tion across the east track. The motorman of the north-bound car testified that when he was 150 feet south of Sullivan avenue he saw the plaintiff approach the tracks as if with the intention of crossing; that plaintiff came into Jefferson avenue from Sullivan in a trot; that plaintiff leaned forward, apparently looking to the south, and stopped his mule; that he (the motorman) had put on the brake of the car in order to stop when he first noticed the plaintiff, but when plaintiff stopped released the brake and sent his car ahead, and when it got within 50 feet of Sullivan avenue the wagon moved forward again, plaintiff urging his mule into a trot and going diagonally to the northeast; that the motorman then reversed the power, but before he could arrest the car it struck the front wheels of the wagon, and threw the wagon around to the northwest, and against the south-bound car. This witness testified that his car was running only from four to six miles an hour when the collision occurred, and had traveled from eight to ten miles an hour between Dodier street and Sullivan avenue. A witness for the plaintiff testified that he saw the north-bound car two blocks south of University street; that it came on under full speed, and without ringing a bell, struck the wagon, carried the front of it and the mule from 50 to 60 feet northward, and knocked the plaintiff into a state of unconsciousness. That witness said the car approached at a speed of at least 30 miles an hour; that as the plaintiff approached the tracks he was driving in a walk.

The court gave this instruction of its own motion: "(a) You are instructed that if you believe from the evidence that on the 21st day of September, 1903, the defendant was engaged in operating a street car line along Jefferson avenue, in the city of St. Louis, and that on said day the defendant negligently ran one of its cars against and upon a wagon being driven by the plaintiff, whereby the said wagon was broken, and the plaintiff was thrown therefrom and injured; and that the defendant's negligence consisted either in failing to keep a vigilant watch for vehicles either upon the track or moving toward it, and in failing to stop said car in the shortest time and space possible in the circumstances and with the appliances at hand without injury to the persons upon said car, after the danger of collision with said wagon was apparent to the motorman in charge of said car, or might have been apparent to him had he been exercising ordinary care to discern vehicles upon or approaching the track; or that the defendant was negligently running its said car at a rate of speed exceeding ten miles an hour; or that, after seeing the plaintiff in a place of danger upon or near the track, the defendant gave no warning of the approach of its said ear; and that the plaintiff's injuries were caused by the defendant's negligence in

one or more of such particulars; and that the plaintiff was at the time exercising ordinary care for his own safety-then your verdict will be in favor of the plaintiff and against the defendant."

The following instructions were given at the instance of the plaintiff: "(b) The jury are further instructed that, although they may believe from the evidence that at and prior to the time said car struck said wagon and injured plaintiff that he was guilty of negligence or carelessness in driving said wagon on the track in front of said car while it was moving, so that he was guilty of negligence while upon said track, yet if they further believe from the evidence that the agent, servants, or employés of defendant then running, conducting, and managing said car, or either of them, saw said wagon and became aware of the danger of striking the same either while it was approaching said track or while it was upon the same, or that by the exercise of ordinary care and skill the motorman of said car could have seen said wagon, and thereby have become aware of the danger of striking the same, in time to have slowed up or stopped said car with the appliances at hand, and without danger of injury to the persons thereon, and thereby have avoided striking said wagon and injuring plaintiff, and they failed to do so, they were guilty of negligence for which defendant is liable, and the jury will find a verdict for plaintiff, notwithstanding such negligence on his part. (c) The jury are further instructed that by the terms 'ordinary care,' as used in the instructions herein, is meant that degree of care which a person of ordinary care and prudence would use under the same or similar circumstances, and that failure to exercise such care is negligence."

The court gave this instruction of its own motion: "(d) The court instructs the jury that it is the duty of persons on public streets, whether on foot or in vehicles, to be ordinarily prudent and careful in crossing street car tracks, and both to look and listen for approaching cars; and, even though the jury should find in this case that the gong of the car was not sounded, still if plaintiff could, by exercising ordinary care in approaching or driving upon the track and in looking for the approach of the car, have caused said wagon to be stopped in time to avert the collision, your verdict will be for defendant: provided that you find that he did fail to exercise such care, and that his failure to exercise such care directly contributed to plaintiff's injury, and that the defendant by the exercise of ordinary care after plaintiff was, or, by the exercise of ordinary care, might have been, discovered to be in a position of danger, might have stopped the car by the use of the appliances at hand, and without danger to the person on the car, and so have averted the injury, and that the defendant failed so to do." The italicized part

of the instruction was appended by the court; the part in Roman letters having been requested by the defendant and refused in that form.

