When analyzed the above argument is found to resolve itself into the proposition that there was a variance between the petition and the proof, though the point is not presented in that form. All the evidence regarding the accident went in without objection, and the question of variance was never raised during the trial in the way provided by the statutes (Rev. St. 1899, § 655). The theory of defendants' counsel is that the court had no right to instruct for a verdict for the plaintiff on a finding of the jury that the downward movement of the elevator was negligently changed, because that fact is not counted on in the petition, and no right to instruct for a judgment in her favor on a finding of negligence in any other particular, because changing the course of the elevator was shown conclusively to have been the sole proximate cause of the accident; that in this dilemma the only proper ruling was to deny a recovery. There was abundant testimony to show defendants' employé carelessly closed the door on plaintiff's dress, and at the same moment started the elevator. Now, negligence in that respect was well pleaded in the petition, and therefore the proof did not entirely fail to sustain one of the causes of action, or, rather, grounds of recovery, alleged. Hence, if the court had ordered a verdict for the defendants on the theory of total failure of proof, it would have been erroneous.

4. Granting there was evidence that starting the elevator upward was the proximate cause of the accident, an inquiry arises as to whether the court properly submitted it as a ground for a verdict for the plaintiff, when there was no allegation in the petition regarding the fact, but evidence about it had been received without objection. We discussed this question recently, and held that the statutes prescribe several lines of procedure in such a contingency, and that which line ought to be followed in a given case depends on the extent of the variance presented between the pleading and the proof. Litton v. R. R. (Mo. App.) 85 S. W. 978. The provisions of the Code on this subject are clear and ample. If there is a total failure to sustain an allegation stating a distinct and independent ground of recovery, as where the fact proved negatives the one alleged, a failure of proof occurs, instead of a variance, and the plaintiff's case, in so far as it rests on the unproved allegation, must fail. Rev. St. 1899, § 798. A party cannot sue on one cause of action and recover on another. Chitty v. R. R., 148 Mo. 64, 75, 49 S. W. 868. If a variance occurs, it may be either material or immaterial. If immaterial, the trial court, in the exercise of its discretion, may direct the facts to be found according to the evidence or order an immediate amendment without costs. Rev. St. 1899, § 656. The professional eye likes to see pleadings and proof agree exactly, and an amendment is preferable, but not imperative. To contend, as is sometimes done, that in no case of variance can the

court instruct on the evidence, is to ignore the very words of the section of the statute last cited, which expressly authorize the court to give instructions according to the evidence unless the variance is material. What shall be deemed a material variance is prescribed in the Code. It is one which has misled the opposing party to his prejudice. Rev. St. 1899, § 655. And in the Code, too, is prescribed how it shall be made to appear a party has been misled. If the evidence does not correspond strictly to the allegations, it is the duty of the opposite party to satisfy the court by affidavit that the discrepancy is harmful to him, whereupon the court may order the pleading amended on terms. Rev. St. 1899, § 655. Now, during a trial a party may object to evidence when it is offered, on the ground that it is irrelevant to the issues, or he may raise the question of variance after it is introduced. If he does neither, and the discrepancy between the allegations and the evidence does not amount to a failure of proof, we fail to see how the trial court can be denied the right to instruct on the evidence, without expunging certain provisions of the statutes. This doctrine has been declared repeatedly by the courts, though not without inconsistent decisions. Fisher, etc., Co. V. Realty Co., 159 Mo. 562, 566, 62 S. W. 443: Heffernan v. Legion of Honor, 40 Mo. App. 605; Farmers' Bank v. Assurance Co., 106 Mo. App. 114, 80 S. W. 299. The real difficulty in practice is to say whether the evidence is so unlike the facts averred as to constitute a failure to prove the averments in their entire scope and meaning, or merely constitues a variance; and, if there is any touchstone for this problem, we would gladly see it. Rulings on the question must be more or less arbitrary. In the present case the substance, scope, and meaning of the cause of action stated are that the plaintiff was hurt by the negligent handling of the elevator by defendants' employé. Proof that the precise manner in which the hurt was inflicted was by reversing the elevator's movement carelessly would establish the gist of the petition (i. e., negligent operation of the machine), but would vary from the particulars of the petition. We hold it would be a variance, and not a failure of proof. Our chief reliance for this ruling is the recent case of Chouquette v. R. R., 152 Mo. 257, 53 S. W. 897, in which it was held that a variance, and not a failure of proof, occurred. The petition alleged the plaintiff was thrown off a car in a rush of the passengers to escape a live wire, and the testimony showed the plaintiff went to the platform and jumped off. This general topic is well discussed in Pomeroy on Code Remedies (4th Ed.) § 447 et seq. We collected some instructive authorities in Litton v. R. R., su pra, and reasoned about the principles which ought to control the decision in cases presenting various aspects.

