Where an action for death, resulting from a collision between a wagon in which decedent was riding and a street car, was based on the negligence of the motorman in operating the car and in failing to keep a lookout ahead, a request to charge that defendant was not lia ble if decedent's death was caused solely by an unfortunate accident, without any explanation or definition of the term "accident," was properly refused as misleading. [Ed. Note. For other cases, see Trial, Cent. Dig. 489; Dec. Dig. § 219.*] 10. TRIAL (§ 260*)-REQUEST TO CHARGE-IN STRUCTIONS GIVEN. 16 feet in length extended from the floor to the street at the curb. Down this runway vehicles were driven in leaving the barn. Indiana avenue was 40 feet wide, and the east track of defendant's car line was 221⁄2 feet from the barn entrance. When Coontz, the stable hand, had harnessed the horse to the wagon, Hosman took the driver's seat and, with the boy either sitting beside him or standing in the wagon behind and holding to the seat, drove down this runway to the street. The wagon had almost cleared the track when a north-bound street car struck the rim of the left rear wheel, overturning the wagon and injuring the boy. downgrade on Indiana avenue, and at a From Twenty-Sixth street north it was point 25 feet north of said street and 198 feet south of the livery barn was a "safety stop," which required all north-bound cars to make a stop at that point before proceeding further. The negligence charged was that the car was being run at a dangerous rate of speed in excess of 20 miles per hour and in violation of an ordinance limiting the speed to that rate, also that no safety stop was made at the point required, and that the operator of the car saw, or by the exercise of ordi Where an instruction that the burden was on plaintiff to prove defendant's negligence and that it caused decedent's death by a preponderance of the evidence, viz., by the greater weight of the credible testimony in the case, was given, there was no error in refusing to charge that by burden of proof was meant that the facts and circumstances in behalf of plaintiff must be so clear and strong as to admit of no other reasonable conclusion than that dece-nary care could have seen, deceased in a dent's death was caused by defendant's negli gence. [Ed. Note.-For other cases, see Trial, Cent. Dig. $$ 651-659; Dec. Dig. § 260.*] Appeal from Circuit Court, Jackson County; Joseph A. Guthrie, Judge. Action by Fannie Ebert, as administratrix of William F. Steinbrink, deceased, against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed. John H. Lucas and T. B. Buckner, both of Kansas City, for appellant. Brewster, Kelly, Brewster & Buchholz and Ben R. Estill, all of Kansas City, for respondent. TRIMBLE, J. William Steinbrink, an unmarried minor, 15 years of age, whose parents were dead, was injured by one of defendant's street cars striking and overturning a grocery wagon in which he was riding. He died as a result of his injuries, and his executrix instituted this suit under section 5425, R. S. Mo. 1909. She obtained judgment, and defendant has appealed. perilous situation in time to have stopped or slackened the car with safety to the passengers and avoided the injury, but that he negligently failed to do so. The answer was a general denial and a plea of contributory negligence on the part of the driver and of deceased in driving rapidly from the barn to the track without looking or listening for the approach of a car and so close in front thereof as to render a collision unavoidable. Appellant's first point is that no proof was made that deceased was an unmarried minor. But the record shows to the contrary, so the point is valueless. [1] The next point is that deceased was guilty of contributory negligence in riding rapidly down the runway without looking or listening for a car. This renders it necessary to determine at the outset what negligence can be charged against the deceased as being contributory so as to bar a recovery. Under the peculiar circumstances of this case, the negligence that would bar a recovery must be that of the deceased himself, not that of Hosman, the driver. The deceased was a mere lad. He had no auThe lad had started to work that morning thority over the driver nor control over the for a grocer and, in company with Bert Hos- management of the horse or wagon. If man, a man who drove the grocer's delivery, Hosman drove the horse rapidly down the went to a livery stable to get the horse and runway, the boy, when he got into the wagwagon with which groceries were delivered. on, had no means of knowing that he would This stable fronted west immediately on the do so. He had never been there before. Aftproperty line on the east side of Indiana ave- er the start was made, the wagon had nue in Kansas City, Mo., and was 223 feet only 221⁄2 feet to go to reach the point of north of the intersection of said avenue with danger, and that down an inclined runway. Twenty-Sixth street. The stable floor was In going that short distance he had no ophigher than the sidewalk, and a runway | portunity either to warn the driver or to save himself. Even if the driver was negligent it cannot be imputed to the boy. In Shultz v. Old Colony Street Railway, 193 Mass. 309, 79 N. E. 873, 8 L. R. A. (N. S.) 597, 118 Am. St. Rep. 502, 9 Ann. Cas. 402, the question of imputed negligence is gone into thoroughly and the decisions of the various states upon this question carefully