17 of the Revised Civil Statutes. At an election for such incorporation, "every free male person who has attained the age of twentyone years, and who has resided within the limits of the proposed town for six months next preceding, and is a qualified voter under the laws of the state, shall be entitled to vote." Rev. Civ. St. art. 510. At the election to assume control of the property of the old town, and thereby assume the payment of its indebtedness, "the legal voters, taxpaying property holders," alone could vote. The first question must be decided by all the qualified voters, which includes the taxpaying property holders; but the second question must be decided by the taxpaying property holders only, which excludes all not belonging to that class. It is manifest that there must be two elections to ascertain the will of the different classes of voters upon the two distinct questions. The language, "when any town or city shall reincorporate under chapters 1 or 11 of title 17 of the Revised Civil Statutes," etc., denotes the time at which the vote of the "legal voters, taxpaying property holders," shall be taken. Webster's Dictionary gives one of the definitions of the word "when" to be, "after the time that"; and, considering the context and the purposes of this act, we think that is the sense in which it was used in the act under investigation. In other words, the law is to be construed as if it read, "after any city or town shall reincorporate," etc. This is rendered more certain as the right construction by the object of the law, which is to invest title to the property of the old or de facto corporation in the new, and it will not be supposed that the legislature would undertake to cause that to be done before there was a new corporation to receive it. Again, nearly the identical words are inserted in a third proviso, as applicable to towns reincorporated before the enactment of the law, which shows that it was not the purpose to give to the act of reincorporation the effect of charging the new corporation with debts before contracted, but that it was to be left to the taxpayers to assume them by a vote of the majority. It is claimed that this act was construed by this court in the case of Ewing v. Commissioners, 83 Tex. 663, 19 S. W. 280, to mean that, upon incorporation, the new town became liable for the debts of the old. But the question was not before the court in that case, and the remarks of the chief justice were not intended, nor do they have the effect, to so construe this act. The question as to whether or not the legislature can confer upon the majority of the inhabitants of a certain district of country the power to charge, upon the property of the minority, debts for which they were not before liable, is not before the court in this case, and is not, therefore, decided, but is expressly left open for consideration when the case involving it shall come before this court. The court of civil appeals erred in reversing the judgment of the district court, and in rendering judgment for the appellant, White, against the city of Quanah, and the judgment of the said court of civil appeals is reversed, and the judgment of the district court is affirmed. DENMAN, J., did not sit in this case. PENNINGTON et al. v. STANTON. (Supreme Court of Missouri, Division No. 1. Dec. 22, 1894.) VALIDITY OF DEED-MENTAL CAPACITY-EVI. DENCE. In a suit to set aside a deed of a farm made in consideration of an agreement for support, it appeared that the grantor (deceased), an aged widow, though palsied and physically helpless, took care of her money and attended to her business affairs rationally; and that, while her mental condition was generally good, and she appeared to understand the contents of the deed in suit, she was childish and easily influenced. Plaintiffs' witnesses (acquaintances and relatives of the grantor) thought her mentally incapable of executing the deed in question. Thirteen witnesses for defendant testified that they had known the grantor for years in a business and social way, and that, notwithstanding her physical infirmities, her mind was sound. Held, that a finding that the gran tor was incapable of making the deed was er roneous. Appeal from circuit court, Andrew county'; William S. Herndon, Judge. Suit by Matilda Pennington and another against William Stanton to set aside a deed to real estate. Judgment for plaintiffs, and defendant appeals. Reversed. Booher & Williams, for appellant. David Rea, W. P. Hall, and Vinton Pike, for respondents. BRACE, J. The plaintiffs are a sister and brother, and two of the heirs at law of Mrs. Polly Goff, who died in Andrew county in August or September, 1892. On the 1st day of March, 1889, by warranty deed duly executed, acknowledged, and delivered, and on the next day filed for record in the office of the recorder of deeds for said county, Mrs. Goff, party of the first part, conveyed her farm in said county, containing about 91 acres, to the defendant, William Stanton, party of the second part, for the following consideration and agreement, expressed in said deed, to wit: "In consideration of the sum of one dollar and the care, board, clothing, and maintenance of said first party for the past two years and for the remainder of her natural life, which said second party agrees to furnish and provide. * It is agreed by