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have possession of property for two months, that deed ? A. He didn't put it in that way. from delivery of the deed at a monthly rental Q. How did he put it? Ă. Do you want me to of, twenty-five dollars and purchaser assumes state?. Q. Yes. *A. Well, of course, our office all interest on incumbrance from date of deliv- was his attorney, and that is the reason I asked ery of deed.” That prior to this transaction you that question. Mr. Alport said that he the witness had seen Mr. Alport in conversa- thought he could get more money out of this tion with Mr. Block at the office, but did not re- than the contract provided for, and he wouldn't member seeing Mrs. Alport there, and did not sign the deed. He came to me and says: 'Can't know whether she had consulted with Mr. you break that contract?' He says, 'If you will Block about the matter or not. That before get me out of that contract I will give you $500.' going down to Mrs. Alport's place of business I says, 'Mr. Alport, as far as I know, the conon the day the deed was signed, Mrs. Alport's tract was entered into fairly, and I wouldn't unmarried daughter called him over the telephone dertake to do it.' Q. Did he tell you at this and told him to hurry down and close the deal. time that Mrs. Alport wouldn't sign the deed? That he was detained for a short time on ac- A. He said she wasn't going to sign the deed ; count of other business, and Mrs. Alport's son- that she would get out of it some way." in-law called him over the phone and also re That some time before the deed was executed, quested him to hurry down. That when he ar- Mr. Alport told the witness that Mr. Ennis told rived at Mrs. Alport's place of business be them that they could buy another piece of propfound Messrs. Ennis, Adams, and Thomas, Mr. erty on Grand avenue for $18,000, but that it and Mrs. Alport, and their daughter and son had since been sold, and he wasn't able to get in-law there. The gold had been counted be- it. That Mr. Alport did not claim that this fore his arrival and replaced in the valise. was a part of the original agreement, but that: Witness afterwards saw the gold at the bank. / “Mr. Alport seemed to think that he made a That Mr. and Mrs. Alport objected to executing mistake in selling this property for the sum he the deed at first. Upon being asked what rea- did. He said he didn't know at that time; son Mrs. Alport gave for not wanting to ac- he said that he afterwards learned that Nelknowledge the deed, the witness said: "Well son was buying up the ground around there, and her reasons were, as I remember them, that she if he had known it and held it he could have didn't think she was getting enough for the gotten a bigger price, and he went on to state property, and the other reason that Mr. Nel- that he took this price for it and thought it was son—they understood later that Mr. Nelson was a good price at that time, but now he didn't, going to be the owner of this property, and they and he was a fool for making the agreement didn't know it at the time of the sale--and an- that he did." other party right next door had gotten more Tennyson Thomas testified: for their tract of ground, and they thought they

That at the time of the transaction he was ought to have more. That is my recollection of the reasons that Mrs. Alport gave at that Mr. Ennis called upon defendants for the pur;

connected with H. R. Ennis & Co. That he and time." After the deed was signed the witness asked Mrs. Alport if she acknowledged the pose of trying to purchase their property, and same as ber free act and deed, and that: "At for the property, $15,000 in cash, and the bal

that defendants finally agreed to take $20,000 first she said, 'I signed it, but I didn't do it be- lance to be paid by the assumption of the $5,000 cause I want to,' and I said, "That won't do, mortgage on the place. That the original conMrs. Alport; you have to acknowledge it as

tract was submitted to Mr. Block before it was your free act and deed before I can take your signed, because Mr. Alport would not sign it acknowledgment,' and she said, Well, I signed without Mr. Block's “O. K.” That the witness it all right. I don't remember the exact words, took the contract to Mr. Block's office, and Mr. but to the effect that you can put your seal on there if you want to, and some one spoke up and the telephone, after which Mr. Block made some

