PROOF-EVIDENCE-PRIMA FACIE CASE-ADOPTION

OF SIGNATURE-PLEADING.

1. In an action on a note, the execution of which is denied by verified answer, plaintiff must show that defendant signed, or authorized the signature of, the note, and delivered it as his note.

2. Delivery of a note by the apparent maker as his note is an adoption of the signature, by whomsoever made.

3. In an action on a note, the execution of which is denied, evidence that the maker delivered it as his note, and so adopted the signature, is admissible, without any plea of ratification or estoppel.

4. In an action on a note, the execution of which is denied, evidence that defendant delivered the note as his own, in substitution for another note of like amount, makes a prima facie case for plaintiff.

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

Action by W. S. Harris against J. T. Tinder. From a judgment for defendant, plaintiff appeals. Affirmed.

Thos. S. Carter and Crawley & West, for appellant. W. W. Fry, R. D. Rodgers, and Fred Lamb, for respondent.

SMITH, P. J. In the plaintiff's petition it is alleged that defendant, by his negotiable promissory note, promised to pay one Annie L. Gentry, 12 months after the date thereof, the sum therein named; that the payee in said note, before the maturity thereof, for value, indorsed the same to D. A. Mayer; that afterwards, and before maturity, the said Mayer, for value received, indorsed the same to plaintiff. The defendant denied the execution of said note by answer verified by affidavit. At the trial the court, by the defendant's fifth instruction, told the jury that the burden was on the plaintiff to prove by a reasonable preponderance of the evidence that defendant signed the note sued on, or authorized his name to be signed to it by some one else, and that defendant delivered the note to the payee's agent as his note. It seems to us that this was a correct expression of the law, and was properly given. There was no evidence tending to prove that

Rehearing denied November 28, 1904.

1. See Bills and Notes, vol. 7, Cent. Dig. § 78.

the defendant signed the note, or that he authorized any one to sign it for him, but the plaintiff's evidence showed that the defendant delivered the note, with his name signed thereto, to the payee's agent. And we cannot see that it makes any difference whether his name was signed to the note with his own hand, or signed by that of another, if he delivered it as his note. He could adopt the signature as that of himself, and then utter it. If his name had been affixed by a stamp or in typewriting by some one without his authority, and yet if he should choose to deliver it as his note, this would be an adoption, and would be the same thing, in legal effect, as if he had affixed his signature with his own hand. If the evidence disclosed that he delivered the instrument to the payee as his note, this was, in effect, a representation made by him that the signature thereto was his, and that it was his obligation, no matter to whom or in what way his signature was attached; and such evidence would be within the allegation of the petition. It would be one of the ways to prove the execution and delivery of the note. In such case the replication was not required to plead ratification or estoppel to make such evidence admissible.

This case is distinguished from that of Kelchner v. Morris, 75 Mo. App. 588, and the case to which the latter refers, for there the forged note was not delivered, as here, by the apparent signer or maker thereof to the payee as his note, but by the forger himself. In that case there could be no ratification of the unauthorized act of the forger, since the act of the forger was void and incapable of ratification. Evidence as to the delivery of the note by defendant pro and con was, as we think, properly admitted under the issue made by the pleadings. The instruction complained of was not broader than the issue, and imposed upon the plaintiff no unnecessary burden.

The plaintiff, by the introduction of his evidence tending to prove a delivery of the note to him by defendant in substitution for another note of like amount, thereby made out a prima facie case. This evidence was by the jury discredited, and that of the defendant credited, and, as a consequence, the verdict was for the defendant, which we think was justified by the evidence and the instructions. Accordingly the judgment

must be affirmed.