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recollect just what he said, but he gave his , a quaint and just estimate of him, when ask. consent in that way. He just said: 'All ed as to “his business sense,” by the reply right;' to write his name. “Write my name, that he had as much of it as any of his boys; and I will make my mark.' Q. You say he "he knowed more the worth of a dollar than had been nervous for how long? A. I have all three of his boys put together." Certainknown him for twenty-two years, and he was ly, the facts attending the execution of the that way when I first knew him. Q. How instrument do not tend to establish any want long did he live after that? A. That was in of business capacity or understanding on the 1865. Q. You mean 1885, do you not? A. part of the principal figure in the transaction, Yes, sir. And he died this last spring a year or any attempt at undue influence or overago. Q. You mean two years ago, do you reaching on the part of the plaintiff. Connot? A. Yes, sir. In 1888 he died. Q. You sidering the father's prior gift of an 80-acre said you got the numbers of the land, the tract to each of his other sons, there was description, in what way? A. From him and nothing unjust in his giving William 80 acres. Weet there together. And I knew something And in view of the proposed improvement of about the numbers myself, and how the land the property (afterwards made by William), laid. Q. Without reference to any written for the benefit and comfort of his father and memorandum at all? A. Yes, sir. Without himself, and of the understanding that the any memorandum. If I am not mistaken, he former was to be cared for during the resi. quoted the numbers. He commenced and due of his days, the gift of the other 80 acres talked about the numbers, and the two to- was not an extraordinary or unreasonable gether gave me the numbers of the land. Q. performance. It was one which the father What was the condition of his mind that had the right to indulge in, if his act was free day? A. Well, sir, as far as I have been ac and intelligent. We think it was. We conquainted with the old gentleman,--of course, sider that the testimony sustains the gift as when I first knew him he was stouter physic- the voluntary act and deed of the grantor. ally,-he had mind enough to say that he The learned trial judge was in error, we bewanted to take care of himself. Of course, lieve, in pronouncing a different conclusion in he was older and weaker, and talked weaker. the decree passed in the circuit court; and It was the same as any other old man. Q. accordingly it is now reversed, and the cause Did he fully understand what he was doing? remanded, with directions to dismiss the pe A. I thought he did, or I would not have tition, at the cost of plaintiff. made the deed. Q. You have been acquainted with the old man twenty-two years? A. BLACK, C. J., and BRACE and MACFARYes, sir. Twenty-two years. Q. What char- LANE, JJ., concur. acter of a man was he as to mind? A. I never heard anything but he was a man of ordinary mind. Q. What kind of man was he as to memory of events? A. Well, sir,

RYAN v. McCULLY. his great pride, outside of talking of his own

(Supreme Court of Missouri, Division No. 1. business, was to talk scripture and history.

July 9, 1894.) And he was very well read in regard to those matters, and would talk considerably about

INJURIES TO EMPLOYE-NEGLIGENCE OF FELLOW

SERVANT. matters he had read in his younger days. Q.

1. In determining whether plaintiff has a What was the manner of his conversation, as case to be submitted to a jury, he is entitled to whether it was connected and intelligent? to have the evidence viewed as favorably for A. He was considered, so far as I know, a him as the facts permit, and to have also the very intelligent man. He was economical and

| benefit of every reasonable inference therefrom.

2. A laborer, employed in building a bridge, saving, and I used to hear him complain and an engineer, operating the hoisting maabout his boys not being saving." There was chinery for its construction, are fellow servants considerable testimony for plaintiff tending to

where both belong to the same working force,

under the orders of the same foreman; and show that old Mr. Likins was feeble in mind

the master is not liable for an injury to the when the deed was given, and abundant tes laborer from the negligence of the engineer. timony to the effect that he had fair busi

3. The master's order to lower a beam

during the process of constructing a bridge doeg ness capacity at that time.

not render him liable for the act of a servant No good would be done by a review of the

(charged with the execution of the order) in evidence in detail. We have all given it due lowering the beam so carelessly as to inflict consideration. We conclude from it that, al- | injury on a fellow servant.

