Baxter, Gresham & Panney, for respondent. R. B. Galusha and Benton & Roberts, for appellant.

DICKINSON, J.-A recovery was sought in this action for injuries suffered by plaintiff from collision with a train of cars of the defendant at its crossing of a street in the city of Minneapolis. The right to recover is based upon alleged negligence in the running of the train. The answer puts this in issue and charges contributory negligence on the part of the plaintiff.

1. The evidence upon the trial tended to show that the train was running at the rate of from 12 to 15 miles an hour. The court received in evidence, against defendant's objection, an ordinance of the city which forbade the running of railroad locomotives or cars within the city at a rate of speed greater than six miles an hour. This is claimed to have been error, for the reason that the enactment or existence of the ordinance had not been pleaded. The objection cannot be sustained. The fact that the rate of speed at which the train was run was prohibited by the municipal law was competent evidence going to prove negligence. Kelly v. St. Paul, M. and M. Ry. Co.; 6 Am. and Eng. R. R. Cas. 93; Massoth v. Delaware and H. Canal Co., 64 N. Y. 524, and being evidence of the fact pleaded it might be proved, although the existence of the ordinance had not been alleged in the complaint.

2. It is urged that the undisputed evidence shows that the plaintiff contributed to the occurrence of the accident by his own negligence in not looking seasonably for approaching trains. The issue as to plaintiff's negligence was submitted to the jury. The question now presented is, does it conclusively appear that the plaintiff did not look up the line of the track as soon as he could do so, or as soon as common prudence demanded? Two streets intersect nearly at right angles. Along over these the railroad is laid. The plaintiff, travelling upon the other street, was approaching the railroad crossing, and his view in the direction whence the train came was obstructed by buildings, so that he could not have seen the cars until he approached the point of intersection of the streets so that he could see along the track past a building standing at the corner or junction of the two streets. This building stood 53 feet from the centre of the railroad track. Plaintiff was driving his span of horses with a sleigh at a slow trot. The horses were ordinarily easily managed, and had never been afraid of railroad cars. The plaintiff did see the train, as the evidence shows, after he passed the obstruction at the street corner, and before his horses came to the railroad track and tried to stop them, but they became frightened so that he could not control them, and ran across the track ahead of the locomotive, which struck the sleigh as it passed over the rails.

The evidence of the plaintiff as to whether he did look along the

...

track as soon as he came where he could do so is confused, and not in all respects consistent, so that it is not clear what he intended to state the fact to be. The following is a part of his testimony: "I saw the cars coming there on the corner, and that is all I saw, and then the horses jumped. . . . The cars came right on the corner there when I came there, and I saw them, and that made me afraid and the horses afraid. . . . When I saw the cars I was not a good ways past that house; I was right close by it. .. When I first saw the cars the engine was on Main Street" (on which plaintiff was travelling). There is other evidence indicating that the plaintiff did not look in the direction of the train until he had passed over a considerable part of the distance between the point where he might have seen the train and the place of collision, but we think the inference may fairly be drawn from the testimony above recited that he did look at the corner mentioned, and that the train was then very near to the crossing. It was the province of the jury to interpret the confused and seemingly contradictory testimony of the plaintiff, and since it may fairly be interpreted as showing that he did do all that is claimed he ought to have done in this respect, we may not reverse the conclusions of the jury and of the trial court. The issue was properly left to the jury.

3. The refusal of the court to charge the jury as requested in the fifth proposition submitted by defendant was not error. It requested the instruction that if the plaintiff had stopped to listen he might have heard the train approach, even though the bell was not ringing. The court was asked to assume too much. The evidence of plaintiff and of another man who was in the sleigh with him. went to show that they did listen, and could not hear the cars, and that no bell was rung until the train was very near the street crossing. Still-another witness testified to the fact that the sound of the train was not very perceptible, suggesting that the wind perhaps made it less distinct than usual. It does not appear whether any other cause prevented the plaintiff from hearing the train. This request is erroneous, too, in that the court were asked to say that it was the plaintiff's duty, on approaching the point where he could see the track, to keep his team in such control that he could stop it within the distance between where he could see the track, and the crossing itself, and if he failed he cannot recover. It is enough to say of this that the law does not conclusively presume negligence from his inability to control his horses, or to prevent their running away when they became frightened by the train.

4. Another instruction, requested by defendant and refused, was as follows: "In view of the fact that plaintiff could not see whether any train was coming until within 60 or 70 feet of the crossing, and in consideration of all the other undisputed facts in this case, it was plaintiff's duty as soon as he got where he could see the track to come to a full stop, and both look and listen for the coming train,

unless he could by other means discover the approaching danger in time to avoid it." This involves a similar error to that embodied in the previous request. The court was asked to say in effect that plaintiff's failure to stop his team with the conditions named was negligence. The evidence tends to show that he was unable to stop his horses by reason of their becoming suddenly frightened. The non-performance of impossible things does not constitute negligence.

The order refusing a new trial is affirmed.

Judge Mitchell was not present on argument and took no part in this decision.

See note, 6 Am. and Eng. R. R. Cas. 123.

FRICK

v.

ST. LOUIS, ETC., R. Co.

(Advance Case. Missouri, 1882.)

In passing upon a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence which a jury might, with any degree of propriety, have inferred in his favor; and if, when viewed in this light, it is sufficient to support a verdict in his favor, the demurrer should be sustained. But the court is not at liberty, in passing on such demurrer, to make inferences of fact in favor of the defendant to countervail or overthrow, either presumptions of law or inferences of fact, in favor of the plaintiff. Buesching v. St. Louis Gaslight Co., 73 Mo. 231, 12 Cent. L. J. 273; followed and approved.

