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tric car through a crowded market street of said defendant in charge of said car negbe gross neglect?

Cobb v. St. Louis & H. R. Co. 149 Mo. 627, 50 S. W. 894; Hanlon v. Missouri P. R. Co. 104 Mo. 390, 16 S. W. 233; Klockenbrink v. St. Louis & M. River R. Co. 172 Mo. 679, 72 S. W. 900.

ligently failed to keep a vigilant watch ahead, and negligently failed to observe said wagon on or approaching said north track in a position of danger in time to have stopped said car and thereby avoid said collision, which said motorman might have done had he been exercising or Fourth, the motorman of said defendant in charge of said car negligently failed to stop the same within a reasonable time after he saw, or by exercising ordinary care might have seen, the dangerous situation of this plaintiff."

Valliant, J., delivered the opinion of dinary care.

the court:

Plaintiff alleges that she suffered a personal injury in consequence of a collison between a wagon in which she was riding and a street car of defendant. She sues for $5,000 damages, alleging that the collision was the result of defendant's negligence. The scene of the accident was in Fifth street, between Walnut and Main, in Kansas City. Fifth street runs east and west; Walnut and Main cross it at right angles, running north and south; Walnut is east of Main. Between Walnut and Main streets, and parallel to them, is an alley which also crosses Fifth street at right angles. Defendant operates a double track street railroad along Fifth street; a car going west runs on the north track, crossing Walnut, the alley, and Main street. Just west of the alley on the north side of Fifth street is the city market.

The testimony on the part of the plaintiff tended to prove as follows: It was a clear winter day. The car going west stopped at Walnut street to take on some passengers, and then moved on its course. It was going slowly, not to exceed 4 miles an hour. The street was crowded with vehicles and people. The wagon on which the plaintiff was riding came out of the alley into Fifth street, aiming northward across the tracks. The driver testified: "When we was coming out through the alley between Walnut and Main we didn't see any car at all; but when we got on the second track we seen the car about as far as from here over there. I couldn't tell exactly how far;

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On December 24, 1901, the plaintiff was but, anyhow, we were beckoning him to stop, seated beside the driver, a colored man, on the driver's seat, on an open one-horse spring wagon, driving through the alley northward, aiming for the market house. They emerged from the alley on the south side of Fifth street, drove across the south track, and, just as the front wheel of the wagon got on or sufficiently near the south rail of the north track, a car of defendant going west struck the wagon with a blow sufficient to break the shaft from the axle on that side, and the jar caused the plaintiff's injury. She testified that the car struck the wagon, "and it jolted very hard, and I went on the end of the seat, and that gave me an awful pain in the back, and I felt kind of funny in my whole body.

Otherwise I would have went over on the left side on the street, but the colored boy held me back. And he helped me down from the wagon; I couldn't sit there." The petition alleges negligence in four specifications: "First, the motorman of said defendant in charge of said car negligently failed to stop the same in time to avoid said collision, which by the exercise of ordinary care he might have done. Second, the servants of said defendant in charge of said car negligently failed to ring any bells, or to give other warning of the approach of said car. Third, the motorman

for him to hold up, because I couldn't go either forward or back; the people was ahead of me in the crowd, and wagons behind me. . . He just came right on up and hit the wagon, and broke the shaft loose, and jostled us both up." Witness said he did not stop or check up at all when he came into the street from the alley, and was going tolerably fast when he got on the north track; he was aiming to get out of the crowd. The car stopped in almost the same instant that it struck the wagon. It shoved the wagon about 2 feet. The plaintiff herself testified that they saw no car until they were on the second track,-the north track. She said: "It was awfully crowded with people, and we looked, and, of course, I did not see any car at all. Of course, there was so many people in front of us, and we drove right in; and when we got to the second track I saw the car, and hallooed and screamed as much as possible, and it looks to me like there was a car that struck the wagon, and it jolted very hard." She was asked how far the car was from her when she hallooed to the motorman. She said: "About as far as from here to that wall; about 25 feet; I couldn't tell you exactly. I began to make motions and to halloo and scream, and the rest of the people right in front of our wagon they began

