sumed, aside from the contract, by virtue of the maxim aforesaid, which maxim implies knowledge, tacit waiver, and assent. There could be no knowledge, no waiver of, nor assent to a danger which is hidden and unknown. In treating of this question, we must keep in mind the fact that the doctrine of assumption of the risk rests upon the free and voluntary action of the mind of the servant. He is charged with the risks in the first instance, because he understood that he accepted such risks as are incident to the employment by engaging therein; and in the second instance he accepted such risks as are obviously dangerous by entering or continu- | ing in the employment without complaint thereof, not because he has been negligent and inattentive thereto, but because he has seen and necessarily understood and appreciated the hazard, and, by continuing with it, assented thereto. On either branch of the assumption we are essentially carried back to the same starting point; that is, the free and voluntary action of the mind of the individual assuming the risk. The words "assumed the risk" themselves involve and imply free mental action upon the risk, and that such mental action has been favorable to the extent that the risk has been considered, assented to, and assumed. All of the requirements of the law on this subject point to the same inevitable conclusion: that the law of assumption of the risk rests upon agreement or assent, which can arise in no other manner than through the free and voluntary action of the mind. No part of it rests upon such negative state of mind as inattention, oversight, want of care, lack of prudence, or neglect. No part of it rests upon nor is imbedded in the negligence of the servant, and no part of the law covering the question rests upon the law of contributory negligence. "The question of assumption of risk is quite apart from that of contributory negligence." Choctaw & Okla. Ry. Co. v. McDade, 191 U. S., loc. cit. 68, 24 Sup. Ct. 24, 48 L. Ed. 96. "Assumption of the risk rests in contract; contributory negligence rests in tort." St. Louis Cordage Co. v. Miller, 126 Fed. 495, 61 C. C. A. 477, 63 L. R. A. 551; Washington & G. Ry. Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. Rep. 1044, 34 L. Ed. 235; Adolff v. Columbia Pretzel Co., 100 Mo. App. 206, 73 S. W. 321. To follow the question further, all of the authorities agree that to hold one to have assumed a risk other than the risk ordinarily incident to the employment, which risk he has considered and agreed to in his contract, and by agreeing to accept compensation therefor he is precluded from denying, it must be shown that he had knowledge of the risk, and, further, that he so understood the risk as to appreciate its dangers, unless the risk and its dangers be obvious, in which latter case the law does not charge him with knowledge so much as it precludes him from denying obvious dangers universally known. "An extraordinary

risk, it is said, is not assumed unless it is, or ought to be, known to and comprehended by the servant, or-as the same conception may be expressed in logically equivalent terms-where the servant is chargeable neither with an actual nor a constructive knowledge and comprehension of the risk." 1 Labatt, Master and Servant, § 271. "The essence of the matter is that the employé must thoroughly comprehend the risk, if it exceeds that ordinarily connected with such task, and freely accept it." Dean v. St. Louis Woodenware Co. (Mo. App.) 80 S. W. 296. "The doctrine that the servant who has no knowledge, actual or constructive, of an extraordinary risk, is not chargeable with its assumption, is applied in every jurisdiction in which the principles of the common law are recognized." 1 Labatt, Master and Servant, § 274a. "In order to constitute an assumption of risk from a defect, it is not only necessary that the employé should know of the defect, but the dangers arising therefrom must also be known to him, or within the observation of reasonably prudent men in his situation." 20 Am. & Eng. Ency. Law (2d Ed.) 122. Our Supreme Court, recognizing this principle that the risk must be both known and appreciated, said: "The plaintiff knew to a certain extent the defect in the tie beam, but did not know of the dangers to which he was subject by reason of the defect." Sullivan v. Ry., 107 Mo., loc. cit. 78, 17 S. W. 748, 28 Am. St. Rep. 388. For cases supporting these views, the following are cited: Hollenbeck v. Ry., 141 Mo. 97, 38 S. W. 723, 41 S. W. 887; Doyle v. M., K. & T. Trust Co., 140 Mo. 19, 41 S. W. 255; Helfenstein v. Medart, 136 Mo. 614, 36 S. W. 863, 37 S. W. 829, 38 S. W. 294; Fugler v. Bothe, 117 Mo. 475, 22 S. W. 1113; Murphy v. Wabash, 115 Mo. 126, 21 S. W. 862; Soeder v. Ry., 100 Mo. 673, 13 S. W. 714, 18 Am. St. Rep. 724; Huhn v. Ry., 92 Mo. 440, 4 S. W. 937; Dowling v. Allen, 88 Mo. 298; Dowling v. Allen & Co., 74 Mo. 18, 41 Am. Rep. 298; Browning v. Kasten (Mo. App.) 80 S. W. 355; Dean v. St. Louis Woodenware Co. (Mo. App.) 80 S. W. 296; Bridges v. Ry., 6 Mo. App. 394; Mueller v. La Prelle Shoe Co. (Mo. App.) 84 S. W. 1010; Conley v. Amer. Ex. Co., 87 Me. 352, 32 Atl. 965; Cunningham v. Bath Iron Works, 92 Me. 501, 43 Atl. 106; Rummel v. Dilworth, 131 Pa. 509, 19 Atl. 345, 346, 17 Am. St. Rep. 827; Reed v. Stockmeyer, 20 C. C. A. 381, 34 U. S. App. 727, 74 Fed. 186; Houts v. St. Louis Transit Co. (Mo. App.) 84 S. W. 161.