At street crossings in a town or city where the public have a right to be, and where people are constantly passing and repassing, railroads should exercise a high degree of vigilance; the signals required by law for the protection of travellers upon the highway should be given, and the servants of the company in charge of the train should be at their posts observant of the track, and ready at a moment's notice to avert, if possible, any apprehended danger.

The plaintiff, an infant of tender years, was run over and injured by a gravel train of the defendant, midway between Grand avenue and Theresa street, in the city of St. Louis. The evidence was conflicting as to the length of time she was on the track before the injury, but the track was level, the view between the streets was unobstructed; the road was unfenced, there were dwellings on either side; there was a pathway leading across the track, and the train was approaching a crossing. Held, that if the servants of the defendant saw, or, by the exercise of ordinary care, under the circumstances stated, could have seen the plaintiff in time to have avoided injuring her, and failed to do so, the defendant is liable, and whether the servants of the defendant were, about the time of the injury, using such care was a question of fact for the jury.

An instruction asked in such case by the defendant, which exempted the defendant from liability, unless the train could have been stopped in

time to have prevented the accident after the dangerous situation of plaintiff was discovered, was properly refused, because not containing the qualifications, or by the exercise of ordinary care would have been discovered."

66

Where what constitutes a proper rate of speed depends upon the length and character of the train, the location and particular surroundings of the track and other circumstances, and no law or ordinance regulating the speed of trains and applicable to the case is in evidence, whether the rate of speed is improper or dangerous is a question of fact for the jury.

APPEAL from the St. Louis Court of Appeals.

HOUGH, J., delivered the opinion of the court.

This was an action in the name of Lulu Frick, a minor, by her next friend, to recover damages for personal injuries sustained by her by reason of having been run over by a gravel train of defendant, midway between Grand avenue and Theresa street, in the city of St. Louis.

The train which inflicted the injury consisted of flat cars, seven of which were empty and three loaded with stone, propelled by an engine in the rear thereof, to which was attached a tender and a caboose.

The negligence of the defendant which, it is alleged, occasioned the injury, is thus stated in the petition: That immediately before said accident occurred, and while said train was moving toward the said Lulu, the servants and employees of defendant in charge of said train, were duly warned of the approaching danger to said child by one Mrs. Hahn, who ran rapidly toward said train, and who, by loud cries and violent gestures, besought said servants and employees to stop said train of cars; but the said servants and employees carelessly, negligently, and recklessly disregarded said warning, although they had ampie time and means to stop said train in season to avert said accident. That the said injuries to the said Lulu Frick, resulting in the loss of her arm and leg, was caused by the carelessness and negligence of defendant, its servants and employees, in neglecting and failing to fence the said road, or place watchmen along the same, whereby the said Lulu Frick was permitted to wander upon said track, and the negligent and reckless disregard of the warning aforesaid, and in failing and neglecting to observe or notice the said Lulu Frick upon said track, or provide any watchmen upon the rear end of said train, to see that said track was clear, and in causing said train to be moved then and there at a dangerous speed. That said Lulu Frick was in full view of said train of cars for a considerable length of time before said train of cars reached her. That, by the exercise of ordinary prudence, care or watchfulness upon the part of the employees in charge of said train, the said Lulu would have been observed, the train stopped, and the accident averted.

The plaintiff was a little more than two years of age when in

jured, and was quite active. She resided with her parents, about two hundred feet north of defendant's track. Mrs. Maggie Hahn, who resided in the house next to that of plaintiff's parents, testified that a short time previous to the accident, which occurred between nine and ten o'clock in the morning, she left her house with her little boy to look for her cow. That she went straight south to the railroad track, leaving a path which runs from the vicinity of plaintiff's house across the railroad, a little to her right. She then walked west along the railroad to Grand avenue, a distance of about three hundred feet, and not finding her cow there she sent her son to the next crossing, the distance to which is not stated, and when he returned he said to her, "A train is coming, get off the track." She immediately turned, saw the train in question, and also saw Lulu Frick, the plaintiff, standing in the middle of the track, five or six feet west of where the path crosses the track. The cars were then about one hundred and fifty or one hundred and sixty feet from the child, and were running about as fast as witness could run. She at once ran toward the child, waving her hands to attract the attention of the men on the train, calling to them to stop, that there was a child on the track, and calling also to the child to get off the track. The child attempted to get off, but was run over by several cars, which mangled one leg and arm, which were afterwards amputated. The track was level and almost straight, and the witness said the child could have been seen a great distance. There was a brakeman on the front car, and several other persons between that car and the engine. A locomotive engineer and machinist testified that the train could have been stopped in seventy feet after the engineer received the signal, if running at four miles an hour. How the plaintiff got upon the track does not appear. The witness supposed that she followed Mrs. Hahn. The defendant demurred to this evidence. The demurrer was overruled, and the action of the court is alleged as

error.

In the case of Buesching v. St. Louis Gaslight Co., 73 Mo. 219231, [12 Cent. L. J. 273] this court said: "In passing upon a demurrer to the evidence, this court is required to make every inference of fact in favor of the party offering the evidence which the jury might, with any degree of propriety, have inferred in his favor; and if, when viewed in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained. Wilson v. Board of Education, 63 Mo. 137. But the court is not at liberty, in passing on such demurrer, to make inferences of fact in favor of the defendant to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff; would clearly be usurping the province of the jury."

As the train in question was moving through the suburbs of a city, between two streets, about seven hundred feet apart, along an