being transported by it should be fed and watered, subject only to the requirement that this should be done at reasonable intervals, and that the needs of the stock should not be unreasonably neglected. But when Congress enacted the federal 28-hour law, this was a legislative direction that an interstate carrier could keep cattle on board cars without feed or water for 28 hours and, if requested by the shipper, they could be kept for 12 hours longer than that. If from the time the cattle were loaded at Worth until they were unloaded, fed, and watered at Galesburg, the cattle could be said to have been kept without feed or water an unreasonable length of time under the common law (and of this there is no evidence), nevertheless the federal act has superseded the common law in this regard, and is exclusive. Appellant did not violate the federal law in this case, because the 28 hours did not expire until 4 p. m. Sunday, whereas they were unloaded at 12:30 p. m., nearly 4 hours before, and the cattle were given full 5 or 51⁄2 hours for feed, rest, and water, as required by the law.

within its terms nor contemplated by it, is to enable one party to a contract to recover from the other, although there has been no violation of the terms thereof, nor of any duty imposed by law on that other as a result of such contract. If respondents had, on former occasions, obtained the benefit of 11 hours' rest for their cattle instead of 5, it was not a contractual right, but was at most only an advantageous or fortunate circumstance, not enjoyed by other shippers in general, and not enforceable by any of them. The only way by which it could be made enforceable would be to insert it in the contract as one of the agreements thereof binding upon the contracting parties.

Under the circumstances, we do not see wherein respondents have shown any violation of legal duty on the carrier's part on which a liability can be predicated. For this reason we are of the opinion that the judgment should be reversed. It is so ordered. The other Judges concur.

CO. (No. 11548.)

(Kansas City Court of Appeals. Missouri.
May 3, 1915. Rehearing Denied
May 31, 1915.)

1. MASTER and Servant 229-INJURIES TO
SERVANT-CONTRIBUTORY NEGLIGENCE.

Where, in an employé's action for injuries from the caving in of a trench in which he was working under the directions of defendant's foreman, it appeared that he was merely shovand that he did not fail to do anything he eling loose dirt from the bottom of the trench, should have done, he was not chargeable with contributory negligence.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 674, 683; Dec. Dig. 229.]

2. MASTER AND SERVANT 118-INJURIES TO SERVANT-NEGLIGENCE.

Where an employer directs an employé to work in a trench without taking such steps to prevent it from caving in as an ordinarily prudent man would have taken under the circumstances, he is liable for injuries to the employe from the caving in of the trench.

The contract governing the shipment in BARNARD v. WAVERLY BRICK & COAL this case, and by which the duty, and consequently the liability, of the carrier must be measured, did not provide that the cattle should be in Galesburg at any particular time of day so they could be fed in the morning instead of in the afternoon, neither did it provide that the cattle should have 11 hours' rest at that point instead of 5. The contract expressly provided that the carrier did not agree to transport the cattle by any particular train; it merely agreed to transport the cattle from Worth to Chicago in a reasonable time. It is true there was a provision in the contract that the cattle should be fed at Galesburg, but this was done within the time required by law, and the cattle were delivered at destination in Chicago within the time required by the contract and at the time and for the market desired by respondents when they shipped. Appellant has therefore performed every legal duty devolving upon it by reason of the contract and growing out of the relation created thereby. How, then, can appellant be held liable when it has done all it agreed to do, and all that the law requires of it? The liability claimed is not on account of some act or wrong independent of and aside from the contract. Enabling the cattle to be fed and watered at any particular hour and giving them more time than the law provided for rest were matters which were legitimately within the scope and range of the things to be covered by the contract if the parties had desired to bring them into it by inserting a clause providing therefor. But this was not done. To enable respondents to obtain a recovery for something which might very reasonably and naturally have been brought within the scope That an employé injured from the caving in of the contract, but which clearly was not of a trench in which he was working under the

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 177, 202, 209; Dec. Dig. 118.]

3.

MASTER AND SERVANT

SERVANT
JURY.

NEGLIGENCE

286-INJURIES TO QUESTION FOR

In an employé's action for injuries from the caving in of a trench in which he was working under the direction of defendant's foreman, whether defendant had taken such precautions as an ordinarily prudent man would have taken to prevent the accident was for the jury, where the evidence was not so conclusive one way as to leave no room for fair minds to differ.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.]