The court gave this instruction of its own motion: "(e) If the jury find from the evidence that the plaintiff could have seen the north-bound car approaching upon the track in time to have stopped had he looked in the direction of the car, or could have heard said car approaching while he was approaching the track in time to have stopped had he listened for said car, and still went upon the track closely in front of said approaching car, then the presumption is that he did not look or listen, or, if he did look or listen, that he did not heed what he saw or heard, so that in either case he was negligent in going upon the track closely in front of said car, if you believe from the evidence that he did so, and if such negligence caused or contributed directly to the collision and his alleged injuries, he cannot recover, and your verdict must be for the defendant, unless you further find that the defendant might have stopped the car and averted the injury, as stated in the second instruction." (Instruction "b.") The part of the instruction in Roman letters was asked by the defendant, but refused as asked, and given with the italicized part, which was appended by the court.

The court gave this instruction of its own motion: "(f) If, from the evidence, you believe that at any time before plaintiff got upon the track with his mule and wagon the north-bound car could have been seen from the place where plaintiff then was, then the court declares to you as a matter of law that it was plaintiff's duty to observe and heed the approach of said car, and if he failed to do so, and such failure on his part directly contributed to the collision, he cannot recover in this action, unless you further find that the defendant might have stopped the car and averted the injury as stated in the second instruction." (Instruction "b.") That instruction was asked by the defendant without the part in italics, and refused in that form.

This instruction, among others, was requested by the defendant, and refused: "(g) Although the jury may find and believe from the evidence that defendant's motorman saw plaintiff as the vehicle in which he was riding approached defendant's track, still if you further find from the evidence that the actions of plaintiff at or about said time were such as to indicate to the motorman, who was at the time in the exercise of reasonable care and attention, that said vehicle would avoid going on or near the track and collision with his car, then the court instructs the jury that defendant's motorman had a right to continue the speed of his car until such time as by his action or conduct plaintiff gave some indication of a contrary intention; and if you find from the evidence that

the motorman was at the time in the exercise of reasonable care and attention, and that he could not know that plaintiff was going upon or so near the track as to be struck by his car in time to avert an accident, then plaintiff cannot recover in this action, and your verdict will be for defendant."

The jury returned a verdict for the plaintiff. Judgment was entered accordingly, and after the requisite motions the defendant appealed to this court.

Opinion.

We attach no importance to the failure of the motorman to ring the bell as his car drew near the plaintiff, granting that he failed to ring it. The only purpose the warning could have served was to attract the attention of the plaintiff to the approach of the northbound car and the need of moving far enough from the east track to be out of danger. But according to his own statement this movement was impossible. He was doing his best already to drive across the east track, and, if he had gotten across, would have been out of danger from both cars. Sounding a bell might have sharpened the sense of peril he felt, but could not have stimulated his efforts to escape from the position he was in. If it had been possible to turn around and go in any other direction, and thus get out of the way of the northbound car, warning signals might have been useful; but he swore he could not turn around for lack of space between the southbound car, which was close on him, and the excavation. He could neither turn around nor cross the street straight ahead, and had no chance to do anything except what he was striving to do; that is, drive to the northeast. Therefore negligence in not ringing the bell may be regarded as of no importance as the case now appears. It is conceivable that, if his attention had been drawn to the north-bound car, plaintiff might have leaped from his wagon, and on that theory some weight might be attached to the failure to ring the bell. But such a theory is not advanced, nor was it contended for at the trial. Indeed, if we accept the plaintiff's statements as to his engrossment in the effort to get his mule and vehicle out of the way, it is most unlikely that the thought of abandoning them would have occurred to him, or been acted on if it had. As the case is presented on this appeal, not ringing the bell has no significance. Neither was the alleged failure of the motorman to keep a vigilant watch of consequence; for he testified that he saw the plaintiff 150 feet or more away, and in time to have stopped his car, had not plaintiff himself stopped, and afterwards started forward again, thereby deceiving the motorman as to his (plaintiff's) intention in regard to crossing the street. The negligence on the part of the motorman which may have been the respon

