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

ligently failed to keep a vigilant watch Cobb v. St. Louis & H. R. Co. 149 Mo. ahead, and negligently failed to observe 627, 50 S. W. 894; Hunlon v. Missouri P. said wagon on or approaching said nortlı R. Co. 104 Mo. 390, 16 S. W. 233: Klocken- track in a position of danger in time to brink v. St. Louis & M. River R. Co. 172 have stopped said car and thereby avoid Mo. 679, 72 S. W. 900.

said collision, which said motorman might

have done had he been exercising orValliant, J., delivered the opinion of dinary care. Fourth, the motorman of said the court:

defendant in charge of said car negligently Plaintiff alleges that she suffered a per: failed to stop the same within a reasonable sonal injury in consequence of a collison time after he saw, or by exercising ordinary between a wagon in which she was riding care might have seen, the dangerous situaand a street car of defendant. She sues fortion of this plaintiff.” $5,000 damages, alleging that the collision The testimony on the part of the plaintiff was the result of defendant's negligence. tended to prove as follows: It was a clear

The scene of the accident was in Fifth winter day. The car going west stopped at street, between Walnut and Main, in Kan- Walnut street to take on some passengers, sas City. Fifth street runs east and west; and then moved on its course.

It was go Walnut and Main cross it at right angles, ing slowly, not to exceed 4 miles an hour. running north and south; Walnut is east of The street was crowded with vehicles and Main. Between Walnut and Main streets, people. The wagon on which the plaintiff and parallel to them, is an alley which also was riding came out of the alley into Fifth crosses Fifth street at right angles. De street, aiming northward across the tracks. fendant operates a double track street rail. The driver testified: "When we was comroad along Fifth street; a car going west ing out through the alley between Walnut runs on the north track, crossing Walnut, and Main we didn't see any car at all; but the alley, and Main street. Just west of when we got on the second track we seen the alley on the north side of Fifth street is the car about as far as from here over there. the city market.

I couldn't tell exactly how far; On December 24, 1901, the plaintiff was but, anyhow, we were beckoning him to stop, seated beside the driver, a colored man, on

for him to hold up, because I the driver's seat, on an open one-horse couldn't go either forward or back; the peospring wagon, driving through the alley ple was ahead of me in the crowd, and wag. northward, aiming for the market house. ons behind me. .. He just came right They emerged from the alley on the south

on up and hit the wagon, and broke the shaft side of Fifth street, drove across the south loose, and jostled us both up.” Witness track, and, just as the front wheel of the said he did not stop or check up at all when wagon got on or sufficiently near the south he came into the street from the alley, and rail of the north track, a car of defendant was going tolerably fast when he got on the going west struck the wagon with a blow north track; he was aiming to get out of sufficient to break the shaft from the axle the crowd. The car stopped in almost the on that side, and the jar caused the plain

same instant that it struck the wagon. It tiff's injury. She testified that the car shoved the wagon about 2 feet. The plainstruck the wagon, "and it jolted very hard, tiff herself testified that they saw no car and I went on the end of the seat, and that until they were on the second track,—the gave me an awful pain in the back, and I north track. She said: “It was awfully felt kind of funny in my whole body.

crowded with people, and we looked, and, of Otherwise I would have went over on the left side on the street, but the colored boy course, there was so many people in front of

course, I did not see any car at all. Oi held me back. And he helped me down us, and we drove right in; and when we got from the wagon; I couldn't sit there.” to the second track I saw the car, and hal

The petition alleges negligence in four looed and screamed as much as possible, and specifications: “First, the motorman of it looks to me like there was a car that said defendant in charge of said car negli- struck the wagon, and it jolted very hard." gently failed to stop the same in time to She was asked how far the car was from avoid said collision, which by the exercise her when she hallooed to the motorman. of ordinary care he might have done. She said: “About as far as from here to Second, the servants of said defendant in that wall; about 25 feet; I couldn't tell you charge of said car negligently failed to ring exactly. I began to make motions and to any bells, or to give other warning of the halioo and scream, and the rest of the people approach of said car. Third, the motorman right in front of our wagon they began

was

to make motions to the motorman, and 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 On the part of defendant the testimony the wagon had the right of way, because, if tended to prove as follows: The car stopped it should be conceded that the wagon had at Walnut, and then moved on westward, the right of way (which is not even congoing slowly. It was a fine, clear day, and tended), and that, as soon as the motorman there was nothing to prevent one seeing the saw the wagon emerge from the alley and car coming distant a block away. The attempt to cross the street, he ought to track was slippery at that point; it was

