and other evidence is not in the record, and, known, because the facts and circumstances we pass it dubitante.

show that the casket could have struck nothing else. And do not the facts and circumstances just as surely prove that the why of its striking the sill of the car was because the casket was not raised high enough to clear this sill? The casket was being raised from below the sill, and is it not a truism that if the casket, as it approached the open door, had been raised high enough to clear or pass over such sill, is would not have struck it? Certainly, if the casket struck the car, it was because it was not so raised and guided as to miss it. Granting that the casket struck the car, resulting in plaintiff's injury (and this defendant concedes), then it makes little difference whether it struck the sill (though this is the only reasonable inference from the facts), or the side or the top of the car door, as either of the latter would bespeak negligence as strongly as the first. Had plaintiff been able to see and observe the movements of the men at the front end

The defendant insists that the evidence, considered most favorably to plaintiff, fails to show any negligence of the coemployés in handling this casket; that the most that is shown is that the casket struck the sill of the car, and as a result that plaintiff was injured. The well-known rule of law is invoked that it is not sufficient to create liability to merely show an accident and resultant injury. Defendant seeks to fortify his argument in this respect by pointing out that plaintiff confessedly could not and did not see the movements of the men at the forward end of the casket, which struck the doorsill, and therefore plaintiff's statement that these men "did not raise that end high enough to clear the doorsill" is a mere conclusion and must be rejected. That evidence, however, went in without objection, and was not asked to be stricken out, and what weight was giv. en it by the jury we do not know. Though a conclusion of the witness, this is a fact which the jury had to determine, was doubtless argued pro and con, and the jury determined for itself, from all the facts and circumstances, whether the conclusion arrived at by the witness was correct as a fact. Whether or not it was proper to allow the witness to express this conclusion is not before us, but only the question whether this conclusion, as a fact reached or adopted by the jury, is supported by evidence other than the mere the three fellow servants of plaintiff. A failure to do this in a reasonably careful manstatement thereof by the witness. [1] This court should and does disregardner, as shown by their allowing it, without this statement of the conclusion by the witcause, to strike violently ness, and only considers whether the conclu- against the sill of the car instead of raising sion itself, as a fact necessary to support it clear of such sill, raises an inference of the verdict, is supported by other evidence. negligence, justifying the jury in so finding. Such, we think, is the holding of the court in Had the casket itself been marred and inKane v. Railroad, 251 Mo. 13, 44, 157 S. W. Jured by such handling and striking the sill of the car, there would be little question that the facts here shown justify a finding of negligence.

644.

[2] It is a well-known rule that, in considering the sufficiency of the evidence to support the essential and ultimate facts underlying a verdict, not only must the evidence itself be considered, but also all legitimate and fair inferences therefrom. The jury is permitted to draw legitimate and fair inferences from the facts and circumstances in evidence, because the ultimate facts may be proven by circumstantial as well as direct evidence. No witness testified to actually seeing the casket strike the sill of the car, yet defendant concedes that plaintiff's evidence "clearly showed that the casket struck the side (sill) of the car, and that as a result the plaintiff was injured." This must be so because we reason from effect to cause as surely as we reason from cause to effect, and seeing is not the only medium of knowledge. The jar of the casket conveyed this knowledge through the sense of feeling, and that it was the car that the casket struck is

of the casket, he would have seen no more than that they did not raise it high enough to clear the sill, and that fact is shown by its striking against such sill. The witness also knew it was not raised high enough when it bumped, because when they raised it higher it went in the open door.

The lifting of the front end of the casket, and the guiding of same through the open door into the baggage car, was the duty of

excuse any

or

[3] We conclude, therefore, that the jury casket striking the sill of the car was the was justified in finding that the cause of the failure of plaintiff's fellow servants to lift the same high enough to clear such sill. All else is conceded by defendant. This is not a case where the evidence raises an inference that this accident might just as probably have been produced by another cause as the one mentioned. The evidence in fact negatives any other reasonable inference.

