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the car, by the exercise of ordinary care, could across the tracks. He had almost cleared have seen plaintiff in time to have avoided the the south track, when an east-bound car runcollision in connection with the context, charged that the inability of the motorman to avoid the ning thereon collided with the rear end of collision was due to negligence in running the the wagon and threw him from his seat. The car at a high speed without observing the first cross-street west of Quincy avenue was "slow" signal and without ringing the bell, and about 300 feet distant, and was on the top of contributory negligence was therefore a complete defense, especially where the principal a hill. Plaintiff testified that immediately instruction, given at plaintiff's request, predicat- before starting to cross the tracks he looked ed his right to recover on a finding that he was back and observed that no car coming from exercising ordinary care to look out for the car and avoid injury therefrom.

that direction was in sight. [Ed. Note.-For other cases, see Street Rail

"I looked when I was pulling from the curb," roads, Cent. Dig. $ 224; Dec. Dig. Om110.]

he said, “and saw no car, and the horse must

have been over to the first set of rails when I 3. EVIDENCE Ow588 – WEIGHT AND SUFFI heard something, and I turned my head around CIENCY_TESTIMONY CONTRARY TO PHYSICAL that way. and the car was right on me, and I HacTs.

touched my whip a little bit, and the car came In an action for injuries to a person struck up, and it just caught the hind wheel—the end by a street car, the court is not bound to accord of the wagon. * * * In my judgment, it was probative value to testimony which cannot be 35 or 40 feet when I saw the car.” true, and plaintiff cannot recover on his impossible assertion that the car was not in sight

It had been raining, and plaintiff was at the time he looked, when it must have been seated under a wagon umbrella. He admits not only in plain sight, but in dangerous prox- he looked back only twice, and in the interimity.

[Ed. Note.-For other_cases, see Evidence, val his horse, which was traveling at a Cent. Dig. § 2437; Dec. Dig. 588.]

speed of about 4 miles per hour, did not 4. STREET RAILROADS 99—LIABILITY FOR traverse more than 35 or 40 feet. The car INJURIES-CONTRIBUTORY NEGLIGENCE. in that time, according to his testimony,

It was the duty of a person about to drive must have covered a distance of about 275 across street car tracks to look for a car before feet; since, when he first looked, it had not driving into a zone of possible danger, and to stop in a place of safety if he saw one ap- reached the top of the hill, and when he proaching at a place and in a manner making looked again was only 35 or 40 feet away. dangerous an attempt to cross in front of it.

It is conceded the car coasted down the hill, [Ed. Note.-For other cases, see Street Rail- and no witness who observed it testified that roads, Cent. Dig. $ 209-216; Dec. Dig. Prins its speed exceeded 15 miles per hour. The 99.] Appeal from Circuit Court, Jackson Coun- motorman, introduced as a witness by de

fendants, testified: ty; Allen C. Southern, Judge.

That the speed of the car down the hill was “Not to be officially published."

about 8 miles per hour; that he observed plainAction by Marcus L. Guffey against Ford tiff driving eastward along the middle of the F. Harvey and another, receivers of the Met-pavement on the south side of the tracks; that ropolitan Street Railway Company. From

suddenly and without warning plaintiff turned

northward towards the tracks, when the car a judgment for plaintiff, defendants appeal. was only 20 or 25 feet away, and attempted to Reversed.

cross in front of the car, and that was soon as

I saw he was going to turn I applied my air John H. Lucas and Lyons & Smith, all of on the emergency immediately. Before I stopKansas City, for appellants. E. C. Hall and ped I run after I struck the wagon about 6 T. V. Conrad, both of Kansas City, for re- feet. I don't think I went over 6 feet after I

struck the wagon." spondent.

A witness introduced by plaintiff who saw JOHNSON, J. Plaintiff was injured on the accident stated: a public street in Kansas City in a collision south side of the street, and I think he was

"The man [plaintiff] was driving down the between an electric street car operated by hunting for No. 5000 [at the northeast corner defendants and a wagon in which he was of Independence and Quincy avenues), and at driving, and sued to recover damages on the the same time was a car coming, and just as ground that his injury was caused by negli- turned at right angles across the street; * *

it dropped over the top of the hill this man gence of defendants in the operation of the it (the car] must have been a car length this car. The jury returned a verdict in his fa- side of the street (at the top of the hill), just vor, and after their motions for a new trial dropped over the line; it might have been just and in arrest of judgment were overruled, ticed this man turn,

then, but the car was about there when I no

at the extreme defendants appealed.

east line of Quincy. * * * Q. About how [1] The injury occurred in the morning of fast would you estimate that car was traveling July 12, 1913, at or near the intersection of coming down the hill from Brighton to Quincy?

A. I couldn't say. Q. Was it going fast or Independence and Quincy avenues. Defend-slow? A. He didn't have any power on; no ants operate a double-track street railway rower at the time. Q. About how far did the on Independence avenue, a public street

car run past after it hit the wagon, if you no

ticed? A. It didn't run past but just a little which runs east and west and is 60 feet wide.

ways. It stopped almost instantly after it Plaintiff drove eastward on the south side of hit the wagon.' the street, in a one-horse delivery wagon, On cross-examination : until he reached Quincy avenue, when he “Q. What did you see the man do there with turned northward, and proceeded to drive reference to stopping the car? A. I think he





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done his best. The tracks were very slick that which defendants argue should have been morning, as we had a little rain; they were a given is whether or not the evidence most little damp. Q. It appeared to you there that he was exercising every effort to stop the car favorable to plaintiff will support a reasonwithout colliding with the wagon? A. I think able inference: First, that the motorman, in

Q. You don't know whether he the operation of the car, was guilty of one or [plaintiff] looked back before he started to turn more of the acts of negligence pleaded; and, or not? A. I don't remember. It seems to me he had an umbrella. One of these big umbrel- second, that plaintiff was free from neglilas like they use on delivery wagons. Q. You gence directly contributing to his injury. It didn't notice him at any time push the umbrel- may be conceded, for argument, the evidence la up to look back to see whether there was any of plaintiff tends to show that the motorman car coming or not? A. I don't remember. Q. At least he wasn't doing that when his horse approached the crossing at a dangerous rate started to cross over the south track? A. Not of speed, and negligently failed to ring the that I remember. Q. He didn't stop his horse bell as a warning to plaintiff that the ca at any time while you saw him there, in making that swing around, until the wagon was

would proceed over the crossing without struck by the car? A. I think not."

stopping, but this concession does not aid [2] The petition alleges:

plaintiff, whose own negligence is clearly and "That at the time when plaintiff was cross-indisputably established by his evidence. ing said tracks, and while his horse and wagon Without any intimation of his purpose, he were entering thereon, the defendants' agents suddenly turned his horse from a course and servants in charge of said car could see running parallel with the track and at a him and said horse and wagon, or by the exercise of ordinary care could have seen him and safe distance therefrom, into one which took them, about to cross and crossing said tracks, him squarely across the tracks in front of in time to have avoided such collision, but that the approaching car, which was too close to defendants, their agents and servants, so negli- be stopped in time to avert a collision. gently conducted themselves in the manage

His ment of said car, and in permitting and causing own evidence, from which we have quoted, said car to be propelled at an excessive rate of shows that the motorman acted promptly speed, and in failing to slow down as required by the 'slow signal erected at said street cross- upon the first disclosure of his purpose to ing, and in failing to ring the bell attached to leave a safe course for one of danger, but said car, or to give any other signal of its ap- was unable to stop the car in time to avoid proach to said crossing, that plaintiff's said the collision, though he almost succeeded in wagon was struck as aforesaid, and plaintiff

The assertion of plaintiff that injured; that, as a direct result of such negli- doing so. gent acts and each of them, the plaintiff was just as he altered his course he looked back knocked off of said wagon as aforesaid,” etc. and the car was not in sight is contradicted

As we understand this language, it does by his own eyewitness, who says it was in not embrace a charge of negligence under sight, and by the plain and indisputable the humanitarian or last chance rule. The physical facts, which conclusively proclaim averment that the motorman "by the exer- that the car (which the evidence most favorcise of ordinary care could have seen plain- able to plaintiff shows) was approaching at a tiff about to cross said tracks in time to speed less than four times that of the horse, have avoided such collision" appears by the and could not have been over 200 feet from context to mean that the inability of the the place of the collision at that time. If motorman to avoid the collision was due to plaintiff looked when he started to turn, he negligence in running at high speed, with must have seen the car, and the fact is inout observing the "slow" signal at that disputable that either he did not look, or, crossing, and without ringing the bell, and looking, negligently took a dangerous and not to mean that, under the existing condi- entirely unnecessary chance and drove into tions, the motorman could have discovered the zone of apparent, and, as it turned out, the peril of plaintiff and avoided the injury if inevitable, danger. he had exercised reasonable care.

[3, 4] We are not bound to accord probaIn legal substance, the petition is similar tive value to testimony which could not be to the petition before us in Grout v. Railway, true, and plaintiff will not be allowed to re125 Mo. App. 552, 102 S. W. 1026, and for cover upon his impossible assertion that the the reasons therein stated we must hold that car was not in sight, when it must have it presents only issues of negligence to which been, not only in plain view, but in dangercontributory negligence would be a complete ous proximity to the crossing. It was his defense. Indeed, this is the view of the na- duty to look for a car before driving into the ture of the pleaded cause of action expressed zone of possible danger, and to stop in a in the principal instruction given at the re- place of safety if he saw one approaching at quest of plaintiff which, as a predicate of a place and in a manner to make dangerous his right to recover, required the jury to an attempt to cross in front of it. It is apfind that he "was exercising ordinary care parent he failed to discharge this duty, and to look out for said car and avoid injury that his own negligence directly contributed therefrom."

to his injury. With no issue of "last chance negligence" The demurrer to the evidence should have in the case, the remaining subject of inquiry been sustained. presented by the demurrer to the evidence Judgment is reversed. All concur,

that her failure to continually look behind her GINTER v. O'DONOGHUE. (No. 11501.) to see if any automobiles were approaching was (Kansas City Court of Appeals. Missouri. .

not negligence per se, as after looking and see

ing no automobile she could presume in the Nov. 1, 1915.)

short distance she traveled that, if a car did 1. MUNICIPAL CORPORATIONS Ow706–NEGLI- make its appearance, the driver would not neg

GENT USE OF STREETS—LIABILITY FOR IN- ligently fail to warn her.

[Ed. Note. For other cases, see Municipal Where an action for injuries to a person Corporations, Cent. Dig. $ 1518; Dec. Dig. Om struck by an automobile is not submitted spe- 706.] cifically upon the theory of the humanitarian 7. MUNICIPAL CORPORATIONS Om705—NEGLIor last chance doctrine, negligence on her part contributing to the injury will defeat a recoy


RIES-QUESTIONS FOR JURY. ery. Ed. Note. For other cases, see Municipal tomobiles and fixing' the outside limit at 12

A city ordinance, limiting the speed of auCorporations, Cent. Dig. & 1518; Dec. Dig. Omo miles an hour, did not authorize that rate of 706.]

speed under all circumstances, and was not con2. NEGLIGENCE ww136_TRIAL-QUESTIONS OF clusive that a person driving only 10 miles an LAW OR FACT.

hour was free from negligence. In determining whether plaintiff's negli [Ed. Note.-For other cases, see Municipal gence appears indisputably as a matter of law, Corporations, Cent. Dig. $$ 1515-1517; Dec. she must not only be given the benefit of all Dig Ow705.] evidence favorable to her theory of the case, but also the benefit of every inference which the 8. MUNICIPAL CORPORATIONS O 705–NEGLIfacts in evidence will reasonably bear.

GENT USE OF STREETS BY AUTOMOBILES[Ed. Note. For other cases, see Negligence,


Under Rev. St. 1909, $ 8523, providing that Cent. Dig. $$ 277–353; Dec. Dig. Om 136.]

persons operating automobiles on public streets 3. MUNICIPAL CORPORATIONS O 706—NEGLI- or places much used for travel shall use the

GENT USE OF STREETS-ACTIONS FOR INJU- highest degree of care that a very careful perRIES-QUESTIONS FOR JURY.

son would use under like or similar circumWhere injury is inflicted by a conveyance stances to prevent injuries or death to persons such as an automobile which may occupy one on such streets, the measure of care required portion of the street at one time and some oth-of the driver of a motor vehicle is to be deterer portion at another time, and is not confined, mined according to all the circumstances atas street cars are, to tracks, which of theinselves tending and surrounding the particular place, suggest danger, the matter of plaintiff's con- and, to determine whether the requisite care was tributory negligence is usually for the jury, and observed, the running of the car must be viewed it is an exceptional case when a recovery can in the light of the exigencies of the situation. be denied as a matter of law for contributory

[Ed. Note. For other cases, see Municipal negligence.

Corporations, Cent. Dig. $$ 1515-1517; Dec. [Ed. Note. For other cases, see Municipal Dig. Om705.] Corporations, Cent. Dig. & 1518; Dec. Dig. Om 9. EVIDENCE em 265 – ADMISSIONS-CONCLU706.]


Where plaintiff suing for injuries testified GENT USE OF STREETS-ACTIONS FOR INJU- that defendant's automobile struck and injured RIES-QUESTIONS FOR JURY.

her, the fact that she said the time that In an action for injuries to a girl struck was not hurt, and later told defendant that she by an automobile while crossing the street had no grievance against him, was not concludiagonally, evidence held not to show conclusive against her, but was no more than a cirsively that plaintiff did not look for approach- cumstance to be considered by the jury. ing vehicles before starting to cross, or that she looked so carelessly as not to see what she Cent. Dig. Sg 1029_1050; Dec. Dig. Om 265.]

[Ed. Note. For other cases, see Evidence, should have seen. [Ed. Note.-For other cases, see Municipal

Appeal from Circuit Court, Buchanan Corporations, Cent. Dig. § 1518; Dec. Dig. Om

County; Wm. H. Haynes, Judge. 5. MUNICIPAL CORPORATIONS Om 706–NEGLI

"Not to be officially published.” GENT USE OF STREETS--ACTIONS FOR INJU Action by Delilah M. Ginter, by David M. RIES-QUESTIONS FOR JURY.

Ginter, her next friend, against Francis C. While the act of crossing the street at a O'Donoghue. From an order granting a new place other than a crossing at a street intersection is a circumstance to be taken into con- trial after a verdict for defendant, defendsideration by the triers of the fact in determin- ant appeals. Affirmed. ing whether a plaintiff is guilty of contributory negligence, it is not negligence as a matter of

Culver & Phillips, of St. Joseph, for aplaw; the street not being so dangerous that no pellant. Duvall & Boyd, of St. Joseph, for reasorably prudent person would attempt to respondent. cross it.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. & 1518; Dec. Dig. Om

TRIMBLE, J. Plaintiff sued for damages, 706.]

alleging, in substance, that defendant, while 6. MUNICIPAL CORPORATIONS Om706-NEGLI- operating his automobile upon a public street,

GENT USE OF STREETS-ACTIONS FOR INJU- much used for travel, in the city of St. JosRIES-QUESTIONS FOR JURY.

eph, negligently struck and injured her. Plaintiff, before starting to cross a street diagonally in the middle of a block, looked both The charges of negligence, upon which the ways before leaving the curb and again after case was submitted, were that the defendpassing between two automobiles standing at ant ran his car “in a careless, negligent, and the curb, and saw no automobile approaching reckless manner,” and negligently ran his After walking about 15 or 20 steps, or about 334, feet, she was struck by an automobile car against plaintiff without giving any which gave no warning of its approach. Held, / alarm or signal of his approach. The jury




found for defendant, and the court sustained arm and shoulder were bruised; that her plaintiff's motion for a new trial; whereupon right knee was also bruised; that she was defendant appealed.

confined to her room and bed about five No grounds were specified in the order weeks; was dizzy and sick at her stomach granting a new trial, but it is practically con- when she would raise her head or try to ceded that the court erred in instructing the get up; that, in attempting to walk or to put jury, in defendant's behalf, that the law re- her left foot to the floor, her left hip and quired only the exercise of reasonable care side would pain her; that she continued to on defendant's part; whereas, the statute suffer thus for about five weeks and, at (section 8523, R. S. Mo. 1909) imposes upon times, has “dizzy spells” yet; that for a him "the highest degree of care that a very period of about four weeks she was unable careful person would use, under like or sim- to walk without difficulty and cannot now ilar circumstances, to prevent injury." straighten her foot without great pain in

Defendant's position, however, is that the her hip; that before she was injured her evidence shows that in no event ought a ver- sleep was unbroken, but after that, for about dict for plaintiff to be allowed to stand; and five weeks, whenever she dozed off she would that therefore a new trial should not have dream of automobiles and teams running into been granted regardless of errors in the trial. her, and cannot sleep very well yet. The Graney v. St. Louis, etc., R. Co., 157 Mo. 666, injury occurred December 13, 1913. She was loc. cit. 680, 57 S. W. 276, 50 L. R. A. 153. examined by Dr. Sampson on January 7th

We do not understand defendant as con- following, and he testified that he found her tending that there is no substantial evidence left leg a half inch longer than the other, tending to show that defendant was negli- due, in his opinion, to some inflammation that gent, or that plaintiff was struck and injured. had taken place in the hip joint causing an If such is defendant's claim, we answer it effusion of fluid therein which pushed the now by saying that clearly there was. The head of the thigh bone partially out of the specific ground upon which defendant insists socket. The testimony of physicians was that plaintiff could not recover in any event that, while her injuries were not permanent, is that plaintiff was guilty of contributory her recovery would be slow. negligence.

[1, 2] As the case was not submitted spePlaintiff was a girl not quite 16 at the cifically upon the theory of the humanitarian time of the alleged injury. It occurred about or "last chance" doctrine, negligence on 9 o'clock at night on Felix street between plaintiff's part contributing to the injury will Seventh and Eighth streets, one of the much defeat her recovery. But the question which traveled thoroughfares in the city. This we have to settle is, not whether there is street has "white way" lamps and was "well evidence from which a jury could properly lighted,” or “very light.” Plaintiff, leading find contributory negligence, but whether her little five-year old sister by the hand, such fault on her part appears so indisputacame out of a store on the south side of Fe- bly that we can declare it as matter of law. lix street and went to the curbstone desir-And in passing on the question we must not ing to go diagonally across the street in a only give plaintiff the benefit of all the evinortheast direction to a fruit stand on the dence favorable to her theory of the case, north side of the street. According to plain- but also the benefit of every inference which tiff's evidence, when she reached the curb- the facts in evidence will reasonably bear. stone she looked both east and west and, not

[3] It is also proper to remember that: seeing any automobile or vehicle coming,

"The cause is, indeed, an exceptional one stepped out into the street between two nied as a matter of law for his contributory

where plaintiff's right of recovery should be de"dead" automobiles which were standing negligence, when it appears he was run upon close to the curb at that point.

As she and injured in the highway by a conveyance emerged from between the two automo- which is not required to travel in a particular

place, as street cars on the tracks, which, of biles and was about 6 feet from the curb course, of themselves suggest danger as always out in the street, she says she again looked present. In other words, in those cases where up and down the street, and, seeing no irjury is inflicted by a conveyance which may automobile coming, she started with her and some other portion at another time and the

occupy one portion of the street at one time little sister to walk slowly in a northeastern injured person is not forewarned as by the dandirection across the street to the fruit stand. ger incident to car tracks, the matter of plainAfter she had gone about 15 or 20 steps and tiff's, contributory negligence is usually for the

Bongner v. Ziegenhein, 165 Mo. App. was in the center of Felix street, defendant 228, loc. cit. 342, 147 S. W. 182, 186. in his automobile and going east approached

