the report is confirmed and final action taken by the court the result shall be certified to the comptroller, and he report it to the assembly, which at its next session shall make the necessary appropriation, and a failure of the assembly "to make such appropriation shall operate as a dismissal of such proceedings, and no future action for such condemnation for a period of ten years," etc., showing that the framers of the charter had the subject in mind, and if they had intended to make the failure to approve the report of the commissioners a dismissal of the suit they would have said so.

2. Appellant's next point is that the modification by the court of the report of the second commissioners was a usurpation of appellant's constitutional right to have its damages assessed by a jury or a commission of freeholders, as declared in section 21, art. 2, of the Constitution. No suggestion was made to the trial court that appellant's constitutional rights in that particular were being disregarded, and if there had been the point would have been conclusively answered in the language of this court in St. Louis v. Buss, 159 Mo. 9, 59 S. W. 969. In that case, as in this, the award of the commissioners on the question of damages was not molested; but some changes were made in the benefit. assessments. The court construed the section of the charter (section 7, art. 6) above referred to, and held that, under its requirements "to make such order therein as right and justice may require," the court was authorized to modify the benefit assessments, and in so doing did not infringe on the party's rights under the clause of the Constitution specified.

Appellant dwells with earnestness on the general result, which gives it $1 for its compensation for a strip of land 30 feet wide and 100 or more feet long, and taxes its adjoining property more than $3,000 as for benefits. If that were all there was of it, no court would allow such an award to pass into judgment. But there was evidence tending to show that this 30-foot strip had been used as a public street or road from a date as far back as 1861, and that in this proceeding a strip on the north of it was taken from other property owners to make this street about 60 feet wide along the north boundary of a large tract of land belonging to appellant in an already thickly settled portion of the city. The modification of the report by the court was, as far as it went, entirely to the advantage of appellant. It reduced the benefit assessments against its property $1,200, and added that sum to the sum the city should pay. We do not see in the facts of the case anything so shocking to the sense of justice as to authorize an appellate court to invade the realm of the trial court on a question of fact.

There is no error in the record. The judgment is affirmed. All concur, except MARSHALL, J., not sitting.

FISCHER v. CITY OF ST. LOUIS. (Supreme Court of Missouri, Division No. 1. June 15, 1905.)

1. MUNICIPAL CORPORATIONS-OBSTRUCTIONS STREETS-PERSONAL INJURIES — NEGLIGENCE QUESTION FOR JURY.

IN

In an action against a city for injuries caused by falling over a stone step leading to private premises and projecting under the street, evidence held to justify submission to the jury of the question whether defendant was negligent.

2. SAME CONTRIBUTORY NEGLIGENCE.

In an action against a city for injuries caused by falling over a stone step leading to private premises and projecting under the street, evidence held to justify submission to the jury of the question whether plaintiff was guilty of contributory negligence.

3. SAME INADEQUATE DAMAGES.

Where plaintiff sustained a broken ankle, which, because of her age, failed to heal properly, so that she could walk only by artificial aid, a verdict for $1 in an action for the injury should be set aside as the result of prejudice.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, §§ 370, 396.]

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by Mary Fischer against the city of St. Louis. From a judgment for plaintiff for less than her demand, she appeals. Reversed.

Hickman P. Rodgers, for appellant. Chas. W. Bates and Wm. F. Woerner, for respondent.

LAMM, J. Action against respondent city for personal injuries predicated on its alleged negligence in permitting the half of a millstone or grindstone of considerable dimensions to be and remain in the footway or sidewalk of one of its thoroughfaresSecond street. Damages laid at $5,000. Tried to a jury. Verdict, $1.

Asserting dissatisfaction over this small verdict, appellant filed a motion for a new trial challenging the verdict, because, she says, it was the result of passion, prejudice, or misconduct on the part of the jury; because the verdict was inadequate, and not commensurate with the injuries received; and because the jury failed and refused to heed the instructions of the court, in that having found the issues in favor of plaintiff, it failed to fairly compensate her for her injuries. The court below disallowed this motion, and plaintiff duly appeals here, assigning said ruling as error.

It is disclosed by the record that the pleadings are unexceptionable, and the instructions are unassailed; that at the close of appellant's case respondent challenged the sufficiency of her evidence to make a case, and the trial court overruled a demurrer thereto; and that the jury was commanded by the court, inter alia, as follows: "That if you find for the plaintiff you will assess her damages in such a sum as, from the evidence, you believe will be a fair and reasonable re

compense for the injuries received by her. In ixing the amount of such damages, you will take into consideration the nature and extent of the physical injuries received, the pain and mental anguish endured, as well as the pain and inconvenience, if any, which you believe from the evidence will reasonably result from said injuries in future."