Block had a conversation with Mr. Alport over said that was an acknowledgment, and I said, interlineations in the contract, and then placed 'No, I won't take that,' and she and her daugh- his "O. K.” thereon. The witness then took the ter conversed about the matter, and I told her contract

to defendants, and read the contract that they bad signed a written contract to convey this property, and she told me then that she over to Mrs. Alport, and asked her if she upwanted to get more for it, and I told her i derstood it, and that she seemed perfectly willdidn't see how she could if she had signed a ing to sign the contract. The witness kept one contract stating the price she was to get for other. That a few days later Mr. Alport told

copy of the contract, and the defendants the it, and if they tendered her what she bad agreed him that they would not execute the deed beto sell it for I thought it was her duty to sign cause he thought he was to get $25,000 for the the deed, and she then finally says, 'I do acknowledge it as my free act and deed. I was property instead of $20,000. particular because of the fact that a tender was The witness further testified: being made.” The witness filled out the ac That defendants did not agree to sell the propknowledgment and took the deed to his office, erty upon the condition that Mr. Ennis would where he placed his notarial seal thereon, and sell them the $18,000 Grand avenue property, later in the day delivered the deed to Mr. En- but that they did have an option on that propnis. That before the deed was signed the wit- erty, and were willing to sell it to the defendness made some interlineations therein, to the ants, and urged them at several different times effect that the grantee should pay some city to purchase the property at $18,000, but that taxes and park assessments. That there was Mr. Alport said that he knew what property he no change made in the deed after the acknowl, I wanted to buy, and that he would buy a piece edgment. That after the deed was executed of property for about $7,500. That Mr. Ennis the witness thought that Mrs. Alport said that made a sale of the other Grand avenue property she wanted to put the money in the vault of on June 17th. That Mr. Nelson did not care the German-American Bank, but that she was to buy the property at 1707 Grand avenue, but not dressed to go berself, and said that “we” that Mr. Ennis had procured an option on it, could go on, and she would come later. That and the firm was to make a commission of $500 the bag of gold was taken down to the bank, in cash if they found a purchaser, and that they Mrs. Alport following in a few minutes, and were trying to sell it to any one who would buy after she arrived at the bank the money was it. The witness was present when the deed was counted out. The son-in-law seemed to be do- executed by defendants. That Mr. Adams did ing the counting of the money.

most of the talking to defendants, and refused

to take the deed unless defendants had their atOn cross-examination the following occur

torney present, and that some one telephoned red (Mrs. Alport's attorney asking questions): for Mr. Hock. That he could not understand the

"Q. Mr. Hock, hadn't Mr. Alport been up conversation between Mrs. Alport and her hus

That finally Mrs. Alport agreed to sign the deed, | property to a number of persons, the firm suc and did sign it, and that when Mr. Hock went ceeded in selling the property on June 17th, for to take her acknowledgment Mrs. Alport said it the sum of $18,000, and the firm received a $500 was not her free act and deed. That thereupon commission out of that. That the firm did not Mr. Adams told her and her husband that they receive any commission in handling defendant's did not want the deed unless it was of her free property. That a day or two prior to the deact and deed. That after that Mr. Hock talked fendants' executing the deed, witness bad notito Mrs. Alport a minute or two, and she then fied Mr. Alport that they were ready to close acknowledged it as her free act and deed. The the deal, and Mr. Alport had agreed to meet witness and defendant's husband then got upon them at Mr. Block's law office. That Mr. Ala street car and took the grip containing the port failed to keep his appointment. That theremoney to the German-American Bank at Four- upon the witness consulted Mr. Adams, and Mr. teenth and Grand avenue. The witness further Adams said: “We had better get within our testified that the $1,000 required to be deposited rights and make a tender.” That Mr. Adams by the terms of the contract of sale was deposit- “looked after all the legal ends of the transaced with H. R. Ennis & Co. as stated in the con- tiou." That witness requested Mr. Adams to tract, and that the $1,000 was paid to them by go with them to make the tender. That they Mr. Nelson's agent, Mr. Seested.

discussed whether they would take United

States treasury notes or gold, and that Mr. H. C. Edward testified:

Adams said: "Rather than have any question That he was present when Mrs. Alport signed about it, the best thing to do would be to take the original contract for the sale of the prem- gold; that can't be questioned.” That after ises, and that Mr. Thomas read the contract the tender was made defendants refused to exeover to her and explained its provisions to her, cute the deed, saying that they were not getting and that after the contract was signed, and enough money for the property; the witness de just as witness and Mr. Thomas were leaving, tails what occurred, as follows: "We told them Thomas said to Mr. Alport, “I would like very --at least I think I did--that they made a conmuch to sell you another piece of property, and tract, and we thought it was good, and if they I want to know when we can get together and didn't sign it we were going to endeavor to engo over the proposition.' That Mr. Alport re- force it through the courts. There was a good plied that he did not care to figure right then, deal of talk back and forth. Mrs. Alport talked but would see Mr. Thomas later." That was to her daughter, and her daughter wanted her all that was said about any other property at to sign, and her husband wanted her to sign, the time the contract was signed. The witness and, finally, after we agreed to pay the taxes, was also present at Mrs. Alport's place of busi- pay the special taxes for paving and some other ness when the tender of $15,000 in gold was taxes—I have forgotten what they were-she made, but left before the deed was signed. This said she would sign. At that time Mr. Adams witness, in substance, corroborates the testimony suggested and said they ought to have their atof plaintiff's other witnesses with reference to torney there, and either the son or the daughwhat occurred on that occasion.

ter went out and telephoned, son-in-law or

daughter, and eventually Mr. Hock came in, and On cross-examination this witness further she signed the deed. After the thing was extestified:

plained to him, and he asked her if she acThat at the time the contract for the sale of said, 'I signed the deed, but I don't acknowledge

knowledged this as her free act and deed, she the property was made defendant's daughter it as my free act, and he said, 'I can't take the read the contract over to Mrs. Alport and ex: acknowledgment unless it is acknowledged as plained the contract to her, partly in English her free act.' And I said, "Mr. Hock, as long and partly in Yiddish, and that Mrs. Alport as she

signs it, isn't that a good deed?' and he at No. 1707 Grand avenue was not referred to said 'No, she has to acknowledge it as her free at that time. That after the contract was sign- act and deed.', And Mr. Adams spoke up and ed and before the deed was executed Mr. Alport said, 'We don't care for the deed unless it is was at the office of Ennis & Co. one day, and her free act.' And she then, after conferring the company through their salesmen attempted with, her daughter and Mr. Hock--her husband to sell several pieces of property to Mr. Alport. didn't talk to her at that time-she signed the That one piece of property offered at this time deed and acknowledged it and held up her hand

and signed it. was the property at 1707 Grand avenue, the

* Q. Did you say any. same being offered at a price of $18,000, but thing or make any threat to Mrs. Alport to inthat Mr. Alport refused to do anything in the duce her to sign that deed ? A. The only thing matter, and said he did not want to buy at pres. faith, a contract had been made in good faith,

I said was that we had made a contract in good ent.

and that Mr. Nelson would try to enforce the H. R. Ennis testified:

contract." That he was not present when the contract of

Witness further testified: sale was executed by defendants, but that he negotiated the matters preliminary to the sign

That before the deed was finally executed he ing of the contract, and that the contract as made concessions to defendants which were not signed expresses the agreement which he and required in the contract of sale. One of these defendant reached concerning the sale of their concessions was with reference to his paying property. Some time after the contract was

some special taxes amounting to $320, and city signed, Mr. Alport came to the witness' office taxes amounting to about $50; that when Mrs. and delivered an abstract to the property. That Alport executed the deed she asked witness Mr. Alport was in the office of the real estate about the rent on the place, and witness told company often between the signing of the con- her that he would allow her to use the premises tract and the execution of the deed. That at for two months without the payment of any the time the contract of sale was signed on June rent, and that Mrs. Alport wanted a receipt for 5th and up until June 17th, the witness' real it, and thereupon witness wrote upon the back estate firm had the sale of the property known of the contract a statement to the effect that as No. 1707 Grand avenue at a price of $18,000. Mrs. Alport had paid $50 rent for two months; That the firm attempted to interest a number of that after the two months had expired they conpeople in the purchase of this property, among tinued to occupy said premises, and paid rent others, Mr. Alport, but that Mr. Alport said he for August, September, and October, paying $25 did not want to buy property on Grand avenue

a month for two of said months and $30 for one because it was too high, and another reason be of said months. That thereafter defendants regave was that he did not like the Jew who lived fused to pay rent, and defendants were given nonext door to 1707. That after trying to sell the tice to vacate the premises.


