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the evidence that the plaintiffs are the party has used that care that an ordinari. father and mother of the deceased, Ed- ly prudent person would have used under ward W. Stanley; that the defendant Un- similar circumstances. It is one that is ion Depot Railroad Company prior to and susceptible of practical application. It on June 25, 1890, owned a railroad track furnishes the measure required by the law, on and along said Twelfth street, and with and leaves to the triors of the fact the dothe permission of the city of St. Louis termination of the facts and fixing the liaoperated its cars along and over said bility under that rule. It is sufficiently track, and that said Twelfth street was elastic to meet the most aggravated case, then a public street of the city of St. Louis; or one containing the slightest negligence. and the defendant Union Depot Railroad By adhering to it the trial court a voids Coinpany, at the time and place plaintiffs' the common vice of commenting on the said sun was injured, negligently run and facts and invading the province of the operated its cars and horses by which suid jury. Wilkins v. Railway Co., 101 Mo. 93, son was hurt over and along said railroad 13 S. W. Rep. 893; Guenther v. Railway track so rapidly as to endanger the safety Co., 95 Mo. 286, 8 S. W. Rep. 371; 2 Shear. of persons crossing or coming on said & R. Neg. $ 457. The instructions given street at the point where said son was came fully up to this requirement, and hurt, and if the jury further believe from there was no error in refusing the third in. the evidence that on June 25, 1890, Edward struction of plaintiffs. It undertook to W. Stuules, the said son of plain tiffs, lay down a rule of diligence and vigilance wbilecrossing or passing along said street, wbich is incapable of legal measurement. was, as the direct consequence of running It indicated sometbing more than urdi-, and opera ting said car and horses so rap- nary care, and fell short of that extraordic' idly as aforesaid, run against and knocked nary care which carriers owe to passendown by the said horses drawing said car gers. We think it an uncalled for innovaof defendant Union Depot Railroad ('om. tion in the practice in these cases, and, if pany, and was run over and hurt by said followed, would lead to confusion in the horses or car, and so injured tbat he died minds of the jury. If it required more than from the effects thereof." The instruc- ordinary care, there is no warrant for it in tions given on behalf of the defendant the law. If it only required ordinary care, Union Depot Railroad Company, defined then it was unnecessary, as that had been "(irdinary care,” in the fourth, as follows: correctly defined in the other instructions. “(4) By the term 'negligence,' as used in This court has more than once condemned these instructions, is meant the want of the practice of making excerpts from the ordinary care, and by the term 'ordinary | opinion or argument of the judge in cule'is meant such care as persons of or- the instructions in case. The indinary prudence and caution would exer- structions should be so framed as to aid cise in the same situation and under the the jury, who are not lawyers, to undersame circumstances.”