5. Our main difficulty has been to decide whether there was any room for the infer

ence that changing the direction of the elevator caused the injury. No doubt, plaintiff would not have been hurt in the manner she was if the course of the machine had not been changed. But that is a very different proposition from saying that changing the course was, legally speaking, the proximate case. If the car had been simply stopped at the point where it was turned upward, the mischief would have been averted. The operator swore it was impossible for him to stop it there without reversing the power; that is, throwing the lever back as far as it would go. No expert opinion on the subject was introduced, and, though the evidence is very impressive that nothing short of a complete change of movement would have caused a cessation of the downward movement in time to save plaintiff, we are unwilling to pronounce on the question as one of law. The correct answer depends on the speed and momentum of the car, and the quickness with which it responded to a proper effort to stop it. Concerning those matters there is no testimony, except the statement of the operator that he could not stop soon enough without reversing the movement. It is certain that, if the elevator had descended three feet more, the top would have struck plaintiff while she was in a position to be killed by the blow. The testimony is that she would have been killed instantly. The situation was one of extreme peril, and called for instantaneous action on the part of the operator. He had to decide and act in a flash, and probably adopted the Lost effective expedient. He was bound to exercise high care in the emergency, considering the trepidation he must have felt when be realized plaintiff's peril. In his own statement he said the only way he could save plaintiff from instant death was quickly to reverse the elevator, but said, also, that "in going up the jolt was too quick, and * * the engine shot up" quicker than it ought to if run right. In the Luckel Case, 177 Mo., loc. cit. 637, 76 S. W. 1035, the Supreme Court held that, although the passenger was caught in the door of the elevator by the operator's negligence, the passenger would have escaped injury but for the negligent lowering of the elevator on him, which act, therefore, was the cause of the injury. It was shown that after that elevator had ascended two feet it was stopped. When it stopped the plaintiff was still unhurt, and could have been extricated from his position of peril easily. But the operator let the elevator down until the top caught him, crushing his ribs and otherwise injuring him. Two facts In that case are obvious: That lowering the elevator was a negligent act, and that it alone was the cause of the injury. In this ase the elevator had not stopped, with plain#safe, before the operator turned its course ward. We have concluded it was for the Jury to decide whether the operator handled the elerator with reasonable prudence after he saw plaintiff's danger.

88 S. W.-8

6. Though defendants' counsel insist the reversal of the elevator was the proximate cause of the accident, they by no means concede that this action was a negligent one. Their position seems to be that, whether negligent or not, it was the sole cause of the injury, and plaintiff could not go behind it for a ground of recovery. In our judgment, this position invoives a misconception of what is meant in the law of negligence by the "proximate cause of an accident." The expression "proximate cause" frequently signifies, not that act in a chain of causation nearest to the injury complained of, but the culpable act nearest to the injury. Wharton, Negligence, §§ 88, 138; Shearman & Redfield, Negligence (5th Ed.) § 36; Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; Chacey v. Fargo, 5 N. D. 173, 64 N. W. 932; Pastene v. Adams, 49 Cal. 87; Scott v. Shepherd, 2 W. Blackst. 892, s. c. 3 Wils. 403. When a person's conduct is negligent, and brings another person into a position where damage is the natural outcome, the introduction of a nonculpable act between the original negligence and its mischievous result will not prevent the original negligence from being treated as the proximate cause of the mischief, if it contributed to produce it, even though the intervening act was the immediate cause. This principle is illustrated by the cases we have cited. The incidents in one or more of them were the culpable acts of a municipality in letting a board in a sidewalk be loose, whereby injury resulted to a pedestrian by his companion stepping on one end of the board and causing it to rise. Stepping on the end of the board was the immediate, but not the proximate, cause of the accident. Now, in the present case, it is palpable that some one, by catching plaintiff's dress in the door, or starting the elevator while it was caught, had put her in danger before the elevator was reversed; and unless the reversal itself, or the way it was done, was a careless act, and injured the plaintiff, the law will recur to the previous carelessness as the proximate cause of the injury. And this is reasonable, because, if there was no negligence in the return of the elevator, the circumstances considered, then every subsequent incident, including the injury, was the natural result of the first careless act. But if the operator, by catching plaintiff's dress in the door, or moving the elevator when he should have known it was caught, had put plaintiff into a position where he could not avoid hurting her, defendants ought not to escape liability because some subsequent careful act of the operator actually inflicted the hurt. Therefore we reject the conclusion that the upward movement of the elevator was the proximate cause of the accident, no matter whether it was careful or careless.