the acceptance of this deed the said second party acknowledges full satisfaction for all claims for support to date, and agrees and contracts to support, clothe, maintain, and care for said first party, and provide her with medical attendance in sickness, during the balance of her natural life." Some time after the death of Mrs. Goff the plaintiffs instituted this suit in the circuit court of said county by petition in the nature of a bill in equity to set aside said deed on the ground of undue influence exercised by the defendant over the mind of the grantor, and her mental incapacity to make said deed; and, having obtained a decree canceling the deed, the defendant appeals. It appears from the evidence that at the time the deed was made and executed Mrs. Goff was about 72 years old, and illiterate. She had been a widow about seven years. She had been an invalid from her youth. She seems, from the description of the witnesses, to have been afflicted with shaking palsy. She could not walk without assistance, and in the main had to be carried from place to place. She talked with difficulty, slowly, and in a stammering manner. Her control over her limbs, tongue, and bowels was imperfect, and she required the constant attention and assistance of some one in performing nearly all the physical functions of life. She seems never to have received such attention from any relation of her own blood. She inherited some property from her father, which, notwithstanding her infirmities, she always managed and controlled; and when she executed the deed, besides the little farm in question, had a few head of stock, and some four or five hundred dollars in money and notes. The defendant, who was a neighbor, and a young married man, with his wife and one child went to live with and take care of her on her farm about the 1st of March, 1887. All the evidence is to the effect that from that time until the day of her death he devoted himself almost exclusively to her service, assiduously providing for her wants, and rendering her every service necessary to her comfort with uniform kindness and consideration. That the defendant faithfully performed his agreement, which was the consideration of the deed, is uncontroverted. That the services which he obligated himself to perform and did perform were adequate consideration for the deed is testified to by all the witnesses who testified on that subject, whether for the plaintiffs or defendant, and they were many. That she executed the deed with full knowledge of its contents clearly appears from the evidence, while there was no evidence tending to prove that the defendant used any improper means to procure its execution. Upon this state of the proof, while the court could not and did not find that the deed was procured by undue influence, it did, however, find that at the time of the execution thereof "said Polly Goff was not mentally capable of making a disposition of her property or of intelligently executing a deed," and decreed its cancellation. To support the allegations of the petition the plaintiffs introduced five witnesses, all of whom, including John Patton, one of the plaintiffs, testified as to her mental capacity. Mr. Brown, who had known her from her youth up, said that he "I never thought her really capable of doing business, and, upon being immediately asked what was the matter with her, proceeded to describe her physical condition. While the witness had known Mrs. Goff and her family for a long time, he seems to have known very little of her, at least after she arrived at maturity, never having had any business transactions with her or been in any way brought into intimate relations with her; and his opinion of her mental condition was evidently a deduction from his knowledge of her physical condition. Her brother, John Patton, plaintiff, after testifying that her condition about the time she executed the deed was the same as it had been always, testified that "her mental condition was tolerably good generally;" "most generally she understood what she was doing;" "knew those about her, and was of very independent disposition;" "pretty good wit;" and that she kept her property, and looked after it as well as the balance of the family. Mr. Kuntz, who lived with her three or four years before the de fendant went to live with her, and who continually had business transactions with her during that time, all of which she seems to have conducted prudently and rationally, knew her condition intimately. When asked what was her mental condition, he said: ain't able to say. Sometimes she seemed to be all right. She was kind, old, and childish, is all I could say;" and, while testifying that she could be influenced to do a favor by kindness, it also appears from his testimony that she knew her property and her rights; that her mind was pretty strong; and she always took care of her money and property, and according to his own account of her transactions with him, got the advantage of him in the wind-up between them. Mrs. George Davis, a stepdaughter of Mrs. Goff, after testifying to her physical condition, was asked what was her condition mentally, and answered: "Well, I don't know. I never heard her talk very much. I don't know very much how she would be." Upon being again asked a like question, she answered: "Well, I don't hardly know. I