to make motions to the motorman, and was her servant, and his negligence is he was keeping on going slowly." She chargeable to her. The plaintiff and her said that when they came out of the alley driver both testified that they did not see they saw no car; that they could not see the car that struck them until they were on either east or west more than 25 feet; and the north track. The car was there in when asked to explain why she could not plain view to be seen by anyone who would see farther, seated as she was above the look, and, if they did not see it, it was beheads of the people on the driver's seat in cause they did not use their eyes. There is the wagon she said she could not explain it, no suggestion of an excuse in the record for but that 25 feet east or west was as far as their failure to see the car. The motorman she could see. Her attention was called to saw the wagon as soon as it came out of the her statements on a former examination in alley, and he was in no better position to which she was asked if she could not see for see the wagon than were the plaintiff and the distance of half a block, her answer be- her driver to see the car. If the driver saw ing, "I suppose so; I couldn't tell exactly; the car coming (and, even in the face of his I saw quite a distance;" to which she re- assertion to the contrary, it is as probable plied, "Well, that is 25 feet." She testified under the circumstances that he did as that that her eyesight was good. She and the he did not), yet ventured to cross in such negro driver of her wagon testified that dangerous proximity to the car, it was failthey did not hear any bell or gong. There ure to observe that degree of care that an was testimony tending to show that the jar ordinarily prudent person in his situation of the collision caused serious injury to the would have observed. If he did not see it, plaintiff. At the close of the plaintiff's ev- it was because he did not look, and the act idence the defendant asked an instruction of not seeing, for that reason, was as negliin the nature of a demurrer to the evidence, gent as an act of seeing and not heeding. which the court refused, and exception was It is unnecessary to decide, under the cirtaken. cumstances of this case, whether the car or the wagon had the right of way, because, if it should be conceded that the wagon had the right of way (which is not even contended), and that, as soon as the motorman saw the wagon emerge from the alley and attempt to cross the street, he ought to have stopped his car, yet kept on in his course, still the driver of the wagon, seeing the car coming (or shutting his eyes so he could not see), and knowing that it could not stop as quickly as the horse could, was guilty of negligence in driving immediately in front of it, or so close to it as to render a collision inevitable, or, if not inevitable, at least not improbable.

On the part of defendant the testimony tended to prove as follows: The car stopped at Walnut, and then moved on westward, going slowly. It was a fine, clear day, and there was nothing to prevent one seeing the car coming distant a block away. The track was slippery at that point; it was downgrade, and the motorman was moving cautiously. The wagon came out of the alley, the horse going at a trot, aiming straight across the tracks, the driver and the plaintiff looking to the west. The motorman saw the wagon coming, and at once began ringing his gong, and, when it seemed as if the driver intended to cross the north track in front of the car, the motorman con- Counsel for respondent in their brief tinued sounding the gong, hallooed at the seem to rely more on the fourth specificadriver, applied his brakes, reversed the pow-|tion of negligence in the petition than the er, turned on the sand, and used all the means at hand to stop the car, and had brought it almost to a stop when the collision occurred.

The case was submitted to the jury. The verdict was for the defendant. The court sustained the plaintiff's motion for a new trial on the ground that it had erred in giving certain instructions for defendant. Defendant appeals.

If it should be conceded that the defendant was guilty of negligence in either of the three particulars first specified in the petition, still the plaintiff would not be entitled to recover in consequence thereof, because her own negligence contributed to produce the result. It was her wagon, the driver

three preceding; that is, that the motorman failed to stop the car "within a reasonable time after he saw, or by the exercise of reasonable care might have seen, the dangerous situation of the plaintiff." The motorman saw the wagon when it first came out of the alley, and saw the course the driver was aiming to take. He saw that the driver and the plaintiff had their faces turned to the west as they crossed the south track, and, if the motorman drew any inference from that fact, the natural inference was that they were taking proper care, because the danger they were in while crossing the south track was from a car coming from the west, and the motorman had a right to infer that when they had passed over the

south track, and were approaching and about to enter upon the north track, they would, for the same reason, turn their faces to the east. Turning from the west to the east was but the occupation of a moment, a space of time too short to be measured. But whether he noticed how their faces were in fact turned, and drew inferences therefrom or not, he saw the wagon and the driver, and the course they were taking, and he had the right to presume that the driver would use his senses. Even though he saw the horse approach close to the north track, yet if he still presumed that the driver would exercise the care that a man of ordinary prudence and common sense in his situation would exercise, and stop until the car would pass, we cannot say with certainty that he was guilty of negligence in acting on that presumption. And even if it could be said that under those circumstances a question at least of negligence arises, which, as a question of fact, ought to be submitted to the jury, still we cannot say that it is a question of such gross negligence or reckless or wanton conduct as justifies the court in submitting to the jury to say whether or not the plaintiff ought to recover in spite of her own negligence. It requires more than the showing of a mere possibility that the accident might have been avoided in order to bring a case within the humanitarian doctrine announced in Kellny v. Missouri P. R. Co. 101 Mo. 67, 8 L. R. A. 783, 13 S. W. 806; Morgan v. Wabash R. Co. 159 Mo. 262, 60 S. W. 195, and Klockenbrink v. St. Louis & M. River R. Co. 172 Mo. 678, 72 S. W. 900. If it be conceded that the plaintiff's evidence tends to show that the defendant was guilty of any negligence at all, it is the utmost that can be claimed for it, while it shows the negligence of her driver very much more conspicuously. Though the street may have been crowded, yet there was nothing to prevent him from stopping until the car could pass. Even the horse showed a more intelligent appreciation of the situation than did the driver, because, when it was attempted to urge him onto the north track in the face of the danger, he shied as far to the west as he could, and thus saved himself from being struck. 69 L. R. A.

An argument is built upon the estimates of witnesses as to the distance the car was from the horse when he got on the north track and the distance in which it was possible to have stopped the car after the motorman saw the horse on that track, and the conclusion is drawn that the car was 20 or 25 feet distant, and could have been stopped in 15 feet. No witness measured any distance, and no one pretended to speak with precision; under the excitement and confusion of the occurrences the so-called estimates were little, if any, better than guesses. So far as the plaintiff's estimate of the distance is concerned, she showed by her answers, when she was asked as to the distance she could see when elevated on the seat of the open wagon, that her faculty in measuring distances by the eye was not great. Counsel for the plaintiff place reliance as to this point on the testimony of the motorman as helping out his case. But the motorman spoke with no precision on that subject,-said, in fact, he could not do so; but he did speak with precision when he said that the moment he saw that the horse was coming on the north track he reversed the power, applied the brake, turned sand on the track, and stopped the car in the shortest time and space possible.

It is unnecessary to cite authorities to sustain the conclusion that under the plaintiff's own evidence in this case she was not entitled to recover. And since, in no view of the case, could a verdict for the plaintiff be sustained, it is unnecessary to look at the instructions. Whether the instructions were right or wrong, the verdict was for the right party; it was the only verdict that the evidence warranted. The court therefore erred in granting a new trial,

The judgment granting a new trial is reversed, and the cause remanded with directions to the Circuit Court to overrule the motion for a new trial and enter judgment for the defendant on the verdict.

All concur, except Robinson, J., absent.

Petition for rehearing denied.


George W. SLACK et al., Appts.,


Eliza E. REES, Respt.

(.. .N. J.. .)

A deed without power of revocation, from a parent who is incapacitated physically, and weak mentally, to his daughter, who has for some time had the care of him, made without the benefit of competent and independent advice, will be set aside by equity.


