north-bound car just as she was about to step off the east track; that the car did not slacken its speed before it struck her; that the car was stopped at a point about 30 feet. beyond the point of the accident; that a car running at the rate of six miles an hour could be stopped by means of the brakes in about 10 feet, and by using the reverse power in 3 to 4 feet; that running 8 or 10 miles an hour it could be stopped in 30 feet by using the brakes; that running 15 miles an hour it could be stopped in a car length and a half by using the reverse power.

The witnesses for the plaintiff were standing at the northwest corner of Fourteenth and Spruce streets at the time of the accident. Because the car was between them and the plaintiff's wife, they did not see the car strike her. But they said when she was between the sidewalk on the west side of Fourteenth street and the railroad track the car was at Spruce street.

The city ordinances pleaded were offered in evidence, and it was admitted that the defendant had accepted them.

The evidence of the defendant's motorman was that he saw the plaintiff's wife when the car was about 30 feet north of Spruce street; that she was then between the curb on the west side of Fourteenth street and the south-bound car track; that the car was then running about five miles an hour; that he sounded the gong when he first saw her, and reduced the speed of the car to four miles an hour; that she continued on her way until she got to the south-bound track; that "at that time when she stepped there I was within probably perhaps 20 feet of her; she paused for an instant, and when I got within five feet of her she just deliberately walked over the track. I reversed my car, but she was too close, and it hit her. Ques. Which part of the car hit her. Ans. The east side of the car-the opposite sideshe almost cleared the track. It was the fender hit her about at the ankle, and she fell down on the street." This witness testified that, if the reverse current is applied to a car going at the rate of five miles an hour on a slight grade, the car will slide 30 feet. The conductor of the car testified that the car was running about five miles an hour, and that the motorman rang the gong continuously as he approached Belmont street; that it was foot bell; that the car stopped with the rear platform "alongside" of where the plaintiff's wife laid. The superintendent of the defendant testified that the car weighed eight tons, and that it would take 4 seconds to stop the car if it was running at a rate of four or five miles an hour, and that the car will slide from five to ten feet even on a slight up grade. The assistant superintendent of the City Hospital testified that when the plaintiff reached the hospital she had a contusion of the skull, and was under the influence of liquor. "She had the odor of alcohol on her breath."

75 S.W.-43

1. Under this state of the record, counsel for the appellant very properly says: "For the purpose of this hearing we will concede that there was evidence for the defendant tending to sustain the answer and make the issue for the jury, and we claim a reversal of the case upon the grounds herein stated”— that is, that the trial court erred in a matter of law in giving the defendant's instructions. To fully understand the case, it is necessary to set out all the instructions bearing upon the question of the liability of the defendant and the duty of the deceased that were given at the request of either the plaintiff or the defendant, and by the court of its own motion.

The instructions given for the plaintiff are as follows: "(1) If the jury find from the evidence in this case that on the 13th day of October, 1896, the defendant was operating the railway and car herein mentioned, as a public conveyance, for the purpose of transporting persons for hire from one point to another, within the city of St. Louis, as a street railway; and if the jury further find from the evidence that at said time Fourteenth and Belmont streets, at the place mentioned in the evidence, were public streets within the city of St. Louis; and if the jury find from the evidence that Jennie Moore, mentioned in the evidence, was the lawful wife of the plaintiff; and if the jury find from the evidence that on the night of October 13, 1896, the plaintiff's wife, Jennie Moore, was passing over the south crossing of Belmont and Fourteenth streets, and whilst doing so the defendant's car ran against her and so injured her that she died from said injuries; and if the jury find from the evidence that said car was, by the defendant's servants in charge of same, being run at a greater rate of speed than 10 miles per hour at said time; and if the jury further find from the evidence that such excessive rate of speed, over 10 miles per hour, directly contributed to cause said car to so strike and injure plaintiff's said wife; and if the jury further find from the evidence that plaintiff's wife exercised ordinary care to look and listen for an approaching car while going upon and over defendant's track -then plaintiff is entitled to recover. (2) If the jury find from the evidence that on the 13th day of October, 1896, the defendant was operating the railway and car, mentioned in the evidence, for the purpose of transporting persons for hire from one point to another within the city of St. Louis, as a street railway; and if the jury find from the evidence that at said time Fourteenth and Belmont streets were public streets, within the city of St. Louis, at the place mentioned in the evidence; and if the jury further find from the evidence that on the night of said day the plaintiff's wife, Jennie Moore, was on the south crossing of said streets, passing from the west side of Fourteenth street to the east side thereof across defendant's tracks;