The defendant relies on the cases of Hawley v. Lusk, 184 S. W. 1173, and Neth v. Delano, 184 Mo. App. 652, 171 S. W. 1, as holding a contrary doctrine. We think not. In both those cases the plaintiff was injured in assisting other workmen in carrying heavy loads, and the cause of the injury was alleged negligence, in that such fellow servant let go or ceased carrying his part of the load. In those cases the facts in evidence either

raised no inference as to why the other serv- | negligence of the fellow servant or to a mere ant ceased lifting or else such inference accident, then they must find for defendant, negatived negligence. That is quite different might readily be understood as requiring the from jamming the thing being carried against evidence for plaintiff to be such as to remove an obvious and easily avoided object. any such uncertainty. Removing any uncertainty is practically the same as removing any reasonable doubt, and so the plaintiff would be required to prove the negligence cause so as to leave no uncertainty; that is, beyond a reasonable doubt. Only this latter part of the instruction was objected to, and had defendant omitted this clause entirely, or worded it differently, the law would have been declared as favorably to defendant as we can approve.

Under the court's instructions, the jury was required to and did find that the employés assisting plaintiff to load this casket "failed to exercise ordinary care to lift and raise the front end of said casket high enough to clear the sill of the car door as the same was being shoved into said car, when, by the exercise of ordinary care, they could have lifted and raised the same to a sufficient height to clear the sill of such car door." On defendant's part the jury was instructed to find for defendant on the theory of the injury being a mere accident; also that it was not sufficient for plaintiff to prove no more than that the casket struck the sill or side of the door, resulting in plaintiff's injury, but that plaintiff must also prove that the fellow servants of the plaintiff failed to exercise ordinary care, and that such failure caused the striking of the vault and plaintiff's injury. The only instruction refused for defendant told the jury that the burden was on the plaintiff to prove that plaintiff's injury was the direct result of the negligence of his coemployés in permitting the casket to strike the sill or side of the car. "And in this connection you are instructed that you cannot indulge in speculation, guesswork, or conjecture as to the cause of the vault striking the sill or side of the car, and if the evidence | leaves it uncertain in your mind as to whether the vault struck the sill or side of the car as a result of the negligence on the part of one or more of defendant's employés assisting in loading the vault, or as the result of an accident as defined to you in other instructions, then your verdict must be for the defendant."

[4] Defendant is correct in saying that, although the refusal of this instruction is not an assigned ground for granting a new trial, yet if its refusal is error, the action of the trial court in granting the new trial, though for an erroneous reason, must nevertheless be upheld. Peper v. Peper, 241 Mo. 260, 264, 145 S. W. 408.

[5] This instruction, we think, is misleading and confusing and was properly refused, though in a measure following the language used in the court's opinion in Mullery v. Missouri & Kansas Tel. Co., 180 Mo. App. 128, 135, 168 S. W. 213. Our courts have warned litigants that it is not always safe or proper to embody in an instruction the language used by an appellate court in discussing legal propositions in an argumentative way. That part of the instruction in italics, which tells the jury that "if the evidence leaves it uncertain" whether the striking of the vault against the sill or side of the car was due to

Our conclusion is that the case was fairly and correctly tried, and no new trial should have been granted. The cause it therefore reversed, with directions to set aside the order granting a new trial, and to enter judgment for plaintiff on the verdict.

BRADLEY and FARRINGTON, JJ., con

cur.

On Motion for Rehearing. FARRINGTON, J. I concurred in the opinion rendered by STURGIS, P. J., in this case, and still concur therein. However, the decision, as I view it, is in conflict with the case of Neth v. Delano et al., 184 Mo. App. 652, 171 S. W. 1. In that case the proof showed that a fellow servant of the plaintiff, while carrying a heavy timber in the usual and ordinary way, let it fall, which caused plaintiff to be injured. There was no negligence shown as to the manner and method in which the plaintiff and his fellow servant undertook to handle the timber; no showing that, owing to an insecure grip upon ft, it slipped from the fellow servant's hand; no showing that anything whatever caused the fellow servant of plaintiff to release his hold on the timber. It was the duty of the fellow servant in that case to not let this timber fall as he did. In other words, he owed the plaintiff there the duty of using all reasonable care to keep it in the position in which he was carrying it, and to sustain it at that place, and the court held that the mere proof that he did not do that, and proof of injury which was caused from the fact that he did not do that, did not make out a case of negligence.

