party employing them to make a definite offer, fendants' flats, and a week later an appointthey are the procuring cause of trade made ment was made by plaintiffs' agent for Mcshortly after such offer was submitted, although Clelland to meet Gardner, so that the foroffer was not submitted through such brokers, and at time of trade another broker was trying mer might be shown the flats.

to consummate it.

Plaintiffs' agent took McClelland to de

3. BROKERS 88(3) COMPENSATION-PRO- fendants' flats, introduced McClelland to CURING CAUSE-QUESTION FOR JURY. In an action for real estate commission, whether plaintiff was procuring cause of the real estate trade is for the jury.

Ira S. Gardner and C. S. McLane, both of Kansas City, for appellants. Henry L. Jost, of Kansas City, for respondents.

BLAND, J. This is a suit for a real estate commission. Plaintiffs having recovered, defendants have appealed.

Defendants make the point that there was no evidence to sustain the verdict. The evidence taken in its most favorable light to plaintiffs shows that during the month of October, 1915, defendant D. D. Gardner, who repre

sented both defendants in the transactions

herein mentioned, went to the office of plain

tiffs, who were real estate brokers in Kansas City, Mo., and talked to one of plaintiffs' employés, telling him that defendants had some flats in Kansas City, Mo., which they would like to trade for vacant property. Plaintiffs' employé told Gardner that the

firm had for sale or exchange the corner of

Armour boulevard and Gilham road, in said city. Gardner valued his property for trading purposes at $50,000, and the owner of the property at Armour boulevard and Gilham road, a Mr. McClelland, valued his property at $30,000. Plaintiffs handled both

ends of the transaction with the consent of all parties concerned. According to defendants' evidence, plaintiffs were employed "just to put a trade to us [meaning defendants], and if acceptable, we would trade." There was nothing said about the price. The agreement was to pay the regular commis

sion in case the trade was made. All plaintiffs were required to do was to get a trade that was acceptable to the defendants.

Gardner, and they showed McClelland the
flats, and plaintiffs' employé discussed with
McClelland the probable earnings and future
of the same. A week or ten days after plain-
tiffs' agent had shown the Gardner property
to McClelland, he took Gardner and showed
him the McClelland property. Both Gardner
and McClelland stated that they would con-
sider a trade. Following the showing of the
interviewed McClel-
properties, plaintiffs interviewed
land several times, and talked with Gard-
ner, and made repeated efforts over the tele-
phone to reach both parties to get them into
negotiations. Plaintiffs' agent testified that
in reference to the matter, and was able to
he had called up Gardner "about fifty times"
catch Gardner and talk to him about 12
times. It seemed that neither Gardner nor

McClelland wanted to make the first propo-
sition, but plaintiffs kept after both of them,
trying to get a proposition out of them.
Plaintiffs' evidence shows that at the time
they were employed by defendants there was
nothing said about the plaintiffs obtaining a

proposition from McClelland before defendants would consider a trade. McClelland was out of town a great deal, which interfered with plaintiffs' efforts to some extent. Plaintiffs' evidence shows that they never at any time gave up their efforts to bring the parties to an agreement to trade the

properties.

Plaintiffs did not have the exclusive agency for the property, as defendants had their property in the hands of another real estate man by the name of Woods, who attempted the owner of a farm, but this deal fell to work up a trade between defendants and through. Afterwards Woods heard through a neighbor that McClelland had this vacant first that Woods knew of the McClelland property for sale or trade. This was the property. He took up the matter with defendants, and took charge of this deal about

the middle of January. Woods testified that he obtained the first proposition made by either party from Mr. McClelland about the At the time of plaintiffs' employment Gard- 20th of January. This was a verbal proponer stated to plaintiffs' employé that he sition, and it was turned down by the demight consider a trade for the McClelland fendants. However, the record shows that property, and invited said employé to go out on January 18, 1916, Gardner made a writand look at the flats, so that the latter could ten proposition to McClelland for the extake it up with McClelland, and this employé change of the properties, and on the followmade several appointments with Gardner, ing day, the 19th day of January, 1916, Mcand finally met him at his flats. Another Clelland made a counter written proposition employé of plaintiffs, immediately after to defendants, which was accepted by the plaintiffs were employed by defendants, call- defendants with two or three very slight ed up McClelland and asked him if he would changes, and on February 1, 1916, McClelconsider a trade of his vacant property at land and defendants executed a contract for Armour boulevard and Gilham road for de- the exchange of their respective properties.

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On April 14, 1916, defendants and McClel-duced the parties, brought them together, land executed and exchanged deeds, and de- and showed both of them the properties, and fendants' property was conveyed to McClel- did a great deal of work tending to consumland under a trading value of $35,000. Woods, or the firm he was representing, received a commission in the deal which was less than the regular commission, and from the evidence we conclude that it was very much less.

mate the trade. It is apparent that plaintiffs did all that they could reasonably be expected to do to bring about the trade, and had defendants done their part by making an offer, the trade, no doubt, would have been consummated before the matter was tak

Un

Along in January, 1916, plaintiffs discover-en up by a new agent. ed that another agent was working on the [3] It is apparent that the trade was not trade, and they called up Gardner about consummated while the matter was left in it, and the latter said, "You boys did not get plaintiffs' hands on account of the act of me the proposition, and I took the deal over" defendants in refusing to make a proposito another agent. Defendants "took the tion. But even if this were not true, plaindeal over" without notice to plaintiffs and tiffs worked up the deal to a point where without making any inquiry of plaintiffs it required little else to consummate it than to ascertain whether or not plaintiffs had that defendants make a proposition, for when any prospects of inducing McClelland to be- the trade was put into the hands of Woods, gin negotiations. Plaintiffs protested against and defendants consented to make a proposithis action of defendants. Defendants at tion, the trade was soon consummated. no time instructed or notified plaintiffs to dis- der all the facts it was for the jury to say continue their efforts to make the exchange. whether or not plaintiffs were the procuring The case went to the jury under numerous cause of its consummation, even though instructions submitting to them the issues, they secured no offer from either side bewhether plaintiffs were the procuring cause fore defendants "took the deal over" to of the exchange; whether they were dili- another agent. Defendants recognized that gent in their efforts to start and carry on the question of defendants' good faith in negotiations between the parties; and wheth-taking "the deal over" to another agent was er the defendants refused to act and co-op-in the case when they submitted their inerate with plaintiffs. By defendants' in- struction No. 9. The whole case was one struction No. 9 the court submitted to the for the jury. Weidemeyer v. Woodrum, jury the issue whether or not plaintiffs fail- 168 Mo. App. 716, 154 S. W. 894; Lane v. ed to consummate the trade within a rea- Cunningham, 171 Mo. App. 17, 153 S. W. sonable time, and whether defendants were acting in good faith when the transaction was consummated through another agent.

525; Sallee v. McMurry, 113 Mo. App. 253, 88 S. W. 157; Real Estate Co. v. Epstein, 157 Mo. App. 101, 137 S. W. 326; Hamilton v. Davison, 168 Mo. App. 620, 153 S. W. 277; Nooning v. Miller, 178 Mo. App. 297, 165 S. W. 1119; Rowland v. Progressive Invest

(199 Mo. App. 448)

CO. et al. (No. 12735.) (Kansas City Court of Appeals. Missouri. April 29, 1918.)

[1, 2] We think there is ample evidence to support the verdict. Of course, the jury was not required to take the testimony of Woods that he obtained. the first proposition, sub-ment Co., 202 S. W. 257. mitted by either of the parties, about Jan- The judgment is affirmed. All concur. uary 20, 1916, and that this was a verbal proposition made by McClelland, as it is shown that on January 18, 1916, defendants made a written proposition to McClelland. CRANE v. KANSAS CITY SOUTHERN RY. We may assume from the evidence that the first proposition made was from defendants to McClelland. These defendants refused to make a proposition for plaintiffs before the former took over the matter to a new 1. MASTER AND SERVANT 264(1)-PLEADING agent. Although plaintiffs worked upon this matter for several weeks, defendants would not make a proposition. If Woods first got into the deal on January 15th, and there was evidence from which the jury could so find, then within three days after Woods took over the negotiations a proposition in writing was made by the defendants, and the exchange was consummated almost immediately. Under such circumstances defendants' insistence that the question whether plaintiffs were the procuring cause of the trade should be taken away from the jury is without merit. witness or to produce matters of evidence has It is only where the party failing to call a Plaintiffs were employed to produce an ac- the advantage of the other party by having the ceptable trade for defendants. They intro-witness or evidence within easier control, that

AND PROOF-SEVERAL ACTS OF NEGLIGENCE. Plaintiff employé, pleading several negligent acts or omissions on defendant's part, need not prove all of them, but either, if a proximate cause of injury, will suffice.

2. MASTER AND SERVANT 264(6)—PLEADING AND PROOF.

It was error to allow plaintiff employé to introduce evidence that he was inexperienced in the service in which he was engaged when injured; he not having alleged or proved that 3. EVIDENCE 77(1)-PRESUMPTIONS FAILthe defendant employer knew it. URE TO CALL WITNESS OR PRODUCE TESTIMONY.

an unfavorable presumption arises from the feet on the doubletrees, started as directed. failure to call or produce. In going down the hill, there being no brake 4. EVIDENCE 77(6)—PHYSICIANS-FAILURE on the wagon, the mules could not be held

TO CALL.

