tion will take effect upon the event of its organization; for its acceptance of the deed, when it becomes capable of accepting, will be presumed. Much more so in this case, where certain persons intending to form a corporation solicit and are tendered such a franchise as this, and they proceed to become incorporated. It was intended to operate only in the

event of incorporation, and when it should take place. No delivery was necessary. Acceptance is all-sufficient to put the ordinance into operation. Then it took effect; not till then. Richardson v. Graham, 45 W. Va. 134, 30 S. E. 92.

Our conclusion is to affirm the decree.

Peter GRANEY et al., Respts.,

V.

ST. LOUIS, IRON MOUNTAIN, & SOUTHERN RAILWAY COMPANY, Appt.

(........Mo.........)

1. Upon appeal from an order granting plaintiff a new trial for error in giving instructions, the only questions open for review are errors of law, and whether or not

there is any basis in the evidence for a ver

dict in plaintiff's favor.

2. A bright, intelligent boy nearly twelve years old, familiar with the operation of trains. cannot, when stopped at a street crossing by a passing train, presume that it is running less than 6 miles an hour, if by looking he can see that it is running faster.

3. A railroad company is not liable for injury to one standing at a street crossing waiting for a train to pass, by being drawn under the train by suction, if

such result was not one which a man of or

dinary prudence and circumspection could reasonably anticipate as likely to occur from the speed at which the train was moving. 4. A professor of physics of twentyfour years' experience, who has traveled 10,000 miles and made experiments on the effect of a moving train on the air around it, cannot express the opinion, as an expert witness, that the tendency of a train of a certain length moving at a certain speed would be to suck persons standing near it under its wheels, if he is not shown to have any knowledge of that fact by reading, experiment, or observation.

5. An expert witness cannot give his opin

ion as to one of the disputed facts of the case. 6. An allegation in a complaint that a boy was sucked under a train by its velocity | is not supported by evidence that the wind turned him around and made him fall, and that he rolled under the cars.

(Brace J., dissents.)

(June 4, 1900.)

NOTE.-Professor Nipher, an abstract from whose testimony is given in the above case, filed a pamphlet with the St. Louis Academy of Science, November 12, 1900, in which he gives the results of certain experiments conducted by him as to the effect of the air pressure along the side of a moving train. He constructed an instrument composed of a hollow cylinder of brass, which might be used to collect the pressare by turning the open end toward the head of the train when the instrument was carried on board a train in motion. The collector was connected through a small hole in the bottom by means of a rubber tube, to a water gauge in the car. This gauge consisted of a closed cistern of water having an inclined glass tube

A

PPEAL by defendant from an order of the Circuit Court for St. Louis County granting a new trial after verdict for defendant in an action brought to recover damages for the alleged negligent killing of plaintiff's minor son. Reversed.

The facts are stated in the opinion. Messrs. Martin L. Clardy and Henry G. Herbel, for appellant:

Deceased saw the train, and, standing, ashe was, by the side of it, knew its rate of speed was unlawful, or, at least, he was not entitled to indulge the presumption that it was running less than 6 miles per hour.

Graney v. St. Louis, I. M. & S. R. Co. 140. Mo. 100, 38 L. R. A. 633, 41 S. W. 246; Spillane v. Missouri P. R. Co. 135 Mo. 414, 37 S. W. 198; Shearm. & Redf. Neg. § 73; Nagle v. Allegheny Valley R. Co. 88 Pa. 35, 32 Am. Rep. 413; Elliott, Railroads, § 1261; Powers v. Chicago, M. & St. P. R. Co. 57 Minn. 332, 59 N. W. 307; Tucker v. New York C. & H. R. R. Co. 124 N. Y. 308, 26 N. E. 916.

In determining what is the proximate cause, the true rule is that the injury must be the natural and probable consequence of the negligence,; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from his acts.

Hoag v. Lake Shore & M. S. R. Co. 85 Pa.. 293, 27 Am. Rep. 653; Patterson, Railway Accident Law, § 14.

dence, and errors, if any, in the instructions, The verdict is clearly right on the evi

will be treated as harmless.

Rev. Stat. 1889, § 2303; McGrew v. Missouri P. R. Co. 109 Mo. 589, 19 S. W. 53; Bradford v. Floyd, 80 Mo. 207; Noble v. Blount, 77 Mo. 235; Frick v. St. Louis, K. C. & N. R. Co. 75 Mo. 595; Sparling v. Conway, 75 Mo. 510; Nelson v. Foster, 66 Mo. 381; Gray v. Missouri River Packet Co. 64 leading from the bottom. The air pressure was transmitted from the collector to the air chamber above the water in the cistern, and an increase of pressure was shown by the rise in the level of the water in the inclined tube.