The undisputed facts follow: Second or Columbus street is a public street of St. Louis. At a certain place in this street, close to its junction with Duchoquette street, there is a sidewalk or a footway of cinders, which walk at other points along the street was made of other material. One Smith owns a tenement abutting on this cinder walk. The street line of his premises is about 18 inches higher than the level of the walk. Smith's house stands back from the street, and is approached from the street by a gateway. In front of this gate, at the outer street limit, is a half of a grindstone or millstone extending along the outside street line 3 or 4 feet, and projecting therefrom over into the sidewalk, in extreme limit, 2% feet. This stone, because of the uneven lay of the walk, or for some other cause only to be guessed at, is flush with the plane of the walk at the gate, but 5 inches above the plane of the walk at the point of farthest projection into the footway, so that a person walking in the footway close to the gate might meet with little or no obstruction, but the same person walking 2 feet 4 inches away from the gate would meet an obstruction 5 inches high. Defendant introduced evidence, not controverted, that this millstone had been there for 27 years, and filled the office of a stepping stone to enter the premises of Smith. The evidence indicated that the walk was of considerable width, and that there was ample room for pedestrians between the millstone and the curb. The evidence also indicated the nearest city light was 200 feet away. The character of this light was not shown, but it appears that at the point in question at the time in question the stone was obscured by dark

Dess.

Appellant is an old washerwoman, burdened with the weight of 68 years. Her daughter lived adjacent to the premises of Smith, and had resided there for three years. She had visited her, say, a dozen times, and a few times say three-had passed by this stone on said visits. It stands confessed that she was familiar with the location and character of the obstruction. On the evening of January 5, 1902, appellant visited her daughter. On returning home, accompanied by her husband, after 9 o'clock p. m., in the dark, she fell over this stone, thereby breaking and dislocating her left ankle, wherefrom she was confined to her bed for several months, suffered the pains and distress naturally incident to such injuries, and, as reasonably to be expected at her time of life, the broken bones did not knit by first im

pression, nor did her injuries heal kindly, but she remained crippled, and, so late as October, 1902, at the trial, was obliged to walk with artificial aid. No question whatever is raised about the extent or character of her injuries and resulting pains. The old lady told her story on the stand in a broken way, with the idioms and phrasing of her German mother-tongue, and with a consequent lack of clearness on cross-examination, needing and appealing for a touch of sympathetic intelligence to clear away obscurity. Substantially and briefly she testified that as she was walking that night on the street, she, in a general way, had the stone in mind, but that in the darkness she was confused as to its location, and as to her proximity to it, and her distance from the street line, and that in this condition of things, while intending to avoid the obstruction, and thinking she was well outside the line of danger, she fell over it, and suffered said hurts.

The foregoing is the whole story in small compass, and presents the only facts and issues for our adjudication. And on this record it is self-evident that, if appellant was not guilty of such want of care as would, as a matter of law, be contributory negligence, and if, under the evidence, as a matter of law, it cannot be said that respondent was not guilty of negligence in permitting the character of obstruction indicated to be and remain in the footway for. pedestrians in one of its streets, we must avow judicial sympathy with the contention of appellant; and that sympathy has its root in the following condition of things: The jury found the issues for appellant. Now, the only allowable meaning of that finding when logically analyzed and interpreted is (1) that the jury found that respondent was negligent; (2) it found that appellant was using due care; and (3) it found that her injuries resulted from respondent's negligence. There is one other allowable hypothesis, and that is that the jury under the facts intended to and did, in all but name, find for defendant, but shrunk from meeting the issues, and put its verdict in the form it did on the question of costs. In the evolution of a trial a verdict of a jury may be likened to a correct conclusion in a syllogism, and, if the conclusion be not correct, it would put the law to open shame if a court, having due regard always for the independence of the jury and its power within bounds, did not apply a correcting hand to see that a perverted conclusion was corrected. Here we have a venerable woman coming into a court of justice for redress. Her very simplicity and humbleness and age bespeak tenderness at the hands of the law. It is adjudged that her serious injuries were the result of respondent's negligence, and were suffered without her fault; and yet for a broken and dislocated ankle and a long period of mental and bodily distress she is given a bagatelle.

Courts should be diligent to see that the law, which is itself reason and common sense, be applied with the aid of right reason to produce a reasonable result in the everyday affairs of life. The gravity necessary in the administration of justice to entitle the law to respect necessitates that mere caprice and practical jokes have no part or parcel therein, and it results that, if there was substantial unimpeached evidence upon which the jury could find that appellant was exercising due care and that respondent was negligent, this verdict, considering the grievous hurts of appellant, disturbs the moral sense, and should be brushed aside.