This same principle is recognized fully in Mathias v. Kansas City Stock Yards Co. (Mo. Sup.) 84 S. W., loc. cit. 71, where the court said: "We feel in this state of facts that there is no escaping the conclusion that plaintiff fully appreciated the risk which was incident to the work he was performing, and assumed it, and cannot recover in this action." In Murphy v. Wabash Ry. Co., 115 Mo. 126, 21 S. W. 865, the court said: "It is clear

that the plaintiff did not assume any risk arising from the fact that the fence was too close to the track, unless he knew the fence was close enough to the track to strike his body, and we have seen that this court cannot say that he had such knowledge." In Doyle v. M., K. & T. Trust Co., 140 Mo. 19, 41 S. W. 259, the court said: "It is one thing to be aware of defects in the instrumentalities or plan furnished by the master for the performance of his services, and another thing to know and appreciate the risks resulting or which may follow from such defects."

Many cases, where the particular point is not in judgment, make the broad statement that the servant assumes, besides the risks ordinarily incident to the employment, such risks as might have been discovered by him in the exercise of ordinary care on his part, and from those cases some of the text-writers have gleaned such expressions and incorporated them in their text when employing judicial expressions to make up a general rule on the subject. We cannot agree to this proposition so broadly stated. This doctrine would place upon the servant the obligation to use ordinary care to discover defects, and, if he neglected to employ such care to make such discovery, then, on account of such negligence or inattention to his duties, such want of due care on his part and such oversight, all arising from purely a negative state of the servant's mind, he would be charged with the assumption of risk, which he could only do by an operation of the mind exactly to the converse of negligence. Want of care is negligence, not assumption of risk. This is the point at which, without much careful thought, the doctrines become confused. It is perfectly apparent that if the servant is not required to search for latent defects which the master might have discovered by ordinary care, as is abundantly sustained by the authorities supra, and does not assume the risks of latent and hidden defects, except those impossible of discovery by the master in the exercise of ordinary care, which are therefore treated as incident to the employment, as is fully supported by the authorities supra, the rule of law requiring him to use ordinary care to discover defects would so militate against the two propositions last stated that they could not stand together as rules regulating conduct in the same case, and therefore the two propositions so well settled must necessarily eliminate the third. And, again, it is settled by all of the authorities, many of which are cited supra, that unless it be an extra hazard, which is so obvious that no one could fail to understand its dangers, the servant is held not to have assumed the risk, unless he had knowledge of the defect, and also understood and appreciated its dangers. This proposition, which is so abundantly fortified in the law, and the very reason of the law as well on this subject (authorities supra), cannot stand if the