(November 15, 1904.)

PPEAL by complainants from a decree of the Chancery Court in favor of defendant in a suit brought to set aside a deed. Reversed.

The facts are stated in the opinion.
Mr. Aaron V. Dawes for appellants.
Mr. Edwin R. Walker for respondent.

Gummere, Ch. J., delivered the opinion

of the court:

The two complainants and the defendant are the only children and heirs at law of George H. Slack, deceased, who died on the 13th day of August, 1902, at the age of sixty-eight years. On the day before his death he executed a deed to his daughter, Mrs. Rees, conveying to her two houses and lots in the city of Trenton. He owned no other real estate, and his personal estate was insufficient for the payment of his debts. His sons seek to have the conveyance set aside and declared void upon the following grounds: That their father lacked mental capacity to make the deed, that it was the product of undue influence exercised by their sister upon him, and that, in making

the deed, he did not have the benefit of competent and independent advice.

The deceased, for a number of years before his death, suffered from the disease known as "locomotor ataxia." By the progress of the disease his physical powers became gradually weakened, and his mental powers also were somewhat affected. But, although his mind was somewhat weakened, we fully concur in the conclusion of the learned vice chancellor, who heard the case below, that he retained sufficient mental capacity to dispose of his property.

The second ground of attack upon the conveyance that it was the product of undue influence presents a more difficult question.

NOTE. AS to effect of settlor's failure to understand the legal import of his act, see Ricards v. Safe Deposit & T. Co. 63 L. R. A. 145.

As to power to revoke voluntary settlements, see Neisler v. Pearsall, 52 L. R. A. 874, and



For a period of nearly three months prior to his death he was an inmate of his daughter's home. He was, during all that time, dependent upon her for the care and service which a man in his weakened physical and mental condition constantly requires. The normal relation of parent and child, as it had existed in earlier years, had been reversed, and the daughter had become the guardian of the father. In this situation the law presumes that a gift made by the parent to the child is the product of undue influence, and casts upon the latter the burden of proving the contrary. It was considered by the vice chancellor, before whom the case was tried, that she had discharged this burden. After a careful review of the testimony, we are not at one as to the soundness of this conclusion. A decision upon this point in the case, however, is rendered unnecessary, as we conclude that the conveyance donor did not have the benefit of competent must be set aside because, in making it, the the absence of such advice will invalidate a and independent advice as to its effect. That deed of gift which contains no power of revocation, where a relation of trust and confidence exists between the donor and donce, is not denied, and indeed, it was so held by the vice chancellor. He seems to have considered, however, that such relato appear that the donee occupied such a tionship was not shown unless it was made dominant position toward the donor as to raise the presumption that the latter was without power to assert his will in opposition to that of the donee. But this is not the situation. The rule has a much broader protection to the donor against the consesweep. Its purpose is not so much to afford quences of undue influence exercised over tection against the consequences of volunhim by the donee, as it is to afford him protary action on his part, induced by the existence of the relationship between them, the effect of which upon his own interests h may only partially understand or appreciate. The following citations from our own tions between persons occupying relations, decisions make this plain: "In all transacwhether legal, natural, or conventional in their origin, in which confidence is naturally inspired, is presumed, or in fact reasonably exists, the burden of proof is thrown upon in whom the confidence is reposed, and who has acquired an advantage, to show affirmatively not only that no deception was practised therein, no undue influence used, and that all was fair, open, and voluntary, but that it was well understood." Hall v. Otterson, 52 N. J. Eq. 528, 28 Atl.



907, on appeal, 53 N. J. Eq. 695, 35 Atl. [ 1130. "Where parties hold positions in which one is more or less dependent upon the other, courts of equity hold that the weaker party must be protected; and they set aside his gifts, if he had not proper advice independently of the other." Haydock v. Haydock, 34 N. J. Eq. 575, 38 Am. Rep. 385. “The rule to be gathered from the English and American cases is that the bur

The decree will be reversed, and the record remitted to the Court of Chancery, with instructions to that court to enter a decree setting aside the conveyance in question, and declaring it to be null and void.