stand the law of the case; and many exIt will be observed that the plaintiffs do pressions that are grasped at a glance by not complain of the instructions given for the lawyer would be wholly misleading defendant. If the court, in the instruc- to the average juror. As the question of tions given, correctly and fairly defined the street railway's liability was fairly the law of negligence in so far as it was submitted to the jury, upon competent applicable to the facts of the case, then it evidence, we have no right to disturb their was not error to refuse other instructions, verdict, and the judgment as to the Union whether they embodied correct proposi. | Depot Railroad Company is affirmed. tions of law or not. This, of course, raises 2. The right to recover against the city the inquiry, what measure of care the is predicated upon the law that holds it street.rar company owed to the little boy responsible for nuisances in its streets that when he was attempting to cross its were known to be such by its proper alltracks in front of the car. We think there thorities, or by the exercise of ordinary cannot be any doubt that the ruin in this care upon their part could have been state requires ordinary care in such a case, known. It is not clained it had any and that ordinary care, under the rule, is active agency in the death of the little such care as persons of ordinary prudence boy, further than giving the Heman Conwould exercise in the same situation and struction Company a contract to build the under the same circumstances. In Frick v. sewer; and all idea of intentional conniv. Railroad Co., 75 Mo. 595, this court, in dis-ance in creating a dangerous place on its cussing the measure of responsibility of a streets is negatived by its ordinance, in railroad company to travelers and others evidence, which required the construction on its tracks at crossings, and at points company to so place the excavated matebetween streets, held that greater care is rial as not to interfere with travel on the to be exercised by those in charge of the street, or incommode occupants of adjointrain in a city or town than in the coun- ing property, and observe all ordinances try; but in defining this care in such cases in relation to obstructing streets, mainsaid: “In any case, the requisite degree of taining signals, and keeping open passage. vigilance may be properly designated by ways. So that, if liable at all, it was for the words ordinary care;' that is, such negligence in permitting the construction care as would be ordinarily used by pru- company to violate its own ordinancus dent persons performing a like service un | by creating and maintaining a nuisance. der similar circumstances." This rule has As its liability depends, then, upon that, been steadily maintained in this court since it is essential to know in what respect the that decision. It is one that enables each Heman Company was negligent. The jury in each recurring case to say, after charge in the petition is that come three a careful survey of all the facts, whether a weeks before the death of the little boy this construction company, by virtue of ble, and this of itself was praiseworthy. its contract to construct the Thirteenth So that the case is at last reduced to the street sewer, had made an excavation on charge that this wall was so constructed, the west side of Twelfth street, just north and aperture left in it, that it invited the of the Twelfth street bridge, about 200 public to step from it, immediately into a feet long, 5 feet deep, and 8 or 10 feet wide; place of danger. As to this, the evidence that in making this excavation it took up showed without substantial contradiction the granite blocks with which the street that the west rail of the street-car track was pa ved, and piled them along the east- at this point was 4 to 5 feet from the ern edge of the excavation between the east line of the granite wall, witb do odexcavation and the traveled street; that struction whatever in the walk so left, it negligently did this. It is further alleged south, to the bridge. Nor was there any that it negligently left an open space or street crossing connecting with this openaperture in this temporary wall, at a point ing, nor does the evidence tend to show about 9 feet north of Twelfth street that this opening invited travelers to bridge, and built a bridge connecting this cross the street at this point, or that they aperture with the sidewalk along the bad been in the habit of so doing. On the west side of Twelfth street, in such a man. contrary, the evident intention was to ed. ner that pedestrians crossing paid foot able tbem to continue north and south on bridge from the sidewalk to the street the west side of the street, without crosswere obliged to step out of and through ing the street. This created a temporary said aperture immediately upon said rail. inconvenience, but in what way did it conroad track, and in front of approaching tribute to the injury? The petition dues cars. Said ditch and wall extended from not show bow said construction company Spruce street, which crosses Twelfth street in any way caused or compelled the railat right angles, alongside of said railroad road company to act negligently in the track to the north end of said Twelfth premises; on the contrary, granting that street bridge, and pedestrians passing in the combination of circumstances charged eitber direction along the west side of was negligence on the part of the consaid Twelfth street were unable to cross struction company, the pleader a vers a said ditch and wall and go upon or over state of facts which show that the said Baid Twelfth street bridge at any other negligence of the Heman Construction place or in any other way than across said Company was broken by a new, independ. foot bridge, and through said aperture, ent cause, to wit, tbe vegligence of the upon and over said railroad track, and in Union Depot Railroad Company, without front of approaching cars as aforesaid. whose active agency no harm could have

It cannot certainly be successfully main- resulted to the boy. tained that a municipal corporation may There is no doubt about the proposition not lawfully dig sewers so as to drain the that joint tort feasors are each liable, but city and promote tbe health of the iobab- to bold them jointly liable they should itants. It is the right and duty of thecity have either acted in concert or the act of to bave a proper sewer system. There is, one would naturally result in causing the then, norbing reprehensible in the purpose act of the other. Now, it cannot be logicof the excavation itself, nothing that ally or reasonably maintained that the would denote indifference to the inter- building of this sewer, wall, and bridge, ests of the public, either in providing for as they were on the day of the accident, in the construction of the sewer or the ordi- any manner caused the Union Depot Railnance under which it was built. No im- way Company to disregard the ordinan. provements in a city could be made if such ces of the city as to speed, or in any way a rule were adopted. Temporary incon. relieved its drivers from the duty of keepvenience must be submitted to in building ing their teams under control, and a sharp houses abutting on the streets, and lay- | lookout ahead. They were independent ing pipes and making sewers in cities. Or agencies; neither had the slightest con. course, for negligence in leaving the same trol over or connection with the other. in an unguarded condition, or without Their acts, as alleged, were separate and signals, the city and contractor would be distinct. With a space of five feet to liable. But wbile it was alleged that the walk in, could the sewer company reawall was negligently built, and the bridge sonably anticipate that persons would negligently constructed, it is not pretend. blindly walk out and beyond it upon the ed that any defect in the construction of railroad track? Could the little boy, Stan. either caused the injury. The boy was ley, have heedlessly attempted to run not hurt by the falling of the wall. He across the street in front of the car if there did not fall in the ditch because the bridge bad been no ditch, no bridge, no wall of was too narrow, or otherwise defective. granite, and no aperture in the wall? He did not wander into the sewer for And, if so, could be have been run over by want of signals or guards. Although it is the car and killed, as he was? It is evialleged that it was negligent to build iton dent he could. If he could, then all these the east side of the excavation, it is evi- acts of the city and construction con pany dent that this of itself did not cause the could be discarded, and the death of the injury; indeed, it would seem that it boy attributed to other causes, either to would have ordinarily afforded more safe- bis own heedlessness or the negligence of ty to the public.

