coach, although the conductor had warned | opinion, the public good and welfare are the passengers to keep their seats. The child, not standing steadily upon its feet, was thrown forward by the force of the coupling into the space between it and the freight car just attached, and was in imminent danger of being crushed. The mother, who received herself no injury from the coupling, ran to the front door, down the steps, and, thrusting her arm under the coach, extricated the child, but at the expense of having her own arm badly broken and permanently injured. Her husband sued the company for damages, but judgment was rendered against him on two grounds. The first was that the company was not guilty itself of any negligence; that it had no reason to anticipate that a child of that age would be permitted to be upon the platform; and, second, because the mother, who was injured without fault on the part of the company, had brought her injuries upon herself by allowing the child to go upon the platform. The act on her part which barred the action was not her conduct in placing her arm under the moving car to save her child, but her antecedent act of allowing it to have gone upon the platform. In the other case (that of Peyton v. Texas & P. R. Co. 41 La. Ann. 861, 17 Am. St. Rep. 430, 6 So. 690), judgment was rendered in favor of the plaintiff. The defendant company in that case was adjudged guilty of negligence in running a train upon a thoroughfare of the city of Shreveport, in front of the Fair Grounds, where a large number of persons were congregated in and around its tracks, at a dangerous rate of speed, in charge of a fireman, instead of a regular, skilled engineer; and, by reason of this negligence, an inebriated man, standing on its tracks in front of the approaching car, with his back to it, was about to be crushed, when a friend went to his rescue, and pulled him successfully off the track, but, in so doing, got struck and injured himself by the car. The defense of contributory negligence on the part of the plaintiff was not sustained. The court evidently considered that the plea of contributory negligence set up by the company which was itself at fault, is one which, though inuring to the company, does so by way of consequence or result, and is not one granted directly to the company in aid of any right which it has itself; that the plea in bar of an action is one which has grown up under jurisprudence, and not by any direct, positive law in aid of the general good and welfare, in furtherance of the two maxims, Nul prendra avantage de son tort, and Volenti non fit injuria, and, being the act of the court, is more or less subject to its control or modification in any given case, where, in its better to be subserved by not applying it, as where the thing done is not in fact to be considered a fault, but a meritorious act. The case at bar differs from the Peyton Case in this, that Peyton was injured by being advanced upon and struck by the car of the company while he was in or alongside the tracks of the company, running through a public thoroughfare, while in this case Whitworth himself advanced upon and took hold of the wire of his company, which he had been using, in its dangerous condition. In both cases, however, the defendant company was guilty of negligence. In the case of Corbin v. Philadelphia, 195 Pa. 461, 49 L. R. A. 715, 78 Am. St. Rep. 825, 45 Atl. 1070, this question was very thoroughly considered. The case will be found reported in the 49th volume of the Lawyers' Annotated Reports, accompanied by very copious and valuable notes and extracts taken from decisions of other states. In the case quoted, the city authorities of Philadelphia had caused a trench to be dug in one of the streets of that city, which became filled with a deadly gas, and which they had abandoned, leaving it without the necessary and proper safeguards to protect the passing public from falling in it. A child went into the trench to recover his ball, which rolled into it, and became overcome by the gas, whereupon a stranger went into the trench, and became himself overcome by the gas, and died. The child