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Signal of its approach, and Without having any one stationed upon the advancing end Of the tender of the locomotive as required by the rules of Said defendant Company. The defendant Terminal Railroad Association filed a general denial, as did the receiver of the Wabash Railroad Company, together with a plea of contributory negligence.

We are able to adopt practically the statement of facts as is presented by the appellant Terminal Railroad Association, as follows:

“The facts as developed on the part of the plaintiff in her case in chief were that her husband, the decedent, was at the time of the accident that resulted in his death a man of about 35 years of age, in good health, and sober and industrious, and had been earning about $2 per day as a section laborer in the employ of the United Railways Company of St. Louis. On October 30, 1913, the day of the accident, he was working with other laborers on track repairs on a line of street railway in the county of St. Louis, west of the crossing of said street railway track with the tracks of the Wabash Railway, then operated by the defendant Pryor, as receiver, at Page avenue. The Street railway track ran east and west and the railroad tracks substantially north and south. About hoon, the deceased with three fellow laborers, all section hands, and the foreman of the United Railways Company, boarded a push car at a point about a city block west of the crossing and with their tools on the car proceeded eastwardly toward the crossing: their intention being to go beyond the crossing to another point of work. The push car was a flat car, without equipment for its mechanical propulsion, and without being equipped with any braking device. It could be stopped when proceeding by gravity by blocking the wheel with a shovel or piece of wood. For the distance from where the car started, a block or more from the crossing, it was downgrade to beyond the crossing. Shortly after the start of the car the foreman of the United Railways Company stepped off the car to talk to another laborer.

“South of the Street railway tracks near the crossing there was a bank of earth which obstructed the view of trains proceeding northwardly on the railroad tracks. On the north side of Page avenue and just west of the railroad tracks there was a building on the second floor of which there was installed the levers for operating the interlocking switching plant of the Wabash Railway and the levers for operating gates across Page avenue on the east and west sides of the crossing. The witnesses for the plaintiff testified that the gates were up or open from the time the push car started on its journey,” and remained up until after the collision, “and that they did not hear any bell ring, either the bell signal on the side of the gate tower or the bell of the engine involved in the accident. Defendants’ testimony was that this train was operated by the employés of the Terminal Railroad Association of St. Louis, and had finished making a delivery of cars to the Wabash Railway. The tracks were the tracks of the Wabash Railway and the gates were operated by a Wabash gateman.

“In making this delivery, the Terminal crew backed the cars that the engine was shoving onto a side or passing track. When the cars that were to be delivered to the Wabash had been cut off from the rest of the train, a signal, by means of a dwarf or pot signal, which was a low switch stand, was given by the gateman. This meant that the track was clear for the engine and attached cars to come out of the

the crossing. Thereupon the engineer started to back north along the passing track onto the main track of the Wabash Railroad Company: The freight cars were attached to the front end of the locomotive and were being pulled along by the engine so that the tender or tank of the locomotive was the front end of the train, and there was nobody stationed on the rear of the tender to warn persons at the crossing of the approach of the train, as was required by the rules of the Terminal Railroad Association. The engineer was in the cab on the right side, which at that time was the west side of the engine proceeding northwardly.

“It was not contended, nor does the evidence of plaintiff nor any of all the evidence show, that the train was being operated at any rapid rate of speed. The speed was given by various witnesses as from 4 to 6 miles per hour at the time of the collision with the push car. point from which the engine was started after the clear track signal was given, is stated in the evidence as being from 120 to 200 feet from the crossing. Two hundred feet is the distance given on the map of the tracks introduced in evidence and this defendant concedes was the distance. The testimony of the witnesses for this defendant shows that the engine was equipped with an automatic bell ringer and that the bell on the engine was started to ring when the engine was put into motion, or just before that, and continued to ring until after the accident. The defendant's testimony also showed that at the time the push car was coming down the grade toward the crossing a bell attached to the side of the gateman's tower was rung to announce the lowering of the gates, and that the gates were being lowered when the push car was 150 feet to 200 feet from the crossing. The testimony as to the speed attained by the push car when it, reached near the point of collision is contradictory. Plaintiff's testimony Varied from slow to ‘pretty fast, while defendants testimony was that the push car was moving from 10 to 12 miles per hour, to a statement by a witness that the car came down “awfully fast.”