the car company. There is, then, no necAs to the opening in the wall, it would essary connection between his death and seen that the construction company was the construction of the sewer as it was. unilea voring to avoid obstructing the Many refinements have been indulged in street, aud endeavoring to facilitate travel by text writers and judges as to remote in its accustomed route as much as possi- and proximate cause, and it is often difficult to place the responsibility where it T. B. Haughawout, for appellant. Mcshould rest. The fact that the construc. | Reynolds & Halliburton, for respondent. tion company may have built the granite wall too close to the car track, and that BORGESS, J. This is a suit by attachthis was afterwards followed by an in- ment, commenced in the circuit court of jury, does not make a case. The connec- Jasper county, taken by change of venue tion between the cause and effect must be to the circuit court of Newton county, established. It seems to us that under where it was tried on a plea in abatethe allegations of the petition and the ment on the 24th day of May, 1890, and evidence in this case either the acts of the judginent was rendered for plaintiff susstreet-railway company or of the little taining the attachment. On May 26, 1890, boy were the proximate cause or direct defendant filed its motion for a new trial, cause o! the injury, and that of the cou- which was overruled June 30, 1890. On struction company, if at all, at most a re- July 9, 1890, defendant filed affidavit for mote cause. In the language of the cases an appeal, which was granted, and defendthere is no act of the construction compa- ant allowed 60 days in which to file a bill ny which in i natural and continuous se- of exceptions. On the 13th day of Noquence, unbroken by any new responsible vember, 1890, the cause was tried on its cause, produced this most unfortunate re- merits, and judgment rendered for plainsult, and without which it would not tiff; and on the 3d day of December, 1890, have happened. The uncontradicted evi. defendant filed its affidavit for an appeal dence shows that after the boy had passed from the judgment on the plea in abatethrough the wall he bad 4% to 5 feet yet to ment, which was allowed. There was but stand or walk in before getting on the the one bill of exceptions filed, which was track. There was then no such position filed Septenber 5, 1890, and no appeal was of danger as was described in the petition. taken from the judgment on the merits. As the public had never been in the babit | Under section 562, Rev. St. 1889, defendant of crossing the street at this place, but, could not appeal from the judgnient on the contrary, had used the street along against it on the plea in abatement; and the walk left by the construction com- while it properly saved its exceptions, papy, neither the railroad company por and filed its bill of exceptions, it never did the construction company could reasotia- appeal from the judgment on the merits; bly expect any one to blindly rush across and this was absolutely necessary in orthe street at this place, more than at any der to get the case before this court for other point; and, if not, then it cannot be review of the trial and judgment on the said they might reasonably have antici- | plea in abatement. Metzenberger y. Keil, pated the result. Had the little boy been 31 Mo. App. 130; Mackey v. Hyatt, 42 Mo. walking south on the path of five feet leit, App. 443; State v. Smith, 105 Mo. 6, 16 S. and the extra horse had trampled on him W. Rep. 1052; Fagley v. Vail, 11 Mo. App. by reason of not having room, another 601; Duncan v. Forgey, 25 Mo. App. 310. and different conclusion might have been Section 562, Rev. St. 1889, supra, express. reached as to both the railroad and con- ly provides that the plaintiff in an attachstruction company; but we have no such ment proceeding may appeal from the case before us. When the uncontradicted judgment on a plea of abatement against facts appear in the record it is competent i him, but it contaius no provision authorfor us to declare as a matter of law wheth- izing the defendant to appeal from a like er they constitute negligence, and under judgment against him on a plea in abate. the facts disclosed herein we think the ment sustaining the attachment. It fol. court below should have sustained the de- lows tbat, as no appeal was taken from murrer to the evidence, both as to the city the final judgment, this appeal must be and construction company, and for failure dismissed. All concur. to do so the judgment is reversed. All of this division concur.