and if the jury further find from the evidence that, as the plaintiff's wife moved towards and across defendant's tracks, defendant's motorman saw her; and if the jury further find from the evidence that as plaintiff's wife approached and went upon defendant's track she was in danger of being injured by defendant's north-bound car; and if the jury further find from the evidence that defendant's motorman on the north-bound car saw, or by keeping a vigilant watch could have seen, that the plaintiff's wife, as she approached and went upon defendant's north-bound track, was in danger of injury from said car, and therefore could have averted injury to plaintiff's wife by stopping said car within the shortest time and space possible, and neglected to do sothen plaintiff is entitled to recover five thousand dollars. (3) If the jury find from the evidence that, as the defendant's car, moving northward, approached the south crossing of Belmont street, the plaintiff's wife was passing over said crossing; and if the jury further find from the evidence that said crossing was a public crossing for pedestrians; and if the jury further find from the evidence that as plaintiff's wife was so passing over said crossing she was struck and injured by defendant's north-bound car so that she died from said injuries; and if the jury further find from the evidence that as said car approached said crossing defendant's servants in charge of the car failed to give any signal, by bell or otherwise, of the approach of said car to said crossing; and if the jury further find from the evidence that said failure to give said signal directly contributed to cause the injury and death of plaintiff's wife; and if the jury find from the evidence that plaintiff's wife was exercising ordinary care whilst approaching and passing over said track-then plaintiff is entitled to recover five thousand dollars; provided the jury believe from the evidence that such failure to give such signal was negligence on the part of the servants of the defendant. (4) By the term 'ordinary care,' as used in the instructions, is meant that degree of care that would be used by a person of ordinary prudence under the same or similar circumstances. A failure to exercise ordinary care as thus defined would be negligence. (5) The court instructs the jury that if they find from the evidence that the deceased, Jennie Moore, did see the approach of defendant's car before it struck and injured her, yet if said car was distant from her a sufficient distance to have enabled her to cross the track ahead of the car in safety by the exercise of ordinary care and expedition, if said car was running not exceeding 10 miles per hour, then she had the right to proceed to cross defendant's track, if she used ordinary care and expedition in doing so, and if she did not know or have reason to believe said car was in fact running more than 10 miles per hour (if, in fact, said car

