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have seen, that the plaintiff was not going to y had the right to assume that the plaintiff stop before he got into a position of peril." would stop before he went upon the track, Gordon v. Park, 219 Mo. 600, loc. cit. 612, 117 and that the gripman was not required to S. W. 1163, and cases therein cited.

check or stop the car until there was dan[3] In support of the second objection to ger of a collision. Under the evidence in said instruction, appellant contends that this case, instruction E was properly rethere was no evidence that the gripman could fused. Ellis v. Met. Street Ry. Co., supra, have seen the plaintiff going into a situation 234 Mo. loc. cit. 681, 138 S. W. 23. The corof danger. It is a sufficient answer to this rect theory applicable to the evidence in the to say that the evidence shows that plain-present case is contained in appellant's given tiff, coming from the north, started across the instruction No. 3. double tracks of defendant in a south-easter- [6] Instruction G was as follows: ly direction, unaware of the approach of the "The court instructs the jury, if you find and east-bound car. This would throw his back believe from the evidence that at the time that

the plaintiff got into a position of peril the somewhat towards the east-bound car. A

car was then so close to him that it was imposwest-bound car was also approaching the sible for the gripman to avoid the accident, crossing. It is very doubtful if there was plaintiff is not entitled to recover in this action, sufficient space between the two tracks to al- and your verdict must be for the defendant.” low a pedestrian to stand between two pass

The court did not err in refusing this ining cars. At the time plaintiff started across struction, because the law applicable to the the tracks, he was within plain view of the points attempted to be covered by said ingripman on the east-bound car. And, had struction had already been properly set forth the gripman been looking ahead, he could in appellant's instruction No. 3, above menhave seen plaintiff in the above situation

tioned. and could have seen him crossing the north

Instructions H and K were on the question track to avoid the west-bound car, and of burden of proof. This point was proptherefore could have reasonably anticipated erly covered by appellant's instruction No. 2, that plaintiff would come within the danger which was given by the court, and the reof the east-bound car, if it was not slack-fusal of these instructions did not constitute ened or stopped, or the plaintiff given some warning of its approach so that he would

[7] III. The action of the court in admitwait until it had passed, or, if in a position ting certain evidence is assigned as error. where he could not wait by reason of the Under this point, it is claimed that the other car approaching him from the east, to court erred in permitting Dr. Neal to anhave caused him to have put forth an extra swer a certain hypothetical question, because effort to clear the east-bound car.

the question asked was not based upon all

With re[4] Appellant further contends that “there the facts shown by the evidence.

no evidence that any warning could gard to this point, it is sufficient to say that have been given which might have avoided the reason or ground now given by appellant

as to why the question was improper was the accident." In support of this contention, appellant cites the case of Heinzle v.

not contained in the objection made to the Railway Co., 182 Mo. 528, 81 S. W. 848. But

question at the trial. the facts in that case clearly distinguish it erred in allowing the rock, said to have been

[8] It is further contended that "the court from the present case. In the Heinzle Case the evidence shows that the motorman in duced as an exhibit.” The introduction of

taken from the face of plaintiff, to be introcharge of the car did not see and could not this evidence occurred in the following way: have seen the little girl until she ran out Witness Russell testified that he helped take from behind another car, within a very few feet of the oncoming car and too close to tion of his evidence concerning the rock was

plaintiff out from under the car. the car to have been saved by any action

as follows: upon the part of the motorman after he could have seen her. But in the present case face, and I pulled it out, right there through

“After we got him up I saw a stone in his the gripman's view was unobstructed, and the jaw. Q. Now, is that the rock you saw he could have seen the plaintiff approaching there?, The Court: Wait a moment.

Do not the danger, unaware, had the gripman been Just state whether or not that is the rock. A.

show that outside of the paper. Mr. Bird : in the exercise of proper care upon his Yes, sir; that is the rock. Q. And wherepart. Under the situation, it was for the abouts, now, on Holzemer did you find this jury to say whether the giving of an alarm rock? Mr. Page: I object to that as immatewould have aided in preventing the injury. allegations of negligence contained in the plain

rial, and not proving or tending to prove any Cytron v. Transit Co., 205 Mo. 692, 104 S. W. tiff's petition. The Court: It is not intended 109; Ellis v. Met. Street Ry. Co., 234 Mo. to prove pegligence, I presume, but as bearing 657, loc. cit. 683, 138 S. W. 23.