Applying this principle to the case at bar, it was the duty of the fellow servants of the plaintiff here to use reasonable care in loading this casket into the car, and if in doing that they permitted the end of the casket to strike the car, and from such striking the plaintiff was injured, it then becomes a question of fact, in my opinion, for a jury to say whether their handling the front end of the casket as they did was done as reasonable, prudent men would have performed the task. In our case, as we view it, it was a question

of fact for the jury to say how high reason- | the plaintiff, Hattie H. Farley, the sum of able, prudent men would have lifted this $3,750, in the event of the death of the incasket in putting it into the car, and that sured, Ernest C. Farley, husband of plaintiff, proof that they failed to do this, and proof "by reason of bodily injuries effected solely that plaintiff was injured thereby, is evidence through external, violent, and accidental tending to show a negligent handling. If means." By further provisions of the policy the rule applied in the Delano Case is applied defendant obligated itself to pay to plaintiff, to this case, the mere fact that the casket as beneficiary, "double indemnity”—i. e., $7,was not lifted high enough, and kept high 500-in the event that the injuries causing enough by plaintiff's coworkers to clear the the loss were sustained by the insured "while car, and injury resulted therefrom, the plain- a passenger in or on a public conveyance tiff would not be entitled to recover.

In the one case it was merely the duty of the fellow servant to hold and lift the object they were carrying at a certain height, which they did not do; in the other, it was the duty of the coemployé to hold and carry the timber in a certain way, which he did not do. The evidence as to why neither of these things was done in either case is absent.

This case must, therefore, be certified to the Supreme Court under the constitutional provision, because the opinion heretofore rendered in the cause is contrary to the rule enunciated in the case of Neth v. Delano, 184 Mo. App. 652, 171 S. W. 1.

* *

or by reason and in consequence of the burning of a building while the insured is therein." On May 14, 1917, the insured, while working in a room containing a large electrical switchboard, received burns about his person, from which he died five days later.

The suit proceeds upon the theory that plaintiff is entitled to recover the double indemnity in the policy, to wit, $7,500. On the trial below, before the court and a jury, the court, of its own motion, peremptorily instructed the jury that "under the law, the pleadings, and the evidence" the verdict should be for the plaintiff in the sum of $3,750. In obedience to this instruction the jury returned a verdict accordingly, and from a judgment entered thereon the plaintiff prosecutes this appeal.

One Dell, an electrician and fellow workman with the insured, was the only eyewitness to the casualty, which occurred during the night. According to the testimony of this witness, shortly prior to the accident, he and Farley were at a certain bench in the room, referred to as a "substation." Farley, having in his hand a testing apparatus or "testing set," said to the witness that he was "going back to make a test," or "test out," and walked to the switchboard. Shortly thereafter the witness, who was not looking directly at Farley at the time, but had a "side view" of what occurred, "heard an awful noise," and "saw a flame and gas go up into the air." He said that the flash or flame came from the switchboard. The witness testified that immediately after this flash he glanced in the direction in which

Appeal from St. Louis Circuit Court; Wil- Farley had gone, but could not see the latter son A. Taylor, Judge.

Action by Hattie H. Farley against the Etna Life Insurance Company. Judgment for plaintiff, and she appeals. Affirmed.

James J. O'Donohoe and Paul U. Farley, both of St. Louis, for appellant.

Jones, Hocker, Sullivan & Angert, Vincent L. Boisaubin, and James C. Jones, Jr., all of St. Louis, for respondent.

ALLEN, J. This is an action on a policy of accident insurance, issued by defendant insurance company on June 5, 1917, whereby defendant became bound, inter alia, to pay to

at first, because of the smoke and gas in the
room; that he quickly ran to Farley, who
ter's clothing in flames.
was about 30 feet distant, and found the lat-
Witness made ef-
forts to extinguish the flames, but did not
succeed in doing so until Farley had been
seriously burned. There is some evidence
tending to show that the flash caused oil
from an "oil box," or tank of oil, connected
with the switchboard, to be thrown over
Farley's clothing.