servant is to be charged with constructive knowledge of defects and dangers which he never actually knew, and therefore could not understand and could not appreciate. The propositions can be summarized thus: First, if the servant does not assume the risks of latent defects which the master might have discovered by ordinary care, and is not required to search for hidden dangers so neglected by the master, then the expression that he assumed the risks ordinarily incident to the employment, and those he might have discovered by the exercise of ordinary care, are too broad. Second, if he is required to understand and appreciate the danger before he can be held to assume the risk, the expressions to the effect that he assumes also such risks as could be discovered by him in the exercise of ordinary care are utterly inconsistent therewith. Upon this hypothesis, he would be held to assume risks which he might have known had he not been negligent, which risks he neither knew nor understood; whereas the law requires him to both know and understand. The tendency of the courts to confound the doctrine with negligence no doubt has given birth to much of the loose expression in opinions. Evidently what the courts have intended to convey in these expressions is the doctrine as stated by Judge Napton in Keegan v. Kavanaugh, 62 Mo., loc. cit. 232, and which was quoted approvingly in one of the very ablest opinions in our books (Judge Rombauer's dissent in Fugler v. Bothe), which opinion was adopted in toto by our Supreme Court, and is reported in 117 Mo. 493, 22 S. W. 1113. Judge Napton said: "If the risk is such as to be perfectly obvious to the senses of any man, whether master or servant, then the servant assumes the risk;" and it is in a case of such obvious risk only, when there could be no other sequence of the defect or risk than calamity, that the law charges the servant with constructive knowledge. "To justify a presumption of knowledge, the defect must be obvious, and its dangers equally plain to one and all attentive." Valley Ry. Co. v. Keegan, 87 Fed. 849, 31 C. C. A. 261. In speaking of obvious dangers, the Supreme Court of the United States said: "Upon this question the true test is not the exercise of care to discover dangers, but whether the defect is known or plainly observable by the employé." Choctaw & Okla. Ry. Co. v. McDade, 191 U. S. 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Texas & Pac. Ry. Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188.

In Porter v. Railway, 60 Mo. 162, the point in decision was the alleged error of the trial court in striking out of the instruction the words "or could, by the exercise of ordinary diligence, have known it," which words would have charged the plaintiff with constructive knowledge and the assumption of the risk involved. The Supreme Court said: "The court struck out the paragraph, and, we think, properly." In the same case, on a sec

ond appeal, Porter v. Railway, 71 Mo. 79, 36 Am. Rep. 454, the court said: "If the servant, as was held, is not, and the master is, required to exercise diligence to discover defects in machinery with which the servant is employed to work, the latter may recover, although he may have had equal means of ascertaining its defects, if in fact he was ignorant of their existence, and they were not patent or such as would have been discovered by operating it as above stated."

In Missouri Pacific Ry. v. Lehmberg, 75 Tex. 61-67, 12 S. W. 838, 840, the court said: "We think it sufficient to say that the law does not under any circumstances exact of him the use of diligence in ascertaining such defects, but charges him with knowledge of such only as are open to his observation. Beyond that, he has the right to presume, without inquiry or investigation, that his employer has discharged his duty in furnishing him safe and proper instruments and appliances." This case is cited and quoted approvingly by the Supreme Court of the United States in Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 671, 18 Sup. Ct. 777, 42 L. Ed. 1188, in which case this identical question was in judgment by virtue of the trial court having stricken out of certain instructions the words "or by the exercise of ordinary care could have known." The Supreme Court of the United States said: "These requests the court gave, except in the first it omitted the words therein italicized-that is, 'by the exercise of ordinary care could have known'and the second, or could have known it by the exercise of ordinary care.' The court was clearly right in striking the words from the requests. No reason can be found for, and no authority exists supporting, the contention that an employé, either from his knowledge of the employer's methods of business, or from a failure to use ordinary care to ascertain such methods, subjects himself to the risks of appliances being furnished which contain defects that might have been discovcred by reasonable inspection.

* In

assuming the risks of the particular service in which he engages, the employé may legally assume that the employer, by whatever rule he elects to conduct his business, will fullfil his legal duty by making reasonable efforts to furnish appliances reasonably safe for the purposes for which they are intended; and whilst this does not justify an employé in using an appliance which he knows to be defective, or relieve him from observing patent defects therein, it obviously does not compel him to know or investigate the employer's modes of business, under the penalty, if he does not do so, of taking the risk of the employer's fault in furnishing him unsafe appliances." In Davisson v. Cornell, 132 N. Y. 228, 30 N. E. 573, the court said: "It is, as a general rule, true that a servant, entering into employment which is hazardous, assumes the usual risks of the service and those which are apparent to ordinary observation, and,

when he accepts or continues in the service with knowledge of the character of structures from which injury may be apprehended, he also assumes the hazard incident to the situation. Gibson v. Erie Railway Co., 63 N. Y. 449, 20 Am. Rep. 552; De Forest v. Jewett, 88 N. Y. 264; Sweeney v. Berlin & Jones Envelope Co., 101 N. Y. 520, 5 N. E. 358, 54 Am. Rep. 722; Hickey v. Taaffe, 105 N. Y. 26, 12 N. E. 286; Williams v. Delaware, Lackawanna, etc., Railroad, 116 N. Y. 628, 22 N. E. 1117. Those not obvious assumed by the employé are such perils as exist after the master has used due care and precaution to guard the former against danger. And the defective condition of structures or appliances which, by the exercise of reasonable care of the master, may be obviated, and from the consequences of which he is relieved from responsibility to the servant by reason of the latter's knowledge of the situation, is such as is apparent to his observation. Kain v. Smith, 89 N. Y. 375; McGovern v. Central Vermont Railroad, 123 N. Y. 280, 25 N. E. 373." (The italics are our own.)