on the injuries. I presume that is what it was

for. Go ahead. (To which defendant duly [5] II. Appellant further contends that the saved its exception.) I took that out of the court erred in refusing its instructions E, G, jaw; right by the side of his jaw there (inH, and K. Instruction E told the jury that, dicating) Mr. Bird: We offer that in evidence. even though the gripman saw plaintiff ap- it does not prove or tend to prove any allega

(Objected to by defendant for the reason that

was

That por

or

avenue

upon which said cable train was running. If, preponderance of the credible testimony, to your therefore, you believe and find from the evi: reasonable satisfaction, that the gripman was dence that on or about December 1, 1908, and guilty of negligence, and that such negligence at about the hour of 12 o'clock noon, on said

was the direct cause of injury complained of, day, the plaintiff was walking southeast on then your verdict must be for the defendant." West Twelfth street, in Kansas City, Mo., and

Defendant's given instruction No. 3 (the was crossing the tracks of said defendant at near Belleview

and said West portion in parenthesis having been inserted Twelfth street, and that said West Twelfth by the court over the objection of defendant) street was a public street and thoroughfare of

was as follows: said Kansas City, Jackson county, Mo., and that one of the cable trains of the defendant,

"The court instructs the jury that, even east bound, was run into and against the plain though you might believe and find from the tiff and injured him, and if you further be- evidence that the gripman operating the car lieve and find from the evidence that plaintiff saw the plaintiff approaching the east-bound was on or approaching the east-bound track of track, yet under the law the gripman was not the defendant at or near said Belleview ave required to begin to stop his car or to check or nue and West Twelfth street, and that, by slacken the speed of same until he saw, or by reason of the fact that he was on or approach. the exercise of ordinary care could have seen, ing said east-bound track, he was in a situation, that the plaintiff was not going to stop before or was going into a situation, where it was he got into a position of peril, and you are reasonably probable that he would be run into instructed that if you find and believe from the by said cable train and injured unless the speed evidence that the gripman could not by the exerof said train was checked, or it was stopped cise of ordinary care prevent the accident (by before it collided with him, and that the grip- stopping the car or checking or slackening the man in charge of said east-bound train saw, or speed of the same or by warning the plaintiff) by exercising the care of a reasonably pru- after he saw, or by the exercise of ordinary care dent gripman, under the circumstances, would could have seen, that the plaintiff was not gohave seen, that plaintiff was in a situation, or ing to stop before he got in a position of peril, was going into a situation, where a reasonably your verdict must be for the defendant." prudent gripman would have concluded that it

John H. Lucas and C. S. Palmer, both of was reasonably probable that plaintiff would be run into by said cable train and injured un

Kansas City, for appellant. Charles A. less the speed of said train was checked, or Stratton, of Jefferson City, and Bird & Pope, it was stopped, or plaintiff was warned of the of Kansas City, for respondent. approach of said train before it collided with the plaintiff, and if you further believe and find from the evidence that said gripman in WILLIAMS, C. (after stating the facts as charge of said east-bound train saw (if you above). I. Appellant contends that plaintiff's find he did see), or by exercising the care of a instruction No. 1 was erroneous (1) because reasonably prudent gripman, under the circumstances, would have seen (if you find that by it enlarged the issues framed by the petition; exercising such care he would have seen), that (2) because it was not justified by the eviplaintiff was in a situation, or was going into dence. à situation where a reasonably prudent gripman would have concluded that it was reasonably

[1] With reference to the first objection, probable that plaintiff would be run into by appellant insists that the use in the instrucsaid cable train unless the speed of said train tion of the phrase "going into a situation" inwas checked, or it was stopped before it collided stead of the phrase "in a situation,” as al. with the plaintiff, and could thereafter, by exercising the care of a reasonably prudent leged in the petition, amounted to an engripman, under the circumstances, and with due largement of the negligence alleged. We are regard to the safety of the people on said cable unable to agree with this contention. It will train, have checked the speed of said car, or stopped the same or warned the plaintiff of the be noticed that, both in the petition and in approach of said train before it collided with the instruction, the “situation" 'in which the plaintiff, and thereby could have avoided plaintiff is required to be before the defendcolliding with and injuring the plaintiff, and failed to do so, then the defendant was 'negli- ant is required to act is one which, if congent. And, if you further believe and find from tinued to exist, coupled with the failure of the evidence that said negligence (if any) of defendant to do certain specified acts, will the defendant caused the injuries (if any) to result in plaintiff being struck by the car. the plaintiff, then you will find for the plaintiff, and assess his damages (if any) at such sum The allegation of negligence in the petition, as the evidence shows is a full, fair, and just especially when given the liberal construccompensation for the injuries (if any) sustain-tion to which it is entitled after verdict ed by him, considering their nature and character as shown by the evidence, not exceeding, (Sharp v. Railway Co., 213 Mo. 517, loc. cit. however, the sum of $25,000, the amount 525, 526, 111 S. W. 1154), is sufficient in scope claimed in plaintiff's amended petition, although to embrace the meaning that plaintiff was you may