He states that he spent a large portion of one summer in experimenting, and that part of the time his operations were conducted on a car specially fitted up for the purpose of the experiments. The observations were made on fast passenger trains which made long runs at fairly uniform speed. The collector was stationed at various distances from the side of the car, from 0 to 30 inches. The following tabie gives the result of the observation as determined by 87 separate experiments at each dis

the 19th day of January, 1891, died from the result of said injuries." Answer, a general denial, and a plea of contributory negligence, alleging that the injury to and death of plaintiffs' minor son "were caused by his own negligence and unlawful conduct in loitering about defendant's tracks while the trains of defendant were moving thereon, and placing himself in such close proximity to such moving trains as to be struck thereby, and in meddling and tampering with the cars composing defendant's train while they were in motion, and in attempting to climb upon them, in violation of the statutes of the state of Missouri, viz., § 3927, Rev. Stat. 1889, and of the ordinances of the city of St. Louis, to wit, Ordinance No. 13,414." On the trial the ordinances were read in evidence.

It is admitted that James Graney was killed on January 18, 1891, by being run over by a train of freight cars operated by defendant, and that he was the minor son of plaintiffs. It is also admitted that on the date mentioned defendant controlled and operated a railroad a portion of which is located in the city of St. Louis. It had two tracks, running north and south, which crossed Dorcas street at right angles. This street runs east and west. On Sunday afternoon, January 18, 1891, James Graney, then eleven years and nine months old, and four other boys, to wit, Peter Graney, Jr., Philip Breitwieser, John Ehret, and Pat Harvey, went down Dorcas street from the west, intending to cross the railroad track, and go down within half a block of the Mississippi river, to a trestle used for the track from the Anheuser-Busch Brewery, where hops were deposited after being used. When close to the crossing, a freight train of twentythree cars, drawn by an engine, came to the crossing from the south, on the east track, at the rate, it is said, of 20 miles an hour. James Graney stood between the two tracks, 2 or 3 feet from the west rail of the east track on which the train was passing. When about one half or two thirds of the train had passed, witnesses testify that he whirled around, and fell upon the ground, and that his legs got upon the rails, and the cars passed over them, from the effects of which injury he died the next day. The boy is said to have weighed 63 pounds, but there is not a particle of evidence on this subject, except an estimate of his weight by his mother and by the undertaker. It was also in evidence that the boy lived but a little way from the railroad tracks, and was quite expert in, and in the habit of, hopping on and off the pass ing trains, and was a bright, active, intelligent boy.

The testimony of the two experts will now, in brief, be stated.

Prof. Francis E. Nipher, a professor of physics in Washington University for over twenty-three years, after testifying to these facts, was questioned, and gave the following answers:

t

been in the habit of observing the movement of bodies through the air? A. Yes, sir.

Q. State what has been your experience in observing the motion of railway trains through the air, and what experiments have you made in that direction?

A. I have traveled about 10,000 miles, I presume, and during that time have made experiments on the effect of the train on the air around it.

Q. Is there any well-known law of science by which it is known that a body, such as a railroad train, affects the air as it passes through it?

A. Yes, sir; there is. When the body moves through the air it drags the air along with it, and usually the air moves somewhat less rapidly than the body. The same is true of any other liquid.

Q. Could you illustrate that by the revolving of any instrument?

A. I have examined it by instrumental means and experimenting, both from the ground as the train passed, and also experimenting from the train. Experimenting from the ground, as the train passes, only makes it possible for the experiment to last during a very few minutes while the train is passing. The best information is gotten by experimenting from the inside of the train, as then the experiment can last as long as you please. If you measure the pressure due to the wind, by means of an experìment from the train window, the wind pressure is less near the train, and as you project the instrument further out the wind pressure increases, and when you get the instrument reached out into the undisturbed air, or less disturbed, the wind pressure there corresponds to the motion of the train. It gives the same pressure as a wind of the train speed would give, or nearly that. But the air nearest to the train is moving to a large extent with it, so that, measuring from the train, that wind pressure is much less, and that is the air which would give the greatest pressure if you were standing on the ground near the train, because that air is moving with the train.

Q. What would you say with reference to an engine with twenty or twenty-three freight cars, as to the pressure of the air? A. Such a train carries along a great deal of air with it, and anyone can observe this fact by standing near enough to it.

2. Suppose it was running at the rate of 20 miles an hour; what would you say?

A. If the conditions were right, there would be a very appreciable effect. A person standing near the train would receive a blow from this air moving with the train, and that blow might be sufficient to topple him over, and cause him to lose his footing.

Q. Now, suppose a small boy, weighing about 63 to 65 pounds, standing near a train running 25 miles an hour; what would you say would be the effect of the velocity of the air created by the train on that boy?