reviewed. It was held that if one, while being driven in a carriage as a guest or companion of the person driving, is injured by a collision on a public highway caused directly by the negligence of a third person, to which negligence on the part of the driver contributed, he may recover against the negligent third person in spite of the negligence of the driver, if personally he was in the exercise of all the care which ordinary caution requires. [2] It was also held that if such person has no ground to suspect incompetency or to anticipate negligence on the part of the driver, and the impending danger was SO sudden or of such a character as not to require or permit any act on the part of such person for his own protection, such person may recover from the negligent third person even though the driver was also negligent. This doctrine is peculiarly applicable to the facts in the present case. The boy had no reason to anticipate negligence on the part of the driver, and the danger arose so suddenly and under such circumstances as not to require or even permit the boy to do anything for his protection. The same doctrine is announced and followed in Missouri. Baxter v. St. Louis Transit Co., 103 Mo. App. 597, 78 S. W. 70; Zalotuchin v. Railway, 127 Mo. App. 577, 106 S. W. 548; Stotler v. Railroad, 200 Mo. 107, loc. cit. 143-148, 98 S. W. 509; Turney v. United Railways, 155 Mo. App. 513, 135 S. W. 93; Moon v. Transit Co., 237 Mo. loc. cit. 435, 141 S. W. 870, Ann. Cas. 1912A, 183. A careful reading of the record fails to disclose any evidence that at the time the wagon started, and afterward during its journey downward, the boy omitted to do anything for his safety that he could or should have done. The presumption that he used due care is in his favor, and the remarks in Stotler v. Railroad, 200 Mo. loc. cit. 146, 147, 98 S. W. 509, apply with force to him. There was no testimony as to what was done by either the boy or the driver in regard to the exercise of care on their part. Neither side, for some reason, put Hosman on the stand, who was the only one who could have testified as to what was done in this regard. At best, therefore, if there was any evidence showing negligence on the boy's part, or from which it could be inferred, the question whether the boy was guilty of contributory negligence which would bar a recovery would be one for the jury. Turney v. United Railways, 155 Mo. App. 513, 135 S. W. 93. | negligence, still, under the count based on the humanitarian doctrine, if the motorman saw, or by the exercise of ordinary care could have seen, deceased's perilous situation in time to have avoided the injury by the exercise of ordinary care and with safety to his car, and failed to do so, still defendant is liable. We are therefore clearly without authority to reverse the case outright. Especially so because the evidence is conflicting as to the rate of speed at which the horse and the car respectively approached the point of collision and as to when the motorman could have first seen the horse and wagon emerge from the barn. Coontz, the stable hand, says the horse went down in a walk and that the car was running at a speed of 30 or 35 miles per hour. The motorman says the horse came down rapidly, jumping and "lunging," and that his car was traveling from 10 to 15 miles per hour and was only 20 or 30 feet from the point of collision when he saw the horse emerge from the stable door. Coontz says he noticed the motorman when the car was 100 feet away. He says the horse at this time was going down the runway to the track, and that the motorman was not looking ahead of him but was gazing out the side window of his car at a woman in an adjacent yard and did not see the wagon until almost on it, and then he attempted suddenly to stop. The motorman denies this. The evidence of the other persons as to the speed of the horse and the proximity of the car to the stable door when the horse emerged therefrom could not have had much determinative force with the jury because their evidence shows they did not notice or see anything unusual until the sudden slackening of the car caused them to look, and at that time the car was about to strike the wagon. Of course at this time the horse was jumping and excited and moving rapidly because of his fear of being struck and also because at this time his driver was slapping him with the lines in the endeavor to get hurriedly out of the way. So that the testimony is practically limited to that of the motorman on one side and the man Coontz on the other as to what occurred at the all-important moment when to see and act on the part of either side would have prevented the tragedy. Whatever negligence there was, whether on one side or the other or on both, arose at this crucial moment and not at the instant of collision. If, when the car was 100 feet away, the motorman, by the exercise of ordinary care, could have seen the wagon was entering into a perilous situation and the car could have been safely stopped within 30 or 40 feet, or even slackened, so as to avoid the injury, and the motorman failed to do so because his attention was attracted elsewhere, then there was culpable negligence on his part for which the defendant is liable. Or, if his car was going 30 or 35 miles per hour, in violation of such rapid rate, it was enabled to pounce, eliminate the charge that the car did not unawares upon a traveler crossing the track stop at the "safety stop" as one of the