(232 S.W.) a perfect title, made perfect by the execution of the escrow agreement and the performance of its conditions and the delivery of the deed pursuant to the terms thereof. In the absence of an abstract of all the testimony we must assume that the testitestimony we must assume that the testimony heard by the court below supports the court's finding that the complaint was without equity, and the decree is therefore affirmed. (207 Mo. App. 233) street car into the city of East St. Louis at the time a mob was attacking negroes in such city, without her knowledge, resulting in injury to her, whether defendant had knowledge of the operation of the mob which attacked the car, or other mobs in the city at the time in question, in time to have warned plaintiff of her danger, and to have taken reasonable precaution for her safety and protection, held for the jury. 6. Trial 83 (2)-Objection to testimony as incompetent insufficient. An objection to a question asked a witness, "Object to that as incompetent," amounts WILLIAMS v. EAST ST. LOUIS & S. RY. CO. to no objection at all. (No. 16616.) (St. Louis Court of Appeals. Missouri. June 7, 1921. Rehearing Denied June 1. Carriers 24, 1921.) Appeal from St. Louis Circuit Court; Frank Landwehr, Judge. Action by Carrie Redmond Williams against the East St. Louis & Suburban Rail316(1)-Negligence not presum-way Company. Judgment for plaintiff, and defendant appeals. Affirmed. ed from mere happening of accident in case of mob attack on car. Where a carrier permitted a negro passenger to ride on its cars into a city where a mob attacked the car and injured the passenger, negligence of carrier will not be presumed from the mere happening of the accident. Holland, Rutledge & Lashly, of St. Louis, for appellant. Homer G. Phillips and Jesse L. England, both of St. Louis, for respondent. NIPPER, C. This is an action for damages against a common carrier for an alleged assault committed upon plaintiff on the second of July, 1917, while she was riding as a passenger on one of defendant's street cars in the city of East St. Louis, Ill. 2. Carriers 284 (2)-Duty of carrier to protect passenger from insult and injury stated. Where a carrier has permitted third persons to enter on its premises, or cars, and become passengers thereof, the carrier is required to exercise the utmost vigilance to protect the passengers from insult and injury arising from others who occupy similar relations with respect to the party injured, but a different rule prevails with respect to the carrier's liability for injuries to passengers who receive injuries from the acts of persons beyond the control of the carrier, and for which it is in no way responsible, in which case the carrier is only required to exercise ordinary care and vigilance to discover and prevent injury to pas-tacking, wounding, and killing members of sengers. 3. Appeal and error 930(1)—Evidence to be given every reasonable inference in favor of prevailing party. On appeal by defendant from a judgment in favor of plaintiff, the appellate court must regard the evidence offered on the part of the plaintiff as true, and every reasonable inference in his favor must be drawn from it. 4. Carriers 284 (2)—In view of mobs lynching negroes on carrier's lines held that it should have anticipated colored passenger would be ill treated. A carrier operating electric lines into East St. Louis at the time mobs were lynching negroes there should have anticipated that negress boarding the car out of the city, bound for the city, was likely to be subjected to tortures and ill treatment if brought into the city. 5. Carriers 320 (6)-Whether carrier should have anticipated injury to negress on electric car held for jury. 8 In an action by a negress against a carrier for damages for permitting her to ride in a Plaintiff in her petition alleges, among other things, that on the above-named date she became a passenger on one of defendant's cars from the city of Belleville, Ill., to the city of East St. Louis, aforesaid; that at the time she took passage on this car a mob or mobs were operating in the city of East St. Louis, and then and there engaged in at the negro race; that at the time she became danger her life, she being a negro; that de- The petition further avers that the injuries were caused and occasioned by the negli For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes gence of defendant in failing to warn plain-¡over the city, or to pick them up anywhere; tiff of the danger of entering said city, whereby plaintiff would have averted said danger, and in negligently carrying her into said city, fully knowing the danger, without taking precautions to protect her from the acts of the mob. The answer was a general denial. Upon a trial before the court and a jury plaintiff recovered judgment for $2,000. Defendant appeals, urging as grounds for reversal the failure of the court to give a peremptory instruction for defendant; as well as objections to certain instructions given and refused. that the conditions which he observed were prevailing generally at about 10 o'clock in the morning; that the offices of the defendant