never had much dealings with her. I don't know much about that. When you would ask her a question, she would answer it correct;" and to questions then immediately asked her, as to whether she was able to transact her own business, answered: "I don't think she was," "and never was since I knew her." It is doubtful whether this witness intended to be understood as saying her stepmother was incapable of attending to her business by reason of mental incapacity. She probably attributed her incapacity to attend to business rather to her physical than her mental condition. Whatever her meaning may have been, the force of this testimony is weakened by the fact that witness did not get along well with her stepmother, her feelings for the defendant were unfriendly, and that she was impeached as to this evidence by another witness to whom she declared that her stepmother "was as sharp as a tack." Plaintiffs' fifth witness was Stephen Fee, the notary who took her acknowledgment to the deed, who testified: "That he read the deed over to her, or explained its contents to her, and that she seemed to understand it. That he asked her, 'Grandmother, do you know what you are making this deed for? and she answered: 'I have no one. I have to have a place to live at, and Mr. Stanton is going to take care of me; and if he takes care of me while I live, then he is to have this land. That she signed the deed by making her mark. That he took the acknowledgment, and that from his observation he was of the opinion that she understood the nature of the contract." This was in substance the plaintiffs' case on the issue of non compos mentis. For the defendant 13 witnesses were examined on this issue. They were all neighbors and friends of Mrs. Goff, who had known her for years, and had business and social relations with her. Some had bought property from her, and others had borrowed money from her. Others only knew her socially, as country neighbors do. They had been brought into actual mental contact with her in one way or another, and, speaking with such knowledge as they thereby gained of her mental condition, they all say with one accord, however different the terms they use in expressing the idea, that she was a woman of sound mind, capable of taking care of and managing her own property, and of disposing of the same rationally and prudently, notwithstanding her physical infirmities. the evidence tended to prove that she had always done so, and the disposition in this instance forms no exception to her rule of doing the best she could for herself. The preponderance of the evidence on all the is sues was strongly in favor of the defendant, and the finding should have been in his favor. The judgment is reversed. All concur. All Action for damages in the sum of $12,000 for injury to plaintiff's foot, it having been run over and crushed by the defendant company's cars in its railway yard in the city of St. Joseph, requiring amputation of the lar ger portion of the foot. The subjoined plat indicates the locus in quo and its surroundings. The accident occurred on the 28th of August, 1891, at which time plaintiff lacked of being six years of age the difference in time between that date and the next December. As will appear by inspection of the plat, the defendant owned a tract of ground BARNEY v. HANNIBAL & ST. J. R. CO. (Supreme Court of Missouri, Division No. 2. Dec. 18, 1894.) RAILROAD COMPANY LIABILITIES INJURY TO CHILD PLAYING IN YARD-CONTRIBUTORY NEGLIGENCE STEALING RIDE ON TRAIN. 1. A railroad company owes no duty to a child playing in its yard to see that he does not jump on its moving cars. 2. A railroad company is not negligent because it fails to fence its freight yard. 3. Rev. St. § 3927, making it a misdemeanor for any person to climb upon, hold to, or in any manner attach himself to, a locomotive or car while in motion, or while running in or from any city or town, precludes recovery of damages by a child six years of age who is injured while stealing a ride on a railway car going through the railroad company's freight yard. 4. A railroad company does not assume liability to children playing in its yard because it has directed its employés to keep the children out of the yard. Roll House or Mitchell St between Sixth and Eighth streets, lying south of Olive street, in said city, which is used as its railway yard. This yard was half a mile long, and in it was situated its freight house, warehouse, team-delivery tracks, the side tracks used for the purpose of storing cars and in making up trains, and in which all its switch work was done. This yard was separated from Eighth street by a strip of ground owned by the Rock Island road, upon which that company had two tracks. At the point where Mitchell avenue would cross the defendant's yard, had it been opened through the same, was a large warehouse, and just north of the warehouse there was a vacant, unoccupied plat of ground. The children in the neighborhood resorted to this vacant, unoccupied space, and played marbles, hopscotch, and other games there, and they frequently would get on the cars as the trains moved through the yards, or as the cars were being switched backwards and forwards in the making up of trains,-a process that, it seems, was going on during most of each day. Some days they would quit their games to ride on the