We will consider first the assignment of error Set forth by the appellant Terminal Railroad Association, namely, that the court erred in refusing to give its instruction in the nature of a demurrer to the evidence as requested by it at the close of the plaintiff's case in chief, and again offered and refused by the court at the close of the entire case, On the ground that under plaintiff's testimony it appears that the push car was not Stopped not leSS than 10 feet nor more than 20 feet from the crossing of the Wabash Railroad tracks and the street railway tracks, as required by section 3303, Revised Statutes of Missouri 1909. This assignment Of error requires that we decide as to whether a flat car, Such as the deceased was riding upon at the time he met with his injuries, and which has been termed throughOut the record as a push car, and which is Without any equipment for its mechanical propulsion and is not equipped with a braking device, is Such a “car” as to fall Within the intendment of said section 3303, Revised Statutes Of MissOuri 1909.

[1] It must be COnceded at the OutSet that under the broad, generic term “car” this push car would undoubtedly be included therein, but when we have in mind the lan

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seemingly was designed to accomplish, we unhesitatingly come to the conclusion that a push Car Such as We are considering in the instant case does not fall within the purView of the statute. This section provides:

“It shall be the duty of every street railway company or corporation operating a street railway across the tracks of a railroad company to bring its cars to a full stop at least ten and not more than twenty feet before reaching the tracks of the railroad company. And it shall be the duty of the conductor, or some other employé of the street railway company, to go forward to the tracks of such railroad company for the purpose of ascertaining whether a train is approaching such crossing.”

The record discloses that the push car was merely a flat car Some 6 feet by 9 feet, resting upon four Wheels With no mechanism for mechanical propulsion, and wholly without any system of brakes, and intended solely to have placed upon it the tools and Other equipment of the laborers who were engaged in making track repairs, and that the push car Was, as its name implies, to be pushed by the laborers by hand along the track from place to place where they might be working, and excepting under the most unusual circumstances the car would never attain a Speed greater than that of the laborers Walking along pushing the car, nor Was its normal use intended to be for the purpose of carrying any persons upon it. It would take a Wide Stretch Of imagination to hold that Such a push car was within the intendment of said statute. When one reads section 3303a, Session Acts of 1913, pp. 189 and 190, which requires, among other things, that every street railway company, “for the convenience, health and Comfort Of the conductor and motorman and the person or persons Operating, controlling and in charge of any and all its cars” furnish. “One Stool Or seat for each and every Such COnductor, motorman Or person so Operating, controlling or in charge of each, any and all its said cars to use and occupy said stool or seat for a portion of each and every trip any such car may make for a distance of not less than twentyfive per cent. Of the full length of all the track or tracks traversed by said car,” it makes it even clearer that Sections 3303 and 3303a are not applicable to a push car. We have been cited SOme authorities which have held that a hand car, which is a car admitted to be equipped With mechanical apparatus for its propulsion, and which is in general use for the purpose of conveying laborers and others (Often for considerable distances along the tracks Of Steam railroad companies), falls within the intendment of certain StatuteS. Such CaSeS are not authority in considering a push car, which, though a “car” in the broadest use of the word, yet has characteristics peculiarly its own; being without any mechanical apparatus for its propulsion and is primarily intended to convey tools and kindred paraphernalia used by the Workmen, yet not in