company were located in the business section of the city, and the crowds were general all along there that morning. At 20 minutes to 12, and after he had been sending negroes away from some construction work, he went to the office for instructions, and there met Mr. Parsons, the general manager, and Mr. Meyers, the general superintendent, of the defendant company; that Mr. Parsons asked him how it looked, and, to use his own language, he says, "I told him it looked awfully bad, and told him I had notified some of the conductors and motormen and also had kept the crowds away from the cars;" and he asked if anything happened to the about;" and he said, "That is good." He then went to Mr. Neilson, who was the claim agent, and told him what he had been doing. He says Neilson told him to "cut that out," as that was a matter to be attended to by the transportation department. It further appears from his testimony that the defendant company has means of communicating with its various crews along the line by telephone, and that there is no difficulty in reaching the crews at any place along the line. He says there were some members of the state militia present, the first contingent arriving between 11 and 12 o'clock on that day. Plaintiff resides in Madison, Ill. On the morning of July 2, 1917, she left her home at that place, and took an electric car to East St. Louis at about 9 a. m. After reaching East St. Louis she changed cars for Belle-cars; and I said, "Not that I know anything ville, and reached there between 11 and 12 o'clock. She was accompanied by another negro named Kendrick. After transacting such business as she had to transact in Belleville, she started back to East St. Louis shortly after 12 o'clock. When the car in which she was riding reached State and Collinsville streets it stopped, and members of a mob, armed with guns and clubs, boarded this car, stripped her of her clothing, beat her, and dragged her from the car. At the time she left Belleville for East St. Louis she had no knowledge of any riotous conditions in the city where she received her injuries. No question being made in this court as to the amount of the verdict it is unnecessary to set out in detail the nature and character of the injuries which she received. At the time she became a passenger on defendant's street car no warning was given her of any mobs assembling in East St. Louis, or of any expected or anticipated violence or feeling toward members of her race, and she knew nothing about any such condition until the mob surrounded the car. Witness Kendrick testified for plaintiff, and corroborated her in detail. From the testimony of the defendant's witnesses it appears that the attack made upon plaintiff was at about 1:10 or 1:15 p. m. The motorman and conductor on the street car in which plaintiff was riding said they knew nothing about the mob until they an into it, when some one with a gun ordered the conductor to stop the car, and from some witnesses it appears that there were from 1,500 to 2,000 people in this mob. Other witnesses testify that they noticed no riotous conditions in the city until about the time of this attack. [1, 2] In cases of this character negligence will not be presumed from the mere happening of the accident, and the rule with respect to the duty which the carrier owes the Richard Brockway, who was at that time an assistant claim agent for the defendant, and who had been for eight years prior to the date of the alleged assault, testified that on the date in question he was discharging his duties, which were to investigate and settle claims, attend to court cases, and keep down any trouble on the cars; that he was acquainted with all the lines of the defend-passenger is that, in cases where the carrier ant company; that it was about 121⁄2 miles has permitted third persons to enter upon from Belleville to the place in East St. Louis its premises, or cars, and become passengers where plaintiff was assaulted; that it thereof, the carrier is required to exercise took the street car about 45 minutes to run the utmost vigilance to protect the passengers that distance; that there was a great deal of from insult and injury arising from others excitement in the city that morning caused who occupy similar relations with respect to by the killing of some officers the night be- the party injured. A different rule seems to fore by some negroes; that he noticed this prevail with respect to the carrier's liability excitement during the morning, went down for injuries to passengers who receive intown, attended to some business for the com-juries from the acts of persons beyond the pany, and notified some of the conductors of control of the carrier, and for which it is in the cars not to carry any negro passengers no way responsible. In the latter case the (232 S.W.) carrier is only required to exercise ordinary care and vigilance to discover and prevent injury to passengers. Woas v. Transit Co., 198 Mo. 664, 96 S. W. 1017, 7 L. R. A (N. S.) 231, 8 Ann. Cas. 584; Railroad v. MacKinney, 124 Pa. 462, 17 Atl. 14, 2 L. R. A. 820, 10 Am. St. Rep. 601; C. & A. Railway v. Pillsbury, 123 Ill. 9, 14 