under such control that it could be stopped at any time. 4. A hypothetical question to an expert witness may assume any fact that the evidence tends to prove. Appeal from St. Louis circuit court; Daniel Dillon, Judge. Action by Josephine Hicks and her husband against the Citizens' Railway Company. Judgment for plaintiff Mrs. Hicks. Defendant appeals. Reversed. buggy, drove north up Thomas street into the north side of Easton avenue. About 50 feet from the intersection, a horse, attached to a buggy, was standing on the street, thus occupying and obstructing the greater portion of the 11-foot space between the railroad track and the foot-walk. Plaintiffs, in order to pass this buggy, were required to drive upon the railway track. At the time plaintiffs undertook to pass round this standing buggy, a train of cars was approaching from the north, on Easton avenue, and on the north track of the road. The customary warnings of this approach were given by the employés in charge of the cars, but these Mrs. Hicks testified she did not hear. The cars reduced their speed to about the rate at which plaintiffs were moving, and, when the latter got upon the track, the cars were within a few feet of the buggy, and slowly following it, making signals for plaintiffs to leave the track. After plaintiffs had passed round the buggy, they turned to the right, in order to leave the track. After all except the left hind wheel of the buggy had cleared the track, that wheel was struck and broken, and the hind end of the buggy fell, carrying plaintiff with it. The evidence tended to prove that plaintiff, at the time, was in delicate health, and the shock from the fall and fright caused her to lose consciousness, produced hemorrhages of the womb, and seriously affected her nervous system. The evidence will require a more detailed consideration in the opinion. Defendant demurred to the evidence, which was overruled. case was submitted to the jury, upon inVerdict and judg structions of the court. A This is a suit by plaintiffs, as husband and wife, to recover damages for personal injuries received by the wife, on account of the alleged negligence of defendant's employés in running and managing a train of its cable cars in the city of St. Louis. The petition makes the following charge of negligence: "That said injuries were occasioned by the negligence and lack of care on the part of defendant's agents and servants while operating defendant's said cars, in this: that said defendant saw, or by the exercise of reasonable care and foresight might have seen, plaintiffs' buggy on its right of way, and consequently plaintiffs' imminent danger; but notwithstanding the facts aforesaid, and regardless of its duty to operate its cars with skill and care, defendant, without having rung any alarm bell or in any wise having notified plaintiffs of its approach on said right of way, negligently and carelessly allowed the grip car to which was attached said train of cars to run into and break plaintiffs' buggy, thereby causing the injury above complained of." The manner and cause of the injury are thus stated: "Plaintiffs were driving in a top buggy, in a westerly direction, along Easton avenue. train of defendant's cars, propelled as aforesaid, and in charge of its servants and agents, struck and collided with the rear of the vehicle in which plaintiffs were seated, at a point on said Easton avenue just west of Thomas street, and that the shock of the collision was such that plaintiffs' vehicle was broken, and they were precipitated to the ground." The character of the injuries is charged to have been a shock to nervous system, causing her eyesight to become impaired, and affecting her mental condition, and causing her to have frequent and serious hemorrhages, so that, ever since the accident, plaintiff has suffered great and continual physical pain and mental anguish. The answer was a general denial, and a plea of contributory negligence. The judgment was for plaintiff, and defendant appealed. The evidence shows that Easton avenue is a public street, running in an easterly and westwardly direction, through the city of St. Louis. On this street defendant operates two tracks of its cable railway. A space of only 11 feet is left on the north side of the street between the track of the railway and the curbing. Thomas street runs into Easton avenue from the northwest, at an angle of about 33 degrees. On the 22d day of April, 1891, plaintiffs, in a single top The ment were for the plaintiff Mrs. Hicks, and defendant appealed. Smith P. Galt, for appellant. Seneca N. Taylor, for respondents. MACFARLANE, J. (after stating the facts). 1. It is first argued that the judgment cannot stand, for the reason that there was no evidence of negligence on the part of defendant's employés. The evidence shows that the cars followed very slowly after the buggy, and within a few feet of it, giving constant signals of its approach. That the cars were under perfect control is attested by the undisputed fact that they were stopped immediately on striking the wheel of the buggy. So far there can be no complaint as to the conduct of the employés. The gripman in charge of the cars also saw plaintiffs driving along the track in front of the train, and knew that the cars were entitled to the right of way on the track. The signals given were not only intended to notify plaintiffs of the approach of the cars, but to admonish them to get out of the way. They should have expected that, in obedience to the signals, the buggy would be driven from the track, and should have been prepared for any necessary checking of speed, or slipping of the wheel of the buggy on the rails, in making the turn. Counsel for defendant