(252 S.W.)

Albert James testified: That he was an attorney, and that James and Benjamin Ransberger came to him in January, 1917, to have their wills written. Each wanted to give the other all of his property. He accordingly wrote their wills, which they duly executed. He afterwards saw James in October, 1918, and after the death of Benjamin when he employed the witness to represent him as the executor of the estate of Ben-chase price of the land they had purchased jamin. James knew the number of acres from Mr. Ransberger. in their farm, and the names of the parties against whom they held notes, and the security, amount, and rate of interest. He

except they did not know that the Sprinkle

We agree with the often-repeated statenote of $15,000 was to be substituted for ment of James R. Ransberger to the various the McLennan note for that amount. But witnesses that he had the capacity and right the evidence showed that the Sprinkle note was indorsed by Dr. McLennan with recourse; that he was financially responsible, and the Sprinkle note was secured by a first mortgage on a farm in Layfayette county of the value of about $25,000.

W. S. Huston, a witness for plaintiffs testified that he asked James R. Ransberger to attend the meeting where the settlement was being discussed, but he refused, and referred witness to his attorney, Mr. James.

to do as he pleased with his property, and to sell it to the McLennans at the price he did, which after all, was a very substantial price, because he wished to favor Mrs. McLennan, who, the evidence shows, alone, had sufficient sympathy and regard for him in his crippled and unfortunate condition to furnish him some bright days in his otherwise somber existence.

advice. He consulted with his friend, Mr. Leonard, before the transaction was consummated; told him all about it, and his purpose in making the deed. He afterwards conferred with his attorney, Mr. James, with reference thereto, and with the many witnesses-friends and acquaintances-to whom he explained the making of said conveyance, and his reasons therefor, and all of whom, in effect, concurred in his judgment. sequently, after the transaction had been thoroughly aired in the entire community, the McLennans offered to reconvey the property to him, but he refused to receive it, saying it was just as he wanted it.

Sub

We rule this point also against. respondents.

III. But, it is said that the McLennans, sustaining a confidential relation, could not II. From the evidence in this case, which deal with the deceased unless he had indewe have thus fully set forth, we are unable pendent advice. The answer to this contento agree with the contentions of the learned tion is that the evidence shows he was himcounsel for respondents. We are entirely | self fully advised in the premises, and could satisfied that the great weight of the evi- not have been enlightened by any further dence shows that the right of this dispute advice. Moreover, he had much independent is with the appellants. The record speaks for itself. Admitting that a confidential relation existed between the McLennans and James R. Ransberger, as claimed by respondents (which we need not decide), and that the burden of proof is upon them to show to our satisfaction beyond reasonable doubt that James R. Ransberger knew when he made the conveyance to them what he was doing, and had full information as to the value of his property and what he was receiving for it, we hold that they have fully borne the burden thus cast upon them. The overwhelming weight of the evidence is that, while, he may have been sick and bent in body, James R. Ransberger was sound and straight and unbending in mind. That the McLennans could not influence him against his will is shown by the fact that he refused the second demand made upon him to divest himself of his property for the benefit of his heirs while he was yet alive. It was to the interests of the McLennans to effectuate the proposed settlement, yet they either failed to urge it upon Mr. Ransberger or urged it upon him in vain, thus showing that they either did not try to or could not influence him if they tried. The record is brightened with his witty and penetrating observations, and shows, too, that he was made of sterner stuff-that he was the captain of his own ship when it came to the test as to who was its commander. Not only is this shown by the great weight of the testimony given by the long line of living witnesses who spoke from the witness stand but by the silent witness, Benjamin Ransberger, who knew his brother James better than any one, and gave him the whole of his estate by his will, and made him executor without bond, thus showing his confidence in the worth and capacity of James to manage and deal with the estate given him while he was alive, and to properly dispose of it when he, too, would be called upon to depart hence.

IV. Nor is the fact that Dr. McLennan drew the deed and the first note and deed of trust of $60,000 (due in 20 years), and that it failed to provide for foreclosure in the event of failure to pay the annual interest, under the circumstances, evidence of an intention to overreach Mr. Ransberger. He told his friend, Leonard, that, in order to induce the McLennans to purchase the property, he purposely gave them a long time in which to pay for it. He did not need the money; he possessed other firstclass interest-bearing notes and bonds amounting to about $30,000. Furthermore, the $60,000 note bore compound interest if the interest was not paid annually. But the $60,000 note and deed of trust are no longer a factor in the case. They were surrendered and canceled and superseded by the $44,250 note and deed of trust and the $15,000 note mentioned in the petition. By these new notes and deed of trust the time of payment for the property was cut down to 10 years, and default in payment of the annual interest made the deed of trust subject to foreclosure.