was running more than 10 miles per hour)." The instructions given at the request of defendant are as follows: "(1) The jury are instructed that the negligence alleged against the defendant is: First, that the defendant failed to give warning of the approach of the car by sounding the bell or otherwise; second, that the defendant did not keep a vigilant watch for persons on foot upon the tracks or moving towards them, and did not, upon the first appearance of danger, stop the car within the shortest time and space possible; and, third, that the defendant ran its car at the time in question at a rate of speed exceeding 10 miles an hour. And the court instructs the jury that it is incumbent upon the plaintiff to prove that the defendant was guilty of one or the other of these specified acts of negligence, and that such negligence on its part caused the injury complained of. And even though the jury find that the defendant was guilty of one or the other of the acts charged, and even if they find that such negligence contributed to the injury complained of, still, if they further. find that the deceased, Mrs. Moore, was negligent in attempting to cross the track of defendant as she did, and that such negligence on her part contributed to the accident, then the plaintiff is not entitled to recover. (2) The court instructs the jury that, although they may believe and find from the evidence that the defendant, through its agents and servants in charge of its said car, was negligent in failing to sound the gong, and that it was negligent in running said car at a rapid rate of speed, yet the plaintiff is nevertheless not entitled to recover if you further believe that the deceased knowingly tried, by hurrying, to pass in front of said moving car, in such close proximity thereto as to make the danger of collision imminent; and this is true even though you may further find that the agents and servants of the defendant failed to use proper care to stop said car after such dangerous position of the deceased became known to them. (3) The court instructs the jury that, although they may believe and find from the evidence that the motorman of defendant's car saw the deceased wife of plaintiff approaching the track, on which said car was moving, afoot, and with said car in view, said motorman nevertheless had the right to assume that said deceased would not pass in front of said car, but that she would stop before passing onto the same, and that, under such assumption, he had the right to proceed with the speed of said car unabated, unless you believe that the same was being run at an unlawful or negligent rate. (4) Even though the motorman saw Mrs. Moore crossing the street and moving toward the track along which this car was moving, still be had the right to assume that she knew the car was approaching and would have regard for her own safety, and not attempt to pass in front of the same if it was obviously dangerous to attempt to do so. And the motor

man had the right to assume that she would stop when she came to the track, and not attempt to cross in front of his car if it was manifestly unsafe to do so. And the motorman had the right to proceed at a lawful rate of speed, and was not bound to stop his car until she placed herself in a position of peril by coming upon the track, or so close to it as to endanger her."

The court of its own motion gave to the jury the following instruction: "The jury are instructed that the negligence alleged against the defendant is: (1) That at the time in question the defendant failed to give warning of the approach of the car by sounding the bell or otherwise. (2) That the defendant did not keep a vigilant watch for persons on foot upon the tracks or moving towards them, and did not, upon the first appearance of danger, stop the car within the shortest time and space possible. (3) That the defendant ran its car at the time in question at a rate of speed exceeding 10 miles per hour. And the court instructs the jury that it is incumbent upon the plaintiff to prove that the defendant was guilty of one or the other of these special acts of negligence, and that such negligence on its part caused the injury complained of. And even though the jury find that the defendant was guilty of one or the other of the acts charged, and even though they find that such negligence contributed to the injury complained of, still, if they further find that the deceased, Mrs. Moore, was negligent in attempting to cross the track of defendant as she did, and that such negligence on her part contributed to the accident, then the plaintiff is not entitled to recover, unless you further find from the evidence that the defendant motorman saw, or by the exercise of reasonable care might have seen, that the plaintiff's wife was in a position of danger or peril, and that the said motorman thereafter could have averted the injury to plaintiff's wife by the exercise of reasonable or ordinary care, but negligently failed to do so."

It is unnecessary to notice the first instruction given for the plaintiff, further than to say that there is no evidence whatever in the record that the deceased looked or listened for an approaching car while going upon or over the defendant's track. The plaintiff introduced no evidence whatever bearing upon this proposition, and the defendant's evidence shows that she paused an instant while on the south-bound track when the car was 20 feet from her, and then deliberately stepped upon the north-bound track when the car was within 5 feet of her.

The plaintiff's second instruction predicates a right of recovery upon a violation of the pleaded and accepted city ordinance, and, read in connection with the defendant's third and fourth instructions, and with the instruction given by the court of its own motion, the jury could not fail to understand the law of the case as made.