causes with due care, believing, and having a right of the accident. The ground of this comto believe, that the car would not run at an plaint is that there was no evidence that the unlawful rate of speed, then defendant is car failed to make said stop. But, while liable. If what Coontz says is true, the jury there is evidence that it did make said stop, could have found the collision was caused there is also evidence from which the jury by defendant's negligence under either of could find that it did not stop. Hence the the above alternatives. If what the motor- refusal of said instruction was not error. man says is true, there was no negligence on the part of the company. Which of these two witnesses is telling the truth? Are we to answer that question, or is it for the jury to say? Of course there can be but one answer. The jury, under our system, is the final arbiter of disputed facts not in themselves wholly unreasonable or impossible. It is true there are some slight inaccuracies and perhaps discrepancies in Coontz's testimony but not enough to justify us in saying his testimony is destroyed. [4] Coontz's testimony was by deposition. At the taking thereof he was asked by defendant if he had not made a statement to defendant's claim agent concerning the accident and said that he had. He was then shown his signature to a paper and identified it as his but was not allowed to see or read the contents thereof which had been written by the claim agent, and which the witness signed without reading. Neither was his attention called to the fact that the statement contained an allegation that he (the witness) was in the harness room and did not see the accident. At the trial defendant offered in evidence this written statement to con tradict Coontz's statement in his deposition that he was standing in the door of the stable and saw the whole occurrence. The paper was properly excluded as the attention of the witness was not called to the inconsistent statement therein. The witness was not a party to the suit, and, before he could be contradicted by the introduction of a written inconsistent statement, a foundation should have been laid by calling his attention thereto and giving him an opportunity to explain it or correct himself. Wigmore on Ev. § 1025; Ely-Walker Co. v. Mansur, 87 Mo. App. 113. The cross-examination of this witness was not at the trial but at the time of taking his deposition, and neither the witness nor counsel for the other side were permitted to see the paper or to know what particular contradictory statement was contained therein. Hence at the trial there was no opportunity to place the witness back on the stand and give him a chance to explain such contradictory statement. It was known at the time of taking the deposition that the witness would not be present at the trial, and therefore it was incumbent on the party holding the impeaching paper to call the witness' attention to the contradictory statement therein at that time, as that was the only time when it could be explained. Complaint is made of the refusal of de [5] Defendant's instruction B was also properly refused since it told the jury that excessive speed of the car would not authorize a recovery unless it was the sole cause of the injury. Excessive speed of the car did not have to be the sole cause of the collision. If such speed, combined with the failure of the motorman to keep watch and stop or slacken the car, caused the collision, defendant would be liable. [6] Defendant prayed instruction C, which was refused, and error is claimed. The instruction is as follows: "Although the jury shall believe from the evidence the car in question was running at an excessive and unlawful rate of speed and struck the wagon in which deceased was riding, if they shall further believe from the evidence in the case the driver of the wagon in which deceased was riding and also said deceased went upon said track without looking or listening for an approaching car, and that the motorman of said car could not by the exercise of ordinary care have stopped or slackened the speed of the car after he saw, or by the exercise of ordinary care could have seen, deceased in a position of imminent peril, then you will find a verdict for the defendant.” This instruction does not clearly and correctly differentiate between the negligence of the driver and the boy but is so worded as to lead the jury to believe that the driver's negligence should be considered along with that of the boy's, and that the boy was in some way connected with and affected by the driver's negligence. But, unless the boy was himself negligent, there was no contributory He had a right to asnegligence in the case. sume when he got into the wagon and started down the incline that, if a car approached, it would do so at a lawful and not an unlawful rate of speed. He had no means of guarding against the approach of a car at an excessive speed and no opportunity of keeping off the track after its excessive speed could have been discovered nor of anticipating negligence on the part of the driver. Nor can contributory negligence be inferred against him because the horse may have been driven rapidly down the runway by Hosman, as testified to by the motorman. The distance the wagon had to go to get on the track was only 221⁄2 feet, and that down an incline. In going that short distance the boy would have no opportunity to save himself or to warn the driver after they had started. And