left the car, were released by boys on the front platform held for the jury.

5. CARRIERS 295(1)— INJURY TO PASSENGER-NEGLIGENCE-PROXIMATE CAUSE.

A street railway was not responsible for injuries to a passenger who jumped from a car which began to move unattended down a slight incline on which it had been stopped, where the railway was not responsible for the car's so moving.

6. CARRIERS 338-INJURY TO PASSENGER APPARENT PERIL.

A street railway was liable to its passenger who jumped from a car on a slight incline when the car began to move slowly backward and downward only if her peril or alarm was caused by the negligence of the railway, if her apprehension of peril was reasonable, and if the appearance of danger to her was imminent, leaving no time for deliberation.

was in imminent danger, she became very much alarmed and in fear for her safety, and by reason of said alarm, fear, and belief attempted to alight from said car while it was moving backwards as aforesaid."

The answer was a simple general denial. Upon a trial before a jury there was a verdict for the plaintiff in the sum of $8,000, and from a judgment upon that verdict the defendant brings this appeal.

The errors assigned cover: (1) A failure to direct a verdict for the defendant; (2) giving of erroneous instructions for the plaintiff; (3) refusal to give proper instructions for the defendant; (4) admission of improper evidence for plaintiff; and (5) excessive verdict.

Plaintiff was a young lady of 19 years. She says that she was sitting in the rear portion of the car, when the car (then traveling up grade) collided with a brewery wagon; that the car was brought to a standstill, and the conductor and motorman got off of the car and went to the wagon; that the car re

Appeal from St. Louis Circuit Court; Wil- mained stationary for two or three minutes, son A. Taylor, Judge.

Action by Christina Delfosse against the United Railways Company of St. Louis. From a judgment for, plaintiff, defendant appeals. Reversed, and cause remanded.

E. P. Walsh, Chauncey H. Clarke, and T. E. Francis, all of St. Louis, for appellant. Brownrigg, Mason & Altman, of St. Louis, for respondent.

GRAVES, J. By her petition the plaintiff says that she was a passenger upon and was injured by jumping from one of defendant's moving street cars in the city of St. Louis. The negligence charged to the defendant is thus stated in the petition:

"Plaintiff further states that at or near the intersection of said last-named streets, while she was a passenger as aforesaid on said car, she was severely and permanently injured as hereinafter specified, as a direct result of the negligence of the said defendant by its conductor and motorman in charge of said car.

and then began to move slowly backward, or down the grade; that there was a horse and buggy to the rear of the car, and beyond it another street car; that some of the passengers began to rise out of their seats, and that she, fearing another collision, got up and got out at the open door of the car, and in thus getting off of the car she received the injuries of which she complains. She says that she saw no boys or other persons at the front end of the car, where the brakes were operated. Other evidence can best be outlined in the course of the opinion, in connection with the points made. This is a general outline of the case.

[1, 2] I. Whilst the evidence upon some material questions is not very strong for the plaintiff, yet there was enough to take the case to the jury. The evidence shows that there was a slight incline at the place of the accident. The alleged negligence is twofold: (1) Leaving the car on this slight incline with no person in charge thereof; and (2) leaving "Plaintiff further says that the said negligence of the said defendant consisted in this, the car without having secured it in position to wit, that the said car having collided with on the track. With the first ground we are a wagon ahead, the conductor and motorman not impressed by the facts. It was not negof said car dismounted from said car and negligence for the conductor and motorman to ligently left the same in charge of no other agent or servant of said company or of any other person, and negligently left the same standing on an incline, with the doors open, and without having the car secured so as to hold it in position on said track.

leave their car upon this slight incline, provided they had properly secured the car before leaving it. So that the only real ground of negligence is that the railway employés "Plaintiff further says that the said car, thus negligently failed to properly secure their car temporarily abandoned, with the doors open, on upon the track before leaving it. Under the an incline, without being secured in its position, evidence this became a question for the jury. shortly after the said motorman and conductor left the same, began to run backwards down It is true that there is much evidence tending said incline, and it appeared to the plaintiff to show that the car stood from two to four that another collision was imminent at the rear minutes or more before it started to run of said car between the said car and another slowly back down the slight incline; yet vehicle, as the said car ran backwards down there is one witness who says:

said incline.

"Plaintiff further says that, finding herself in the said moving car with no one in charge, and believing that by reason of the premises she

A.

"Q. Now, how long did the car stand stationary before it started to move back? About two or three seconds."

We might grant that the fact of the car standing still from two to four minutes tends to show that it had been securely placed in position by defendant's employés, before leaving it; yet the testimony of this witness would tend to show that it had not been properly secured. Two to three seconds is a very limited space of time, and if, as a fact, it did begin to move backward in that time, it would at least be evidence that it had not been properly secured. We conclude for this reason that on this ground of negligence the demurrer to the evidence was properly overruled.

[3-5] II. There is evidence for the defendant to the effect that the brakes were firmly fixed by the motorman before leaving the car, and that there were two boys on the front end of the car who were turning the brake wheel about the time the car started backward. Upon these facts the defendant asked two instructions, one of which reads:

"The court instructs the jury that, if you find and believe from the evidence that the car was left standing with all the brakes set on said car, and was in a secure position, and you further find from the evidence that some one other than the employés on said car released said brakes, causing said car to start backwards, then in that event plaintiff is not entitled to recover, and your verdict must be for the defendant.'

used in its said business, then said defendant and its agent and servants in charge of said highest degree of care which would have been car owed plaintiff the duty of exercising the used by careful and skillful street railroad employés under like circumstances to prevent injury to the plaintiff while being carried as a from the evidence that, while the plaintiff was passenger on said car; and if you further find a passenger as aforesaid on said car, the conductor and motorman of said car dismounted from the car and left the same in charge of no other agent or servant of said defendant or of any other person, and left the same standing on an incline with the doors open and without having said car so secured as to hold it in position on said track, and if you further believe from the evidence that such conduct on the part of defendant's said agents and servants constituted a failure to use the highest degree of care which would have been used by careful and cumstances for the safety of passengers on said skillful street railroad employés under like circar, then such failure to use said degree of care on defendant's part constituted negligence, and you will find for the plaintiff if you further believe from the evidence that the plaintiff was injured as a direct result of said negligence."

This instruction directs a verdict for the plaintiff if the jury believes that the defendant had been negligent in the two regards mentioned, and that plaintiff was injured as the direct result of that negligence.

In the first place, this instruction includes as a part of the alleged negligence the leaving of the car on this slight incline without some one in charge of it. The employés had stopped their car and had gone forward to see about the collision with the brewery wagon that had just occurred. According to the record before us, the incline was a very slight one. It cannot be said that the mere leaving of the car with no one in charge thereof under the circumstances of this rec

ligence to leave it without securing it.

This instruction the court refused, and such refusal is charged as error. We think that this instruction should have been given. The evidence tended to show that the brakes were unloosed by a third person, for whose act the defendant would not be responsible under the other facts of this case. It was at least a reasonable deduction from all the other facts that the defendant was not responsible for the movement of the car back-ord was negligence, although it would be negward. The great weight of the testimony shows that the car remained stationary from two to four minutes or more, which would corroborate the testimony of the motorman that he had put on the full power of the brakes by pushing the brake lever to the right as far as it would go. Then there was evidence of these boys being there, and that when the motorman overtook the car the lever had been moved toward the left, thus releasing the brakes. It was a question for the jury, and the instruction supra was a proper one to submit the question. The refusal of this instruction took from the defendant one of its defenses, and was prejudicial error. If the condition which occasioned plaintiff's apprehension of danger was not a condition brought about by the act of defendant or its agents, then defendant is not responsible for results. This is hornbook law. III. There was also error in the giving of the plaintiff's first instruction. This instruction reads:

"No. 1. The court instructs you that, if you find from the evidence that on the 11th day of June, 1914, the defendant was a public carrier of passengers by street railway in the city of St. Louis, and that on said date plaintiff was a passenger on one of its street cars

[6] But this is not the most serious objection to this instruction. In this case the injury to plaintiff is predicated upon the theory that defendant's negligence had brought about a condition which caused her to apprehend immediate danger to her person, and that with such reasonable apprehension of danger she left the car to avert the apprehended danger. In a case of this kind proof of the mere negligence of the defendant does not make out a case of liability. The great weight of the evidence shows that the car moved slowly for only seven to ten feet. It all shows that plaintiff would not have been injured had she remained in the car. In this kind of a case a plaintiff, to make a case, cannot stop with the mere show of negligence upon the part of the defendant. It requires more than the mere showing of negligence to fix liability upon the defendant. Whatever may be required to fix liability on the defendant in cases of this kind are the things which make up the plaintiff's case. In other words, everything which must be shown to fix a liability upon the defendant is a constituent element of the plaintiff's case, and no instruction for plaintiff should direct a verdict for

Let the judgment be reversed, and the cause remanded.

WOODSON, J., concurs in part and dissents in part as to the opinion, but concurs in result. BLAIR, J., concurs in result. BOND, P. J., absent.

WOODSON, J. The court will take judicial notice of the size of the city of St. Louis, that is, its population, and its ordinary means of transportation. We know that the city has a population of practically 1,000,000 people, and that its means of transportation consists of railways, both steam and street cars, as well as various other kinds of vehicles; also that the streets of said city are filled with pedestrians going in every direction. The evidence for the plaintiff tended to show that the street car track in quesdegrees. Street

This standard by which liability is fixed was expressly approved in the later case of Bischoff v. Railway Co., 121 Mo. loc. cit. 225, 25 S. W. 908. As stated in the quotation, | tion had an incline of these things are the essentials to liability. cars and vehicles, as well as pedestrians, The essentials to liability are the essential were continually coming and going in each elements of plaintiff's case. To word it dif- direction on the street in question; that ferently, in a case of this kind, in order to the car in which plaintiff was riding was recover, the plaintiff must show: (1) Negli- stopped on the incline mentioned, and left gence of the defendant; (2) that the peril or unattended by any agent or servant of the apparent peril was caused by such negligence; defendant, with the doors thereof opened; (3) that the apprehension of peril was a rea- that a few seconds after the car was abansonable one; and (4) that the appearance of doned the car began to move down the indanger must have been imminent, leaving no cline, which caused some of the passengers time for deliberation, when judged by the in the car to become excited and scream circumstances as they appeared, and not by from fear; that while in a terrified condithe result. tion plaintiff jumped from the car and received the injuries complained of.

These things constitute the essential elements of plaintiff's case, and instruction 1, which directs a verdict for plaintiff, leaves out most of these essentials. Such instruction has been recently condemned by this court. State ex rel. Long v. Ellison, 199 S. W. 984, not yet officially reported; Hall v. Coal & Coke Co., 260 Mo. loc. cit. 367, 168 S. W. 927, Ann. Cas. 1916C, 375; Wojtylak v. Coal Co., 188 Mo. loc. cit. 283, 87 S. W. 506. [7] Nor can this fatal defect in such an instruction be cured by any other instruction in the case. Authorities supra. If other instructions are broader and cover more of the essentials to plaintiff's case, they conflict with rather than cure. Learned counsel for plaintiff makes an ingenious argument in trying to show that instruction No. 2 for plaintiff cures the defect in instruction No. 1, but, as stated, there can be no cure for such defects in an instruction which directs a verdict as is done here.

IV. There are other matters urged, but these will suffice. In the light of the briefs in the case here, no doubt, other questionable matters will not appear upon a second trial.

In my opinion, those facts and circumstances clearly made a case for the jury to say, under proper instructions: First, whether or not the defendant was guilty of negligence in leaving the car, filled with passengers, unguarded, knowing that just what did happen might reasonably have happened, and that, too, whether the car was started by boys or gravity; second, whether or not the car was left unsecured on the track; and, third, whether or not under the circumstances the plaintiff was guilty of negligence in jumping from the car.

I understand that the first clause of this opinion is in conflict with the majority opinion, and to the extent indicated I dissent therefrom; also that the second and third clauses hereof are in harmony with the majority opinion, and to that extent I concur therein.

I am further of the opinion that the three propositions just mentioned were not properly submitted to the jury by the instructions, and for this reason I am of the opinion that the judgment should be reversed, and the cause remanded.

BRADLEY HEATING CO. v. THOMAS M.
SAYMAN REALTY & INVESTMENT

ant to put in a heating plant in a certain building in the city of St. Louis belonging to defendant at the agreed price of $10,732, payments to be made as the work progressed

CO. (No. 19053.)

(Supreme Court of Missouri. Division No. 1. as follows: 85 per cent. in monthly payments March 4, 1918.)

1. APPEAL AND ERROR 853-REVIEW-PARTY BOUND BY HIS OWN INSTRUCTIONS. Where a contractor, alleging breach of contract on part of owner of building, elected to sue in quantum meruit for materials furnished and asked and secured instructions limiting his recovery to the contract price, he is bound thereby.

QUANTUM

of labor and material inwrought into the building and 10 per cent. at completion, and the balance or final payment within 30 days after the completion of the work included in the contract; all payments to be due when certificate for same was issued. Plaintiff then avers that it in good faith undertook the performance of its said contract, but that defendant breached the same by refusing to pay the plaintiff the sums accruing under their contract at the time therein specified and by refusing to allow the plaintiff to proceed further in the performance of its contract. The plaintiff then further averred

2. WORK AND LABOR 29(2) MERUIT-CONTRACT PRICE. In quantum meruit by contractor to recover for materials and labor furnished, where the owner of building had breached the contract, plaintiff is entitled to an instruction for the reasonable value of the materials and labor furnished, at least up to the contract price. 3. WORK AND LABOR 29(2) QUANTUM that it had furnished defendant material and MERUIT AMOUNT OF RECOVERY-CONTRACT labor in the sum of $9,942 and had been paid PRICE. thereon the sum of $8.175. and asked judg ment for the balance of $1,757 and interest. To the petition an itemized account of materials and labor furnished and the several payments made was attached and made a part thereof.

A contractor who has voluntarily abandoned his contract may in an action in quantum meruit recover from the owner of the building the actual value of the work and materials furnished, not exceeding the contract price less damages for his breach. 4. APPEAL AND ERROR

ERROR-INSTRUCTIONS.

1066-HARMLESS

While the defendant, owner of building, in quantum meruit action by contractor for' labor and materials furnished was entitled to instruction that it devolved upon the contractor to show that owner prevented completion of contract, yet where the evidence shows such, unmistakably, refusal of instruction was harm

less.

5. WORK AND LABOR ADMISSIBILITY.

By answer the defendant (1) admits the execution of the contract, admits the payment of $8,175, but denies that defendant breached the contract and denies that plaintiff in good faith performed its part of the contract, (2) denies that the material and labor was of the reasonable value of $9,932, but 27(1)—EVIDENCE- avers the value of material and labor to be

Where there were no structural defects in the boilers furnished by contractor, and they were the identical boilers specified in contract, it was not error to exclude owner's evidence of defects of that type of boiler.

6. WORK AND LABOR 29(3) QUANTUM MERUIT-AMOUNT OF RECOVERY.

In an action in quantum meruit for labor and materials furnished, where owner of building breached the contract, it was error for the jury to add 10 per cent, builder's profit as called for in the contract, although such might have been recovered in action for breach.

7. WORK AND LABOR 29(1) QUANTUM MERUIT-MEASURE OF VALUE.

A contractor, proceeding in quantum meruit against an owner who has breached his contract, is not concluded by what he paid for the labor and materials furnished if he shows their reasonable value exceeds such sum.

$4,000, (3) that plaintiff had breached the contract by failing to complete the same, and failing to furnish materials according to the specifications of the contract, (4) that the amount paid was in excess of the reasonable value of the materials and labor furnished, and for that reason the defendant owed plaintiff nothing. In the answer was also pleaded a counterclaim for damages occasioned by the alleged breach of the contract by plaintiff. Defendant asked for a total of $10,175 in damages, and it is this that gives us the jurisdiction.

The reply met and placed in issue the divers allegations of the answer. Upon a trial before a jury the plaintiff had a verdict for $1,777.35 on its claim, and a verdict in

Appeal from St. Louis Circuit Court; Karl its favor on defendant's counterclaim, and Kimmel, Judge.

Action by the Bradley Heating Company against the Thomas M. Sayman Realty. & Investment Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

afterward a judgment in accordance with such verdict. From this judgment defendant appeals.

[1] I. Whether a plaintiff contractor, whose contract has been breached by the own er of the building (the other party to the con

Charles E. Morrow, of St. Louis, for ap-tract) and who has elected to sue in quanpellant. Marshall & Henderson, of St. Louis, for respondent.

tum meruit (as has the contractor in this case), can in such quantum meruit action have a recovery in excess of the contract GRAVES, J. Action in quantum meruit, price, is not involved in this case. Such for a balance of $1,757 and interest. Plain- question, i. e., whether a contractor whose tiff avers that it had a contract with defend-contract has been breached by the owner of

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

the building, and who has elected to sue in quantum meruit, rather than upon the contract, must in such action have the value of his materials and labor furnished, measured by the contract price, rather than by the actual reasonable value of the same, is one upon which may be found much learning. In this case the plaintiff has seen fit, by its own instructions, to limit its recovery to the contract price, and is, of course, bound by the theory adopted nisi.

Nor does the defendant by his refused instruction force a decision upon this very interesting question. Plaintiff's instructions proceed upon the theory that plaintiff is entitled to recover the reasonable value of the materials and labor furnished, not however to exceed the contract price. Defendant's refused instruction was on the theory that plaintiff had breached the contract and that defendant's damages should be assessed "at the difference between the reasonable value to the defendant of the work and materials so furnished and installed which do not comply with the terms of said contract and the amount it will reasonably cost the defendant to install materials which will comply with

the terms of said contract."

Plaintiff's instruction authorized the recovery of the reasonable value of materials and labor furnished up to the contract price. Defendant's refused instructions limited the reasonable value to "the reasonable value to defendant." Complaint is made as to the instruction of plaintiff on the measure of his recovery, but it is on the theory that the reasonable value to be recovered should be "the reasonable value to the defendant." That question we take next.

mitted a recovery in excess of the contract price. Plaintiff's instruction No. 1 proceeds upon the theory that defendant had breached the contract by refusing to permit plaintiff to proceed with the work. Defendant's refused instruction B proceeds upon the theory that plaintiff had breached the contract. We take first the objection to plaintiff's instructions. The petition alleges a breach of the contract by defendant, so that the case in hand, so far as plaintiff is concerned, falls within the second class of quantum meruit actions, supra. This was the plaintiff's theory of the case, and the question is whether or not, on that theory, the instruction is wrong on the measure of damages. It should be admitted that in cases of the first class, supra, there are some loose expressions to the effect that the measure of the recovery is the reasonable value of the materials and labor to the owner, who has been left in possession of such, by the default of the contractor. Thus in Yeats v. Ballentine, 56 Mo. loc. cit. 538, it is said:

"But this idea of acceptance, as a waiver, is not the ground upon which courts have allowed a recovery on a quantum meruit count. It is because the work is of value to the proprietor, and, if it is of no value, there can be no re

covery.

"There was evidence in this case that the work done by plaintiffs was of no value to house; but there was evidence, also, that the defendant, and was, in fact, an injury to his work was fully worth the prices charged in the petition and account, which exceeded the verdict, that the work was worth the contract contract prices. We must take it, under the price to the defendant."

So, too, in Marsh v. Richards, 29 Mo. loc. cit. 105, it is said:

"Although it is generally true that a party must perform his contract before he can be entitled to the compensation due on its performance, unless it is otherwise stipulated, yet there are cases in which the services rendered by the contractor are valuable to him for whom they were performed, and he has expressly or tacitly accepted them. In such cases, although the work has not been done within the stipulated time nor in the manner or with the materials required by the terms of the contract, he who performed the work may recover what it is reasonably worth to the owner, not exceeding the contract price."

The italics in the above quotations are

[2, 3] II. There are two classes of quantum meruit actions growing out of violated builders' contracts: (1) Where the contractor breaches the contract and the owner has taken over and used the material and labor furnished; and (2) where the owner has breached the contract, or prevented its full performance, and the contractor has elected to sue in quantum meruit rather than upon his contract. To my mind some loose writing has been done, and been done without considering a possible distinction which might be drawn as to the measure of recov- ours. ery in the two classes of cases. From an early date in this state it has been held that, if the owner actually appropriated and used the materials and labor furnished by a contractor who had defaulted upon his contract, the contractor was not wholly barred from a recovery, but had his action in quantum meruit. Yeats v. Ballentine, 56 Mo. 530, and the earlier cases therein discussed. In such an action, by a defaulting contractor, he was permitted to recover; but his recovery could be reduced, under proper pleadings and proof, by the amount of damages his breach of the contract might have occasioned to the owner. Nor would he, in this kind of a case, be per

In other cases coming within the same class, the rule stated does not contain the restriction "reasonable value to the defendant" or other equivalent language.

But all this is immaterial here, because we are now discussing defendant's objections to plaintiff's instructions. Plaintiff's petition and instruction was bottomed upon the theory that defendant had breached the contract. To say in such case that the value of plaintiff's material and work must be measured by the reasonable value to the defendant (if there is a substantial difference between "reasonable value of materials and labor furnished" and "reasonable value of the