have stopped his car, yet kept on in his downgrade, and the motorman was moving course, still the driver of the wagon, seeing cautiously. The wagon came out of the al- the car coming (or shutting his eyes so he ley, the horse going at a trot, aiming could not see), and knowing that it could straight across the tracks, the driver and not stop as quickly as the horse could, was the plaintiff looking to the west. The mo- guilty of negligence in driving immediately torman saw the wagon coming, and at once in front of it, or so close to it as to render a began ringing his gong, and, when it seemed collision inevitable, or, if not inevitable, at as if the driver intended to cross the north least not improbable. 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 three preceding; that is, that the motorman means at hand to stop the car, and had failed to stop the car "within a reasonable brought it almost to a stop when the colli- time after he saw, or by the exercise of reasion occurred.

sonable care might have seen, the dangerous The case was submitted to the jury. The situation of the plaintiff.” The motorman verdict was for the defendant. The court saw the wagon when it first came out of the sustained the plaintiff's motion for a new alley, and saw the course the driver was trial on the ground that it had erred in giv- aiming to take. He saw that the driver ing certain instructions for defendant. De and the plaintiff had their faces turned to fendant appeals.

the west as they crossed the south track, If it should be conceded that the defend and, if the motorman drew any inference ant was guilty of negligence in either of the from that fact, the natural inference was three particulars first specified in the peti- that they were taking proper care, because tion, still the plaintiff would not be entitled the danger they were in while crossing the to recover in consequence thereof, because south track was from a car coming from her own negligence contributed to produce the west, and the motorman had a right to the result. It was her wagon, the driver linser that when they had passed over the 69 L. R. A.

es.

south track, and were approaching and An argument is built upon the estimates about to enter upon the north track, they of witnesses as to the distance the car was would, for the same reason, turn their faces from the horse when he got on the north to the east. Turning from the west to the track and the distance in which it was possieast was but the occupation of a moment, a ble to have stopped the car after the motorspace of time too short to be measured. But man saw the horse on that track, and the whether he noticed how their faces were in conclusion is drawn that the car was 20 or fact turned, and drew inferences therefrom 25 feet distant, and could have been stopped or not, he saw the wagon and the driver, in 15 feet. No witness measured any disand the course they were taking, and he had tance, and no one pretended to speak with the right to presume that the driver would precision; under the excitement and confuuse his senses. Even though he saw the sion of the occurrences the so-called estihorse approach close to the north track, yet mates were little, if any, better than guessif he still presumed that the driver would ex- So far as the plaintiff's estimate of the ercise the care that a man of ordinary pru- distance is concerned, she showed by her dence and common sense in his situation answers, when she was asked as to the diswould exercise, and stop until the car would tance she could see when elevated on the seat pass, we cannot say with certainty that he of the open wagon, that her faculty in measwas guilty of negligence in acting on that uring distances by the eye was not great. presumption. And even if it could be said | Counsel for the plaintiff place reliance as to that under those circumstances a question this point on the testimony of the motorat least of negligence arises, which, as a man as helping out his case. But the moquestion of fact, ought to be submitted to torman spoke with no precision on that subthe jury, still we cannot say that it is a ques. ject, -said, in fact, he could not do so; but tion of such gross negligence or reckless or he did speak with precision when he said wanton conduct as justifies the court in that the moment he saw that the horse was submitting to the jury to say whether or coming on the north track he reversed the not the plaintiff ought to recover in spite of power, applied the brake, turned sand on her own negligence. It requires more than the track, and stopped the car in the shortthe showing of a mere possibility that the

est time and space possible. accident might have been avoided in order

It is unnecessary to cite authorities to to bring a case within the humanitarian doctrine announced in Kellny v. Missouri P. sustain the conclusion that under the plainR. Co. 101 Mo. 67, 8 L. R. A. 783, 13 S. w. tiff's own cvidence in this case she was not 806; Morgan v. Wabash R. Co. 159 Mo. 262, entitled to recover. And since, in no view 60 S. W. 195, and Klockenbrink v. St. Louis of the case, could a verdict for the plaintiff & M. River R. Co. 172 Mo. 678, 72 S. W. be sustained, it is unnecessary to look at 900. If it be conceded that the plaintiff's the instructions. Whether the instructions evidence tends to show that the defendant were right or wrong, the verdict was for the was guilty of any negligence at all, it is the right party; it was the only verdict that utmost that can be claimed for it, while it the evidence warranted. The court thereshows the negligence of her driver very fore erred in granting a new trial, much conspicuously. Though the