4. Negligence is an affirmative fact, to be though the old man was weak in body, he established by proof. before there can be any fully understood the transaction now under recovery on account thereof, and it is a quesreview, and did his part in it freely and in- tion of law whether or not the evidence tends telligently. The scene described by the jus

to prove such negligence in any case.

(Syllabus by the Judge.) tice gives a very correct impression of the old man, confirmed by much of the other evi Appeal from St. Louis circuit court. dence. He exhibited many infirmities of age, Action by Lizzie Ryan against William Mcand many of its eccentricities; but, with all, Cully for the death of Thomas Ryan. Judgwas no man's fool or puppet. One venerable ment for defendant, and plaintiff appeals. neighbor, who had known him 30 years, gave / Affirmed.

John J. O'Connor, for appellant. Pollard | and a jury. At the close of plaintiff's testi& Werner and Wentworth Terry, for re mony, the court gave an instruction in the spondent.

nature of a demurrer to the evidence, which

forced plaintiff to a nonsuit, with leave, etc. BARCLAY, J. This is an action for statu In due time she moved to set aside the nontory damages ($5,000) for the death of Thom- suit, but the court denied the motion. Havas Ryan. Plaintiff is his widow, and ing duly saved exceptions to these rulings, charges defendant with causing her hus plaintiff brought the case to the supreme band's death by negligence. Defendant's court by appeal. answer makes a counter charge of contribu The question is whether, under the facts tory negligence on the part of Mr. Ryan, but disclosed by plaintiff's evidence, she could admits the fact of his death, and that he properly go to the jury. In considering it, was in the employ of defendant. The al plaintiff is entitled to have the evidence legations in the petition which indicate the viewed as favorably for her as the facts perground of plaintiff's claim are as follows: mit, and to have the benefit of every reason"Plaintiff states that on the 10th day of De able inference therefrom as well. The relacember, 1891, her said husband was em tionship of plaintiff to the deceased was adployed by defendant to assist in erecting the | mitted, as also that he was in the employ of scaffolding for an iron bridge which said de defendant at the time of his death. Plainfendant was building across the railroad tiff introduced three witnesses, Messrs. Moore, tracks on Twenty-First street in this city. Van Hook, and Rick, in the order indicated. That in the course of his employment he was We shall, however, first note the evidence required to stand upon a wooden beam, of the last named, as he explains more fully which was only 12 inches square and 18 feet than the others the particulars of Mr. Ryan's long. Said beam rested on two long beams, mishap. Mr. Rick testified as follows (acone under each end, and was suspended 20 cording to plaintiff's abstract on this appeal): feet from the ground. There was no rail "I was Mr. McCully's foreman in charge of ing, ladder, guard, or any other support the men while they were erecting that poralong said beam to protect her husband tion of the false work on which Ryan was from falling while standing on said beam. at work at the time he fell and was killed. That he was standing on said beam, assist I hired him that day, believing him to be ing, with other of defendant's employés un a bridge man, and competent to do the der the immediate direction of defendant's work. He told me he was a bridge man. foreman, to lower and place on the aforesaid

He was at work only about an hour when he crossbeam, parallel to the beam on which fell. The bridge proper is made of iron, he was standing, a beam of like size as the and, in order to place the iron in position, we one on which he was standing. That said erected a scaffolding, called 'false work.' beam thus being lowered was suspended This was done by standing upright timbers, above the crossbeams by ropes from the der 12 inches square, and of sufficient height, rick, which was operated by steam power, which was about 20 feet. Several of these and conducted by defendant. That in low