We are unable to agree to appellant's contention that, because respondent continued in the service a week with knowledge of the defect, he must also be charged with having known and appreciated its dangers, and therefore assumed the risk. Respondent testified that he had never seen an accident occur from a like cause, and that he did not consider the defect dangerous if the car was operated at a moderate rate of speed, as it was. In view of this testimony, he could be held to have assumed the risk only in one of two cases: First, that the risk was one ordinarily incident to the employment. That it was not such risk is palpable, and it is not contended that it was. Second, that the danger from the defect was obvious; so obvious that he could not be heard to say that he did not understand and appreciate it. We are unwilling to say, because the cogs in the bull wheel and pinion were tight and binding in their operation, so that the car at times had been noticed to pull heavily, that it was obvious therefrom that such cogs would become locked when the car was being operated at a moderate rate of speed, or at any rate of speed for that matter, and cause a derailment. Such an occurrence is not so ordinary and common under like circumstances as to be obvious. It was certainly not so considered by the experienced men who had the car in charge. The evidence shows the foreman and all of the men continued to use the car with the same knowledge respondent had, evidently not considering the danger nor the defect fruitful of imminent peril. For us to say, as a matter of law, that the dangers therefrom were obvious, would be going quite beyond the province of the court, and invading that of the jury. We hold that whether or not the danger from the defect was obvious in this case was a proper question for the jury, and

that the trial court did not err in refusing appellant's demurrer.

There is no contention that the appellant was not negligent. This is one of those cases in which the mere statement of the occurrence is an implication of negligence. The bull wheel and pinion were made to revolve, the cogs fitting each into the other, and thus propel the car. Their sudden locking and the resultant derailment of the car is proof of negligence on the part of appellant, in that they were defective. Blanton v. Dold,

109 Mo. 64, 18 S. W. 1149; Mooney v. Lumber Co., 154 Mass. 407, 28 N. E. 352. The appellant contends, however, that because of respondent's knowledge of the defect, and of his continuing in the service thereafter, he failed to exercise ordinary care and prudence looking to his own safety, and that such negligence contributed to his injury, and therefore he is not entitled to recover. It is well-settled law that the servant is not obliged to refuse to use an appliance or quit the service of the master if he reasonably believes that by proper care and caution he can safely use the appliance, notwithstanding they are not so reasonably safe as the master is required to furnish. Mere knowledge that the cogs were defective is not, as a matter of law, sufficient to defeat plaintiff's action, if the danger therefrom was not so obvious as to threaten immediate injury. Mathias v. K. C. Stock Yards Co. (Mo. Sup.) 84 S. W. 69; Henderson v. Kansas City, 177 Mo. 491, 76 S. W. 1045; Harff v. Green, 168 Mo. 314, 67 S. W. 576; Wendler v. House Furn, Co., 165 Mo. 540, 65 S. W. 737; Duerst v. Stamping Co., 163 Mo. 607, 63 S. W. 827; Hamman v. Coal Co., 156 Mo. 244, 56 S. W. 1091; Doyle v. M., K. & T. Trust Co., 140 Mo. 19, 41 S. W. 255; Herdler v. Buck Stove & Range Co., 136 Mo. 17, 37 S. W. 115; Holloran v. Iron & Fdry. Co., 133 Mo. 476, 35 S. W. 260; Settle v. Ry., 127 Mo. 343, 30 S. W. 125, 48 Am. St. Rep. 633; Sullivan v. Ry., 107 Mo. 78, 17 S. W. 748, 28 Am. St. Rep. 388; Stephens v. Ry., 96 Mo. 212, 9 S. W. 589, 9 Am. St. Rep. 336; Devlin v. Ry., 87 Mo. 550; Shearman & Redfield on Negligence (5th Ed.) §§ 211, 212; 14 Am. & Eng. Ency. Law (1st Ed.) 844.

In Soeder v. St. L., I. M. & S. Ry. Co., 100 Mo. 681, 13 S. W. 716, 18 Am. St. Rep. 724, the court said: "The deceased's knowledge of the unsafe condition of the track, if it was unsafe, would not defeat a recovery, if it was not so dangerous as to threaten immediate injury, or if he might have reasonably supposed that he could safely work about it by the use of ordinary care and caution." Mathias v. Stock Yards Co. (Mo. Sup.) 84 S. W. 70; Hamilton v. Rich Hill Coal Co., 108 Mo. 375, 18 S. W. 977; Huhn v. Ry., 92 Mo. 440, 4 S. W. 937; Thorpe v. Ry., 89 Mo. 662, 2 S. W. 3, 58 Am. Rep. 120; Smith v. Little Pittsburg Coal Co., 75 Mo. App. 177; Herbert v. Mound City Shoe Co.. 90 Mo. App. 313; Bridges v. Ry., 6 Mo. App. 394. A pre

vious knowledge of a defect, if the defect be not such as to threaten immediate and imminent danger therefrom, is not conclusive against plaintiff in cases of this character. It is treated and held to be a strong circumstance to be taken into consideration, but by no means decisive. A leading case on this question is Snow v. Housatonic Ry. Co., 8 Allen, 450, 85 Am. Dec. 720. The well-settled doctrine in Missouri is, in such cases, mere knowledge of the defect will not defeat a recovery. "Negligence on the part of the servant in such cases does not necessarily arise from his knowledge of the defect, but it is a question of fact, to be determined from such knowledge and the other circumstances in evidence." Huhn v. Railway, 92 Mo. 447, 4 S. W. 937; Cole v. Transit Co., 183 Mo. 90, 81 S. W. 1138; Henderson v. Kansas City, 177 Mo. 477, 75 S. W. 1045; Wendler v. House Furn. Co., 165 Mo. 540, 65 S. W. 737; Pauck v. St. Louis Dressed Beef & Prov. Co., 159 Mo. 477, 61 S. W. 806; Hamman v. Coal Co., 156 Mo. 245, 56 S. W. 1091; Hollenbeck v. Ry., 141 Mo. 110, 38 S. W. 723, 41 S. W. 887; Doyle v. M., K. & T. Trust Co., 140 Mo. 19, 41 S. W. 255; Settle v. Ry., 127 Mo. 344, 30 S. W. 125, 48 Am. St. Rep. 633; Soeder v. Ry., 100 Mo. 681, 13 S. W. 714, 18 Am. St. Rep. 724; Thorpe v. Ry., 89 Mo. 663, 2 S. W. 3, 58 Am. Rep. 120; Stoddard v. Ry., 65 Mo. 520; Keegan v. Kavanaugh, 62 Mo. 233; Conroy v. Vulcan Iron Works, 62 Mo. 39; Herbert v. Mound City Shoe Co., 90 Mo. App. 312; Wood, Master & Servant, 761; Wood's Railway Law, 1460; 14 Am. & Eng. Ency. Law (1st Ed.) 845.

Our conclusion on this branch of the case is that the question whether the respondent was negligent in continuing in the employment with the defective hand car was properly for the jury, and the court did not err in overruling the demurrer on that score.

2. Appellant further contends that as the brake was on the respondent's side of the car, and as he was properly in charge thereof, he should have acted with care and prudence, and used the brake to stop the car, and thus have avoided the accident; that he was guilty of negligence contributing to his injury in not doing so. In answer to this, we will say that respondent had no warning or notice of the accident. In his testimony he says: "I started intending to get on the brake; that is, my mind went that way. I don't know whether I made any effort physically or not. When I found myself I was on the track." The proximate cause of the injury was the sudden and unexpected locking of the cogs of the bull wheel and pinion by reason of the defective gearing. “It must appear, in order to defeat a right of action, that, but for the plaintiff's negligence operating as an efficient cause of the injury in connection with the fault of the defendant, the injury would not have happened." Beach on Cont. Neg. (3d Ed.) § 34;