The appellant, however, attacks the second instruction given for the defendant. The dominant idea expressed by this instruction is that, notwithstanding the defendant may have been primarily negligent, nevertheless the plaintiff cannot recover if thereafter both the defendant and the deceased were guilty of concurrent, subsequent negligence, nor can the plaintiff recover if both were guilty of negligence of such kind, character, or degree as to constitute it recklessness or wantonness. The rule is thus stated in 7 Am. & Eng. Enc. Law (2d Ed.) pp. 385, 386: "And so when the negligence of the person inflicting the injury is subsequent to, and independent of, the carelessness of the person injured, and ordinary care on the part of the person inflicting the injury would have discovered the carelessness of the person injured in time to avoid its effects and prevent injuring him, there is no contributory negligence, because the fault of the injured party becomes remote in the chain of causation. In such a case the want of ordinary care on the part of the injured person is not held a juridical cause of his injury, but only a condition of its occurrence. Conversely, when the carelessness of the person inflicting the injury is antecedent to the negligence of the person injured, and the latter might by ordinary care have discovered the failure of the former to use such care, in time to avoid the injury, there can be no recovery, because the intervening negligence of the injured person is the direct and proximate cause of his injury." Judge Cooley states the law with his usual force and clearness, as follows: "Regarding the case of a negligent injury, the general result of the authorities seems to be that if the plaintiff or party injured, by the exercise of ordinary care under the circumstances, might have avoided the consequences of defendant's negligence, but did not, the case is one of mutual failure, and the law will neither cast all of the consequences upon the defendant, nor will it attempt any apportionment thereof." Cooley on Torts (2d Ed.) 812. The rule, however, is nowhere more clearly or accurately stated than in the recent work of Nellis on the Law of Street Surface Railroads, pp. 383, 384, where he says: "It may be stated as a rule that a plaintiff who, by his own negligence, has placed himself in a dangerous position where an injury was likely to result, may still recover for such injury, if the defendant, with knowledge, or such notice as is equivalent to knowledge, of plaintiff's danger, failed to exercise reasonable care by which the injury might have been avoided, unless the injury was the result of concurrent negligence of both parties." In Murphy v. Railway Co., 153 Mo., loc. cit. 261, 54 S. W. 442, the court, speaking through Brace, J., said: "The violation of an ordinance by the defendant could not be the proximate cause of an injury which was the product of such negligence and the concurrent negligence of

the plaintiff. The concurrent negligence of both in such a case is the proximate cause of the injury, and the plaintiff cannot recover. This is the law universally prevalent in this country, and to it there is but one exception in this state made on the score of humanity, and that is, if sufficient time and opportunity intervene between the concurrent acts of negligence which produced the dangerous situation and the injury to have enabled the defendant by the exercise of ordinary care to have prevented the injury, and he fails to exercise such care, then he will not be protected by this rule, but to the failure to exercise such care will the injury be attributed as the proximate cause thereof, and for such failure the plaintiff may recover." To this rule I add the logical and necessary corollary that, if both parties are guilty of recklessness or wantonness, there can be no recovery. For, if the injured party is guilty of recklessness or wantonness, he is no more entitled to recover for the defendant's recklessness or wantonness than he would be if it was the plain case of negli- | gence and contributory negligence in the first degree. Holwerson v. Railroad, 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850.

It has always been the law in this state that it is such gross negligence as precludes a recovery for a person to step on a railroad track directly in front of an approaching train, and so close to it as to render it impossible to stop the train in time to avoid injury. Boyd v. Railroad, 105 Mo. 317, 16 S. W. 909; Watson v. Railroad, 133 Mo., loc. cit. 250, 34 S. W. 573; Kelly v. Railroad, 75 Mo., loc. cit. 140; Sinclair v. Railroad, 133 Mo., loc. cit. 241, 34 S. W. 76; Kries v. Railroad, 148 Mo. 321, 49 S. W. 877; Holwerson v. Railroad, 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850; Hook v. Railroad, 162 Mo. 569, 63 S. W. 360; Tanner v. Railroad, 161 Mo. 497, 61 S. W. 826; Van Bach v. Railroad (Mo. Sup.) 71 S. W. 358. And this is true even if the train was running at a rate of speed in excess of the maximum rate permitted by law. Tanner v. Railroad, 161 Mo. 497, 61 S. W. 826. For in such case the negligence of the injured party, and not the rate of speed of the train, is the proximate cause of the injury. To go upon a track in front of an approaching train, and so close to it as to render it impossible to stop the train in time to avoid injury, is negligence, whether the train is moving rapidly or slowly; and the only question in any case is whether, notwithstanding such negligence of the injured party, the train could have been stopped in time to have avoided the injury; and if the plaintiff bases a right to recover upon the failure of the defendant to exercise ordinary care to prevent the injury after the peril of the plaintiff, or party injured, was known, or could have been known by the exercise of ordinary care, the burden of alleging and proving that such was the fact rests upon the plaintiff. If, however, the undisputed

