Q. How did he put it? A. Do you want me to state? Q. Yes. A. Well, of course, our office was his attorney, and that is the reason I asked you that question. Mr. Alport said that he thought he could get more money out of this than the contract provided for, and he wouldn't sign the deed. He came to me and says: 'Can't you break that contract?' He says, 'If you will get me out of that contract I will give you $500.' I says, 'Mr. Alport, as far as I know, the contract was entered into fairly, and I wouldn't undertake to do it.' Q. Did he tell you at this time that Mrs. Alport wouldn't sign the deed? A. He said she wasn't going to sign the deed; that she would get out of it some way." That some time before the deed was executed, Mr. Alport told the witness that Mr. Ennis told them that they could buy another piece of property on Grand avenue for $18,000, but that it had since been sold, and he wasn't able to get it. That Mr. Alport did not claim that this was a part of the original agreement, but that: "Mr. Alport seemed to think that he made a mistake in selling this property for the sum he did. He said he didn't know at that time; he said that he afterwards learned that Nelson was buying up the ground around there, and if he had known it and held it he could have gotten a bigger price, and he went on to state that he took this price for it and thought it was a good price at that time, but now he didn't, and he was a fool for making the agreement that he did." Tennyson Thomas testified: 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 of twenty-five dollars and purchaser assumes all interest on incumbrance from date of delivery of deed." That prior to this transaction the witness had seen Mr. Alport in conversation with Mr. Block at the office, but did not remember seeing Mrs. Alport there, and did not know whether she had consulted with Mr. Block about the matter or not. That before going down to Mrs. Alport's place of business on the day the deed was signed, Mrs. Alport's married daughter called him over the telephone and told him to hurry down and close the deal. That he was detained for a short time on account of other business, and Mrs. Alport's sonin-law called him over the phone and also requested him to hurry down. That when he arrived at Mrs. Alport's place of business he found Messrs. Ennis, Adams, and Thomas, Mr. and Mrs. Alport, and their daughter and sonin-law there. The gold had been counted before his arrival and replaced in the valise. Witness afterwards saw the gold at the bank. That Mr. and Mrs. Alport objected to executing the deed at first. Upon being asked what reason Mrs. Alport gave for not wanting to acknowledge the deed, the witness said: "Well her reasons were, as I remember them, that she didn't think she was getting enough for the property, and the other reason that Mr. Nelson-they understood later that Mr. Nelson was going to be the owner of this property, and they didn't know it at the time of the sale-and another party right next door had gotten more for their tract of ground, and they thought they ought to have more. That is my recollection of the reasons that Mrs. Alport gave at that time." After the deed was signed the witness asked Mrs. Alport if she acknowledged the same as her free act and deed, and that: "At first she said, I signed it, but I didn't do it because I want to,' and I said, "That won't do, Mrs. Alport; you have to acknowledge it as your free act and deed before I can take your acknowledgment,' and she said, 'Well, I signed it all right.' I don't remember the exact words, but to the effect that you can put your seal on there if you want to, and some one spoke up and said that was an acknowledgment, and I said, 'No, I won't take that,' and she and her daughter conversed about the matter, and I told her that they had signed a written contract to convey this property, and she told me then that she wanted to get more for it, and I told her I didn't see how she could if she had signed a contract stating the price she was to get for it, and if they tendered her what she had agreed to sell it for I thought it was her duty to sign the deed, and she then finally says, I do acknowledge it as my free act and deed.' I was particular because of the fact that a tender was being made." The witness filled out the acknowledgment and took the deed to his office, where he placed his notarial seal thereon, and later in the day delivered the deed to Mr. Ennis. That before the deed was signed the witness made some interlineations therein, to the effect that the grantee should pay some city taxes and park assessments. That there was no change made in the deed after the acknowledgment. That after the deed was executed the witness thought that Mrs. Alport said that she wanted to put the money in the vault of the German-American Bank, but that she was not dressed to go herself, and said that "we" could go on, and she would come later. That the bag of gold was taken down to the bank, Mrs. Alport following in a few minutes, and after she arrived at the bank the money was counted out. The son-in-law