Salina A. CHARLTON, Appt.,


( . . . . . . . . N. J.........)

*A signed, but undelivered, lease may be given in evidence to prove an agree ment upon the details of a lease pursuant to one of the terms of a previously signed memorandum in writing of an oral agreement for a lease; and if said previous memorandum of agreement for a lease, and the signed, but undelivered, lease, taken together, show a completed agreement upon the terms of a lease, the statute of frauds is satisfied, and specific performance may be decreed.

den of proof was cast upon the donee to es- COLUMBIA REAL ESTATE COMPANY. tablish that the donor fully appreciated what he was doing, or, at all events, in the doing had the benefit of disinterested and competent advice." Coffey v. Sullivan, 63 N. J. Eq. 302, 49 Atl. 520. The present case is a marked example of the wisdom of the rule. The deed was made by Mr. Slack almost immediately after a prostrating attack, which was a phase of the disease from which he was suffering. Neither of the physicians who were in attendance upon him expected the attack to be fatal. As soon as he was sufficiently recovered from its violence to permit it, an attorney, who had previously been employed by him in other matters, was sent for; and, upon his arrival, Mr. Slack stated to him that he wished him to draw a deed conveying to

Mrs. Rees certain property which he owned in Trenton, and asked the attorney whether he had better make a will or a deed. He was advised by the attorney that it would be better to make a deed, and did so. No power of revocation was reserved in the deed, and its effect, if valid, was to practically strip him of his whole estate; for his personal property, as has already been stated, was insufficient to pay his debts. If the opinion of his physicians as to the effect of the attack upon him had turned out to be accurate, he would, for the rest of his life, have been dependent upon the charity of others, except so far as a pension which he received from the national government would have sufficed to support him. From his inquiry made of the attorney,-whether it would be better for him to make a will or a deed, it seems quite probable that he considered the one would be more effective than the other to presently deprive him of all further interest in the estate to be embraced in the instrument which he proposed

to execute. It is difficult to understand the failure of the attorney to advise Mr. Slack as to the effect of such a deed as was executed. He not only should have done this, but, in the language of Malins, V. C., in Coutts v. Acworth, L. R. 8 Eq. Cas. 558, he should have insisted upon inserting in it the reservation to the donor of the power to revoke the gift, unless Mr. Slack had distinctly refused to have it done.

(Dixon, Garrison, Swayze, and Gray, JJ., dissent.)

(March 6, 1905.)

APPEAL by complainant from a decree of the Chancery Court in favor of defendant in a suit to compel specific performance of an agreement to make a lease. Reversed.

The facts are stated in the opinion. Messrs. Alden B. Endicott and E. A. Higbee for appellant.

Mr. George A. Bourgeois for appellee.

Fort, J., delivered the opinion of the court:

The bill in this case is filed for the specific performance of an alleged agreement to make a lease. The written memoranda in evidence to prove the alleged agreement consisted of two writings, as follows:

Agreement made this Seventh day of May between Columbia Real Estate Co., of the first part, and Mrs. Charlton, of Atlantic City, of the second part, Witnesseth, that the party of the first part will make a lease for ten years of a certain building on their grounds in rear of stores to contain about eighty feet in width by one hundred feet in

*Headnote by FORT, J.

NOTE. As to when several papers may constitute a sufficient memorandum within the statute of frauds, see also note to Louisville Asphalt Varnish Co. v. Lorick, 2 L. R. A. 212, and the later cases in this series of Freeland v. Ritz, 12 L. R. A. 561, and White v. Breen, 32

L. R. A. 127.

As to sufficiency of memorandum of contract embodied in telegrams, see Brewer v. HorstLachmund Co. 50 L. R. A. 240, and note.

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