further believe and find from the evi: moving toward the fixed path of the street dence that plaintiff was negligent, or did not exercise the care of an ordinarily prudent person car in such a manner and under such surunder the circumstances, in crossing the tracks rounding circumstances as would cause him of the defendant without looking or listening to be struck by the car if the gripman did for, or becoming aware of, the approach of the not do certain things with reference to the cable train that collided with him." Defendant's given instruction No. 2 was as

operation of the car or give a warning of the follows:

car's approach.

[2] Furthermore, “The court instructs the jury that the burden

not

appellant should of proof is on the plaintiff to prove to your now be heard to complain in the above rereasonable satisfaction, by the preponderance gard, since it adopted practically the same or greater weight of the credible testimony, that theory in its instruction No. 3, wherein the the gripman was guilty of negligence; and unless you believe and find from the evidence in gripman is not required to act “until he saw, the case that the plaintiff has proved by al or by the exercise of ordinary care could

error.

have seen, that the plaintiff was not going to had the right to assume that the plaintiff stop before he got into a position of peril." would stop before he went upon the track, Gordon v. Park, 219 Mo. 600, loc. cit. 612, 117 and that the gripman was not required to S. W. 1163, and cases therein cited.

check or stop the car until there was dan[3] In support of the second objection to ger of a collision. Under the evidence in said instruction, appellant contends that this case, instruction E was properly rethere was no evidence that the gripman could fused. Ellis v. Met. Street Ry. Co., supra, have seen the plaintiff going into a situation 234 Mo. loc. cit. 681, 138 S. W. 23. The corof danger. It is a sufficient answer to this rect theory applicable to the evidence in the to say that the evidence shows that plain- present case is contained in appellant's given tiff, coming from the north, started across the instruction No. 3. double tracks of defendant in a south-easter- [6] Instruction G was as follows: ly direction, unaware of the approach of the “The court instructs the jury, if you find and east-bound car. This would throw his back believe from the evidence that at the time that

the plaintiff got into a position of peril the somewhat towards the east-bound car. A

car was then so close to him that it was imposwest-bound car was also approaching the sible for the gripman to avoid the accident, crossing. It is very doubtful if there was plaintiff is not entitled to recover in this action, sufficient space between the two tracks to al- and your verdict must be for the defendant.” low a pedestrian to stand between two pass

The court did not err in refusing this ining cars. At the time plaintiff started across struction, because the law applicable to the the tracks, he was within plain view of the points attempted to be covered by said ingripman on the east-bound car. And, had struction had already been properly set forth the gripman been looking ahead, he could in appellant's instruction No. 3, above menhave seen plaintiff in the above situation

tioned. and could have seen him crossing the north

Instructions H and K were on the question track to avoid the west-bound car, and of burden of proof. This point was proptherefore could have reasonably anticipated erly covered by appellant's instruction No. 2, that plaintiff would come within the danger which was given by the court, and the reof the east-bound car, if it was not slack- fusal of these instructions did not constitute ened or stopped, or the plaintiff given some warning of its approach so that he would

[7] III. The action of the court in admitwait until it had passed, or, if in a position ting certain evidence is assigned as error. where he could not wait by reason of the Under this point, it is claimed that the other car approaching him from the east, to court erred in permitting Dr. Neal to anhave caused him to have put forth an extra swer a certain hypothetical question, because effort to clear the east-bound car.

the question asked was not based upon all [4] Appellant further contends that "there

the facts shown by the evidence. With rewas no evidence that any warning could gard to this point, it is sufficient to say that have been given which might have avoided the reason or ground now given by appellant

as to why the question was improper was the accident." In support of this contention, appellant cites the case of Heinzle v.

not contained in the objection made to the Railway Co., 182 Mo. 528, 81 S. W. 848. But

question at the trial. the facts in that case clearly distinguish it erred in allowing the rock, said to have been

[8] It is further contended that "the court from the present case. In the Heinzle Case the evidence shows that the motorman in taken from the face of plaintiff, to be introcharge of the car did not see and could not this evidence occurred in the following way:

duced as an exhibit.” The introduction of have seen the little girl until she ran out Witness Russell testified that he helped take from behind another car, within a very few feet of the oncoming car and too close to tion of his evidence concerning the rock was

plaintiff out from under the car.

