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fendant, appellanthere, finds no support in the evidence. As said, defendant issued its bill of lading, acknowledging the receipt of this Carload Of agricultural implements at St. Louis, to be carried by it from that point to Manzanillo, Mexico, in consideration of the charges paid to it by plaintiff. Whatever was contained in that shipment was received by defendant at St. Louis, in its capacity as a carrier and not as a forwarder. And plaintiff’s evidence tends to show that the three articles in controversy were loaded into the car as a part of the shipment. In support of the contention that defendant acted as a forwarder merely, counsel cite the decision of this court in Tilles V. American Express Co., 186 S.W. 1102. But in that case it was undisputed that the express company issued no bill of lading or receipt for the goods, and, as stated in the course of the opinion, it did not at any time have posSeSSion . Of the goods Or undertake to tranSport them as a carrier. The company was acting as a forwarder merely. In the case before uS defendant entered into a COntract of carriage with plaintiff, acknowledged the receipt of the goods, received the transportation charges, and undertook to make the Shipment. Defendant’s undertaking was consequently that of a common carrier. [2] It is true, as urged by appellant, that the recital in the bill of lading, acknowledging the receipt of a carload of agricultural implementS, is not conclusive evidence of the delivery to defendant of the articles in controversy. But such recital, together with the evidence adduced by plaintiff going to show that these articles were a part of the shipment, constituted proof, prima facie, that the goods in question came into defendant's custody, Casting upon defendant the burden of overcoming the same by evidence of a contrary import. And since the place of delivery to defendant Was"St. Louis, and not Weehawken, nothing appeared in the evidence adduced by defendant tending to overcome plaintiff’s prima facie case So made. In this View, the trial court properly refused to declare that plaintiff could not recover, and defendant was not prejudiced by the refusal of the declarations of law offered by it.

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the gong and give warning to plaintiff, who started across the track, thinking he had time to clear the car, was negligence proximately contributing to his injury. *2. STREET RAILROADs Q->103(2) – OPERATION OF CARS—LAST CLEAR CHANCE DOCTRINE. Where plaintiff, thinking he had time to cross the track ahead of a car, went upon the track and was struck by the car, which approached without warning, the last clear chance doctrine applied, since plaintiff, though knowing of the approach of the car, was not aware of the impending danger. Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge. Action by Willard A. Woodis against the United Railways Company of St. Louis. Judgment of involuntary nonsuit, and order overruling motion for new trial and plaintiff appeals. Reversed and remanded, with

directionS.

John J. O'Connor, of St. Louis, for appellant. T. E. Francis and S. P. McChesney, both of St. Louis, for respondent.

BECKER, J. This is an action to recover damageS for perSonal injuries. At the ClOS€ of plaintiff’s case the court, at the instance of the defendant, instructed the jury that under the law and the evidence plaintiff could not recover, and their verdict must be for the defendant, whereupon plaintiff took an involuntary nonSuit, With leave to Set Same aside. Plaintiff filed his motion to set aside the judgment of nonsuit and grant a new trial, which was overruled by the court, and plaintiff brings this appeal.

In the city of St. Louis, Mo., Mississippi avenue runs north and South, and Hickory Street runs east and west. On Mississippi avenue where it intersects Hickory street there are double lines of track belonging to the defendant Company which Operates its electric street cars thereon. There is quite a steep grade on Mississippi avenue from Park aVenue, Which is tWO blocks West of Hickory Street, to Chouteau avenue, which is two blocks south of Hickory street. The plaintiff had formerly been employed by the defendant as a conductor of a street car which passed over these streets. The record discloses that on the 6th day of February, 1914, at about 6 o'clock in the evening, when by reason of the darkness the street lamps had been lighted, the plaintiff stood on the curb On the Southeast corner of Hickory street and Mississippi avenue, intending to cross over to the northwest corner of said streets, at Which corner he intended to board a southbound car. Plaintiff, while so standing on the curb, looked South up Mississippi avenue and Saw a car of the defendant company approaching some distance away, and, in the belief that he had plenty of time to get across the tracks to the Opposite corner, started . from the curb and walked rapidly in “a jog” or “dog trot” west to the east rail of the

north-bound track on Mississippi avenue, and

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proceeded along said rail. In view of the testimony most favorable to plaintiff the Car was about 170 feet away from him when he went upon the tracks; and Hickory street is said to be 60 feet in width. When plaintiff was within 3 to 5 feet of the north line of Hickory street he was struck by the front end of the car, and Sustained injuries. Plaintiff did not turn to look at the car after he left the curb. The testimony adduced is to the effect that the motorman did not ring the bell or give any warning prior to the time the car struck the plaintiff, and that the car traveled 100 feet from the point where plaintiff was struck before stopping. The car was running 10 to 12 miles per hour, and, according to a Witness for plaintiff, could have been stopped within 40 feet under the conditions as detailed in the case.

The learned trial judge at the close of plaintiff’s case, when defendant offered its demurrer to the evidence, overruled Same; but, While the first witness adduced by defendant was upon the stand, the court became convinced that it had erred in so overruling defendant’s demurrer, and thereupon reversed its said ruling and Sustained the demurrer. The plaintiff then took a nonsuit, With leave to Set Same aside.

Defendant asserts that the action Of the learned trial judge was correct, in that plaintiff’s case falls Within the rule as laid down in Peterson v. United Rys. Co., 270 Mo. 67, 192 S. W. 938, in which our Supreme Court, Speaking through Graves, J., says:

“The purpose of sounding a gong or ringing a bell is to give notice of the approaching car. If the party has this notice, without the sounding of the gong or ringing of a bell, we have universally declared that the failure to sound gong or ring bell is not the proximate cause of that injury, and should not be made the predicate for a recovery. Under such circumstances the sounding of a gong or the ringing of a bell could not impart more notice than the party already had. If one, at a crossing, sees a rapidly approaching train, no amount of whistling or bell ringing will give him more notice than that which his eyes have brought home to him. Indeed it would tend to confuse rather than help such a person. But be this as it may, it is clear that the submission of this ground of negligence to the jury in this case was error, for which the judgment must be reversed and the cause remanded.”

In the Peterson Case, however, the plaintiff was sitting in an automobile, the engine of which had ceased to work, and the automobile came to a stop on the tracks of the Street car company. The plaintiff saw the car approaching at the moment the automobile stopped upon the tracks, the car being then distant about 600 feet, running down grade at a speed of 20 to 25 miles per hour, and plaintiff, in the Peterson Case, saw the car and its movements up until about the time it struck the automobile, and, according to plaintiff's own testimony, the car was coming so fast he did not know what to do, with the result that he remained in the automobile and Suf

therefore obvious that in the Peterson Case nothing could have been accomplished by the ringing of the bell or giving warning of the approach of the car because the plaintiff saw the car at all times in its rapid approach to the spot where the automobile was stalled, and was therefore fully aware of the immediate and impending danger. But in the case at bar the plaintiff left the curb, and, if plaintiff's testimony is true, proceeded to the track and along it in the full belief that he Would have ample time to Cross the Street and Over the tracks before the approaching car would reach him, and consequently plaintiff did not at any time look back to see how near the approaching car had come to him, relying upon his judgment that he could cross over in Safety. [1] Can it be said in such a case that the ringing of the bell or the giving of some warning of the near approach Of the car Would not have served some purpose? We think not, but rather that under the facts in this case, having before us solely the testimony for plaintiff, and viewing it as we must on a demurrer, as true, and in the light most favorable to him, we must assume that the plaintiff, though he had seen the approaching car, was not aware of any immediate danger to himself, and that he therefore proceeded along plaintiff's track Oblivious to the close proximity of the car. Undoubtedly then the very fact that no bell or gong was sounded kept him from becoming aware of his immediate danger. We believe that under a state of facts such as is presented by plaintiff’s Case, if true, had the gong in point Of fact been SOUnded, it is but fair to infer that the plaintiff would have been awakened thereby to a realization of his immediate peril, and would have stepped off the track to safety. We are constrained to hold that this question of negligence should have been submitted to the jury. [2] It is argued with great earnestness that the humanitarian rule is not applicable to plaintiff’s case, and in Support thereof we are cited the following:

“The humanitarian doctrine only applies and authorizes a recovery where the injured party is ignorant or oblivious to the impending danger; but if he knew of the approaching danger, then clearly he would be guilty of such contributory negligence as would prevent a recovery, whatever the conduct of the agents in charge of the train might be.” Kinlen v. St. Ry. Co., 216 Mo. 145, loc. cit. 164, 115 S. W. 523, 530, and cases there cited.

Of such rule it has been held in Pope v. Railway Co., 242 Mo. 232, 146 S.W. 790, that:

“The foregoing language must be understood as applying to a case in which a person is upon the track at a place where he could safely have gotten off and out of danger when conscious of the train’s approach.”

As is so often the case, the quoting of a single sentence or paragraph from an opinion does not, when taken by itself and out of the opinion, express either correctly or fully ed therein. And so in this case the quotation, though on the surface and when read by it. Self, would seem to be authority supporting the action of the learned trial judge in sustaining the defendant’s demurrer at the close of the plaintiff's case, yet when one reads the entire case, it is obvious that such was not the holding in the said Kinlen Case. In the Same paragraph and preceding the sentence quoted from the Kinlen Case, supra, we find the following: “The humanitarian doctrine does not go so far as to authorize a recovery where the injured party knowingly drives in front of an approaching car, and when he knows he will not have time to cross in safety. (Italics ours.) To so hold would be equivalent to abolishing the law of contributory negligence. Yes, it would do more than that, for such ruling would make the company, absolutely liable when a party is injured in his attempt to cross in front of the approaching car when he knows he has not the time in which to do so; and that, too, when the company is guilty of no negligence whatever, for the obvious reason that if he has not sufficient time in which to cross in front of the car in safety, then as a necessary corollary thereto the motorman would not have the time in which to stop or slacken the speed of the car and thereby avoid the injury. The law is well settled that where one even negligently places himself in front of a rapidly approaching train and is injured thereby, he cannot recover if the employés in charge of the train used reasonable care to avoid the injury, after they discovered his perilous position, or by the exercise of ordinary care might have discovered it. Harlan V. Railway Co., 64 Mo. loc. cit. 483. That being unquestionably the law, then how much stronger should the reaSOn be for holding he cannot recover when he knowingly, and willfully steps or drives in front of a rapidly approaching car? Prewitt v. Eddy, 115 Mo. 283, 21 S. W. 742. Nor will the law permit a recovery where the injured party knowingly places himself in a place of danger and knowingly or willfully permits the train to strike him, even though the employés in charge thereof could have prevented it by the exercise of ordinary care.”

Even under the construction of the Kinlen Case as is contended for by the learned counsel for defendant, We hold that it is not authority for the action of the court in Sustaining defendant's demurrer at the close of plaintiff's case. It is perfectly clear that there is no evidence upon Which to predicate a finding that plaintiff knew he did not have time to cross Hickory street in safety. And his evidence makes it appear that he WaS Oblivious to the impending danger, though he knew that the car Was SOmewhere behind him. Plaintiff’s testimony, which for the purposes Of this case We are bound to Consider as true, shows that when he saw the car some 170 feet away he did not realize its speed, and Supposed he could CrOSS the Street before it would reach him; and added to that the testimony that the car could have been stopped Within 40 feet, and that there Was Sufficient light at that place for plaintiff to be seen by the motorman at a much greater distance, made it a question for the jury to Say Whether or not the motorman saw, or by the exercise of ordinary care could have Seen, plain

tiff in peril, and whether liability should be Cast upon defendant as for negligence On the part of the motorman in failing to exercise Ordinary care in using the means at hand to . stop or slacken the speed of the car to avoid injuring plaintiff, under the last chance doctrine. See Flynn V. Railway Co., 166 Mo. App. 182, 148 S. W. 122; Ingino v. Met. St. Ry. Co., 179 S.W. 771; Nufer v. St. Ry. Co., 182 S. W. 792; Strother v. Dunham, 193 S. W. 883.