revived and escaped injury. The mother of the deceased brought suit against the city to recover damages for the death of her son, and judgment in favor of the defendant was rendered by the lower court, and reversed and remanded by the supreme court of Pennsylvania, to be submitted to the jury, three judges dissenting. That case closely resembles the present one in its legal aspects. The supreme court, in the course of its opinion, said: “A rescuer-one who, from the most unselfish motives, prompted by the noblest impulses that can impel man to deeds of heroism, faces deadly peril-ought not to hear from the law words of condemnation of his bravery because he rushed into danger to snatch from it the life of a fellow creature imperiled by the negligence of another; but he should rather listen to words of approval, unless regretfully withheld on account of the unmistakable evidence of his rashness and imprudence. This, conscience and reason approve, and the best judgment of thoughtful and intelligent judges has declared it to be the law of the land." The court quoted approvingly from Eckert v. Long Island R. Co. 43 N. Y. 503, 3 Am. Rep. 721, which it declared was fairly regarded as the leading case upon the sub- the precise danger he was himself incurring ject. In the latter case the court said: "Negligence implies some act of commission or omission wrongful in itself. Under the circumstances in which the deceased was placed, it was not wrongful in him to make every effort in his power to rescue the child, compatible with a reasonable regard for his own safety. It was his duty to exercise his judgment as to whether he could probably save the child without serious damage to himself. If, from the appear ances, he believed that he could, it was not negligence to make an attempt to do so, although believing that possibly he might fail and receive an injury himself. He had no time for deliberation. He must act instantly, if at all, as a moment's delay would have been fatal to the child. The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness, in the judgment of prudent persons." In the case at bar the jury evidently considered that Whitworth was not guilty of rashness in acting as he did. We ourselves think that he was not fully advised of the precise existing situation, and of the condition of Potts as he then was, hanging upon the pole; that he was not advised as to when he took hold of the wire; and that, even if he heard the warning to him of Holt and Clanton not to touch the wire, he did not know the grounds upon which that warning was based. He may well have conceived that the advice was being given to himself to act from selfish motives, and from the selfish side of his nature, and to take no risks whatever in the premises,— advice which his own sense of duty and regard for the safety of others led him not to follow. We certainly cannot impute to him an intention to commit suicide. We do not think we are called upon in this case to go back of the conclusions of fact reached by the jury. For the reasons herein assigned, the judgment appealed from should be, and it is hereby, affirmed, at costs of appellant. Land, J., recused, having presided in the court below. A petition for rehearing having been filed, Provosty, J., on April 11, 1904, handed down the following additional opinion: On further consideration, the amount of the judgment in this case is reduced to $5,000, and, as thus amended, the decree heretofore handed down is adhered to, and a rehearing is refused. MISSOURI SUPREME COURT. Herman SCHUBACH v. Jesse A. McDONALD, Judge of St. Louis 1. Five Other Cases. (......Mo......) Mere failure of a petition to state a cause of action, or the defective statement of a good cause of action, does not deprive the court of jurisdiction. 2. A court of equity has jurisdiction to enjoin ticket brokers from disposing of, or attempting to transfer, tickets which NOTE. For a case in this series holding that the return part of an excursion ticket containing no restrictions is good in the hands of a transferee, see Carsten v. Northern P. R. Co. 9 L. R. A. 688. As to assignability of railroad ticket generally, see Nichols v. Southern P. Co. 18 L. R. A. 55, and note. As to reasonableness of rule forbidding stopover on railroad tickets, see, in this series, Robinson v. Southern P. Co. 28 L. R. A. 773, and note. As to reasonableness of condition that re they have purchased with notice from persons who agreed that they should not be transferred. 