seemed to be doing the counting of the money. On cross-examination the following occurred (Mrs. Alport's attorney asking questions): "Q. Mr. Hock, hadn't Mr. Alport been up there and told you that he wasn't going to sign That at the time of the transaction he was connected with H. R. Ennis & Co. That he and Mr. Ennis called upon defendants for the purpose of trying to purchase their property, and for the property, $15,000 in cash, and the balthat defendants finally agreed to take $20,000 mortgage on the place. That the original conance to be paid by the assumption of the $5,000 tract was submitted to Mr. Block before it was signed, because Mr. Alport would not sign it without Mr. Block's "O. K." That the witness took the contract to Mr. Block's office, and Mr. Block had a conversation with Mr. Alport over the telephone, after which Mr. Block made some interlineations in the contract, and then placed his "O. K." thereon. The witness then took the contract to defendants, and read the contract over to Mrs. Alport, and asked her if she understood it, and that she seemed perfectly willing to sign the contract. The witness kept one other. That a few days later Mr. Alport told copy of the contract, and the defendants the him that they would not execute the deed because he thought he was to get $25,000 for the property instead of $20,000. The witness further testified: That defendants did not agree to sell the property upon the condition that Mr. Ennis would sell them the $18,000 Grand avenue property, but that they did have an option on that property, and were willing to sell it to the defendants, and urged them at several different times to purchase the property at $18,000, but that Mr. Alport said that he knew what property he wanted to buy, and that he would buy a piece of property for about $7,500. That Mr. Ennis made a sale of the other Grand avenue property on June 17th. That Mr. Nelson did not care to buy the property at 1707 Grand avenue, but that Mr. Ennis had procured an option on it, and the firm was to make a commission of $500 in cash if they found a purchaser, and that they were trying to sell it to any one who would buy it. The witness was present when the deed was executed by defendants. That Mr. Adams did most of the talking to defendants, and refused to take the deed unless defendants had their attorney present, and that some one telephoned for Mr. Hock. That he could not understand the conversation between Mrs. Alport and her husband because of their using a foreign language. H. C. Edward testified: 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 had 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- tion." 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. Adams said: "Rather than have any question about it, the best thing to do would be to take gold; that can't be questioned." That after the tender was made defendants refused to execute the deed, saying that they were not getting enough money for the property; the witness details what occurred, as follows: "We told them at least I think I did that they made a contract, and we thought it was good, and if they didn't sign it we were going to endeavor to enforce it through the courts. There was a good deal of talk back and forth. Mrs. Alport talked to her daughter, and her daughter wanted her to sign, and her husband wanted her to sign, and, finally, after we agreed to pay the taxes, pay the special taxes for paving and some other taxes-I have forgotten what they were she said she would sign. At that time Mr. Adams suggested and said they ought to have their attorney there, and either the son or the daughter went out and telephoned, son-in-law daughter, and eventually Mr. Hock came in, and On cross-examination this witness further she signed the deed. After the thing was extestified: That he was present when Mrs. Alport signed the original contract for the sale of the premises, and that Mr. Thomas read the contract over to her and explained its provisions to her, and that after the contract was signed, and just as witness and Mr. Thomas were leaving, Thomas said to Mr. Alport, "I would like very much to sell you another piece of property, and I want to know when we can get together and go over the proposition." That Mr. Alport replied that he "did not care to figure right then, but would see Mr. Thomas later." That was all that was said about any other property at the time the contract was signed. The witness was also present at Mrs. Alport's place of business when the tender of $15,000 in gold was made, but left before the deed was signed. This witness, in substance, corroborates the testimony of plaintiff's other witnesses with reference to what occurred on that occasion. or plained to him, and he asked her if she acknowledged this as her free act and deed, she said, 'I signed the deed, but I don't acknowledge it as my free act,' and he said, 'I can't take the acknowledgment unless it is acknowledged as her free act.' And I said, 'Mr. Hock, as long That at the time the contract for the sale of the property was made defendant's daughter read