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agree that, if any installment was not paid when due, the whole bond should become due, nor did he agree to pay a penal sum in the event the installments were not promptly paid. Hence such bonds do not fall within our statute, nor, for that matter, within the English statutes, except by what I deem a misconstruction of those statutes, nor do they come within the evils intended to be remedied.

It necessarily and logically follows that the statutes of this state relating to penal bonds conditioned other than for the payment of money (section 468 et seq., Rev. St. 1899) do not apply to bonds payable in installments, and therefore there was no law which commanded, required, or permitted the entry of such a judgment as was entered by a nunc pro tunc order in this case. It also follows that the cases of Rees v. Morgan, 3 Term R. 349, Jones v. Hart, 60 Mo. 358, and Railroad Co. v. Mockbee, 63 Mo. 348, have no application to this case, for the reason that in each of those cases the law prescribed the form and nature of the judgment that should be entered.

For these reasons, I am of opinion that the circuit court has no power to enter the nunc pro tunc judgment in this case, and therefore its judgment should be reversed. I further agree with the opinion of SHERWOOD, J., in this case. All concur.

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VAN BẠCH V. MISSOURI PAC. RY. CO. (Supreme Court of Missouri, Division No. 1. Dec. 24, 1902.)

SUSPEND

RAILROAD CROSSING ACCIDENT-NEGLIGENCE
OF TRAVELER - FAILURE ΤΟ
SWITCHING OPERATIONS-EFFECT.

1. The effect of the contributory negligence of a traveler in a buggy, who, seeing a train pass, approaches a city railroad crossing without noticing that the train has stopped and is backing to make a flying switch across the street, he being familiar with the locality, and knowing that such operations are customary there, and the train being in plain view, and having already switched one car, is not avoided because the trainmen, though seeing his approach, fail to suspend operations till he passes; they having the right to assume that he will see the danger and guard against it.

Appeal from circuit court, Jackson county. Action by Ida Van Bach against the Missouri Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff's husband was killed at a railroad crossing in a public street in Kansas City through the negligence, as plaintiff alleges, of the servants of defendant in handling a freight train. Plaintiff's evidence tended to show the following facts: Hickory street runs north and south. Union avenue crosses it at right angles. Defendant owns two railway tracks crossing Hickory street diagonally from southwest to northeast, near the intersection of Union avenue. The space be

Plaintiff's husband, driving alone in a one

horse buggy, approached Hickory street from the east on Union avenue. He was aiming to go north on Hickory street, and the inference may be drawn from plaintiff's testimony that when he reached Hickory street he turned north, and drove on in that direction until he reached the north track of defendant, when he was struck by a freight car, which had been detached from the train and kicked to make a flying switch across Hickory street to defendant's yards. He was driving about the middle of Hickory street at a speed which the witness called a jog trot. The horse cleared the crossing, but the car struck the buggy, broke it away from the horse, and carried it beyond the west line of Hickory street. The deceased was thrown out and so mangled that he died within a few minutes. There were some buildings along the north line of Union avenue nearly up to the point where the south Wabash track crosses that line, which is about 150 feet east of the east line of Hickory street. After passing those buildings, there was nothing to prevent one going as deceased was from seeing the defendant's tracks as far east as

the train in question was, and after he reached Hickory street he had a clear view of defendant's tracks as far east as the next street. Mulberry. This train, just before the accident, had crossed Hickory street going east, the last car in the train clearing the east line of Hickory street about 120 feet. Then the work of kicking the cars back into the switch began. This was done by backing the train, during which the coupling pin was drawn to detach the car to be kicked, a shove by the engine was given, and the detached car was let to go into the switch by the force thus imparted, and the rest of the train was pulled forward again for another such flying switch. One car of this train had thus been switched across the street, and the crew were in the act of switching the next car, when the accident occurred. There was no brakeman on the detached car. There were two witnesses for the plaintiff, who saw the accident. One of them viewed it from a point north of the tracks in the angle near where the north track crosses the east line of Hickory street. He was facing north, talking to a man who was facing south, and, observing in this man's countenance a sudden expression of alarm, turned around, and then saw the plaintiff's husband in his buggy approaching the crossing, and saw the detached car coming to the same point. At that instant the horse was near the defendant's south track, the buggy just north of the Wabash track, and the car about 30 feet from the point of collision. The witness said the car was going about eight miles an hour, but he said he had no means of fixing the speed, and it was only a guess. When the witnesses turned and saw the situation, the man in the buggy had his face towards the west. He turned towards the car just as the accident occurred. If he had looked when the witness first turned and saw him, he would have seen the car in time to have stopped. The accident occurred about 4 o'clock in the afternoon, October 3, 1899. The plaintiff's other witness to the scene viewed it from a point in the space between the tracks of the defendant and those of the Wabash near the west side of Hickory street in its intersection with Union avenue. This witness was walking north, aiming to reach a place two squares north of the railroads. He saw the train pull east. It was a freight train of 10 or 12 cars. Then he saw it shoved back, and this car cut loose,-kicked back, and let to run down by itself. It was cut loose from the train about two car lengths, or 72 feet, east of Hickory street. The witness, seeing that the crew were thus engaged in switching cars across the street, when he reached the point above designated (between the tracks of defendant and those of the Wabash), perceiving that he could not get across the tracks before the car would be upon him, stopped to let it pass. While he stopped, the plaintiff's husband drove by him, going in a jog trot,-about four miles an