7. Plaintiff herself could have been to blame for her injury in one particular only;

that is, in not exercising ordinary care to keep her dress from catching in the door. Even if she was to blame for that circumstance, it was the duty of the operator to use care to see that she and the other passengers were safely placed before he started the elevator; and the defendants are responsible if he was remiss in the performance of that duty. Our conclusion regarding the possible causes of the accident is that the plaintiff alone may have caused it by catching her dress; that the operator may have caused it either by closing the door on plaintiff's dress, or starting the elevator when he knew or ought to have known her dress was caught; and that possibly he caused it by handling the elevator carelessly after discovering plaintiff's danger. As indicated above, we think the latter a weak theory, for, though absolutely perfect management of the elevator might have averted the accident, it was hardly possible to manage it perfectly in the excitement and urgency of the moment. If the operator carelessly closed the door on her dress, that incident may be treated as the proximate cause of the injury, for everything done after he closed the door would have proved harmless if her dress had been free. Neither starting the elevator down, nor returning again, would have injured her any more than it did the eight or more other persons in the car. Moreover, the operator swore he closed the door and started the car at the same instant, and, if her dress was caught by his action, all that followed could have been anticipated as a necessary consequence. If the plaintiff was not to blame for the catching of her dress, she was not to blame at all, and no negligence of hers contributed to her injury.

8. The seventh instruction given for the plaintiff correctly says that by the term "contributory negligence" is meant, in this case, "any negligence on the part of the plaintiff directly contributing to her injury." Immediately after that definition the instruction declares that "such negligence on her part [that is to say, negligence on her part which directly contributed to the injury] will not bar her right to recover if defendants' agent or servant, after discovering the danger in which plaintiff was placed by her negligence, might have, by the exercise of ordinary care, prevented the injury to plaintiff." Taken as a whole, that instruction was apt to impart an erroneous opinion about the effect on plaintiff's right to a verdict of a finding that she had been guilty of contributory negligence. It was misleading. The last clause was erroneous in requiring no more of the operator than ordinary care to save plaintiff after he discovered her peril. He was bound to use high care. Besides, in the circumstances shown, he might have been remiss, so as to lay his employers liable, by not discovering plaintiff's peril. As she could have put herself in peril in no way except by catching

her dress, the instruction on this branch of the case will instruct the jury best by telling them that, although they find plaintiff herself was to blame for her dress catching in the door, yet if they also find the operator knew, or by exercising the high degree of care incumbent on him could have known, it was caught, in time to prevent the injury to plaintiff, defendants are liable. The first part of the instruction authorized a verdict for plaintiff in a given contingency, though she was found guilty of negligence which directly contributed to her injury. We deem that charge erroneous, as no evil feeling on the part of the operator was shown. It is not easy to refute the proposition that one who carelessly gets himself into a situation of danger, and unwittingly remains there until hurt, contributes to his injury. But the initial negligence of a party, which brought him within range of harm from what another was doing, is regarded often as having only remotely contributed to the accident, because none would have happened if the injuring party had done his duty. The principle of liability is that the duty of using caution not to inflict injury is owed to careless as well as careful people. I have no more right negligently to hurt a man who has carelessly gone where I can hurt him than I have to kill a man intentionally who is trying to kill himself. In situations where the rule in question is applied, the conduct of the party exposed to risk does not release others from the duty of being careful of his safety, nor lower the standard or lessen the quantity of care required. But if his own conduct in exposing himself to peril by the act of another, or failing to avoid peril when he could, contributes to the injury he received, and the other's negligence (not recklessness or willfulness) contributes also, the latter is not answerable. He is not answerable, because the law refuses to compare the negligence of the parties, or to attempt an apportionment of their respective influences in bringing about the result, not because the defendant was released from the duty to be careful by the plaintiff's neglect. It is not contended in this case that the elevator operator was reckless in conduct or guilty of willful wrong. Therefore plaintiff's right to recover notwithstanding her own negligence may be determined most satisfactorily by answering the question of whether her negligence directly contributed to cause the accident; that is, was the proximate cause. Any negligence of which she was guilty will not debar her unless it contributed to the injury; and it did not contribute, legally speaking (directly contribute), if subsequent to it the operator had a last clear chance to prevent harm by exercising high care. The doctrine finds application to cases wherein it appears the defendant saw the plaintiff's peril in time to save him, and to those wherein, the circumstances considered, the defendant ought to have seen the peril in time. Hence we hold in this case