3. A petition for injunction to restrain ticket brokers from dealing in nontransferable tickets, which does not show that it is applicable to a concrete case, is brought within the jurisdiction of the court under the doctrine of "aider" by a return which shows that defendants have in possession at the time tickets of the value of which they will be deprived by the issuance of the injunction. 4. Prohibition will not lie to restrain the enforcement of an injunction against future dealings in nontransferable railroad tickets, where the court had juris turn part of excursion ticket shall be stamped by agent at place of departure, see Watson v. Louisville & N. R. Co. 49 L. R. A. 454. As to validity of statutes against ticket brokerage or "scalping," see, in this series, Burdick v. People, 24 L. R. A. 152, and note; State v. Corbett, 24 L. R. A. 498; People ex rel. Tyroler v. Warden of New York City Prison, 43 L. R. A. 264; and Jannin v. People, 53 L. R. A. 349. As to validity of ordinance forbidding sale of gift of railway transfer, see Ex parte Lor enzen, 50 L. R. A. 55. diction of the petition because of tickets actually in the possession of defendants; since, if error exists, it must be corrected by the proper process, and not by prohibition. 5. A purchaser of a special railroad ticket at a reduced rate, which on its face recites that it is nontransferable, and that it is supported by the consideration of a reduced rate, has no right to transfer it, a deprivation of which will give him a cause of complaint. 6. No assignee of a railroad ticket sold at a reduced rate, and which re eltes that fact on its face, and also that it is nontransferable, can acquire any right in the ticket as a contract for transportation, which he can assign, or which will give him a right to complain in case he is forbidden to assign it. 7. A railroad company may issue spe Messrs. Judson & Green and Henry W. Bond, for petitioners: There is no primary equity in the petition for injunction, and no existing controversy as to present existing property rights. State ex rel. Merriam v. Ross, 122 Mo. 457, 23 L. R. A. 534, 25 S. W. 947; State ex rel. Kenamore v. Wood, 155 Mo. 445, 48 L. R. A. 425, 56 S. W. 474. The writ of prohibition in Missouri is one of common law and statutory rights, and lies to restrain an inferior court from unauthorized acts, in cases of which such court has jurisdiction, as well as in those of which it has none. It lies in cases of excess of jurisdiction as well as want of jurisdiction. St. Louis, K. & S. R. Co. v. Wear, 135 cial tickets at a reduced rate, which shall be nontransferable, either lim-Mo. 230, 33 L. R. A. 341, 36 S. W. 357, 658; ited or unlimited as to time or occasion; and, in case the contract of which the ticket is the evidence is violated by a transfer of the ticket, it may invoke the jurisdiction of a court of equity to cancel the contract because of the fraud; or, if the ticket is used by another, it may maintain an action for damages for breach of the contract. Spelling, Inj. & Extr. Rem. § 1726; Mo. Rev. Stat. 1899, §§ 4448 et seq.; State ex rel. McCaffery v. Aloe, 152 Mo. 466, 47 L. R. A. 393, 54 S. W. 494; State ex rel. Young v. Oliver, 163 Mo. 696, 64 S. W. 128; State ex rel. St. Louis & K. R. Co. v. Hirzel, 137 Mo. 447, 37 S. W. 921, 38 S. W. 961; State ex has jurisdiction is presented by a peti- 333, 31 S. W. 1037; State es rel. Kenamore rel. Ellis v. Elkin, 130 Mo. 105, 30 S. W. 8. A concrete case of which the court tion on behalf of a railroad company to enjoin ticket brokers from buying and selling special tickets made nontransferable on their faces, not only as to those tickets which have already been issued, but as to such as will be issued in the future, where the in junction is to be made applicable only after the contract has been entered into, the ticket issued, and property rights thereunder have accrued. 