tended to be used for the conveying of the Workmen themselves. But whether or not a hand car Would fall Within the purView of our statute is a matter not before us, and it is therefore not necessary for us to decide. We hold that a push car of the kind and description as the record in this case shows does not fall Within the requirements of Section 3303, Revised Statutes Of MissOuri 1909, and we rule this point against the said appellant. [2] It is next urged that the court erred in overruling the demurrers of each of the defendants, who are appellants here, on the ground that the plaintiff under the evidence should have been held guilty of contributory negligence as a matter of law. We do not SO read the record in this Case. According to the testimony adduced by plaintiff it appears that at the intersection of the Wabash RailWay trackS and Page a Venue, On which the said street railway tracks of the United Railways Company are laid, there is a large traffic, and that Some years ago the Wabash Railroad Company erected a Switch tower at this point and erected gates which are operated by the employé in the toWer, and that there Was a Watchman in the tower on the day in question, and that the gates were in working order; also that a gong had been installed On the Outside Of the switch tower which it is the duty of the Watchman in the tower to ring immediately before lowering the gates. The record further shows that the deceased was thoroughly familiar With this COndition of affairs and With the fact that it Was the custom to lower the gates upon the approach of any train. On this particular day, however, according to the testimony for plaintiff, the deceased, as well as his three companions, before going Onto the push Car at a distance more than a block away from the tracks, looked and saw no train in sight and found that the crossing gates were open, and the testimony of each Of the three Companions Who Were On the push car with the deceased is to the effect that the gates remained Open up to the time the tender of the locomotive struck the push Car. In addition to the element that the gates were thus left open, we have the testimony that the gong On the tower Was not rung, and that the bell on the Terminal Railroad Association’s engine was not rung, nOr any Whistle blown, nor was a man Stationed on the tender, as was required by the rules of the defendant Terminal Railroad Association. And at the Southwest corner, where the Street railWay tracks and the Wabash Railroad tracks interSect, there is a mound or hill of Sufficient height to shut off the view of the men riding on the push Car to Such an extent that they could not See an approaching train until they were within approximately 20 to 40 feet of the railroad tracks. Such being the record, we hold that the deceased could not be held .

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guilty of contributory negligence as a matter Of law, and that the court properly held the plaintiff had made out a prima facie case ens titling her to go to the jury.

[3] In Such a case the burden then Shifts to he defendants, if they rely upon plaintiff's Snegligence, to disprove or overcome that case to the Satisfaction of the jury. And Such prima facie case having been made out, the case can never be peremptorily taken from the jury; for, however strong the controverting testimony of plaintiff's contributory negligence may be, its credibility and weight are for the jury. See Peterson V. Chi. & Alton Ry. Co., 265 Mo. 462, loc. cit. 479, 178 S. W. 182, and cases there cited.

In SO holding We have in mind that the duty of exercising common prudence to avoid danger on the part of persons approaching a public railway crossing is not removed in cases where the railroad company fails to observe the requirements of law and proper care; yet “if he use such reasonable prudence for his OWn Safety as the law of Common prudence enjoins, he has the right, in the absence of information to the contrary, in determining whether the Way is open and safe, to rely upon the presumption that the corporation will perform its duty, and observe the precautions imposed upon it.” Weller v. C., M. & St. P. Ry. Co., 120 Mo. 635, loc. cit. 653, 23 S. W. 1061, 1065, 25 S. W. 532, and Cases there cited. When, however, as in this case, there are gates maintained at the public crossing and a gong for the purpose of warning pedestrians and others of the approach of the train, and such gong is not sounded, and the plaintiff's testimony, if true, shows that the gates were not lowered, and the approaching train does not ring its bell or blow its whistle nor give any warning of its approach, and it further appears that the locomotive is proceeding with the tender first With no one stationed at the advancing end, as required by the rules of the defendant Terminal Railroad Association, the plaintiff cannot be held to have been guilty of contributory negligence as a matter of law. Yonkers v. St. L., I. M. & S. Ry. Co., 182 Mo. App. 558, 168 S. W. 307, and cases therein cited. See, also, Railway Co. v. Schneider, 45 Ohio St. 678, 17 N. E. 321; State of Maine v. Boston & Maine Ry. Co., 80 Me. 430, 15 Atl. 36; Wilson v. N. Y., N. H. & H. Ry. Co., 18 R. I. 491, 29 Atl. 258. It is Well to note in this connection that the cases cited by the appellants on this point are not gate crossing cases, and therefore are not authority in a case of this kind, where there is the added feature of railway crbssing gates Which plaintiff’s testimony ShoWs were relied upon by the deceased and which were not lowered upon the approach of the train which collided with the push car on which plaintiff was seated.