the contract over to Mrs. Alport and explained the contract to her, partly in English and partly in Yiddish, and that Mrs. Alport as she signs it, isn't that a good deed?' and he said that she understood it. That the property at No. 1707 Grand avenue was not referred to at that time. That after the contract was signed and before the deed was executed Mr. Alport was at the office of Ennis & Co. one day, and the company through their salesmen attempted to sell several pieces of property to Mr. Alport. That one piece of property offered at this time was the property at 1707 Grand avenue, the same being offered at a price of $18,000, but that Mr. Alport refused to do anything in the matter, and said he did not want to buy at pres ent. H. R. Ennis testified: That he was not present when the contract of sale was executed by defendants, but that he negotiated the matters preliminary to the signing of the contract, and that the contract as signed expresses the agreement which he and defendant reached concerning the sale of their property. Some time after the contract was signed, Mr. Alport came to the witness' office and delivered an abstract to the property. That Mr. Alport was in the office of the real estate company often between the signing of the contract and the execution of the deed. That at the time the contract of sale was signed on June 5th and up until June 17th, the witness' real estate firm had the sale of the property known as No. 1707 Grand avenue at a price of $18,000. That the firm attempted to interest a number of people in the purchase of this property, among others, Mr. Alport, but that Mr. Alport said he did not want to buy property on Grand avenue because it was too high, and another reason he gave was that he did not like the Jew who lived next door to 1707. That after trying to sell the said 'No, she has to acknowledge it as her free Witness further testified: That before the deed was finally executed he made concessions to defendants which were not required in the contract of sale. One of these concessions was with reference to his paying some special taxes amounting to $320, and city taxes amounting to about $50; that when Mrs. Alport executed the deed she asked witness about the rent on the place, and witness told her that he would allow her to use the premises for two months without the payment of any rent, and that Mrs. Alport wanted a receipt for it, and thereupon witness wrote upon the back of the contract a statement to the effect that Mrs. Alport had paid $50 rent for two months; that after the two months had expired they continued to occupy said premises, and paid rent for August, September, and October, paying $25 a month for two of said months and $30 for one of said months. That thereafter defendants refused to pay rent, and defendants were given notice to vacate the premises. T. A. Frank Jones, of Kansas City, for appellant. Watson, Watson & Alford, of Kansas City, for respondent. WILLIAMS, C. (after stating the facts as above). Appellant contends that the findings and decree of the court are erroneous because they are "against the weight of the evidence" and "contrary to equity and good conscience." Since the above is the decisive question in the case, it became necessary in making the foregoing statement of facts to set forth, more fully than would otherwise be necessary, the testimony of the respective witnesses. We have carefully and painstakingly reviewed the entire evidence, and have reached the conclusion that the weight of the evidence is in support of the decree entered by the trial court. It would serve no useful purpose to discuss at length, or in detail, the weight of the evidence, but it is perhaps not amiss that we should discuss some of the main features of the testimony which leads us to the conclusion reached. [1-3] The case is mainly built around the following controverted issues of fact: (1) Was Mrs. Alport fraudulently induced to sign the original contract under the belief that her obligation to sell or convey her property was upon the condition that she was to receive the title to another property in the same block for the sum of $18,000? (2) Was she caused to sign the deed by reason of the alleged fraud upon the part of Mr. Ennis? (3) Did she properly acknowledge the deed? In the view that we take of the case it will not become necessary to determine whether Mr. Ennis was so far the agent of plaintiff as to bind or affect the plaintiff by whatever was done by Mr. Ennis in the transaction, but for the purposes of the discussion we will assume that he was such agent. With reference to the first question of the fact, the evidence was, as stated by appellant in her brief, “irreconcilably contradictory." But the fact that defendant in her sworn letter to Ennis based her refusal to surrender possession on the ground that she was to have $20,000, net under the contract, and was therefore entitled to $5,000 additional money, and in said letter made no mention whatever of her present contention, to wit, that her grievance was based upon her failure to be allowed to become the