miles per hour, without sounding bell or whistle, and without a headlight burning, particularly when the train register in the office, as observed by respondent, indicated such train had already passed. A headlight is: was necessary for him and all other freight, past the yard office on a dark night, through conductors to cross the main track, after an unlighted yard, at a speed of 30 or 35 leaving the office, in order to get to trains to which they were assigned. The distance of the yard office from the south rail of the main line is estimated by the witnesses to be from four to six feet. There is evidence tending to show that it was known to be customary for conductors to look over the train "A common and necessary means adopted by register, and that respondent did this; that all railroad companies for the protection alike this register indicated that the train which track, or approaching it in the nighttime. No of those rightfully on the train, and on the struck respondent was already in; that re-engine is constructed without such a light, and spondent procured his waybills and orders no train is run in the nighttime by any railroad and went out the east door of the yard office, without having it lighted. This is a fact known company under any ordinary circumstances thence to the north side thereof, and, accord- to all reasonable minds by common experience, ing to the engineer on the passenger train, and the court committed no error in declaring was walking westward in the space between that it was negligence if the defendant's servthe office and the main track when he sud- ants failed to have such a light lighted, and burning at the time of the collision." Becke v. denly discovered appellant's train almost up- Railway, 102 Mo. loc. cit. 552, 13 S. W. 1055, 9 on him; that he leaped back, struck the L. R. A. 157; Gorton v. Harmon, 152 Mich. loc. building, and "rebounded" against the train, cit. 476, 116 N. W. 443, 15 Ann. Cas. 461; and was injured. There is also evidence S. W. Ry. v. Alsop, 176 Ill. loc. cit. 475, 53 Burling v. Railway, 85 Ill. loc. cit. 20; B. & O. that he had walked, in the space Indicated, N. E. 253. 732; Collins v. Railway, 30 Minn. toward the west end of the yard office, and loc. cit. 33, 14 N. W. 60; Railway v. O'Hara, then stepped out upon the main track and 150 Ill. loc. cit. 585, 37 N. E. 917; Willis v. Railroad, 122 N. C. loc. cit. 909, 29 S. E. 941; proceeded west a few steps further, and then Railway v. McNicholas, 98 Ill. App. loc. cit. was struck; that this course in going to his 58; Artz v. Railway, 44 Iowa, 284. train was more convenient and safer than [4, 5] It is contended respondent was an to go directly across the main track; that employé, and there was no obligation to keep there was a space six or eight feet wide be- a lookout for him. Gabal v. Railroad, 251 tween the main line and the lead track next Mo. loc. cit. 267 et seq., 158 S. W. 12, and north of it, and that employés walked along like cases are relied on. The principle anthis space in which there was a pathway. nounced in those cases has no application to There is no evidence this pathway crossed this. That principle is founded upon the the main line or was generally used by train- idea that employés falling within it are men in going from the yard office to their aware of what is going on and are expected, trains. There was evidence the main track ordinarily, to guard themselves from injury west from the yard office was straight for a from the transaction of the company's busihalf mile or more, and that an electric head-ness in the usual manner. In those cases light, such as was on the engine of the passenger train, could be seen 2 miles away; that the train which struck respondent was running 30 or 35 miles an hour; that it gave no signals, either by bell or whistle, and that the headlight was not burning, and that it reached the yard office before those inside were aware of its approach; that the night was dark, and the testimony warrants an inference that no other lights on the train were visible to one as nearly in front of it as was respondent; and that the yard, west of the office, was unlighted. There is no dispute as to respondent's injury, nor as to the train which injured him. the ability of the employé to protect himself and the rule that he must do so depend upon the fact that the movement which caused the injury was one naturally to be expected. It is not held in any of those decisions that an act or movement which is of unusual character, and the unusualness of which reasonably may be found to have deprived the employé of an opportunity to protect himself, is nevertheless one from which he must protect himself at his peril. The rule invoked has not been applied to facts like those in this case, and we do not think it applicable. The doctrine is usually carefully limited and qualified, and respondent does not fall within its scope. Gabal v. Railroad, supra; Colasurdo v. Railway (C. C.) 180 Fed. loc. cit. 835; Hardwick v. Railway, 181 Mo. App. loc. cit. 166 et seq., 168 S. W. 328; Schulz v. Railway, 57 Minn. loc. cit. 273, 59 N. W. 192. The fact respondent did not walk directly across the main line does not, of itself, defeat the action. It was evidence, at most, of contributory negligence which is not a bar in an action under the federal Employers' Liability Act under which this case was tried. [1-3] I. Having constructed its yard office next the main track and south of it and necessarily making up its freight trains north of the main track, and it being necessary for conductors to procure their orders and waybills from the yard office, appellant was bound to know these employés must cross the main line in order to reach their trains. This was notice that such employés were likely to be upon or near the track near the yard office. There was no evidence any particular point was used or recognized as a [6, 7] II. This action is under the federal crossing. In the circumstances it was neg- Employers' Liability Act. Respondent's first ligence to run an overdue passenger train instruction required the jury, if they found certain facts, they should return a verdict guage, in accordance with the holding in the for respondent, and added: Earnest Case, ought to have been given had appellant asked it is not a question the record presents. "And if you so find your verdict should be for the plaintiff, even if you should find him guilty of negligence contributing to the injury; but in that event the damages should be diminished by you in proportion to the amount of negligence attributable to plaintiff." The language of the act (section 3) is that: "Contributory negligence shall not bar a recovery, but the damages shall be diminished by We find no reversible error. The judgment is affirmed. All concur; BOND, P. J., in paragraph I and in result. the jury in proportion to the amount of negli- FIDELITY TRUST CO. v. MEXICO, S. F. & gence attributable to such employé." (a) The word "should," as used in the instruction, imports duty, obligation; and therefore the objection to its use is not well founded. It is a word used with frequency in instructions to advise the jury that it is their duty as jurors to find as stated. The objection is quite technical, and is untenable. State v. Connor, 74 Kan. 898, 87 Pac. 703; People v. Barkas, 255 Ill. loc. cit. 526, 99 N. E. 698; Lynch v. Bates, 139 Ind. loc. cit. 210, 211, 38 N. E. 806; Smith v. State, 142 Ind. loc. cit. 293, 41 N. E. 595; Durand v. Railway, 65 N. J. Law, loc. cit. 660, 661, 48 Atl. 1013. (b) The language of the quoted clause, except as pointed out under (a), is the language of the statute. In Norfolk & Western Ry. v. Earnest, 229 U. S. 120 et seq., 33 Sup. Ct. 656, 57 L. Ed. 1096, Ann. Cas. 1914C, 172, the Supreme Court of the United States considered an instruction, the relevant part of which is: "The thought which the instruction expressed and made plain was that, if the plaintiff had contributed to his injury by his own negligence, the diminution in the damages should be in proportion to the amount of his negligence. This was twice said, each time in terms readily understood. But for the use in the second instance of the additional words 'as compared with the negligence of the defendant,' there would be no room for criticism." This objectionable language is not found in respondent's instruction in this case. In that case the court held that: "The statutory direction that the diminution shall be in proportion to the amount of negligence attributable to such employé' means, and can only mean, that, where the causal negligence is partly attributable to him and partly to the carrier, he shall not recover full damages, but only a proportional amount bearing the same relation to the full amount as the negligence attributable to the carrier bears to the entire negligence attributable to both." The instruction in this case follows the act, and the decision cited holds such a formula to be exempt from criticism. Whether an instruction explaining the statutory lan P. TRACTION CO. (No. 18497.) (Supreme Court of Missouri, Division No. 1. March 30, 1917.) 1. APPEAL AND ERROR 400-WRIT OF ER ROR-RIGHT TO REVIEW. A writ of error is not a continuation of the original action, but a new action, which must contain on its face the evidence of the right of plaintiff in error to a review. Error, Cent. Dig. §§ 2103, 2107-2112.] [Ed. Note.-For other cases, see Appeal and 2. APPEAL AND Error 403—WRIT OF ER ROR-PETITION-DISMISSAL. A writ of error will be quashed where it does not specify the names of the parties to the action, particularly the adversaries of plaintiff in error, and identify the judgment attacked. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2115-2119.] Error to Circuit Court, Audrain County; James D. Barnett, Judge. Action by J. D. Bates and others against the Mexico, Santa Fé & Perry Traction Company and others. From the judgment, the Fidelity Trust Company brings error. Writ of error quashed, and proceeding dismissed. This controversy is here upon writ of error to the circuit court for Audrain county, and the question of the sufficiency of the writ stands at the door of its consideration. It is as follows, omitting the attestation which is regular: "The State of Missouri-ss.: The State of Missouri, To the Judge of the Eleventh Judicial Circuit in said State, Greeting: Whereas, in the record and proceedings in a certain cause lately pending in the circuit court of Audrain county, wherein J. D. Bates et al. were plaintiffs and Mexico, Santa Fé & Perry Traction Company et al. were defendants in a civil action, manifest error hath intervened to the great damage of the said Fidelity Trust Company, one of the above plaintiffs, as by its complaint we are informed, now we, being willing that the error, if any there be, should be corrected, and full and speedy justice done to the parties aforesaid, in that behalf command you that you send to us, certified under your seal a perfect transcript of the record and proceedings in the cause aforesaid, or in lieu of such transcript, a certified copy of the record entry of the judgment order or decree, showing the term and day of the term, month and year upon which the same shall have been rendered, as the plaintiff in error shall direct, as fully as the same remain of record before you in said court, so that we may have them before us at our Supreme Court, to be begun and held at the city of Jefferson, in the county of Cole in said state on the second Tuesday in October, next, so that our Judges of our Supreme Court on inspecting the record and proceedings aforesaid, may cause to be further done therein, for correcting the error, what of right For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes and according to law ought to be done, and have | tervening petitions were filed by parties you then and there this writ." Prior to its issuance the Fidelity Trust Company requested J. D. Bates, W. W. Mundy, L. E. Botts, J. A. Botts, J. S. Brown, D. B. Guthrie, J. P. Cauthorn, C. C. Heizer, and W. W. Botts to join with it in the application for the writ, all of whom refused to do so. After the issuance of the writ, and more than 20 days before the return day named in it, the said Fidelity Trust Company caused a notice in writing of its issuance to be served on the following persons and corporations: Mexico, Santa Fé & Perry Traction Company; W. W. Botts, receiver of said Company, J. S. Brown, trustee, S. L. Robertson, Mathias Crum, Butler Manufacturing Company, Bates Machine Company, Coatsworth Lumber Company, and Crane Company. This notice concludes as follows: "The plaintiff in error, Fidelity Trust Company, was one of the plaintiffs in case J. D. Bates et al. v. Mexico, Santa Fe & Perry Traction Company et al., the other plaintiffs refused to join in the writ of error. The return day of such writ of error is the first day of the October term, 1914, of the Supreme Court, the same being Tuesday, October 13, 1914." claiming small construction liens upon the railway company, and who are, with the exception of J. S. Brown, trustee, the same parties who were notified of the issuance of the writ of error. On April 21, 1913, the court entered its decree foreclosing the deed of trust, and ordering the sale of the property by the receiver free and clear of incumbrances, and that the money raised from such sale should not be distributed until the court should determine whether the lien of the construction company was prior to that created by the deed of trust. The sale was made on May 17, 1913, from which the sum of $37,500 was realized. On the 28th of the same month the construction company, through one Marshall Rust, assigned its judgment to J. S. Brown, trustee, whose connection with the litigation in that capacity then began. On June 2, 1913, he filed as such trustee an intervening petition, setting up his ownership of the judgment of the Fruin-Bambrick Construction Company, and claiming thereunder a lien on the proceeds of the receiver's sale prior to the lien of the deed of trust. The fidelity company answered, setting up its claim under the deed of trust to the entire proceeds of the sale. The intervener replied, and the issue was tried by the court. The entire record in the original cause was introduced, together with much other evidence. The court found that there was in the hands of the receiver $37,500, which, after payment of certain costs, including attorney's fees, and not including the costs of the intervener, which were taxed against the Fidelity Trust Company, was to be prorated among J. S. Brown, trustee, as assignee of the FruinBambrick Construction Company, the Crane Company, the Coatsworth Lumber Company, the Butler Manufacturing Company, and Bates Machine Company, so that each should receive the same per cent. of his claim out of the fund. From this judgment an appeal was asked by the plaintiff in error and granted, and leave given to file a bill of exceptions, which is the same bill of exceptions returned with this writ of error. Should it be necessary to refer further to the record, we will do so in the opinion. The transcript which constitutes the return to the writ is entitled as follows: J. D. Bates et al., Plaintiffs, v. Mexico, Santa Fé & Perry Traction Company et al., Defendants, while the original petition which constitutes its first entry is entitled as follows: J. D. Bates, W. W. Mundy, L. E. Botts, J. A. Botts, J. S. Brown, D. B. Guthrie, J. P. Cauthorn, C. C. Heizer, and W. W. Botts, Plaintiffs, v. Mexico, Santa Fé & Perry Traction Company, a corporation and Fidelity Trust Company of Kansas City, a corporation, defendants. The petition was filed in the Audrain circuit court, January 28, 1913, and alleged that the plaintiff's owned a total of 137 bonds of the traction company (each in the sum of $250 or a total of $34,250); that the interest thereon was in default; that the traction company was insolvent; that the company's property was in danger of being lost; and asked that a receiver be appointed to administer it, and that the deed of trust to the Fidelity Trust Company, trustee, be foreclosed. It also stated, in substance, that the Fruin-Bambrick Construction Company had a judgment against the traction company for the sum of $47,900.47, and that great doubt existed as to whether or not it constituted a lien superior to that of the bonds on the property of the traction company, and asked that the receiver take immediate charge of the property, and for its sale and for the adjudication of the priority of the several BROWN, C. (after stating the facts as liens. A receiver was appointed on March above). One J. S. Brown, trustee, an inter3, 1913, and on the 28th day of the same vener upon the record filed as a return to month the Fidelity Trust Company filed its this writ of error, has moved that the writ answer, setting out that by the provisions of be quashed for the reason that it is wholly the deed of trust it had the exclusive right insufficient in law in failing to name or deto institute and maintain the foreclosure suit scribe the parties to the record below or in and asking that it be discharged as a defend- this court. The facts before us are as folant, which was done. In the meantime in-lows: Suit was instituted by one J. D. Bates Clarence A. Barnes, of Mexico, Mo., and Justin D. Bowersock and Robert B. Fizzell. Brown. and eight other individuals claiming to be holders of bonds secured by deed of trust of the Mexico, Santa Fé & Perry Traction Company, a corporation, against that corporation and the Fidelity Trust Company, the trustee in the deed of trust, to foreclose that instrument and have a receiver pendente lite. The trust company answered that by the terms of the deed of trust it was the only party entitled to foreclose, and on its own application the court "discharged" it as defendant, and permitted it to proceed as a plaintiff, and the cause thereafter proceeded upon the record by the designation of J. D. Bates et al., Appellants, v. Mexico, Santa Fé & Perry Traction Company et al., Defendants. This is the title as it appears both in the writ of error and the return thereto. The cause proceeded in this way to final judgment of foreclosure April 21, 1913, under which the property was sold May 17th and was purchased by J. D. Bates, trustee, for $37,500, which in the hands of the receiver, then became the bone of contention. After the sale J. S. Brown, as trustee for himself and others, purchased the Fruin-Bambrick judgment mentioned in the foregoing statement, and intervened with a claim for the money in his capacity as trustee. The priority of a number of other interveners who had established small liens upon the property was recognized in the decree of foreclosure, but we cannot gather from the record that their right is questioned. Around the intervention of J. S. Brown, trustee, the sole controversy gathered and the trust company has thus far indicated no other object in the prosecution of this writ than to dispute his priority. The application for this writ is not before us. Although the common-law procedure in such cases required a præcipe containing the names of the parties and the nature of the judgment, we will assume, without determining its necessity, that it was filed and that it contained all the facts that appear upon the face of the writ, and determine its validity. whom he seeks the remedy. There are many plaintiffs in this case beside the plaintiff in error, but none of them had any fault to find with the judgment, and would not proceed with him against it, so that Bates, the only plaintiff named in the title to the cause, had nothing to do with this proceeding. There were two defendants included in the title; the traction company, against whom the foreclosure was sought, and this plaintiff in error, who afterward had itself transferred to the other side. It evidently has no controversy with the traction company, so that the title to the case, as it appears in the writ, contains no hint as to the identity of the real defendant in error. So far as this proceeding goes the plaintiff in error was, at the time the decree of foreclosure was entered, the sole plaintiff, and the traction company the sole defendant. The construction company had taken no steps upon the record to become a party. After the sale, Brown, trustee, as its representative by assignment, intervened with a claim for the proceeds and won. The controversy is with Brown, trustee, and with him alone, and yet neither his judgment nor his name is mentioned in the writ, nor does he come within any description contained in it by which he can be identified as the adversary of the plaintiff in error. The writ should show on its face the name or some equivalent description of the one against whom it is directed, and such description as will identify the judgment upon which error is intended to be assigned. For insufliciency in these respects the writ is quashed and the proceeding dismissed. RAILEY, C., concurs. PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All concur; BOND, J., in result. In re CLARK'S ESTATE. (No. 18217.) [1] It is the settled doctrine of this court (Supreme Court of Missouri, Division No. 2. that a writ of error is not, like an appeal, to be considered as a continuation of the original action, but as a new action which must St. contain, on its face, the evidence of the right of the plaintiff in error to a review. Louis v. Butler, 201 Mo. 396, 99 S. W. 1092. [2] Although it is a writ of right, that right differs in no respect from the absolute right to bring an action under the Code of Civil Procedure, which can only be done by petition specifying, among other things, the names of the parties to the action, plaintiffs and defendants. These may not be left to be gathered by general averments showing who the plaintiff might have sued had he so desired. So in this proceeding the plaintiff must be equally explicit as to the identity of the judgment he attacks and those against March 16, 1917.) INHERITANCE AND 1. TAXATION 884 TRANSFER TAX CONTINGENT ESTATES STATUTE. life or till her divorce and remarriage an income Testator bequeathed to a daughter-in-law for out of an estate devised in trust in such sums as trustee should deem advisable and just, payable annually in monthly installments. The collateral inheritance tax statute (Rev. St. 1909, § 310) provides the manner of collection upon bequests vesting in immediate possession; section 314 provides that if the estate is one wherein possession is postponed or contingent, the session; under section 322 appraisers are retax shall not be due till beneficiary gets posquested to appraise property "at its clear market value, at the time of the death of decedent"; while section 323 provides that upon coming in of appraiser's report the court shall fix the value of the property at the market value at time of death and that determination of limited estate, income, etc., shall be fixed by the method For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes "The court doth further find from the evidence employed in ascertaining value of policies of, other things pertinent, made findings and orlife insurance. Held that as the income provid-dered thus: ed vests in possession at once, and as the amounts which daughter-in-law will receive annually as well as their duration are impossible of ascertainment, it is not subject to collateral inheritance tax under said sections of statute. 