[4] The evidence in the case does not show her from the rear and struck her, knocking that Felix street between Seventh and Eighth her down. She says no alarm was given by where the accident occurred was in such the automobile and that she did not see it a constant state of turmoil from the passing until the instant it struck her. She says she to and fro of automobiles as to make the was struck in the left arm, side, and back; mere attempt to cross negligence as a matthat she remembered nothing after being ter of law. Plaintiff testified that she looked struck until she found herself in a nearby both ways twice before she started across, from the two standing automobiles, and saw other than on the crossings at the street no vehicle coming. Defendant claims that intersections is to be held negligent per se. the physical facts conclusively show that she We are not willing to so hold. It is well did not look, else she would have seen it. known that people frequently cross in the We do not so regard the evidence. The street middle of the block, and, while such act is a was slightly downgrade toward the east, the circumstance to be taken into consideration direction in which the automobile went. There by the triers of the fact in determining was evidence that the automobile was going whether a plaintiff is guilty of contributory 10 miles per hour. Plaintiff was walking negligence, yet it is not to be so declared as slowly leading her five-year old sister by the a matter of law. The place was a public hand. Now, because the witness Mrs. Edds, highway where both parties had a right to be. who was behind plaintiff and was in the act As hereinbefore noted, the street was not so of following plaintiff acress the 'street, says dangerous as that no reasonably prudent pershe saw the automobile at Seventh street son would attempt to cross it. As said in 79 feet away, and waited for it to pass, and Hodges v. Chambers, 171 Mo. App. 563, loc. another witness, Krecskay, saw it before it cit. 570, 154 S. W. 429, 432, it "could only reached Seventh, and still another witness, be said to have been dangerous where made Mrs. Haas, saw it after it passed Seventh so by the failure of the drivers of vehicles street, defendant argues that this conclusive to exercise the care required of them by ly shows that the automobile was in sight law.” This case also holds that the act of when plaintiff says she looked, and hence walking upon a public highway is not analshe did not look, or, looking, carelessly failed ogous to walking upon a railroad or a street to see, for “to look was to see.” But none car track, and is not therefore to be stamped of these witnesses state that they saw the as negligence per se. On the contrary, as automobile at or before the time plaintiff said in Meyer v. Lewis, 43 Mo. App. 417, looked as she emerged from between the two loc. cit. 418: standing automobiles. True, Mrs. Edds says “In cases of this kind-collisions upon the at one place plaintiff was from three to six highway, where both parties have a right to be feet ahead of her, but later in another place both on the question of the negligence of the

-there is generally a fair question for a jury, she said she did not know how far ahead she defendant and the contributory negligence of was. And she nowhere gave plaintiff's loca- the plaintiff.” tion at the time she (Mrs. Edds) saw the [6] Nor can it be said that the mere failautomobile. She, however, says plaintiff stop-ure of plaintiff to continually look behind her ped and looked as she emerged from be- to see if any automobiles were coming was tween the automobiles, thus corroborating negligence per se. After looking for an autoplaintiff in this regard. So that it is not mobile and seeing none, she could then preshown that the automobile was in sight and sume, in the short distance traveled, that, was seen by others at the time plaintiff look- if a car did make its appearance, the driver ed. For aught that this testimony discloses, thereof would not negligently fail to warn plaintiff may have looked prior to that time, her. and, at the time the witnesses saw the car, [7,8] As to whether there was negligence was on her way across the street with her on the part of the defendant, the evidence back to it. Indeed, the inference from the was ample to the effect that no horn was evidence is that she was in this position. If sounded nor alarm of any kind given. All the car was going 10 miles per hour (and it of the witnesses hereinbefore named who was downgrade), it was traveling at the rate saw the automobile and watched it bear of 14.66 feet a second; if plaintiff, in going down upon the girl in the street say they slow leading a five-year old child, was trav- heard no horn nor alarm of any kind.

Mrs. eling 2 miles an hour (which is only one- Haas says that no alarm was given, and so third less than the walk of an ordinary does plaintiff. It will not do to say that, man), then she was traveling not quite 3 because there was no evidence of a greater feet per second. She walked “15 or 20 steps,” speed than 10 miles per hour, therefore the after emerging from between the automobiles, autoist was not negligent in the operation of before she was struck, at least 335/10 feet, his car, because the city ordinance specifies according to the measurements on the plat a limit of 12 miles. That is merely an outoffered in evidence. In that time the auto-side limit beyond which the automobile canmobile could have whisked down upon her not go. But because the city specifies a limit from a point more than 67 feet beyond the of 12 miles does not mean that an automonearest side of the crossing at Seventh street. bile driver can run his car, under any and

[5] It cannot be said, therefore, that the all circumstances, at any rate of speed withevidence conclusively shows that plaintiff did in that limit and yet be free of negligence. not look before she started, or, if she look- The measure of care required by the statute ed, was clearly negligent in failing to see of the driver of a motor vehicle is to be dethe car. If plaintiff exercised the care of termined according to the circumstances atan ordinarily prudent person by looking be-tending and surrounding the particular place. fore she started across, then she is entitled Section 8523, R. S. Mo. 1909; Bongner v. to have a jury pass upon her case unless the Zeigenhein, 165 Mo. App. 328, 147 S. W. 182.

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