states the cause of the injury thus: "Hicks drove the buggy with the front wheels onto the track, just ahead of the car, and continued to drive it that way, ahead, close in front of the car, bell ringing all the time, and did not accelerate his speed, and, without any notice to the gripman that he was going to do so, attempted to turn to the one side, which always involves a moment's lessening of speed, and thereby caused the buggy to be struck by the car." We do not think that those in charge of the car were entitled to notice that plaintiffs were about leaving the track, after they had been notified to leave it. On the contrary, they should have been prepared for such a movement by plaintiffs, and for the moment's lessening of speed necessarily involved therein. There was no evidence that the momentary checking of the buggy was unusual or unexpected. We think the question, then, as to whether the cars were run closer to the buggy than reasonable prudence and care dictated, and whether defendant's employés should, in the exercise of proper care, have checked or stopped the cars, in order to give plaintiffs time to get out of the way, were properly for the determination of the jury. The evidence certainly tended to prove that the cars were following within two or three feet of the buggy, and moving at about the same rate of speed; so a very slight check in the speed of the buggy would necessarily have resulted in a collision. 2. It is insisted in the next place that, though defendant may have been negligent, plaintiffs were also guilty of negligence, which directly and proximately contributed to the injury, and therefore the judgment should not be sustained. It is said that plaintiffs were negligent in driving on the track in front of the train, and in thereafter driving upon and laterally along the track without heeding the warnings of the defendant. Generally, a distinction is made between the duties required of one going upon or crossing a street-car track and the track of a steam railroad. The weight and momentum of trains propelled by steam renders their control and management much more difficult than light cars, moved by cable or electricity. The measure of prudence which will constitute ordinary care is less with respect to those going upon them than is required of persons crossing tracks of steam railroads. Beach, Contrib. Neg. § 290. Persons in wagons and other vehicles have the undoubted right to pass over or upon street-car tracks without hindrance; yet the right of a traveler to drive a vehicle upon or along a street-railroad track does not absolve him from the duty of looking for approaching cars. The cars can only move upon the tracks, and are used for the convenience of the public, and are consequently entitled to the right of way as to all others. It is therefore the duty of a traveler to give way to approaching cars, so as to cause no unnecessary hindrance. Adolph v. Railway Co., 76 N. Y. 532; Railway Co. v. Isley, 49 N. J. Law, 468, 10 Atl. 665; Wood v. Railway Co., 52 Mich. 402, 18 N. W. 124. But we are not able to say that the evidence shows conclusively that plaintiffs violated any of these rules, unless it was in driving upon the track without observing the cars, which must have been very near them. But that negligence was clearly not the proximate cause of the injury, for plaintiffs not only got safely upon the track without injury, but they were seen by the servants of defendant, and, by their timely action, a collision was then avoided. After that, the conduct of plaintiffs could not be declared negligent, as a matter of law. Whether they could have left the track more expeditiously than they did, and whether doing so would have avoided the injury, were questions for the jury. It seems to me there was very little evidence tending to show contributory negligence in the case, but we cannot say there was none. Defendant's gripman saw plaintiffs in their dangerous and exposed situation, and the chief question is whether, after that, he acted with due care towards them. Hanlon v. Railway Co., 104 Mo. 389, 16 S. W. 233, and cases cited. 3. Objections were made to a number of hypothetical questions asked physicians by plaintiffs' counsel, with a view to getting before the jury their opinion as to whether the condition and sufferings of Mrs. Hicks were produced by the accident. These questions were long, and need not be given in full to understand the questions involved. The objections urged to these questions were that they assumed facts not warranted by the testimony. The question asked Dr. Keir assumed that the evidence tended to prove that Mrs. Hicks had "chilly sensations all over her body following immediately after this accident;" "that she still has serious floodings and severe pains on all occasions, and still has cold sensations all over her body." In the questions asked Dr. Fry, the following facts were assumed: That Mrs. Hicks was subjected to a "serious shock;" that the buggy fell "violently to the pavement or to the ground, and that the lady was thereby jarred, shocked, and frightened to such a degree that she lost self-consciousness;" that "immediately after the accident, and for several weeks, she suffered nervous prostration to such a degree that she was often unconscious;" that she "still has frequent flooding spells." The same objections were urged to questions asked Dr. Bond. The rule in regard to the hypothetical questions that may be asked an expert witness is thus clearly given in a recent case by this court: "Counsel, in propounding a hypothetical question to an expert witness, may assume any state of facts the evidence tends to establish, and may vary the questions so as to cover and present