4. MASTER AND SERVANT 288-INJURIES TO SERVANT-ASSUMPTION OF RISK-QUESTION FOR JURY.

directions of a foreman, and which was apparently safe, had made no complaint and received no express assurance that the trench was safe, did not charge him with assumption of risk, as a matter of law, though there was no proof that the foremna had any superior knowledge, and it appeared that he had not worked in the vicinity as long as had the employé.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. ~~288.]

ment for plaintiff, defendant appeals. Affirmed.

Hadley, Cooper & Neel, of Kansas City, and Carl L. Ristine, of Lexington, for appellant. Chiles & Chiles, of Lexington, and N. M. Houx, of Lexington, for respondent.

TRIMBLE, J. Plaintiff, while working for defendant in a trench, was injured by the 5. MASTER AND SERVANT 234-INJURIES TO caving in of one side, and brought suit for damages. A demurrer was interposed to

SERVANT-RIGHT TO RECOVER-KNOWLEDGE OF CONDITIONS. Where an injury arises out of the master's plaintiff's evidence. This the court overrulnegligence, the servant's knowledge of conditions ed, and the defendant stood on its demurrer. will not preclude him from recovering, unless the danger is so glaring that he could not hope Plaintiff obtained a verdict for $1,000, and to escape by the exercise of reasonable care. defendant appealed. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 706-709; Dec. Dig. 234.]

9. NEGLIGENCE

141-INSTRUCTIONS-CON

TRIBUTORY NEGLIGENCE.

That an instruction not submitting the entire case and not on the subject of contributory negligence omits any reference to contributory negligence does not render it erroneous.

[Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 382-399; Dec. Dig. 141.] 10. TRIAL 234-INSTRUCTIONS-Burden of PROOF.

In an employé's action for injuries, it was not error to modify defendant's requested instruction that the burden of proof was on plaintiff, "and this burden of proof continues and abides with plaintiff throughout the entire trial," by striking out the words quoted.

The engine and boiler which furnished power to run the machinery of defendant's coal mine was on top of the ground a short distance from the mouth of the shaft. They rested upon a concrete foundation, and over them stood an engine room or shed. This last-named structure burned down some months before the occurrence of plaintiff's injury. In rebuilding it defendant desired to enlarge the engine foundation, and, to do so, constructed trenches outside of and on all four sides of the old foundation. These trenches had been dug, and on the morning of the accident had been completed. It was decided, however, to widen the trenches at the bottom so as to give the concrete foundation, which was to be poured therein, a "footing," and plaintiff was injured while shoveling out the dirt dug by another employé in making the extension for such footing. The ditches formed an oblong rectangle, and were about 3 feet in width, waistdeep in some places, but the east trench, where the accident occurred, was 5 feet or more in depth. In the outer wall or east side of the east ditch were one or more brick pillars a brick and a half square which had been a part of a former foundation; possithe burned engine room. blý piers on which had rested the posts of These pillars extended down in the ground alongside the ditch to within 22 or 3 feet of the bottom thereof. The undercutting ordered to be done by the defendant was made by digging out the dirt at the bottom of the trench and on the east or outer side thereof to a depth of 12 inches, and gradually sloping up to a feather edge about 10 inches above the bottom. It was therefore below, and did not extend up to the foot of the pillars.

On the morning of the injury defendant's foreman directed an employé, Demasters, to get down in the east trench and with a pick dig out the undercut. The foreman got into the ditch himself and showed how the work should be done. He also directed plaintiff' how to follow Demasters in the ditch and shovel out the dirt excavated by him. Plaintiff obeyed, and while engaged in that work Action by Edward A. Barnard against the the bank on the east side suddenly and withWaverly Brick & Coal Company. From judg-out warning caved in, burying Demasters

[Ed. Note.-For other cases, see Trial, Cent.
Dig. 88 534-538, 566; Dec. Dig. 234.]
Appeal from Circuit Court,
County; Samuel Davis, Judge.

Lafayette

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completely, and plaintiff partially, with dirt premises. Defendant is in error in thinking and brick from the old piers. Plaintiff's leg was broken, and he was bruised and shocked and otherwise injured in minor particulars.

Defendant insists that its demurrer should have been sustained; that no case of negligence was made against the defendant; that the questions raised by the pleadings were not for the jury, because the plaintiff, as matter of law, was guilty of contributory negligence and assumed the risk.

[1] If anything sufficient to defeat recovery may be chargeable against plaintiff, it would seem to be assumption of risk, rather than contributory negligence. The latter involves or connotes the idea that the servant either did something he should not have done or omitted to do something he should have done which in some way entered into and actively helped to bring about the unfortunate occurrence. But plaintiff did nothing to cause the dirt to fall. He was merely shoveling the loose dirt in the bottom of the trench. Neither did he omit the active performance of anything he should have done, since the fall came suddenly and without warning. So that, if recovery is to be denied plaintiff on account of anything affecting him, it would seem to be because of his alleged assumption of risk, rather than on the ground of contributory negligence.

[2, 3] With reference to the claim that no negligence was shown against the master, it is to be observed that plaintiff was directed by the foreman present and in charge of the work to go into the trench and shovel out the

dirt.

there is no evidence tending to show that it was an unsafe place to work, or that the master, as a reasonably and ordinarily careful man, had no reason to apprehend danger therefrom. Such being the case, we are not permitted to take the determination of the question of defendant's negligence out of the jury's hands.

[4] The fact that plaintiff made no complaint and received no express or affirmative assurance, in so many words, that it was safe, does not affect the matter, or charge him with assumption of the risk as matter of law. Plaintiff testified that he was watchful of danger, but thought there was none. He had a right to rely on the superior judg ment of the foreman, and the presence and direction of the latter to go into the trench and work were equivalent to an assurance on the foreman's part that plaintiff could safely proceed. Smith v. Kansas City, 125 Mo. App. 151, loc. cit. 157, 101 S. W. 1118; Herdler v. Buck's Stove & Range Co., 136 Mo. 3, loc. cit. 17, 37 S. W. 115. It is not necessary that there should be evidence showing superior knowledge on the part of the foreman. He is presumed to have that. His position and authority imply it. It will not do to say that the foreman did not possess superior knowledge, because he had been connected with the mine only a year prior to the date of the injury, while the plaintiff had lived in that vicinity for six years, and during that time had worked about this particular mine, largely as mine blacksmith.

An excavation was being made in the Neither can we say that the danger was side of the trench at the bottom which would as well known to plaintiff as to the foreman. leave the dirt wall on that side overhanging No doubt, plaintiff could see the conditions to some extent, and on this side were one or present as well as the foreman, but there is more brick piers the weight of which would nothing which justifies us in saying that he be a factor in the fall thereof if it should was as well aware of the danger. He had fall. The piers were exposed to view in the not dug in this trench, nor was he an extrench and were above the excavation being perienced trench digger. And the fact that made. The tendency to cave in could be he had walked over the surface of the ground avoided by propping the bank while the work- in that vicinity for six years would not furmen were in the trench. If the conditions nish him with the requisite knowledge of the there were such that an ordinarily prudent liability of the earth to cave in on the side man would have taken steps to obviate the of a trench, any more than would our occufall, then defendant was negligent in direct-pancy and use of the courthouse give us ing the workmen to work therein without knowledge that it was likely to collapse withadopting such precautions. What an ordi- out warning. narily prudent man would do under a given set of circumstances is usually a question for the jury. It certainly should be unless the facts are all so completely one way as to leave no room for fair minds to differ on the question. The excavation being under the side and under the brick piers mentioned, which would naturally have a tendency to induce a fall of that which was above, certainly we cannot say, as matter of law, that there was nothing in the situation which iLaposed on the master the duty of knowing whether it was safe or not. There is enough in the situation from which the jury could

[5, 6] As hereinbefore shown, the evidence justifies a finding that the master was negligent in ordering the servant to work in the trench without taking any precautions to keep the dirt from falling. The Missouri rule in reference to assumption of risk is that, if the injury arises out of the negli gence of the master, then knowledge of conditions on the part of the servant will not bar him of recovery on the ground of assumption of risk. If the danger was so great that the servant could not hope to escape injury by the exercise of reasonable care, then he will be guilty of contributory neg

that ground; but, if the danger is not so glaring and imminent as this, then, even if the servant has knowledge of the situation, he does not assume the risk arising from the master's negligence. Fish v. Chicago, Rock Island & Pacific Ry. Co. (Sup.) 172 S. W. 340, loc. cit. 346. The danger in the case at bar was not so imminent and glaring that no person of ordinary intelligence and care would have refused to work therein. The facts do not conclusively show such to be the case. This being so, he was not guilty of contributory negligence as matter of law; and, since the master was negligent in directing the servant to work in the ditch without taking precautions for his safety, he cannot be debarred from recovery on the ground of assumption of risk. The inferences to be drawn from the facts are that plaintiff had reason to suppose he could work safely, even if he had had, at first, some doubts about it. Wherever on these questions there is room for reasonable minds to differ, then the question should be left to the jury. Thompson v. Chicago, etc., R. Co., 86 Mo. App. 141; Keegan v. Kavanaugh, 62 Mo. 230; Bradley v. Milwaukee, etc., R. Co., 138 Mo. 293, 39 S. W. 763; Gibson v. Midland Bridge Co., 112 Mo. App. 594, loc. cit. 598, 87 S. W. 3; Doyle v. Missouri, etc., Trust Co., 140 Mo. 1, loc. cit. 15, 41 S. W. 255; Donahoe v. Kansas City, 136 Mo. 657, 38 S. W. 571; Curtright v. Ruehman, 181 Mo. App. 544, loc. cit. 561, 164 S. W. 701. It follows that the court ruled correctly in sending the case to the jury.

[7-9] Some complaint is made of plaintiff's instructions. But we think they are

Biscuit Co., 169 Mo. App. 513, loc. cit. 517, 155 S. W. 59; Owens v. Kansas City, etc., R. Co., 95 Mo. 169, loc. cit. 180, 8 S. W. 350, 6 Am. St. Rep. 39; Hughes v. Chicago & Alton R. Co., 127 Mo. 447, 30 S. W. 127; Lange v. Mo. Pacific R. Co., 208 Mo. 458, loc. cit. 478, 106 S. W. 660; Meadows v. Life Ins. Co., 129 Mo. 76, loc. cit. 97, 31 S. W. 578, 50 Am. St. Rep. 427. The other instruction complained of as omitting contributory negligence was not one submitting the entire case, and was not on the subject of such negligence. Hence there was no reason for saying anything about it in that one.

[10] Defendant, in its instruction No. 1, telling the jury that the burden of proof was on the plaintiff to establish his case, added this sentence: "And this burden of proof continues and abides with plaintiff throughout the entire trial." The court struck out this sentence, but otherwise gave the *instruction as asked. We see no error in so doing. The modification left the burden on plaintiff. It did not shift it. There was an affirmative defense pleaded, the burden of proving which was on the defendant, and, had the instruction been left as it was, the sentence stricken out might have misled the jury as to the burden of proving such defense.

It is said that the verdict is excessive, but we are of the opinion that it was clearly within the bounds of reason, and not such as to justify us in reducing it.

The judgment is affirmed. All concur.

unobjectionable. Some of the objections are GILL v. FARMERS' & MANUFACTURERS'

BANK. (No. 11560.)

(Kansas City Court of Appeals. Missouri.
April 5, 1915. Rehearing Denied
May 31, 1915.)

BANKRUPTCY 178-ASSIGNMENT FOR CRED-
ITORS SPECIAL DEPOSIT.

[Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 221, 264-274, 283, 284; Dec. Dig. 178.]

based upon the want of evidence to sustain them, but, as stated in the foregoing, this is a view to which we cannot agree. It is said that one of them omits to include assumption of risk and another omits the element of contributory negligence. The one that submitted the whole case to the jury reOne's special deposit in a bank, three days quired that body to find that defendant was before bankruptcy proceedings against her, of negligent, and that plaintiff was in the ex-itors, including the bank, is in effect a general all her assets, to be paid pro rata to her credercise of ordinary care. The very facts up assignment for creditors, void against the truson which the instruction was predicated ex- tee in bankruptcy, so far as interfering with his cluded any element of assumption of risk, administration of the property. since, as we have stated, the rule in this state is that the servant does not assume the risk of the master's negligence. clause requiring the jury to find, as a condition of recovery, that the plaintiff was in the exercise of ordinary care covered the Action by Charles S. Gill against the Farmelement of contributory negligence, since, if ers' & Manufacturers' Bank. Judgment for he was in the exercise of ordinary care, he defendant, and plaintiff brings error. Re could not be guilty of contributory negli-versed and remanded. gence. Besides, the defendant had explicit instructions on the subject of contributory negligence and assumption of risk, and the giving of these would have cured any omission in plaintiff's instruction if there had been any omission. Riegel v. Loose-Wiles ror.

The

Error to Circuit Court, Bates County; C. A. Calvird, Judge.

Sherman & Landon and W. V. Tompson, both of Kansas City, for plaintiff in error. Templeton & Hales, of Rich Hill, and Ellis & Yale, of Kansas City, for defendant in er

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