that may accrue at the term of which the ac-
cused was recognized to appear, may thereupon
be discharged from any further liability. Ac-
cused, having forfeited his bail, was subse-
quently recaptured and placed in custody, where-
upon his surety moved to set aside the for-
feiture, and offered to pay all costs, including
those accruing on account of the nonappearance
of accused, as well as for the forfeiture pro-
ceedings and the rearrest, tendering such amount
into court. Held, that the bail was entitled to
be discharged at the time of filing his motion.
2. BAIL 80 - VOLUNTARY PAYMENT INTO
COURT-WAIVER.

A bail who voluntarily pays the amount of the recognizance to the clerk of the court, after accused has failed to appear, does not waive his rights to have the forfeiture set aside on payment of costs, after capture of accused.

3. BAIL 93-CONFESSION OF JUDGMENT AUTHORITY TO ENTER.

A clerk of court has no authority to enter on his minute book in vacation that a bail has waived the issuing of a scire facias and confessed judgment on the bond, since such a judgment can only be rendered by the court.

[ defendant, Elmer Simpson, having returned to the city of Butler, a capias was issued by the circuit clerk for him, and he was on that day taken into the custody of the sheriff in said city and was in said custody at the time of the proceedings hereinafter described. fendant W. H. Simpson had nothing to do with his son's leaving Butler. On November 20, 1916, at the October term of the circuit court, W. H. Simpson filed his motion to have said forfeiture, as against himself as surety, set aside, said motion reciting the rearrest of Elmer Simpson; that he was at the time of the filing of the motion in the custody of the court, and that W. H. Simpson was ready and willing to pay all costs, including those accruing on account of the nonappearance of said Elmer Simpson as required in said bond, as well as for the forfeiture proceedings and rearrest of said Elmer Simpson, and tendered the amount of such costs into court. After hearing the case the court overruled said motion, and

Appeal from Circuit Court, Bates County; said forfeiture was ordered made final. DeC. A. Calvird, Judge.

"Not to be officially published."

Elmer Simpson was charged with a misdemeanor and released on a recognizance, signed by W. H. Simpson, as surety, and the bail was forfeited. Defendant was subsequently taken into custody on a capias, and quently taken into custody on a capias, and W. H. Simpson moved to have the forfeiture of the bail set aside. From an order making the forfeiture final, defendant W. H. Simpson appeals. Reversed and cause remanded. C. A. Denton, of Butler, for appellant. W. B. Dawson, of Butler, for the State.

fendant W. H. Simpson, after taking the proper steps, has appealed.

[1] Under section 5131, R. S. 1909, defendant W. H. Simpson was entitled to be discharged from any further liability upon the heretofore described. State v. Taylor, 136 recognizance at the time he filed his motion Mo. 462, 37 S. W. 1121; State v. Harrison, 263 Mo. 642, 174 S. W. 57.

[2, 3] We do not believe that this defendant waived any of his rights by voluntarily paying the amount of the recognizance to the circuit clerk. As already stated, the circuit clerk entered on his minute book, in vacation, that the said W. H. Simpson "waived the issuing of a scire facias, and that he confessed judgment on the bond," and paid the amount of the recognizance. It is, of course, quite apparent that the clerk of the circuit court had no right to enter any judgment of confession, as such a judgment could only be rendered by the court. The action of W. H. Simpson in depositing this money with the circuit clerk, taken in its most unfavorable light to the former, could be construed as nothing more than a deposit of money with the clerk, to be held by him until the court rendered final judgment forfeiting the recognizance, and as the court had not rendered such judgment at the time of the filing of the motion by the said W. H. Simpson, the latter had a right to withdraw the offer to confess judgment, which was manifestly done when he filed said motion. We think, under our statute, supra, the court should have discharged said W. H. Simpson from further liability upon the recognizance upon his paying such costs as are required of him to be paid by said statute.

BLAND, J. On May 13, 1916, the prosecuting attorney of Bates county, Mo., filed with the clerk of the circuit court of that county an information charging defendant Elmer Simpson with a misdemeanor. Said defendant after having been taken into custody was released under a recognizance in the sum of $300, with his father, W. H. Simpson, a defendant herein, defendant herein, as surety. The recognizance was conditioned that defendant Elmer Simpson appear before the circuit court on the 4th Monday in May, 1916. On the 3d day of June, 1916, at the May term of said court, defendant, Elmer Simpson having failed to appear, the court declared a forfeiture of said recognizance, and directed that a writ of scire facias issue against defendants, Elmer Simpson and W. H. Simpson. On June 9, 1916, defendant W. H. Simpson paid to the clerk of the circuit court, in vacation, the sum of $300, being the amount of the penalty in said recognizance, and the clerk entered on his minute book the statement that said W. H. Simpson "waived the issuing of a scire facias, and that he confessed judgment on the bond" (italics ours). On the 10th day of June, 1916, remanded. All concur.