From What We have said above the court erred in sustaining defendant’s demurrer to the evidence and in Overruling the plaintiff's motion to set aside the nonsuit and grant him a new trial. The said judgment is acCOrdingly reversed, and the cause remanded, with directions to sustain the plaintiff's motion to set aside the nonsuit and grant a new trial.

REYNOLDS, P. J., and ALLEN, J., concur.

NITCHMAN v. UNITED RYS. CO. OF ST.
LOUIS. (No. 15038.)
(St. Louis Court of Appeals. Missouri. May
7, 1918. Rehearing Denied May 22, 1918.)

1. APPEAL AND ERROR Q->1050(1)—PLEADING &=430(2) — VARIANCE - HARMLESS ERRORTIME FOR OBJECTION. Where a medical witness was permitted to testify without objection that he had found that plaintiff’s appendix was affected, and that she had a great deal of pain and had temperature, and that there were many things, which might have caused the condition, an objection to a question as to what could have caused the condition, on the ground that the appendix was not covered by the pleadings, was too late, and was especially not prejudicial, where a medical witness for defendant had examined the plaintiff’s appendix and testified in detail as to the condition he found. 2. DAMAGES G-158(1)—PLEADING AND PROOF —PERSONAL INJURY. In personal injury case it was proper to admit evidence as to injury to the appendix under an allegation of “pain in and about her abdomen and pelvic region,” where there was evidence that the appendix was located in the pelvic region. 3. APPEAL AND ERROR 3:302(4)—MOTION FOR NEW TRIAL-ASSIGNMENTS OF ERROR-INSTRUCTIONS. Assignments of error on motion for new trial that the “court erred in giving and reading to the jury erroneous, illegal, and misleading instructions on behalf of plaintiff, and over defendant's objection thereto,” and “in refusing to give and read to the jury legal and proper instructions requested by defendant,” are insufficient to present anything for review. 4. APPEAL AND ERROR 621033(5)—HARMLESS: ERROR-INSTRUCTIONS—lSSUES. Where plaintiff alleged defendant was negligent in starting its street car prematurely and in allowing ice to remain on the step, defendant cannot complain of an instruction predicating recovery solely on premature starting of the car while plaintiff was unbalanced after slipping on the icy step. - Appeal from St. Louis Circuit Court; Leo S. Rassieur, Judge. “Not to be officially published.”

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Action by Nellie Nitchman against the United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed.

T. E. Francis and Chauncey H. Clarke, both of St. Louis, for appellant. Earl M. Pirkey, of St. Louis, for respondent.

BECKER, J. This appeal is prosecuted from a judgment for $2,200 rendered in favor of plaintiff and against defendant in an action for personal injuries.

The petition alleges that plaintiff was injured while in the act of alighting from a street car owned and operated by the defendant, by reason of the negligent premature Starting of the car and the negligence of the defendant in permitting ice to remain on the step of the car which caused plaintiff to slip and fall. The answer is a general tienial.

It is assigned as error that the court admitted evidence over defendant's objection

thereto, that appendicitis resulted from the

injuries alleged to have been sustained by plaintiff, for the reason that there was no allegation of Such injury in the petition. The record discloses that the following questions were asked of, and answers given by, a physician who was a witness for plaintiff aS follows:

