zeal, prepared a written statement of the facts, as also his opinion of the law. After examining his findings and conclusions with great care, we have reached the opinion that his views are sound. We therefore adopt his statement of the facts and his opinion as to the law as our opinion herein, adding thereto some supplemental views of our own upon a question of first impression in our courts. This opinion of the trial judge is as follows: "This is an action by Lamar township, one of the municipal townships of Barton county, against the city of Lamar, a city of the fourth class; the corporate limits thereof being wholly within Lamar township. The petition contains three counts, and seeks to recover certain road and bridge funds levied and collected in Lamar township for the years 1909, 1910, and 1911, and, by the township collector and the county, treasurer as ex officio collector, paid to the treasurer of the city of Lamar. The answer admits the corporate existence of plaintiff and defendant, contains a general denial as to other allegations, and specifically denies that any such taxes were ever legally levied, and alleges that the pretended levies are void, and the further defense that, if any such taxes were collected and paid to defendant, the same were paid under a mistake of law, and for that reason, plaintiff is not entitled to recover. There is not much controversy about the facts. "The plaintiff, Lamar township, undertook to levy a road and bridge tax of 10 cents on the $100 for the year 1909, 20 cents on the $100 for each of the other years, 1910 and 1911. The record of the township board with reference to these levies is brief, and it appeared in evidence that the amounts of the levies for some of the years were not written in until long after the proceedings of the board were had, and some amendments or corrections in the record were made after this suit was brought. It was shown that the clerk of the board sent to the county clerk a certificate of each levy, and the taxes were extended on the tax books and collected by the township collector and ex officio collector; that all of such taxes collected within the corporate limits of the city of Lamar were paid to the treasurer of the city of Lamar, and used by the city. At that time the city did not keep a separate street fund, or at least for the first two years, but sums equal to, and in excess of, the amounts so paid in to the city treasurer were expended on the streets of the city of Lamar. Settlements were made with the township board by the collector and ex officio collector, and the township board knew, or should have known, of the payments of the city of the portion of the road and bridge tax collected within the corporate limits of the city. The fact is that all thought, under the law, it was the duty of the collector to pay all road and bridge taxes levied by Lamar township and collected from citizens living within the corporate limits of the city of Lamar to the city treasurer, until after the decision of the Supreme Court in the case of Green City v. Martin, 237 Mo. 474, 141 S. W. 879. The taxes so collected and paid to the city treasurer for the use of the city are as follows: 1909, $714.30; 1910, $1,455.30; 1911, $1,389.81. So if the plaintiff is entitled to recover in this action the judgment should be for these sums and interest from date of demand, August 5, 1912. "There was a motion filed by the plaintiff's counsel to strike out the defense of void levy, etc., but, not having been taken up before the case was called for trial, it was agreed by counsel that the trial might proceed and the questions involved in the motion determined in passing on the case, as the testimony was short, and it was more convenient to argue the motion with the case on its merits. [2] "I. The first question presented by the record is raised by the motion of the plaintiff to strike out the defense of 'void levy.' Can the defendant city hold money collected from the taxpayers by Lamar township because the levy upon which the collection was made is void? The court is of the opinion that the defendant city cannot avail itself of this defense. The taxes were actually extended on the tax books and regularly collected by the collector of the township, and thereby becomes public funds for the purpose for which collected, and it does not lie in the mouth of any one but a taxpayer to dispute the validity of the levy. If the defendant city can defend the suit on that ground, the collector could have pocketed all the taxes so collected and defeated a suit for the same or a prosecution for embezzling the funds. The contention carried to its legitimate results would enable the custodians of the funds of these municipalities to embezzle them with impunity; for the records, made by persons not learned in the law and with little idea of forms by these municipalities, rarely measure up to the full requirements of the law. This defense should have been stricken out on plaintiff's motion. [3] "II. Do these taxes levied and collected by Lamar township from the citizens living within the corporate limits of the city belong to the plaintiff township or defendant city? That it would seem fair for the city of Lamar to have them_all must admit. It is so recognized by our Legislature, as shown by their repeated efforts to pass and passing such law. To whom public funds belong and the disposition that can lawfully be made of them depends upon the law, and not upon sentiment or any one's idea of fairness. So it becomes the court's duty to be governed by the law, and not by personal preference of the individual who discharges the judicial function. "In the year 1908 the people adopted an amendment to the Constitution designated as section 22, art. 10. Under section 11 of article 10, the limit of the county tax is 50 cents on the $100, and this includes road tax and township tax; the total limit being 50 cents on the $100. The county levies are generally as much as 40 cents on the $100. The record does not disclose the levies in 1909, 1910, and 1911, but the constitutional amendment became necessary in order to have a sufficient road and bridge fund to keep up the work on the public roads. This section gives the right to the township board to levy a tax of 25 cents on the $100 for 'road and bridge purposes' and it provides that such tax, when levied and collected, 'shall not be used for any other purpose whatever.' The only authority the township board had for levying the 20 cents on the $100 was this section 22 adopted as an amendment to the Constitution. Before the adoption of this section Lamar township could not have levied more than 15 cents on the $100. Green City v. Martin, 237 Mo. 474, 141 S. W. 879. "It is clear, under this section of the Constitution (section 22), that of the road and bridge tax therein authorized to be levied and collected by Lamar township no division could be made with the city of Lamar. It is required to be used for the roads and bridges within the township, and not upon the streets of the city. In the face of this constitutional prohibition, no law could be passed by the Legislature taking away from the township one cent of the public funds authorized to be levied under it. This is not only clear from the express words of the Constitution, but it has been so decided by our Supreme Court in the Green City Case. [4] "It is contended by defendant's counsel that the road and bridge tax levied, collected, and sought to be recovered by the plaintiff's suit is not the road and bridge tax contemplated or provided for by this constitutional amendment; that it is the road tax provided for by Rev. St. 1909, § 11,767, passed by the Legislature in 1909, and it is therein expressly provided that the part collected from citizens within the cor The the authorities cited in briefs of counsel, and has reached the conclusion that in Missouri, and in the best-reasoned cases elsewhere, they hold that municipalities constitute an exception to the general rule. The case of Morrow v. Surber, 97 Mo. 161, 11 S. W. 48, clearly recognizes the exception to the general rule and is much in point. The case of Schell City v. Rumsey, 39 Mo. App. 264, cited by defendant's counsel, supports the contention that payment under mistake of law cannot be recovered back. facts in this case, without the application of this rule, clearly warrants the decision on the recognized rule that a municipality cannot acexcept the benefits of a void contract and retain them and recover back the consideration paid. This principle was recognized in the case of Aurora Water Co. v. Aurora, 129 Mo. loc. cit. 544, 31 S. W. 946, in a very able opinion by Judge Sherwood. In other words, municipalities will not be permitted to ignore every principle of common honesty, even though their officers do exceed their authority under the law in dealing with the public. In the Schell City Case the officers of the city bought machinery from the defendant and paid part of the purchase price. The contract of purchase was held void, being unauthorized by law. Thereupon the city, while retaining the fruits of the contract, brought suit to recover back the money paid on the contract, and the Court of Appeals denied the right to recover back the money paid on the contract, and based their opinion on the general rule that money paid under a mistake of law cannot be recovered back. But reading that case in connection with Sparks v. Jasper County, 213 Mo. 237, 112 S. W. 265, it will be seen that the case is only treated as authority for the proposition that municipal corporations cannot retain property bought on a void contract and recover back the consideration paid for it. The language of the court in Ada County v. Gess, 4 Idaho, 611, 43 Pac. 71, appeals to this court as a correct statement of the law. That court, among other things, says: Some authorities go so far as to hold that' payment of public moneys under 'mistake of law cannot be recovered back. The doctrine is so repugnant to every principle of justice and common honesty that the latter cases do not, by their reasoning, commend themselves to this court. We cannot consent to carry the doctrine beyond settlements between private individuals.' "A settlement made by an individual and a corporation binds the individual, and these cases have caused some misunderstanding as to the law. The court holds that the public money of municipal corporations paid out by its officers under a mistake of law can be recovered back at the suit of such corporation. porate limits of the cities and towns shall be [5] "III. The taxes collected and paid into the city treasury by the township collector and ex officio collector were so paid because these officers understood and believed it was their duty, under the law, as was generally understood by the officers of both plaintiff and defendant, so that, if the court is right as to its construction of the law, these payments were made under a mistake of law. The payments having been so made, can the plaintiff recover the money by action at law? The authorities are not uniform on this question, and, in the judgment of the court, it is the most doubtful question involved in the case. As between individuals, payments under a mistake of law cannot be recovered. The court has examined "It is contended by defendant's counsel that, if the construction our court puts upon the constitutional provisions and statute passed, using the same language, be correct, then both are void, being in violation of the federal Constitution, requiring equal taxation. That is to say, the taxing of the citizens of Lamar, a separate munici pality, for the benefit of Lamar township would be to require the citizens of Lamar to bear this burden without securing any benefit. The court thinks that counsel overlooks the fact that every citizen of Lamar is a citizen of Lamar township, and has the right to participate in the administration of the affairs of the township. The improvement of the public highways are as important to the citizens of Lamar as the citizens living outside of Lamar in the township, but it is not true that the citizens of Lamar township are citizens of Lamar, or have anything to do with, or control over, the administration of the affairs of the city. The property owners who choose to live in a city or town must bear the burden of taxation for the support of the city government as well as state, county, township, and government. This may not seem fair, but it is the law. "It follows from what has been said that the judgment must be for the plaintiff, on the first count for $714.31, together with interest thereon from August 5, 1912, to this date, at the rate of 6 per cent. per annum, amounting to $16.79, an aggregate of $761.10, on the second count for $1,455.30, together with interest thereon from August 5, 1912, to this date, at the rate of 6 per cent. per annum, amounting to $95.32, an aggregate of $1,550.62, on the third count for $1,389.81, together with interest thereon from August 5, 1912, to this date, at the rate of 6 per cent. per annum, amounting to $91.03, an aggregate of $1,480.84, aggregating in all the sum of $3,792.56, and it is so ordered." As stated by the learned judge nisi, there is no particular difficulty in reaching the conclusion that the city of Lamar, as against the township of Lamar, is not, and was not, entitled to any of the road and bridge fund collected in Lamar township, pursuant to the levy made therein for the years mentioned. The case of Green City v. Martin, supra, settles this point beyond cavil. The serious question, and the one as to which appellant most earnestly and strenuously contends, is whether the rule that money paid without protest or duress, under a mistake of law, cannot be recovered applies as between officers of municipal corporations dealing with the money and the property of the public. That individuals may not recover money so paid, absent fraud, protest, or duress, is too well settled for argument. Needles v. Burk, 81 Mo. 569, 51 Am. Rep. 251; Savings Institution v. Enslin, 46 Mo. 200; Campbell v. Clark, 44 Mo. App. 249. Likewise in other jurisdictions this rule, so far as it applies to individuals, sui juris dealing with their own property, is well-nigh without exception. 30 Cyc. 1313, and cases cited. The reason for the rule as between individuals, while sometimes provocative of great miscarriages of justice, and while largely predicated upon expediency, is yet bottomed upon some considerations which are logical and well settled. Among these (but, when wrong is being done, clearly not chief among these) is the maxim "Ignorantia legis neminem excusat." Likewise the rule touches nearly upon the doctrines of accord and satisfaction and of estoppel, as also upon the rule forbidding the unsettling of things settled and thereby disturbing repose by clamorous litigation. Other maxims-e. g., "Volenti non fit injuria,"- have likewise been invoked; but confessedly even among individuals, unless the peculiar facts of the case also warrant the application of the rule ex æquo et bono, there is little logic and less of honesty in putting it upon such an excuse. The best that may be said of the rule, even as applied to individuals, is that it is a handy rule to apply in those rare cases where the application of it prevents gross injustice. See, arguendo, Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264. The excuse be found in the decided cases. "Although there are cases holding the contrary, the better rule seems to be that payments by a public officer by mistake of law, especially when made to another officer may be recovered back." Ada County v. Gess, 4 Idaho, 611, 43 Pac. 71; Heath v. Albrook, 123 Iowa, 559, 98 N. W. 619; Ellis v. State Auditors, 107 Mich. 528, 65 N. W. 577; Allegheny Co. v. Grier, 179 Pa. 639, 36 Atl. 353; State v. Young, 134 Iowa, 505, 110 N. W. 292, 13 Ann. Cas. 345; McElrath v. United States, 12 Ct. Cl. 201. In the case of Ada County v. Gess, supra, in a very able discussion of this identical question, the court said: "As the county is a municipal corporation, it may sue and be sued, and we know of no limitation as to time, except that provided in the We are general limitation laws of the state. told, however, that money paid through a mistake of law is a voluntary payment, and cannot be recovered back; and we are cited to the case of Badeau v. United States, 130 U. S. 439, 9 Sup. Ct. 579 [32 L. Ed. 997], as sustaining that doctrine, but it does not do so. Chief Justice Fuller, in that case, did not place his decision on the ground that money paid by one officer of the government to another officer is a voluntary payment that cannot be recovered back, but upon the ground that the claimant, although retired, was still an officer of the army de facto, if not de jure, and for that reason he was enti recovered back, and ex æquo et bono should not tled to the money received, and it could not be be returned. Some of the authorities cited, however, seem to sustain the contention of the appellant, and some authorities go so far as to hold that payments of the money of the public by its authorized agent to an officer on account of a mistake of law cannot be recovered back. The doctrine is so repugnant to every principle of justice and common honesty that the latter cases do not, by their reasoning, commend themselves to this court. We cannot consent to carry the doctrine beyond settlements Ada County v. between private individuals." Gess, 42 Idaho, 611, 43 Pac. loc. cit. 72. In the case of Allegheny Co. v. Grier, supra, the court said: Ab "So, on the grounds of public policy, the court was right in holding that the maxim 'Volenti⚫ non fit injuria' has no application to the illegal payment of public funds to a public officer; more especially where, as here, it is the peculiar function of that officer to guard the public treasury. Public revenues are but trust funds, and officers but trustees for their administration for . the people. It is no answer to a suit brought by a trustee to recover private trust funds that he had been a party to the devastavit. There could be no retention by color of right. bott v. Reeves, 49 Pa. 494 [88 Am. Dec. 510]. With much the stronger reason is this doctrine applicable where the interests of the whole people are involved, and the authorities are accordingly numerous to this effect. City of New Orleans v. Finnerty, 27 La. Ann. 681 [21 Am. Rep. 569]; Allen v. Com., 83 Va. 94, 1 S. E. 607; Com. v. Field, 84 Va. 26, 3 S. E. 882; Day Co. v. State, 68 Tex. 526, 4 S. W. 865 Steamship Co. v. Young, 89 Pa. 191 [33 Am. Rep. 748]; Taylor v. Board of Health, 31 Pa. 73 [72 Am. Dec. 724]; Smith v. Com., 41 Pa. Allegheny Co. v. Grier, 335, and cases cited." 179 Pa. 639, 36 Atl. 353. Certainly in a case like this of dealings [6] Officers are creatures of the law, between public officers with the public's mon- whose duties are usually fully provided for ey no excuse for invoking this rule can be by statute. In a way they are agents, but found in logic, nor, in our opinion, can such they are never general agents, in the sense that they are neither hampered by custom nor law, and in the sense that they are absolutely free to follow their own volition. Persons dealing with them do so always with full knowledge of the limitations of their agency and of the laws which, prescribing their duties, hedge them about. They are trustees as to the public money which comes to their hands. The rules which govern this trust is the law pursuant to which the money is paid to them and the law by which they in turn pay it out. Manifestly none of the reasons which operate to render recovery of money voluntarily paid under a mistake of law by a private person applies to an officer. The law which fixes his duties is his power of attorney; if he neglect to follow it, his cestui que trust ought not to suffer. In fact, public policy requires that all officers be required to perform their duties within the strict limits of their legal authority. Neither, so far as counsel have invited our attention or we have been able to find, is this view in conflict with anything which has been ruled by us in this state. The case of Schell City v. Rumsey Mfg. Co., 39 Mo. App. 264, applies a different rule. But there were among the facts there held in judgment a peculiar condition of estoppel existing, which fairly distinguishes that case from this. Be sides, that was not a case where one officer of a municipality was dealing with another officer of another municipality; there a municipality was dealing with a private business corporation. Concededly, however, the broad rule laid down largely by dictum in that case is not in harmony with the views we are now here holding. In Campbell v. Clark, 44 Mo. App. 249, the rule here urged was approved. The case of Morrow v. Surber, 97 Mo. 155, 11 S. W. 48, is in accord with what we here hold, though the court there went beyond the precise point up for ruling in order to say that, upon the facts there, a private individual even would have been entitled to recover. Upon the two points touching the rule as it affects a public officer, and as it affects a private person, the court said in that case: "Such a mistake as it here described furnishes ground for recovery of the money in this action. The plaintiff is the custodian of the county funds, and sues here in his official capacity. He is agent of the county for the purposes defined by law, and the public is bound to take notice of the limitations of his agency. He cannot give away county funds or disburse them contrary to law. Any such disbursement is entirely invalid. If this case were between private citizens, the undisputed facts would support the judgment given by the circuit court under the settled law of this state. Columbus Ins. Co. v. Walsh, 18 Mo. 229; Koontz v. Bank, 51 Mo. 275." The other cases of Scott Co. v. Leftwich, 145 Mo. 34, 46 S. W. 963, State ex rel. v. Shipman, 125 Mo. 436, 28 S. W. 842, State ex rel. v. Ewing, 116 Mo. 129, 22 S. W. 486, and State ex rel. v. Hawkins, 169 Mo. 615, 70 S. W. 119, were all cases of settlements made by the county with county officers; i. e., circuit clerks and county collectors. Formal settlements intervened, which settlements were set down upon the solemn records of a court of record. The shadowy reason behind the holdings in these cases smacked of the doctrine of res adjudicata, and accord and satisfaction. In fact, this is the chief ground upon which the ruling is made in the latest case cited, to wit, State ex rel. v. Hawkins, 169 Mo., at page 618, 70 S. W., at page 120, wherein it is said: "It also appears that the defendant Hawkins and the county court, at the March term, 1898, nue collected by him in 1897, and, with full had a full settlement of his accounts of the reveknowledge of his claim for $216 commissions on back taxes collected by him that year, the charge of fraud or collusion in the case. court allowed him that credit. There is no er the court erred in allowing that commission Whethon back taxes for that year, the settlement is binding and conclusive in the absence of fraud, 116 Mo. 129 [22 S. W. 486]; State ex rel. v. collusion, or mistake. State ex rel. v. Ewing, Shipman. 125 Mo. 436 [28 S. W. 842]. The item of $216 is no longer in the case." State ex rel. v. Hawkins, 169 Mo. loc. cit. 618, 70 S. W. 120. do so. Moreover, these cases may all be distinguished from the case at bar. Here there collector and the county treasurer, erronewas no settlement whatever. The township their duty to pay this money over to the ously believing that under the law it was treasurer of the city of Lamar, proceeded to of the belief that under the statute it was If this township collector had been the clerk of this court, and had at once done his duty to pay this identical money over to so, would it not be fairly plain that some sort of action would be maintainable to recover the money from our clerk? Such a rule as is contended for by the appellant might and could become a mighty instrument of evil, and might (since there is no gauge by which to measure the kind and nature of the mistake of law which will serve to excuse) be used to defend against all manner of thefts and larceny and the illegal frittering away of the public money. While the question presented is a new one and a nice one so far as the precise facts heré held in judgment are concerned, we yet think the learned trial court correctly resolved it. It results that the judgment should be affirmed. Let this be done. WALKER, P. J., and BROWN, J., concur. RUTLEDGE v. SWINNEY et al. (No. 17774.) (Supreme Court of Missouri, Division No. 2. July 14, 1914.) 1. PLEADING (§ 406*)-PETITION-SUFFICIENCY AFTER VERDICT. In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, the petition alleged that it was the duty of defendant to exercise ordinary care in inspecting the poles, cross-arms, pins, and wires and other places where workmen would have occasion to work, so as to ascertain whether such places were ordinarily safe for such workmen; that defendant wholly failed to discharge such duty with regard to the particular pole involved; that the cross-arms upon such pole and the pins sunk therein were defective, unsafe, and dangerous; and that defendant knew, or in the exercise of ordinary care should have known, of such condition, and should have remedied it so as to make the place safe. It was attacked as failing to allege that the cross-arm was designed or intended to support the weight of linemen. Held that, while it did not categorically allege that the cross-arm was intended to support plaintiff's weight, it alleged with sufficient clearness that the rotten condition of the cross-arm was the cause of the injury, and the allegation that it was defendant's duty to inspect the cross-arm and make it safe was equivalent to an allegation that it was necessary and intended that linemen should go thereon in the performance of their work, and hence, in the absence of any demurrer or motion to make the petition more definite, the petition was sufficient after verdict, where plaintiff's evidence tended to show that, in climbing over a transformer, he could not secure a hold upon the pole but was compelled to take hold of the cross-arm. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1355-1359, 1361-1365, 1367-1374, 1386; Dec. Dig. § 406.*] furnish the lineman with suitable tools, and to instruct him to inspect it before installing the larger transformer. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 235-242; Dec. Dig. § 124.*] 5. MASTER AND SERVANT (§§ 286, 289*)-AcTIONS FOR INJURIES-QUESTIONS FOR JURY. In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, evidence as to whether it was the duty of the lineman or of the employer to inspect the cross-arms held a question for the jury. [Ed. Note.-For other cases, see Master and Servant, Cert. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1089, 1090, 1092-1132; Dec. Dig. §§ 286, 289.*] 6. MASTER AND SERVANT (§ 291*)-ACTIONS FOR INJURIES-INSTRUCTIONS. juries caused by a cross-arm crumbling and perIn an electric light lineman's action for inmitting him to fall, instructions on behalf of plaintiff, attacked by defendant, held to fairly outline plaintiff's theory of the case. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.*] 7. MASTER AND SERVANT (§ 291*)-ACTIONS FOR INJURIES INSTRUCTIONS CONFORMITY TO EVIDENCE. In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, an instruction hypothesizing the lineman's lack of opportunity, time, or means to discover the condition of the cross-arm was justified by evidence that he was required to perform a rush job and was not furnished tools with which he could have detected the decayed and unsafe condition of the cross-arm. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1133, 1134, 1136-1146; Dec. Dig. § 291.*] QUESTIONS OF FACT. The weight to be given the evidence for plaintiff was foreclosed by the jury's verdict for plaintiff. 2. PLEADING (§ 35*)-PETITION-SURPLUSAGE. 8. APPEAL AND ERROR (§ 1003*)-REVIEWIt appearing that defendant did not catch hold of the pins in the cross-arm until the crossarm itself crumbled and gave way, the allegations that the pins were defective should be treated as surplusage; it being the decayed condition of the cross-arm and not the pins which caused the fall. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 76-80; Dec. Dig. § 35.*1 3. MASTER AND SERVANT (§ 238*)-LIABILITY FOR INJURIES-CONTRIBUTORY NEGLIGENCE. An electric light lineman engaged in replacing a transformer with a new one after hanging the new transformer upon a cross-arm was compelled to go above the transformer in order to connect, paint, and solder several wires. In doing this he was compelled to unfasten his belt from the pole and climb over the transformer, and, being unable to secure a hold upon the pole, he took hold of the cross-arm to which the transformer was hanging and which crumbled, permitting him to fall. There was nothing in the appearance of the cross-arm to indicate decay or hidden defects, and it was strong enough to hold up the old transformer as well as the new one, which was heavier. Held, that the lineman was not negligent in placing his weight upon the cross-arm without first fastening his belt to the pole. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 681, 743-748; Dec. Dig. § 238.*] 4. MASTER AND SERVANT (§ 124*)—LIABILITY FOR INJURIES-INSPECTION. A reasonable degree of prudence on the part of the foreman in charge of such work would have caused him to inspect the cross-arm or to [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3938-3943; Dec. Dig. § 1003.*] 9. TRIAL (§ 260*)-INSTRUCTIONS-CURE BY OTHER INSTRUCTIONS. In an electric light lineman's action for injuries caused by a cross-arm crumbling and permitting him to fall, the court refused to charge that plaintiff could not recover if, under the system of work adopted by defendant for its linemen, it was plaintiff's duty, before he climbed a pole or rested his weight upon a cross-arm, to make a careful inspection to ascertain whether such pole or cross-arm was sufficient to sustain his weight. It, however, charged that, even though linemen frequently placed their weight on cross-arms, it was plaintiff's duty, before doing so, to exercise ordinary care to ascertain whether it was adequate to bear his weight, and that, if plaintiff, by exercising such care, would have discovered that the cross-arm was too weak to sustain his weight, he could not recover, that if it was plaintiff's duty to make his own inspection to ascertain defects rendering cross-arms unsafe, whether obvious or hidden, then ordinary care, as applied to such tion, considering all the facts and circumstances, duty of inspection, meant such care and cauincluding the elements of means and time for making a comprehensive inspection as an ordinarily prudent person, upon whom the duty of inspection devolved, would use under the same or similar circumstances, but that, if the duty of inspection for hidden or latent defects was For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 169 S.W.-2 |