facts show that the injured party was guilty of such contributory negligence as will preclude a recovery, and if there is no evidence of a willful, reckless, or wanton disregard of human life on the part of the operatives of the train, there is nothing for a jury to pass upon, and the court should sustain a demurrer to the evidence. Tanner v. Railroad, 161 Mo. 497, 61 S. W. 826; Kellny v. Railroad, 101 Mo. 67, 13 S. W. 806, 8 L. R. A. 783; Holwerson v. Railroad, 157 Mo. 216, 57 S. W. 770, 50 L. R. A. 850; Van Bach v. Railway (Mo. Sup.) 71 S. W. 358; Guyser v. Railroad (No. 10,634, not yet officially reported) 73 S. W. 584. If, instead of so doing, the trial court submits the case to the jury, and gives improper and erroneous instructions, and the jury find for the defendant, the verdict will not be disturbed, notwithstanding such misdirection, because it is in consonance with the true law, and is for the right party, and because the plaintiff would not be entitled to a verdict at all upon such a showing. Hill v. Wilkins, 4 Mo., loc. cit. 88; Orth v. Dorschlein, 32 Mo. 366; Kelly v. Railroad, 88 Mo. 534; Ellerbe v. Bank, 109 Mo. 445, 19 S. W. 241; Homuth v. Railroad, 129 Mo., loc. cit. 642, 31 S. W. 903; Haven v. Railroad, 155 Mo., loc. cit. 223, 224, 55 S. W. 1035, and cases cited.

In this case there is no evidence whatever that the deceased looked or listened for a car before going upon the track. All the evidence there is in the record is that furnished by the defendant's motorman, and he says that: "When I just saw her I hit my gong, and she kept coming until she got on the south-bound track. At that time when she stepped there, I was within probably perhaps 20 feet of her. She paused for an instant, and when I got within five feet of her she just deliberately walked over the track. I reversed my car, but she was too close, and it hit her." If the deceased saw the car coming, as her pausing on the south-bound track would indicate, and if the car was then within 20 feet of her, it was negligence for her to go upon the north-bound track in front of the approaching car and when it was within five feet of her, whether the car was running at 4, 5, 8, 10, or 15 miles an hour. The street was clear of obstruction, and there was plenty of light to see distinctly. The motorman saw the deceased. She saw the car, or could have done so if she had looked. The motorman saw her approaching the track. He sounded the gong. She continued to approach until she reached the south-bound track. There she paused. The car was then 20 feet from her. The motorman had a right to believe that she intended to remain in her then place of safety until the car passed. Instead of doing so, however, when the car was within five feet of her, she stepped on the track in front of the car, and attempted to cross the track. Then for the first time she placed herself in a place of imminent peril. Then it was too late to

stop the car in time to avoid the injury, and this, too, whether the car was running at the rate of 4 miles an hour, as the defendant's evidence shows, or at the rate of 15 miles an hour, as the plaintiff's evidence shows. There is no evidence whatever of willfulness, recklessness, or wantonness on the part of the operatives of the car. The operatives of the car kept a vigilant watch for persons approaching or on the track, and on the first appearance of danger stopped the car in the shortest time and space possible, and therefore obeyed the city ordinances. The accident was painful and shocking. But it would not have occurred except for the negligence of the deceased in going upon the track when the car was within five feet of her. The plaintiff, therefore, made out no case for the jury, and the court should have so declared. The verdict of the jury is for the right party, and in harmony with the true law. The verdict will not, therefore, be disturbed, no matter whether the court misdirected the jury or not.