that if the operator saw, or by high vigilance would have seen, plaintiff's dress was caught, in time to prevent the harmful result, the defendants are answerable. There is an antinomy between the doctrines of contributory negligence and of discovered peril (or the last clear chance) that has resisted all attempts to formulate a theory adequate to indicate clearly in border-line cases which of the two | doctrines should control the decision. Yet students of the subject realize that there are circumstances under which an injured party should recover damages, notwithstanding the fact that his own want of care had something to do with bringing about the injury by affording the opportunity for it to occur. The case in hand contains testimony to establish facts which the last clear chance rule fits. The vital facts in this connection are that the operator was charged with the duty to exercise unusual vigilance for plaintiff's safety, and, if she was guilty of negligent conduct which endangered her, such conduct did not continue until the instant her leg was broken, nor could she by her own exertions escape the danger in which she had placed herself. Any negligence on her part must have occurred, if at all, before the elevator began to descend. By catching her dress, she was put in a position of danger; and, if she caused it to catch, she put herself in that position. But it is a reasonable inference that the operator, by using vigilance to see that his passengers were properly placed before starting, might have averted harm to the plaintiff from what he was doing (running the elevator), though ber dress was caught. Had he looked to see if she was safe, and, seeing she was not, held the elevator motionless until her dress was detached, all would have been well. And if this precaution could have been taken by the operator, then, plainly, plaintiff's negligence only remotely, and not directly, contributed to her injury, and it was unnecessary to tell the jury she might recover if they found it directly contributed. The instructions should have presented in a concrete way the rule of law regarding the right of a party who has carelessly exposed himself to peril to recover for an injury needlessly inflicted by another person. The general and abstract character of the first part of the seventh instruction went beyond the necessities of the case, and was incompatible with the defense of contribatory negligence.

9. The first instruction given for the plaint held the defendants responsible if plaintiff's injury was caused by any failure on their part to exercise care and precaution in managing the elevator-an erroneous view. Not any failure of duty by the defendants, but only such as there was proof of, should have been submitted to the jury as ground for a verdict in plaintiff's favor. Different arts of negligence were alleged in the petition, and some of these were supported by evidence. Plaintiff's right to recover depended on satisfying the jury that defendants were

guilty of one or more of those acts. Allen v. Transit Co. (Mo. Sup.) 81 S. W. 1142; Lesser v. R. R., 85 Mo. App. 326.

10. Error is assigned because of the exclusion of the letter defendants wrote plaintiff while she was in the hospital. The defendants received no reply to the letter in question, and did not seek one or pursue the matter further. They say that, as plaintiff remained at the hospital at their expense after receiving the letter, she must be held to have accepted the proposition submitted. This proposition was that the defendants would continue to pay for her board and attention at the hospital, provided she assured them she would make no additional demand on account of her injury. Arguing that plaintiff's conduct amounted to a tacit acceptance of their offer, defendants' counsel present the supposed acceptance as a settlement of the present cause of action. We will say no more on this point than that, in our judgment, there is no ground for the conclusion that plaintiff accepted the proposition, or in any way released her claim. She made no response to the letter, and defendants could not rest with the negotiation in that state, and insist afterwards on a constructive assent by plaintiff. Besides, all the evidence went to show she was a minor when she left the hospital, and incapable of entering into an accord and satisfaction. The court committed no error in excluding the letter.

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

Where, in an action against a telegraph company for damages for failure to deliver a message whereby plaintiff ordered a shipment of potatoes, it appeared that the message read, "Two hundred Rose two hundred Ohio one hundred Triumph," it was proper to permit the addressee to testify that he would have understood the message to be an order for a certain number of bushels of certain kinds of potatoes. 2. SAME.

In an action against a telegraph company for failure to deliver a message whereby plaintiff ordered potatoes from the addressee, it was proper to permit him to testify that, if he had received the message, he would have complied with the order.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Action by N. B. Elam against the Western Union Telegraph Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

McIndoe & Thurman, for appellant. Cole, Burnett & Moore, for respondent.

BROADDUS, P. J. The plaintiff's suit is for damages for the failure of defendant to

deliver a certain telegram for the purchase of potatoes. The petition was in three counts. The two first were for damages, and the third for the statutory penalty. The plaintiff dismissed as to the first, and recovered $97.50 on the second, count. The finding was for defendant on the third count. The defendant appealed from the judgment on the second count.

The facts are as follows:

On the 24th day of February, 1904, in response to plaintiff's inquiries by telegraphic communication had over defendant's telegraph lines as to the price of certain kinds of potatoes at the then market price, he received from J. H. Kennedy, who was engaged in the wholesale grain and potato business at Minneapolis, Minn., the following telegram, viz.: "N. B. Elam, Lamar, Mo.: Rose dollar four Ohio dollar fourteen Triumph dollar twelve sacked Lamar. J. H. Kennedy." On the 25th of said month plaintiff delivered to defendant's agent and operator in charge of its office at Lamar, for transmission to said J. H. Kennedy, at Minneapolis, the following telegram: "J. H. Kennedy, Minneapolis, Minn.: Two hundred Rose two hundred Ohio one hundred Triumph. N. B. Elam." Plaintiff paid to defendant's agent 50 cents, the regular charge for such service. Through defendant's fault, the message was never delivered. The plaintiff at the time had contracts to sell in lots to different dealers in potatoes 200 bushels of Rose, 200 bushels of Ohio, and 100 bushels of Triumph potatoes. As the telegram to Kennedy was not delivered, he did not ship to plaintiff any potatoes whatever, in consequence of which, plaintiff was compelled to buy on his home market other potatoes at an advanced price-the difference being $97.50-to comply with his said contracts of sale. It was shown that the word "hundred," in the telegram, meant bushels; that "Ohio" meant Ohio potatoes; "Rose," Rose potatoes; and "Triumph," Triumph potatoes; and that they were so understood by Kennedy. The latter was permitted to testify that, had he received the mislaid and undelivered telegram sent by plaintiff, he would have shipped the potatoes called for, as he understood the telegram called for potatoes of the kind and quantity stated.

The first contention of defendant is that "Kennedy should not have been permitted to testify what he would have done, or that he would have accepted and filled the order in case the message had been delivered. Nor should he have been permitted to testify what he would have understood it to mean. What he would have done is speculative, remote, and contingent." Many cases are cited to sustain defendant's position. In Reynolds v. Tel. Co., 81 Mo. App. 223, the court held that it was competent to explain abbreviations in words. "A wife signed a statement made in the partnership book of her husband and another party to the effect

that she ratified certain accounts in the book so far as any of her property was concerned. It was held that 'parol evidence was admissible to show all the facts and circumstances under which the writing was signed, so that the court could determine what was probably meant by the language [Newberry v. Durand, 87 Mo. App. 290].'" In Thompson v. Thorne, 83 Mo. App. 241, it is held that it was competent to explain the uncertain meaning of terms used in an insurance policy. It is well known that, for the purpose of convenience and economy, people resorting to the telegraph for business or other purposes very generally use only so many words as may be necessary to make known to the recipient the meaning intended to be conveyed by the message. This mode of correspon

dence results in both the contraction and omission of words ordinarily used. The use of the telegraph is an improved and rapid means for distant communication. The courts are bound by the very necessity of the conditions to apply existing legal principles to the interpretation of telegraphic messages. For instance, if terms are used in a message, the meaning of which is obscure, and such terms are in general use and understood among those engaged in the business to which it refers to have a definite meaning, the court will receive such evidence for the purposes of making certain that which was uncertain. And also, upon the same principle, it is competent in other instances to show that, as between the sender and the recipient of a message, the communication is mutually understood.

The contention of defendant that it was error in permitting Kennedy to testify that he would have accepted and filled plaintiff's order, had the message been delivered, we do not think is supported by authority. We are of the opinion that defendant's statement of the question is misleading. It was not a question what he would have done, but what he was legally bound to do, under the circumstances. If the telegram had been delivered, it seems to us that it constituted a contract, for Kennedy had offered to plaintiff the kind and quantity of potatoes at fixed prices; and the message, if received, was an acceptance of the offer, and, as such, was a contract in writing, binding on the parties. If Kennedy had received the message, and delivered the potatoes in sacks to plaintiff at Lamar, he would have been legally bound to accept and pay for them at the prices designated. If plaintiff would have been so bound to Kennedy, then there was a corresponding obligation upon his part to deliver the potatoes to plaintiff. The case is different from that where a customer merely makes an order on his merchant for goods, which does not constitute a sale until the goods are delivered or the order accepted. "A contract is made when both parties agree to it. If the offer is made by letter, then it is made where the party receiving the prop