Respondent recognizes the delicacy of the situation, and insists (1) that there was no evidence of negligence, and hence plaintiff should have been nonsuited; (2) that appellant's evidence affirmatively shows that she was not exercising due care, and hence she should have been nonsuited; and (3) that the verdict, fairly considered, is a verdict for respondent on all the issues, and was the result of blandness on the jury's part in the matter of costs. Of these in their order.

This

1. On the issue of the negligence of respondent in allowing the stone to remain in the street, it is insisted that the premises of Smith were higher than the level of the sidewalk, that the stone was a proper stepping stone to reach these premises, and that the city was in no wise negligent in permitting it to remain and be so used, considering the width of sidewalk left unimpeded for pedestrians. We are not called upon to pass on the question whether or not in a wide sidewalk, where ample room is left for foot travelers, and where houses have been so built, flush with the street, that stepping stones become necessary for convenient ingress and egress, because of the street grade or for other reasons, a suitable stepping stone permitted on the edge of the sidewalk would create a nuisance in the street, and render a city responsible for injuries to a pedestrian stumbling thereon in the dark. case is not such a case, and must stand on its own facts. The evidence shows that no reason exists why the step should not have been inside the building line, for Smith's house was not flush with the street, but set back; that there was a rise of 18 inches from this stone to his premises; that the plane of the sidewalk at the outside street line coincided with the plane of the stone, and that the maximum rise in the step, so called, was in the street, over two feet away from the gateway, and thus it would happen that a person stepping on this stone from the street, designing to enter Smith's premises, would have to take practically another step before he reached the gateway, and when he reached that point he would have to step up 18 inches to get into Smith's premises. Vice versa, a person leaving Smith's premises by this gateway would step down eighteen

inches to the stone, and when that step was taken he would be practically on the level of the sidewalk at that immediate point. He would then take a forward step on the stone, and would be at the edge of the step off of five inches to the sidewalk at that point. So that, while we are not called upon to decide that a suitable stepping stone might not have been legally placed to enter Smith's premises, we are prepared to say that the character of stepping stone permitted in that sidewalk, projecting, as it did, an unnecessary distance into the walk, presents a case where the question of negligence was properly sent to the jury. Indeed, the stone might well be considered more of a snare than a stepping stone; for, if it were not there, a person entering or leaving Smith's gateway would have practically no more or no less of a step up or down to enter or leave than he would have with the stone in place. The long period of time that this condition of things was allowed to exist does not tend to render it sacred in the eyes of the law, for an original sin of negligence will not ride into the wilderness on a scapegoat of mere time; and it must not be lost sight of that to pedestrians the mere fact that a condition has existed for a long time is of no significance, except it speaks to the point of notice and knowledge, which necessarily varies as to each one.

We are cited to two cases by the learned counsel of respondent as sustaining its contention, but neither, in our opinion, lays down any principle determinative of the issues under this record. In one of them, a Kentucky case (Teager v. City of Flemingsburg, 109 Ky. 746, 60 S. W. 718, 53 L. R. A. 791, 95 Am. St. Rep. 400), a street was on a grade, and a step of a few inches was built or permitted by the city across a sidewalk to equalize this grade, and to serve as a watershed, throwing the surface water of the street from the pavement; and the question was whether the building and maintenance of a sidewalk with a step, which, from the nature of the grade, the city government deemed necessary and proper, is of itself such negligence as will warrant a recovery by one injured in a fall caused by the step. It will be seen at a glance that the Kentucky case is not on all fours with the case at bar. There a city, using its best engineering judgment, adopts a plan to level the grade and to serve as a watershed, and in so doing acted within its delegated discretion and power to subserve public ends, there being no evidence the step was out of repair or unskillfully constructed. The same principle has been applied in this state by this court and the other appellate courts in proper cases. In a New York case-Dubois v. City of Kingston, 102 N. Y. 219, 6 N. E. 273, 55 Am. Rep. 804-it appeared that at a place brilliantly lighted at the time, Dubois, running to a fire, in the nighttime, stumbled over a stone that was placed along the curb

of a street in front of the post office as a convenience to persons entering and alighting from carriages and having business at the post office. In that case, as in this, there was ample room for the use of pedestrians left. The stone was 3 feet 4 inches in length, 20 inches wide and 14 inches high. It laid lengthways with the curb, and at the sorth end of the stone was a lamp post of about one-half the width of the stone. The most that can be said for the New York case is that it was therein held that a stepping stone on the edge of a curb for the comfort and convenience of the public did Dot constitute a nuisance, in the absence of evidence justifying the conclusion that it was dangerous to travelers passing along the street, and in the absence of evidence that the city authorities were chargeable with negligence in allowing it to remain where it was located. In that case, too, it was held that plaintiff was chargeable with negligence contributing to his injury. He was well acquainted with the locality, and, as said, it was brilliantly lighted at the time, and, if be had been careful in exercising his faculties, he would have avoided the accident. The cause was reversed, and a new trial granted, with costs to abide the event. that the facts are dissimilar, and the case does not announce any doctrine that might not be granted, and yet leave this case a proper one for a jury, as, in our opinion, it was, on the issue of negligence.