9. Equity has jurisdiction to enjoin ticket brokers from trafficking in nontransferable railroad tickets where there is no adequate remedy at law because of their insolvency and the frauds which, by such traffic, will be perpetrated upon the railroads and innocent purchasers of tickets which cannot be used, and because of the many suits which would be necessary if an attempt should be made to recover the damages in each case separately. 10. In granting an injunction to prohibit ticket brokers from violating the rights of railroad companies in contracts represented by special nontransferable tickets to be issued by them, the court does not prescribe a rule of civil conduct, nor invade the prerogative of the legislature, nor establish government by injunction. (Valliant and Gantt, JJ., dissent.) (December 23, 1903.) v. Wood, 155 Mo. 445, 48 L. R. A. 425, 56 S. W. 474; State ex rel. Anheuser-Busch Brewing Asso. v. Eby, 170 Mo. 497, 71 S. W. 52; School Dist. No. 6 v. Burris, 84 Mo. App. 663. It is immaterial that the petitions for injunction may have been demurrable as failing to state a cause of action. The prohibition will lie, nevertheless, when the excess of jurisdiction involves irreparable injury to the defendant. State ex rel. Merriam v. Ross, 122 Mo. 435, 23 L. R. A. 534, 25 S. W. 947; State ex rel. Ellis v. Elkin, 130 Mo. 90, 30 S. W. 333, 31 S. W. 1037; State ex rel. Kenamore v. Wood, 155 Mo. 425, 48 L. R. A. 425, 56 S. W. 474. The destruction of the business of petitioners constituted an irreparable injury without other adequate remedy by appeal or writ of error. State ex rel. Anheuser-Busch Brewing Asso. v. Eby, 170 Mo. 526, 71 S. W. 52; St. Louis, K. & S. R. Co. v. Wear, 135 Mo. 257, 33 L. R. A. 341, 36 S. W. 357, 658. The recitals in the petitions for injunetion, of the coming Louisiana Purchase Exposition in St. Louis, are wholly disinPPLICATION for a writ of prohibition genuous and misleading, as no relief is A to prevent the judges of the Circuit sought with reference to any specific ticket Court of the City of St. Louis from enforcing injunctions which had been granted by them to restrain petitioners from trafficking in railroad tickets. Rule to show cause discharged. The facts are stated in the opinions. or tickets issued or to be issued for such exposition, and the injunction order of the circuit court is not limited to any such specific ticket or specific occasion. The recital is obviously misleading for the purpose of obscuring the real purpose, that of throt tling in perpetuo the business of defendants | sent fixed right in himself to the land afby a universal injunction. fected or threatened with injury. 16 Am. & Eng. Enc. Law, 2d ed. p. 431; Black v. Huggins, 2 Tenn. Ch. 782; Hilton v. Granville, 4 Beav. 130, 11 L. J. Ch. N. S. 388, Craig & Ph. 283; Clifton v. Robinson, 16 Beav. 355. It was our right and duty, while denying the jurisdiction in limine, to show that, upon the plaintiffs' own theory, the equities relied on for an injunction did not exist. State ex rel. Young v. Oliver, 163 Mo. 679, 64 S. W. 128; High, Extr. Legal Rem. § 765; State ex rel. McCaffery v. Aloe, 152 Mo. 466, 47 L. R. A. 393, 54 S. W. 494. It is for the legislature, and not for the courts, to determine, in advance, the right of defendants to engage in the business of buying and selling unused railroad tickets. It is the exclusive province of the law-making power to lay down and define rules of civil conduct which are unrelated to the judicial protection of existing property rights or issues thereon. Montesquieu, Spirit of Laws, p. 174; Mill, Representative Government, 326; 1 Pom. Eq. Jur. 65; Cooley, Principles of Const. Law, p. 44; 12 Law Quarterly Rev. p. 362; Osborn v. Bank of United States, 9 Wheat. 