hour,-looking straight ahead; but just as he passed witness he turned, and glanced to the west, and drove on until the car struck him. There was nothing to prevent his seeing the car coming, as the witness did, and, if he had seen it, he could have stopped in time to have avoided the accident. The deceased was from 50 to 70 feet south of the crossing when this witness first saw him. The testimony on the part of the defendant tended to show as follows: When the deceased, coming west on Union avenue, reached Hickory street, he turned south, and drove about two squares to the place of business of one of defendant's witnesses; then turned north, and drove on to the place of the accident. If he took that course, he had an opportunity to see the crossing, and the movements of the cars, before he reached the south intersecting line of Union avenue. The switching of cars at the point was almost a continuous operation every day, with sometimes an intermission of a half hour, and frequently no intermission at all during the whole day. About 50 trains in a day usually passed that point, some passing over and some switching. The deceased lived in that vicinity, and was accustomed to passing over. that crossing. There were two flagmen stationed there, who saw the danger into which the deceased was moving, and both of them tried to call his attention and stop him. They both hallooed to him. One waved his flag, and the other held a stick across in front of the horse. The switchman who had cut the car loose, and who was on the ground near it, also saw the peril, and ran towards the deceased, calling him to look out. Another man-the one who was talking to the plaintiff's witness on the north side of the tracks-saw the danger into which the deceased was moving, and waved his arms, and shouted to him. But neither the situation itself nor the efforts of these persons had the effect to attract his attention. At the close of the plaintiff's evidence, and again at the close of all the evidence, the defendant asked an instruction to the effect that under the pleadings and evidence the plaintiff was not entitled to recover, which the court refused. The cause was submitted to the jury. There was a verdict for the plaintiff for $5,000, and judgment accordingly, from which defendant appeals.

Elijah Robinson, for appellant. Alden & McFadden and Fyke Bros., Snider & Richardson, for respondent.

VALLIANT, J. (after stating the facts). That it was negligence in defendant to make a flying switch across a public street without having a brakeman on the car to control its movement is not questioned. But, conceding the defendant's negligence, can the plaintiff recover in the face of this evidence? The tendency of the evidence on the part of the defendant in the above statement is mentioned only to show that it did not strength

