was paid off and satisfied, and satisfaction entered on the records on the 3d day of June of said year. The defendant retained, of the sum of $8,000 in his hands, $42, which he claims was due him for interest on his said note of $4,100 from date of the maturing of the loan in April until the date of the satisfaction of the $3,600 deed of trust on the 3d day of June. The plaintiff contends that he should have applied funds in his hands in April to the payment of his own note.

We are of the opinion that defendant's position is supported by the foregoing facts. In order to protect himself against the deed of trust which, in point of time, was prior to his deed of trust to secure the $8,000, he had the right to withhold the amount due on his own note-in fact, the whole amountuntil said prior deed of trust was satisfied, as it was the understanding that all prior incumbrances should be discharged; and thus his loan become a first lien on the land. The court was not, therefore, authorized to cancel said deed of trust until defendant's lien was entirely discharged.

Defendant's other objection to the finding and decree on said first count, by reason of what we have already said, becomes unimportant, and will not be determined.

In the second count of his petition plaintiff alleges that he paid said $4,100 note in full to the defendant 30 days before the bringing of this suit, and 30 days prior thereto he tendered to defendant $2, necessary cost, to enable him to satisfy said deed of trust on the margin of the records, or to deliver to plaintiff a sufficient deed of release to the same; and that defendant has failed and refused to release said deed of trust as required. He asks for judgment against defendant for $100, special damages, and $410, the statutory penalty. The jury returned a verdict in his favor for $300. The verdict and judgment ought not to stand. Had defendant been the owner of all the notes secured by said deed of trust, and proof that all of them had been paid, the judgment would have been right. But he was not such owner. He was the owner of one of them, they being five in number. Under such circumstances he was not authorized to discharge the lien created by the deed of trust, even though all the notes had been paid. Only the payee or his assignee, under the statute, was authorized to enter satisfaction or give a release. He could only be required to enter satisfaction of his own note when paid. The finding was wrong for the further reason, as it has already been shown, that the defendant's note was not fully paid.

The third count of the petition alleges that defendant retained $200 of said $8,000, for which he asks judgment. Defendant admits that he retained the sum of $200, but that he was entitled to it as his commission for obtaining the loan. Under his written contract with plaintiff he was to have a commission of $200 for obtaining the loan. It is plainly

and unmistakably provided for in said contract. But plaintiff claims that there was a change in the contract in that respect. But we do not find from the evidence that there was any change in that respect. The only change in the transaction was as to time of payment of some part of the loan. Plaintiff introduced no evidence to overturn the written contract. He admitted that he signed after having read it, but that he has no remembrance that it contained any provision for a commission. That was all that he was able to state in order to overturn a plain condition of said contract. This was not sufficient. And it is not very probable that defendant would have agreed to have obtained the loan as a broker without compensation. We therefore hold that the finding for plaintiff on the third count was unauthorized. The cause is reversed. All concur.

ABBOTT v. MARION MIN. CO. (Kansas City Court of Appeals. Missouri. May 8, 1905.)

MASTER AND SERVANT-MINES AND MININGINJURIES TO SERVANT-ACTION-TRIAL IN

STRUCTIONS-DEPOSITIONS-IRREGULARITY.

1. Where defendant's counsel was present when the deposition of one of plaintiff's witnesses was taken, and knew that it was taken by the stenographer during the absence of the notary, and that there was no stipulation for such irregularity, but made no motion to suppress the deposition, although it was filed several days before trial, an objection to its admissibility at trial was too late.

[Ed. Note. For cases in point. see vol. 16, Cent. Dig. Depositions, §§ 309, 315.]

2. A mine owner is not liable for injuries to a servant from the dangerous condition of the roof of the mine, unless he knew or might have known of such dangerous condition long enough before the injury to have repaired it.

[Ed. Note. For cases in point. see vol. 34, Cent. Dig. Master and Servant, § 243.]

3. In an action for injuries alleged to have been caused by the dangerous condition of the roof of defendant's mine, in which there was some evidence that it was not practicable to timber the mine at the place where plaintiff was injured, an instruction assuming that defendant was negligent in failing to timber the mine was error.

4. In an action by a servant for personal injuries, failure of the instructions to refer to the question of contributory negligence was error.

5. In an action for injuries to a miner by the falling of rock from an alleged defective roof, defendant was entitled to an instruction that if it trimmed the roof after firing the last shot

before plaintiff's injury, and if trimming the roof after each shot was the method adopted by defendant to protect its employés, and made the place where plaintiff was injured reasonably safe, and defendant had no knowledge that rock was likely to fall, the verdict should be

for defendant.

Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Action by Oscar Abbott against the Marion Mining Company. From a judgment for plaintiff, defendant appeals. Reversed.

Thomas & Hackney, for appellant. H. S. Miller and Cole, Burnett & Moore, for re spondent.

ELLISON, J. The plaintiff was a laborer in defendant's mine in Jasper county, and received the personal injury for which he sues by a rock falling upon him from the roof of the mine. He recovered judgment in the trial court.

Plaintiff had the deposition of one of his witnesses taken by a notary public, and it was read at the trial, over defendant's objection. The ground of the objection was that the witness' testimony was taken down by a stenographer during the absence of the notary, and that no stipulation for such irregularity was asked or given. It appeared that defendant's attorney was present during the examination of the witness, but took no part therein. The deposition was filed in court on the first day of the session, but the motion to suppress was not made until the case was called for trial, several days afterwards. The trial court overruled defendant's motion, and assigned as ground therefor defendant's neglect to make his objection earlier. In this the court did not err, although there was no rule of court prescribing when motions to suppress should be filed. In fairness to plaintiff, the motion should have been made sooner, since plaintiff might then have been able to have procured the attendance of the witness, or, at least, could have asked that the cause be continued, and thus have avoided the trouble and expense of preparing for trial. "If the deposition was in any respect open to irregularities, the motion to suppress it, under the circumstances, came too late. Such motion should be made before the case is called for trial, so as to afford opportunities to retake the testimony or correct defects in the taking of the deposition." Bibb v. Allen, 149 U. S. 481, loc. cit. 488, 489, 13 Sup. Ct. 950, 37 L. Ed. 819; Howard v. Stillwell, 139 U. S. 199, 11 Sup. Ct. 500, 35 L. Ed. 147. And so the Supreme Court of this state has discountenanced unwarranted delay in making such motions. Hoyberg v. Henske, 153 Mo. 72, 55 S. W. 83; Holman v. Bachus, 73 Mo. 51.

It appears that plaintiff was engaged in working defendant's mine on the stope, throwing the dirt down to a platform, where it could be taken away or disposed of by others. This work was called "brunoing" by the miners, and plaintiff was known as one of the "bruno" men. While so engaged, a rock fell upon him from the roof. The petition does not state the cause of complaint against defendant with desirable certainty and clearness. It charges that it was the duty of defendant to timber the mine so as to prevent rocks from falling. It then charges that defendant negligently failed to timber the mine, and permitted the roof to become dangerous by allowing large stones to hang loosely from it; "that, by reason of the

carelessness and negligence of the defendant in failing to timber and support the sides and the roof of the drifts in the mine. it was unsafe and dangerous." The petition then charges that defendant negligently failed to inspect and trim the roof, so as to remove loose dirt and stones and thereby protect the men engaged in work. While the petition charges a duty on defendant to timber the mine, and that such duty was negligently omitted, and that by reason thereof the mine became unsafe, it does not charge a duty to inspect and trim, nor does it charge that the failure to inspect caused the injury. But plaintiff's chief instruction fixes upon either of these omissions of defendant as negligence, in the absence of performance of the other; that is, that defendant should have timbered the mine, or else it should have inspected and trimmed it. We will therefore accept the issues as thus tendered by plaintiff. The petition then further charged and tendered, as an issue, that the defendant either knew of the dangerous condition of the mine, or might have known it by the use of ordinary care and diligence. In order to give the latter allegation any practical effect, we must assume that it impliedly embraces the charge that defendant knew, or might have known, the dangerous condition for such reasonable length of time as would have been sufficient to have removed or relieved the dangerous condition. When knowledge of a certain situation is relied upon as showing culpability, it must be shown to be prior knowledge. Mere knowledge of a dangerous situation, without more, will not show culpability. There must be time to remove or relieve the danger. The instruction, however, makes the defendant culpable if it knew of the dangerous roof either at the time of the accident or prior thereto. It was erroneous.

As the case will be retried, we will state further objections to the instruction. It assumed that it was negligence in defendant not to timber the mine, when there was evidence tending to show that at the place where plaintiff was at work it was not practical to do so. It should have contained some expression which would permit the jury to say whether it should have been timbered at that place. The action is not based on the statute requiring mine owners to furnish timbers, and the question whether the mine could have been rendered safe and the injury avoided by the use of timbers must be determined without regard to that statute.

Again, since there was but the one instruction for the plaintiff on the merits of the controversy, the hypothesis of plaintiff's being guilty of contributory negligence should have been embodied in the instruction. It was not cured by those given for defendant. As the case stands in the record, that phase of it nowhere appears. Its omission in an instruction in Hughes v. Ry. Co., 127 Mo. 447, 30 S. W. 127, was excused from the

fact that it was presented in other instructions. In Sullivan v. Ry. Co., 88 Mo. 169, the majority opinion held that, where an instruction directed a verdict for plaintiff without including a reference to the issue of contributory negligence, it was reversible error, even though other instructions presented that phase of the case. That case was overruled on that point, it being afterwards held that the instructions should be taken, construed, and interpreted as a whole, and that, if other instructions presented the hypothesis omitted from the instruction complained of, it cured the error. Owens v. Ry. Co., 95 Mo. 169, 8 S. W. 350, 6 Am. St. Rep. 39. And so it has been ruled that an instruction directing a verdict for a plaintiff, which wholly ignores contributory negligence of the defendant, is error (Hill v. Drug Co., 140 Mo. 433, 41 S. W. 909), unless, of course, that issue is presented in other instructions.

We are also of the opinion that it was prejudicial error to refuse defendant's instruction "b," wherein it was submitted that if defendant trimmed the roof after "firing the last shot therein prior to plaintiff's injury," and that trimming the roof after each shot was fired was the method adopted by defendant to protect its employés, and that to so trim it made the roof at that point rea-. sonably safe, as defined in other instructions, and that defendant had no knowledge that the rock was likely to fall, or that it was loose or in a dangerous condition, the verdict should be for defendant. If the facts are believed to be as thus submitted, certainly there was no culpable negligence on defendant's part.

The judgment is reversed, and cause remanded. All concur.

STANLEY v. CHICAGO, M. & ST. P. RY. CO.

(Kansas City Court of Appeals.

MASTER AND

May 8, 1905.)

Missouri.

SERVANT-PERSONAL INJURIESOPERATION OF RAILROAD NEGLIGENCE OF FELLOW SERVANTS-INSTRUCTIONS—EVIDENCE -QUESTION FOR JURY.

1. In an action by a servant of a railroad company for injuries caused by falling from a moving hand car, evidence held to justify submission to the jury of the question whether the fall was caused by the negligence of another employé in suddenly applying the brakes.

2. In an action for personal injuries caused by plaintiff's falling from a moving hand car it appeared that plaintiff was 20 years of age, and had been employed on defendant's railroad for 40 days before his injury. The court charged that, before finding for defendant on the ground of contributory negligence, the jury must believe that plaintiff did not use such care and caution as a person of his "age and experience" would have ordinarily used under the circumstances. Held, that the instruction was proper, and not objectionable for failure to use the words "capacity, age, knowledge, and experi

ence.

3. Where, in an action for personal injuries. plaintiff alleged that he had expended money

for medical treatment, he was not entitled to recover this item of damage on proof that he had incurred indebtedness for medical treatment, but had not paid the bill.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, § 251.]

4. In an action by a servant of a railroad company, for personal injuries alleged to have been caused by the negligence of co-employés while engaged in operating the road, the question whether they were engaged in operating the road is for the jury.

5. The assumption in the instructions of a fact as to which there is no conflict in the evidence is not error.

[Ed. Note.-For cases in point, see vol. 46, Cent. Dig. Trial, §§ 432-434.]

6. In an action for personal injuries, an instruction that defendant could not escape liability on the ground that plaintiff's co-employés caused the injuries by their negligence, but that defendant was responsible for the acts of its employés, was erroneous as assuming that the other employés were negligent.

Appeal from Circuit Court, Putnam County; P. C. Stepp, Judge.

Action by Milton Stanley against the Chicago, Milwaukee & St. Paul Railway Coinpany. From a judgment for plaintiff, defendant appeals. Reversed.

Chas. A. Loomis, for appellant. Lorenzo Jones, Edward C. Wickless, and N. A. Franklin, for respondent.

BROADDUS, P. J. This is a suit for damages, the result of an injury alleged to have been caused by the negligent act of a fellow servant while plaintiff was in the employ of defendant and while he was engaged in the work of operating defendant's railroad. Plaintiff was one of a force of 15 men employed by defendant as common laborers in constructing concrete abutments on defendant's railroad near Powersville, Mo. The force was known as "the concrete gang," and was in charge of one Charles Hersey as foreman. The gang used two hand cars in going to and returning from their place of work. On the morning of May 14, 1903, the foreman directed plaintiff, with six or seven others of the force, to pat the hand car on the railroad track and load it with cement to take to their place of work about one mile south of Powersville. This was done, and the plaintiff, with others of the gang, got on the car, and started south. Another car, with the other workmen in charge of the foreman, preceded the car on which plaintiff was riding. The track was downgrade, and the rate of speed, according to the various estimates of the witnesses, was from four to seven miles an hour. After proceeding about one-fourth of a mile, the plaintiff, who was standing on the front end of the car, was thrown or fell to the track, and was run upon by the car and severely injured. The men on the platform of the car propelled it by the use of handles, they holding to the latter and "pumping," as it is ordinarily expressed. The plaintiff and two other men were manipulating the front hau

dle, the plaintiff standing in the middle with his side to the south, and the other two with their backs in that direction. Plaintiff testified that his fall was caused by a sudden application of the brakes by one of the other workmen, named Johnson. On cross-examination he stated that he did not see Johnson apply the brakes, but he felt them when they were applied. Johnson denied that he applied the brakes, and all, or nearly all, the workmen on the car at the time were witnesses on the trial, and none of them testified that the brakes were applied, as claimed by plaintiff; and it is not claimed that any one other than plaintiff testified that the brakes were so applied to check the speed of the car. There was some evidence tending to show that plaintiff, who was using only one hand on the handle, was somewhat inattentive to his duties, and was looking away at the time; that is, that he used his hand to assist in forcing down the handle, then let go and caught it again as it came up, and that by reason of his not looking to see what he was doing he failed to catch the handle as it came up, lost his balance, and fell. There is no complaint that the manner in which he was manipulating the handle with one hand was carelessness, this being the only manner he could have used it, standing, as he was, between the other two men. was his inattention to what he was doing that defendant insists was the cause of his injury, and as such was contributory negli gence. The finding and judgment were for the plaintiff, from which defendant appealed.

It

The defendant contends that under the evidence plaintiff was not entitled to recover. The defendant's position is based upon the theory that there was no substantial evidence showing that the injury was caused by the sudden application of the brakes to the car, as claimed by plaintiff. It is true, plaintiff nor any other witness saw Johnson apply the brakes; but plaintiff's evidence is positive that he felt their application, and that the suddenness of the check of the speed of the car caused him to fall off the car in front of it and onto the track. In our view of the matter, plaintiff's statement did constitute substantial evidence that the brakes were suddenly applied. It seems to us that it is a matter of common observation and knowledge that a person of normal organization standing on the platform of a hand car in motion would experience a sensation from the sudden application of the brakes. And, judging from the physical law, we do not see how, under ordinary conditions, it could be otherwise. It is true, the positive, and even the negative, testimony tended in the most convincing manner to show that it was not the application of the brakes, but plaintiff's own want of ordinary care, that caused him to fall from the car. But that was a question for the jury. Objections are taken to the correctness of instructions numbered 3, 5, and 6 given for 87 S.W.-8

plaintiff. Instruction No. 3 is as follows: "Before you can find against plaintiff on the ground of contributory negligence, you must believe from the evidence that the plaintiff did not use such care and caution as a person of his age and experience would have ordinarily used under the circumstances surrounding him at the time." The plaintiff was a young man, 20 years of age, and had been engaged as a laborer on defendant's railroad for 40 days previous to his injury, and had from his employment during that time acquired some experience in operating a hand car. At most, it is a very simple work, not requiring much skill to enable one to become familiar with the manner in which it is done. In Van Natta v. Ry. Co., 133 Mo. 13, 34 S. W. 505, defining what care was required of plaintiff, a boy, the instruction was in the following language: "Providing the plaintiff was exercising that degree of reasonable care usually exercised by boys of his age and capacity." The court held that it was faulty, in that it should have told the jury the law required of the boy "exercise of care and prudence equal to his capacity, age, knowledge, and experience, regardless of what care and prudence boys of his age and capacity are required to exercise." The fault in the instruction under consideration, if any, is that the words "age and experience" are used, instead of the words the court said should have been used, "capacity, age, knowledge, and experience." The word "experience" means "to have practical acquaintance with," which is equivalent to knowledge. And the word "capacity," in the sense in which it was used, means capability or skill as applied to the business in which plaintiff was engaged at the time he was injured-that is, in manipulating the handle of the car in question-which labor at most required little or no skill, only practical experience. We are not to consider that the court, in saying that certain words should be used in an instruction, was prescribing a formula for the purpose, but that language of similar import should have been used. In Anderson v. Ry. Co., 161 Mo., loc. cit. 425, 61 S. W. 878, the court says, in speaking of the degree of care required of a boy, that: "The rule is believed to be recognized by all the courts of the country that a child is not negligent if he exercises that degree of care which, under like circumstances, would reasonably be expected of one of his years and capacity." The words "experience" and "knowledge" are both omitted in the court's definition. In Spillane v. Ry. Co., 111 Mo. 555, 20 S. W. 293, the court used the following language, “age, capacity, and experience." In Campbell v. Ry. Co., 175 Mo. 175, 75 S. W. 86, the court says: "The question is, not what would an ordinarily prudent man of mature years have done under like circumstances, but what would an ordinarily prudent boy of sixteen years have done under like conditions?" The

courts are not uniform in their expressions, but what they all say amounts to the same conclusion. We do not think the instruction was so faulty as to be misleading. There was no evidence tending to show that plaintiff was either above or below the ordinary standard of intelligence in a person of his age, and, such being the case, there was no question as to his capacity; which left that of experience alone to be determined by the jury.

The instruction defining the measure of plaintiff's damages told the jury that in estimating them they might take into consideration "the reasonable value of his medical and surgical aid in endeavoring to be cured, if any such expense be incurred." The allegation of the petition is that "he has expended large sums of money for surgical and medical treatment." Dr. Ellis, one of the physicians called as a witness, testified that his bill for services for the treatment of plaintiff amounted to the value of $53.50, but that plaintiff had not paid it; that the latter had come to him, and told him he could not pay it, and for that reason he had not presented him his bill. Dr. McNeeley testified that "Mr. Stanley" had paid him $20 for his medical services. But, as the father of plaintiff testified in the case, it is not apparent to which one of the Stanleys the doctor referred. The point made is that, as the petition alleges that plaintiff had paid his doctor's bills, he is held to the proof of his allegation; and, as the instruction authorized a recovery if he had incurred such indebtedness, it was error to give the instruction, as the proof did not sustain the allegation. Under the ruling in Muth v. Ry. Co., 87 Mo. App. 423, the instruction should not have been given. The rule is founded upon the theory that the proof should sustain the averments of the pleading.

Instruction No. 5 is as follows: "The court instructs the jury that the defendant in this case cannot escape liability on the ground that the co-employés with plaintiff caused the injuries to plaintiff by their negligence or careless acts, but, on the other hand, you are instructed that defendant is responsible for the acts of its employés who were working with plaintiff at the time plaintiff sustained said injuries complained of, if any injuries plaintiff has received, as defined by plaintiff's first instruction." One objection to the instruction is that the jury are told that plaintiff was engaged in operating a railroad, which was both a question of law and fact, and for that reason wrong. Callahan v. Bridge Co., 170 Mo. 482, 71 S. W. 208, 60 L. R. A. 249, 94 Am. St. Rep. 746. But, while such is the law, the court committed no error, for the reason that all the evidence both for plaintiff and defendant was to the same effect-that he was engaged in working on defendant's railroad track. As there was no dispute upon the facts, there was nothing for the jury to do in that respect, and

it became the duty of the court to tell the jury that defendant was liable under the statute for the negligence of his fellow servants. There are other criticisms upon said instruction that are without merit.

But there is one of more serious importance. The first clause of said instruction is that "the defendant * cannot

escape liability on the ground that the coemployés of plaintiff caused the injuries to the plaintiff by their negligence and careless acts." The jury had a right to assume, under the language used, that the acts of the fellow servants were careless and negligent; whereas it was a matter that must be shown by the evidence. Nor is the error cured by the remaining clause of the instruction, which reads: "But, on the other hand, you are instructed that defendant is responsible for the acts of its employés who were working with plaintiff at the time plaintiff sustained said injuries complained of, if any injuries plaintiff has received, as defined by plaintiff's first instruction." It will be seen that said instruction No. 1 is not referred to as a guide by which the jury might determine the defendant's liability, but only as to the injuries themselves. It emphasizes the error in the first clause by making defendant liable for the acts of its employés, whether negligent or not, if the jury finds that plaintiff was injured as defined in said first instruction. The jury very naturally, in considering the first instruction in connection with the fifth, would confine their attention to the plaintiff's injuries, as they were particularly directed to do so.

But it is insisted that, taking all the instructions together, they properly state the law. We do not think so, for the fifth is in conflict with the first, as we have pointed out. It was a most flagrant error, and liable to mislead the jury.

Reversed and remanded. All concur.

PRIVATE ROADS-RIGHT OF ACCESS-OBSTRUCTIONS INJUNCTION.

1. Under Rev. St. 1899, § 3649, declaring that the remedy of injunction shall exist in all cases where an irreparable injury is threatened, and to prevent the doing of any legal wrong, whenever an adequate remedy cannot be afforded by an action for damages, one whose access to a private road is impeded by the wrongful acts of another is entitled to injunction to restrain further obstruction.

2. Where successive efforts of plaintiff to obtain access to a private road were obstructed by defendant, the fact that the obstructions had actually been erected did not render it improper to enjoin defendant from obstructing the road so as to interfere with plaintiff's access thereto.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.