cars, and some days they would not. Sometimes, as the evidence shows, they rode on the tops of the cars. Sometimes, and most usually, they contented themselves by seizing with their hands the stirrup or lower round of the ladder on the side of the car, and then, placing their feet against the truck of the car, would ride in that way. Plaintiff, whose parents lived in the vicinity of the yard, at 812 Penn street, was an habitue of these yards; had been for some six months prior to the date mentioned; frequented the playground north of the warehouse, red barn, or red house, as it was variously termed; and frequently had indulged in the perilous sport of riding on the cars, as above indicated. Indeed, on the very morning of the mishap, plaintiff had jumped on the cars, and his father, seeing him there, went over and whipped him therefor, and spoke to some of the men there in regard to it. About this plaintiff's father says: "I told two or three of them I wished they would whip the boy when they caught him in the yard; and the party made the remark, 'If we did, you would get mad about it,' and I said, 'I don't know whether I would or not.'" Instructions were given to defendant's employés to keep the boys out of the yard, and such employés obeyed these instructions, and drove the boys out, and for their pains in this regard, when the boys reached the street, they would tell the em ployés to come no further, and would greet them with showers of stones. There was evidence, however, that defendant's employés did not obey their instructions at all times, but frequently, and without rebuke, would let the boys ride on the cars. But the un contradicted testimony shows that it was simply impossible for the employés to perform their work and keep the boys out of the yards. East of the defendant's freight house, and between it and the Rock Island tracks, there were a dozen or more tracks running north and south, parallel to each other. Teams entered the yard from Olive street near where Seventh street would enter the yard if it were open through the yards, and teams also came into the yards where the alley between Seventh and Eighth streets abutted against the yard on the north line, and a regular crossing had been made for teams over the Rock Island track on the east side of the yard near the old warehouse. On the date mentioned a regular freight train coming into St. Joseph from the east, consisting of 20 cars, pulled into this yard on one of these parallel tracks, and, passing west of the old warehouse, ran on north until the engine got within 50 feet of Olive street, where it stopped. The train was fully manned by its regular crew. In passing by the warehouse the train seemed to have attracted the attention of the boys who were playing north of the old warehouse, and plaintiff and two or three others ran over to the side of the train, and, catching hold of the stirrup or lower round of the ladder on the side of the cars, and placing their feet against the trucks of the cars, rode some distance. Plaintiff says he hopped on four or five cars back from the engine; that he caught hold and rode a piece, and then dropped off onto the ground, and again caught hold to ride as another car passed him. While holding on by his hands to the ladder with his feet on the journal that held the axle, his foot slipped off, went down onto the rails between the two wheels, and one wheel ran over the front portion of his foot, necessitating the amputation thereof. The evidence shows that the tracks east and west of the track on which the train pulled in were covered with cars; injury occurred at a point opposite the middle of the freight house; that the engineer, fireman, and brakeman of the train were at their places and on the lookout, and that they saw nothing of the boys. Indeed, the evidence shows that not one of the train crew knew of the accident to plaintiff for some hours after it occurred. As soon as the crew had taken the train up to the point near Olive street, and opposite the freight house, the train was stopped, and the engine was cut off and taken to the roundhouse, and, the work of the crew being done, the crew went home. The plaintiff's father was a conductor on the Grand Island Railroad, and knew the danger his son would incur in frequenting a railroad yard. Both he and his wife had punished the plaintiff a great many times before the day of the accident for being in the yard. At the close of the case certain instructions were given for plaintiff, certain ones given and others refused defendant, and then the jury brought in a verdict for plaintiff in the sum of $5,000. Whereupon the trial court, satisfied that it had, during the trial, committed "error of law," granted a new trial on being moved thereto by defendant. From this order awarding a new trial plaintiff appealed to this court. Jas. W. Boyd, for appellant. Spencer & Mosman, for respondent. SHERWOOD, J. (after stating the facts). Owing to the view taken of the facts of this case, it will be unnecessary to quote or comment on the instructions given or refused, save one in the nature of a demurrer to the evidence, which, offered by defendant, the trial court refused to give. In determining the propriety of this refusal, several points of law will be found to be involved. 1. In the first place, the rule applicable in what is known as the "Turntable Cases" has no application to cases of this sort. Railroad cars and similar machinery are not "dangerous machines," within the meaning of that rule, as is abundantly and exhaustively shown, both directly and indirectly, in the following cases: Bishop v. Railroad Co., 14 R. I. 314; Catlett v. Railway Co. (Ark.) 21 S. W. 1062; Railroad Co. v. McLaughlin, 47 Ill. 265; Gavin v. City of Chicago, 97 Ill. 66. The case last cited was one where the injury occurred to a little boy only four years old, on a swing bridge, and it was ruled that when such a bridge in a city is reasonably safe for persons using ordinary care, and a child, without the fault of its parents, with other children, playing upon and about such bridge, is injured while the bridge is being handled with the requisite and usual care and skill, no recovery can be had against the city, but the injury must be attributed to accident. The law does not make it the duty of municipal authorities to so construct such bridges as to make them safe for children to play upon and around them; hence they are not required to place guards or mechanical contrivances to keep children off the same; Scott, J., remarking: "No doubt it would be possible to place a sufficient guard on duty at every bridge that would prevent accidents to careless persons, and to children that might come there to play, or some mechanical contrivance might possibly be constructed that would answer the same purpose; but the law has not made it the duty of municipal corporations to observe such extraordinary care. The bridge, in the condition it was then in, was reasonably safe for all persons using the slightest care for their own safety. No duty rests on the city to make such bridges safe for children to play around or upon, nor is it expected parents will allow their children to occupy such dangerous places as playgrounds; and if they wander from their homes without the knowledge of their parents, and sustain injury at such places, it must be attributed to mere accident, that no care which they are obligated to observe, on the part of municipal authorities, could prevent." In McLaughlin's case, supra, it was ruled that it was no part of the duty of a railroad company to maintain a guard over its cars left standing on its track, in order to keep children, playing about them, from getting upon or under them, and thereby save them from injury. In Morrissey v. Railroad Co., 126 Mass. 377, a child four years of age was injured by a train, and the injury occurred on the railroad track at a point 130 feet from the street, at a point where there was a path used by foot passengers, and the company had been told that this pathway opening was very dangerous for children, and the company had been requested to fence it. The evidence showed that the engineer did not see the plaintiff, either before or after the accident, but there was no evidence to show acts of willful carelessness on the part of the company. On the facts, Ames, J., observed: "The plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. He was neither a passenger, nor on his way to become one, but was there merely for his own amusement, and was using the track as a playground. The defendant corporation owed him no duty, except the negative one, not maliciously or with gross and reckless carelessness to run over him. Johnson v. Railroad Co., 125 Mass. 75. Upon this question, and also upon the question whether the plaintiff's injuries had resulted from the tortious acts of the defendant, without contributory negligence on the part of the plaintiff or those who had him in charge, the case was submitted to the jury with instructions of which no complaint is made on this behalf. The verdict was for the defendant, and we do not think that any other verdict could have been authorized by the evidence." In Bishop v. Railroad Co., supra, the facts were these: While two horse cars attached together in charge of a driver on the front platform of the leading car, and drawn by a single horse, were driving over the tracks of the company in a public highway in the city of Providence from the stables to the repair shops, a lad, six years old, to outstrip a playmate with whom he was racing, jumped on the rear platform of the leading car, and soon afterwards fell off, or jumped off, and was seriously injured. The driver testified that he did not see the boys, and kuew nothing of the accident, which occurred between 2 and 3 o'clock p. m., until the evening. In an action against the horse-car company to recover damages for the injury, held, that the company was not chargeable with negligence. Held, further, that the driver of the car was not chargeable with any neglect of duty. Held, further, that the company was not bound to employ a second man to guard the cars from intrusion during their transit. Held, further, that the company was under no duty or obligation of care to the boy. There, Durfee, C. J., after discussing the cases of Birge v. Gardiner, 19 Conn. 507, and Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railway Co., 21. Minn. 207,-said: "These cases seem to reach the limit of liability. * * * The case at bar differs very much from the three cases previously stated, for in the case at bar the cars, instead of being left unattended, were in charge of the driver, who was in the act |