en the plaintiff's case. The ruling of the trial court in refusing the instruction in the nature of a demurrer to the evidence will, therefore, be considered in the light of the plaintiff's evidence alone. The learned counsel for plaintiff state their case thus: "The evidence fairly shows that the deceased saw the train going east, and that he naturally supposed it would continue in that direction; and the evidence also fairly shows that the flagmen negligently failed to see deceased until he had crossed the Wabash tracks, and that they gave the signal to the foreman to have the car kicked while deceased was attempting to make the crossing; and that while the deceased was in that perilous position the car was suddenly kicked with great force, and hurled upon him." That defendant's emplɔyés handling the train had as fair an opportunity to see the movements of the deceased as he had to see those of the train is true, and if they had been on the lookout, as they should have been, and could reasonably have anticipated that he would act as he did, it would have been their duty to have made reasonable effort by use of the means at hand to avert the danger, and, failing so to do, the defendant would have been liable. That is to say, if they saw the deceased going headlong into danger, with every indication that he was either oblivious to the situation or reckless of the consequences, the duty devolved on them to make an effort to avert the catastrophe. But in this case, what reason had the defendant's servants to suppose that this man would act as he did? Could they infer that he did not see what was going on before his eyes? Every one else who was there, including the plaintiff's witnesses, saw what was being done. Not one of them was in a better position to observe the movements of the train and the cars than the deceased. Conceding that the flagmen ought to have signaled him to stop before he crossed the Wabash tracks, and failed to do so, or conceding that there was no watchman there at all, still, if the deceased had used his eyes, he would have seen all that the watchman could have called to his attention. It required no expert to understand the situation. It was a matter within common everyday experience in city life. If the employés of defendant saw the deceased approaching the crossing in a slow trot, in full view of the moving cars, had they not every reason to suppose that he would stop when he had driven as close to the crossing as was prudent, and wait until the car had passed? That is what the plaintiff's witness who was going the same direction did, and that is what any reasonable man looking on would suppose any other reasonable man would do. We are referred to Morgan v. Railroad Co., 159 Mo. 263, 60 S. W. 195. But the case at bar is not that of a man walking along the track with his back to the coming train, apparently oblivious to the danger. If this train crew saw the de

ceased coming, and saw that he was in a position where he could not fail to see the car approaching the crossing if he used his sense of seeing, they were not negligent if they assumed that he would act as any reasonable man would for his own protection under like circumstances, and regulated their own actions accordingly. The learned counsel infer from the evidence that the deceased saw this train cross the street going east, and concluded that it would continue in that direction, and so gave no further thought to it, and turned his eyes to the west. But the plaintiff's own witnesses show that the train was backing when the deceased was at least as far away as the Wabash tracks, when he was in plain view, when every one else there saw what was doing, and when he would have seen if he had used his eyes. We are referred to O'Connor v. Railway Co., 94 Mo. 150, 7 S. W. 106, 4 Am. St. Rep. 364, where it is said that whilst one about to cross a railroad track is bound to watch for cars, yet he is not bound to be prepared for an act of negligence on the part of the railroad company. That is true; but when the act is in plain view, whether it be the result of negligence or not, he has no right to shut his eyes to it, walk into the danger thereby produced, and then complain of it. We are of the opinion that the plaintiff's own evidence shows that the deceased was guilty of negligence which contributed to the accident, and that the circumstances were not such as would render the defendant liable notwithstanding the negligence of the deceased. Therefore the instruction in the nature of a demurrer to the evidence should have been given.

The judgment is reversed. All concur.

BENSON v. BENSON. (Court of Appeals at St. Louis, Mo. Dec. 23, 1902.)

ADMINISTRATRIX-PURCHASE OF ESTATE ASSETS-SETTING ASIDE SALE-PARTIES.

1. Courts will not set aside purchases of trust property by a trustee at his own instance as a matter of course, the rule against such dealings being intended for the protection of the beneficiaries.

2. A purchase of property of an estate by the administratrix at its appraised value cannot be set aside at her own instance, though she had been imposed on and had bought at an excessive price, where she had retained the property for more than a year, and made payments on it, and only one creditor was represented in the proceeding to set it aside, and none of the heirs.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Petition by John F. Benson against Annie Benson, administratrix, etc., for an order requiring defendant to pay plaintiff's fifthclass claim. The probate court and the circuit court (to which the case was appealed) both made orders directing defendant to pay all demands of the first, second, third, and

fourth classes, and 50 per cent. of all demands of the fifth class, and the administratrix appeals. Affirmed.

The case originated in the probate court of the city of St. Louis, where plaintiff filed his petition for an order on the defendant to pay, in full or pro rata, his fifth-class claim, of $122.85, which had been duly probated against the estate of appellant's intestate, and placed in the fifth class of demands. On a hearing in the probate court, that court made an order directing appellant to pay all demands of the first, second, third, and fourth classes allowed against the estate, and 50 per cent. of all the demands of the fifth class. The case was appealed to the circuit court by the administratrix, where the cause was submitted to that court on the following agreed statement of facts and contentions of the parties:

"In order to obtain a speedy trial of this cause, and to minimize the expense thereof, it is hereby stipulated and agreed by and between the parties to this cause that the same be submitted to the court without a jury, and without argument, and upon the following agreed statement of facts, and contentions of the respective parties based thereon, to wit:

"Statement of Facts. On or about the

day of

day of June, 1898, defendant, Annie E. Benson, was by the probate court of the city of St. Louis appointed administratrix of the estate of said Henry C. Benson, qualified as required by law, and, on the days of June and July following, published notice of her appointment. On the June, following her appointment, the administratrix filed an inventory and appraisement of the property of the estate as the law directs. At the time of his death said Henry C. Benson was the owner of, and engaged in operating, a soda-water factory in the city of St. Louis. The appraisers appointed by the probate court appraised the machinery, stock on hand, and equipment of this factory at $1,829.88. when in fact its market value at the time did not exceed six or seven hundred dollars. From the property last described there was set off to the widow, said Annie E. Benson, as her absolute property, pieces of machinery and parts of the equipment of the value of $400, according to said appraisement, leaving the remainder of said plant and equipment of the appraised value of $1,429.88. This residue consisted largely of bottles, boxes, corks, etc., used in the business. Annie E. Benson is an uneducated and very ignorant woman. Her ability to write and read writing is limited to her own name, and her ability to read print is limited to the simplest words. While plaintiff was present and assisted the appraisers in appraising said property, defendant was not present, was not consulted, and made no suggestions regarding said appraisement, and at no time knew the market value of said property. On June 28, 1898. the probate court directed said administratrix to sell said residue of the equipment

of said factory, which was appraised as aforesaid at $1,429.88, for cash, at not less than the appraised value. Pursuant to this order, the administratrix made an effort to sell said property, but failed to find a purchaser. Having reported this fact to the court, the court afterwards, on October 24, 1898, made a second order directing her to sell said property for cash, at not less than its appraised value, and further directing her to retain said property at its appraised value in case she could find no other bidders at that price. Afterwards, on April 29, 1899, she reported to the court that she had made diligent effort to sell said property on the terms named in said order, and, to that end, had offered the property to the heirs and creditors of the estate, and, having received no bids for the same, had retained the property herself at its appraised value, $1,429.88, as directed by the court. This report was approved by the court, and defendant charged with said amount. The defendant has not disposed of this property, but substantially all of it is now in her possession, and is now worth substantially as much as at the date that she purchased it. By charging herself with the appraised value of said property, $1,429.88, defendant's last annual settlement, made prior to the filing of the petition herein, shows a balance in her hands of $1,023.29. At the date that plaintiff filed his petition herein, only a part of the expense of the administration of said estate had been paid. Since this cause was appealed from the probate court, defendant has paid the clerk of said court, on account of fees taxed in the administration of said estate, the sum of $46.55, for which defendant has not received credit, and the sum of $ is still due on that account. and for which defendant is liable. Defendant is insolvent, and any amount adjudged to be paid by her must be paid by the surety on her bond. Only $270.98 in cash was received by the administratrix from the estate, and this was disbursed before this proceeding was begun. The only assets in her hands now, and at the date of the institution of this proceeding, were and are the goods and chattels aforesaid, appraised as aforesaid at $1,429.88, against which she had made advancements up to the date of the institution of this proceeding sufficient to reduce the balance charged against her to $1,023.29, and has since advanced $46.55, as aforesaid.

"Contention of Plaintiff. (1) That under the provisions of section 227 of the Revised Statutes of 1899, the prayer of the plaintiff should be granted. (2) That by reason of her delay, defendant is now estopped from claiming that the sale of said property to her was void. (3) As the purchase by defendant was voluntary, the fact that she paid more for the property than it was worth constitutes no defense to this action."

"Defendant's Contention. (1) That the sale of the property by the administratrix to herself was void, notwithstanding its approval

by the probate court. (2) As the evidence shows that defendant has not disposed of the property, and that it is worth substantially as much now as at the time she bought it, there can be no estoppel in the case; and for the court to hold the sale void would be but just to her surety, and give the creditors all they are entitled to,-the market value of the property at the time she bought it. (3) The administratrix not having disposed of the assets in question, the application for distribution must, under the law, be denied. Clarke v. Sinks, 144 Mo. 448, 46 S. W. 199."

The circuit court made a similar order to that made by the probate court, from which, after an unsuccessful motion for new trial, the administratrix appealed to this court.

Jno. M. Wood, for appellant. for respondent.

'Bert Fenn,

The

18 N. E. 739; Fox v. Mackreth, 1 White & T. Lead. Cas. Eq., pt. 1, note on page 256; Wilson v. Troup, 2 Cow. 238, 14 Am. Dec. 458; Ives v. Ashley, 97 Mass. 198; Baines v. McGee, 1 Smedes & M. 218; Hance v. McKnight, 11 N. J. Law, 385; Litchfield v. Cudworth, 15 Pick. 31. Whatever their holdings on the subject are, courts do not set aside purchases of trust property by trustees at their instance as a matter of course, because the rule against such dealings is intended for the protection of beneficiaries, and was adopted to prevent them from being defrauded by self-serving trustees. Fox v. Mackreth, 1 White & T. Lead. Cas. Eq. 257; Richardson v. Jones, 3 Gill & J. 163, 22 Am. Dec. 293.

Facts are mentioned in the agreed statement which might commend the appellant to a court of equity for relief, as one who has been imposed on; but the purchase by her cannot be treated as a nullity in this decision, after she has retained the property for more than a year, and made payments on the price of it. The necessary parties are not before the court to enable us to go into the whole matter, and set aside the sale as having been induced by mistake or imposition, or hold the appellant for the actual value of the goods, on the theory of a conversion by her. Only one creditor is represent

GOODE, J. (after stating the facts). cause was tried in the circuit court on the theory that the so-called sale of the property to the appellant, as administratrix, was an invalid sale, but that by reason of her retention of the property she was estopped to deny the sale. The agreed facts show the appellant retained what of the personal property of her deceased husband's estate was left after deducting her widow's allowance; the property being taken by her at its ap-ed, and none of the heirs, if there are any. praised value with the approval of the pro- | Yet all creditors and heirs are interested in bate court, which authorized this course in advance, and approved of it afterwards. Appellant was charged with the value of the property retained by her, to wit, $1,429.88, on which sum she subsequently paid enough to reduce the balance charged against her, at the institution of this proceeding, to $1,023.29, and has paid $46.55 more since the proceeding was instituted. She reported the retention of the property, and her report was approved in April, 1899, a year and one-half before respondent's motion for distribution was made.

The transaction in regard to the property amounted to a purchase of it by the appellant, which, as she was acting as trustee of the property, was illegal and voidable at the instance of any cestui que trust. A few decisions have held such purchases by executors and administrators to be utterly void, both at law and in equity; but the weight of opinion is that they are only voidable, and suffice to pass the legal title to property, though probably any court would set one aside at the complaint of a creditor of the estate or a legatee without proof of actual prejudice to the interest of the estate, since the law prohibits a trustee from buying at his own sale. 2 Woerner, Adm'n (2d Ed.) § 487; Melms v. Brewing Co., 93 Wis. 153, 66 N. W. 518, 57 Am. St. Rep. 899; White v. Iselin, 26 Minn. 487, 5 N. W. 359; Otis v. Kennedy, 107 Mich. 312, 65 N. W. 219; Murphy v. Teter, 56 Ind. 545; Anderson v. Green, 46 Ga. 361; Borders v. Murphy, 125 Ill. 577,

the matter, and, for aught that appears, there
may be other parties to be affected by any
radical judgment that might be entered.
This shows the need of resorting to equity,
or at least to some step or proceeding by
which every one concerned is brought before
the court. Thorp v. McCullum, 6 Ill. 614;
Mock v. Pleasants, 34 Ark. 63; Bland v.
Muncaster, 24 Miss. 62, 57 Am. Dec. 162.
The relief prayed was rightly granted, un-
der section 227 et seq., Rev. St. 1899.
The judgment is affirmed.

BLAND, P. J., and BARCLAY, J., con

cur.

GROOM V. KAVANAGH. (Court of Appeals at St. Louis, Mo. Dec. 23, 1902.)

STREET

CROSSINGS

DUTY ΤΟ LOOK AND LISTEN-RUNAWAYS-NEGLIGENCE-EVIDENCE-SUFFICIENCY.

1. It is not error to refuse an instruction covering the same ground as those given by the court.

2. Where one about to cross a street was nearly deaf, but listened as she could for approaching vehicles, and a jog in the street prevented her from seeing along the street where a runaway team was approaching, which, as she crossed, ran over and injured her, she was not guilty of contributory negligence in failing to look and listen.

3. In an action for injuries sustained by be ing run over by a runaway team, evidence that defendant, knowing his team to be high-spirited, left them unhitched and unattended while

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