are set up, extending across the width of ering said beam defendant negligently per the structure. Then on the top of these mitted one end of said beam to strike with uprights there is a large beam laid down, violence against said crossbeams, which each of the uprights supporting it. Now, caused plaintiff's husband to lose his bal | this may be called a “bent,' and at intervals ance, and fall to the ground, and thereby 1 of 14 or 16 feet there are like bents, erected causing his instant death. That defendant in the same manner, for the whole length knew, or by exercise of ordinary care could of the work. Now, on top of these bents have known, that it was dangerous to plain or crossbeams are laid timbers extending tiff's husband to cause him to stand on said lengthwise of the bridge. It was on the end beam while engaged at his work, as afore of one of these beams where it crossed a said, without any support or means to pro- crossbeam that Ryan was standing at the tect him from falling therefrom. That the time he fell. We had a traveler (that is death of plaintiff's husband is due to and what the other witnesses called a 'derrick') was caused by the negligence of defendant, for hoisting up timbers and placing them on Wm. McCully, in failing and neglecting to top in their proper places. We would first furnish to her said husband a reasonably erect a portion of this false work, and, when safe appliance or platform on which to stand the iron stretchers and other parts of the while engaged at his said work, as afore- | bridge were in place, and the false work was said, and in negligently and unskillfully low no longer needed, we would remove it along ering the suspended beam so that one end on the top to where it was needed at anthereof struck one of the crossbeams, there other place. We did this with the traveler, by increasing the insecurity of his position, The traveler had a post on the front end, and aiding him to fall. That by reason of which was rigged as a derrick, with ropes the death of her husband, caused by the neg. and pulleys. At the time of Ryan's fall we ligence of defendant, as aforesaid, plaintiff were working on the last span, and were has been damaged in the sum of $5,000," etc. hoisting one of the long beams which I have The case came to trial before Judge Fisher described, intending to move it southward to its proper place in the span. There were | about 12 inches square and about 16 or 18 four or five beams already in place, and I feet long. The sound was like the dropping used great care to see that the work was of the timber on the other timbers that made done safely. It was my duty to see that the the top of the false work. When I looked work was safe. The beam was about to be up, the man was in the act of falling from lowered. I gave the signal to the engineer the beam on which he was standing, and the to lower away. The derrick was operated beam that had been in the sling of the derby steam. The engineer lowered carefully, rick was down, laying crossways. It did and the beam swung around towards Ryan, | not seem like he stepped off; it seemed like but did not strike or touch him. He was he was thrown off or tilted off. There were standing on the end of one beam. There was several timbers laying lengthwise on top of the ends of two beams together, and un the false work, and Ryan was standing on der them a crossbeam, so that he had the beam to the west,—the nearest one to plenty of room to stand safely. When the me,-and there was nothing to obstruct my beam swung to him, he stepped backwards view of him. I think the noise I heard was and off. The beam was lowered easily, and the noise caused by the beam falling down did not shake the scaffolding, or cause his on the top. At the time he fell he was standfall. He lost his presence of mind, and ing on the west beam, which extended lengthstepped backwards, and fell to the ground. wise of the bridge, and about three feet north If he fell from the place I say he fell, his of the crossbeam. He was standing over a body would have struck the ground south crossbeam, and when he fell his body struck of the crossbeam, and could not strike the the ground a little north of the crossbeam." ground north of the crossbeam on which I At the close of Mr. Rick's examination, say he was standing." The testimony of Mr. | plaintiff's counsel moved to strike out bis Moore is that he was working at the wire testimony on tbe ground of surprise, but mills near the bridge, and saw the accident, the court denied the motion. It does not at about 1 o'clock p. m. He describes it appear that any exception was saved to this thus: “The men who were working on the action. Then the defendant's counsel showed bridge and scaffolding had just gone to work. witness Rick a pencil drawing of the scaffoldI was standing near, with three or four ing, and the witness marked the crossbeam others, looking up at these men at work on on which Ryan was standing at the time he this bridge. It was not time for us to go fell. Thereupon the same drawing was to work. Some one spoke, and at the same shown to the two former witnesses, Moore instant I heard a noise as if some one fell and Van Hook, both of whom declared that on this bridge; and I cast my eyes up, and Ryan did not stand on the crossbeam, or I saw one passing through the air, and some over it, as indicated by the witness Rick, one said, "There is a dead man fell from the but that, at the instant of his fall, he was bridge.' I looked, and I saw that it was the standing on the west beam, about three or man that I saw on the top. At the time he four feet north of said crossbeam. fell there was a derrick on top of the scaffold The foregoing is the whole of plaintiff's ing, and the men were hoisting a long beam case as presented here. We have stated it in the air above the top. When I saw it, just fully, in view of the conclusion we have before he fell, the beam was near him, and reached, and of our desire to give every detail about two or three feet above the top. When

of the evidence the value to which it may be I heard the noise, and saw him fall, I looked entitled. If the statement of witness Rick up, and saw that the beam which had been l is accepted, plaintiff has no standing in court, in the air was down on the crossbeams of the as her counsel concedes. But laying it, for scaffolding. I do not know what made him the moment, out of view, what remains to fall, but heard the sound of the beam fall- | justify an inference of defendant's negligence, ing, and looked up at the same instant, and especially any inference of the particular saw him falling to the ground. The fall negligence charged in the petition? It is not killed him. I was standing about 60 feet now claimed, on plaintiff's part, that there from the place he fell. There was nothing was negligence in failing to have a pla form to obstruct my view of him while he was for Mr. Ryan to stand on while at work. at work, or while he was falling." Mr. Van Plaintiff has submitted here only the point Hook testified as follows: "I was walking that defendant was negligent in letting the on the railroad tracks, and I got within about beam loose from the derrick so as to fall up100 feet of the Twenty-First street bridge. on the other beam, already in position, thus I was coming east. I saw this man standing jarring and knocking Ryan from his standing on the timbers, and other men north of him, place. Mr. Ryan and the man operating the working. I heard a sort of thumping noise derrick or “traveler” were engaged in a comlike a timber dropping, and that drew my mon employment. If his death is ascribable attention to where the false work was again, to the negligence of the operator in letting and I saw a man fall from me, southeast the moving beam jostle or jar against that like, to the ground. I had been looking at on which he was standing, then the master the false work just prior to the fall. There would not be liable to plaintiff for that negliwas a derrick on the top of the scaffolding, gence under the settled law of this state. and the men were hoisting a large timber, | There is nothing in the case connecting the foreman, Rick, with any such negligence, ele | testimony would not authorize an inference ther by any order or act of his in reference that Ryan's death resulted from any neglito the moving of the beam. Neither Mr. | gence for which defendant is liable to reMoore nor Mr. Van Hook refers to any act or spond in damages under the existing law of order of the foreman. The foreman declares this state. · Gibson v. Railroad Co. (1870) 46 that he did not know what made Ryan fall, Mo. 163; Steffen v. Myer (1888) 96 Mo. 420, 9 though his evidence tends to corroborate the S. W. 630; Relyea v. Railroad Co. (1892; Mo. inference to be drawn from the testimony of Sup.) 20 S. W. 480. The learned trial judge Van Hook. The latter's statements would was right in so declaring. The judgment is support a finding that Ryan was thrown off affirned. by the dropping of the beam (moved by the derrick) upon the cross timber. Assume, for BLACK, C. J., and BRACE and MACFARthe moment, that that would tend to prove | LANE, JJ., concur. negligence in the handling or moving of the beam, to make defendant liable therefor something more must be shown to indicate that such negligence was that of the master, CORNWELL et al. v. ORTON et al. as distinguished from the negligence of the (Supreme Court of Missouri, Division No. 2. fellow workmen of Ryan, who were operat

June 12, 1894.) ing the derrick. - Rick was not operating it. TRUSTS-LIMITATION Over-SUBROGATION. He had general charge of the work, but the 1. A deed to a trustee whereby he coronly evidence as to any directions by him in enants to allow the cestui que trust full enjoy

ment of the premises, with all the rents, profits, regard to the movement of the beam is his

and proceeds, for her sole use and benefit; and, own. According to that, when the beam was

at the written request of said cestui que trust, ready, he gave the signal to the engineer to to sell, mortgage, convey, lease, or otherwise "lower away," and the engineer, as he says,

dispose of the premises, and pay over the net

issues or proceeds to said cestui que trust as did so "carefully." A direction to lower the