738, 6 L. ed. 204; Interstate Com. Com. Rep. 1896, pp. 327-344; Jones v. Perry, 10 Yerg. | 72, 30 Am. Dec. 430; Taylor v. Place, 4 R. I. 336; 1 Beach, Iaj. § 20; Hughlett v. Harris, 1 Del. Ch. 349, 12 Am. Dec. 104; 1 Bl. Com. p. 44; Ellsworth v. Hale, 33 Ark. 633; Bates v. Kimball, 2 D. Chip. (Vt.) 77; State ex rel. McCaffery v. Aloe, 152 Mo. 456, 47 L. R. A. 393, 54 S. W. 494; Tanner v. Wallbrunn, 77 Mo. App. 262. A court of equity cannot enjoin where there is no existent basis of facts affording a present right which is directly threatened by the action sought to be enjoined. It has no power to enjoin, unless the conditions have already arisen and come into being, which could be injured by the acts sought to be restrained. High, Inj. §§ 7, 9, 10, 23; State ex rel. McCaffery v. Aloe, 152 Mo. 479, 47 L. R. A. 393, 54 S. W. 494; Business Men's League v. Waddill, 143 Mo. 498, 40 L. R. A. 501, 45 S. W. 262. Therefore an injunction cannot be awarded to allay "mere apprehension." German Evangelical Lutheran Church v. Maschop, 10 N. J. Eq. 57; Mariposa Co. v. Garrison, 26 How. Pr. 448; Watrous V. Rodgers, 16 Tex. 410; People v. Canal Board, 55 N. Y. 390; Lester Real Estate Co. v. St. Louis, 169 Mo. 227, 69 S. W. 300; 16 Am. & Eng. Enc. Law, 2d ed. p. 361. So to enjoin trespassers or nuisances, complainant must first show title and pre Sullivan v. Moreno, 19 Fla. 200; Western Min. & Mfg. Co. v. Virginia Cannel Coal Co. 10 W. Va. 250; Gleason v. Jefferson, 78 Ill. 399. The order of the circuit court involves the substitution of attachments in contempt in its application to future issues of tickets for future occasions in place of the hearing and determination by the chancellor according to the special circumstances of the special case; and, therefore, violates the fundamental limitations of injunction in remedial procedure. 17 Am. Bar Asso. (1894), address by Charles Claflin Allen. This extraordinary and unprecedented order is not warranted for the protection of the business of the railroad companies. The future occasions when the right to issue excursion tickets may be exercised are not capable of judicial protection until the occasions arise. The abstract right must assume a concrete form. before it becomes property in the judicial sense, capable of judicial protection. 2 Austin, Jurisprudence, §§ 815, 817; 1 Bl. Com. 138; State ex rel. Star Pub. Co. v. Associated Press, 159 Mo. 449, 51 L. R. A. 151, 81 Am. St. Rep. 368; 60 S. W. 91; St. Louis v. Hill, 116 Mo. 533, 21 L. R. A. 226, 22 S. W. 861. The business of the ticket brokers is a lawful business, protected by the constitutional guaranties, and is the outgrowth of conditions created by the railroads themselves; and the incidental evils arising therefrom must be corrected by the exercise of the legislative power, and by the railroads themselves in providing for the redemption of unused tickets. People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116, 43 L. R. A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006; New York C. & H. R. R. Co. v. Reeves, 41 Misc. 490, 85 N. Y. Supp. 28, 30 N. Y. L. J. No. 21, 3 Wholesale Lumber Dealers' Asso. v. NorInters. Com. Rep. 337 et seq.; National folk & W. R. Co. 9 Inters. Com. Rep. 103. The interruption and destruction of business by this attempted exercise of legislative power, by laying down a rule of civil conduct for the future, with no concrete case presented for the application of the judicial power, is violative of the constitutional guaranties of due process of law in the Federal and state Constitutions. U. S. Const. 14th Amend.; Mo. Const. art. 2, § 30; Hunt v. Searcy, 167 Mo. 158, 67 S. W. 206; State ex rel. Hadley v. Washburn, 167 Mo. 680, 90 Am. St. Rep. 430, 67 S. W. 592; State ex rel Wyatt v. Ashbrook, 154 Mo. 374, 48 L. R. A. 265, 77 Am. St. Rep. 765, 55 S. W. 627; State v. Julow, 129 Mo. | C. Ct. N. O. La.; Boarman, J.); Boston & 172, 29 L. R. A. 257, 50 Am. St. Rep. 443, 31 S. W. 781; Brannon, 14th Amend. pp. 295297; Cooley, Const. Lim. 92. Messrs. Johnson & Richards and Charles Claflin Allen, for defendants: The alternative writ of prohibition in this case should be quashed, because the court below had jurisdiction of the parties and of the subject-matter, and full power and authority to issue the injunctions which were | issued by the several divisions of the St. Louis circuit court. M. R. Co. v. Fogg (Super. Ct. Suffolk Co. A writ of prohibition is not a writ of right; before it is granted two