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under such control that it could be stopped at buggy, drove north up Thomas street into any time.
the north side of Easton avenue. About 50 4. A hypothetical question to an expert witness may assume any fact that the evidence
feet from the intersection, a horse, attached tends to prove.
to a buggy, was standing on the street, thus Appeal from St. Louis circuit court; Dan. occupying and obstructing the greater poriel Dillon, Judge.
tion of the 11-foot space between the railroad Action by Josephine' Hicks and her hus
track and the foot-walk. Plaintiffs, in order band against the Citizens' Railway Com
to pass this buggy, were required to drive pany. Judgment for plaintiff Mrs. Hicks. upon the railway track. At the time plainDefendant appeals. Reversed.
tiffs undertook to pass round this standing This is a suit by plaintiffs, as husband and
buggy, a train of cars was approaching from wife, to recover damages for personal in
the north, on Easton avenue, and on the juries received by the wife, on account of
north track of the road. The customary the alleged negligence of defendant's em
warnings of this approach were given by ployés in running and managing a train of
the employés in charge of the cars, but these its cable cars in the city of St. Louis. The
Mrs. Hicks testified she did not hear. The petition makes the following charge of neg
cars reduced their speed to about the rate ligence: "That said injuries were occasioned
at which plaintiffs were moving, and, when by the negligence and lack of care on the
the latter got upon the track, the cars were part of defendant's agents and servants within a few feet of the buggy, and slowly while operating defendant's said cars, in following it, making signals for plaintiffs to this: that said defendant saw, or by the ex. | leave the track. After plaintiffs had passed ercise of reasonable care and foresight might round the buggy, they turned to the right, have seen, plaintiffs' buggy on its right of
in order to leave the track. After all except way, and consequently plaintiffs' imminent the left hind wheel of the buggy had cleared danger; but notwithstanding the facts afore. the track, that wheel was struck and broken, said, and regardless of its duty to operate its
and the hind end of the buggy fell, carrying cars with skill and care, defendant, with | plaintiff with it. The evidence tended to out having rung any alarm bell or in any
prove that plaintiff, at the time, was in deliwise having notified plaintiffs of its ap
cate health, and the shock from the fall and proach on said right of way, negligently and
fright caused her to lose consciousness, procarelessly allowed the grip car to which was
duced hemorrhages of the womb, and seriattached said train of cars to run into and
ously affected her nervous system. The evi. break plaintiffs' buggy, thereby causing the
dence will require a more detailed considerainjury above complained of.” The manner
tion in the opinion. Defendant demurred to and cause of the injury are thus stated:
the evidence, which was overruled. The “Plaintiffs were driving in a top buggy, in a
case was submitted to the jury, upon inwesterly direction, along Easton avenue. A
structions of the court. Verdict and judgtrain of defendant's cars, propelled as afore
ment were for the plaintiff Mrs. Hicks, and said, and in charge of its servants and
defendant appealed. agents, struck and collided with the rear of Smith P. Galt, for appellant. Seneca N. the vehicle in which plaintiffs were seated, Taylor, for respondents. at a point on said Easton avenue just west of Thomas street, and that the shock of the MACFARLANE, J. (after stating the facts). collision was such that plaintiffs' vehicle was 1. It is first argued that the judgment cannot broken, and they were precipitated to the stand, for the reason that there was no eviground." The character of the injuries is dence of negligence on the part of defendcharged to have been a shock to nervous ant's employés. The evidence shows that system, causing her eyesight to become im- the cars followed very slowly after the bug. paired, and affecting her mental condition, gy, and within a few feet of it, giving conand causing her to have frequent and seri- stant signals of its approach. That the cars ous hemorrhages, so that, ever since the ac- were under perfect control is attested by the cident, plaintiff has suffered great and con- undisputed fact that they were stopped imtinual physical pain and mental anguish.mediately on striking the wheel of the bugThe answer was a general denial, and a plea gy. So far there can be no complaint as to of contributory negligence. The judgment the conduct of the employés. The gripman was for plaintiff, and defendant appealed. in charge of the cars also saw plaintiffs driv