she may direct; and, at her death, to convey beam would not render the master liable for the premises or proceeds in his hands as she the act of the engineer in permitting the may by will or other writing direct.--cres beam to abruptly fall in such a way as to

| an executed dry trust, and vests in the cestui

que trust an equitable fee, on which no reknock Ryan off. The beam had to be low- mainder can be limited, in default of her apered and put in place. It was the engineer's pointment. duty to perform that act with ordinary care 2. A husband gave notes for the price of

land conveyed in trust for his wife, and these by means of the derrick. The order to lower

were secured by mortgage on the land. After it did not authorize or require the engineer the wife's death, the husband, supposing that to do so carelessly. If he did so, there would he owned the land, and not merely curtesy in it, be no negligence in the direction of the work.

paid off the mortgage with money raised on his

own notes and mortgage. Held, that neither he The negligence would be in the manner of

nor his grantees were subrogated to the securiexecuting the order. That negligence of the ty of the original mortgage as against the wife's engineer would fall within reach of the rule heirs. which exempts the master from liability to Appeal from circuit court, St. Louis coun: one servant for any want of ordinary care on ty; W. W. Edwards, Judge. the part of another engaged in the same work Ejectment by Frederick J. Cornwell and under a common employment. Mr. Ryan others against Etta B. Orton and others. and the engineer belonged to the same work Judgment for defendants. Plaintiffs appeal. ing force, and were under the orders of the Reversed. same foreman, who was present, supervising This was an action of ejectment comthe labor of both. The evidence does not in menced in the circuit court of St. Louis dicate any insufficiency of the machinery county, by the heirs at law of Mrs. Catherine used in doing the work, nor is any negligence Cornwell, deceased, for 18.84 acres of land, ascribed to defendant, in the petition or in the south part of lot No. 3 of a survey and argument, on that account, or for any incom subdivision of the W. 12 of the N. W. 14 of petency of the engineer. We have discussed section 12, township 44, of range 5 E., made the facts without reference to Rick's state by Isaac Woods, surveyor, which said lot ment that he saw Ryan step off the beam. 3 contains 28.84 acres, and is described by We conclude that in no aspect of the evi metes and bounds in a deed from Robert dence could an inference of negligence on de- \ A. Yeats and wife to John A. Goodlett, trusfendant's part be reasonably drawn. Negli tee for Catherine Cornwell, of date October gence is an affirmative fact, to be established 15, 1859, and recorded in the office of the by proof, before there can be any recovery recorder of deeds of the city, then county, on account thereof. It may often be shown of St. Louis, in volume 241, page 297. The by inferences from other facts, but the latter ouster is laid as of January 2, 1890. Dammust reasonably and fairly warrant such an ages and rents and profits are also asked. inference. It is a matter of law, and part of The answer admits possession, and denies all the duty of the court, to determine whether the averments of the petition. For further or not facts shown in evidence have such a answer, defendants alleged title in fee simtendency. In the case at bar it is very clear ple in Mrs. Etta B. Orton. And for further that the most favorable view of plaintiff's I answer, that on October 15, 1859, the said real