T. A. Frank Jones, of Kansas City, for ap- : Ennis and his associates. It is not contendpellant. Watson, Watson & Alford, of Kan-ed, nor does the evidence show, that Mr. Ensas City, for respondent.

nis urged or procured the husband to make

such a threat, but it is insisted that the act WILLIAMS, C. (after stating the facts as of Ennis and associates in making tender of above). Appellant contends that the findings the agreed purchase price in gold so operated and decree of the court are erroneous be- upon the mind of the husband as to cause cause they are "against the weight of the him to make the threat. evidence" and "contrary to equity and good That the person making the tender was conscience.” Since the above is the decisive within his legal rights in making the offer question in the case, it became necessary in gold cannot be seriously doubted. But in making the foregoing statement of facts the fact that it was so made, and the manner to set forth, more fully than would other in which it was made, might well cause a wise be necessary, the testimony of the re- court of equity to carefully scrutinize the spective witnesses. We have carefully and situation and to make mental tests for traces painstakingly reviewed the entire evidence, of fraud, and if the weight of the evidence and have reached the conclusion that the should show other matters indicating suspiweight of the evidence is in support or the cious circumstances, undue coercion, decree entered by the trial court. It would fraud, this somewhat unusual occurrence, serve no useful purpose to discuss at length, and therefore suspicious circumstance, or in detail, the weight of the evidence, but might throw added color upon the transacit is perhaps not amiss that we should dis- tion. But where, as here, this slightly suscuss some of the main features of the testi- picious circumstance is not supported or surmony which leads us to the conclusion rounded by an atmosphere of fraud or susreached.

picious circumstances, we do not regard the [1-3] The case is mainly built around the matter as having much weight. In fact defollowing controverted issues of fact: (1)| fendant's evidence does not show that the Was Mrs. Alport fraudulently induced to threat was the result of the sight of the gold. sign the original contract under the belief Whether the threat, if made, was caused by that her obligation to sell or convey her reason that the husband thought they were property was upon the condition that she bound by the original contract, or convinced was to receive the title to another property by advice of their attorney that they should in the same block for the sum of $18,000?! do so, or by reason of the sight of the gold, (2) Was she caused to sign the deed by rea- or other reason, is left to conjecture. We son of the alleged fraud upon the part of would indeed be reluctant in believing, in the Mr Ennis? (3) Did she properly acknowl- ; absence of clear and cogent proof, that deedge the deed ?

fendant's husband, a Hebrew, and although, In the view that we take of the case it no doubt, possessing in common with the will not become necessary to determine great majority of mankind in this somewhat whether Mr. Ennis was so far the agent of material age a strong appreciation and deplaintiff as to bind or affect the plaintiff sire for possession of gold, would be so far by whatever was done by Mr. Ennis in the overcome by the sight of and the thought of transaction, but for the purposes of the dis- the near possession of gold and so far forget cussion we will assume that he was such himself as to violate that most sacred trait agent. With reference to the first question or characteristic of his race and people, to of the fact, the evidence was, as stated by wit, undying loyalty and fidelity to wife and appellant in her brief, "irreconcilably con- family, by threatening in such a manner as tradictory." But the fact that defendant would convince his wife, his lifelong and in her sworn letter to Ennis based her re- business companion and helpmeet, the mofusal to surrender possession on the ground ther of his children, that unless she signed that she was to have $20,000, net under the the deed he would forsake and abandon her contract, and was therefore entitled to $5,000 and the children. This contention is lacking additional money, and in said letter made no in genuine ring. It smacks too much of an mention whatever of her present conten- ingenious subterfuge to call for much activition, to wit, that her grievance was based ty upon the part of a court of conscience. upon her failure to be allowed to become the As to the third point, there is also an irrecpurchaser of the $18,000 property, would oncilable conflict in the testimony. Mrs. Alstrongly indicate that the claim now made port testified that she refused to acknowledge was an afterthought. With reference to the i the deed as her free act and deed. The nosecond issue of fact, defendant testified that tary, Mr. Hock, testified that she did acknowlshe signed the deed, not because of threats of edge the deed to be her free act and deed. suit, etc., made by Mr Ennis, but that she There is nothing in the record that discloses was coerced into signing the deed by reason anything in the least suspicious about Mr. of the threat made by her husband that he Hock's part in the transaction. It appears would leave her and the children if she did from the testimony that Mr. Hock was connot sign the deed. It appears that the nected with the law office of Mr. Block; that alleged threat upon the part of the husband Mr. Block was acting as the attorney for

original contract and in drawing the deed, tion and is sufficient to charge that plaintiff which Mrs. Alport signed, and that Mr. Hock, was moving towards the fixed path of the street in response to a telephone call from Mrs.ed or the car was stopped, he would be run

car in such a manner that, unless he was warnAlport's daughter, came to defendant's place down. of business just before the deed was signed ; (Ed. Note.-For other cases, see Street Railthat after arriving there he held consultation roads, Cent. Dig. $$ 258–269; Dec. Dig. $ 118.*) with Mrs. Alport and her husband asid 2. APPEAL AND ERROR (8 882*)-REVIEWfrom the other persons present, and advised

PERSONS ENTITLED TO ALLEGE ERROR. with them as to the propriety of their sign- the same theory set forth in those given on be

Where defendant adopted in its instructions ing the deed. Mrs. Alport's subsequent ac-half of plaintiff, defendant cannot on appeal tions are somewhat inconsistent with her complain that plaintiff's instructions enlarged claim that she did not acknowledge the deed. the issues framed by the pleadings. She followed the money down to the bank, Error, Cent. Dig. 88 3591-3610; Dec. Dig. $

[Ed. Note.-For other cases, see Appeal and and was there while it was being counted 882.*) and deposited in a safety deposit vault. La 3. STREET RAILROADS ($ 118*)—INJURIES TO ter some of this same money was used to PERSON ON TRACK-INSTRUCTIONS-APPLICpurchase other real estate, and the title ABILITY TO EVIDENCE. thereto was taken in her name. It does not

Where plaintiff, coming from the north, was appear that she made any protest at the bank crossing the car tracks in a southeasterly direc

tion, unaware of an approaching east-bound car, when she saw the money being delivered by which struck him, and within plain view of the Mr. Ennis, or that she made any objections gripman, an instruction on the duty of the gripwhen the title to the after-purchased proper- plaintiff of its approach is properly given, par.

man to bave stopped the car or have warned ty was taken in her name.

ticularly where plaintiff was avoiding a westWhen the above matters are considered in bound car. connection with the fact that the testimony (Ed. Note.-For other cases, see Street Railon the important issues presents sharp con- roads, Cent. Dig. 88 258–269; Dec. Dig. $ 118.*] flicts, making the credibility of the respec-4. STREET RAILROADS ($ 117*)-INJURIES TO tive witnesses an important factor in deter:

PERSONS ON TRACKS-ACTIONS. mining the real facts in the matter, and the down by a cable car, the question whether the

In a personal injury action by one run further fact that the trial judge had an op- sounding of the alarm would have aided in preportunity of seeing and hearing the respec-, venting the injury held, under the evidence, for tive witnesses, we are unable to say that

the jury. his finding was wrong, and therefore feel roads, Cent. Dig. $8 239-257; Dec. Dig. 8 117.*)

[Ed. Note.-For other cases, see Street Rail. no hesitancy in affirming the decree enter


PERSONS ON TRACKS-DUTY OF GRIPMAN. The judgment is affirmed.

Those in charge of a street car are not

bound to stop the car or to slacken speed until ROY, C., concurs.

they see, or could by ordinary care see, that one crossing the street is in a position of peril, and

if after that they cannot, by ordinary care, prePER CURIAM. The foregoing opinion of vent the accident, the street railway company is WILLIAMS, C., is adopted as the opinion of not liable. the court. All the Judges concur.

[Ed. Note.-For other cases, see Street Railroads, Cent. Dig. $8 195-200; Dec. Dig. $ 93.*] 6. TRIAL ($ 260*)-INSTRUCTIONS_REFUSAL.

The refusal of requested instructions cov

ered by those already given is not error. HOLZEMER V. METROPOLITAN ST. RY.

[Ed. Note-For other cases, see Trial, Cent. CO. (No. 16479.)

Dig. 88 651-659; Dec. Dig. $ 260.*] (Supreme Court of Missouri, Division No. 2. 7. APPEAL AND ERROR_(§ 232*)-PRESENTAJuly 14, 1914.)


LOW--NECESSITY. 1. STREET RAILROADS (8 118*)-INJURIES TO Error in permitting an expert witness to

PERSON ON TRACK-INSTRUCTIONS--APPLIC- answer a hypothetical question, wbich was not ABILITY TO ISSUES.

based upon all the facts shown by the evidence, The petition by one run down by a cable I cannot be taken advantage of on appeal, where car while crossing the street alleged that plain- i that ground of objection was not made at trial. tiff's injuries were caused by the carelessness

[Ed. Note.-For other cases, see Appeal and of the gripman and conductor who failed to Error, Cent. Dig. $s 1351, 1368, 1426, 1430, check the speed of the car when they saw, or 1431; Dec. Dig. 232.*] by ordinary care should have seen, that plaintiff was liable to be run down unless the car 8. EVIDENCE (8 193*)-DEMONSTRATIVE EVIwas stopped or he was warned An instruction DENCE-ADMISSIBILITY. given for plaintiff informed the jury that the In a personal injury action by one run gripman was bound to keep a reasonably vigi- down by a street car, tried some two years after lant lookout for persons ahead, and that, if the accident, it was not error for the court to plaintiff was in or going into a situation where admit in evidence rock identified by a witness it was reasonably probable that he would be as one which he removed from plaintiff's face run into unless the car was stopped or he was after plaintiff was taken from beneath the car, warned. the gripman's failure was negligence. such evidence tending to give the jury a more Held, that the use of the phrase "going into a correct impression of plaintiff's injuries, wbich situation" instead of "in a situation" did not had of course, healed to some extent. enlarge the issues framed by the petition, which [Ed. Note.–For other cases, see Evidence, must, after verdict, be given a liberal construc-I Cent. Dig. $ 678; Dec. Dig. $ 193.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes


9. EVIDENCE ($150*)-EXPERIMENTS-ADMIS-, to bave seen, that plaintiff was in a situation SIRILITY.

where he was liable to be run into by said cable In an action by one run down by a street train unless the speed of said train was checked car, where the negligence relied on was the fail- or it was stopped or plaintiff warned of the apure of the gripman to stop after discovering proach thereof before it collided with plaintiff." plaintiff's peril, the exclusion of evidence of

The answer was a general denial. The acexperiments as to the distance in which such a car could have been stopped is not error, where cident occurred about noon, December 1, it was not shown that the circumstances sur- 1908, at the intersection of Belleview avenue rounding the experiment were the same as those and West Twelfth street, Kansas City, Mo. at the time of the accident. [Ed. Note.-For other cases, see Evidence, this street the defendant had a double track,

Twelfth street runs east and west. Upon Cent. Dig. § 439; Dec. Dig. $ 150.*] 10. APPEAL AND ERROR ($ 206*) - OFFER OF

and at the place in question there was about PROOF-NECESSITY.

a 5 per cent. grade in the street car tracks, A party cannot take advantage of the ex- being downgrade to the west and upgrade to clusion of evidence, where no offer of proof was the east. The north track was used for westmade in the court below.

bound or downgrade cars, and the south [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 1273, 1283–1289; Dec. track was used for east-bound or upgrade Dig. $206.*]

Plaintiff was injured by one of the 11. TRIAL ($ 140*)-JURY QUESTION-CREDI- east-bound or upgrade cars. The street cars BILITY OF WITNESSES.

at this place were operated by means of an In a personal injury, action, where there underground cable which was propelled at was evidence in support of plaintiff's claim, the case cannot be taken from the jury on the a rate of about eight miles an hour by means ground that the testimony in plaintiff's favor of a stationary steam engine. The train of was unworthy of belief; the credibility of wit- cars operated at this place consisted of one nesses being a question for the jury. (Ed. Note. For other cases, see Trial, Cent. I each train was in charge of one gripman and

grip car and one trail car or coach, and Dig. $$ 334, 335; Dec. Dig. $ 140.*]

a conductor. The grip car was in front. A 12. DAMAGES (8 132*)-PERSONAL INJURIESASTOUNT.

steel grip attachment extended down from Where a boiler maker, 57 years old, who the grip car through a slot or opening beearned over $100 a month, was run down by a tween the rails of the tracks and connected street car, one arm being broken, his spinal column being injured, and the bones about his with said underground cable. This grip was face being badly broken, an award of $15,000 operated by the gripman by means of a lever damages is excessive by $3,000, even though he in the grip car. The car would be moved suffered great pain, and the injuries, which left forward by the gripman causing the grip or bis tongue partially paralyzed, also prevented clutch to fasten onto the underground cable, him from following his old occupation.

[Ed._Note.-For other cases, see Damages, which would cause the car to move at the Cent. Dig. 88 372–385, 396; Dec. Dig. 8 132.*)same rate of speed as the underground cable.

Appeal from Circuit Court, Jackson Coun. The cars were stopped by releasing this grip ty; Herman Brumback, Judge.

and applying brakes. The train was equipAction by Frank Holzemer against the ped with two brakes, one a ratchet brake Metropolitan Street Railway Company. From wbich operated on the wheels of the grip car a judgment for plaintiff, defendant appeals. and the other an automatic brake which Affirmed on condition that plaintiff enter re- operated on the wheels of the trail coach. mittitur, otherwise reversed and remanded.

The ratchet brake would begin to operate Plaintiff, while a pedestrian on one of the would not begin to operate until four or five

as soon as applied, but the automatic brake public streets in Kansas City, was struck by feet of slack was taken out of the chain. one of defendant's street cars and injured. Just prior to the accident the situation was This action is to recover damages for said

as follows: Defendant, coming from the injuries. Upon a second trial of the cause north, started diagonally to the southeast in the circuit court of Jackson county, plainacross the tracks. At this time a west-bound tiff obtained a judgment for $15,000, and de- car was between 100 and 150 feet to the east fendant duly perfected an appeal to this of the plaintiff, and the upgrade or eastcourt. That portion of the petition specify- bound car, which afterwards struck him, ing the negligence of defendant was as fol

was coming up the grade between 50 and 90 lows:

feet to the west of plaintiff. Plaintiff's testi“That the injuries to plaintiff, and the dam- mony as to how the accident occurred was as ages to plaintiff on account thereof, were caused by the carelessness and negligence of said de- follows: fendant in that said gripman and conductor in "I was traveling east, diagonally over Twelfth charge of said cable train failed to keep a prop- | Street, and I crossed over the north track, or er lookout for persons who were on said street just before I got to the north track I seen a car and who were liable to be struck by said train, coming down hill. When I got between the and ran said train in a careless and negligent north and the south track, my foot slipped, and manner and in disregard of the rights of per- I fell down on the south track, and before I sons on said West Twelfth street and at or could get up the car was over me. I didn't sie near said Belleview avenue, as aforesaid, and this car coming. At the time the car struck me failed to check the speed of or stop said train or I was trying to get up. I think I was on my warn plaintiff of the approach thereof and there- hands and knees. When the car passed over by avoid running into the plaintiff, when they me, I made a grab at something underneath the saw, or by the exercise of ordinary care ought car to try and hold myself free from the pave

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