The evidence shows that Easton avenue is ing along the track in front of the train, and a public street, running in an easterly and knew that the cars were entitled to the right westwardly direction, through the city of of way on the track. The signals given were St. Louis. On this street defendant oper- not only intended to notify plaintiffs of the ates two tracks of its cable railway. A approach of the cars, but to admonish them space of only 11 feet is left on the north side to get out of the way. They should have of the street between the track of the rail. | expected that, in obedience to the signals, the way and the curbing. Thomas street runs buggy would be driven from the track, and into Easton avenue from the northwest, at should have been prepared for any necessary an angle of about 33 degrees. On the 22d checking of speed, or slipping of the wheel of day of April, 1891, plaintiffs, in a single top | the buggy on the rails, in making the turn. Counsel for defendant states the cause of the Railway Co., 76 N. Y. 532; Railway Co. v. injury thus: “Hicks drove the buggy with Isley, 49 N. J. Law, 468, 10 Atl. 665; Wood the front wheels onto the track, just ahead v. Railway Co., 52 Mich. 402, 18 N. W. 124. of the car, and continued to drive it that But we are not able to say that the evidence way, ahead, close in front of the car, bell shows conclusively that plaintiffs violated ringing all the time, and did not accelerate any of these rules, unless it was in driving his speed, and, without any notice to the grip- upon the track without observing the cars, man that he was going to do so, attempted which must have been very near them. But to turn to the one side, which always involves that negligence was clearly not the proximate a moment's lessening of speed, and thereby cause of the injury, for plaintiffs not only got caused the buggy to be struck by the car." safely upon the track without injury, but they We do not think that those in charge of the were seen by the servants of defendant, and, car were entitled to notice that plaintiffs by their timely action, a collision was then were about leaving the track, after they had avoided. After that, the conduct of plaintiffs been notified to leave it. On the contrary, could not be declared negligent, as a matter they should have beer prepared for such a of law. Whether they could have left the movement by plaintiffs, and for the moment's track more expeditiously than they did, and lessening of speed necessarily involved there whether doing so would have avoided the in. There was no evidence that the mo- injury, were questions for the jury. It seems mentary checking of the buggy was unusual to me there was very little evidence tending or unexpected. We think the question, then, to show contributory negligence in the case, as to whether the cars were run closer to but we cannot say there was none. Defendthe buggy than reasonable prudence and care ant's gripman saw plaintiffs in their dangerdictated, and whether defendant's employés ous and exposed situation, and the chief ques. should, in the exercise of proper care, have tion is whether, after that, he acted with due checked or stopped the cars, in order to give care towards them. Hanlon v. Railway Co., plaintiffs time to get out of the way, were
104 Mo. 389, 16 S. W. 233, and cases cited. properly for the determination of the jury. 3. Objections were made to a number of The evidence certainly tended to prove that hypothetical questions asked physicians by the cars were following within two or three plaintiffs' counsel, with a view to getting befeet of the buggy, and moving at about the fore the jury their opinion as to whether the same rate of speed; so a very slight check in condition and sufferings of Mrs. Hicks were the speed of the buggy would necessarily produced by the accident. These questions have resulted in a collision.
were long, and need not be given in full to 2. It is insisted in the next place that, understand the questions involved. The obthough defendant may have been negligent, jections urged to these questions were that plaintiffs were also guilty of negligence, they assumed facts not warranted by the which directly and proximately contributed testimony. The question asked Dr. Keir to the injury, and therefore the judgment assumed that the evidence tended to prove should not be sustained. It is said that plain- that Mrs. Hicks had "chilly sensations all tiffs were negligent in driving on the track over her body following immediately after in front of the train, and in thereafter driv- this accident;" “that she still has serious ing upon and laterally along the track with- floodings and severe pains on all occasions, out heeding the warnings of the defendant. and still has cold sensations all over her Generally, a distinction is made between the body." In the questions asked Dr. Fry, duties required of one going upon or crossing the following facts were assumed: That a street-car track and the track of a steam Mrs. Hicks was subjected to a “serious railroad. The weight and momentum of shock;" that the buggy fell "violently to trains propelled by steam renders their con- the pavement or to the ground, and that the trol and management much more difficult lady was thereby jarred, shocked, and frightthan light cars, moved by cable or electricity. ened to such a degree that she lost self-conThe measure of prudence which will constitute sciousness;" that "immediately after the acordinary care is less with respect to those cident, and for several weeks, she suffered going upon them than is required of persons nervous prostration to such a degree that crossing tracks of steam railroads. Beach, she was often unconscious;" that she “still Contrib. Neg. $ 290. Persons in wagons and has frequent flooding spells." The same other vehicles have the undoubted right to objections were urged to questions asked pass over or upon street-car tracks without Dr. Bond. The rule in regard to the hypohindrance; yet the right of a traveler to thetical questions that may be asked an exdrive a vehicle upon or along a street-railroad pert witness is thus clearly given in a retrack does not absolve him from the duty of cent case by this court: "Counsel, in prolooking for approaching cars. The cars can pounding a hypothetical question to an exonly move upon the tracks, and are used for pert witness, may assume any state of facts the convenience of the public, and are conse- the evidence tends to establish, and may quently entitled to the right of way as to all vary the questions so as to cover and preothers. It is therefore the duty of a traveler sent the different theories of fact. But to give way to approaching cars, so as to there must be evidence in the case tending cause no unnecessary hindrance. Adolph v. to establish all the facts stated in the question. If the question assume any fact which driven, upon defendant's track on the occathe evidence does not tend to prove, it should sion in question." We think the duty this be excluded." Russ v. Railway Co., 112 instruction required of street railways too Mo. 48, 20 S. W. 472. It is manifest that broadly stated, under the circumstances of a very slight change of fact may lead to a this case. The jury might well have in. very radical difference in the conclusion ferred from the instruction that it became drawn from it. This is particularly true the duty of the gripman of the car to stop when the opinion of physicians is used to the train immediately upon seeing the bug. prove the effect produced upon the health gy on the track in front of it, and that, if he of a person by a certain cause, or the cause could have done so, and failed, he was guilty of certain physical and mental conditions. of negligence. The same rule of care is If, then, the hypothetical questions to which thus imposed upon those managing a train objections are made assumed any fact which of cable cars in the streets as is required of the evidence did not tend to prove, they were one running a steam locomotive. The eviimproper, and should have been excluded. dence is undisputed that the cars, under perBut we have gone over the evidence very fect control, moving at a rate of speed not carefully, and are of opinion that it fairly exceeding a slow walk, followed the buggy tends to prove every fact assumed by the on the track from 30 to 50 feet, and could questions. The evidence proves that the have been stopped at any moment.
As was hind wheel was broken, which caused the said in the second paragraph of this opinion, buggy to fall to the ground, carrying plain. | a traveler in a vehicle has the right to use tiff with it. She was a large, fleshy woman, the track of a street railway and travel laterand from these facts it might well be in- ally upon it, provided the running of trains ferred that the fall of the buggy was "vio- were not thereby unnecessarily hindered, lent," and that plaintiff was thereby jarred, and that it was not negligence in itself for shocked, and frightened. The evidence of the train to so follow after the buggy. To plaintiffs was that she lost consciousness require a street car to stop for a clear track when the buggy fell, and before she was when no danger of a collision is threatened l'emoved from the place of the accident she would virtually stop the running of all such suffered severe pains through her back, trains, or so interfere with them as to greatly stomach, bowels, and womb, accompanied impair their usefulness. Beach says: "The with severe hemorrhages; and “creeping sen- danger of accident from a collision with sations" from head to foot, and from that street cars is very trifling, as compared with day to the day of trial she had hemorrhages, that from collision with trains of cars runand these "nervous sensations, drawings, ning at a high rate of speed upon a railroad. and twitchings." The evidence of Mrs. My- Street cars never run very fast, and are easirick was that all of the symptoms described ly and almost instantly stopped. What, by plaintif as the immediate result of the therefore, might be gross negligence as refall existed next morning, and also cold, spects a steam railroad, might be perfectly chilly sensations. All other symptoms con- prudent and perfectly proper to be done in tinuing, we may fairly infer from all the evi- dealing with street cars. We must not dence, that the chilly sensations followed therefore attempt to apply to street railways immediately after the accident. From all the rules of law applicable to steam railroads. the facts proven, we may also infer that The cases are essentially different, and, the plaintiff received a "serious shock."
reason for the rule ceasing, the rule itself 1. The first instruction defined the duty must also cease." Beach, Contrib. Neg. $ of defendant's gripman, in case he saw, or 290; Lyman v. Railway Co., 114 Mass. 83. by the exercise of reasonable care might It is true the instruction predicated the duty have seen, the buggy on the track in front of stopping upon the fact that the buggy of the cars, to be that of reasonable care to was in danger of being struck, but it asavoid a collision. There is nothing in this sumed that the danger arose when the bugrequirement of which defendant can reason- sy got upon the track. There was no danably complain. The second instruction giv- ger of a collision in moving the train slowly en on behalf of plaintiffs is as follows: "The and cautiously, and not negligently near to court further instructs the jury that if they the buggy. Both were going in the same dibelieve from the evidence that the gripman rection, and at about the same rate of speed, operating defendant's grip car on the occa- and danger only arose when plaintiff atsion of said collision saw, or by the exercise tempted to leave the track. But the instrucof reasonable care might have seen, said tion goes further, and plainly informs the buggy after it got upon defendant's track, jury that if the gripman saw the buggy, in danger of being struck by the car, in time after it got upon the track, in time to have to have stopped the train, by the exercise stopped the car and avoided the injury, the of reasonable care and diligence, before it defense of contributory negligence cannot struck the buggy, and so have avoided the col- avail defendant. It was as well the duty of lision, then the defense of contributory neg- the plaintiffs to leave the track as it was of ligence cannot avail, even if the jury believe defendant to prevent the cars from striking that Josephine Hicks, plaintiff, negligently the buggy. Reasonable care and caution drove the buggy, or allowed said buggy to be should have been observed by each in doing
what duty required of them. Plaintiffs were sideration of $880, and the record title was not relieved of this duty by reason of a fail- in him at the time of his death, in 1888. At ure of defendant to do that required of it. the May term, 1888, of the circuit court of There was no question here as to the negli- said county, this suit was instituted by the gence of plaintiffs in going upon the track plaintiff Celia J. Hall, one of his heirs, When the buggy got upon the track, the sit- against the defendants, the other heirs of uation was changed altogether. It was for said deceased, and his administrator and the jury to determine the question of negli- widow, to declare said deed a mortgage on gence and contributory negligence, in view said land to secure the payment by the said of what was done by the parties in the situ. Celia J. Hall of the sum of $380, upon payation in which they were placed. The ques- ment of which, and interest, she asked that tion of contributory negligence should not the defendants be divested of all interest in have been withdrawn from the jury in the said real estate, and the title be vested in circumstances.
her; alleging in her petition, in substance, 5. Counsel discuss the question as to that her father took and held the legal title whether the negligence of the husband can to said land in trust for her, and to secure be imputed to the wife. We do not think him in payment of the said sum of $380 adthe question appears upon this record in this vanced by him to her as a loan to pay off case. The charge in the petition is that the balance of the purchase money therefor. plaintiffs were driving the buggy. The in- All the material allegations of the petition structions assumed the same fact. There were put in issue by answers of the defendwas no attempt by the parties to separate the ants. The case came on for trial at the Noact of one from the other, and to consider vember term, 1889, of said court; and the the question of imputed negligence would be court, at said term, rendered a final decree, a very needless work. Whether Mrs. Hicks finding that the plaintiff Celia J. Hall, as a would be held responsible for the negligence child of the said James C. Morton, inherits of her husband or not, she would certainly one-fourth of his estate; that defendant be held responsible for her own. Hoag v. Mary A. Lane, as a child of said deceased, Railway Co., 111 N. Y. 199, 18 N. E. 648. inherits one-fourth of his estate; that deReversed and remanded. All concur.
fendants 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 HALL et al. v. LANE et al.
Morton, widow of said deceased, has elected (Supreme Court of Missouri, Division No. 1.
to take a child's part of his estate, and is July 9, 1894.)
thereby entitled to one-fourth interest thereVACATING JUDGMENT AFTER TERM.
in; that since the institution of this suit the Under Rev. St. 1889, $. 2113, providing
one-fourth interest of the said widow has that no judgment after trial shall be reversed been purchased by, and has become the for omitting any allegation, ithout proving property of, the said plaintiff Celia J: Hall; which the verdict ought not to be given, where
that the said Celia J. Hall is the owner of the petition stated a good cause of action, and judgment was rendered in favor of plain
said real estate; that she became the owner tiff on a point not alleged in the petition, and thereof in the spring of 1881, by purchase, there was no exception thereto, and no motion
for the consideration of $880, $400 of which for review or in arrest, the court cannot, at a subsequent term, set aside the decree because
she paid of her own means, and the remainnot warranted by the pleadings.
ing $480 of the purchase money was furError from circuit court, Schuyler county;
nished her by her deceased father, James C. Andrew Ellison, Judge.
Morton, with the agreement and understand
ing then had that the title to said land Action by Celia J. Hall and another
should be taken by the said Morton for the against N. E. Lane and others to have a certain deed declared a mortgage. From an or
sole purpose of securing him the payment
of said sum of $480; that the deed from the der denying defendants' motion to set aside
said H. H. Pearce to him for said land was a judgment for plaintiffs, defendants bring error. Affirmed.
so taken and held by the said deceased sole
ly for that purpose,-and decreeing that said John D. Smoot, for plaintiffs in error. deed be reformed so as to vest the title to Shelton & Dysart, for defendants in error.
said land in the said Celia J. Hall in fee
simple, divesting the defendants of all inBRACE, J. This case, involving title to terest therein, and charging said lands with real estate, is certified here from the Kansas the payment to the defendants' adminisCity court of appeals. The plaintiffs and de- trator of the said sum of $480 and interest fendants are the heirs at law and represen- thereon, amounting in the aggregate to the tatives of James C. Morton, deceased, and sum of $528, to be discharged upon the paytheir husbands. In his lifetime, one Henry ment by the said Celia of one-half thereof, H. Pearce, by deed duly executed and re- with interest, within six months, to said adcorded, conveyed to the said Morton the N. ministrator (she being entitled to the other 4 of the N. W. 14 of section 13, township one-half, one-fourth as heir and distributee 64, range 14, in Schuyler county, for the con- of her father, and one-fourth as purchaser of
the widow's interest therein). No exception the firm name on the particular notes sued upon. was taken to anything done on the trial, or
If they were given pursuant to a general auto this decree, by motion for review or in
thority, unrevoked, the liability would be the arrest of judgment; but at the subsequent 4. Where a note is given by a firm for May term, 1890, the defendants filed their the debt of one partner, it may lawfully be re inotion to set aside the decree for the reason
newed by any one of the partners without althat it is not warranted by the pleadings.
tering the firm's liability,
5. The course of business between members Their motion having been overruled, they of a firm may tend to show the authority of sue out their writ of error.
one partner to act for and charge the partner
ship. It is contended by the defendants that as the petition contains no allegation that the
(Syllabus by the Judge.) widow elected to take a child's part, or that Appeal from circuit court, Clay county; the plaintiff had purchased her interest, and
James M. Sandusky, Judge. no amended petition was ever filed, contain
Action by the Midland National Bank ing such allegations, the decree is not sup
against George J. Schoen. Judgment for deported by the pleadings, and the court com- fendant, and plaintiff appeals. Reversed. mitted error in refusing to sustain their mo- Lathrop, Morrow, Fox & Moore, for aption to set the same aside at a subsequent pellant. Gates & Wallace, for respondent. term. This contention cannot be maintained. It is expressly provided by our statute BARCLAY, J. This is an action upon two of jeofails that no judgment, after trial and promissory notes,-the first dated Septemsubmission, shall be "reversed, impaired or ber 8, 1890; the second, September 28, 1890,in any way affected” for omitting any alle- each payable at 90 days. The notes were osgation or averment, without proving which tensibly executed by Louis A. Schoen, Berthe triors of the issue ought not to have giv- tha Schoen, and Schoen Bros. to plaintiff. en such a verdict." Rev. St. 1889, § 2113. The action was begun in Jackson county If the defendants desired to take advantage against all the makers, including George J. of the alleged errors in the decree, they Schoen, who was charged to be liable as a should have called the attention of the trial member of the firm of Schoen Bros. But court to them, by motion for review or in he denied liability, and caused the removal arrest, at the term at which the decree was of the case to another county, by change of rendered; for, the petition stating a good venue, where the issues, as to him, were cause of action, and there being no irregular- tried. His answer denied under oath the ity in the proceeding, the control of the court facts charged in the petition, except the inover the decree and judgment, when the corporation of plaintiff, and the partnership term was past, ceased, except to allow such of George J. and Louis A. Schoen. He posiamendments of the pleadings in support of tively denied that he executed the paper the judgment as are authorized by that stat- sued upon, or authorized its execution. The ute. Ashby v. Glasgow, 7 Mo. 320; Brewer reply put in issue the new matter of the anv. Dinwiddie, 25 Mo. 357; Williams v. Judge, swer. The cause was tried with the aid of 27 Mo. 225; Harbor v. Railroad Co., 32 Mo. a jury. There was a verdict for defendant. 423; Downing v. Still, 43 Mo. 309; Childs v. Plaintiff moved for a new trial without sucRailroad Co., 117 Mo. 414, 23 S. W. 373; 1 cess, and then, after judgment, brought the Black, Judgm. $ 306; 1 Freem. Judgm, & 96.
case to the supreme court by appeal, after The judgment is affirmed. All concur. 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 dealMIDLAND NAT. BANK V. SCHOEN.
ing with Louis A. Schoen as early as 1886.
In 1887 the president of that company had an (Supreme Court of Missouri, Division No. 1.
interview with defendant at the time his July 9, 1894.)
brother, Louis, wished to renew a note then AUTHORITY OF Partner-SIGNING NOTES FOR under discount. The brothers Schoen were INDIVIDUAL PURPOSES.
partners in the drug trade at Kansas City, 1. The authority of one partner to bind but Louis informed the bank that the money the firm is governed by the law of agency. Within the range of the firm business, one may
to be raised on the paper was not on acact for all, as to persons having no notice of count of the regular requirements of the any limitations on the implied authority. Be- drug store. The president of the bank then yond the scope of the partnership, one partner may bind the other, where the latter would be
sent for defendant, George J. Schoen, and bound under the general law of principal and
the interviews which folle red are thus deagent.
scribed by the former, as a witness in this 2. One partner invested the other with a
cause: "When the first note became due he general authority to use the firm name upon notes for his individual purposes. A third per
(Louis) came in, and wanted to renew that son advanced money for such notes on the notc. I said to him that I wanted to know faith of that authority, and the first partner from George if he felt and acknowledged the was held liable on the notes. 3. On the facts just mentioned it is not
responsibility, before I would renew the essential to a recovery on such notes to show
note; and he went, and brought Mr. George that the signing partner was authorized to use Schoen, and I had a talk with George about