things must appear: First, that the law sanctions it, and, second, that a sound judicial discretion commends it. Davison v. Hough, 165 Mo. 561, 65 S. W. 731; High, Extr. Legal Rem. § 765; State ex rel. Smith v. Levens, 32 Mo. App. 520; State ex rel. McCaffery, v. Aloe, 152 Mo. Mo. Rev. Stat. 1899, § 4488; 23 Am. & 466, 47 L. R. A. 393, 54 S. W. 494. Eng. Enc. Law, 2d ed. p. 195. The thing complained of is not the statement of a defective cause of action by the plaintiffs below, but the defective statement of a good cause of action. Such defect can be reached by motion to make more definite and certain in the injunction proceeding below. This writ is not allowed to usurp the functions of an appeal, writ of error, or certiorari. State ex rel. Laclede Bank v. Lewis, 76 Mo. 376; State ex rel. Brainerd v. Thayer, 80 Mo. 436; State ex rel. Ellis v. Elkin, 130 Mo. 103, 30 S. W. 333, 31 S. W. 1037; Wand v. Ryan, 166 Mo. 646, 65 S. W. 1025; State ex rel. Hofmann v. Scarritt, 128 State ex rel. Delmar Jockey Club v. ZachMo. 331, 30 S. W. 1026. ritz, 166 Mo. 307, 89 Am. St. Rep. 711, 65 Injuries to "business" are the subject- S. W. 999; Olney v. Eaton, 66 Mo. 563; matter of injunction. Hamilton-Brown Shoe Co. v. Saxey, 131 Mo. 212, 52 Am. St. Rep. 622, 32 S. W. 1106; Vegelahn v. Guntner, 167 Mass. 99, 35 L. R. A. 722, 57 Am. St. Rep. 443, 44 N. E. 1077; Springhead Spinning Co. v. Riley, L. R. 6 Eq. 551, 37 L. J. Ch. N. S. 889, 19 L. T. N. S. 64, 16 Week. Rep. 1138; Sherry v. Perkins, 147 Mass. 212, 9 Am. St. Rep. 6S9, 17 N. E. 307. The railroad company has a property in tickets. State v. Corbett, 57 Minn. 345, 24 L. R. A. 498, 4 Inters. Com. Rep. 694, 59 N. W. 317; People ex rel. Tyroler v. Warden of City Prison, 157 N. Y. 116, 43 L. R. A. 264, 68 Am. St. Rep. 763, 51 N. E. 1006. State ex rel. McCaffery v. Aloe, 152 Mo. 466, 47 L. R. A. 393, 54 S. W. 494; State ex rel. Hawes v. Withrow, 154 Mo. 397, 55 S. W. 460; State ex rel. Atty. Gen. v. Gill, 137 Mo. 681, 39 S. W. 276; State ex rel. St. Louis & K. R. Co. v. Hirzel, 137 Mo. 435, 37 S. W. 921, 38 S. W. 961; State ex rel. Young v. Oliver, 163 Mo. 679, 64 S. W. 128; State ex rel. Kenamore v. Wood, 155 Mo. 425, 48 L. R. A. 425, 56 S. W. 474; State ex rel. Union Depot R. Co. v. Southern R. Co. 100 Mo. 59, 13 S. W. 398. The plaintiffs here have had "due process of law" in its highest form,-a court of equity. Scott v. McNeal, 154 U. S. 34, 38 L. ed. 896, 14 Sup. Ct. Rep. 1108; Barber Asphalt Railroads are compelled to serve all of the Paving Co. v. Ridge, 169 Mo. 376, 68 S. W. public upon the same terms, but are ex- 1043; Burdick v. People, 149 Ill. 600, 24 L. pressly authorized by law to issue nontrans- | R. A. 152, 41 Am. St. Rep. 329, 36 N. E. ferable tickets at reduced rates, provided 948, 952. such tickets are offered to all of the public alike, and the legal character of these nontransferable "mileage," "excursion," and "commutation" tickets is fixed by statute. Mo. Rev. Stat. 1899, § 1127; U. S. 1 Rev. Stat. Supp. chap. 382, p. 690, § 22; U. S. 2 Rev. Stat. Supp. p. 369, chap. 61 U. S. Comp. Stat. 1901, p. 3171; Mosher v. St. Louis, I. M. & S. R. Co. 127 U. S. 390, 32 L. ed. 249, 8 Sup. Ct. Rep. 1324. The courts have repeatedly enjoined ticket brokers from dealing in nontransferable tickets. Nashville, C. & St. L. R. Co. v. McConnell, 82 Fed. 65; Rinner v. Lake Shore & M. S. R. Co. 23 Ohio C. C. 294; Pennsylvania R. Co. v. Beekman (D. C.) 30 Wash. L. Rep. 715; Louisville & N. R. Co. v. Bitterman (U. S. Messrs. George P. B. Jackson and E. S. Robert also for defendants. Marshall, J., delivered the opinion of the court: These are original proceedings against the defendant judges of the circuit court of the city of St. Louis to prohibit them from further entertaining jurisdiction in certain injunction suits, pending before them in said court, wherein the railroads that are joined as defendants are the plaintiffs, and the plaintiffs herein are the defendants. liminary rule was issued by one of the judges of this court, the defendants made return thereto, and the plaintiffs moved for judgment upon the pleadings. The controversy is this: A pre The defendant |