2. STATUTES 245-TAXING STATUTES-CON STRUCTION. The rule that statutes imposing a tax on property are to be strictly construed, is not to be followed so far and so technically as to defeat the intention of the Legislature. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 326.] that prior to the date on which this appeal Appeal from Circuit Court, St. Louis sum of $270.83 the court doth order and adjudge County; John W. McElhinney, Judge. In the matter of the assessment of the collateral inheritance tax in the estate of Charles Clark, deceased. From a judgment of the circuit court modifying and affirming an order of the probate court subjecting interest of Grace Clark in said estate to collateral inheritance tax, she appeals. versed and remanded. Re T. K. Skinker, of St. Louis, for appellant. O. M. Barnett, of Columbia, and Ernest A. Green, of St. Louis, for Curators of University of Missouri. FARIS, J. This is an appeal from the circuit court of St. Louis county in a proceeding commenced originally in the probate court of that county to appraise the interest of Grace Clark (hereinafter for brevity called appellant), in the estate of one Charles Clark, deceased, for the purpose of collecting collateral inheritance tax alleged to be due thereon. The probate court found against appellant, and ordered that: The "Mississippi Valley Trust Company, as trustee for said Grace Clark, shall comply with the terms of the will of said Charles Clark with respect to said Grace Clark, and at the time of making payment of any sum of money, or its equivalent under and in compliance with the provisions of the will of said Charles Clark, de ceased, by which Grace Clark is constituted a beneficiary, deduct and retain 5 per cent. of said payment and within 30 days after such deduction pay said 5 per cent. deduction as collateral inheritance tax under and pursuant to the provisions of sections 309 to 331 of the Revised Statutes of Missouri for 1909, to the collector of revenue of the county of St. Louis, and state of Missouri, which said 5 per cent. of said payment or payments is hereby levied, assessed, and fixed by the court as the inheritance tax payable under said sections to the state of Missouri." Said probate court further ordered in and by its judgment that as to all sums theretofore paid out by the Mississippi Valley Trust Company as trustee, if said sums had been paid for as much as 30 days, said trustee should pay to the collector of St. Louis county 5 per cent. thereon. Upon appeal to the circuit court of St. Louis county the order of the probate court in the case was affirmed. But said circuit court, however, went a little more into detail in its judgment, and, among From this order and judgment of the circuit court of St. Louis county the appellant, after the usual motions, appealed. The facts upon which the case turns, outside of the bare statement of the steps taken and the results thereof, will fully appear in the provisions of the will of said Charles Clark, deceased, who in his lifetime was the father-in-law of appellant. Dying, said testator left a will wherein and whereby certain provisions were made for the support of ap-. pellant during her life, unless and until she married again. These provisions we will set out in full in our discussion of the case, wherein they will be more apposite to an understanding than if they were set forth here. It is fairly clear that two questions are (a) Does appelpresented by this appeal: lant come within the class of legatees whose legacies are chargeable? (b) Is the provision for her, or the bequest which she takes such a one as the statute makes taxable, and, if so, how and when by statute must payment of the tax be made? I. Is the provision made for her within the class of bequests, or estate, or incomes, which the statute makes chargeable with this tax? The provisions of the will of testator, Charles Clark, pursuant to which appellant takes the estate, or provision about which this controversy revolves, are abridged and set out in appellant's brief thus: "Clause 8 provides that, after the payment of certain special legacies, the estate shall be divided into two parts. One-half of the estate is to be held by the Mississippi Valley Trust Company as trustee for the use and benefit of Lewis Vaughan Clark and Mrs. Grace Clark, his wife, upon the trusts named in that clause. Omitting details in regard to management of that estate, clause 8 proceeds: ""The net income deriving [derived] from the trust estate is intended for the support and maintenance of my son, Lewis Vaughan Clark and Grace Clark, his wife, during their lives and the life of the survivor of them, and to such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |