are cited in support of this, chiefly Forbes v. Dunnavant, 198 Mo. 193, 95 S. W. 934, and Bowen v. Railway Co., 95 Mo. 268, 8 S. W. 230. But those cases are without application. If a master supplies a mass of material, some good for one part or purpose in a structure and some for another, and the servants make selections from this, their negligence in doing so will be the acts of fellow servants. But, if a foreman in charge of certain work requiring material or appliances himself selects the appliance as in this case, it is the act of the master himself. Here the chain was selected by the foreman and had been placed around the drum of the engine under the foreman's orders before deceased came to the work. The cases cited by defendants are construed and distinguished by the Supreme Court in Combs v. Construction Co., 205 Mo. 367, 104 S. W. 77, and Kennedy v. Gas Light Co., 215 Mo. 688, 115 S. W. 407, and by us in Zellars v. Light Co., 92 Mo. App. 107, and by the St. Louis Court of Appeals in Gale v. Mill Co., 159 Mo. App. 639, 140 S. W. 77. [7] The trial court was liberal with defendants in instructions. The facts have been found against them in the light of every legal phase that could be advanced in their behalf. Much of the argument on this appeal has been drawn from the basis of evidence in behalf of defendants, whereas, on a demurrer, we must assume that evidence as discredited, and that for plaintiff, with all reasonable inferences, left standing as the facts. The judgment will be reversed, and the cause remanded, with directions to enter judgment for the plaintiff for the amount of the verdict, less the remittitur. All concur. IRWIN v. KANSAS CITY et al. (Kansas City Court of Appeals. Missouri. June 30, 1913.) 1. DEPOSITIONS (§ 61*)-PRESENCE OF PARTIES -NECESSITY. The deposition of a defendant was admissible against a codefendant, though it was not present when the deposition was taken, if it had notice of the taking thereof. [Ed. Note. For other cases, see Depositions, Cent. Dig. & 128; Dec. Dig. § 61.*] 2. MUNICIPAL CORPORATIONS (§ 819*) — Ac TIONS-EVIDENCE-NOTICE. In an action for injuries caused by falling into a coal hole in the sidewalk, evidence that the hole was opened "some time in the morning" on a warm summer day for the purpose of giving air to employés working in a basement, and that it had been open in the daytime prior to that day, justified the inference that it was opened early in the morning, and was sufficient to require the city to show that it was not opened till later if such was the fact. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1739-1743; Dec. Dig. § 819.*] In an action for injuries caused by falling into a coal hole in the sidewalk, the petition alleged that the lid was off and the hole negligently covered. Defendants' witnesses testified that in the hole there were boards, bound together with wire. Plaintiff testified that when her foot struck the boards a loose coil of wire rolled into the street. The court charged that securely covered with loose boards and a coil if the hole was negligently left unsafe and inof wire, if the covering did not render the sidewalks reasonably safe, and if plaintiff while using ordinary care fell into the hole and was injured, she could recover. Held, that the reference to the coil of wire did not submit an issue not included in the petition; the issues being whether the hole was securely covered, and whether the sidewalk was reasonably safe for travel. caused by falling into a coal hole, an instrucIn an action against a city for injuries tion that the verdict could be against the city only in the event that it knew, or by the exercise of ordinary care could have known, of the unsafe condition in time to have made it safe before the accident, sufficiently informed the jury that the city was entitled to reasonable time to remedy the defect, especially as all that was required to remedy the defect was to replace the cover on the hole. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1758-1762; Dec. Dig. § 822.*] 5. MUNICIPAL CORPORATIONS (§ 821*) — AcTIONS-QUESTIONS FOR JURY. Where a coal hole in a business center of a city had been open for purposes of ventilation from some hour in the morning till 1:30 in the afternoon, and had been open for the same purpose before that day, it was a question for the jury whether the city had a reasonable time in which to learn of the defect and remedy it. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 1745-1757; Dec. Dig. § 821.*] 6. APPEAL AND ERROR (§ 1170*)-REVERSALIMMATERIAL ERRORS. Under Rev. St. 1909, § 2082, providing that the appellate courts shall not reverse a judgment unless they believe that error was committed materially affecting the merits of the action, a judgment will not be reversed for a technically erroneous instruction which could not have misled the jury. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.*] Appeal from Circuit Court, Jackson County; T. J. Seehorn, Judge. Action by Lottie Irwin against Kansas City and others. From a judgment for plaintiff, the City appeals. Affirmed. Andrew F. Evans, Jas. W. Garner, and Francis M. Hayward, all of Kansas City, for appellant. Chapman & Hanger, of Kansas City, for respondent. TRIMBLE, J. The plaintiff sued a partnership and the city to recover damages caused by stepping into a coal hole in the competent against the city unless the city sidewalk on the south side of Twelfth street had no notice of the taking of the deposinear the southeast corner of Twelfth and tion. The presumption is in favor of the Walnut in Kansas City, Mo. This coal hole correctness of the ruling of the trial court, was near the center of the sidewalk and in and we will treat the case as if there is no front of the business house of the defendant testimony in the record other than the tespartnership. It had for a cover an ordinary timony of Mrs. Shields, who said the hole iron lid, but the partners used the basement was opened "some time in the morning," as a room for dish washing, and were in the but she did not know the precise hour, and habit of removing this lid each morning and that it was open during the daytime prior leaving it off during the day to let air into to the day of the accident. Inasmuch as it the basement. Plaintiff testified that, at the was opened to give air to the employés worktime she was hurt, this iron lid was off, and ing in the basement on a warm day in the the hole was covered with loose boards on hot summer time, we can assume that it must which was set a spiral wire frame, or basket have been opened early in the morning, Such without bottom, not fastened in any way. an inference is reasonable, or at least was She testified that she did not know the hole sufficient to render it incumbent upon dewas there, that many persons were passing fendants to show that it was not opened till that point, and that when she met some later, if that was the fact. pedestrians on the street at that point their presence prevented her seeing the hole, and when she attempted to pass these people her right foot struck the boards, which easily moved to one side, causing the wire to roll off into the street and her right foot and leg to go down into the hole, throwing her violently to the pavement and seriously injuring her. The partnership defendants in their testimony admitted that the hole was there, that plaintiff fell in, that they had removed the regular lid for ventilation, but that the hole was protected by an arrangement of boards resting horizontally across the hole with perpendicular boards sticking down into the hole and extending about two feet above the sidewalk; the whole so securely bound together with wire as to constitute a complete cover for the hole and rendering it impossible for plaintiff to fall into the hole and be injured thereby. Nevertheless the fact cannot be gainsaid that plaintiff did fall therein and was injured. [1, 2] The regular lid for the hole was not defective in any way, and was there where it could have been replaced in a moment's time, and was usually put on at night. The hole was round and about 18 inches across. There was testimony that the lid was taken off in the morning, and, in addition to this, one of the partners testified that they usually took it off about 7 o'clock in the morning, and that he did so at that hour on the day in question, which was the 30th of June, 1908. This evidence by the partner as to the precise hour it was taken off was excluded as against the city, but was admitted as against the partnership. We presume that the reason it was excluded was because the city was not notified of the taking of the deposition. The objection to the evidence of the partner was simply on the ground that the city was not present when the deposition was taken. Objections to conversations between plaintiff and the partner had been sustained as to the city, and, when the partner's deposition was read, the court sustained an objection to it as to the city. The tes The point in the street in question is one of the busiest and most crowded and traveled parts of the city. The Twelfth street car lines and the Walnut street car lines cross at that corner, and there is constant passing back and forth on the sidewalk at the place of the accident. The injury occurred at 1:30 P. m. The jury found for plaintiff, and against all the defendants, in the sum of $1,000. Only the city has appealed. The [3] There are three errors complained of. The first is that plaintiff's third instruction tenders an issue not included in the pleadings. This contention is based on the fact that the petition alleges that the lid was off and the hole negligently covered with boards laid loosely across, while the instruction included, in addition to the boards, a coil of wire. But we do not think a new issue was thereby tendered. Of course, the instruction must not contain an issue not included within the pleading. But the issue was whether the coal hole was negligently permitted to remain open or imperfectly covered so as to be dangerous to passing pedestrians. defendant partners had testified that in the hole there were upright as well as horizontal boards, and that all were bound together with wire. The plaintiff testified that she saw a coil of wire, like a wire basket with an open bottom, roll into the street when her foot struck the boards, but that it was merely sitting on the boards and in no way fastened thereto. The instruction in substance told the jury that if said hole was negligently left unsafe and insecurely covered with loose boards merely laid down over the hole and not in any way secured "and with a coll of wire set on said boards," and that said covering did not render said sidewalk reasonably safe for travel, and that plaintiff, while using ordinary care and not knowing of said condition, fell into said hole and was injured, then she was entitled to recover. The addition of the words "and with a coil of wire set on said boards" did not add a new issue. The issue was whether or not whether with boards, wire, or anything else, and whether the sidewalk was reasonably safe for travel. the Supreme Court approved an instruction containing these words: "And in a muchtraveled street, if a defect existed which the jury believe from the evidence was easily to be seen, the existence of such a defect for only a few hours might justify the jury in the inference of knowledge on the part of the city of such defect, or that by reasonable diligence it could have acquired such knowledge in time to have repaired it before the accident." The objection is not well taken and the case was sufficient to go to the jury. [6] Defendant's third and last objection is to plaintiff's instruction No. 1. The claim is that it requires the city to exercise a higher degree of care than ordinary care to keep its sidewalks reasonably safe for travel. We do not think the instruction does this. In fact, the instruction is not dealing with the care required of the city, but only with [4] The next point is that error was committed in plaintiff's instruction No. 4 because it did not inform the jury that the city was entitled to a reasonable opportunity, after having knowledge of the defect, in which to put back the cover or make the hole safe. The right of "reasonable opportunity" to properly cover the hole means nothing more than a "reasonable time in which to remedy the defect." Under the evidence in this case, the only remedy required was to replace the iron cover that was there, which could be done the moment knowledge of the insecure covering of the hole was received. It is not like a case where a defective condition must be repaired and a reasonable time must elapse to enable that to be done. But, even so, the instruction says that the verdict the right of plaintiff to presume, in the abcan be against the city only in the event that | the city knew, or by the exercise of ordinary care could have known, of the unsafe condition "in time to have made it safe before the alleged accident." In this case this is equivalent to saying the city must have a reasonable time to repair. Wright v. Kansas City, 187 Mo. 678, loc. cit. 693, 86 S. W. 452. The instruction is not open to the objection made, since the repair could have been done in an instant. [5] Nor can it be said that there was no evidence from which the jury could infer that the city had a reasonable time in which to learn of the defect and remedy it. The hole had been there for 20 years. And it had been used as a ventilator of the basement before that day. On that day it had been open from some hour in the morning till 1:30 in the afternoon at a spot in a business center of the city where there was a great deal of travel. Whether the defect has existed for such a length of time as to constitute negligence or justify the submission of that question to the jury depends much upon the surrounding circumstances. What might be negligence in not knowing of a dangerous walk at one locality would not be at another; but, if it is at a point where the activities of the city concentrate, the city is called upon to use increased care, and a less time would be required there than elsewhere. Carrington v. City of St. Louis, 89 Mo. 208, 1 S. W. 240, 58 Am. Rep. 108. No fixed rule can be established as to the exact length of time a defect must have continued to justify the presumption of knowledge in time to have remedied it before the injury occurred, but each case will depend on the facts peculiar to it. Such period would necessarily vary and depend on the conspicuity of the defect and the amount of travel upon or extent to which the street is used. Reed sence of knowledge to the contrary, that the street was reasonably safe. Wherever the care required of the city was mentioned in plaintiff's other instructions it was described as ordinary care, and the jury were told that the city was not an insurer of the safety of its citizens, nor required to keep its streets absolutely safe, but only to keep them in a reasonably safe condition. We do not think the instruction complained of dealt with the degree of care required by the city; but, even if it could be so considered by a critical and hair-splitting discrimination, it could not have misled the jury. And were we to reverse and remand the case on this ground we would be going contrary to section 2082, R. S. Mo. 1909. There are no objections going to the merits of the case, and, not finding any prejudicial error in the record, it is our duty to affirm the judgment of the trial court. It is so ordered. All concur. GILFILLAN et al. v. WELSH. stone at $1.90 per square yard, and, a balance [Ed. Note.-For other cases, see Sales, Cent. Dig. § 260; Dec. Dig. § 94.*] v. City of Mexico, 101 Mo. App. 155, loc. cit. Appeal from Circuit Court, Jackson Coun Action by R. S. Gilfillan and others against | went to figure the amount due on the acJ. E. Welsh. Jugment for plaintiffs, and count, appellant mentioned the matter of defendant appeals. Affirmed. bond to them and that they refused to give a bond, but did agree, as to the balance of $756 determined upon as due, that, if appellant would give them his note therefor, they would hold the same under the arrangement above mentioned. Clarence S. Palmer, of Kansas City, for appellant. Geo. M. Morris and W. W. Calvin, both of Kansas City, for respondents. TRIMBLE, J. Appellant was sued by respondents for $756 upon an account stated for stone sold and delivered to appellant and used in paving a portion of West Eighth street in Kansas City. Mo. The answer denied that it was ever agreed and determined that defendant remained indebted to plaintiff on account of said stone in the sum of $756 or in any other amount, but alleged that the stone was fully paid for and that defendant held a receipt in full therefor. At the trial appellant contended that he agreed to pay $1.75 per square yard for the stone instead of $1.90 as claimed by respondents, and that this difference in the cost made the difference of $756 sued for. But it was clearly shown in evidence the respondents sold appellant the stone at $1.90 per square yard, and that appellant paid respondents in cash the sum of $6,969.50, leaving a balance due of $756, and that this balance was settled upon and agreed to by the parties. The jury found for respondents in the sum of $756; consequently their finding was against appellant's contention that the stone was sold at $1.70 and was a finding that appellant had not paid said account in full, as claimed in his answer. It seems that, in his paving contract with the city, appellant was required to give a ten-year guaranty that he would keep the pavement in repair. The stone furnished by respondents to pave the street was a new and untried kind of stone, and, when appellant went to settle with respondents for the stone, he suggested that they give him a bond that the stone would last as they had said it would and thus save appellant from loss in case he was required at any time within ten years to repair on account of defective material. This was not mentioned until after the stone had been sold and delivered and the parties were engaged in settling for the same. Respondents refused to give a bond, but, when appellant paid them in cash all except $756, they agreed that, if appellant would give them his note for $756, they would hold it in lieu of the balance due on the account, and whatever stone appellant would have to replace under his guaranty respondents would credit on said note. So that said note would in this way act as a sort of security to appellant that the untried stone would last as represented. As shown above, however, this was not set up in the answer, but the claim was made that the stone was bought at a less price than $1.90 a square yard, and that at said less price the stone was fully paid for. Respondents admitted in their testimony that, when they It is the contention of appellant that, inasmuch as respondents admitted that, when the balance of $756 was agreed upon, they consented to accept a note for the same which they were to hold in lieu of cash as a sort of security to appellant during his ten years of guaranty, this created a special contract governing the terms of payment of the balance due on the contract and destroyed the implied obligation to pay the balance due on the account raised by the agreement as to such balance. This contention is based on the doctrine that: "Where an account is stated and as a part of the transaction there is an express promise to pay upon conditions different from that which otherwise the law would imply from the immediate adjustment of the account, such implied promise is excluded." 1 Cyc. 375. And although appellant did not raise any such issue in his pleading but claimed that the stone was fully paid for, yet, as respondents admit that they agreed to accept a note which would be held by them in lieu of the cash, therefore he claims there was no evidence to support the implied promise alleged in the petition, and consequently appellant's demurrer should have been sustained. This contention overlooks two very important things: First, that the stone was sold without any agreement to give a bond or allow a portion of the money due therefor to be held by appellant as security, and that the agreement as to the amount due on the account was not obtained by means of any consent on the part of respondents to allow the balance to be retained and a note given in lieu thereof. Second, that the agreement to accept a note was made on condition that appellant give them his note, and this condition was not complied with. Instead of giving his note according to the terms of the special contract in reference to the payment of the balance due on the account, appellant did not see fit to comply with respondents' repeated requests to settle the balance due. And, when at last respondents were compelled to sue for said balance, appeilant did not set up said special contract but denied the account, claiming it was fully paid. When the amount due on the contract was agreed upon, appellant paid all but $756, and it was agreed that this amount was due, but appellant wanted to retain this until it was seen that the stone was as agreed upon. Respondents agreed to this on condition that a note is given, but this condition is not complied with. When the amount due on the account was ascertained and agreed upon, the law implied an agreement to pay same, in the absence of a special agreement to accept a note. Appellant thereupon was required to comply with his part of said special contract by executing and delivering the note, or at least to do so within a reasonable time. He did not do so within that time, but, on the contrary, when sued defended on the ground that the debt was fully paid. The failure to execute the note within a reasonable time, and thereby call into being the special contract, left the one implied by law in full force and effect. The promise of respondents to accept anything in lieu of the cash due on the account was on the condition that appellant would execute to them his note, and, as that condition was never complied with, respondents are discharged from the operation of such promise even if there can be said to be any consideration for such promise. 9 Cyc. 641, 642. Hence respondents' admission that they did agree to accept a note, if appellant would give it, did not destroy the right to recover or show that there was no account stated. The judgment is affirmed. All concur. EBERT v. METROPOLITAN ST. RY. CO. (Kansas City Court of Appeals. Missouri. Oct. 6, 1913.) 1. NEGLIGENCE (§ 93*)-IMPUTED NEGLIGENCE -DRIVER OF VEHICLE. Where decedent, a lad of 15 years, was employed to assist the driver of a grocery wagon and, while riding in the wagon from a livery barn into the street on the first day of his employment, received fatal injuries in a collision between the wagon and a street car, he having no authority over the driver nor control over the horse or wagon, the driver's negligence, if any, could not be imputed to him, and he was liable only for his own negligence. [Ed. Note. For other cases, see Negligence, Cent. Dig. 88 147-150; Dec. Dig. § 93.*] 2. STREET RAILROADS (§ 117*) COLLISION WITH VEHICLE DEATH CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. In an action for death of a lad, employed to assist the driver of a grocery wagon, resulting from a collision with a street car as the wagon was being driven out of a livery barn into the street, the distance being 221⁄2 feet from the barn entrance to the track, whether decedent was guilty of contributory negligence which would bar a recovery was for the jury. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 239-257; Dec. Dig. 8 117.*1 trine, regardless of decedent's contributory negligence, if any. roads, Cent. Dig. § 219; Dec. Dig. § 103.*] [Ed. Note.-For other cases, see Street Rail4. WITNESSES (§ 388*) CONTRADICTION FOUNDATION. Where the testimony of a witness was taken by deposition and it was known that he would not be present at the trial, it was not a sufficient foundation for a contradiction to ask him if he had not signed a certain paper containing a statement made to defendant's claim agent, and to ask him to identify his sigtention to its contents and giving him an oppornature to such a paper, without calling his attunity at the time to explain the contradiction, if any. Cent. Dig. §§ 1233-1242, 1246; Dec. Dig. § [Ed. Note.-For other cases, see Witnesses, 388.*] 5. STREET RAILROADS (§ 118*) COLLISION WITH VEHICLE-CAUSE OF INJURY-INSTRUCTIONS. a Where decedent was killed as the result of collision between defendant's street car and a vehicle in which decedent was riding, a request to charge that excessive speed of the car would not authorize a recovery unless it was the sole cause of the injury was properly refused, since if such speed, combined with a failure of the motorman to keep watch and stop or slacken the car, caused the collision, defendant would be liable. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 258–269; Dec. Dig. § 118.*] 6. STREET RAILROADS (§ 118*) COLLISION WITH VEHICLE-DEATH OF OCCUPANT-IN STRUCTIONS. Where decedent, while riding with the driver of a wagon, received injuries from which he died as the result of a collision between a street car and the wagon, a request to charge that, though the car was running at an excessive and unlawful speed and struck the wagon in which decedent was riding, yet if the driver of the wagon and decedent went on the track without looking or listening for an approaching car, and the motorman, by ordinary care, could not have stopped or slackened speed after he saw, or by ordinary care could have seen, decedent in a position of imminent peril, then the jury should find for defendant was properly refused for failure to differentiate between the negligence of the driver of the vehicle and that of decedent, since unless he was negligent there was no contributory negligence in the case. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*] 7. STREET RAILROADS (§ 112*)-INJURY FROM COLLISION - CONTRIBUTORY NEGLIGENCE PRESUMPTION. Where a lad, employed to assist the driver of a grocery wagon, was killed in a collision between the wagon and a street car as the driver was taking the rig from a livery barn into the street, a distance of 221⁄2 feet, it should be presumed, in the absence of evidence to the contrary, that decedent was in the exercise of due care. roads, Cent. Dig. §§ 227, 228; Dec. Dig. § [Ed. Note.-For other cases, see Street Rail112.*] 8. STREET RAILROADS (§ 118*) - COLLISION DEATH OF TRAVELER-INSTRUCTIONS. Where, in an action for death of a lad from injuries sustained, while riding in a grocery wagon, in a collision with a street car as the wagon was being taken into the street from a livery barn, there was evidence that the motorman was driving the car at an illegal |