The evidence shows that this switchboard, located along one wall of the room, was about 30 feet long and perhaps 7 feet in height. It was firmly attached to the floor

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

electric flash which Dell saw; this being occasioned, as said, by the short-circuiting of the electric current. This same short circuit, or the intense heat thus developed by the electric current, melted the copper rods mentioned, and otherwise damaged the mechanism of the switchboard; but if this can be

of the building by being "set in concrete," | Farley's clothing was set on fire by the single and was likewise firmly fastened to the wall. The evidence further shows that the body of the switchboard, or "box," as it is termed, was of iron, and that it was equipped with certain electrical appliances, including certain "five-eighths copper rods," referred to as "buzz risers," transformers, circuit breakers (immersed in an oil tank), porcelain insula-said to have been a "burning" of the switchtors, etc. The evidence is that all the material composing the switchboard and the mechanism thereof, above the oil tank, consisted of metal of some character, or of porcelain or slate.

board, and hence a "burning of the building," within the meaning of this term in the policy, the insured's injuries were not received "by reason and in consequence" thereof. If any evidence were present tending to show that the electric current set fire to some combustible portion of the building, and that the flames from such burning part of the building were communicated to Farley, the case would be quite a different one. The facts disclosed, however, conclusively show, we think, that Farley's injuries proximately resulted from a sudden flash occasioned by the short circuit mentioned, which flash, it appears, threw oil over him and ignited his clothing, and not from any burning of the building or any portion thereof.

The testimony of Dell and that of one Blakeman, an electrician who worked at the plant at which Farley was injured, shows that the flash which set fire to Farley's clothing resulted from a short circuit, or electrical arc, caused in some manner while Farley was making the test mentioned, and that such a short circuit will cause a flash or flame and intense heat. On cross-examination Dell testified that he saw no flame, "excepting this first flash," 1. e., other than the flames upon Farley's clothing, and that when he reached Farley, who was then about 6 Plaintiff places much reliance upon the feet away from the switchboard, no flames decision of the Supreme Court of Illinois in were coming from the switchboard. The evi- Wilkinson v. Etna Life Ins. Co., 240 Ill. dence shows, however, that by reason of the 205, 88 N. E. 550, 25 L. R. A. (N. S.) 1256, intense heat thus developed, these copper 130 Am. St. Rep. 269. In that case it aprods, or buzz risers, were burned or consum-peared that the contents of a barn loft were on fire and that the insured's injuries reed, porcelains were cracked, and other portions of the mechanism of the switchboard sulted therefrom. It was held that the term were melted, "blistered," scorched, or other-"building," as used in a policy such as here wise damaged.

Learned counsel for plaintiff, appellant here, insist that the facts disclosed in evidence suffice to make it a question for the jury to say whether or not the insured received his fatal injuries "by reason and in consequence of the burning of a building" while he was therein, within the meaning and intendment of this provision of the policy.

in suit, should be held to include the contents of such building. The Court of Appeals of New York in Houlihan v. Preferred Accident Ins. Co., 196 N. Y. 337, 88 N. E. 927, 25 L. R. A. (N. S.) 1261, refused to follow the Wilkinson Case, as did the United States Circuit Court of Appeals for the Fourth Circuit, in Maryland Casualty Co. v. Edgar, 203 Fed. 656, 122 C. C. A. 52. We think that the Wilkinson Case, in any event, is not authority for the contention of appellants, in view For our purposes, we may assume, without of the manner in which the insured's indeciding, that the switchboard is to be re-juries were received in the case before us, garded as a part of the building, as appel- and the reasoning of the opinion on the point lant contends. But whether the damage mentioned does not impress us as being enthereto can be said to have constituted a tirely sound. burning of the building, or a portion thereIn other cases cited by appellant, which of, within the purview of this provision of need not be here discussed, the evidence was the policy, is quite another matter. While such as to make it a question for the jury the evidence shows that various metallic por- as to whether the insured's injuries were retions of this switchboard "were burnt”—i. eceived in consequence of the burning of the melted or wholly or partly consumed-by in-building, as distinguished from the burning tense heat developed by the electric current of the contents thereof.

pra, relied upon by respondent, the insured was burned by reason of an explosion of gasoline in the cellar of his home, by reason of which explosion the building was set on fire, though the fire was quickly extinguished.

when short-circuited, we are not prepared In Maryland Casualty Co. v. Edgar, suto say that this constituted a burning of the building within the intendment of this provision of the policy. But, be this as it may, we regard it as entirely clear that there is no evidence whatsoever to show that Farley's injuries resulted by reason or in consequence of any burning of the building. All of the evidence touching the matter shows that

The court, among other things, said: "We are unable to perceive that Edgar sustained the injury of which he died in conse