So

2. Was appellant guilty of such want of care as defeats her recovery as a matter of law? On the facts set forth-and they are undisputed-we cannot so hold. The place was dark, and while she knew of the location and character of the obstruction, and, being not forgetful at the time that she was in proximity to it, made conscious effort and intended to avoid it, yet it was clearly a question for the jury whether she, in the confused surrounding circumstances, acted with the prudence of a reasonable person while and in proceeding along that sidewalk at that time. The danger was not known to her as so obvious and glaring as to compel her to cease the use of the sidewalk and ake to the street or to the other side; and, if it be allowed that the city was negligent, I cannot be contended that it had the right to piace upon appellant the hard necessity of an absolutely infallible judgment in the darkness. The following cases, with many Lore, support this view: Graney v. St. Louis, 141 Mo. 180, 42 S. W. 941; Flynn v. Neosho, 114 Mo. 568, 21 S. W. 903; Loewer 7. Sedalia, 77 Mo. 431. The case, then, was properly sent to the jury on the issue of due are in appellant, and the jury had substantal evidence upon which to base a finding that due care was exercised.

3. But it is stoutly contended by respondent that on all the facts of the case the jury should have found for respondent, and that a dollar verdict in substance and effect

amounts to that, merely taking the peculiar form it did out of regard for appellant on the question of costs. "Raking in the dead ashes of antiquated cases," to borrow the animated language of Chancellor Kent in discussing the earlier cases pertaining to the rule in Shelley's Case, it may be found that a notion once prevailed that in an action founded in damages sounding in tort the court might set aside a verdict excessively great as indicating passion, prejudice, or misconduct on the part of a jury, but would not meddle with a verdict immoderately small. This doctrine was illogical, and, being based on no substantial reason, is exploded. The true rule seems to be that a court with great hesitation will invade the provinces of a jury and interfere with a verdict for damages sounding in tort for personal injuries, crim. con., seduction, slander, libel, and other cases; especially where malice is an element, and smart money or exemplary damages are allowed. But judges have never renounced their right, as an element in the admistration of the law, to set aside a verdict either excessive in bigness or ridiculous in littleness, where the result reached shocks the understanding, and cannot be fairly justified on any hypothesis except misconduct or prejudice or willful disregard of instructions. In arriving at a conclusion, however, the presumption is in favor of the good conduct of the jury, and therefore, if, on the whole record, the case preponderates in favor of the defendant, or is evenly balanced in the scales, or where, as in a case of assault, there was strong provocation, and where, as in case of slander, etc., there were facts tending to prove mitigation of damages, the courts have refused to interfere with nominal verdicts, although on first blush they may appear illogical. It would serve no useful purpose to collate the cases, or undertake to distinguish them, for they abound in nice refinements, and, after all, each case depends upon its own merits, and cannot be settled offhand on a mere general rule. The various propositions asserted above may be found discussed and applied in Weinberg v. Ry. Co., 139 Mo. 286, 40 S. W. 882; Haven v. Ry. Co., 155 Mo. 216, 55 S. W. 1035; Dowd v. Westinghouse Air Brake Co., 132 Mo. 579, 34 S. W. 493; Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74, 3 Am. St. Rep. 557; Leahy v. Davis, 121 Mo. 227, 25 S. W. 941; Watson v. Harmon, 85 Mo. 443; Gregory v. Chambers, 78 Mo. 294; Pritchard v. Hewitt, 91 Mo. 547, 4 S. W. 437, 60 Am. Rep. 265; Boggess v. Ry. Co., 118 Mo. 329, 23 S. W. 159, 24 S. W. 210; Goetz v. Ambs, 22 Mo. 170; Fairgrieve v. City of Moberly, 29 Mo. App. 141; Choquette v. Ry. Co., 152 Mo. 257, 53 S. W. 897.