when the start was made he had no opportunity to know in close proximity to an approaching car, nor | fore, that the speed of the car and the concould he do anything to prevent it. As said duct of the motorman prior to the emergence above, the boy could not anticipate negligence of the horse from the barn were "wholly imon the part of the driver or the motorman, material questions." and he could not, under the circumstances, save or protect himself after the danger became apparent. [7] The presumption is that the boy acted with due care, and there is nothing in the evidence or the circumstances from which it can be inferred that he did otherwise. He was leaving a building down an inclined runway from which he could see a car approach in time to keep out of its way if it was going at a lawful rate of speed but not if it was going at an excessive rate. If there is no evidence from which it can be inferred that the boy was himself guilty of contributory negligence, and he was caught on the track by reason of the swiftness of the car in rushing upon him at an excessive speed, then such speed was the culpable cause of the injury, and the defendant is liable whether he had time to stop after he saw the situation or not. In such case the effect of the instruction, worded as it was, would be not only to confuse the jury as to the facts from which they could infer contributory negligence against the boy but it would also eliminate excessive speed as one of the culpable causes of the collision. The case of Schmidt v. Railway, 191 Mo. 215, 90 S. W. 136, 3 L. R. A. (N. S.) 196, does not in any way militate against this view. In that case the circumstances and the sworn testimony both were such as to overturn the presumption of due But in the case we are now considering, not only is there no evidence to the contrary, but the facts show that, on account of his situation, deceased had no means of guarding against the approach of a car at excessive speed and no opportunity of keeping off the track after its excessive and dangerous speed could have been discovered. The instruction, therefore, was properly refused. [8] The same is true of defendant's refused care. [9] Defendant's instruction saying that defendant was not liable if the death was caused solely by an unfortunate accident, if it had any place in the case, was misleading since there was no explanation or definition of what was meant by the term "accident." Again, the instruction was not applicable to the facts in the case as it ignored the real issue, namely, the presence or absence of care on the part of defendant. It was therefore properly refused. Zeis v. Brewing Ass'n, 205 Mo. loc. cit. 649, 650, 104 S. W. 99. [10] An instruction was also refused defining burden of proof as meaning that "the facts and circumstances in behalf of plaintiff must be so clear and strong as to admit of no other reasonable conclusion than that the death of deceased was caused by the negligence of defendant." The court refused this and gave the usual instruction in such cases that the burden of proof was on plaintiff, and he must establish defendant's negligence, and that it caused decedent's death, by a preponderance of the evidence, and by that is meant the greater weight of the credible testimony in the case. This was a sufficient instruction on the matter. The judgment is affirmed. All concur. ADAMS v. METROPOLITAN ST. RY. CO. (Kansas City Court of Appeals. Missouri. June 30, 1913.) 1. NEGLIGENCE (§ 119*)-PROOF. Where plaintiff does not allege negligence generally, but specifies particular negligence, he must prove the particular negligence alleged. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 200-216; Dec. Dig. § 119.*] 2. CARRIERS (§ 320*)-PASSENGERS-INJURIES -JURY QUESTION-NEGLIGENCE. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.*] In an action against a street car company instruction E. It declared that the speed the car while holding to a rod on the door from for injuries to a passenger by being thrown from at which the car was moving and the conduct the vestibule to the street, by the door becomof defendant's motorman prior to the starting ing unfastened from the end of the car, and of the wagon out of the barn were wholly im- swinging shut across the steps, whether defendant was negligent in having the door unsecurematerial questions if the car was runningly fastened back held for the jury. less than 20 miles per hour. But the evidence of misconduct on the part of the motorman also discloses that at that time the horse had emerged from the barn. Besides, the speed of the car and the conduct of the motorman immediately before the horse emerged would tend to throw some light on its speed and the conduct of the motorman immediately after or at the instant the horse emerged. Even if the car was running less than 20 miles an hour, yet if the motorman was not looking ahead, but had his attention attracted elsewhere, there would be culpable negligence for which defendant would be liable unless deceased was guilty of contributory negligence. It could not be said, there 3. NEGLIGENCE (§ 134*)-PROOF. [Ed. Note.-For other cases, see Negligence, Cent. Dig. §§ 267-270, 272, 273; Dec. Dig. § 134.*] 4. CARRIERS (§ 320*)-PASSENGERS-INJURIES -JURY QUESTION-CAUSE OF INJURY. In a street car passenger's action for injuries claimed to have been caused by being thrown from the car by the door from the vestibule to the street swinging shut while plaintiff had hold of a handhold attached thereto, whether plaintiff was thrown off while standing on the platform, or was attempting to jump from the car while it was in motion, and fell because of the unusual weight placed on the door, held a jury question. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315–1325; Dec. Dig. 320.*] 5. DAMAGES (§ 131*)—PERSONAL INJURIES— EXCESSIVE DAMAGES. Evidence in a street car passenger's action for personal injuries held to show that a verdict for $2.000 was excessive, and should be reduced to $1,500. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. § 131.*] Appeal from Circuit Court, Jackson County; Walter A. Powell, Judge. Action by Charles Adams against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial. John H. Lucas, of Kansas City, and L. T. Dryden, of Independence, for appellant. Kimbrell & White, of Kansas City, for respondent. a plea of contributory negligence. Defendant introduced testimony tending to show that plaintiff was seated in the car, and suddenly jumped up, ran out to the platform, seized the rod in question, and swung his body off the car in an attempt to alight while the car about six miles an hour; that the great was in the middle of the block and going weight and swing of his body pulled the door loose from its fastening, and it thereupon swung outward, causing him to fall. The jury found a verdict for plaintiff, and assessed his damages at $2,000. [1, 2] The two points relied upon by defendant, are, first, that plaintiff failed to prove the negligence charged in the petition and, second, that the verdict is excessive. As to the first point, defendant's position is that the plaintiff does not rely on a statement of general negligence, but, having chosen to specify particular negligence, he must prove that negligence, or fail in his case. This is no doubt a correct rule. But does it apply to this case, or, if so, is there an entire failure of proof as to the specific negligence charged? Defendant's theory is that the specific allegation of negligence is "in insecurely latching and fastening the door," and that, as there was no testimony given by any witness who says he saw or examined the door, and found the latch defective or insecurely fastened, therefore there is no evidence whatever that it was, through negligence, insecurely latched or fastened. But this overlooks the reasonable and natural inference which the jury are entitled to draw from the facts that are shown. The hand TRIMBLE, J. Plaintiff was a passenger upon defendant's north-bound street car proceeding along Main between Twelfth and Eleventh streets, in Kansas City, Mo. He alleges that he was standing in the rear vestibule, and, after notifying the persons in charge that he desired to alight at Eleventh street, went to the edge of the vestibule, and stood near the steps leading from the car, waiting for it to stop at Eleventh. The door of the car leading from the vestibule to the street was one that folded in the middle, and, when folded, swung on hinges at the south-hold was put there for the use of passengers east corner of the car around against the end of the car, and was there fastened or held in place by a hook over the door. Across this door, thus folded and in place, was a brass rod or handhold fastened to the door just below the glass therein, which rod was for the use of passengers in boarding, or alighting from, the car. Plaintiff claims that while standing thus at the edge of the platform, waiting for the car to stop, he took hold of this rod; that the catch or fastening which held the door in its place against the end of the car gave way, allowing the door to swing around toward its place when closed, and plaintiff, having hold of said rod, was suddenly precipitated from the car to the ground, fracturing a bone on the point of his shoulder, and otherwise bruising and injuring him. The petition specified the negligence thus: "That, as plaintiff stood in the position aforesaid, grasping said handhold, said door, through the negligence of defendant in insecurely latching and fastening it, became unlatched, unfastened, and loosed, so that said door swung outward toward the exit, and plaintiff was thereby thrown, hurled, and permitted to fall to the street," etc. The answer contained a general denial and in steadying themselves, and to assist them in boarding and alighting from the car. Its value as a means of safety lay in its ability to remain in place. If it fails to do this, and comes loose when put to the use for which it is intended, then it ceases to be a help, and becomes a trap to catch even the wary and most careful. The very fact that it came loose is some evidence that it was insecurely latched or fastened, and, if it was not securely latched or fastened, then it was negligence to latch or fasten it in the manner in which that act was done, since the duty of the defendant, as a carrier of passengers, was to fasten it so that it would not come loose when used in the manner for which it was intended. There was evidence that afterwards when it was properly and securely fastened it did not come loose when tested. But, under the test over which this case arises, it did come loose. Consequently this fact is some evidence to show that it must have been insecurely, and therefore negligently, fastened, or it would not have come loose. [3] The case of Blanton v. Dold, 109 Mo. 64, 18 S. W. 1149, is excellent authority for the position here taken. That case was |