tiff alleges it sold and delivered to defend- 1 himself had agreed to go ahead and sue for the ant. The jury returned a verdict for de- whole damage to the whole shipment, he could

i fendant, and the cause is here on the appeal nership live stock, since there was no showing of plaintiff.

of his partner's intention to transfer his inThe only errors alleged and pressed upon terest in the cattle or his interest in the claim our attention by counsel for plaintiff relate for damages to the plaintiff. to matters of exception, and we find the ab- Cent. Dig. $362-368; Dec. Dig. Cm199.]

[Ed. Note. For other cases, see Partnership, stract of record in such condition as to preclude us from reviewing them. There is no 5. PARTNERSHIP Cm199 — ACTION – PARTIES

PLAINTIFF. proper separation of record proper and bill No formal assignment by a partner of his of exceptions in the abstract, and no recital interest in partnership property is necessary to of an exception to the order overruling the enable another partner to sue alone for injury motion for a new trial. The saving of an ex- fer the interest to the suing partner is sufficient.

thereto. Any action showing an intent to transception to the overruling of the motion for

[Ed. Note.-For other cases, see Partnership, a new trial is a necessary condition to the Cent. Dig. $$ 362-368; Dec. Dig. Om 199.] review on appeal of matters of exception, and

Appeal from Circuit Court, Jackson Counthe failure of the bill of exceptions, as repro- ty; 0. A. Lucas, Judge. duced in the abstract, to show such excep

"Not to be officially published.” tion, precludes the consideration of any er

Action by J. E. Hardesty against the Atchirors, except those appearing on the face of son, Topeka & Santa Fé Railway Company. the record proper. No such errors are as- Judgment for plaintiff, who appeals from an signed or appear in the record, and there is order granting defendant a new trial as to nothing for us to review. Reed v. Moss, 258 the second count of the complaint, while deMo. 172, 167 S. W. 523; Recar v. Recar, 171 fendant appeals from the overruling of its Mo. App. 632, 154 S. W. 423; Reimer v. Ce-motion for new trial as to the first count. ment Co., 177 Mo. App. 198, 164 S. W. 181; Judgment aflirmed as to both counts. Hays v. Foos, 223 Mo. loc. cit. 423, 122 S.

Thomas R. Morrow, Geo. J. Mersereau, and W. 1038; Ferguson v. Baker, 187 Mo. App.

John H. Lathrop, all of Kansas City, for ap619, 173 S. W. 41.

pellant. J. Walter Farrar and E. Y. Blum, The judgment is affirmed. All concur.

both of Kansas City, for respondent.

TRIMBLE, J. Plaintiff, having an arHARDESTY v. ATCHISON, T. & S. F. RY. rangement with defendant's station agent for CO. (No. 11632.)

the shipment of a drove of cattle, placed (Kansas City Court of Appeals. Missouri. Oct. them in defendant's stockyards late Monday 4, 1915.)

night, preparatory to loading them early 1. CARRIERS Own 205—CARRIAGE OF LIVE STOCK Tuesday morning. During the night, and -INITIATION OF CARRIER'S DUTY.

while waiting for the cars, the stockyard's The duty of a carrier of live stock begins fence was broken down and the cattle eswhen the stock is delivered into its receiving pens for shipment.

caped, involving expense to recover them and [Ed. Note. For other cases, see Carriers, causing loss by reason of 'shrinkage and poor Cent. Dig. && 918, 920, 923; Dec. Dig. Omw205.] appearance for the market. This suit is for 2. CARRIERS, 215CARRIAGE OF LIVE STOCK the resulting damage, and is based upon de-DUTY OF CARRIER AS TO RECEIVING PENS. fendant's failure to maintain adequate and

It was the duty of a carrier of live stock to suitable pens in which to hold cattle preparakeep its receiving pens in reasonably safe condition to hold cattle offered for shipment until tory to shipment over defendant's road. they could be loaded, considering the ordinary The petition is in two counts. The cattle conditions attending cattle in such situation and consisted of 84 head belonging to plaintiff their ordinary habits and propensities. [Ed. Note. For other cases, see Carriers,

individually and 120 head belonging to BurCent. Dig. $ 923; Dec. Dig. Om 215.]

ton & Hardesty, a partnership of which plain3. CARRIERS Om 230_CARRIAGE OF LIVE Stock tiff was a member. The first count covered -ACTION FOR INJURY-QUESTION FOR JURY. the individual cattle, and the second count

In an action for damage to a shipment of covered the partnership cattle. A trial recattle from their escape from defendant rail- sulted in a verdict in plaintiff's favor for road's receiving pens, issues of whether the cattle were normal, or wild and unruly, and whether $325 on the first count and $350 on the secthe pens were not reasonably secure, held for the ond. A new trial was granted as to the jury under the evidence.

second count, on the ground that the cause [Ed. Note.--For other cases, see Carriers, of action thereon was not shown to be in Cent. Dig. $8 961, 962; Dec. Dig. Om 230.]

plaintiff ; but, as to the first count, the mo4. PARTNERSHIP Om 199 - ACTION - PARTIES tion for new trial was overruled. WherePLAINTIFF.

Where, in an action for damage to cattle upon both sides appealed, plaintiff from the from their escape from defendant railroad's re-order granting defendant a new trial as to ceiving pens, plaintiff sued both for injuries to the second count, and defendant on account animals owned by him individually and those of the overruling the motion as to the first owned by him in partnership with another, failing to show that his partner had assigned to him count. We will dispose of defendant's aphis interest in the cattle, only showing that he peal first.

[1] It is insisted that a demurrer to both evidence that these cattle were neither wild counts should have been sustained, and the nor unruly. There was no trouble in getting case taken from the jury. Defendant does them into the yards, although it was dark not deny that its duty is to maintain rea- when they put them in. As one witness sonably secure facilities for holding cattle said, who seems to have had great experipreparatory to loading them for shipment, ence with all sorts of cattle: “They did not and that it invites patrons of its road to use appear to be a wild bunch of cattle." those facilities for that purpose, nor that, There was also evidence from which the in this case, its duty to plaintiff began as jury could find that the yard fence was not soon as the cattle were delivered in the pens. reasonably secure for the purpose of holding Nor does it deny that it is liable if said pens cattle under ordinary conditions. According were not reasonably safe and secure, and the to evidence introduced by plaintiff, some of cattle escaped by reason thereof. Its con- the posts were broken off and others were tention is that there is no evidence to show pushed over. Those that were broken were that the yards were not reasonably secure, "well rotted"; that is, the outer ring or and that, upon the evidence submitted, it is white of the post was rotten, leaving a small more likely the cattle escaped because of core or heart in the center. According to their wild nature and vicious propensities this testimony, also, most of the posts of the than that they escaped on account of the in- fences to the other stockyards along defendsecurity of the pens under ordinary circum- ant's line-indeed, practically all of themstances, or, at least, that the evidence leaves were six-inch posts, while these that were it to conjecture whether the escape was from broken were four-inch posts. the one cause or the other. It is also con- Without holding that it is necessary to tended that, since the evidence shows it show knowledge of a defective condition on erected sound and suitable fences, that con- the part of the defendant, or that the condition is presumed to continue, and defendant dition must have existed for a time long is not liable unless knowledge of a defec-enough to have enabled defendant to have tive condition is brought home to defendant, discovered it, we may go so far as to place or unless it is shown that a defective condi- the matter even upon the plane defendant tion had existed for such length of time as insists upon, since there was evidence that that kuowledge thereof must be presumed, just outside the fence, where the break ocneither of which, according to defendant's curred, an old roadway had worn the ground view, was shown in this case.

down to a level lower than the ground of In Mason v. Missouri Pacific R. Co., 25 the stockyards, and the rains had washed Mo. App. 473, it was held that the liability the dirt away from the outside of the posts. of the company begins at the time the cattle The soil was a loose loam. This would sufare delivered in the pens preliminary to their ficiently show that the yards were not reacarriage, and that the carrier is in duty sonably secure, and also that it must have bound to keep the pens in a reasonably safe existed for some time, since such conditions and secure condition. This rule has been would not arise suddenly. adhered to ever since. McCullough v. Wa