The judgment granting a new trial is restreet may have been crowded, yet there was versed, and the cause remanded with direcnothing to prevent him from stopping un

tions to the Circuit Court to overrule the til the car could pass. Even the horse motion for a new trial and enter judgment showed a more intelligent appreciation of for the defendant on the verdict. the situation than did the driver, because, when it was attempted to urge him onto the north track in the face of he danger,

All concur, except Robinson, J., absent. shied as far to the west as he could, and thus saved himself from being struck.

Petition for rehearing denied. 69 L. R. A.

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George W. SLACK et al., Appts., For a period of nearly three months prior to

his death he was an inmate of his daughEliza E. REES, Respt.

ter's home. He was, during all that time,

dependent upon her for the care and service (......N. J......)

which a man in his weakened physical and

mental condition constantly requires. The A deed without power of revocation, normal relation of parent and child, as it

from a parent who is incapacitated physical. had existed in earlier years, had been rely, and weak mentally, to his daughter, who has for some time had the care of him,'made versed, and the daughter had become the without the benefit of competent and inde guardian of the father. In this situation the pendent advice, will be set aside by equity. law presumes that a gift made by the parent

to the child is the product of undue influ(November 15, 1904.)

ence, and casts upon the latter the burden

of proving the contrary. It was considered A PPEAL by complainants from a decree

by the vice chancellor, before whom the case of the Chancery Court in favor of de

was tried, that she had discharged this burfendant in a suit brought to set aside a

den. After a careful review of the testimony, deed. Reversed.

we are not at one as to the soundness of The facts are stated in the opinion.

this conclusion. A decision upon this point Mr. Aaron V. Dawes for appellants.

in the case, however, is rendered unneces. Mr. Edwin R. Walker for respondent.

sary, as

we conclude that the conveyance

must be set aside because, in making it, the Gummere, Ch. J., delivered the opinion donor did not have the benefit of competent of the court:

and independent advice as to its effect. That The two complainants and the defendant the absence of such advice will invalidate a are the only children and heirs at law of deed of gift which contains no power of George H. Slack, deceased, who died on the revocation, where a relation of trust and 13th day of August, 1902, at the age of confidence exists between the donor and sixty-eight years. On the day before his donce, is not denied, and indeed, it was so death he executed a deed to his daughter, held by the vice chancellor. He seems to Mrs. Rees, conveying to her two houses and have considered, however, that such relalots in the city of Trenton. He owned no

tionship was not shown unless it was made other real estate, and his personal estate to appear that the donee occupied such a was insufficient for the payment of his debts. dominant position toward the donor as to His sons seek to have the conveyance set raise the presumption that the latter was aside and declared void upon the following without power to assert his will in opposigrounds: That their father lacked mental tion to that of the donee. But this is not capacity to make the deed, that it was the the situation. The rule has a much broader product of undue influence exercised by sweep. Its purpose is not so much to afford their sister upon him, and that, in making protection to the donor against the consethe deed, he did not have the benefit of com

quences of undue influence exercised over petent and independent advice.

him by the donee, as it is to afford him proThe deceased, for a number of years before tection against the consequences of volunhis death, suffered from the disease known tary action on his part, induced by the ex: as “locomotor ataxia.” By the progress of the istence of the relationship between them, disease bis physical powers became gradual- the effect of which upon his own interests ly weakened, and his mental powers also h may only partially understand or apprewere somewhat affected. But, although his ciate. The following citations from our own mind was somewhat weakened, we fully con- decisions make this plain: "In all transaccur in the conclusion of the learned vice tions between persons occupying relations, chancellor, who heard the case below, that he whether legal, natural, or conventional in retained sufficient mental capacity to dis- their origin, in which confidence is naturally pose of his property.

inspired, is presumed, or in fact reasonably The second ground of attack upon the con

exists, the burden of proof is thrown upon veyance—that it was the product of undue the person in whom the confidence is reinfluence—presents a more difficult question. posed, and who has acquired an advantage,

NOTE.-As to effect of settlor's failure to un- to show affirmatively not only that no decepderstand the legal import of his act, see Ricards tion was practised therein, no undue influv. Safe Deposit & T. Co. 63 L. R. A. 145.

ence used, and that all was fair, open, and As to power to revoke voluntary settlements, see Neisler v. Pearsall, 52 1. R. A. 874, and voluntary, but that it was well understood.” note.