the different theories of fact. But there must be evidence in the case tending to establish all the facts stated in the ques tion. If the question assume any fact which the evidence does not tend to prove, it should be excluded." Russ v. Railway Co., 112 Mo. 48, 20 S. W. 472. It is manifest that a very slight change of fact may lead to a very radical difference in the conclusion drawn from it. This is particularly true when the opinion of physicians is used to prove the effect produced upon the health of a person by a certain cause, or the cause of certain physical and mental conditions. If, then, the hypothetical questions to which objections are made assumed any fact which the evidence did not tend to prove, they were improper, and should have been excluded. But we have gone over the evidence very carefully, and are of opinion that it fairly tends to prove every fact assumed by the questions. The evidence proves that the hind wheel was broken, which caused the buggy to fall to the ground, carrying plaintiff with it. She was a large, fleshy woman, and from these facts it might well be inferred that the fall of the buggy was "violent," and that plaintiff was thereby jarred, shocked, and frightened. The evidence of plaintiffs was that she lost consciousness when the buggy fell, and before she was removed from the place of the accident she suffered severe pains through her back, stomach, bowels, and womb, accompanied with severe hemorrhages; and "creeping sensations" from head to foot, and from that day to the day of trial she had hemorrhages, and these "nervous sensations, drawings, and twitchings." The evidence of Mrs. Myrick was that all of the symptoms described by plaintiff as the immediate result of the fall existed next morning, and also cold, chilly sensations. All other symptoms continuing, we may fairly infer from all the evidence, that the chilly sensations followed immediately after the accident. From all the facts proven, we may also infer that plaintiff received a "serious shock." 4. The first instruction defined the duty of defendant's gripman, in case he saw, or by the exercise of reasonable care might have seen, the buggy on the track in front of the cars, to be that of reasonable care to avoid a collision. There is nothing in this requirement of which defendant can reasonably complain. The second instruction given on behalf of plaintiffs is as follows: "The court further instructs the jury that if they believe from the evidence that the gripman operating defendant's grip car on the occasion of said collision saw, or by the exercise of reasonable care might have seen, said buggy after it got upon defendant's track, in danger of being struck by the car, in time to have stopped the train, by the exercise of reasonable care and diligence, before it struck the buggy, and so have avoided the collision, then the defense of contributory negligence cannot avail, even if the jury believe that Josephine Hicks, plaintiff, negligently drove the buggy, or allowed said buggy to be v.27s.w.no.6-35 To driven, upon defendant's track on the occasion in question." We think the duty this instruction required of street railways too broadly stated, under the circumstances of this case. The jury might well have in. ferred from the instruction that it became the duty of the gripman of the car to stop the train immediately upon seeing the buggy on the track in front of it, and that, if he could have done so, and failed, he was guilty of negligence. The same rule of care is thus imposed upon those managing a train of cable cars in the streets as is required of one running a steam locomotive. The evidence is undisputed that the cars, under perfect control, moving at a rate of speed not exceeding a slow walk, followed the buggy on the track from 30 to 50 feet, and could have been stopped at any moment. As was said in the second paragraph of this opinion, a traveler in a vehicle has the right to use the track of a street railway and travel laterally upon it, provided the running of trains were not thereby unnecessarily hindered, and that it was not negligence in itself for the train to so follow after the buggy. require a street car to stop for a clear track when no danger of a collision is threatened would virtually stop the running of all such trains, or so interfere with them as to greatly impair their usefulness. Beach says: "The danger of accident from a collision with street cars is very trifling, as compared with that from collision with trains of cars running at a high rate of speed upon a railroad. Street cars never run very fast, and are easily and almost instantly stopped. What, therefore, might be gross negligence as respects a steam railroad, might be perfectly prudent and perfectly proper to be done in dealing with street cars. We must not therefore attempt to apply to street railways the rules of law applicable to steam railroads. The cases are essentially different, and, the reason for the rule ceasing, the rule itself must also cease." Beach, Contrib. Neg. § 290; Lyman v. Railway Co., 114 Mass. 83. It is true the instruction predicated the duty of stopping upon the fact that the buggy was in danger of being struck, but it assumed that the danger arose when the buggy got upon the track. There was no danger of a collision in moving the train slowly and cautiously, and not negligently near to the buggy. Both were going in the same direction, and at about the same rate of speed, and danger only arose when plaintiff attempted to leave the track. But the instruction goes further, and plainly informs the jury that if the gripman saw the buggy, after it got upon the track, in time to have stopped the car and avoided the injury, the defense of contributory negligence cannot avail defendant. It was as well the duty of the plaintiffs to leave the track as it was of defendant to prevent the cars from striking the buggy. Reasonable care and caution should have been observed by each in doing Plaintiffs were what duty required of them. not relieved of this duty by reason of a failure of defendant to do that required of it. There was no question here as to the negligence of plaintiffs in going upon the track When the buggy got upon the track, the situation was changed altogether. It was for the jury to determine the question of negligence and contributory negligence, in view of what was done by the parties in the situ ation in which they were placed. The question of contributory negligence should not have been withdrawn from the jury in the circumstances. 