The judgment is reversed, and the cause

[1] Under the rule in this state the property, notwithstanding Riley may have fraudulently conveyed it to his daughter and afterwards received a deed back from her, was all In Smith v. Lackor, 23 Minn. 454, an atthe time his homestead. His fraud, if any, tempt was made, by one who had furnished in respect to the homestead could not affect lumber for a house erected on the homestead, his right to claim that it was exempt from to treat his claim as though it were a part of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

the purchase money which could be enforced against a homestead. But the court said:

"It is no more a part of the purchase money [of the real estate] than the price of a fruit tree or a fence post, used for the improvement of the property, would be."

So in any view which may be taken, the ruling of the trial court was correct; and the judgment will be affirmed. All concur.

(199 Mo. App. 485)

DRAPER v. KANSAS CITY RYS. CO. (No. 12917.)

(Kansas City Court of Appeals.

March Term, 1918.)

1. STREET RAILROADS 117 (7)-OPERATION
-QUESTION FOR JURY-SPEED OF CARS.
In an action by pedestrian injured by a
street car, the question of reasonable speed was
for the jury.

2. STREET RAILROADS 117 (35)-OPERATION
-QUESTION FOR JURY-NEGLIGENCE LAST
CLEAR CHANCE.

car approaching about a block away; that he then looked toward the west, but could see no further than Benton boulevard, which was two blocks away, for the reason that the street perceptibly fell from Benton bouleyard toward the west; and that when he looked toward Benton boulevard there was no east-bound car approaching upon the eastbound track, which ran to the south of the west-bound track. The car remained stationary about one minute to take on one or more passengers. After looking to the west plaintiff proceeded to the rear end of the car in orMissouri. der to pass behind it and cross the street to the south. When he reached a point on the west-bound track the car from which he alighted was about 10 or 15 feet away from him, and at this point he looked "around the car," but could only see 100 feet west along the east-bound track. At that time he saw no eastbound car. bound car. He then proceeded to the south across the east-bound track without again The question whether plaintiff's motorman looking in either direction. When he reachsaw defendant upon the street car track, real-ed the middle of the east-bound track he ized that defendant was confused and in peril, in time to have stopped his car, but negligently heard some one shout, "Hey!" He thought failed to do so, was for the jury. the shout came from some one who had 3. STREET RAILROADS alighted from the west-bound car at the same time he had, so he turned and looked up in the direction of the retreating car, and saw an east-bound car approaching him 75 to 100 feet away, proceeding at a rate of speed of 30 miles per hour. The motorman of the last-mentioned car was the person who had shouted at plaintiff. When plaintiff saw the east-bound car approaching him at such a terrific rate of speed, he became confused that he would return and cross the west-bound by the impending danger. He first thought track, but, remembering that he had seen a car approaching from the east on that track, he thought he had better not take any chances, and made up his mind to proceed onward across the east-bound track, but before he could do so the east-bound car was upon him. He jumped "right straight up" just before the car struck him. The evidence shows that no signal of any kind was given by the motorman of the east-bound car, except the shouting above mentioned. It also shows that the motorman did nothing whatever to stop or slacken the car until after he struck plaintiff, and that he stopped the car within 60 or 65 feet after striking him.

93(3), 103(3)-CROSSING ACCIDENT-DUTY OF MOTORMAN. It is the duty of a motorman to maintain such a lookout as will enable him to see the first appearance of danger, and the street railroad company is not liable for the failure of the motorman to maintain such a lookout, unless that danger appears soon enough to use means to avert it.

Appeal from Circuit Court, Jackson Coun

ty; William O. Thomas, Judge.

Action by Charles Draper against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Charles A. Stratton, of Kansas City, for appellant. Park & Brown, of Kansas City, for respondent.

BLAND, J. Plaintiff recovered a verdict and judgment for damages for personal injuries, and defendant has appealed. The case must be reversed and remanded, as plaintiff confesses error in his instruction on the measure of damages. However, as the case is to be retried, it is necessary for us to pass upon the other points raised by de

fendant.

Defendant's first point is that its demurrer As before stated, the evidence shows that to the evidence should have been sustained. the distance from Bales avenue to Benton The evidence, taken in its most favorable boulevard was two blocks; Indiana avenue light to plaintiff, shows that on the 13th day being the street between. The distance from of August, 1915, he was a passenger on a Benton boulevard to Indiana avenue is 640 west-bound car belonging to defendant's pred- feet, and from Indiana to Bales avenue 494 ecessor, running along Ninth street a street feet. There was a drop of .78 per cent. in the in Kansas City, Mo., running east and west; grade of the street toward the east from Benthat when the car reached Bales avenue in ton boulevard to Indiana avenue and from said city he alighted from the front end Indiana avenue to Bales avenue of 3.03 per thereof (the car stopped on the west side of cent. The motorman testified in effect that Bales avenue); that when he alighted he he saw plaintiff 247 feet before he struck looked toward the east and saw another him, but that he did not check his speed

when he first saw him, and that he did nothing toward stopping the car until he got about 30 feet from him. As before stated, plaintiff was on the west-bound track when he looked around the corner of the car from which he had alighted, and could see only 100 feet west. From this we must assume that when the motorman, 247 feet west of plaintiff, saw him, plaintiff must have been approaching the east-bound track. The case was submitted to the jury upon two theories; the first being upon that of excessive speed, plaintiff pleading and proving an ordinance of Kansas City providing that:

"And all cars shall be run at all times and places at a reasonable rate of speed under the particular circumstances."

chance" doctrine.

or "last

or "last chance" doctrine the evidence shows that when the motorman shouted to plaintiff the car was 75 to 100 feet away, so we may assume that it was 100 feet away. Plaintiff testified that, if at that time he had not become confused, he could have either retraced his steps and gotten off the track and avoided the injury, or he could have gone forward and escaped the injury by getting off the track. Defendant's contention, in view of these facts, is that plaintiff was not in a position of peril until the car reached this point, and that the motorman was under no obligation to do anything toward averting an impending accident until this time. As we have before stated, the motorman testified that he saw plaintiff 247 feet away, and at that time This was the ordinance granting defend- plaintiff must have been approaching a posiant's predecessors their franchise. The sec- required to do anything before he reached tion of danger. Whether the motorman was ond theory upon which the case was sub- the point 100 feet distant from plaintiff, we ond theory upon which the case was sub-required mitted was the "humanitarian" believe there was sufficient evidence to go to [1] We will take up the excessive speed ened the speed or stopped the car after reachthe jury as to whether he could have slacktheory first. Defendant contends that plain- ing this point, and so have averted the accitiff was guilty of contributory negligence as dent. It was for the jury to say, under the a matter of law in not looking again for facts shown in this case, whether or not plaineast-bound cars after he looked and could tiff evidenced to others confusion or terror only see 100 feet west. Whether or not plain- after being shouted to by the motorman, and tiff was guilty of contributory negligence in whether the motorman saw, or by the exernot again looking would depend entirely on cise of ordinary care could have seen, such a the circumstances. In looking for eastmanifestation. If the motorman saw, or bound cars he was only required to use ordi- could have seen, plaintiff in a confused or nary care to see a car approaching, and in terrorized state, and standing apparently undischarging this duty he was only required able to decide how to get off the track, it was to place himself in a position where he could his duty at that time to have slackened the have a view of the track for a sufficient dis- speed or stopped the car. The evidence tance to enable him to see an approaching shows that instead of doing this he did nothcar, if one were present far enough away ing whatever to avoid these things until after that he could, by the exercise of ordinary he struck the plaintiff, and that he stopped care, then cross over the track in safety. There is nothing in the evidence, in the way the car within 60 or 65 feet after striking of an ordinance or otherwise, to show what him. Under these facts it was for the jury was a reasonable rate of speed. Under such to say whether the motorman was guilty of conditions this was a question for the jury. However, whether plaintiff was guilty of contributory negligence would depend entirely upon what was an unreasonable rate of speed for cars under the circumstances, and whether he would have had time to cross the eastbound track before being struck by a car that was not proceeding at such a rate of speed, had one been coming 100 feet away at the time he looked for east-bound cars. The street car tracks were notice to plaintiff of danger, and he could not assume that there was no car coming without looking, nor could he assume that there was no car approaching the 100-foot point at which he looked. Therefore, if he did not have time to cross the east-bound track before a car running at less than an unreasonable rate of speed could reach him, then he was guilty of contributory negligence. If he did have time to so cross, then he was not guilty of negligence. Strauchon v. Met. St. Ry. Co., 232 Mo. 587, 135 S. W. 14.

negligence under the humanitarian doctrine. Gordon v. Railway, 153 Mo. App. 555, 134 S. W. 26; Shipley v. Railway, 144 Mo. App. 7, 128 S. W. 768; Moore v. United Railways Company, 185 Mo. App. 184, 170 S. W. 386; Holzemer v. Met. St. Ry. Co., 261 Mo. 379, 169 S. W. 102.

[3] That part of plaintiff's instruction No. 2 covering the duty of the motorman to keep a vigilant watch is erroneous. The duty of the motorman was to maintain such a lookout as would enable him to see the first appearance of danger, and defendant would not be liable for the failure of such motorman to maintain such a lookout unless that danger appeared soon enough to use means to avert it. This part of the instruction entirely ignores the facts that would constitute liability on the part of the defendant. While it is possibly not reversible error, we see no reason why the vigilant watch element and the theory of excessive speed should be combined in one instruction, as is done in plaintiff's [2] On the theory of the "humanitarian” | instruction No. 2. Defendant attacks plain

tiff's instruction No. 4. We see no defect in | which wholly, or in great part, covered or so this instruction, except it does not require hid the hole from observation as to make it the jury to find that the motorman saw, or probable that a pedestrian might step into could have seen, plaintiff in the terrorized it. Plaintiff was passing along the walk in state. Even if plaintiff happened to get into daylight and stepped into the hole, whereby such a state by his own negligence, it was the she fell and received severe injuries. There duty of the motorman, for humanity's sake, was evidence tending to show that there had to use means to prevent striking plaintiff if been snow on the walk for several days and he saw, or could have seen, by the exercise of that a path, or trodden way, was made along ordinary care, the situation. Shipley v. the center, which had become hard and slipRailway, supra. pery; that the night previous to her injury

Defendant's attack on plaintiff's instruc- more snow had fallen; that plaintiff, in passtion No. 1 is not well taken.

Defendant's instruction D6 was properly refused. It told the jury that plaintiff was guilty of contributory negligence if he did not continue to look for the approach of eastbound cars. If the facts on a new trial show that plaintiff was not guilty of contributory negligence in not again looking, a question we have already covered, then he was not required as a matter of law to look again.

The judgment is reversed, and the cause remanded. All concur.

CROSS v. CITY OF SEDALIA. (No. 12852.)

(Kansas City Court of Appeals. May 20, 1918.)

1. MUNICIPAL CORPORATIONS IN SIDEWALK.

Missouri.

800(3)-HOLE

Although without a recent fall of snow a hole in a sidewalk would have been visible and avoidable, yet, if snow so far covered the hole that it became unnoticeable by a pedestrian using ordinary care, the city would be liable for injury caused by his stepping through the snow into the hole; the city's negligence in permitting the hole concurring with the natural additional cause attributable to the snowfall.

2. TRIAL 133(6)-REMARKS OF COUNSEL CURE.

Where improper remarks of counsel were withdrawn, it was sufficient that the court ordered the matter "stricken out," and promptly informed the jury it could not be considered.

ing along, felt it to be safer to avoid the path by walking on the walk by the side of this pathway; and that she stepped into the hole or sunken place in the walk hidden by the snow.

[1] Plaintiff's case was properly submitted to the jury on the line of such evidence. For, though it be true that without the recent fall of the snow the hole would have been so clearly visible that one using ordinary care would have avoided it, yet, if the snow so far covered the hole that it became unnoticeable by a pedestrian using ordinary care, the city would be liable for an injury caused by stepping through the snow into the hole. It would be an instance of the city's negligence in permitting the hole, concurring with the natural additional cause attributable to the recent snowfall. Lueking v. Sedalia, 180 Mo. App. 203, 208, 167 S. W. 1152.

Defendant's refused instruction No. 4 was properly amended by the court by inserting the word "alone." As written it practically cut out plaintiff's charge of the hole in the walk. No error was committed in refusing No. 10 for defendant, since its place was properly supplied by corrected instruction just referred to.

[2] The principal ground for the appeal seems to be based on charges of improper remarks of counsel for plaintiff during the Remarks said examination of a witness.

to fall under this charge concerned a physician's fee which had not been pleaded. The

Appeal from Circuit Court, Pettis County; remark was withdrawn, but came dangerH. B. Shain, Judge.

"Not to be officially published." Action by Jennie Cross against the City of Sedalia. From judgment for plaintiff, defendant appeals. Affirmed.

R. S. Robertson, of Sedalia, for appellant. W. D. Steele and A. L. Shortridge, both of Sedalia, for respondent.

ELLISON, P. J. Plaintiff's action is for personal injuries alleged to have been received by her while walking along one of the defendant's sidewalks. She had judgment in the trial court.

There was a hole or sunken place in the sidewalk and there had been a fall of snow

ously near being reasserted. But the court ordered the matter "stricken out," and promptly informed the jury that it should not be considered. We think that sufficient.

No objection was made to remarks of counif an injured party were to make application sel in argument relating to what would occur for settlement to the city council instead of bringing suit. This, too. was withdrawn by the order of the court. We think there was no substantial harm in the statement of counsel, certainly not after the remark of the court; nor do we think harmful remarks of counsel that the city officers should be compelled to do their duty in the repair of the streets.

The judgment is affirmed. All concur.