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estate, in plaintiffs' petition described, was of said lands to said James Cornwell and his owned by and in possession of one Robert heirs. The title is traced, through various A. Yeats. That, being so, the owner there- | mortgages and deeds of trust executed by of, said Robert A. Yeats, by his deed of con James Cornwell, down to Mrs. Orton. There veyance of that date, in which his wife is also a plea of valuable improvements lawfully joined, bargained, sold, and con made by Halle, one of the purchasers. The veyed the same, with other property, to one answer prays for a decree for title in Mrs. John A. Goodlett, for a recited consideration Orton, and for general relief. A reply deny. of $3,172.40, which sum, said deed recited, ing all new matter was filed in due time. was paid to said Yeats by said John A. A jury was waived, and the cause was tried Goodlett. That said conveyance was made to the court on March 28, 1892. to said Goodlett "to have and to hold the Robert A. Yeats was the common source of same, with all the rights, privileges, and title. The plaintiff read in evidence a deed appurtenances thereto belonging, or in any. from Robert Yeats and wife, of date October wise appertaining, unto him, the said John | 15, 1859, to John A. Goodlett, trustee for A. Goodlett, his heirs and assigns, forever," Catherine Cornwell, recorded in book 241, in trust for certain purposes and uses more page 297, office of recorder of deeds in the specifically set forth in certain covenants of city of St. Louis, conveying to said trustee said John A. Goodlett, included and con said lot 3, of 28.84 acres, "to have and to hold tained; that is to say, the said John A. Good the same, with all rights and appurtenances lett, by said deed, covenanted and agreed thereto belonging, to him and his heirs and that he would suffer and permit Catherine assigns forever.” “In trust, however, to and Cornwell, without let or molestation, to have, for the sole and separate use, benefit, and behold, use, and enjoy the aforesaid premises, hoof of the said Catherine Cornwell, wife of with all the rents, issues, profits, and pro- | said James Cornwell, and the said John A. ceeds arising therefrom, whether from sale Goodlett, party of the second part, hereby or lease, for her own sole use and benefit, covenants and agrees to and with the said separate and apart from her husband, James Catherine Cornwell that he will suffer and Cornwell, and wholly free from his control permit her, without let or molestation, to or interference, and from his debts, in such have, hold, use, occupy, and enjoy the aforemanner as she might think proper; and that said premises, with all the rents, issues, he would, at any and all times thereafter, | profits, and proceeds arising therefrom, at the request and direction of the said whether from sale or lease, for her own sole Catherine Cornwell, expressed in writing use and benefit, separate and apart from her signed by her or by her authority, bargain, said husband, and wholly free from his consell, mortgage, convey, lease, rent, or other trol or interference, and from his debts, in wise dispose of said premises, or any part | such manner as she may think proper, and thereof, and would pay over the rents, is that he will, at any and all times hereafter, sues, profits, and proceeds thereof, which at the request and direction of the said Cathmight come into his hands, and not other erine Cornwell, expressed in writing signed wise liable to her, the said Catherine Corn- | by her or by her authority, bargain, sell, well, in such manner as she should in writ | mortgage, convey, lease, rent, or otherwise ing direct or request; and that he would, at dispose of said premises, or any part therethe death of said Catherine Cornwell, convey | of, and will pay over the rents, issues, profor dispose of the said premises, or such part its, and proceeds thereof which may come thereof as might then be held by him under into his hands, and not otherwise liable to said deed, and all profits and proceeds there- her, the said Catherine Cornwell, in such of, in such manner, to such person or per manner as she shall in writing direct or resons, and at such time or times, as said Cath quest, and that he will, at the death of the erine Cornwell should, by her last will and said Catherine Cornwell, convey or dispose of testament, or by any other writing signed the said premises, or such part thereof as by her or by her authority, direct or ap may then be held by him under this deed, point, and, in default of such appointment, and all profits and proceeds thereof, in such then that he would convey said premises to manner, to such person or persons, and at the said James Cornwell, his heirs or as such time or times, as the said Catherine signs. That it was the intention of all par Cornwell shall by her last will and testaties to said deed to thereby vest a life es ment, or any other writing signed by her or tate in said Catherine Cornwell, with power by her authority, direct or appoint; and, in of disposition, and to vest in said James default of such appointment, then that he Cornwell a remainder over in case of failure will convey said premises to the said James on the part of Catherine Cornwell to dispose Cornwell, his heirs or assigns; and the said of the same. It is also charged that Mrs. Roberts A. Yeats, party of the first part, hereCornwell did not pay any of the purchase by covenants that he, and his heirs, execumoney for said lands, but that her husband tors, and administrators, will warrant and paid it all; that, after her death, Goodlett, defend the title to said premises, and every the trustee, under a mandate of the St. part thereof, to him, the said party of the Louis land court, executed and delivered a second part, and his heirs and assigns, deed to said James Cornwell conveying all ! against the lawful claim or claims of all and

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