Hall v. Otterson, 52 N. J. Eq. 528, 28 Atl.

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907, on appeal, 53 N. J. Eq. 695, 35 Atl. The decree will be reversed, and the rec1130. “Where parties hold positions in ord remitted to the Court of Chancery, with which one is more or less dependent upon instructions to that court to enter a decree the other, courts of equity hold that the setting aside the conveyance in question, and weaker party must be protected; and they declaring it to be null and void. set aside his gifts, if he had not proper advice independently of the other." Hay. dock v. Haydock, 34 N. J. Eq. 575, 38 Am.

Salina A. CHARLTON, Appt., Rep. 385. “The rule to be gathered from the English and American cases is that the burden 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

(........N. J.........) doing had the benefit of disinterested and

*A signed, but undelivered, lease may competent advice.” Coffey v. Sullivan, 63 be given in evidence to prove an agreeN. J. Eq. 302, 49 Atl. 520. The present case ment upon the details of a lease pursuant to is a marked example of the wisdom of the one of the terms of a previously signed memrule. The deed was made by Mr. Slack al

orandum in writing of an oral agreement

for a lease; and if said previous memoranmost immediately after a prostrating at

dum of agreement for a lease, and the signed, tack, which was a phase of the disease from

but undelivered, lease, taken together, show which he was suffering. Neither of the phy. a completed agreement upon the terms of a sicians who were in attendance upon him lease, the statute of frauds is satisfied, and expected the attack to be fatal. As soon as

specific performance may be decreed. he was sufficiently recovered from its vio

(Dixon, Garrison, Swayze, and Gray, JJ., dislence to permit it, an attorney, who had

sent.) previously been employed by him in other matters, was sent for; and, upon his ar

(March 6, 1905.) rival, Mr. Slack stated to him that he wished him to draw a deed conveying to

d

PPEAL by complainant from a decree of Mrs. Rees certain property which he owned the Chancery Court in favor of defendin Trenton, and asked the attorney whether ant in a suit to compel specific performance he had better make a will or a deed. He of an agreement to make a lease. Reversed. was advised by the attorney that it would The facts are stated in the opinion. be better to make a deed, and did so. No Messrs. Alden B. Endicott and E. A. power of revocation was reserved in the Higbee for appellant. deed, and its effect, if valid, was to prac- Mr. George A. Bourgeois for appellee. tically strip him of his whole estate ; for his personal property, as has already been stat- Fort, J., delivered the opinion of the ed, was insufficient to pay his debts. If the court: opinion of his physicians as to the effect of The bill in this case is filed for the spethe attack upon him had turned out to be cific performance of an alleged agreement accurate, he would, for the rest of his life, to make a lease. The written memoranda have been dependent upon the charity of in evidence to prove the alleged agreement others, except so far as a pension which he consisted of two writings, as follows: received from the national government would have sufficed to support him. From

Agreement made this Seventh day of May his inquiry made of the attorney,--whether between Columbia Real Estate Co., of the it would be better for him to make a will first part, and Mrs. Charlton, of Atlantic or a deed,—it seems quite probable that he city, of the second part, Witnesseth, that considered the one would be more effective the party of the first part will make a lease than the other to presently deprive him of for ten years of a certain building on their all further interest in the estate to be em

grounds in rear of stores to contain about braced in the instrument which he proposed eighty feet in width by one hundred feet in to execute. It is difficult to understand the *Headnote by FORT, J. failure of the attorney to advise Mr. Slack as to the effect of such a deed as was exe

NOTE.--As to when several papers may concuted. He not only should have done this, statute of frauds, see also note to Louisville

stitute a suflicient memorandum within the but, in the language of Malins, V. C., in Asphalt Varnish Co. v. Lorick, 2 L. R. A. 212, Coutts v. Acuorth, L. R. 8 Eq. Cas. 558, he and the later cases in this series of Freeland v. should have insisted upon inserting in it the Ritz, 12 I. R. A. 561, and White v. Breen, 32

L. R. A. 127. reservation to the donor of the power to

As to sufficiency of memorandum of contract revoke the gift, unless Mr. Slack had dis

embodied in telegrams, see Brewer v. Horsttinctly refused to have it done.

Lachmund Co. 50 L. R. A. 240, and note.

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