It is true no one can tell whether the catbash Western Ry. Co., 34 Mo. App. 23; tle got to fighting or milling around and Cooke v. Kansas City, etc., R. Co., 57 Mo. broke the fence. But cattle under ordinary App. 471, loc. cit. 478; Traoy V. Chicago conditions will sometimes fight, and fre& Alton R. Co., 80 Mo. App. 389, loc. cit. 392. quently will get to milling around; and The duty of the carrier begins when the defendant's duty is to provide a yard that stock is delivered into the pens. Covington will hold cattle under ordinary conditions. Stockyards Co. v. Keith, 139 U. S. 128, 11 We think there was ample evidence from Sup. Ct. 469, 35 L. Ed. 73. The same rule which the jury could find that the yard was applies to pens as to cars. Lackland v. Chi- not reasonably secure for the purpose for cago & Alton R. Co., 101 Mo. App. 420, 74 s. which it was intended. Defendant's conW. 505; Pruitt v. Hannibal & St. Joseph R. tention that a demurrer to the evidence Co., 62 No. 527.

should have been sustained is therefore dis[2, 3] We are convinced the court did right allowed. in sending the case to the jury. The pur- [4, 5] The trial court granted defendant a pose of the pens was to hold the cattle un- new trial as to the second count, for the til they could be loaded, and it was the duty reason that plaintiff failed to show an asof defendant to keep the stockyards in a signment of the cause of action from the reasonably safe condition for that purpose, partnership to him, or from Burton, his taking into consideration the ordinary condi- partner, to him. We think the court did tions attending cattle in that situation and right in this also. There is no testimony in their ordinary habits and propensities. We the record that there was ever any assignneed not go into the question whether or not ment of the cause of action to plaintiff. the defendant was bound to keep its stock testifying concerning the cattle, plaintiff yards so that cattle, however wild and un-spoke of the 84 head as belonging to him and ruly, could not get out, no matter how un- the 120 head as still belonging to the partHis testimony further on shows that the title / vited not only shippers, but all whom they might to the partnership cattle still remained in have deliver stock for them, to enter the stockthe partnership; he having merely a half in-yards for the purpose of making shipments. terest in them. In speaking of the present Cent. Dig. $$ 42-44; Dec. Dig. 32.]

[Ed. Note.-For other cases, see Negligence, ownership of the cattle, plaintiff said he individually owned a portion and a half inter- 3. JUDGMENT Cw570 – CONCLUSIVENESS

"JUDGMENT OF NONSUIT.' est in the others, but that it had been agreed Under Rev. St. 1909, § 1900, providing that that he should bring the suit for the whole if an action shall have been commenced, and damage. In other words, there had been plaintiff suffers a nonsuit, he may commence a no transfer of any interest in the cattle or new action within a certain time, where a de

murrer to plaintiff's evidence was sustained, the claim, either orally or otherwise, but whereupon plaintiff took an involuntary nonsuit he had agreed to go ahead and sue for the with leave to move to set it aside, and such mowhole thing. We admit the rule that no tion was overruled and the trial court's action formal assignment is necessary, and that approved on appeal, the judgment did not bar a

new action in which the testimony lacking in any act showing an intent to transfer a per- the first case was supplied, as a judgment of son's interest is sufficient. Smith v. Ster- nonsuit" is a complete determination of the ritt; 24 Mo. 262; Sanguinett v. Webster, suit, but not an adjudication of the merits of

the controversy. 153 Mo. 343, loc. cit. 370, 54 S. W. 563. But

[Ed. Note.-For other cases, see Judgment, we have searched the record in vain to find Cent. Dig. $$ 1028-1034, 1036–1040, 1042any proof of any intention on the part of 1045, 1165; Dec. Dig. Om 570.] Burton to transfer his interest in the cattle embraced in the second count, or his interest

Appeal from Circuit Court, Bates County ; in this claim for damages. So far as the C. A. Calvird, Judge. evidence shows, each partner now owns his

"Not to be officially published." interest therein, but one of them merely told

Action by W. A. Woods against the Misthe other to include the partnership claim in souri Pacific Railway Company. Judgment the suit for the individual claim. If this be for plaintiff, and defendant appeals. Af. true, the second count is not prosecuted infirmed. the name of the real party in interest. It may be, if the facts had been fully devel- & Bowker, of Nevada, Mo., for appellant.

R. T. Railey, of Jefferson City, and Scott oped, and if the plaintiff had stated just Silvers & Silvers, of Kansas City, Mo., and what was done, the evidence would have Silvers & Dawson, of Butler, for respondent. shown an assignment of the cause of action. But as the record now is no assignment seems to have been made. For this reason,

TRIMBLE, J. Plaintiff, in attempting to we are of the opinion the court did right in open a gate leading into one of the pens in granting a new trial as to the second count. defendant's stockyards at its shipping station

The judgment of the lower court is there- of Foster, Mo., was seriously and painfully fore affirmed as to both counts. All concur. injured by the gate falling upon him. He

brought this suit for damages. The petition charged that defendant had allowed the gate

post to remain in a rotten condition, whereby WOODS v. MISSOURI PAC. RY. CO. the top hinge became loose, rendering the (No. 11683.)

gate dangerous and unsafe, which defend(Kansas City Court of Appeals. Missouri. ant knew, or of which it could have known July 2, 1915. Rehearing Denied

by the exercise of ordinary care, and which Oct. 4, 1915.)

gate defendant was in duty bound to keep 1. NEGLIGENCE 29-DUTY TO USE CARE.

in reasonably safe repair. A trial resulted Though the failure of a railroad company to keep the

gate of a stock pen in reasonably in a verdict and judgment for plaintiff, and safe repair was negligence, it was not actionable defendant has appealed. negligence unless the company owed to the par- The record discloses substantial evidence ticular person injured thereby the duty to keep from which the jury could find that, on acits stock pen and premises reasonably safe.

[Ed. Note.--For other cases, see Negligence, count of the decayed condition of the gateCent. Dig. § 41; Dec. Dig. Om 29.)

post at the place where the top hinge had 2. NEGLIGENCE 32-INJURIES TO INVITEE. been fastened, the same had become loose Where a railroad company

railroad company maintained and the gate was liable to fall over upon stockyards and pens for the purpose of receiv- any one who attempted to open it without ing live stock intended for shipment, and a ship- knowledge of its defect; that the gate, when per who had arranged to ship live stock purchased live stock from plaintiff and contracted closed, was in proper position and gave no with plaintiff to deliver the stock in the stock- indication of its insecurity; that the loose yards, and expressly directed plaintiff to put the hinge was on the inside of the pen and plainstock in a particular pen, plaintiff in endeavoring to open the gate of such pen was not a tres- tiff approached the gate from the outside, passer nor a mere licensee, but an invitee to and hence the condition of the hinge was not whom the railroad company owed the duty of observable to him and he had no knowledge observing ordinary care, as he was not on its of the defect; that this condition was known premises solely on his own business nor merely for his own pleasure, curiosity, or benefit, and to defendant for a sufficient length of time to the company in maintaining the stockyards in- have enabled it, in the exercise of ordinary care and reasonable dispatch, to have repair-, necessary preliminary to defendant's busied the gate long before the injury occurred. ness as a carrier thereof and of its deriving Consequently neglect on the part of defend- profit therefrom. In maintaining the stockant was shown, and there is no room for yards, defendant impliedly invited Smith, holding, as matter of law, that plaintiff was the shipper, and all whom he might succeed guilty of contributory negligence.

in getting to do such preliminaries for him, [1] It is insisted, however, that plaintiff to enter said stockyards for the purpose of sustained no relation whatever to defendant, such shipments. Plaintiff was not a tressave, perhaps, that of a mere licensee, and passer, nor did he enter the stockyards purehence defendant owed no duty to plaintiff to ly and solely for his own interest, profit, or keep its shipping premises and facilities in pleasure. There was an interest or adrepair, but only the duty to refrain from vantage accruing to Smith, plaintiff, and the wantonly injuring him. The evidence and railroad in the stock being placed in the the verdict unquestionably show that defend- pen. And this fact of common interest or ant omitted to keep the gate in reasonably advantage is what distinguishes plaintiff's safe repair. While this was negligent, yet position, making it that of an invitee rather it would not, in this case, constitute action- than a mere licensee. Bennett v. Railroad

, . able negligence unless defendant owed to Co., 102 U. S. 577, loc. cit. 584, 585, 26 L. this particular plaintiff the duty of keeping Ed. 235; Archer v. Union Pacific R. Co., 110 its stock pen and premises reasonably safe. Mo. App. 349, loc. cit. 353, 85 S. W. 934. The The question whether or not defendant owed stockyards were maintained for the benefit this duty to plaintiff depends upon whether of defendant's carrying business, and plainthe "circumstances justly demand” that de- tiff's coming there was connected with that fendant observe care for plaintiff's safety.

business, and that made him an invitee. 29 [2] As disclosed by the record and found Cyc. 455; Phillips v. Library Co., 55 N. J. by the verdict, those circumstances were Law, 307, 27 Atl. 478, loc. cit. 480; Plummer these: Defendant maintained the stockyards v. Dill, 156 Mass. 426, 31 N. E. 128, 32 Am. and pens therein for the purpose of receiv- St. Rep. 463; Parker v. Portland Pub. Co., ing live stock intended for shipment over its 69 Me. 173, loc. cit. 176, 31 Am. Rep. 262; road. A Mr. Smith, who was engaged in buy- Bennett v. Railroad Co., 102 U. S. 577, 26 ing up cattle and hogs and shipping them L. Ed. 235; Carr v. Mo. Pac. R. Co., 195 Mo. over said road, had arranged for a car to 214, loc. cit. 225, 92 S. W. 874; Woods v. ship some live stock from Foster to Kansas Missouri Pac. R. Co., 149 Mo. App. 507, loc. City. A part of the live stock intended for cit. 510, 130 S. W. 1123. this shipment had been purchased by him of

If plaintiff was an invitee, then the dethe plaintiff, and plaintiff was to deliver said fendant owed him the duty to observe ordistock in the stockyards, from whence Smith nary care that he does not receive injury. was intending to ship it. It was in opening Glaser v. Rothschild, 221 Mo. 180, 120 S. W. the gate into the stock pen for the purpose of 1, 22 L. R. A. (N. S.) 1045, 17 Ann. Cas. 576; making this delivery that the plaintiff was O'Donnell v. Patton, 117 Mo. 13, 22 S. w. injured. The stock thus delivered by plain- 903; Welch v. McAllister, 15 Mo. App. 492; tiff was received therein by Smith and was Archer v. Union Pacific R. Co., supra ; Brock actually shipped out that day over defend- v. St. Louis Transit Co., 107 Mo. App. 109, ant's road pursuant to the arrangement made loc. cit. 116, 81 S. W. 219. Plaintiff, in putwith the agent for the car as hereinbefore ting the stock in the pen, was performing a stated. Smith, the shipper, was there on part of his contract with Smith, it is true; the ground to receive the stock in the pens but he was also doing more.

He was perand to attend to the immediate shipment forming one of the things necessary to be thereof over defendant's line. Plaintiff was done in carrying out Smith's contract with expressly directed by Smith to put the stock the railroad, one of the necessary preliminain the particular pen the gate to which ries to the defendant's business of carriage, plaintiff was endeavoring to open when he and he was making that use of defendant's got hurt. From this it can be readily seen premises for which they were built and mainthat plaintiff was not on defendant's prem- tained, and clearly there was an implied inises solely on his own business, or merely vitation to him to use the stockyards for for his own pleasure, curiosity, or benefit. that purpose. To say that, merely because The placing of the stock in the pen was a plaintiff himself was not intending to ship, matter in which all three of them, plaintiff, he was a bare licensee and not an invitee, Smith, and the defendant, had an interest. is to place a far too narrow limitation upon: The facilities of the yards were extended to the rights of those who, at the direction of Smith as a shipper, and he was invited and the shipper, assist him in using the yards expected to use them. In order for him to for a purpose beneficial to the defendant. ship over defendant's road, he must have [3] A former action for the same injury the stock in the defendant's shipping pen. was instituted by plaintiff prior to the bringInstead of driving the stock there himself, ing of this suit. In that action a trial was he stipulated with the one from whom he entered into, but at the close of plaintiff's. purchased that he should do that for him. evidence the trial court sustained a demur

voluntary nonsuit with leave to move to set / of action did not become res adjudicata by the same aside. This motion was filed and reason of the former suit. overruled. Whereupon plaintiff appealed to The case of Johnson v. United Railways this court, where the action of the trial court Co., 243 Mo. 278, 147 S. W. 1077, does not was approved. Woods v. Missouri Pacific announce a different rule. The judgment of R. Co., 149 Mo. App. 507, 130 S. W. 1123. the trial court in the former suit therein rePlaintiff at once instituted this suit, and, at ferred to was leveled at the petition as statthe trial, supplied the testimony which this ing no cause of action, and that judgment court had held was lacking in the former was upheld on appeal. The petition in the case. Defendant contends that the present second suit stated the same facts. It differ suit cannot now be maintained, since the ed from the first petition only in that it cause of action, by reason of our former prayed for an accounting, while the first judgment, has become res adjudicata.