sible cause of the accident was running at an excessive speed, and not using the means at his command to stop the car after he saw there was danger of running against the plaintiff. One vital fact in the case is the distance the north-bound car was from the plaintiff's wagon when the motorman, in reason, ought to have known a collision was imminent unless he checked his car. In other words, how far apart were the car and the wagon when the motorman first had reason to believe the plaintiff was imperiled by the movement of the car, and did he have reason so to believe in time to get control of his car by proper exertions? The motorman's own testimony shows he was alarmed at plaintiff's forward movement, and began to apply the brake when the car was 150 feet away; but plaintiff stopped, and afterwards started again. The latter statement is contradicted by several witnesses, who swore plaintiff never stopped until his mule was on the north-bound track, and when the excavation just to the east prevented further advance. Several witnesses testified, too, that at the moment plaintiff turned his wagon, which was then on the east track, diagonally to the northeast, the north-bound car was from 150 to 200 feet away. If the above statements of plaintiff's witnesses were true, and the motorman's statement that he saw plaintiff 150 feet away was true, it must have been apparent to the motorman that, unless checked, his car would run against the wagon. He must have seen that the wagon was caught in a trap between the south-bound car on its north side and the excavation right in front, could not get out, and would be struck by his car if it proceeded northward. Now, if the car was moving at a reasonable speed, and was, as the witnesses said, 150 or 200 feet away when the wagon was on the east track, the inference is fair that by using the means at hand the motorman could have stopped in time to avoid a collision. There is much evidence that the speed was very great. Some of the witnesses estimated it at 60 miles an hour. The violence of the collision, as shown by the consequences, demonstrates that the speed was high, if not reckless. As said, a passenger who was in the center of the car found himself after the collision lying on the track by the mule. The inference is fair that plaintiff had been caught in a perilous position without fault on his part. He knew nothing of the excavation on the east side of Jefferson avenue, and when he started across had plenty of time to get across before the car would reach him, if the street had been in order. He would have gotten across but for the fact that he was balked by the excavation. Meanwhile the south-bound car came along on the west track, crowded him closely, and forced him to drive toward the northeast to get out of the way. While he was in this situation, and his attention engrossed by his effort to

escape the south-bound car, the north-bound one was approaching. It was the plain duty of the motorman on the latter car to do what he could to keep from running against the plaintiff. We therefore overrule the assignment of error based on the court's refusal to sustain a demurrer to the evidencefor the plaintiff. The case was clearly one for the jury under proper instructions submitting the issues of negligence on the part of the motorman and contributory negligence on the part of plaintiff.

There is a little testimony-chiefly that of the motorman of the north-bound car-that plaintiff himself was to blame for getting into peril; but, if he was, it was the duty of the motorman to prevent the accident if possible. On this branch of the case no clear instruction was given to the jury. Instruction "d," with the modification made by the court, is nearly unintelligible. It is not easy to discern how it could prejudice the defendant if understood according to its tenor. But certainly it was unlikely to impart to the jury a clear understanding of the law regarding the duty of the defendant to try to avert harm to plaintiff if the latter carelessly had exposed himself to peril. The instruction reads like some of its words wereused inadvertently, as suggested by plaintiff's counsel, who say, however, that it could. not have been harmful to the defendant. But we think the defendant was entitled to a lucid instruction regarding its duty and responsibility in case plaintiff exposed himself to peril. None was given. The motorman swore he checked his car when he thought plaintiff was going to drive across ahead of it, and after he had checked it plaintiff's action induced the belief that he would await the passage of the car before attempting to cross; that plaintiff stopped his wagon after the brake had been set on the car, and thereupon the motorman released the brake, and the car started forward, when plaintiff drove in front of it too. late for a collision to be averted. It is not incumbent on a motorman to get his car under control if he sees some one near the track whose actions indicate that he is not going on the track. He is only bound to put his car under control on the appearance · of danger to a person on or near the track. If such person's behavior indicates that he is conscious of danger, and regulating his movements with regard to it, the motorman may proceed with his car on the assumption that the person will not advance on the track. Reno v. R. R., 180 Mo. 469, 79 S. W. 464; Aldrich v. Transit Co., 101 Mo. App. 77,. 74 S. W. 141. Instruction "d" as requested by defendant stated the rule in terms of thepresent case, and should have been given.

