Levering Inv. Co. v. Lewis.

did instruct the jury that the notice contained in the letter of March 20, 1913, and read in evidence, was a notice, in effect, of the decision of the lessee that the premises would be vacated, unless certain repairs were made, and provided the jury found that certain repairs therein demanded were not made, and it submitted to the jury the question as to whether the repairs demanded had been made. This latter was a question of fact for the jury.

In Halbert v. Halbert, 21 Mo. 277, 1. c. 284, it is held that the trial court had erred in withdrawing the case from the jury and determining the matter both in law and in fact, because "the terms of the gift was a matter of fact, to be ascertained by the jury, and not a question of law for the judgment of the court." [See, also, Primm v. Haren, 27 Mo. 205, 1. c. 210; Huth v. Carondelet Marine Ry. & Dock Co., 56 Mo. 202, 1. c. 207; Mantz v. Maguire, 52 Mo. App. 136; Yost v. Silvers, 138 Mo. App. 524, 119 S. W. 971; and Weinstein v. Spalding Cloak Co., 193 S. W. 994, a decision not to be officially reported.]

At all events, we do not think that it was reversible error for the court to have submitted to the jury the question as to whether the letter of March 20, 1913, was a sufficient notice to terminate the tenancy under the facts in this case.

Passing that, however, the clause in controversy is directly contrary to the provisions of section 7884, Revised Statutes 1909. That section provides that no notice to quit shall be necessary from or to a tenant whose term is to end at a certain time, or when by special agreement notice is dispensed with. Here is a lease, the term of which expired at a specified, a certain, time. What is claimed as an agreement is, at best, a one-sided agreement for a renewal. We say "a one-sided agreement, for by this interpolated clause, it is stipulated that if the lessee gave his notice of intention to renew the lease thirty days before the term expired, it was optional on the lessor to renew. For all of the thirty days intervening be

Briscoe v. C. & A. R. R. et al.

tween the thirty days and until the end of the term specified in the lease, it was at the option of the lessor to determine whether the lease should be renewed or not, and the defendant could not know whether or not he had a lease. This clause appeared for the first time in this lease. It had not been in any of the former leases, going back to that of 1903. The attention of defendant was never called to it until by letter of September 17, 1913. It was written into this contract by the lessor. Under the well known rule of construction, it is to be construed contra proferentem, most strictly against him, and most favorably for the other party. Says Bouvier's Law Dictionary, vol. 1 (Rawle's 3rd Ed.), p. 664, "Construction is against claims or contracts which are in themselves against common right or common law." "The courts will not give a contract such a construction as will permit one party to secure an unreasonable advantage over another, unless compelled to do so by the language of the contract." [Conquerer Zinc & Lead Co. v. Aetna Life Co., 152 Mo. App. 332, 1. c. 342, 133 S. W. 156, and authorities there cited.] We do not think that in the case at bar we are compelled to enforce it or to construe this lease so as to make this clause practically override our statute, which, as seen, provides that under such a lease, for a definite term, no notice is necessary.

Our conclusion is that the judgment in this case is ` for the right party and it should be and is affirmed. Allen and Becker, JJ., concur.

GUSSIE C. BRISCOE, Respondent, v. CHICAGO & ALTON RAILROAD COMPANY and J. L. CORDER, Appellants.

St. Louis Court of Appeals. Opinion Filed February 4, 1919.

1. MASTER AND SERVANT: Death of Servant: Cause: Evidence. Evidence reviewed and held sufficient to establish that a field

2.

Briscoe v. C. & A. R. R. et al.

switchman was killed by reason of his being caught and crushed between two cars, etc., so that the court did not err in refusing peremptorily to direct a verdict for defendants, on the ground that the manner in which deceased was killed was left purely to conjecture and speculation.

: Negligence of Member of Switching Crew.. In an action for the death of a field switchman, evidence held sufficient to establish negligence on the part of the servants of the defendant railroad company, constituting the other members of the switching crew.

3. TRIAL PRACTICE: Demurrer to the Evidence. On demurrer the evidence must be viewed in the light most favorable to the plaintiff.

4. MASTER AND SERVANT: Fellow Servants: Negligence of Fellow Servant: Liability of Master. Since the common-law fellow servant rule no longer prevails as to railroads, the negligence of the engine switchman alone, resulting in the death of the field switchman, is the negligence of the defendant railroad company.

5.

6.

7.

8.

- Injury to Servant: Contributory Negligence. Evidence held not to warrant the conclusion that the field switchman, killed by being crushed between two cars, was guilty of negligence, as a matter of law, barring the right of recovery.

: Evidence: Conclusions of Witnesses: Harmless Error. Where a witness had been fully questioned as to the custom and practice in vogue in a railroad yard where a field switchman was killed, and his subsequent examination showed that his answers were predicated upon such custom and practices, rulings permitting interrogation as to what signals should be given, and as to when the engine should move or not move under certain circumstances, while subject to criticism, cannot be regarded as prej. udicial error.

:

-: Admission of Testimony: Harmless Error. In an action for the death of a field switchman, the court committed no prejudicial error in allowing the answer of a witness with reference to what he saw the next morning on the coupler of the car, to stand.

-: Erroneous Instruction not Affecting Rights or Merits: Not Reversible Error. In giving an instruction erroneously defining negligence held, in view of the character of the case and the other instructions given, not to constitute error materially affecting the merits of the action within section 2082, Revised Statutes 1909, or error affecting the substantial rights of appellants within section 1850, Revised Statutes 1909.

9. TRIAL PRACTICE: Instructions: Sufficient Given: Refusal of Others Not Error. Where the instructions given fully covered

Briscoe v. C. & A. R. R. et al.

issues to be submitted to the jury, it was not prejudicial error to refuse to direct special attention to certain matters, telling the jury that there was no evidence as to each of them.

Appeal from the Circuit Court of Audrain County.Hon. James D. Barnett, Judge.

AFFIRMED.

A. C. Whitson and Charles M. Miller for appellants.

(1) The trial court erred in not sustaining defendants' peremptory instructions to find for the defendants for the reasons, (a) that the evidence disclosed no negligence on the part of either defendant, causing the death of Briscoe, (b) that deceased Briscoe's negligence was the proximate cause of his death, and (c) that the manner of his death was mere conjecture. Harris v. Railroad, 180 Mo. App. 583, 166 S. W. 335 and cases therein cited; Neal v. Railroad, 105 N. W. 197-199; Grant v. Railroad, 190 S. W. 586, and cases therein cited; Swearingen v. Railroad, 221 Mo. 644-656; Warner v. Railroad, 178 Mo. 125-134. (2) The trial court erred in giving plaintiff's instructions No. 1 and No. 4, and in refusing defendants' instructions Nos. 6 to 12, inclusive. Houck v. Railroad, 116 Mo. App. 559-567, 92 S. W. 738; Storage & Moving Co. v. Railroad, 120 Mo. App. 410-413, 97 S. W. 184; Kirkpatrick v. Railroad, 211 Mo. 68-83; Cohn v. Kansas City, 108 Mo. 392, 18 S. W. 973. (3) The trial court erred in admitting over the objection of defendants incompetent evidence, (a) of witness Pimpell, for the reason that it permitted him to set up his own standard of care, state his own conclusion as to what should have been done, deciding one of the ultimate issues, thus invading and usurping the province of the jury, (b) of witness McIntosh, in permitting him to testify as to a mere conclusion, surmise and conjecture, relating to whether or not he afterwards found blood on the knuckle of the coupler. Marshall v. Taylor, 168 Mo. App. 240, 153 S. W. 527

Briscoe v. C. & A. R. R. et al.

530, and cases therein cited; Glascow v. Metropolitan, 191 Mo. 347, 89 S. W. 915-920; Labbat's Master and Servant (2 Ed.), section 1597, and cases cited thereunder.

Clarence A. Barnes and Fauntleroy, Cullen & Hay, for respondent.

(1) The proof is ample to sustain the conclusion that deceased was killed while adjusting a knuckle as he was in the act of passing to the north track by the defendant starting its engine a second time to make a second effort to couple. Union Stock Yards Co. of Omaha v. Conoyer, 59 N. W. 950; C., B. & Q. Ry. Co. v. Gunderson, 51 N. E. 708; Schlereth v. Mo. Pac. Ry. Co., 115 Mo. 87. (2) Deceased not guilty of contributory negligence by adjusting the knuckle on the standing car or passing over the track and was in no danger by so doing had the defendant not started its engine a second time without notice and run it east when the ordinary and usual movement was west. The case at bar presents facts similar to the facts in judgment in the Kettlehake case, 171 Mo. App. 583, the Weaver case, 170 Mo. App. 284, and the Panebeango case, 227 Ill. 170, all of which cases are cited and approved in the Harris case (see pages 594 and 595, Harris case, 180 Mo. App.). (3) The act of defendant in starting the engine a second time without notice and running it in an opposite direction without notice and contrary to the established custom and without keeping a lookout is evidence of negligence which creates an issue for the jury. Lewis v. Wabash R. R. Co., 142 Mo. 597; Hollenbeck v. Railroad, 141 Mo. 99; Rutledge v. Railroad, 123 Mo. 121, 134; 1 Labatt, Master & Servant, sec. 213a; Penny v. Stock Yards Co., 212 Mo. 309. The system of rules or methods adopted by the master for the conduct of his business forms a part of the contract of hiring and are binding on both master and servant. The violation thereof by the master to the injury of the servant is culpable negligence. I. C. Ry. Co.