STATE ex rel. ZIEGENHEIN, City Collector,

V. SPENCER et al. D. M. OSBORNE & CO. V. FARMERS'

(Supreme Court of Missouri, Division No. 2. MACH. CO.

March 14, 1893.) (Supreme Court of Missouri, Division No. 2. TAXATION-RAISING AssessED VALUATION-NOMarch 14, 1893.)

TICE. ATTACHMENT-PLEA IN ABATEMENT - REVIEW ON

Where a taxpayer has made due return APPEAL.

of his personal property without any objection Where, in attachment, no appeal has

being made to the valuation, the assessor canbeen taken from a judgment for plaintiff in the

not raise it without notice to the taxpayer, trial on the merits, no review can be had of the

even though the statutes contain no provision judgment sustaining the attachment in a trial on

expressly requiring such notice. defendant's plea in abatement, as the statutes do not provide for an appeal by defendant from

Appeal from St. Louis circuit court; such judgment.

Daniel Dillon, Judge.

Suit by the state of Missouri, at the reAppeal from circuit court, Newton lation and to the use of Henry Ziegencounty; Joseph Cravens, Judge.

hein, collector of the city of St. Louis, in Action by D. M. Osborne & Co. against the state of Missouri, against Horatio N. the Farmers' Machine Company. From Spencer and Selden P. Spencer, to recover a juclgment for plaintiff, defendant ap- from defendants the amount of a back tax peals. Appeal dismissed.

bill on personal property. Defendants power.""

obtained judgment. Plaintiff appeals. would be certain to be abused. “The genAffirmed.

eral principles of law applicable to such Rassieur & Schnurmucher, for appellant.

tribunals oppose the exercise of any such Selden P. Spencer, for respondents.

Cooley, Tax'n, (20 Ed.) 363, 364. Elsewhere the same author says: "The

courts have been particularly careful to SHERWOOD, J. Action by the collect- see that revisory tax tribunals did not or of the city of St. Louis, under section change assessments to the prejudice of 7626, Rev. St. 1889, against defendants up- taxpayers who, under the circumstances, on a delinquent tax bill, amounting to had no reason to look for or anticipate $1,100, on personal property assessed at any such change. If the taxpayer himself $50,000, and alleged to have been in their does not appeal, he has a right to suppose care and custody as trustees under the that the assessment against him will be will of Lucy L. Keitland, deceased. The allowed to stand as made. If authority undisputed evidence shows tbat the de- is conferred upon the board of review to fendants in proper time and manner made change assessments under any specified return to the assessor of the property in circumstances, the existence of those cirtheir custody, valuing the same at $33,- cunstances is a condition precedent to 853.69,-its correct valuation; that after- their action." Id. 420. “Su if a party has wards, without nu-tice to thein, this valu. been illegally deprived of the opportunity ation was raised to the sum of $50,000, to be heard in opposition to the assessand the assessment raised accordingly; ment, the defect is jurisdictional.” Id. 301, and that defendants knew nothing of 305. The precise, point under discussion this until the tax bill in suit was present- was passed upon by the St. Louis coort ed to them for payment, long after the of appeals in Relfe v. Insurance Co., 11 Mo. time for appealing fron the unjust assess. App. 374, wbere it was held that, after an ment was p&st. Under the provisions of assessment is made, it does not lie in the sections 7532, 7535, Rev. St. 1889, if no list power of the assessor to raise the original be delivered to the usnessor in proper time assessment on personal property without and manner, " the assessor shall himself notice to the taxpayer. The same point make out the list," etc. The failure of the has been ruled the same way in Illinois. taxpayer to give in his list is the basis McConkey V. Smith, 73 11. 313; Cleghorn and condition precedent to any authority Postlewaite, 43 III. 428. See, also, on in the asssesor “ to make out the list" for same point, People v Forrest, 96 N. Y. him. In this case, then, the act of the as. 544; Moors v. Commissioners, 134 Mass. sessor was jurisdictionless and void, in. 431. A similar conclusion was reached in asmuch n8 a proper list had already been Mining Co. v. Neptune, 19 Mo. App. 438, in returned by the defendants, and conse- regard to the board of equalization raisquently no basis for the exercise of the as. ing the assessment of personal property sijmed power existed. When the defend- without notice to the owner. See, also, ants in this cause delivered their list to Pacific R. Co. v. Cass Co., 53 Mo, 17, where the assessor witbout objection from him, substantially the same principle is enupthey had the right to presume, and the ciated. It is true that the revenue law law justified them in that presumption, does not require notice to be given to the that their valuation of the property was taxpayer of any “rajse" in the valuation accepted, and would remain as delivered; of personal property, though it does as to and even if the assessor had authority to real estate, and fixes a day when all parraise the assessment, he could not do this ties in interest shall be beard, to wit, the without notice to the party to be affected fourth Monday of April; yet the omission thereby. On this point an eminent jurist is immaterial, since the law will imply observes: “Provision for notice is there that notice was intended. Wickham v. fore part of the 'due process of law' which Page, 49 Mo. 526, Laughlin v. Fairbanks, 8 it has been customary to provide for these Mo. 370; Brown y. Weatherby, 71 Mo. 152; summary proceedings; and it is not to be George v. Middougb, 62 Mo. 549: State lightly assumed that constitutional provi. v. Board, (Mɔ. Sup.) 18 S. W. Rep. loc. cit. sions, carefully framed for the protectiou 784. It is contended, however, that the of property rights, were intended or could act of the assessor is judicial, and there be construed to sanction legislation under fore that the defendants cannot maintain which officers might secretly assess the their defense. But whether judicial or citizen for any amount in their discretion, not is iminaterial to inquire, because, if without giving bim an opportunity to his act here contested does indeed assume contest the justice of the assessment. It the proportions of a judgment, it is a judg has often been very pointedly and emphat. (ment without notice, and consequently ically declared that it is contrary to the void. Abbott_v. Lindenbower, 42 Mo. first principles of justice that one should be 162; State v. Board, supra. As the decondemned unheard; and it has also been fendant has not appealed from the action justly observed of taxing officers that of the trial court in rendering judgment

it would be a dangerous precedent to for the amount due for ta ses on their tax hold that any absolute power resides in list as delivered to the assessor, it is unthem to tax as they may choose, without necessary to pass upon the point whether giving auy potice to the owner. It is a the plaintiff was entitled to any recorery power liable to great abuse;' and it on his tax bill. The premises considered, might have been safely added, it is a the judgment should be affirmed. Allcon. power that, under such circumstances,

cur.

Mo.)

GREEN 0. CONRAD.

839

son

and bind them on appeal to this court. GREEN v. CONRAD et al.

Upon a hearing in this court, April term, (Supreme Court of Missouri, Division No. 2.

1886, the final decree of the circuit court March 14, 1893.)

was affirmed, but the judgment was re

versed and remauded, to the end that a ASSIGNMENT FOR BENEFIT OF CREDITORS-APPEAL

final decree might be entered in the circuit Boxes-PARTIES-COUNTERCLAIM.

court in accordance with certain modifica1. An assignee for the benefit of creditors

tions in the amounts made in this court. takes the assigned estate subject to all offsets existing at the time of the assignment.

Ward v. Davidson, 89 Mo. 445.1 S. W. Rep. 2. Where, after the death of the principal

846. On the 15th January, 1881, the packet obligor on a bond, suit is brought on the bond company became insolvent, and on that against the sureties, the principal's executor may day made an assignment to Charles Green, on application be allowed to become a party, for tbe benefit of its creditors, under the defendant.

laws of Missouri. He qualified as such, 3. Under Rev. St. 1889, $ 2050, which gives

and has ever since been the assignee of the the defendant "in an action arising on contract" the right to counterclaim "any other cause of

corporation. Clubb, who was appointed action arising also on contract, and existing at

receiver in 188), was discharged in 1888, the commencement of the action," when prin- and ordered to turn over all assets in his cipal and sureties on an appeal bond are sued hands to Green, the assignee. When the on the bond, they may plead as a counterclaim decree and judgment above referred to a judgment obtained by the principal obligor were rendered by the circuit court,-Octoagainst the obligee in the bond upon a debt ex

ber 28, 1880,—the said William F. Davidisting at the time the judgment appealed from was rendered.

was the owner of nine promise ory 4. An action on an appeal bond is "an ac

notes made by said packet company, a tion arising on contract, within the meaning

statement of which is given in the record. of said statute, even though the judgment ap- These notes were dated on different days, pealed from was rendered for a tort, since the commencing with December 10, 1879, and tort becomes merged in the judgment.

ending with October 28, 1880, and aggre5. The fact that a creditor of an insolvent

gate at their face $27,092.11. These notes does not present his claim to the assignee for allowance does not bar him from asserting it as

have not been paid. When they were exa counterclaim when sued by the assignee upon

ecuted the said packet company was run. a debt due by him to the insolvent.

ning a line of packets between St. Louis

and St. Paul, engaged in the transporta. Appeal from St. Louis circuit court; tion of freight and passengers. On or Daniel Dillon, Judge.

about the 7th of October, 1884, the said Action hy Charles Green, assignee of the William F. Davidson, being a resident of Keokuk Northern Line Packet Company, Minnesota, and the packet company hav. against Peter Courad, Christopher Sharp, ing a residence and place of business in St. admjuistrator with the will annexed of Paul, in said state, brought suit agaiust Peter Lehman, deceased, and Frank L. the company on said notes in the district Johnson, executor of William F. David- couit of Ramsey county, Minn.

The comson, deceased, to recover upon three ap- pany was duly served with process, and peal bonds. Defendants obtained judy- on the 26th day of March, 1885, a judgment ment. Plaintiff appeals. Affirnied.

against the company and in favor of DaThe other facts fully appear in the fol- vidson upon said notes for the principal lowing statement by GANTT, P. J.:

and interest thereof was rendered for the The Keokuk Northern Line Packet Com- sum of $45,778.56 and costs. The judgment pany was a corporation created under the is unsatisfied. And on the 19th of March, lars of Missouri, and for some years prior 1887, said William F. Davidson, by leave to 1880 was engaged in the transportation of court first obtained, brought suit of passengers and freight between St. against said packet company in thecircuit Louis and St. Paul on the Mississippi court of the city of St. Louis upon said river. On the 28th of October, 1880, James Minnesota judgment, and, service being Ward et al. recovered judgments in the had on the company, obtained judgment St. Louis circuit court against William F. against it on the 10th day of May, 1887, by Davidson et al. for $1.952, against David-default, for $51,626.95. No appeal was son alone for $3,435, and against William taken from this judgment, and it remains F. and Peyton S. Davidson for $20,081. unsatisfied. This judgment is set forth in The decree went further, and removed record. William F. Davidson, who was president The appellant, as assignee, gave due noof the said packet company, from his posi- tice by publication and by mail to the credtion as president and director, and or- itors of the corporation, and, among othdered an election to fill his place. The ers, to the said William F. Davidson, of court also appointed Samuel Clubb as re- his intention to hear and allow demands ceiver of the company. Appeals were against the estate of the said corporation, taken from each of said judgments, and as required by law, and proceeded to hear three general supersedeas bonds were and allow demands, but neither the said given, and approved by the court. In William F. Davidson, who was then liv. each of said bonds William F. Davidson ing, presented, nor did the executors of his was principal and Peter Conrad and Peter will, after his death, present, either the said Lehman were sureties. The causes were notes of the said judgments, or either of first appealed to the St. Louis court of them, in his favor, above referred to, for appeals, where they were affirmed pro for- | allowance against said assignee. The asma, and then appealed to this court, the sets of Huid assigned estate were wholly said sureties consenting in writing that inadequate to pay the claims which were their obligations on the bonds for appeal allowed against the estate in full, and no to tbe court of appeals should continue | dividend has been paid on any of the al.

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