Besides the instructions we have copied, the defendant requested and the court refused one or two which told the jury that it was the plaintiff's duty to look and listen for an approaching car before attempting to

cross the track, and if the jury believed that by doing so he might have seen or heard the car and avoided the accident, the verdict must be for the defendant. It has been declared by the Supreme Court, and by this court following its authority, that a person about to cross a street car track, speaking generally, must look and listen for cars, and if he fails to take that precaution, when by doing so he could have prevented injury to himself, he should be denied a recovery. Murray v. Transit Co., 176 Mo. 183, 75 S. W. 611; s. c. (Mo. App.) 83 S. W. 995; Hartman v. Transit Co. (Mo. App.) 87 S. W. 86. Many of the facts of this case are so unlike those cases wherein that rule was enforced that they do not compel the ruling that this plaintiff should be nonsuited if he failed to look and listen for the car which struck him. It is somewhat difficult to see why a person who goes on a street car track without looking and listening for cars should be denied relief for an injury if the street car operatives could have avoided injuring him by ordinary care, notwithstanding his negligence, any more than he should be denied relief when he failed to observe ordinary care in any other respect and the railway company's employés could have avoided injuring him. The specific precaution of looking and listening for a car is one exacted when men are about to go on car tracks; but we apprebend that omitting to do so will not, under all circumstances, exonerate the railway company from liability for an accident. The rule must yield to an exception when the circumstances show its application would work rank injustice. In other words, when the reason of it fails. It is applied when the injured party, because of his failure to look and listen for cars, went on the track, and did not have time to get across before the ear reached him. But in the present case the plaintiff proved he had ample time to get over the tracks before the north-bound car reached him, if his progress had not been obstructed unexpectedly by the excavation in the street. If he had seen the north-bound car, it would not have deterred him from advancing, because he had no reason to think it would get to him before he got across the track. Why, then, should he be refused a recovery because he omitted an act, which, performed, would have had no influence on his conduct? We feel bound to overrule the exception to the court's refusal to grant an instruction that plaintiff could not recover if, by looking and listening for the northbound car, he could have discovered it in time to avoid the accident. Certainly he could have avoided the accident if he had seen the car and stopped. But it is equally certain that he would not have stopped if he had seen it, because he was acting under the well-founded belief that there was no cause to stop, as he would be safely over the tracks before the car got to the street crossing.

As the case is for negligence only, our

opinion is that the court should have omitted from instructions "e" and "f" the clauses stating that the plaintiff could recover although the jury might find his own negligent act directly caused or contributed to his injury. There have been recent utterances by the Supreme Court against the theory that a plaintiff can recover if his negligence directly contributed to the accident, if the defendant was neither reckless, wanton, nor willful. Roenfeldt v. R. R., 180 Mo. 554, 565, 79 S. W. 706. We cannot assent to the proposition that a party whose negligence causes injury can recover from any one else as instruction "e" said plaintiff might. The instructions were complete without said clauses, and misleading with them. It was sufficient to tell the jury that if the plaintiff moved on the track as the instructions assumed (that is, carelessly, and without looking and listening for a car), nevertheless he might recover if the motorman could have stopped the car and averted the casualty. There is evidence in this case tending to convict the motorman of reckless or wanton misconduct, and we will not say there could be no recovery if plaintiff's negligence directly contributed to his injury. There could not be if the motorman was simply negligent, but might be if he was wanton or willful. But it served no useful purpose to require more of the jury than a finding that plaintiff carelessly drove on the track, and that while he was there the motorman could have avoided running against him by using the means at his command.

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

MISSOURI BAPTIST SANITARIUM OF ST. LOUIS v. McCUNE. (St. Louis Court of Appeals. Missouri. May 2, 1905.)

WILLS- CONSTRUCTION RULES INTENT OF TESTATOR-SPECIFIC BEQUESTS-PROCEEDS OF STOCK-RIGHT TO DIVIDENDS.

1. A bequest of the proceeds of sale of stock is not a bequest of the stock itself, and does not carry with it the dividends declared after testator's death and before the sale of the stock, and which therefore belong to the corpus of the estate.

2. Under Rev. St. 1899, § 4650, requiring courts to have due regard to the directions of the will and true intent and meaning of the testator, the intention of the testator is the cardinal rule for the construction of wills.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, § 955.]

3. The intention of testator must, primarily. be gathered from the terms of the will itself, and surrounding circumstances can only be considered in determining that intention when inconsistencies or ambiguities in the language used make the intention as declared by the will doubtful.

[Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, §§ 956, 958.]

4. In the absence of a manifest intent to the contrary, it is the duty of the court in constru

ing wills to give to the words employed their plain and usual sense, and to ascertain what is meant by those words, and not to attempt to state what testator should have meant, or what words he should have used.

[Ed. Note. For cases in point, see vol. 49, Cent. Dig. Wills, § 974.]

5. Where testatrix made several specific bequests in proper form, thereby indicating that She knew how to make them, a clause of the will directing the sale of stock to the highest bidder, and the division of the proceeds of sale among specified legatees, could not be construed as a specific bequest of the stock, rather than of the proceeds.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Exceptions by the Missouri Baptist Sanitarium of St. Louis to the account of A. J. McCune, executor of Amelia Tinsley, deceased. From a judgment of the circuit court affirming an order of the probate court, disallowing the exceptions, exceptant appeals. Affirmed.

This proceeding originated in the probate court of Pike county. The appellant, a legatee under the will of Amelia Tinsley, deceased, filed its exceptions in the probate court to the final settlement of A. J. McCune, executor of the last will of Mrs. Tinsley, who died testate in said county June, 1901. The will, a portion of which only is material to this controversy, and is hereinafter set out, provided, among other things, that certain bank stock owned by the testatrix to the amount of $6,000 should be sold by her executor, and the proceeds of such sale be divided equally between the St. Louis Baptist Sanitarium and the Orphans' Home, both of which were under the supervision of the Baptist Church. Mr. McCune, the executor, collected $720 dividends declared on said stock after the testatrix's death and before the sale of the stock, and turned the said dividends into the general fund of the estate, of which his wife and he were residuary legatees. After having collected the $720 dividends arising out of the bank stock, he disposed of the bank stock on September 30, 1902, at a premium of $610, and on July 7, 1903. paid over to the Baptist Sanitarium $3,420.64, which amount was one-half of the amount for which he sold the bank stock, including premium and interest on the same at 6 per cent. from the date of the appraisement of such bank stock to the date of the sale, September 30, 1902. These facts appearing in the final settlement of the executor, the Baptist Sanitarium, appellant herein, filed its exceptions to such final settlement in the probate court, praying said court to disapprove such final settlement for the reason that the executor had not accounted to appellant for one-half of the dividends collected on said bank stock, and prayed the court for an order on the executor to pay appellant the sum of $360, with interest thereon at 6 per cent. from the date the executor collected the dividends. The exceptions were disallowed by the probate court. Appellant

appealed therefrom to the circuit court of Pike county. Upon such appeal all of the facts hereinabove stated were shown in the circuit court by the will, its probate, inventory, and appraisement of the estate, receipts for disbursements and final settlement, together with other records of the probate court in that behalf pertinent to the issue, which will and records show that A. J. McCune was nominated executor by the provisions of said will; that the will was probated June 17, 1901, and immediately thereafter he qualified as such executor, and letters testamentary were granted him therei on; that among other things inventoried as parcel of said estate were 60 shares of stock in the Mercantile Bank at Louisiana, Mo. So much of the will as is pertinent to this controversy is as follows:

"Item 2. I own stock in the Mercantile Bank of the City of Louisiana, County of Pike, and State of Missouri, to the amount of Six Thousand Dollars, which I desire shall be sold to the highest bidder and the pro ceeds of such sale be divided into two equal parts which are to be disposed of in the following manner:

"I direct that one of these equal parts be set apart by my Executor and paid over by him to the proper officers or persons representing the St. Louis Baptist Sanitarium, an institution located in the City of St. Louis, Missouri, and under the supervision of the Baptist Church or denomination of Christians. The other equal part I desire shall be set apart and paid over by my Executor to the proper officers or managers in charge of the Orphans' Home, another charitable institution also located in the said City of St. Louis, Missouri, and also under the charge, supervision, and control of the said Baptist Church or denomination.

"These sums respectively are to be held. managed and used by the respective Boards having in charge and under their control the said institutions, in the manner best calculated to keep up and maintain the same for the uses and purposes for which they have been established."

Pearson & Pearson, for appellant. Ball & Sparrow, for respondent.

NORTONI, J. (after stating the facts). Appellant argues that under item 2 of the will a bequest of the bank stock was made to it and the orphans' home, and that such bequest carried with it the dividends also: therefore one-half of the dividends which were collected by the executor and turned by him into the corpus of the estate should be awarded to the Baptist Sanitarium, together with interest thereon since the date of their collection. This no doubt would be true under appellant's assumption that item 2 of the will is a bequest of the bank stock. There is no doubt of the law in such case: "The general rule, stated in the briefest way, is that a dividend belongs to the one who is the