5. Counsel discuss the question as to whether the negligence of the husband can be imputed to the wife. We do not think the question appears upon this record in this case. The charge in the petition is that plaintiffs were driving the buggy. The instructions assumed the same fact. There was no attempt by the parties to separate the act of one from the other, and to consider the question of imputed negligence would be a very needless work. Whether Mrs. Hicks would be held responsible for the negligence of her husband or not, she would certainly be held responsible for her own. Hoag v. Railway Co., 111 N. Y. 199, 18 N. E. 648. Reversed and remanded. All concur. HALL et al. v. LANE et al. (Supreme Court of Missouri, Division No. 1. July 9, 1894.) VACATING JUDGMENT AFTER TERM. Under Rev. St. 1889, § 2113, providing that no judgment after trial shall be reversed for omitting any allegation, without proving which the verdict ought not to be given, where the petition stated a good cause of action, and judgment was rendered in favor of plaintiff on a point not alleged in the petition, and there was no exception thereto, and no motion for review or in arrest, the court cannot, at a subsequent term, set aside the decree because not warranted by the pleadings. Error from circuit court, Schuyler county; Andrew Ellison, Judge. Action by Celia J. Hall and another against N. E. Lane and others to have a certain deed declared a mortgage. From an order denying defendants' motion to set aside a judgment for plaintiffs, defendants bring error. Affirmed. John D. Smoot, for plaintiffs in error. Shelton & Dysart, for defendants in error. BRACE, J. This case, involving title to real estate, is certified here from the Kansas City court of appeals. The plaintiffs and defendants are the heirs at law and representatives of James C. Morton, deceased, and their husbands. In his lifetime, one Henry H. Pearce, by deed duly executed and recorded, conveyed to the said Morton the N. 2 of the N. W. 4 of section 13, township 64, range 14, in Schuyler county, for the con sideration of $880, and the record title was in him at the time of his death, in 1888. At the May term, 1888, of the circuit court of said county, this suit was instituted by the plaintiff Celia J. Hall, one of his heirs, against the defendants, the other heirs of said deceased, and his administrator and widow, to declare said deed a mortgage on said land to secure the payment by the said Celia J. Hall of the sum of $380, upon payment of which, and interest, she asked that the defendants be divested of all interest in said real estate, and the title be vested in her; alleging in her petition, in substance, that her father took and held the legal title to said land in trust for her, and to secure him in payment of the said sum of $380 advanced by him to her as a loan to pay off the balance of the purchase money therefor. All the material allegations of the petition were put in issue by answers of the defendants. The case came on for trial at the November term, 1889, of said court; and the court, at said term, rendered a final decree, finding that the plaintiff Celia J. Hall, as a child of the said James C. Morton, inherits one-fourth of his estate; that defendant Mary A. Lane, as a child of said deceased, inherits one-fourth of his estate; that defendants Annie Waits, Viola Austin, Walter Austin, and William Austin, grandchildren of said deceased, each inherit one-sixteenth of his estate; that the defendant Ann Eliza Morton, widow of said deceased, has elected to take a child's part of his estate, and is thereby entitled to one-fourth interest therein; that since the institution of this suit the one-fourth interest of the said widow has been purchased by, and has become the property of, the said plaintiff Celia J. Hall; that the said Celia J. Hall is the owner of said real estate; that she became the owner thereof in the spring of 1881, by purchase, for the consideration of $880, $400 of which she paid of her own means, and the remaining $480 of the purchase money was furnished her by her deceased father, James C. Morton, with the agreement and understanding then had that the title to said land should be taken by the said Morton for the sole purpose of securing him the payment of said sum of $480; that the deed from the said H. H. Pearce to him for said land was so taken and held by the said deceased solely for that purpose,-and decreeing that said deed be reformed so as to vest the title to said land in the said Celia J. Hall in fee simple, divesting the defendants of all interest therein, and charging said lands with the payment to the defendants' administrator of the said sum of $480 and interest thereon, amounting in the aggregate to the sum of $528, to be discharged upon the payment by the said Celia of one-half thereof, with interest, within six months, to said administrator (she being entitled to the other one-half, one-fourth as heir and distributee of her father, and one-fourth as purchaser of No exception the widow's interest therein). was taken to anything done on the trial, or to this decree, by motion for review or in arrest of judgment; but at the subsequent May term, 1890, the defendants filed their motion to set aside the decree for the reason that it is not warranted by the pleadings. Their motion having been overruled, they sue out their writ of error. It is contended by the defendants that as the petition contains no allegation that the widow elected to take a child's part, or that the plaintiff had purchased her interest, and no amended petition was ever filed, containing such allegations, the decree is not supported by the pleadings, and the court committed error in refusing to sustain their motion to set the same aside at a subsequent term. This contention cannot be maintained. It is expressly provided by our statute of jeofails that no judgment, after trial and submission, shall be "reversed, impaired or in any way affected" for omitting any allegation or averment, without proving which the triors of the issue ought not to have given such a verdict." Rev. St. 1889, § 2113. If the defendants desired to take advantage of the alleged errors in the decree, they should have called the attention of the trial court to them, by motion for review or in arrest, at the term at which the decree was rendered; for, the petition stating a good cause of action, and there being no irregularity in the proceeding, the control of the court over the decree and judgment, when the term was past, ceased, except to allow such amendments of the pleadings in support of the judgment as are authorized by that statute. Ashby v. Glasgow, 7 Mo. 320; Brewer v. Dinwiddie, 25 Mo. 357; Williams v. Judge, 27 Mo. 225; Harbor v. Railroad Co., 32 Mo. 423; Downing v. Still, 43 Mo. 309; Childs v. Railroad Co., 117 Mo. 414, 23 S. W. 373; 1 Black, Judgm. § 306; 1 Freem. Judgm, § 96. The judgment is affirmed. All concur. MIDLAND NAT. BANK v. SCHOEN. (Supreme Court of Missouri, Division No. 1. July 9, 1894.) AUTHORITY OF PARTNER-SIGNING NOTES FOR INDIVIDUAL PURPOSES. 1. The authority of one partner to bind the firm is governed by the law of agency. Within the range of the firm business, one may act for all, as to persons having no notice of any limitations on the implied authority. Beyond the scope of the partnership, one partner may bind the other, where the latter would be bound under the general law of principal and agent. 2. One partner invested the other with a general authority to use the firm name upon notes for his individual purposes. A third person advanced money for such notes on the faith of that authority, and the first partner was held liable on the notes. 3. On the facts just mentioned it is not essential to a recovery on such notes to show that the signing partner was authorized to use the firm name on the particular notes sued upon. If they were given pursuant to a general authority, unrevoked, the liability would be the same. 4. Where a note is given by a firm for the debt of one partner, it may lawfully be renewed by any one of the partners without altering the firm's liability. 5. The course of business between members of a firm may tend to show the authority of one partner to act for and charge the partnership. (Syllabus by the Judge.) Appeal from circuit court, Clay county; James M. Sandusky, Judge. Action by the Midland National Bank against George J. Schoen. Judgment for defendant, and plaintiff appeals. Reversed. Lathrop, Morrow, Fox & Moore, for appellant. Gates & Wallace, for respondent. BARCLAY, J. This is an action upon two promissory notes,-the first dated September 8, 1890; the second, September 28, 1890,each payable at 90 days. The notes were ostensibly executed by Louis A. Schoen, Bertha Schoen, and Schoen Bros. to plaintiff. The action was begun in Jackson county against all the makers, including George J. Schoen, who was charged to be liable as a member of the firm of Schoen Bros. But he denied liability, and caused the removal of the case to another county, by change of venue, where the issues, as to him, were tried. His answer denied under oath the facts charged in the petition, except the incorporation of plaintiff, and the partnership of George J. and Louis A. Schoen. He positively denied that he executed the paper sued upon, or authorized its execution. The reply put in issue the new matter of the answer. The cause was tried with the aid of a jury. There was a verdict for defendant. Plaintiff moved for a new trial without success, and then, after judgment, brought the case to the supreme court by appeal, after the usual exceptions, preserving the points now relied upon. The evidence of plaintiff tended to prove the following facts: The Armour Bros. Banking Company began dealing with Louis A. Schoen as early as 1886. In 1887 the president of that company had an interview with defendant at the time his brother, Louis, wished to renew a note then under discount. The brothers Schoen were partners in the drug trade at Kansas City, but Louis informed the bank that the money to be raised on the paper was not on account of the regular requirements of the drug store. The president of the bank then sent for defendant, George J. Schoen, and the interviews which followed are thus described by the former, as a witness in this cause: "When the first note became due he [Louis] came in, and wanted to renew that note. I said to him that I wanted to know from George if he felt and acknowledged the responsibility, before I would renew the note; and he went, and brought Mr. George Schoen, and I had a talk with George about |