Dickson v. Ry. Co., 124 Mo. 140, 27 S. W. 476, 25 L. R. A. 320, 46 Am. St. Rep. 429; Huelsenkamp v. Ry., 37 Mo. 537, 90 Am. Dec. 399. How we could hold that the failure of the respondent to get on the brake was an efficient cause of the injury is more than we can understand. Had he succeeded in getting on the brake as he intended, it would not have caused the car to go forward; if anything, it would have added to the sudden stoppage, and the sudden stoppage of the car was that which threw him onto the track. Had the car gone forward and not have checked so suddenly, he, no doubt, would have been able to have remained on the car, and would not have been thrown forward against the rail. We cannot say that his failure to use the brake contributed to his injury, nor can we say, under the circumstances, that if, by using the brake, the injury might possibly have been averted, he would be chargeable with negligence for not adopting the safest and best course to avoid the injury. It is well settled that, when one is exposed to sudden and imminent danger, he cannot be expected to act with that degree of prudence and wisdom which might otherwise have been required of him. In any event, he could not be held to a degree of care greater than that which is required of an ordinarily prudent man under the same circumstances which confronted him. The most prudent men, when confronted with a sudden and unexpected danger, seldom, if ever, conduct themselves with the same forethought and care which characterize their movements when not so confronted. The care and prudence which the law exacts is always governed by the circumstances of the case, and for the courts to hold to a rule other than this would be both unreasonable and unjust. Dickson v. Ry. Co., 124 Mo. 140, 27 S. W. 476, 25 L. R. A. 320, 46 Am. St. Rep. 429; Adams v. Ry., 74 Mo. 553, 41 Am. Rep. 333; Siegrist v. Arnot, 86 Mo. 200, 56 Am. Rep. 424; Snow v. Housatonic Ry., 8 Allen, 450, 85 Am. Dec. 720.

What we have said on the assumption of risk and contributory negligence covers the main points in the case, and it will be unnecessary to discuss separately the propositions raised under point 3 in appellant's brief.

Respondent's counsel put one Baxter on the stand, and asked him to state what Corbett, the foreman, had said to him about the cause of the accident. Appellant objected to this on the ground that it was hearsay. Respondent insisted that the section foreman stood as vice principal, and the statement by him was as an admission or statement against the interest of appellant, and therefore admissible. Over the objection and exception of appellant, the court permitted the witness to answer that Corbett said the injury resulted from a loose wheel and defective gearing. This was error. "Declarations of an agent are admissible as against his principal only when transacting the business

of the principal, as a part of the transaction which is the subject of inquiry in the suit in which they are offered. They are then admitted as verbal acts, and as part of the res gesta. What he may have said before the transaction is entered into, or after its completion, as explanatory, is no more admissible than if made by a stranger. Anything in the nature of a narrative is to be carefully excluded." Adams v. Ry., 74 Mo. 556, 41 Am. Rep. 333; Ruschenberg v. Electric Co., 161 Mo. 81, 61 S. W. 626; Barker v. Ry., 126 Mo. 148, 28 S. W. 866, 26 L. R. A. 843, 47 Am. St. Rep. 646; Smith v. Ry., 91 Mo. 58, 3 S. W. 836; Devlin v. Ry., 87 Mo. 549; McDermott v. Ry., 87 Mo. 299; Aldridge v. Midland Blast Furn. Co., 78 Mo. 559; Rogers v. McCune, 19 Mo. 557; Price v. Thornton, 10 Mo. 135.

Respondent contends that, inasmuch as the statement of the section foreman was merely cumulative, it could work no harm to appellant, and the judgment ought not to be reversed therefor. We cannot say as much. The jury may have attached great weight to this evidence, which was admitted in conjunction with respondent's statement, and the court's apparent ruling in their presence, to the effect that it was an admission against the appellant by one authorized to speak thereon, and it may have been the evidence which turned the scale against appellant at the trial. Its admission was manifest error in the face of the many adjudications in this state, and because of its admission the judgment cannot stand.

It is unnecessary to notice the other assignments. If errors they be, they will likely not occur on a retrial.

For the reasons given, the judgment is reversed, and the cause remanded. All concur.

1. Where an action for injuries to a passenger was tried on the theory of negligence, as distinguished from a willful injury, an objection that the issue of negligence was not raised by the petition was waived.

2. Where, in an action for injuries to a passenger on a street car, her evidence showed that she got a transfer from the motorman, and that passengers sometimes boarded the cars to which plaintiff was transferred at the point where she attempted to alight, and the motorman testified that passengers got on and off defendant's cars at such junction, and that before starting his car he looked around to see if any one was getting on or off, and plaintiff alleged that the motorman negligently and carelessly turned on *Rehearing denied May 16, 1905.