This conclusion makes it unnecessary to consider the other points urged for a reversal, further than to say that the facts upon which such points rest were sharply contested in the trial court, and that court found them in favor of the defendant, and, as no abuse of discretion appears, this court will not disturb the finding of the trial court in this regard.

The judgment of the circuit court is affirmed.

BRACE, P. J., concurs. VALLIANT, J., concurs in the result. ROBINSON, J., absent.

GRIFFIN et al. v. McINTOSH.* (Supreme Court of Missouri. Division No. 2. June 9, 1903.) DEEDS-CONSTRUCTION-TESTAMENTARY DISPOSITION-ATTESTATION-DELIVERY-EVIDENCE.

1. A deed from father to son reciting that it was on the express condition that the grantor and his wife were to live on the farm conveyed until their death as "one of the family," and to hold the deed in their possession until their death, when it was to be delivered to the grantee or his heirs, was a testamentary disposition of the land to the son, and did not pass a present interest in the property.

2. Defendant's father executed a deed to defendant, which was not to take effect until the death of defendant's father and mother, when it was to be delivered to defendant or his heirs. Shortly before the father's death he stated to a witness, in defendant's presence, that he would give the deed up to defendant, that defendant "could take care of it," and that he would give it into defendant's "care to take care of it." The witness then procured the deed and delivered the same to defendant. Held, that such declarations were insufficient to show an intent of the father to waive the provisions of the deed and vest a present interest in the grantee.

Rehearing denied July 3, 1903.

3. A deed which was in effect a testamentary disposition of the property could not operate as a will after the grantor's death, where not properly attested as such.

Appeal from Circuit Court, Polk County; Argus Cox, Judge.

Action by Susan B. Griffin and others against James H. McIntosh. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

Ross & Sea, for appellants. J. B. Upton and C. H. Skinker, for respondent.

GANTT, P. J. This is an action by two of the daughters of Collon McIntosh, deceased, to recover each one undivided one-eighth of certain real estate in Polk county from the defendant, James H. McIntosh, their brother, who is a son of said Collon McIntosh, deceased. Collon McIntosh left surviving him at his death, March 23, 1896, his widow, Jane McIntosh, who afterwards died January 7, 1898, and eight children. After the death of the widow the plaintiffs brought this action of ejectment to be let into possession with their brother, the defendant, of two-eighths of the lands owned by their father in his lifetime, and of which defendant was and had been in the exclusive possession since the death of his mother, January 7, 1898. The defendant claimed title through a deed from his father and mother of date February 15, 1895, which is in words and figures following:

"This indenture, Made on the 15th day of February, A. D., One Thousand Eight Hundred and Ninety-five, by and between Collon McIntosh and Jane McIntosh his wife of the County of Polk and State of Missouri, parties of the First Part, and James H. McIntosh of the County of Polk and State of Missouri, party of the Second Part.

"Witnesseth, That the said parties of the First Part, in consideration of the sum of One Dollar, to us paid by the said party of the Second Part, the receipt of which is hereby acknowledged do by these presents Grant, Bargain and Sell, Convey and Confirm unto the said party of the Second Part, his heirs and assigns, the following described lots, tracts or parcels of land, lying, being and situate in the County of Polk and State of Missouri, to-wit: The northeast quarter of the northeast quarter of section No. Eighteen (18) also the northwest quarter of the northwest quarter Section No. Seventeen (17) less ten acres off the east side, and the southeast fourth of the northeast quarter Section No. Eighteen (18) all in Township Thirty-three (33) of Range No. Twenty-four (24) containing in all one hundred and ten acres.

"Upon this express condition that the said Collon McIntosh and Jane McIntosh is to live on the farm till their death as one of the family and to hold the deed in their possession till their death then this deed is to be delivered to James H. McIntosh or his heirs.

"To Have and to Hold the premises afore