petition, in addition to praying for an acBut it will be noticed that in the former counting, asked for an injunction and for a suit there was no adjudication of the case rescission. The cause of action for an acupon its merits. The plaintiff suffered an in-counting being in both petitions, and, the voluntary "nonsuit,” which was, in effect, a facts being the same in both petitions, of dismissal of his case. The ground of the course an adjudication on the first that it judgment in the former suit was not that stated no cause of action was an adjudicaplaintiff had no cause of action, but that tion of the question whether or not the seche had not brought forward sufficient proof ond stated a cause. But that is not the sitto establish that cause of action. Section uation in the case at bar. Neither in the 1900, R. S. Mo. 1909, provides that if an ac- first nor in the second cases in this contion shall have been commenced and plain- troversy was there any issue over the suffitiff suffer a nonsuit he may commence a new ciency of the petition, and the adjudication action within a certain time. In Mason V.

in the first case did not extend to the cause Kansas City, etc., R. Co., 226 Mo. 212, 125 of action itself, but only to the judgment of S. W. 1128, 26 L. R. A. (N. S.) 914, it was nonsuit for an insufficiency of proof. held that the judgment of the lower court

The claim that plaintiff's instruction No. refusing to set aside an involuntary nonsuit 1 is erroneous is without merit. was merely a judgment of involuntary non

The judgment is affirmed. All concur. suit and not a final judgment upon the merits of the cause. It was also held, construing Chouteau v. Rowse, 90 Mo. 191, 2 S. W. GUFFEY V. HARVEY et al. (No. 11645.) 209, that an appeal from the order overruling the motion to set aside the nonsuit sus

(Kansas City Court of Appeals. Missouri.

July 2, 1915. Rehearing Denied pended the judgment of dismissal until the

Oct. 4, 1915.) case was determined in the appellate court, 1. STREET RAILROADS 114-ACTIONS FOR and that plaintiff, under the statute, could

INJURIES – WEIGHT AND SUFFICIENCY OF begin another suit within one year thereaft

EVIDENCE. er. In other words, the appeal by plaintiff by a street car, evidence held to show that he

In an action for injuries to a person struck from the order refusing to set aside the in- either failed to look before turning to drive voluntary nonsuit was merely a litigation of across street car tracks, parallel with the dithe correctness of the trial court's ruling on rection in which he was driving, or that he

took a dangerous and entirely unnecessary that point, and the judgment of affirmance chance and drove into a zone of apparent danin the appellate court went no further than ger. did the order of the trial court. That order [Ed. Note. For other cases, see Street Raildid not finally adjudicate the cause of ac- roads, Cent: Dig. $8 239-250; Dec. Dig.

114.] tion, but only dismissed plaintiff's suit. A judgment of nonsuit is a complete determi- | 2. STREET RAILROADS 110—ACTIONS FOR

INJURIES-PLEADING-ISSUES. nation of the suit, but not an adjudication In an action for injuries to a person struck of the merits of the controversy. Wiethaupt by a street car, the petition alleged that, when v. St. Louis, 158 Mo. 655, 59 S. W. 960; Man- plaintiff was crossing the tracks, and while his ning v. Conn. Mut. Fire Ins. Co., 176 Mo. in charge of the car could see him and the

horse and wagon were entering thereon, those App. 678, 159 S. W. 750. In Hewitt v. horse and wagon, or by the exercise of ordiSteele, 136 Mo. 327, 38 S. W. 82, plaintiff in rary care could have seen them, in time to have a former suit, after suffering an involuntary avoided the collision, but that they so neglinonsuit, appealed from the order refusing of the car and in permitting and causing it to

gently conducted themselves in the management to set it aside, and the action of the trial be propelled at an excessive rate of speed, and court was affirmed. Defendant pleaded res in failing to slow down as required by a "slow" adjudicata, but that plea was disallowed. signal, and in failing to ring the bell or give

any signal of the car's approach, that the wagon although the case was reversed upon anoth- was struck, and plaintiff injured, and that, as er ground, namely, because there was "no a direct result of such negligent acts, plainsubstantial evidence to support plaintiff's tiff was knocked off of the wagon. Held, that cause of action.” In view of the foregoing, manitarian or last chance doctrine, but, con

this did not charge negligence under the huwe are of the opinion that plaintiff's cause struing the averment that those in charge of