In Pritchard v. Hewitt, 91 Mo., loc. cit. 550 et seq., 4 S. W. 437, 60 Am. Rep. 265, after quoting approvingly the reasons for the general rule of noninterference from Graham and Waterman on New Trials, to the effect

that: "The reason for holding parties so tenaciously to the damages found by the jury in personal torts is that in cases of this class there is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of a jury governed by a sense of justice.

* To the jury, therefore, as a favorite and almost sacred tribunal, is committed, by unanimous consent, the exclusive task of examining the facts and circumstances and valuing the injury and awarding compensation in damages. The law that confers on them this power and exacts of them the performance of this solemn trust favors the presumption that they are actuated by pure motives,

** and it is not until the result

of the deliberation of the jury appears in a form calculated to shock the understanding and impress no dubious conviction of their prejudice and passion, that courts have found themselves compelled to interpose"-Brace, J., speaking to the point, says: "Of course, it goes without saying that actions ex delicto, wherein the damages may be measured with some degree of certainty, are not within the rule, and that those cases where the damages, under the circumstances, are such as to shock the 'understanding,' and induce the conviction that the verdict was the result of either passion, prejudice, or partiality, are exceptions to this rule."

In Haven v. Ry. Co., supra, the court nisi set the verdict aside for inadequacy, and its action was sustained by this court. Marshall, J., discussing the matter now in hand, said: "In other words, where a jury has returned a verdict for nominal damages in a case where the plaintiff is not entitled to any damages, the verdict will not be set aside in the appellate court at the instance of the plaintiff."

When it is determined, as it must be in the case at bar, that there was persuasive evidence of the negligence of respondent city, and when it is determined, as it must be, that there was little or no evidence showing a want of care on the part of appellant, and that all the evidence in that behalf fell from her own lips, and, when fairly considered, does not show want of due care, and when the serious character of the injuries of appellant stands confessed, as here, it follows, we think, that the verdict of the jury in this case ought not to be attributed to a benevolent disposition on the jury's part toward appellant in the matter of costs, and as a finding for respondent city based on the substantial evidence, but must be attributed to whim and arbitrariness and a disposition to play fast and loose with the law and the substantial rights of appellant, and should be explained alone as the product of prejudice or some kindred motive.

Holding these views, we conclude the learned circuit judge erred in not sustaining appellant's motion for a new trial, and therefore the cause is reversed and remanded,

with directions to the lower court to set aside the order overruling appellant's motion for a new trial, to sustain that motion and grant appellant a new trial, and for further proceedings in the cause. All concur, except MARSHALL, J., not sitting.

STEVENSON et al. v. SMITH et al. (Supreme Court of Missouri, Division No. 1. June 15, 1905.)

1. RESULTING TRUST-EVIDENCE-SUFFICIENCY.

In a suit by heirs to declare and establish a resulting trust in land, evidence held to show that defendant purchased the land partly with money furnished by plaintiffs' intestate, taking the title in his own name, and that intestare had, and died with, an interest therein corresponding to the amount of her payment. 2. SAME.

Where land is purchased by one in his own name with money of another, a resulting trust is created by implication of law, which follows the ownership of the money; and where only a part of the purchase money is furnished by the beneficiary the trust is for a proportionate share of the land bought.

[Ed. Note.-For cases in point, see vol. 47, Cent. Dig. Trusts, §8 102, 111.]

3. LACHES-DEFENSE.

The court will refuse to apply the doctrine of laches to dealings of an old mother with her son, who was her confidential business manager, and with whom she resided, except in a pronounced case; and, not being allowable as a defense against her, it may not be available against her heirs suing timely on her demise.

[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, §§ 191-195.]

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

Action by George Stevenson and others against William Smith and others. From a judgment for defendants, plaintiffs appeal. Reversed.

West & Bresnehen, for appellants, cited, inter alia, Richardson v. Champion, 143 Mo. 538, 45 S. W. 280; Rice et al. v. Shipley et al., 159 Mo. 399, 60 S. W. 740; Crawford v. Jones, 163 Mo. 577, 63 S. W. 838; Jones v. Elkins, 143 Mo. 647, 45 S. W. 261; Bowen v. McKean, 82 Mo. 594; In re Ferguson's Estate, 124 Mo. 574, 27 S. W. 513.

E. R. Stephens and A. W. Mullins, for respondents.

LAMM, J. Rebecca Smith died intestate in October, 1901, in Linn county, owning no property in her own name, and leaving the respondent William Smith, a son, and certain other sons and daughters, and the descendants of those dead, her only heirs at law. Certain of her surviving children, together with certain of her adult grandchildren, and certain minors of the same blood kin through their curator, brought this suit in August, 1902, against William Smith and certain minor nonresident grandchildren, and one Jackson Fyke and one J. C. Meacham, the object and general nature of which was to