“Q. Did you ever treat this woman here (meaning plaintiff)? A. Yes, sir. Q. How long? A. Since last September, off and on. Q. Just tell what you found when you examined her in September last. A. Well, upon examination I found on the right side, over the right tube, and also the appendix were affected, both. Q. How were they affected? A. She had a great deal of pain; had temperature and still has temperature. Q. Did you find anything which could be a cause for that condition? A. Well, there are many things that might be a cause for the condition, especially with the appendix. Q. What could cause that, doctor, that condition you found? A. With the appendix? Q. Yes; the entire condition you have mentioned. Mr. Blodgett (counsel for defendant): Just a moment. I do not think there is any allegation of that, your honor; I object to it on that ground. “Mr. Pirkey (counsel for plaintiff): Where is this appendix, doctor? A. It is on the right side. Q. Where is it with reference to the abdomen and pelvic region? A. It is what we call McBurney’s point, between the crest of the ilium and the tubes. Q. Is that near the pelvic region? A. Yes, sir; it is above the pelvic-right in the pelvis to the center right a little. Q. Of that region? . Yes, sir. “The Court: Go ahead; that is covered by the allegation. “Mr. Blodgett.. I submit a matter of injury to an organ of that kind is a matter of special damage, and would have to be alleged; and I object to it on that ground.” “The Court: Objection overruled.”

To which ruling the defendant by its counSel then and there duly excepted.

[1] It will be noted the witness was permitted to testify without objection that upon examination he had found the plaintiff’s appendix was affected, and that plaintiff had a great deal of pain and had temperature, and

be the cause of her condition, especially with reference to the appendix. The objection, therefore, So far as this testimony was conCerned came too late. Birmingham Drainage Dist. v. C., M. & St. P. Ry. Co., 266 Mo. 60, loC. Cit. 71, 178 S. W. 893. No motion Was made to strike out the testimony against which the objection had been leveled, nor did defendant file an affidavit of surprise, but stood solely upon the objection interposed after the above said testimony had already been admitted without objection. This assignment of error we rule against the appellant. [2] But even had the defendant interposed a timely objection the court Would properly have overruled it, in view of the fact that the plaintiff's petition alleges that: By reason of her fall “her right ankle was sprained and bruised, and her left hip was bruised and strained, and her back and abdomen and head and arms and legs were bruised, and her back was wrenched and twisted, and she was caused to sustain great nervous injuries and shock; that by her injuries so sustained plaintiff has suffered, and will suffer, great pain of body and mind, and she was caused to suffer a miscarriage, and prematurely give birth on or about February 24, 1914, and she is permanently affected with pain in her back and with pain in and about her abdomen and pelvic region (italics ours), and she will be unable to bear children in the future, and her ovaries are permanently affected with inflammation and pain, and her womb is permanently affected with inflammation and pain and a falling condition, and her strength and endurance are permanently greatly lessened, and she has sustained permanent nervous injuries, and shock, and she is permanently affected with insomnia.” We hold that under the allegation in the petition that plaintiff is permanently affected With pain in and about her abdomen and pelvic region, when coupled with the testimony that the appendix is located in the pelvic region, was a sufficient showing to permit the plaintiff to introduce testimony that she suffered pain from her appendix. Furthermore, defendant introduced a physician as its witness, who made a careful examination of the plaintiff, and testified in detail as to the condition he found the plaintiff’s appendix. In no view of the case could the overruling of defendant's objection at the time and in the manner made have been prejudicial to the defendant. [3] The only other assignments of error are leveled at an instruction given for plaintiff, and the refusal of the court to give an instruction requested by the defendant. These assignments of error are attacked on the ground that they have not been properly Saved in defendant's motion for new trial below. We have examined the motion for new trial, and find that the only assignments therein which are pertinent to the assignments of error here under discussion read as follows:

“Seventh. Because the court erred in giving and reading to the jury erroneous, illegal, and misleading instructions on behalf of plaintiff, and over defendant's objection thereto.