4. That might have the effect of throwing

ency to turn him around slightly,-a tendency that would be sufficient to make him roll when he struck the ground.

Q. Would that occur if the train was running at 6 miles an hour?

4. No, sir; it would not.

Q. You have heard the testimony in this case of these young men, and of Mrs. Vogel, in reference to the accident, did you not? A. I did.

Q. You heard the testimony in this case of the young men and of Mrs. Vogel in regard to the manner in which the boy fell. I will ask you if such a fall as that were possible without the boy striking the train or the train striking the boy.

A. Yes, sir; I think it would be.

Defendant saved exception to this last question and answer.

Prof. Calvin M. Woodward testified: "That he was professor of mathematics and mechanics in the Washington University, and director of the Manual Training School. Had been teaching mechanics for thirty years in the university. Had studied all the problems connected with motion and force,-both force produced by motion, and motion produced by force, and had made a great many general experiments. The actions of forces of air are perfectly well understood by scientific men. The moving air always produces a pressure upon the surface of bodies that are at rest. The extent varies according to the velocity of the current of air. In the case of wind produced by a train of cars, the velocity of such wind is greatest near the car, and diminishes sideways; so that at a distance of several feet from the train the velocity of the wind produced by that train would be considerably less than at or near the train. A train of twenty cars running at the rate of 20 miles an hour would produce a very strong wind along the sides of the train. It would produce a steady current along the sides, more than a very short one would. If a small boy, weighing from 63 to 65 pounds, was standing near a train running at 20 to 25 miles an hour, the effect of the air created by the velocity of the train would be to produce a strong pressure upon the body of the boy, that would tend to tip him over, and somewhat to turn him. Whether it would throw him down or not would depend upon the position of his feet. If his feet were close together, he would be in a very unstable position, and would easily lose his balance and be thrown down. He did not think it possible that anybody could be blown over by a train going 6 miles an hour. He stated he had heard the testimony of the witnesses to the accident, and thought it was entirely possible that the boy fell in that manner without striking the train or the train striking the boy."

It is not asserted by plaintiffs that deceased was struck by the cars. On the contrary, it is averred that he was not struck, but it is insisted that he was thrown to the ground and drawn under the cars by the force of the current of air caused by the speed at which the train was moving. At

the close of all the evidence defendant's counsel asked the court to give an instruction in the nature of a demurrer to the evidence, which was refused. The results of the trial were a verdict for defendant, and a motion for a new trial by plaintiffs, which motion was granted, and defendant appeals.

The trial court, as required by § 801, Rev. Stat. 1899, specified of record the grounds on which the new trial was granted. They were: The giving of the first and sixth instructions at the instance of defendant, which are as follows: "(1) The jury are instructed that the deceased, James Graney, had no right to presume that the train was running at less speed than 6 miles per hour, when, by looking, he could see that it was moving faster." "(6) The jury are also instructed that, although they may believe from the evidence that the speed of the train was as great as 20 miles an hour, and that such rate of speed was in excess of the rate of speed permitted by the ordinance of the city of St. Louis, and although, as a result of such excessive rate of speed, the minor son of the plaintiffs, standing at a reasonable distance and out of danger from the train, ordinarily, was drawn in by the suction of the train, and in consequence was injured so as to cause his death, yet, if such result was not one which a man of ordinary prudence and circumspection could reasonably anticipate as likely to occur from such a rate of speed, then plaintiffs are not entitled to recover in this case, and the verdict should be for the defendant."

1. The section of the statute already referred to first made its appearance in its present shape in Laws 1887, p. 230 (Rev. Stat. 1889, § 2241). Section 2246, p. 91, Laws 1895 (now § 806, Rev. Stat. 1899), is in pari materia with § 801 aforesaid, and they are to be construed together. The only effect, and the only intended effect, of the statutes since the laws of 1891 and 1895 in allowing appeals from judgments less than final is precisely the same as it was when an appeal lay alone from a final judgment. In such circumstances, just as formerly under the old practice, the only grounds on which this court will interfere are for errors of law (that is, judicial errors), or where there is no basis in the evidence on which a verdiet for the plaintiff should be permitted to stand, or where the verdict is plainly the result of passion or prejudice, etc. This subject is elaborately discussed by Marshall, J., in Haven v. Missouri R. Co. (Mo.) 55 S. W. 1035, and the conflicting decisions of this court on the point contrasted.

2. Looking, then, to the instructions under review, I do not find any error committed in the first one, because it is in evidence that James Graney was thoroughly conversant with the running of trains. His comrades who were there present with him before the train arrived at the crossing, when the train was seen approaching, all say that it was running very rapidly. He was in a position to see the train, and it will be presumed, in view of the surrounding facts as testified to by the witnesses present, that he did see the