In personal injury suit by employé, it was error to allow plaintiff to prove that he had been examined as to his injuries by a doctor suggested by defendant's attorney, this doctor not being called by either party, and to introduce the testimony of another doctor as to his injuries, with the object of showing that testimony of plaintiff's doctor must be true, else defendant would have contradicted it by the other doctor. 5. TRIAL 54(2) PRIOR STATEMENTS OF WITNESS-CODEFENDANTS.

In a personal injury action against three defendants, a witness' written unsworn statement as to the circumstances of the accident, offered and admitted, at the instance of one defendant, while the witness was testifying, as substantive proof of the matters it contained, was error as to another defendant objecting thereto.

6. RAILROADS 303(1)-DUTY TO MAINTAIN CROSSING.

A railroad company is not excused from compliance with Rev. St. 1909, § 10626, as reenacted by Laws 1913, p. 696, § 1, as to requirements of a "good and sufficient" railroad crossing, by the fact that at a particular crossing, on a side hill, macadam or gravel used on the crossing will not stay in place without cement or other binding; but in such case the company must make the crossing good and sufficient, either by binding material or by using boards, as permitted by the statute.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

Action by Ray Crane against the Kansas City Southern Railway Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Lathrop, Morrow, Fox & Moore, J. H. Lucas, and Reed & Harvey, all of Kansas City, for appellants. Guthrie, Gamble & Street, of Kansas City, for respondent.

ELLISON, P. J. Plaintiff's action is for personal injury received by falling from a wagon drawn by two mules. He instituted his action against three defendants, viz. Kansas City Southern Railway Company, the St. Louis & San Francisco Railroad Company, and the Davidson Construction Company, and recovered judgment against all three in a lump sum. The railroad companies are lessor and lessee.

The construction company had plaintiff in its employ, and directed him to haul a load on the wagon over a road that led down a hill and across the Southern Railroad at a public crossing not quite at the bottom of the hill, to a point beyond. The wagon was equipped with the usual sized "bed." Across the bed was a hayrack extending over its sides, and on this some flat sheet iron was laid, and on top of these, towards the front, there was a metal chicken house, and some fence posts had been pushed into it. There was no brake on the wagon, and the hill was long and somewhat steep. Two mules were hitched to the wagon, and plaintiff, sitting in front on the edge of the hayrack and his

back properly, and in consequence approached the crossing at too rapid a gait for a wagon loaded as this one was. The wagon struck the crossing, got over and several feet on the other side, when plaintiff fell, or was thrown therefrom to the ground, run over, and severely injured. The crossing was not such as is required by the statute. Section 1, Laws 1913, p. 696; section 10626, R. S. 1909. It had been provided with boards on each side of each rail and gravel placed between, but the boards had become worn down, and one was partly split off. So the gravel and earth adjoining and on the outside of the rail, which plaintiff approached and first struck with the wagon, had been allowed to wear away, leaving the rail itself higher above the surface than was safe.. Without going into detail, it is enough to say that the rapidly moving wagon, without a brake, and its cumbersome, unsecured load, together with the rough and improper crossing, caused plaintiff to be thrown, or to fall, to the ground.

[1] The acts of negligence alleged in the petition against. the construction company are separate, viz. improper bits on the bridles, unbroken mules, failure to secure the load on the wagon, and absence of a brake. Plaintiff does not necessarily need to prove all of these; either, if a proximate cause, will suffice. There was no evidence as to the bridle bits being unfit, or that the mules were wild, and so the court instructed; but there was evidence tending to prove the allegation as to the insecurity of the load, and that there was no brake on the wagon, and this fully justified the court in refusing the peremptory instruction offered by the construction company.

[2] There were, however, errors in the course of the trial materially affecting the merits of the case under the issues. Plaintiff was allowed to introduce evidence that he was inexperienced in the service in which he was engaged, when there was no allegation in the petition that the construction company knew it, nor was there any proof that it knew it. it knew it. Batesell v. Smelting Co., 190 Mo. App. 231, 239, 176 S. W. 446; Fulwider v. Gas Co., 216 Mo. 582, 597, 116 S. W. 508. This was harmful to all of the defendants.

[3, 4] Plaintiff was also allowed to prove that he had been examined as to his injuries by a doctor suggested by one of the construction company's attorneys. This doctor was not called as a witness by either party, but plaintiff had introduced another doctor, who testified as to his injuries, and his object in showing the examination by the doctor suggested by defendant's attorney was that the jury might be advised that the testimony of plaintiff's doctor must be true, else defend

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203 S.W.-41

on the statement that they were not required 1. TRIAL 371-BY COURT-SUBMISSION OF

Buchanan | tice, 667), and we think that, where the court directs counsel to prepare an issue, it is the duty of counsel to make a bona fide effort to comply with the direction. The case evidently was tried on the theory that it was the defendant who was ordered to prepare the issue, so we will decide the case here upon that theory.

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