and reading to the jury erroneous and misleading instructions of the court's own motion, and over defendant’s objection thereto. “Ninth. Because the court erred in refusing to give and read to the jury legal and proper instructions requested by defendant.” In Our View of the recent ruling Of the Supreme Court in the case of K. C. Disinfecting Co. v Bates County, 201 S. W. 92, these assignments in the motion for new trial are insufficient to permit a review here of these instructions. Lampe v. United Railways Co., 202 S. W. 438, decided by this court April 2, 1918, and not as yet Officially reported. [4] However, we have examined the assignments of error relating to the instructions, and find them without merit. The complaint as to plaintiff's instruction numbered 1 is that it omitted to require a finding that ice was negligently permitted by defendant to remain on the Car Step. But under the theory upon which this instruction proceeds, Such Omission Was not error. In the instruction reference is made to the preSence of ice on the step of the car, and that plaintiff Slipped thereupon, merely as requiring a finding as to a condition present when, according to plaintiff's evidence, the car was suddenly started forward, viz. that plaintiff had thus slipped, and before she could recoVer herself and alight from the car, the latter WaS Started forward. The evidence Was Such, however, as to make the question of defendant's negligence as to the ice being on the Step a question for the jury, had plaintiff seen fit to submit that as a predicate of liability. That plaintiff did not do so cannot be Complained of, and, that being our ruling on this point, it also follows that under the circumstances defendant was not prejudiced by the refusal of the instruction offered by it touching this matter. The judgment is acCordingly affirmed.

REYNOLDS, P. J., and ALLEN, J., conCUlr.

(199 Mo. App. 365) CUCCIO V. TERMINAL R. ASS’N et al. (No. 14891.)

(St. Louis Court of Appeals. Missouri. May 7, 1918.)

1. RAILROADS @:295 — Col.IISION – STREET RAILROAD-‘‘CAR.’’ A push car without means of propulsion or brakes, used for street railroad track repairers to push about to carry their tools and materials, was not a “car” within Rev. St. 1909, § 3303, requiring each car on a street railroad track to be brought to- a full stop before reaching railroad tracks, and making it the duty of some employé to go forward and ascertain whether a train was approaching. [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Car.]

2. RAILROADS @->297(7)—COLLISION–STREET RAILROAD – CONTRIBUTORY NEGLIGENCE – QUESTIONS FOR JURY. A street railway track repairer, who on orders of his foreman placed tools on a push car

without brakes and with others rode upon and across a railroad track where gates were maintained and a signalman was posted at a time when the gates were open, and who was struck by a backing locomotive on the tender of which no person was stationed to warn of the approach, was not contributorily negligent as a matter of law. 3. NEGLIGENCE 3:136(26) – QUESTIONS FOR JURY. Where plaintiff makes a prima facie case, defendants have the burden of overcoming that case, and if a prima facie case has once been made out the case can never be peremptorily taken from the jury, since, however strong the controverting testimony of contributory negligence may be, its credibility and weight are for the jury, 4. RAILROADS @:292 – COLLISION – STREET RAILROAD-NEGLIGENCE. Where terminal railroad locomotive was delivering cars to through road and, returning, backed across grade street railroad crossing, if it did so without warning, the terminal railroad might be found liable, although the signalman was not employed by it.

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BECKER, J. This is an action for damages for the death of plaintiff's husband, alleged to have resulted from the negligence Of the defendants. The case was tried before a judge and jury, a verdict in the Sum of $3,000 resulting in favor of plaintiff and against the defendants. From a judgment rendered thereon the defendantS appeal.

The petition as filed was against the United Railways Company of St. Louis, Terminal Railroad ASSOciation, and Edward B. Pryor, as receiver for the Wabash Railroad Company. It will not be necessary to notice either the pleadings or the evidence in So far as it refers to the United RailWayS Company of St. Louis, in that the trial court Sustained its demurrer at the close of the plaintiff's case. The plaintiff's petition is based upon the negligence of the defendant, receiver for the Wabash Railroad Company, in the alleged failure of its Watchman Or trainman to sound the gong Or to lower the railroad crossing gates erected and maintained by it at the intersection of Page avenue and its tracks, the point at which the plaintiff's husband met with his injuries which caused his death, and the petition Sets up the negligence of the defendant Terminal Railroad Association in backing its engine Over the tracks of the United Railways Cornpany without having given any warning or

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