We therefore reverse the judgment below, and remand the case, with directions to thes circuit court to set aside the judgment here

(252 S.W.)

tofore rendered by it, and to render judgment herein against the plaintiffs and in favor of the defendants.

PER CURIAM. The foregoing opinion by SMALL, C., is adopted as the opinion of the

court.

All the Judges concur, except WOODSON, C. J., and GRAVES, J., who dissent..

BROWN v. CHICAGO, R. I. & P. RY. Co. et al. (No. 23068.)

(Supreme Court of Missouri, Division No. 1. April 6, 1923. Motion for Rehearing Denied June 8, 1923.)

on the evidence as to observations taken by

At the time of the collision there was in force in the city of St. Joseph an ordinance which limited the rate of speed at which passenger trains might be run within the corporate limits of the city to 10 miles an hour, and another which required the bell of each locomotive engine to be rung continuously while running within said city. Violation by defendants of these ordinance provisions was the negligence alleged by plaintiff as the basis of his action. In addition to a general denial defendants pleaded contributory negligence.

Plaintiff's evidence tended to show the facts as follows: Eighteenth street ran north and south. The general direction of the railroad was east and west, but from the crossing it extended in one direction slightly north of east and in the other slightly 1. Railroads 350 (22)-Contributory negll-south of west. To the east the track was gence of automobile truck driver held for Jury. straight for perhaps a half mile; to the west In action for injuries from a collision be- there was a straight track for several blocks, tween an automobile truck and a train at a ending at defendant's switch yards and crossing where the view was obstructed, held, roundhouse, but at a point approximately plaintiff and his knowledge of the speed ordi- 300 feet west of the crossing there diverged nance and movement of trains, that his contrib- from the straight track another track (the utory negligence was for the jury. main line) which curbed sharply to the north. There were two parallel tracks across Eighteenth street, the main track and a passing track. The main track was on the north, and the distance between the south rail of that track and the north rail of the passing track was 81⁄2 feet. The tracks were standard gauge, being approximately 5 feet in width. About 75 feet east of the center of

2. Railroads ~350(32) — Whether speed of train contributed proximately to injury held for jury.

In action for injuries from collision between an automobile and a train, where there was evidence that plaintiff, who was moving at the rate of 6 or 8 miles an hour, would not have gone across after having seen about 150 feet of the track had he not believed that trains ran slow

ly over the crossing, and not exceeding 10 miles an hour, there was no error in refusing instructions which would have eliminated the speed of the train as ground of negligence; the question as to whether the speed of the train contributed proximately to cause the injury being for the jury.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

Action by William L. Brown against Chicago, Rock Island & Pacific Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

the traveled portion of the street a switch led from the passing track on to an industrial track. At the time of the collision a box car stood near the switch, for the most part on the industrial track, but the end next to the street extended westward over the switch points. The car was about 65 feet east of the line of travel along the street, and immediately east of it there was a coal car.

Preceding the collision plaintiff was approaching the crossing from the south at the rate of from 6 to 8 miles an hour, and the passenger train from the east at from 30 John E. Dolman, of St. Joseph, for appel- to 35 miles an hour. Plaintiff's seat on the lants. truck was back 5 or 6 feet from the front Mytton & Parkinson, of St. Joseph, for re- end. As plaintiff approached the crossing spondent.

RAGLAND, J. This is an action to recover damages for personal injuries and for the loss of an automobile truck, resulting from a collision between the truck while being driven by plaintiff and one of defendant railroad's passenger trains at the crossing of its road over Eighteenth street in the city of St. Joseph. The engineer in charge of the engine which was pulling the train was joined with the railroad company as a party defendant.

his view with reference to the main line of the railroad was obstructed on both sides by buildings and other objects. He could not get a clear view up and down that track toward the east until he passed the box car standing on the industrial track. Owing to the immediate proximity of buildings to the track on the west side and the slightly acute angle from which the road approached he could not see down the straight track in that direction until he was within 12 or 15 inches of the south rail of the passing track. On account of this physical situation he was

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

and was on the passing track. Would ordinary care have required him to stop his car there and look again to the east before proceeding over the main track? Or was a reliance on the view he had already obtained,' in connection with his knowledge of the speed ordinance and his past observations as to the movement of trains over street crossings. in the city, consistent with the exercise of such care? The question was clearly for the jury.

more apprehensive of being caught by a train | far as he could see, namely, 150 feet. He then from the west than by one coming from the turned toward the west, but could not see east. As he came toward the crossing, how-up and down the track in that, direction unever, he first looked to the east; he continu- til he had proceeded some 17 feet farther, ed to look in that direction until he reached a point from 25 to 30 feet south of the main track, and correspondingly from 12 to 17 feet south of the passing track. From that point he could see past the box car and up the track for a distance of from 135 to 150 feet. Seeing no train coming from that direction he then directed his attention to the west. He could not see down the main track until the front part of his truck was on the passing track-81⁄2 feet from the main track. While he was still looking west and still moving north at the rate of from 6 to 8 miles an hour, he suddenly heard the noise of an approaching train. He looked to the east, but the next instant the collision occurred. The end of the pilot beam of the engine struck the right wheel of his truck, wrecking the machine, and inflicting upon him serious injuries. As the train approached the crossing the bell on the engine was not ringing nor was the whistle blown or other signal given.

Plaintiff was in the transfer business; his knowledge of the conditions surrounding the Eighteenth street crossing was only of the most general character, and he was not familiar with the schedules upon which the trains were run over it. He knew the provisions of the ordinance limiting the rate of speed of passenger trains to 10 miles an hour and that of freight trains to 6 miles an hour, and that of freight trains ran slowly over street crossings in compliance with the ordinance requirements. When he looked east just before reaching the crossing, and saw no train coming, although his vision was limited to about 150 feet of the track, he thought he could easily clear it before a train could reach that point.

Some of defendants' evidence tended to show that had plaintiff looked attentively to the east as he came toward the crossing he could have discovered the approach of the train long before he reached a place of danger, and some tended to show that he ran his truck into the side of the engine; its main effort, however, was directed to supporting defendants' contention that the bell on the engine was ringing, and that the train was running at a rate of speed that exceeded but little, if any, the maximum prescribed by the ordinance.

A jury found the issues for plaintiff, and assessed his damages at $10,000. From a judgment against them for that amount, defendants prosecute this appeal.

[1] I. Appellants' chief contention is that plaintiff was guilty of contributory negligence as a matter of law. As appears from the statement of facts, plaintiff looked east until within 25 feet of the main track, and saw that it was clear in that direction as

[2] II. It is next insisted that the trial court committed error in refusing instructions asked by defendants which would have eliminated the speed of the train as a ground of negligence from the consideration of the jury, for the reason, as it is claimed, that the speed of the train in no wise contributed to cause plaintiff's 'injury. With respect to this contention: In the first place it is evident that, had the train not been running in excess of 10 miles an hour, plaintiff, moving at the rate of 6 or 8 miles an hour, would have covered the 25 feet to the track and the additional space necessary to clear it before the train would have traveled the 150 feet to the point of collision; in the second place, it is clearly inferable from plaintiff's testimony that he would not have gone on across the track after having seen but 150 feet of it to the east had he not believed that all trains ran slowly over street crossings, and not exceeding 10 miles an hour. He testified plainly and specifically that after looking east, though he could only see 150 feet up the track, he continued on across without looking that way again because he was satisfied that he would not be caught by a train coming from that direction. In that connection he further testified that he knew the provisions of the speed ordinance, and, further, that they were generally observed. In view of the evidence, it was for the jury to say whether the speed of the train contributed proximately to cause the injury sued for.

III. Appellants further complain of the refusal of the trial court to instruct the jury that plaintiff himself was guilty of negli gence barring a recovery if his view of the approaching train was so obstructed that he could not see it without stopping his car before reaching the track and he failed to so stop. Under the evidence such an instruction would have been equivalent to a peremptory direction to return a verdict for the defendants. In view of what has been said in preceding paragraphs, it would have been manifest error to have given it.

As no reversible error is disclosed by the record, the judgment is affirmed. All concur.

(252 S.W.)

PAYNE v. DAVIS, Agent. (No. 23169.)

(Supreme Court of Missouri, in Banc. May 22, 1923.)

1. Carriers 286(4,7)—Must properly light station platform and exercise proper care to furnish safe ingress and egress to passengers. It is the duty of a railroad to properly light its station platform during arrival or departure of passenger trains, and to exercise proper care to furnish safe ingress and egress to passengers.

2. Carriers 271, 303(13)-Duties to passenger carried beyond station to unusual place after dark stated.

guilty of such negligence, as a matter of law, as barred him from recovering damages for injuries from falling into an open sluiceway under the tracks.

7. Damages 132(7)—$20,000 for permanent injuries resulting from fractured jawbone, wrists, and thigh held not excessive.

An award of $20,000 damages to a 17 year old boy for a fractured jawbone, permanent injury to wrists, and a transverse fracture of thigh bone, as a result of which the right leg became about an inch shorter, held not excessive.

Woodson, C. J., and Graves, J., dissenting in part..

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

It is the duty of carriers to stop trains for the discharge of passengers at the platforms provided therefor, and, if a passenger is carried beyond a station and required to alight at Action by William Otto Payne, an infant, an unusual place and in darkness, he should by James W. Copeland, his next friend, be warned of any danger and given such as- against James C. Davis, Designated Agent sistance or instructions as are reasonably under the Federal Transportation Act of necessary to secure his safe return to the plat-1920. Judgment for plaintiff, and defendant form, and egress therefrom in the usual way. appeals. Affirmed.

3. Carriers 303 (1) Must exercise same care in discharging passengers as in caring for them in transit.

A carrier owes the same high degree of care to discharge a passenger at his destination in a safe manner and place as is required for his safety while in transit.

4. Carriers 347(12)-Evidence held not to show passenger carried beyond station In dark so familiar with surroundings as to be charged with knowledge of dangers.

Where a 17 year old boy was injured by falling into an unguarded sluiceway after alighting from a train which had carried him, after dark, beyond his station to which he had taken passage, he having always theretofore gone by street railway, evidence held not to show him so familiar with the station and its surroundings as to be charged with contributory negligence in leaving the place where he was set down.

5. Carriers 318(2,9) Evidence held to show negligence In failing to light platform, carrying passenger beyond it, and failing to give him warning or instruction on alighting

in an unfamiliar place in darkness.

J. F. Green, M. U. Hayden, and H. H. Larimore, all of St. Louis, for appellant. Claude M. Crooks and Charles E. Morrow, both of St. Louis, for respondent.

Statement.

LINDSAY, C. The appellant is the Designated Agent under the Federal Transportation Act of 1920 (41 Stat. 456), to conduct litigation arising out of the operation of the system of the Missouri Pacific Railroad Company while the property of that company was being operated by the Director General of Railroads. His appeal is here in due form from a judgment rendered by the circuit court of St. Louis county, in the sum of $20,000, in favor of respondent William Otto Payne, an infant suing by his next friend, and following the verdict of a jury assessing respondent's damages at that sum. The amount sued for was $50,000. The injuries complained of were sustained by respondent to his person on the 19th day of February, 1920, through a fall which occurred while he was walking upon the right of way and by the side of the tracks of the Missouri Pacific Railroad Company, after having alighted from a Missouri Pacific passenger train upon which he was a passenger, and which had stopped to let off passengers for Edgebrook Station in St. Louis county. There was no station building at Edgebrook, but only an alighting place made of chat or gravel, which extended along the track on either side of the signboard designating the stop "Edgebrook." This signboard is on the south side A passenger who was set down at night at of the tracks, which run east and west at an unfamiliar place beyond his station, and that point; and the position of the train followed a beaten pathway beside the tracks when it stopped on the night in question, and toward a light near the next station, held not the distance of the place where respondent For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

In an action for injuries to one falling into an unguarded sluiceway under railroad track, beside which he was walking after alighting from a train at a point beyond his station after dark, evidence held sufficient to establish the railroad's negligence in failing to light the station platform or its surroundings, carrying plaintiff beyond it, inviting him to alight in an unfamiliar place in the darkness, and failing to give him any warning or instructions.

6. Carriers 347(12)-Negligence of passenger carried beyond station to unfamiliar place, after dark, in walking beside track toward next station held for jury.