[4] And what we have said above is not affected by the argument of the learned counsel for the appellant Terminal Railroad ASSOCiation that the Watchman in the tower was not its employé, nor were the tracks upon which the collision Occurred, nor the gates erected thereon, owned or operated by it, and therefore it could not be held for the negligence, if any, in the failure of the Watchman to close the gates upon the approach Of Said defendant’s train. The Terminal Railroad Association, defendant, may be found liable if it passed over said street railWay tracks and failed to give the necessary warning of its approach; and under the record in this case its liability vel non WaS properly held to be a question for the jury. Wills V. Atchison, T. & S. F. Ry. Co., 133 Mo. App. 625, loc. cit. 636, 113 S. W. 713.

We find no merit in the assignment of errOr directed at the instructions. The instructions given correctly, fairly, and fully put the case to the jury, and the amount of the Verdict is reasonable. Finding no error prejudicial to appellants, the judgment is accordingly affirmed.

REYNOLDS, P. J., and ALLEN, J., conCUIT.

(199 Mo. App. 356) THOMPSON v. GRANITE BITUMINOUS PAVING CO. et al. (No. 15009.)

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

1. TRIAL 6:156(1) – DEMURRER TO EVIDENCE —RIGHT TO RECOVER. The question of plaintiff's right to recover at all was raised by defendants’ demurrers to the evidence. 2. NEW TRIAL C-27—HARMLEss ERROR—DEMURRER TO EVIDENCE. If plaintiff, under his petition and the evidence adduced, was not entitled to go to the jury, but demurrer to the evidence should have been sustained, the trial court's order setting aside verdict for defendants on the theory that error had been committed in the course of the trial cannot be permitted to stand, since any such error cannot have been prejudicial to plaintii's rights.

3. LANDLORD AND TENANT ©->55(1)–LACK OF POSSESSION-INJURY TO REVERSION. Where the owner of land was out of possession, the entire premises being in the exclusive possession of a tenant, he cannot recover in trespass as for a wrong committed against the possession, though, as an owner out of possession, he may have his action against a trespasser for an injury done the reversion.

4. LANDLORD AND TENANT ©255(3)—INJURY TO REVERSION-NATURE OF ACTION. At common law, a landlord's action for an injury dones to the reversion was technically not an action of trespass, but of trespass on the case, a distinction without importance under Missouri code procedure.

5. DAMAGES @:108—INJURY TO REVERSION. In an action of trespass on the case by a landlord for injury to the reversion by dumping earth on the premises, the measure of damages would be the depreciation, in the market value of the land after the earth was dumped there

Missouri. May upon, from its prior value, unless the cost of removing the earth would be less than the depreciation.

6. USE AND OCCUPATION <>1 — RELATION OF LANDLORD AND TENANT. An action for use and occupation cannot be maintained, unless the relation of landlord and tenant exists between the parties, founded on agreement express or implied.

7. USE AND OCCUPATION &1 — RELATION USE OF LAND UNDER LICENSE FROM TENANT. An owner of land, in possession of a tenant from month to month, can have no cause of action against defendants for their mere use of the land for dumping purposes or otherwise, without injury to the reversion, under license from the tenant; evidence showing that relation of landlord and tenant did not exist.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Action by William B. Thompson against the Granite Bituminous Paving Company and another, resulting in verdict for defendants. From order granting plaintiff new trial, defendants appeal. Order reversed, and cause remanded, with directions to reinstate the Verdict, and enter judgment accordingly.

Sturdevant & Sturdevant and Kinealy & Kinealy, all of St. Louis, for appellants. David Goldsmith and Ford W. Thompson, both of St. Louis, for respondent.

ALLEN, J. The petition herein alleges that plaintiff is, and at all times mentioned in the petition was, the oywner of a certain tract of ground in the city of St. Louis, consisting of certain lots, With the exception of “that portion of Said lots Which is contained in a Certain public Street known as Northland avenue,” which now extends through the original tract, and excepting two public alleys extending through the same; “that defendants, through their agents and servants, between April 25, 1914, and August 6, 1914, without the knowledge or consent of plaintiff, caused to be dumped and laid upon Said land a large amount, to wit, 63.71 cubic yards of earth, taken and removed from said Northland avenue; that the reaSOnable Value Of the use Of Said land for dumping of said earth is the sum of $3,000; that no part of said sum has been paid by Said defendants, although demanded.” Judgment is prayed for $3,000. The answer admits that some earth was placed by defendants upon the land described in the petition, but avers “that the same was dOne With the permission and consent of plaintiff under verbal agreement between these defendants and plaintiff through F. H. Bailey, the tenant and occupant thereof at the time, who was the agent of plaintiff and duly authorized to make Said agreement.” The other allegations of the petition are denied.

The trial, before the court and a jury, reSulted in a Verdict for defendants. Thereafter the COurt Sustained plaintiff’s motion for a new trial On the ground that error had been committed at the trial in the giving of an in

struction for defendants, defendants' instruction No. 5. From the order granting the new trial, the defendants prosecute the appeal before uS. The evidence shows that in 1914, and for many years prior thereto, plaintiff owned the tract of land mentioned in the petition, lying on the north side of Spalding avenue between Kingshighway and Union boulevards, in the city of St. Louis, containing about 10 or 12 acres of land. In 1910 plaintiff rented the property to One Bailey, as a tenant from month to month, who remained such tenant and was in possession thereof during the year 1914. Bailey occupied an eight-room house situated upon the land, and, according to plaintiff’s testmony, “had possession of all the land, except what was taken for Streets and alleys.” It appears that in 1911 there was a large depression upon this land wherein water collected forming a pond, that plaintiff desired to have this depression filled, and that the board of health of the city of St. Louis took steps to require this to be done. In that year plaintiff gave a letter to one Holmes authorizing him to enter upon the premises and dump earth into the depression, and later made an arrangement with the Union Electric Light & Power Company to dump earth at this place. According to testimony for plaintiff this depression was entirely filled by some time in 1913. Plaintiff testified that he never at any time gave Bailey a permit to allow dumping upon the land; but it appears

that Bailey did at different times allow con

tractors to use the land as a dumping place. And in 1914 the defendant Webb-Runze Construction Company, being then engaged, under contract With its codefendant, in excavation WOrk for the construction Of Northland avenue, which had been opened through plaintiff's tract of land, entered into an oral agreement With Bailey Whereby, in consideration of the sum of $125 paid to him, Bailey undertook to authorize said defendant to dump upon plaintiff's land the dirt excavated in making this street. And under this agreement said defendant dumped earth over practically all of plaintiff’s land. Plaintiff's evidence tends to show that the layer of earth placed upon the land varied from about one foot to SOmething more than tWO feet in thickness. According to defendants’ evidence there Was then a depression upon the land, which was first filled by the dirt dumped by the defendant construction company. And it is said that the dumping was done under the Supervision of Bailey, with the view of filling up the lower places, and that he required that the surface be “leveled up.” Plaintiff adduced evidence tending to show the reasonable Value Of the use Of the land for dumping purposes. There is no evidence, however, tending to show any injury to the reversion or freehold by the placing of this earth upon plaintiff’s land.

6:5FCr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

203 S.W.–32

At the close of plaintiff's case, and again at the close of the entire case, defendants offered a peremptory instruction in the nature of a demurrer to the evidence, which was refused. In the view which we take of the case it is unnecessary to set out defendants’ instruction No. 5, or any of the other instructions given. Learned counsel for appellant, while contending that if the case was One for the jury it was not error to give defendants’ instruction No. 5, argue with much force and earnestneSS that in no event was plaintiff entitled to recover under the petition and evidence in this case; that the demurrer to the evidence should therefore have been Sustained; and that Consequently, regardless of all other considerations, the court erred in disturbing the verdict obtained by defendants at the hands of the jury. [1, 2] The question as to plaintiff's right to recover at all was, of course, raised by the demurrers to the evidence interposed below, and is consequently here presented by this record. And it is undeniably true that if plaintiff, under his petition and the evidence adduced, was not entitled to go to the jury, then the order of the trial court setting aside the verdict for defendants, upon the theory that error had been committed in the course of the trial, cannot be permitted to stand. No such error, if any, can be said to have been prejudicial to the rights of plaintiff, and serve as a valid reason for setting aside the verdict, if in fact the court should have Sustained a demurrer to the evidence. Johnson Grain Co. v. Railroad, 177 Mo. App. 194, 164 S. W. 182. Pursuing the argument advanced by appellant's Counsel in this connection, the averments of the petition should first be noticed. It is charged that the defendants dumped the earth in question upon plaintiff’s land Without plaintiff's knowledge or consent; and it is then averred that the reasonable value of the use of the land for such dumping purposes was $3,000, for which a recovery is sought. Appellant refers to the petition as One Seeking to recover in trespass, but says that Since plaintiff admits that he Was Out of possession, he can recover Only for injury to the reversion. Respondent's learned COunSel at the OutSet of their Statement contained in their brief refer to the action as One in trespass; however, elsewhere throughout their brief they appear to deal With the action as One to recover for the value of a “dumping privilege,” by which must be meant a recovery as for the use and occupation of the land for Such purpose. [3-5] It is quite clear that plaintiff being out of possession, the entire premises then being in exclusive possession of Bailey, the tenant, Cannot recover in trespassa as for a wrong committed against the SSession (Lindenbower v. Bentley, 86 Mo. 515; Zeitinger v. Hackworth, 117 Mo. 505, 23 S. W. 763; Thurmond v. White Lime Ass'n, 125

Owner Out of possession, he may have his action against a trespasser for an injury done to the reversion (Bobb v. Syenite Grain Co., 41 Mo. App. 642; Bailey v. A. Siegel Gas Fixture Co., 54 Mo. App. 50; Ridge V. Transfer Co., 56 Mo. App. 133). At common law this action of a landlord for an injury done to the reversion Was technically not an action of trespass, but one of trespass on the case; a distinction of no importance under our code procedure. Bobb v. Syenite Grain Co., supra ; Ridge V. Transfer Co., Supra. In an action Of this character the measure of plaintiff's damages Would be the depreciation in the market value of the land if any,

resulting from the dumping of the earth there

upon and its value prior thereto (Bailey V. A. Siegel Gas Fixture Co., supra; St. Louis Tr. Co. v. Bambrick, 149 Mo. 560, 51 S. W. 706; Robinson V. Mining Co., 178 MO. App. 531, 163 S. W. 885; Coffman v. Railroad, 183 Mo. App. 622, 167 S. W. 1053), unless it appear that the cost of removing the soil thus placed upon the land would be less than Such depreciation in the value of the freehold (Robinson V. Mining Co., supra, and cases cited). [6] But plaintiff has neither alleged any damage to the freehold, nor is there any evidence whatsoever tending to show any such damage. Indeed, as said, plaintiff's case does not proceed upon this theory at all; on the contrary, the recovery sought is for the reaSonable value of the use of the land for the purpose mentioned, though the petition does not state a cause of action for use and ocCupation of the land, since it does not attempt to allege any contractual relation arising in any manner between the parties, but alleges that defendants made such use of the land “without plaintiff's knowledge or Consent.” An action for use and occupation cannot be maintained, unless the relation of landlord and tenant exists between the parties, founded upon an agreement express or implied. Hood v. Mathis, 21 Mo. 308; Cohen V. Kyler, 27 MO. 122; Hunton V. Powers, 38 Mo. 353; Edmonson v. Kite, 43 Mo. 176; Starbuck v. Avery, 132 Mo. App. 542, 112 S. W. 33; Keinstra V. King, 143 MO. App. 33, loc. cit. 37, 122 S. W. 337; State ex rel. V. Dickmann, 146 Mo. App. 396, 124 S. W. 29; Haumueller V. Ackermann, 150 Mo. App. 141, 130 S. W. 91; Bracht v. Johnson, 187 Mo. App. 220, 173 S. W. 692; 39 Cyc. 853. 17] Not only is the petition insufficient, as One attempting to State a cause of action for use and Occupation, but the evidence concluSively shows that the relation of landlord and tenant did not in any manner exist between the plaintiff and the defendants. For the mere use by defendants of the land, for dumping purposes or otherwise, without injury to the reversion, under license from Bailey, Who Was in possession thereof as a tenant from month to month, plaintiff can have no CauSe Of action against defendants.

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