the evidence that the plaintiffs are the father and mother of the deceased, Edward W. Stanley; that the defendant Union Depot Railroad Company prior to and on June 25, 1890, owned a railroad track on and along said Twelfth street, and with the permission of the city of St. Louis operated its cars along and over said track, and that said Twelfth street was then a public street of the city of St. Louis; and the defendant Union Depot Railroad Company, at the time and place plaintiffs' said son was injured, negligently run and operated its cars and horses by which said son was hurt over and along said railroad track so rapidly as to endanger the safety of persons crossing or coming on said street at the point where said son was hurt, and if the jury further believe from the evidence that on June 25, 1890, Edward W. Stanley, the said son of plaintiffs, while crossing or passing along said street, was, as the direct consequence of running and operating said car and horses so rapidly as aforesaid, run against and knocked down by the said horses drawing said car of defendant Union Depot Railroad Company, and was run over and hurt by said horses or car, and so injured that he died from the effects thereof." The instructions given on behalf of the defendant the Union Depot Railroad Company, defined “ordinary care," in the fourth, as follows: "(4) By the term 'negligence,' as used in these instructions, is meant the want of ordinary care, and by the term 'ordinary care' is meant such care as persons of ordinary prudence and caution would exercise in the same situation and under the same circumstances."

It will be observed that the plaintiffs do not complain of the instructions given for defendant. If the court, in the instructions given, correctly and fairly defined the law of negligence in so far as it was applicable to the facts of the case, then it was not error to refuse other instructions, whether they embodied correct propositions of law or not. This, of course, raises the inquiry, what measure of care the street-car company owed to the little boy when he was attempting to cross its tracks in front of the car. We think there cannot be any doubt that the rule in this state requires ordinary care in such a case, and that ordinary care, under the rule, is such care as persons of ordinary prudence would exercise in the same situation and under the same circumstances. In Frick v. Railroad Co., 75 Mo. 595, this court, in discussing the measure of responsibility of a railroad company to travelers and others on its tracks at crossings, and at points between streets, held that greater care is to be exercised by those in charge of the train in a city or town than in the country; but in defining this care in such cases said: "In any case, the requisite degree of vigilance may be properly designated by the words 'ordinary care;' that is, such care as would be ordinarily used by prudent persons performing a like service under similar circumstances." This rule has been steadily maintained in this court since that decision. It is one that enables each jury in each recurring case to say, after a careful survey of all the facts, whether a

It

party has used that care that an ordinarily prudent person would have used under similar circumstances. It is one that is susceptible of practical application. furnishes the measure required by the law, and leaves to the triors of the fact the dotermination of the facts and fixing the liability under that rule. It is sufficiently elastic to meet the most aggravated case, or one containing the slightest negligence. By adhering to it the trial court avoids the common vice of commenting on the facts and invading the province of the jury. Wilkins v. Railway Co., 101 Mo. 93, 13 S. W. Rep. 893; Guenther v. Railway Co., 95 Mo. 286, 8 S. W. Rep. 371; 2 Shear. & R. Neg. § 457. The instructions given came fully up to this requirement, and there was no error in refusing the third in. struction of plaintiffs. It undertook to lay down a rule of diligence and vigilance which is incapable of legal measurement. It indicated something more than ordi-, nary care, and fell short of that extraordinary care which carriers owe to passengers. We think it an uncalled for innovation in the practice in these cases, and, if followed, would lead to confusion in the minds of the jury. If it required more than ordinary care, there is no warrant for it in law. If it only required ordinary care, then it was unnecessary, as that had been correctly defined in the other instructions. This court has more than once condemned the practice of making excerpts from the opinion or argument of the judge in the instructions in a case. The instructions should be so framed as to aid the jury, who are not lawyers, to understand the law of the case; and many expressions that are grasped at a glance by the lawyer would be wholly misleading to the average juror. As the question of the street railway's liability was fairly submitted to the jury, upon competent evidence, we have no right to disturb their verdict, and the judgment as to the Union Depot Railroad Company is affirmed.

2. The right to recover against the city is predicated upon the law that holds it responsible for nuisances in its streets that were known to be such by its proper anthorities, or by the exercise of ordinary care upon their part could have been known. It is not claimed it had any active agency in the death of the little boy, further than giving the Heman Construction Company a contract to build the sewer; and all idea of intentional connivance in creating a dangerous place on its streets is negatived by its ordinance, in evidence, which required the construction company to so place the excavated material as not to interfere with travel on the street, or incommode occupants of adjoining property, and observe all ordinances in relation to obstructing streets, maintaining signals, and keeping open passage. ways. So that, if liable at all, it was for negligence in permitting the construction company to violate its own ordinances by creating and maintaining a nuisance. As its liability depends, then, upon that, it is essential to know in what respect the Heman Company was negligent. The charge in the petition is that some three weeks before the death of the little boy

cult to place the responsibility where it should rest. The fact that the construction company may have built the granite wall too close to the car track, and that this was afterwards followed by an injury, does not make a case. The connection between the cause and effect must be established. It seems to us that under the allegations of the petition and the evidence in this case either the acts of the street-railway company or of the little boy were the proximate cause or direct cause of the injury, and that of the construction company, if at all, at most a remote cause. In the language of the cases there is no act of the construction company which in a natural and continuous sequence, unbroken by any new responsible cause, produced this most unfortunate result, and without which it would not have happened. The uncontradicted evidence shows that after the boy had passed through the wall he had 4% to 5 feet yet to stand or walk in before getting on the track. There was then no such position of danger as was described in the petition. As the public had never been in the habit of crossing the street at this place, but, on the contrary, had used the street along the walk left by the construction company, neither the railroad company nor the construction company could reasonably expect any one to blindly rush across the street at this place, more than at any other point; and, if not, then it cannot be said they might reasonably have anticipated the result. Had the little boy been walking south on the path of five feet left, and the extra horse had trampled on him by reason of not having room, another and different conclusion might have been reached as to both the railroad and construction company; but we have no such case before us. When the uncontradicted facts appear in the record it is competent for us to declare as a matter of law whether they constitute negligence, and under the facts disclosed herein we think the court below should have sustained the demurrer to the evidence, both as to the city and construction company, and for failure to do so the judgment is reversed. All of this division concur.

T. B. Haughawout, for appellant. McReynolds & Halliburton, for respondent.

BURGESS, J. This is a suit by attachment, commenced in the circuit court of Jasper county, taken by change of venue to the circuit court of Newton county, where it was tried on a plea in abatement on the 24th day of May, 1890, and judgment was rendered for plaintiff sustaining the attachment. On May 26, 1890, defendant filed its motion for a new trial, which was overruled June 30, 1890. On July 9, 1890, defendant filed affidavit for an appeal, which was granted, and defendant allowed 60 days in which to file a bill of exceptions. On the 13th day of November, 1890, the cause was tried on its merits, and judgment rendered for plaintiff; and on the 3d day of December, 1890, defendant filed its affidavit for an appeal from the judgment on the plea in abatement, which was allowed. There was but the one bill of exceptions filed, which was filed September 5, 1890, and no appeal was taken from the judgment on the merits. Under section 562, Rev. St. 1889, defendant could not appeal from the judgment against it on the plea in abatement; and while it properly saved its exceptions, and filed its bill of exceptions, it never did appeal from the judgment on the merits; and this was absolutely necessary in order to get the case before this court for review of the trial and judgment on the plea in abatement. Metzeuberger v. Keil, 31 Mo. App. 130; Mackey v. Hyatt, 42 Mo. App. 443; State v. Smith, 105 Mo. 6, 16 S. W. Rep. 1052; Fagley v. Vail, 11 Mo. App. 601; Duncan v. Forgey, 25 Mo. App. 310. Section 562, Rev. St. 1889, supra, expressly provides that the plaintiff in an attachment proceeding may appeal from the judgment on a plea of abatement against him, but it contaius no provision authorizing the defendant to appeal from a like judgment against him on a plea in abate. ment sustaining the attachment. It follows that, as no appeal was taken from the final judgment, this appeal must be dismissed. All concur.

D. M. OSBORNE & CO. v. FARMERS' MACH. CO.

(Supreme Court of Missouri, Division No. 2. March 14, 1893.)

ATTACHMENT-PLEA IN ABATEMENT-REVIEW ON APPEAL.

Where, in attachment, no appeal has been taken from a judgment for plaintiff in the trial on the merits, no review can be had of the judgment sustaining the attachment in a trial on defendant's plea in abatement, as the statutes do not provide for an appeal by defendant from such judgment.

Appeal from circuit court, Newton county; Joseph Cravens, Judge.

Action by D. M. Osborne & Co. against the Farmers' Machine Company. From a judgment for plaintiff, defendant appeals. Appeal dismissed.

STATE ex rel. ZIEGENHEIN, City Collector, v. SPENCER et al.

(Supreme Court of Missouri, Division No. 2. March 14, 1893.)

TAXATION-RAISING ASSESSED VALUATION-NOTICE.

Where a taxpayer has made due return of his personal property without any objection being made to the valuation, the assessor cannot raise it without notice to the taxpayer, even though the statutes contain no provision expressly requiring such notice.

Appeal from St. Louis circuit court; Daniel Dillon, Judge.

Suit by the state of Missouri, at the relation and to the use of Henry Ziegenhein, collector of the city of St. Louis, in the state of Missouri, against Horatio N. Spencer and Selden P. Spencer, to recover from defendants the amount of a back tax bill on personal property. Defendants

obtained judgment. Plaintiff appeals. Affirmed.

Rassieur & Schnurmacher, for appellant. Selden P. Spencer, for respondents.

SHERWOOD, J. Action by the collector of the city of St. Louis, under section 7626, Rev. St. 1889, against defendants upon a delinquent tax bill, amounting to $1,100, on personal property assessed at $50,000, and alleged to have been in their care and custody as trustees under the will of Lucy L. Keitland, deceased. The undisputed evidence shows that the defendants in proper time and manner made return to the assessor of the property in their custody, valuing the same at $33,853.69,-its correct valuation; that afterwards, without notice to them, this valuation was raised to the sum of $50,000, and the assessment raised accordingly; and that defendants knew nothing of this until the tax bill in suit was presented to them for payment, long after the time for appealing from the unjust assessment was past. Under the provisions of sections 7532, 7535, Rev. St. 1889, if no list be delivered to the assessor in proper time and manner, "the assessor shall himself make out the list," etc. The failure of the taxpayer to give in his list is the basis and condition precedent to any authority in the asssesor "to make out the list" for him. In this case, then, the act of the assessor was jurisdictionless and void, inasmuch as a proper list had already been returned by the defendants, and consequently no basis for the exercise of the assumed power existed. When the defendants in this cause delivered their list to the assessor without objection from him, they had the right to presume, and the law justified them in that presumption, that their valuation of the property was accepted, and would remain as delivered; and even if the assessor had authority to raise the assessment, he could not do this without notice to the party to be affected thereby. On this point an eminent jurist observes: "Provision for notice is therefore part of the 'due process of law' which it has been customary to provide for these summary proceedings; and it is not to be lightly assumed that constitutional provisions, carefully framed for the protection of property rights, were intended or could be construed to sanction legislation under which officers might secretly assess the citizen for any amount in their discretion, without giving him an opportunity to contest the justice of the assessment. It has often been very pointedly and emphatically declared that it is contrary to the first principles of justice that one should be condemned unheard; and it has also been justly observed of taxing officers that 'it would be a dangerous precedent to hold that any absolute power resides in them to tax as they may choose, without giving any notice to the owner. It is a power liable to great abuse;' and it might have been safely added, it is a power that, under such circumstances,

would be certain to be abused. "The general principles of law applicable to such tribunals oppose the exercise of any such power."" Cooley, Tax'n, (2d Ed.) 363, 364. Elsewhere the same author says: "The courts have been particularly careful to see that revisory tax tribunals did not change assessments to the prejudice of taxpayers who, under the circumstances, had no reason to look for or anticipate any such change. If the taxpayer himself does not appeal, he has a right to suppose that the assessment against him will be allowed to stand as made. If authority is conferred upon the board of review to change assessments under any specified circumstances, the existence of those circumstances is a condition precedent to their action." Id. 420. "So if a party has been illegally deprived of the opportunity to be heard in opposition to the assessment, the defect is jurisdictional." Id. 304, 305. The precise point under discussion was passed upon by the St. Louis court of appeals in Relfe v. Insurance Co., 11 Mo. App. 374, where it was held that, after an assessment is made, it does not lie in the power of the assessor to raise the original assessment on personal property without notice to the taxpayer. The same point has been ruled the same way in Illinois, McConkey v. Smith, 73 111. 313; Cleghorn V Postlewaite, 43 Ill. 428. See, also, on same point, People v Forrest, 96 N. Y. 544; Moors v. Commissioners, 134 Mass. 431. A similar conclusion was reached in Mining Co. v. Neptune, 19 Mo. App. 438, in regard to the board of equalization raising the assessment of personal property without notice to the owner. See, also, Pacific R. Co. v. Cass Co., 53 Mo. 17, where substantially the same principle is enunciated. It is true that the revenue la w does not require notice to be given to the taxpayer of any "raise" in the valuation of personal property, though it does as to real estate, and fixes a day when all parties in interest shall be heard, to wit, the fourth Monday of April; yet the omission is immaterial, since the law will imply that notice was intended. Wickham v. Page, 49 Mo. 526, Laughlin v. Fairbanks, 8 Mo. 370; Brown v. Weatherby, 71 Mo. 152; George v. Middough, 62 Mo. 549: State v. Board, (Mɔ. Sup.) 18 S. W. Rep. loc. cit. 784. It is contended, however, that the act of the assessor is judicial, and there fore that the defendants cannot maintain their defense. But whether judicial or not is immaterial to inquire, because, if his act here contested does indeed assume the proportions of a judgment, it is a judg ment without notice, and consequently void. Abbott v. Lindenbower, 42 Mo. 162; State v. Board, supra. As the defendant has not appealed from the action of the trial court in rendering judgment for the amount due for taxes on their tax list as delivered to the assessor, it is unnecessary to pass upon the point whether the plaintiff was entitled to any recovery on his tax bill. The premises considered, the judgment should be affirmed. All con

cur.