purchaser of the $18,000 property, would strongly indicate that the claim now made was an afterthought. With reference to the second issue of fact, defendant testified that she signed the deed, not because of threats of suit, etc., made by Mr Ennis, but that she was coerced into signing the deed by reason of the threat made by her husband that he would leave her and the children if she did not sign the deed. It appears that the alleged threat upon the part of the husband was made in a language not understood by Ennis and his associates. It is not contended, nor does the evidence show, that Mr. Ennis urged or procured the husband to make such a threat, but it is insisted that the act of Ennis and associates in making tender of the agreed purchase price in gold so operated upon the mind of the husband as to cause him to make the threat. That the person making the tender was within his legal rights in making the offer in gold cannot be seriously doubted. But the fact that it was so made, and the manner in which it was made, might well cause a court of equity to carefully scrutinize the situation and to make mental tests for traces of fraud, and if the weight of the evidence should show other matters indicating suspicious circumstances, undue coercion, or fraud, this somewhat unusual occurrence, and therefore suspicious circumstance, might throw added color upon the transaction. But where, as here, this slightly suspicious circumstance is not supported or surrounded by an atmosphere of fraud or suspicious circumstances, we do not regard the matter as having much weight. In fact defendant's evidence does not show that the threat was the result of the sight of the gold. Whether the threat, if made, was caused by reason that the husband thought they were bound by the original contract, or convinced by advice of their attorney that they should do so, or by reason of the sight of the gold, or other reason, is left to conjecture. We would indeed be reluctant in believing, in the absence of clear and cogent proof, that defendant's husband, a Hebrew, and although, no doubt, possessing in common with the great majority of mankind in this somewhat material age a strong appreciation and desire for possession of gold, would be so far overcome by the sight of and the thought of the near possession of gold and so far forget himself as to violate that most sacred trait or characteristic of his race and people, to wit, undying loyalty and fidelity to wife and family, by threatening in such a manner as would convince his wife, his lifelong and business companion and helpmeet, the mother of his children, that unless she signed the deed he would forsake and abandon her and the children. This contention is lacking in genuine ring. It smacks too much of an ingenious subterfuge to call for much activity upon the part of a court of conscience. As to the third point, there is also an irreconcilable conflict in the testimony. Mrs. Alport testified that she refused to acknowledge the deed as her free act and deed. The notary, Mr. Hock, testified that she did acknowledge the deed to be her free act and deed. There is nothing in the record that discloses anything in the least suspicious about Mr. Hock's part in the transaction. It appears from the testimony that Mr. Hock was connected with the law office of Mr. Block; that Mr. Block was acting as the attorney for Mrs. Alport in passing upon the form of the was moving towards the fixed path of the street car in such a manner that, unless he was warned or the car was stopped, he would be run down. original contract and in drawing the deed | tion and is sufficient to charge that plaintiff which Mrs. Alport signed, and that Mr. Hock, in response to a telephone call from Mrs. Alport's daughter, came to defendant's place of business just before the deed was signed; that after arriving there he held consultation with Mrs. Alport and her husband aside from the other persons present, and advised with them as to the propriety of their signing the deed. Mrs. Alport's subsequent actions are somewhat inconsistent with her claim that she did not acknowledge the deed. She followed the money down to the bank, and was there while it was being counted and deposited in a safety deposit vault. Later some of this same money was used to purchase other real estate, and the title thereto was taken in her name. It does not appear that she made any protest at the bank when she saw the money being delivered by Mr. Ennis, or that she made any objections when the title to the after-purchased property was taken in her name. When the above matters are considered in connection with the fact that the testimony on the important issues presents sharp conflicts, making the credibility of the respective witnesses an important factor in deter mining the real facts in the matter, and the further fact that the trial judge had an opportunity of seeing and hearing the respective witnesses, we are unable to say that his finding was wrong, and therefore feel no hesitancy in affirming the decree entered below. The judgment is affirmed. ROY, C., concurs. PER CURIAM. The foregoing opinion of WILLIAMS, C., is adopted as the opinion of the court. All the Judges concur. HOLZEMER v. METROPOLITAN ST. RY. [Ed. Note. For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*] 2. APPEAL AND ERROR ( 882*)-REVIEWPERSONS ENTITLED TO ALLEGE Error. the same theory set forth in those given on be Where defendant adopted in its instructions half of plaintiff, defendant cannot on appeal complain that plaintiff's instructions enlarged the issues framed by the pleadings. Error, Cent. Dig. §§ 3591-3610; Dec. Dig. § [Ed. Note.-For other cases, see Appeal and 882.*1 3. STREET RAILROADS (§ 118*)-INJURIES TO PERSON ON TRACK-INSTRUCTIONS-APPLICABILITY TO EVIDENCE. Where plaintiff, coming from the north, was tion, unaware of an approaching east-bound car, crossing the car tracks in a southeasterly direcwhich struck him, and within plain view of the gripman, an instruction on the duty of the gripplaintiff of its approach is properly given, parman to have stopped the car or have warned ticularly where plaintiff was avoiding a westbound car. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 258-269; Dec. Dig. § 118.*] 4. STREET RAILROADS (§ 117*)—INJURIES TO PERSONS ON TRACKS-ACTIONS. In a personal injury action by one run down by a cable car, the question whether the sounding of the alarm would have aided in preventing the injury held, under the evidence, for the jury. roads, Cent. Dig. §§ 239-257; Dec. Dig. § 117.*] [Ed. Note.-For other cases, see Street Rail5. STREET RAILROADS (§ 93*)-INJURIES TO PERSONS ON TRACKS-DUTY OF GRIPMAN. Those in charge of a street car are not bound to stop the car or to slacken speed until 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, prevent the accident, the street railway company is not liable. [Ed. Note.-For other cases, see Street Railroads, Cent. Dig. §§ 195-200; Dec. Dig. § 93.*] 6. TRIAL (§ 260*)-INSTRUCTIONS-REFUSAL. The refusal of requested instructions covered by those already given is not error. [Ed. Note-For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] (Supreme Court of Missouri, Division No. 2. 7. APPEAL AND ERROR (§ 232*)-PRESENTA July 14, 1914.) 1. STREET RAILROADS (§ 118*)-INJURIES TO PERSON ON TRACK-INSTRUCTIONS-APPLICABILITY TO ISSUES. The petition by one run down by a cable car while crossing the street alleged that plaintiff's injuries were caused by the carelessness of the gripman and conductor who failed to check the speed of the car when they saw, or by ordinary care should have seen, that plaintiff was liable to be run down unless the car was stopped or he was warned An instruction given for plaintiff informed the jury that the gripman was bound to keep a reasonably vigilant lookout for persons ahead, and that, if plaintiff was in or going into a situation where it was reasonably probable that he would be run into unless the car was stopped or he was warned. the gripman's failure was negligence. Held, that the use of the phrase "going into a situation" instead of "in a situation" did not enlarge the issues framed by the petition, which must, after verdict, be given a liberal construc TION OF GROUNDS OF REVIEW IN COURT BE- Error in permitting an expert witness to answer a hypothetical question, which was not based upon all the facts shown by the evidence, cannot be taken advantage of on appeal, where that ground of objection was not made at trial. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $$ 1351, 1368, 1426, 1430, 1431; Dec. Dig. § 232.*] 8. EVIDENCE (§ 193*)-DEMONSTRATIVE EVIDENCE-ADMISSIBILITY. In a personal injury action by one run down by a street car, tried some two years after the accident, it was not error for the court to admit in evidence a rock identified by a witness as one which he removed from plaintiff's face after plaintiff was taken from beneath the car, such evidence tending to give the jury a more correct impression of plaintiff's injuries, which had of course, healed to some extent. [Ed. Note. For other cases, see Evidence, 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 SIBILITY. 9. EVIDENCE (§ 150*)-EXPERIMENTS—ADMIS- | to have seen, that plaintiff was in a situation where he was liable to be run into by said cable train unless the speed of said train was checked or it was stopped or plaintiff warned of the approach thereof before it collided with plaintiff." In an action by one run down by a street car, where the negligence relied on was the failure of the gripman to stop after discovering plaintiff's peril, the exclusion of evidence of experiments as to the distance in which such a car could have been stopped is not error, where it was not shown that the circumstances surrounding the experiment were the same as those at the time of the accident. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 439; Dec. Dig. § 150.*] 10. APPEAL AND ERROR (§ 206*) - OFFER OF PROOF-NECESSITY. A party cannot take advantage of the exclusion of evidence, where no offer of proof was made in the court below. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 1273, 1283-1289; Dec. Dig. § 206.