That porthe car to have been saved by any action

as follows: upon the part of the motorman after be could have seen her. But in the present case face, and I pulled it out, right there through

"After we got him up I saw a stone in his the gripman's view was unobstructed, and the jaw._ Q. Now, is that the rock you saw he could have seen the plaintiff approaching there? The Court: Wait a moment. Do not the danger, unaware, had the gripman been Just state whether or not that is the rock. A.

show that outside of the paper. Mr. Bird : in the exercise of proper care upon his Yes, sir; that is the rock. Q. And wherepart. Under the situation, it was for the abouts, now, on Holzemer did you find this jury to say whether the giving of an alarm rock? Mr. Page: I object to that as immatewould have aided in preventing the injury. allegations of negligence contained in the plain

rial, and not proving or tending to prove any Cytron v. Transit Co., 205 Mo. 692, 104 S. W. tiff's petition. The Court: It is not intended 109; Ellis v. Met. Street Ry. Co., 234 Mo. to prove negligence, I presume, but as bearing 657, loc. cit. 683, 138 S. W. 23.

on the injuries. I presume that is what it was for.

Go ahead. (To which defendant duly [5] II. Appellant further contends that the saved its exception.) I took that out of the court erred in refusing its instructions E, G, jaw; right by the side of his jaw there (inH, and K. Instruction E told the jury that, dicating). Mr. Bird: We offer that in evidence. even though the gripman saw plaintiff ap- it does not prove or tend to prove any allega

(Objected to by defendant for the reason that

tion overruled, to which defendant duly saved | would justify this court in saying that the its exception."

court erred in that regard. The trial occurred about two years after [12] VI. It is next contended that the verthe date upon which plaintiff received the in- dict was excessive. After careful considerajuries, and the wounds on his face had un- tion, we have reached the conclusion that the doubtedly healed much in that time. The in- verdict is excessive by $3,000. troduction of the stone which the witness If, therefore, the plaintiff will, within ten claims to have pulled from the face or jaw of days, enter a remittitur of $3,000 as of the the plaintiff just after the injury would enable date of the judgment in the trial court, the the jury to get a more accurate impression of judgment will be affirmed for $12,000, with the original extent of that portion of his in- interest at 6 per cent. from the date of the juries. The extent of plaintiff's injuries was judgment in the trial court; otherwise the one of the issues in the case, and therefore judgment will be reversed, and the cause rethe above evidence was properly admitted. manded.

[9] IV. It is next contended that “the court erred in excluding evidence of an actu

ROY, C., concurs. al test of the distance within which a cable train could have been stopped at the place in question." Two of defendant's witnesses WILLIAMS, C., is adopted as the opinion of

PER CURIAM. The foregoing opinion of were asked if they had seen "an emergency the court. All the Judges concur. stop made there this morning," and further asked, “Within what distance was the car stopped?" To these questions plaintiff's counsel objected. The court sustained the ob

BOESEL V. WELLS FARGO & CO. jections, and the defendant excepted to the

(No. 16152.) ruling of the court. In the case of Riggs v. Railroad, 216 Mo. 304, 115 S. W. 969, the rule (Supreme Court of Missouri. July 2, 1914, with regard to receiving evidence of experi- Rehearing Denied July 14, 1914.) ments and their results was stated by Lamm, 1. NEGLIGENCE (8 117*)–CONTRIBUTORY NegP. J., as follows:

LIGENCE - AFFIRMATIVE DEFENSE — NECES"We find no fault with plaintiff's proposition SITY OF PLEADING, of law, viz., that experiments and their results Contributory negligence, to be available are admissible proof when it is first shown that as an affirmative defense, must be pleaded, but causal conditions and circumstances are sub- | if the proof shows plaintiff to have been neglistantially reproduced at the experiments." gent as a matter of law so as to bar a recovery,

[10] Under the above rule the questions such negligence is available though not pleaded! asked did not lay a proper foundation for cent. Dig. $s 195–197; Dec. Dig. § 117.*j

[Ed. Note.-For other cases, see Negligence, the introduction of the evidence showing the result of experiments which were claim- 12. APPEAL AND ERROR (8 1062*)-REVIEW

SUBMISSION OF ISSUES. ed to have been made. Furthermore, when

Error in submitting plaintiff's contributory the court sustained the objection to the negligence to the jury, though not pleaded, is question, appellant did not make an offer of not reversible error, where the court finds from proof setting out what the testimony of the the whole evidence that plaintiff was negligent

as a matter of law. witnesses would be if permitted to testify

[Ed. Note.-For other cases, see Appeal and in that regard, and for that reason, even Error, Cent. Dig. 88 4212-4218; Dec. Dig. $ though the question had been properly pro- 1062.*] pounded, we would still be unable to deter- 3. MASTER AND SERVANT (8 234*)-INJURIES mine whether or not the exclusion of the tes- TO SERVANT CHILDREN CONTRIBUTORY timony constituted error. Copper & Iron

NEGLIGENCE. Mfg. Co. v. Manufacturers' Ry. Co., 230 Mo.

Plaintiff, a girl 14 years, 842 months old,

testified that she was employed by defendant's 59, loc. cit. 77, 130 S. W. 288; Shelby Coun- foreman to answer the telephone in defendant's ty Ry. Co. v. Crawford, 235 Mo. 489, loc. cit. express barn and notify him when wanted, using 492, 139 S. W. 115.

a freight elevator to do so; that, being required [11] V. It is further contended that ap- partially sitting on a guard bar with one leg

to find the foreman, she started the elevator, pellant's peremptory instruction requested over the bar; that she knew there was a space at the close of the case should have been giv- between the elevator floor and the edge of the en. In support of this proposition, appellant second floor of the building; and that she did

not remove her leg from the bar because it does not contend that there was a failure of looked as though the space would be wide proof, but that the principal witness for enough for her leg to go through without hitting plaintiff showed by his own testimony that or touching the floor. She was mistaken in this,

and her leg was caught and injured. he was unworthy of belief. The credibility

that, notwithstanding plaintiff's youth, she apof the respective witnesses was for the jury's preciated the condition, and deliberately took determination. In passing upon the motion the chance that the space was sufficiently large for a new trial, the trial court passed upon for her leg to pass through, and was therefore

negligent as a matter of law. the question of the weight of the evidence, and ruled against appellant's contention. Servant, Cent. Dig. 88 684-686, 706–709; Dec.

(Ed. Note.-For other cases, see Master and The testimony is not of such character as Dig. § 234.* ] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

Held,

*

4. MASTER AND SERVANT (8 96*)-INJURIES , kick me, and then a call came for him, and I TO SERVANT-CHILDREN CAUSAL CONNEC- went and used the elevator. When a call came TION BETWEEN EMPLOYMENT AND INJURY- for him I got on the elevator. That was after "EMPLOYED TO OPERATE ELEVATOR.

he told me he was going to the third floor. Where plaintiff, a girl 14 years, 842 months When I got on the elevator, I pulled the wire old, was employed temporarily to answer the that made the elevator go up; I went pretty telephone in an express barn and was injured near to the third floor. Then I was called while operating a 'freight elevator which she down and I came down to the bar. My little was permitted to use to communicate with the brother called me down, and when I got down foreman, she was not employed to operate the I stonded the elevator there. When I got down elevator within Rev. St. 1909, 1723, providing I put my leg over the bar. That bar was about that no child under the age of 16 shall be em-three feet above the floor. My brother was ployed to operate or assist in operating an ele- in the chute at the time he called, but before vator; and there was no causal connection be- I got down he went out of the chute and went tween her employment and the use of the ele on the second floor. I did not get off the elevator at the time of her injury, so as to entitlevator at all. Then I started to the second her to enforce an alleged civil liability for her floor to get John Hodgson. As I went up my injuries, based on defendant's alleged violation leg got caught between the elevator and the of the statute in employing her.

second floor and was crushed. The elevator [Ed. Note.-For other cases, see Master and does not fit close against the second floor. Servant, Cent. Dig. 88 157, 158, 162; Dec. Dig. There is a space between them; I couldn't

just $ 96.*]

exactly tell how wide it was. It looked as

though it would be wide enough for my leg to Brown, J., dissenting.

go through without hitting or touching the

floor at all. The elevator got past the second In Banc. Appeal from St. Louis Circuit floor, and my little brother stepped in after I Court; W. B. Homer, Judge.

got my leg back on the elevator. My knee was Action by Edith E. Boesel, an infant, by dragged between the elevator and the second Adam Boesel, her next friend, against Wells of the building. My little brother took me back

floor. My mother ran over and helped me out Fargo & Co. Judgment for defendant, and to the first floor on the elevator. * Q. plaintiff appeals. Affirmed.

Now, state whether or not you were ever paid This case coming into banc from Division at the time you were hurt. A. Yes, sir; John

for the afternoon for answering the telephone 2, we adopt with some minor emendations, Hodgson paid me a quarter. I had answered the statement thereof made by ROY, C., who the telephone before the 19th of August. I wrote the opinion in Division. It runs thus: answered it before when asked to by John

Hodgson. I was paid for answering it on Suit for damages for personal injuries. Ver- those occasions for about three months. I did dict and judgment for defendant, from which not answer it steadily every day. Just whenplaintiff appeals.

ever I was called in there. I did not know The defendant had its barn at the northwest how to operate the elevator. John Hodgson corner of Johnson and Spruce streets in St. told me how, not very long after he had told Louis. It fronts south ,on Spruce. It is 75 feet front by 175 feet deep. The office is on

me to answer the telephone." the first floor in the southeast corner.

On cross-examination the plaintiff testified as

That follows: "The movement of the elevator was floor is used for vehicles. At the north end regulated solely and entirely by these wires to of the building is a freight elevator, about 13 the best of my knowledge. They were the only feet by 9. it is operated by wire cables. wires I knew of. I operated it time and again Across the south opening to the elevator is a by those two wires, and had seen other people wooden removable bar about 3 feet high. Near operate it by them.' I never saw anybody operthe elevator begins a chute by which horses are

Those wires were taken to and from the stalls on the second Acor. ate it in any other way, Hay and other feed is kept on the third foor: not quite touching the wall. When Mr. HodgNear the foot of the chute is an extension bell

son explained to me how to operate the elevafrom the telephone, which rings whenever there all right. I learned in a very short time how

tor I tried to see if I could do it; I did it is a call on the telephone: As the elevator passes through the second floor there is a space

to operate it. From that time on to the time I of about two inches between the edge of the

was hurt, I operated the elevator by those wires elevator and the side of the opening in the at least 100 times. In operating the elevator floor. John Hodgson was the foreman in

at least 100 times, I never before this time sat charge of the barn.

down on the elevator; that was the first time. The plaintiff lived with her parents in the In operating the elevator before, I had passed property adjoining the barn on the west.“ The the second floor and gone up toward the third

I knew there was a crack beplaintiff was injured on August 19, 1909, and floor at times. was 15 years old in December following. The

tween the south edge of the elevator and the injury occurred between 5 and 6 o'clock in the second floor. I had seen it often as I went up afternoon. Plaintiff testified as to what oc- by it. It was light at the time I was operatcurred between her and Hodgson, and as to ing it. * I heard a call way down at how the injury occurred, as follows:

"I was

the south end of the building; then I got on called into the building by John Hodgson; he the elevator which was way up in the north the stable boss; bossed the men' and end of the building, and pulled the wire and

* I worked some himself. He was working for the started it; I was standing up then. * Wells Fargo Express Company. Q. What did went up to the second floor and got almost to he say to you? A. He told me if I would the third floor. I didn't see Mr. Hodgson on answer the telephone he would pay me for it. the third floor. There are horses and stalls Q. Now, tell what he said and what you said all through on the second floor. They are on on this occasion ? A. He called me into the the side of the elevator. Closed ones are higher office in the stable and asked me if I would an- than me, and those open are not. Those on swer the telephone; I told him, yes, and asked the side I don't think are higher than me. 1 him how much he would give me; he said he didn't go up to the third floor so I could see would pay me to-night. He said he was going over the stalls. I thought he was on the third up to the third floor to get some sacks to clean floor; he told me before he was going up to the chute out with, and told me if a call came the third floor to get the sacks, and I started in to use the elevator and not to go up the up to the third floor. He went up to the third chute, because he was afraid the horses would | Hoor on the elevator. When I went up there

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