N. E. 22, 5 Am. St. Rep. 483; Fewings v. Mendenhall, 88 Minn. 336, 93 N. W. 127, 60 L. R. A. 601, 97 Am. St. Rep. 519; Bosworth v. Union Railroad Co., 26 R. I. 309, 58 Atl. 982, 3 Ann. Cas. 1080. [3] Keeping in mind this rule of law, was defendant liable for injuries sustained by plaintiff in this case? In discussing this matter after verdict, we must not only re gard the evidence offered on the part of the plaintiff as true, but every reasonable inference in her favor must be drawn from it. The negligence charged in the petition is the failure of defendant to warn plaintiff of the danger of entering the city of East St. Louis, whereby she may have averted said danger, and in carrying her into the city, fully knowing the danger to her, without taking necessary precaution to protect her. Considering the evidence most favorable to plaintiff, we find that conditions were "bad,". as the term was used by the witness Brockway, early in the morning. Plaintiff had no knowledge of these conditions, being a stranger in the city. She left Belleville for East St. Louis at about 12:15 p. m. The evidence discloses that there was considerable excitement in the city of East St. Louis as early as 10:30 in the morning. A negro had been killed upon the streets not far from defendant's offices. Plaintiff left Belleville for East St. Louis about 35 minutes after the witness Brockway stated that he had visited the offices of defendant, and informed the general manager and the general superintendent as to what the conditions were, and the general manager asked if any of the defendant's cars had been injured. Belleville is only 12 miles away. Telephonic communication could be had at any time, and at almost any place along the line of the defendant railway, and, from the inquiries made as to the injuries to defendant's cars, the agents and servants of defendant must have known, even prior to this time, of the riotous conditions existing in East St. Louis. Brockway had been about the city most of the morning. He had been warning conductors and motormen not to take on any negro passengers, and from this evidence it would be a reasonable and fair inference to say that the defendant's agents and servants realized that it would be dangerous for members of the colored race to be riding upon its street cars. The motorman and conductor in charge of this particular car in which plaintiff was riding said they had no notice; but, if they did not, it was certainly due to the negligence of their superior officers, who did have knowl edge of the conditions, and made no effort to warn plaintiff, after they had such knowledge, of the dangers to which she would likely be exposed if she rode on the car on which she did ride, and at that time. If the defendant's agents and servants had not known of the conditions existing, and had unexpectedly run into this mob, then it could not be said that they should have anticipated what was to happen, and have kept a police force on the car in order to protect plaintiff from expected injuries from third parties. But the petition in this case seeks to recover for failure to warn, and failure to properly carry plaintiff and protect her, after knowledge on the part of the defendant. [4, 5] We think it was a question for the jury as to whether or not defendant had knowledge of the operation of this mob or other mobs in the city of East St. Louis, at the time in question, in time to have warned plaintiff of her danger, and to have taken reasonable precautions for her protection and safety. Certainly even ordinary care and prudence, had it been exercised by the defendant, would have prevented plaintiff from being exposed to the violence of this mob. Mobs always act without regard to law, and, under the circumstances of this case, a reasonably prudent person would have anticipated that plaintiff was likely to be subjected to the tortures and treatment which she received, if she was brought into the city of East St. Louis at that time. If she had known the situation as well as defendant, then we would be confronted with a different situation; but she had no knowledge of conditions, and there is substantial testimony in this record tending to show that defendant knew long before plaintiff became a passenger of such conditions, and even by the exercise of ordinary care in warning plaintiff could have prevented this unfortunate accident. We are of the opinion, therefore, that the court did not err in refusing to direct a verdict for the defendant. C. & A. Railway v. Pillsbury, supra. [6] Defendant objects to the action of the trial court in overruling the motion, offered by the defendant at the close of the evidence, to strike out that part of the testimony of witness Brockway in which he stated that he reported to the manager at 20 minutes to 12, on the morning of the assault, that conditions were awfully bad, and that he had noti. fied the motormen and conductors not to accept negro passengers. The question asked which brought forth this answer was: "Q. At what time was it known, if you know yourself, at what time was it known at the office that riots were prevailing in East St. Louis? A. I do. "Q. Tell the jury. Mr. Haid. Object to that as incompetent." No further objection was made, nor was any motion made to strike out the answer for any reason, until the close of the case. I to the tenant resulting from the negligent manThis objection practically amounted to no ner in which the repairs were made. objection at all, and there was no error in the trial court's refusal to sustain defendant's motion. Defendant further complains of erorr in the giving of plaintiff's instruction No. 1, but such objection is made to this instruction mainly on the theory that there was no evidence that defendant knew that any mobs were operating in East St. Louis; but what we have heretofore said disposes of this matter. The defendant, after knowledge of the conditions which existed in East St. Louis, not only failed to warn plaintiff, but received her as a passenger, and carried her into the heart of the city, where such mobs were congregated, without any protection whatever. Complaint is made of the refusal of the court to give certain instructions for defendant. We have examined the record with respect to these alleged errors, and all others urged by defendant. We think the law and the facts of this case sustain the verdict of the jury, and that the record is free from reversible error. 4. Trial 233 (3)-Instruction on contributory negligence not defective as referring to answer for the issue. An instruction that, upon the issue of contributory negligence of plaintiff raised by the answer, the burden of proof was on defendants, and that by burden of proof is meant the greater weight of the testimony, is not objectionable, as referring the jury to the answer to ascertain the issues involved as contributory negligence, it merely informing the jury that the issue was raised by the answer. 5. Trial 296(4, 5)-Instruction on contributory negligence not erroneous in view of others. Where another instruction stated in detail the issue of contributory negligence raised, the fact that plaintiff's instruction, charging that the burden of proving contributory negligence was on defendant, merely referred to it as having been raised by the answer, is not erroneous. 6. Landlord and tenant 169 (10) - Modification of instruction not erroneous. Where a tenant injured her hand on a protruding wire left in the course of repairing a water pipe in the bathroom, it was not improper The Commissioner recommends that the to substitute in an instruction that, if reasonajudgment be affirmed. PER CURIAM. The foregoing opinion of NIPPER, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. ALLEN, P. J., and BECKER, J., concur; DAUES, J., not sitting. PATTON v. EVEKER et ux. (No. 16651.) (St. Louis Court of Appeals. Missouri. 1. Landlord and tenant 169 (3)-Petition by In the absence of contract, a landlord is not bound to make repairs to rented premises. 3. Landlord and tenant 164 (3) Landlord is liable for negligence in repairs voluntarily made. Though landlord was not bound to make repairs on rented premises, yet, having voluntarily undertaken to do so, he is liable for injuries bly prudent persons could not foresee that plaintiff would probably be injured, defendant will not be liable, the word "anyone" for "plaintiff,” for the repairs should be reasonably safe so that anyone, including plaintiff, would do necessary work around the pipe without being injured. 7. Trial 192-Instruction assuming the fact of injury not erroneous. Where the fact of injury was practically conceded, and not controverted by any testimony, an instruction assuming fact of injury was not erroneous. 8. Landlord and tenant 169 (5)-Evidence of conditions four days after accident admissible. Where plaintiff, who injured her hand on wires left protruding on a pipe in bathroom after repairs by landlord, testified with detail as to the protruding wires, and that at the time they were examined by witnesses four days later they were in the same condition, testimony as to the condition of the wires at the time of such examination was admissible, there being no evidence that they had been changed. 9. Landlord and tenant 164 (3)-It is negligent for landlord to leave wires protruding from pipe in bathroom. Where, in the course of repairing a pipe in a bathroom, sharp copper wires were left protruding about a half inch at a place where, in the course of ordinary housecleaning, a person would be likely to strike against the same, the landlord must be deemed negligent. 10. Landlord and tenant 169(11) — Tenant not guilty of contributory negligence as matter of law in injuring her hand on sharp wires left unguarded. Where a tenant, in the course of her ordinary household duties in cleaning a bathroom, For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (232 S.W.) injured her hand on sharp copper wires left protruding after repair of a leak in a pipe, held that she could not, under the circumstances, be deemed guilty of contributory negligence as a matter of law. The petition then sets out the immediate treatment of the wound by a physician, and that the course and the resultant consequence of the infection was an almost completely maimed hand and arm; sets out the prior good health of the plaintiff, and the present Appeal from St. Louis Circuit Court; permanent disability of her arm; and conFranklin Ferriss, Judge. "Not to be officially published." Action by Isabelle Patton against Henry B. Eveker and wife. From a judgment for plaintiff, defendants appeal. Affirmed. Thos. E. Mulvihill and R. M. Nichols, both of St. Louis, for appellants. Curlee & Hay and Charles A. Powers, all of St. Louis, for respondent. cluding with an appropriate prayer for damages in the sum of $10,000. Having unsuccessfully demurred to the petition, the defendants filed an answer, being a general denial, coupled with a plea of contributory negligence, to which plaintiff filed a reply, which denied the averments of the answer generally. The proof closely followed the allegations of the petition. The evidence tends to show that the defendants by the entirety owned DAUES, J. This is an action for dam- the flat in which the plaintiff was a tenant. ages accrued to plaintiff on account of per- There was a leak in the bathroom, and the sonal injuries received through the alleged plaintiff notified the defendant Mrs. Eveker negligence of the defendants. Plaintiff recoy-of such fact. Within a few days afterwards ered a judgment of $1,500, and the defendants, after the overruling of their motion for new trial and motion in arrest of judgment, appeal. [1] The petition sets out that the defendants own the premises at 4338a Manchester avenue, St. Louis, and that plaintiff occupied the property as tenant; that defendants voluntarily undertook to repair the toilet, and in doing this work it is alleged defendants were negligent. The negligence is charg ed as follows: defendant Eveker and his two sons went upstairs to the bathroom used by plaintiff to repair the leak. The actual work of repairing was done, principally, by the son, Charles, who had been an apprenticed plumber. In making the repair the young man replaced an old rubber tubing with a new one, which he fastened to the metal down pipe with a wire, wrapping and twisting the ends of the wire to make same hold, leaving the ends of the copper wire with sharp points extending out one-half or three-fourths of an inch. The toilet was in the corner of the bath"That thereupon defendants caused said re- room; the flush box was on the wall above, pairs to be made, but the servants and employés and was connected to the bowl or stool by of defendants having charge of and doing said work for and on behalf of defendants, in the a metal down water pipe connected by a tubwrapping of said wire around said rubber tube ing. This was out of repair. The tube or on the said down pipe, carelessly and negligent- rubber "L" was slightly lower than the seat ly made the ends of said wire, twisted together back of the closet in the corner. There was as aforesaid, to project out from said tube, only one window in the bathroom, which and finished and left said work as completed contained a frosted glass partially covered with said wire ends so projecting, so that per- by a window shade. The ends of the prosons and tenants of defendants, and the plaintiff, were likely, as a natural and probable re-jecting wires were on the opposite side from sult thereof, in cleaning said pipe and rubber the window, and were left protruding out tube, and around the same, where said wire pro- towards the bathtub. The distance between jected as aforesaid, to injure their hands or fingers by scratching or penetrating the flesh. "That thereafter, on the 20th day of March, 1915, while plaintiff was in the course of her ordinary household duties of cleaning said bathroom and going about said duties in the ordinary manner of a reasonably attentive and cleanly housekeeper, and in said manner working around and about said pipe and rubber tube for said purpose, and without knowledge that said repairs had been so negligently and carelessly done as aforesaid, or that said wire ends so projected, and all times in the exercise of ordinary care, the little finger of plaintiff's right hand came upon and against said wire projection, whereby the said wire penetrated the skin and flesh of said finger, the said injury being caused by reason and as the direct result of the carelessness and negligence of the defendants through their said servants and employés, as aforesaid." the bathtub and the closet was not wide enough to allow a person to go between same. The day was described as being a dark one, but not dark enough to light the gas. On March 20, 1915, being a few days after the repair had been done by defendants, plaintiff, as was her custom, undertook to scrub and clean the bathroom. The plaintiff was not in the bathroom at the time same was repaired, nor had she been told of the place or manner of the repairing of the leak, and in cleaning the wall fixtures and pipes in the bathroom with a rag she got on her knees in her usual way, and reached around and wiped the wall and the pipes, and in doing so she struck her hand against the projecting copper wires and pierced the little finger of her right hand. She instantaneously withdrew her hand, and looked to see the point |