*] The answer was a general denial. The accident occurred about noon, December 1, 1908, at the intersection of Belleview avenue and West Twelfth street, Kansas City, Mo. Twelfth street runs east and west. Upon this street the defendant had a double track, and at the place in question there was about a 5 per cent. grade in the street car tracks, being downgrade to the west and upgrade to the east. The north track was used for westbound or downgrade cars, and the south track was used for east-bound or upgrade cars. Plaintiff was injured by one of the The street cars 11. TRIAL (§ 140*)-JURY QUESTION-CREDI-east-bound or upgrade cars. BILITY OF WITNESSES. In a personal injury action, where there was evidence in support of plaintiff's claim, the case cannot be taken from the jury on the ground that the testimony in plaintiff's favor was unworthy of belief; the credibility of witnesses being a question for the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.*] 12. DAMAGES (§ 132*)-PERSONAL INJURIES— AMOUNT. Where a boiler maker, 57 years old, who earned over $100 a month, was run down by a street car, one arm being broken, his spinal column being injured, and the bones about his face being badly broken, an award of $15,000 damages is excessive by $3,000, even though he suffered great pain, and the injuries, which left his tongue partially paralyzed, also prevented him from following his old occupation. [Ed. Note. For other cases, see Damages, Cent. Dig. §8 372-385, 396; Dec. Dig. § 132. Appeal from Circuit Court, Jackson County; Herman Brumback, Judge. at this place were operated by means of an underground cable which was propelled at a rate of about eight miles an hour by means of a stationary steam engine. The train of cars operated at this place consisted of one grip car and one trail car or coach, and each train was in charge of one gripman and a conductor. The grip car was in front. steel grip attachment extended down from the grip car through a slot or opening between the rails of the tracks and connected A with said underground cable. This grip was operated by the gripman by means of a lever in the grip car. The car would be moved forward by the gripman causing the grip or clutch to fasten onto the underground cable, which would cause the car to move at the same rate of speed as the underground cable. The cars were stopped by releasing this grip and applying brakes. The train was equipped with two brakes, one a ratchet brake which operated on the wheels of the grip car and the other an automatic brake which Action by Frank Holzemer against the Metropolitan Street Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter re-operated on the wheels of the trail coach. mittitur, otherwise reversed and remanded. Plaintiff, while a pedestrian on one of the public streets in Kansas City, was struck by one of defendant's street cars and injured. This action is to recover damages for said injuries. Upon a second trial of the cause in the circuit court of Jackson county, plaintiff obtained a judgment for $15,000, and defendant duly perfected an appeal to this court. That portion of the petition specifying the negligence of defendant was as follows: "That the injuries to plaintiff, and the damages to plaintiff on account thereof, were caused by the carelessness and negligence of said defendant in that said gripman and conductor in charge of said cable train failed to keep a proper lookout for persons who were on said street and who were liable to be struck by said train, and ran said train in a careless and negligent manner and in disregard of the rights of persons on said West Twelfth street and at or near said Belleview avenue, as aforesaid, and failed to check the speed of or stop said train or warn plaintiff of the approach thereof and thereby avoid running into the plaintiff, when they saw, or by the exercise of ordinary care ought The ratchet brake would begin to operate as soon as applied, but the automatic brake would not begin to operate until four or five feet of slack was taken out of the chain. Just prior to the accident the situation was as follows: Defendant, coming from the north, started diagonally to the southeast across the tracks. At this time a west-bound car was between 100 and 150 feet to the east of the plaintiff, and the upgrade or eastbound car, which afterwards struck him, was coming up the grade between 50 and 90 feet to the west of plaintiff. Plaintiff's testimony as to how the accident occurred was as follows: "I was traveling east, diagonally over Twelfth Street, and I crossed over the north track, or just before I got to the north track I seen a car coming down hill. When I got between the north and the south track, my foot slipped, and I fell down on the south track, and before I could get up the car was over me. I didn't see this car coming. At the time the car struck me I was trying to get up. I think I was on my hands and knees. When the car passed over me, I made a grab at something underneath the car to try and hold myself free from the pave *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |