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with other stock; such written notification to hogs. In such instances the giving of such be served within one day after delivery of notice is a prerequisite to the right of recorstock at destination;

that a fail ery. McBeth v. Ry., 20 Mo. App. 445; Leonure to comply with the provisions of this ard V. Ry., 54 Mo. App. 293; 101 Live clause shall be a bar to the recovery of any Stock Co. v. Ry., 100 Mo. App., loc. cit. 689, and all such claims." The evidence showed 75 S. W. 782; Leonard v. Ry., 54 Mo. App., that when the hogs arrived at Kansas City, loc. cit. 302; Com. Co. v. Ry., SO Mo. App. at 8 o'clock a. m., they were in good condi. 164. And the contract also covers damages tion; but when delivered at the pens at 1 resulting from the delay caused by the failo'clock p. m. the weather was very warm, ure to deliver on the morning market, of and 12 of them were dead, 2 others dying which defendant also should have had nowhile being unloaded. The market value of tice. Hamilton v. Wabash Ry., 80 Mo. App. the hogs that died would have been $150, 597. Plaintiff contends that this clause of had they arrived alive. There was also evi the contract should be disregarded, as it was dence that there was a decline in the market not specifically called to the attention of the value of the animals from the morning until trial court; but, as the contract itself was the afternoon of said day. There was a ver in evidence, we do not see how it could have dict and judgment for plaintiff for $150, from escaped notice. In any event, it was a which defendant appealed.

plain and prominent provision in the con. At the close of plaintiff's case the defend tract, and of which the law presumes the ant offered a demurrer to the testimony, plaintiff had knowledge. which the court overruled. This was error, For the reasons given, the cause is reas the plaintiff's evidence showed that he versed. All concur. was not entitled to recover.

It is contended by defendant, first, that plaintiff was not entitled to recover under his contract on account of delay in the de PITMAN V. CHICAGO-JOPLIN LEAD & livery of the hogs. There is no doubt but

ZINC CO. et al. what the contract in that respect was rea (Kansas City Court of Appeals. Missouri. sonable, as a consideration for the reduced

May 8, 1905.) rates charged by the carrier for transporta


DEBTS--DICom. Co. v. Ry. Co., 80 Mo. App. 164; Ro


CEEDINGS-BURDEN OF PROOF. gan v. Ry., 51 Mo. App. 665; Wyrick v. Ry.,

1. A corporation in a failing condition may 74 Mo. App. 406; McFadden v. Ry., 92 Mo. prefer in payment or security the valid debt of 343, 4 S. W. 689, 1 Am. St. Rep. 721; Bow any of its creditors, including directors, so long ring v. Ry., 90 Mo. App. 324; Stock Co. v.

as its action is taken in good faith.

2. A corporation which receives the fruits of Ry., 100 Mo. App. 674, 75 S. W. 782. But It

advances made by a director before the incoris equally as well settled, on the other hand, poration was accomplished, and uses the same that conditions limiting the liability of car

in the prosecution of its business, may assume riers for damages do not apply where such

the payment of the debt so created.

3. The burden is on a corporation creditor damages were the result of negligence on who attacks a preference made by the corporathe part of the carrier. Com. Co. v. Ry., 80 tion to a director to show that one of the directMo. App. 164; Dawson v. Ry., 79 Mo., loc.

ors was not notified of the meeting at which cit. 300. And notwithstanding the contract

the preference was authorized. provides that the stock are not to be trans

Appeal from Circuit Court, Barton County; ported within any specified time, nor to be

H. C. Timmonds, Judge. delivered at any particular hour, or for any

Action by L. Pitman against the Chicagoparticular market, yet, if the delay was oc

Joplin Lead & Zinc Company (G. H. Elmore, casioned by the negligence of the carrier, it

interpleader). From a judgment for interwill be liable for the damages resulting from

pleader, plaintiff appeals. Affirmed. such delay or failure to deliver on a given H. W. Currey, for appellant. McReynolds market. No excuse is given or attempted & Halliburton and R. G. Blair, for respondfor the delay in delivering the hogs at the ent. pens for five hours, and retaining them in the cars for such length of time during the ex JOHNSON, J. Defendant, a Missouri corcessive heat, and which resulted in the death poration, being insolvent, on June 1, 1900, of 14 of their number. The action of the conveyed by bill of sale certain personal defendant in that respect is without excuse, property to R. G. Blair, one of its directors. and was gross negligence.

The consideration was $1,000, which Blair It is a further contention that plaintiff was paid by giving credit upon a debt of $1,200 not entitled to recover by reason of his fail owed him by defendant. Afterwards, upon ure to give the notice required by the con the same day, defendant made a deed of astract of his damages. It is conceded that no signment for the benefit of its creditors. such notice was given. And it is not a mat The execution of both conveyances was auter of dispute but what the terms of the con thorized and directed at a meeting of defendtract as to such notice included damages re ant's board of directors attended by Blair, sulting from the death or shrinkage of the who participated in the proceedings, except


ing the action taken with respect to the for the continuance of which defendant was payment upon his claim. In that matter brought into being. The corporation receivhe refrained from attempting to act for ed the fruits of these advances, and gave its the corporation. The property sold to Blair notes to Blair in acknowledgment of its obli. was resold by him to G. H. Elmore, who gation to assume the payment of the debt. appears herein interpleader. After Such action was within its corporate powers, wards plaintiff, creditor of defendant, and in execution of obvious duty. Scbubrought this action, procured a writ of at

feldt v.

Smith, 139 Mo., loc. cit. 376, 40 S. W. tachment, and caused it to be levied upon the 887. property mentioned. Subsequently Elmore The trial court sustained the good faith of interpleaded. About this time Blair and El the transaction between defendant and Blair more agreed to rescind the contract of sale in all particulars, and tried the case in obedimade between them, with the understanding ence to the rules announced in our former that the interplea would be prosecuted in the opinion. The conclusions of that tribunal name of Elmore for the benefit of Blair. A upon the facts are supported by substantial trial of the issues thus raised resulted in fa evidence. No reason appears for interfervor of the interpleader, but on appeal to this ence by us. court the judgment was reversed, and the But it is urged that the preference should cause remanded. 93 Mo. App. 592, 67 S. W. be set aside because the directors' meeting 946. At the second trial interpleader again at which it was authorized was held without prevailed, and the cause is now here, as be the giving of any notice thereof to the difore, upon the appeal of plaintiff.

rector Norton. Five members composed the The right of defendant corporation to give board of directors, four of whom were prespreference to the debt of one of its directors ent-one more than a quorum. The abwas so fully discussed in our former opinion sentee, Norton, lived in Chicago. He was that we will content ourselves with a mere the owner of all of the capital stock exrestatement of the rule now firmly establish- cept four shares distributed among the four ed in this state: A corporation in a failing other directors. In his deposition he stated condition may prefer in payment or security that he had timely notice of the meeting, the valid debt of any of its creditors, and but the claim is made that his evidence is the fact that such creditor is also a director | flatly contradicted in the correspondence beis without effect, provided the act is char tween him and the president which appears acterized by good faith. Foster v. Planing in evidence. We do not think so. In the Mill, 92 Mo. 79, 4 S. W. 260; Alberger v. period of trouble preceding the end, Norton, Bank, 123 Mo. 313, 27 S. W. 657; Schufeldt | by mail and wire, kept in very close touch v. Smith, 131 Mo, 280, 31 S. W. 1039, 29 L. R. with all that was going on. Evidently the A. 830, 52 Am. St. Rep. 628; 8. C., 139 Mo. directors, in what they did, but carried out 367, 40 S. W. 887; Bangs Milling Co. v. his orders and suggestions. We are not warBurns, 152 Mo., loc. cit. 376, 53 S. W. 923; ranted in disbelieving him, and in holding, Swentzel v. Investment Co., 168 Mo. 272, 67 as a matter of law, that he did not know of S. W. 596. Recently, in Heidbreder v. Su the proposed meeting in time to attend. perior Ice & Cold Storage Co. (Mo. Sup.) 83 The burden of proof was upon plaintiff to S. W. 466, the Supreme Court, dealing with show that Norton had no notice. In the aba case similar to this in essential features, sence of any showing, the law will presume said: "Whatever may be the law in other the meeting was legally called. 3 Thompjurisdictions, the rule is well settled in this son on Corp. 88 3927, 4029; Chouteau Ins. Co. state that stockholders or directors of a cor v. Holmes, 68 Mo. 601, 30 Am. Rep. 807. Nor poration can lawfully' lend money to the is it material, in considering this point, that company, and the company can lawfully pre the burden was cast on the interpleader to fer them by transferring enough property of show good faith in the giving of his preferthe company to fairly and reasonably secure ence. It is not intimated that any fraudulent or pay them what the company owes them." purpose prevented the atten ince of the ab

It is contended the evidence fails to show sent director. The proceedings were regular a good-faith debt subsisting at the time of on their face, and this is sufficient to raise a the transfer in favor of Blair against defend presumption in their favor. This presumpant. The trial court, sitting as a jury, found tion, instead of being overcome, was re-enthis issue of fact for the interpleader, and forced by positive testimony, and the court in our opinion the evidence abundantly sus was right in finding that Norton was duly tains the finding. No merit is perceived in notified. the suggestion that, as the loans made by Other points are made, all of which maniBlair preceded the date of defendant's incor festly are so devoid of merit that time will poration, their repayment could not be as not be consumed in discussing them. sumed. The proceeds of the loans were used, The jud is for the right party, and as intended, in the prosecution of the business is affirmed. All concur.

LED v. ST. LOUIS, M. & S. E. R. CO. (St. Louis Court of Appeals. Missouri. May 2,



1. It is the continuing duty of the master to use reasonable care to furnish his servants with a reasonably safe place to work and with reasonably safe and suitable appliances, and also to use reasonable care to keep such place and appliances in a reasonably safe condition.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, 88 171, 173.]

2. A servant on entering his employment assumes such risks as are ordinarily incident to the employment, and, in addition, by continuing in the servi and using defective appliances and machinery without complaint, such hazards as he knew or ought to have known.

[Ed. Note.—For cases in point, see vol. 34, Cent. Dig. Master and Servant, 88 538, 583.]

3. In an action by a servant against the master to recover for personal injuries, evidence examined, and held, that whether plaintiff assumed the risk of injury was for the jury.

4. Where plaintiff, a section hand, was thrown from a hand car and injured by the sudden locking of the bull wheel and pinion, by which the car was derailed, caused by the defectiveness of such machinery, mere evidence of the occur. rence was sufficient to raise a presumption of negligence on the part of the railroad company.

[Ed. Note.–For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 881.]

5. Where plaintiff, a section hand, was thrown from a hand car by the sudden locking of the gearing by which it was operated, causing the car to stop suddenly, he was not guilty of contributory negligence in failing to use the brake when he discovered that something was wrong with the gearing, since such operation, if accomplished, would merely have added to the sudden stoppage of the car which threw him on the track.

6. In an action for injuries to a servant, a statement made by plaintiff's foreman to a witness as to the cause of the accident, which was not a part of the res gestre, was inadmissible against the master as a statement against interest, though the foreman stood in the relation of a vice principal.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by James E. Lee against the St. Louis, Memphis & Southeastern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

The plaintiff, a section hand in the employ of the defendant railroad on its section in Cape Girardeau county, was injured October 26, 1903, by the derailment of a handcar on which he and two other laborers and Corbett, the section foreman, were riding in their line of duty. His testimony, in substance, was that he had been employed on different railroads as a section hand for 12 or 13 years, and on defendant's section for some months; that on the day of the injury Mr. White, the roadmaster, was with the section gang, and, upon his desiring to leave, a couple of the hands came to plaintiff with an order from the foreman to put on the band car, which

they did, and pumped the car up to where the foreman and roadmaster were, whereupon plaintiff asked the foreman if he wanted him to go along, and the foreman replied, “Get on and come with us," which he did, in company with the foreman and the 'two laborers, Hudson and Lamb. They ran the car up the road for some distance, possibly two or three miles, when the roadmaster signified his intention of getting off and walking from there. Upon leaving the car, the roadmaster directed the foreman to go back to his men. They then started to return to their work. Corbett, the foreman, and plaintiff were behind the front handle, facing the direction the car was moving; Lamb and Hudson were aft of the rear handle, facing the same direction. All were engaged in pumping the car. The car was being propelled carefully at a rate of speed about equal to twice as fast as a man would walk. After having progressed thus for a mile or more, the hand car suddenly derailed, and the plaintiff was precipitated headforemost over the handle at which he was working, and thrown with the side of his head against the track rail, thereby bruising the side of his head, injuring his arm, shoulder, and leg, and inflicting severe and permanent injury to his ear, from the effects of which his hearing is greatly impaired. The handcar was of the usual pattern, and could be propelled with the gearing either in the front or in the rear. It was the custom to propel this one with the gearing foremost. The car was propelled with a lever and two handle bars. Two men stood, one at either end of each handle, and, by means of pumping up and down, the gearing of the car was caused to rotate. An upright, called the "pitman,” connected with the lever bar, which lever bar was on a pivot, and in which the handles were. The pitman was, by means of what was called the “gooseneck," connected with the large or bull wheel, in which were cogs. By means of the pumping up and down of the handles, the pitman connected with the lever bar, which was, by means of the gooseneck, connected with the bull wheel, caused the bull wheel to revolve, and the cogs therein fitted into other cogs on the small wheel or pinion; the pinion, being stationary near the center of and on the foremost axle of the car, would cause said axle to revolve with each revolution of the pinion. The two car wheels on said axle were, or should have been, stationary thereon. They, of course, would revolve with the axle, and the car was thus propelled either forward or backward, as desired. The subjoined plate No. 1 will show a side view of the hand car, the bull wheel and pinion, with the cogs therein, the gooseneck, pitman, and side view of the lever bar, also the foot brake on the side of the car. Plate No. 2 will show a top view of said car; that is, the lever bar in which the handles at either end of the car were fastened therein crosswise

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No 2.


of the car. The cogs of the bull wheel and pinion were defective, in that they were tight and rigid in their bearing, and would bind one upon the other to some extent at times when the car was in motion. The car had been in charge of the section gang about a week; had recently come to them from the shops. Plaintiff knew that its gearing was defective, in that it would bind and pull heavy at times. He also knew that the left front wheel of the hand car was loose on the axle when it should have been affixed stationary thereon, and that it would play back and forth lengthwise on the axle to some extent, but not enough to permit the wheel to get off the rail; also that the flanges on some of the wheels were broken and not in good order; and says that he had been a little afraid of the car on account of the looseness of the left fore wheel, and had consider. ed the car somewbat dangerous from that defect if run at a rapid rate of speed, but did not consider it dangerous if run at the rate of speed it was being propelled on the occasion in question. The injuries did not result, however, from the defective left fore wheel, nor from the defective flanges on the wheels, but resulted from the defective gearing or defective cogs on the bull wheel and pinion, Plaintiff said of the defect which caused the injury: "I could not say that I considered that anything dangerous, for the





reason I had never seen an accident occur from a thing like that. I really had never seen a car put down as tight as that was. I could not say that I considered that a dangerous defect." While the car was moving along as above indicated, the cogs in the bull wheel and pinion suddenly and without warning became locked at a time when the rear handle bar was down and the foremost handle bar was up; therefore, as the men at the rear handle bar, with the usual force, lift. ed on their handle, instead of the bull wheel and pinion revolving, as they should have done and propelled the car forward, they being locked, the front end of the car was raised and veered off of the track, causing the injury. Plaintiff said: “The first sensation I had was I was pulling on the right side; the car swung to the right, then veered back to the left, and I started, intending- That is, my thoughts went that way; I don't know whether I made any effort physically, or not, to get on the brake. I was riding on the brake side of the car. My thoughts were that I would get on the brake, and that would turn the car back straight on the track or check it; but when I found myself I was on the track. I was pitched off the car. I do not remember how far it threw me, nor how long I lay there; but that was my thought, and immediately I was thrown on the track.” The brake was what is usually known as a foot brake, and could have been brought into use by plaintiff placing his foot thereon and pressing it down.

Upon cross-examination, plaintiff testified that he had been employed some as a section foreman, and was an experienced section man and familiar with hand cars; that the car was running at the time of the accident much slower than cars are usually run; that it was being operated with care; that he had seen nothing before the accident from the defective cogs which appeared dangerous to him from that cause, if the

was operated at a moderate rate of speed, as it was.

Plaintiff introduced several of his colaborers on the section, who testified in the main to the same state of facts above set out, and, while a number of the witnesses on the part of plaintiff stated on cross-examination that they had considered the car dangerous, they none of them seemed to consider it dangerous in that the cogs of the bull wheel and pinion which brought about the catastrophe in this case were defective sufficiently to cause a derailment of the car, running at the rate of speed shown in the evidence. The evidence disclosed that the car, taken all in all, was old, worn, and defective; the flanges were broken on certain wheels; the looseness of the left front wheel, and the defective working of the cogs on the bull wheel and pinion; the sum total of all of which the witnesses generally pronounced apparently dangerous for use, but


all seemed to agree that the defective gearing was not openly and obviously danger

They all agreed, als), to the fact that the looseness of the left front wheel of the car in no way contributed to this injury, and both those who spoke from personal knowledge, as well as those who testified as experts, agreed that plaintiff's injuries resulted from the sudden and unexpected locking of the cogs of the two wheels mentioned, which was occasioned because of the fact that the meshes or cogs of said wheels did not work together because of the extreme worn-out condition of one of said wheels and the newness of the cogs on the other.

The plaintiff's amended petition alleged the negligence as follows: "That the two cogwheels in the gearing of said hand car, commonly called the bull wlieel and pinion, were defective, in that they were so tight and close and rigid in their rolling and bearing upon each other that they would hitch and bind and interfere, and refuse to turn one upon the other; and that when such hand car was being propelled along the track, and such wheels would hitch and bind and interfere and refuse to turn one upon the other, the movement of the lever and the pitman on said hand car would lift the front end of the hand car off of the track, and thus would cause the said hand car to become de. railed.”

The answer consisted of a general denial, and pleaded separately that the plaintiff bad knowledge of the defects of the car, and therefore his assumption of the risk in using it, and that he was guilty of such contributory negligence as would preclude his recovery.

The replication was a general denial.

The court permitted plaintiff, over the objection and exception of defendant, to introduce one Baxter, who gave in evidence that, some time after the injuries to plaintiff, defendant's section foreman, Corbett, had stated to him that said injuries resulted from a crippled and defective car; that is, the loose wheel and the tight gearing. At the conclusion of the evidence on the part of plaintiff, the defendant requested the court to peremptorily instruct the jury that the finding should be for defendant on the pleadings and the evidence. This the court declined to do. The defendant requested this same instruction at the conclusion of the whole case, which was again refused by the court. Defendant excepted. There were fire instructions asked and given at the request of plaintiff, and none refused. There were six instructions given on behalf of defendant, and none refused, other than the two peremptory instructions above mentioned. The verdict was for plaintiff, and defendant appealed. There is no criticism in this court on any of the instructions given. Appellant's chief complaint is of the action of the trial court in refusing the peremptory instructions requested by it. There are other


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