Clark v. Railroad. ing to have a man upon the rear end of the car to pilot the same out from said Union Depot across said Sixth street; and failing and neglecting to have a suitable air brake or emergency brake, or any other safe appliance on said train of cars by which the same could be stopped within a reasonable time; and by carelessly and negligently failing to stop said backing train before reaching said Sixth street as aforesaid; and by the carelessness and negligence of the defendants, their agents and employees in charge of said train, in failing to give any warning or notice whatever of the approach of said backing train towards and over said Sixth street by ringing a bell or otherwise, and by the carelessness and negligence of defendants in failing to have and keep a capable watchman, or other person at said crossing to give warning or notice to the employees of said car company, and especially to plaintiff, of the approach of said backing train of cars as aforesaid, towards and over said crossing, and by the carelessness and negligence of defendants, its agents and employees, to have discovered the danger in which plaintiff was placed and failing and neglecting to apply the air brakes or other brakes on said car to protect plaintiff from the danger in which defendants by their agents and employees had placed him by their carelessness and negligence after they did learn of such danger, or could have learned of such danger, by due care and caution." Defendant answered by way of general denial and a plea of contributory negligence. The plea of contributory negligence set forth an ordinance of the city and a state statute alleged to have been unobserved by plaintiff at the time of his injury. Other details as to both pleadings and evidence can best be noted in connection with the points made. I. We are confronted with a preliminary question in this case, the details of which we have purpose Clark v. Railroad. ly omitted from our statement, for the reason that they can best be stated here. The cause was tried and plaintiff had judgment for $11,400 on February 13th, 1908. On March 10, 1908, the following paper was filed in the cause in the Buchanan Circuit Court: R. A. Brown, being first duly sworn upon his oath, says that he is the attorney and agent of the above named defendant, St. Joseph Terminal Railroad Company, and as such is duly authorized to make this affidavit; that the appeal prayed for by the said defendant, St. Joseph Terminal Railroad Company, is not made for vexation or delay, but because this affiant considers said defendant, St. Joseph Terminal Railroad Company, and said defendant considers itself, aggrieved by the judgment and decision of the court herein. On the same day the following record entry was made by said court: 1908. Subscribed and sworn to before me this 9th day of March, (Buchanan Circuit Court) (Seal) Harry B. Clark, Plaintiff, V. St. Joseph Terminal Railroad Company et al., Defendants. St. Joseph Terminal Railroad Company et al. Now here defendant, St. Joseph Terminal Railroad Company, has leave to file bill of exceptions herein during the next regular term of this court. Comes now the said defendant, and by its attorney files affidavit for appeal, and now here in open court said defendant deposits with the clerk the sum of ten dollars as docket fee for appeal. Now here the amount of the appeal bond is fixed at twenty five thousand dollars, said bond to be filed and approved by the clerk of this court within ten days after final adjournment thereof for this term. And now here appeal is allowed said defendant to the Supreme Court of the State. Clark v. Railroad. In 1911 it was discovered that the name of the officer before whom the affidavit was made was missing, and the defendant fied in the circuit court its application for certain nunc pro tunc entries. At the time the paper was filed, Ambrose Patton was circuit clerk, and C. J. Lund, his deputy. Judge Henry M. Ramey was the presiding judge. In the meantime death had taken both the judge and the deputy clerk, and the clerk himself had gone out of office. Upon a hearing of the matter, Judge Amick, successor to Judge Ramey, by order duly made, directed that the words "Ambrose Patton, Circuit Clerk, by C. J. Lund, Deputy Clerk," be attached to said affidavit by Ambrose Patton, and further ordered and directed that the record entries of March 10th, supra, be amended by adding the following words therein: "Said affidavit having been sworn to before C. J. Lund, deputy clerk of this court," so that clause of the record, when so amended, read: "Comes now the said defendant, by its attorneys and files affidavit for appeal, said affidavit having been sworn to before C. J. Lund, deputy clerk of this court." In the hearing of this application the court records and files were introduced, and in addition, R. A. Brown, attorney for defendant, was permitted to testify that he in fact swore to the affidavit before C. J. Lund, deputy clerk. This evidence was objected to, and upon the termination of the inquiry resulting in the judgment aforesaid thus amending the records, the plaintiff appealed. Plaintiff challenges the right of the circuit court to thus amend its record, and has filed in this court motion to dismiss the appeal, on the ground that there is no affidavit of appeal. This motion we think should be overruled. Practically the same question was up in Cooley v. Railroad, 149 Mo. 487. The only difference between the af Clark v. Railroad. fidavit for the appeal in that case and the one at bar being that in the Cooley case the seal of the clerk was not affixed, and in this case it was affixed. On the facts the case at bar is the stronger of the two. The Cooley case, wherein the defective affidavit was filed, went to the Kansas City Court of Appeals, and was there reversed and remanded. When it got back to the circuit court a motion was filed to dismiss the case upon the ground that the Kansas City Court of Appeals acquired no jurisdiction owing to the absence of an affidavit for appeal, and its judgment remanding the cause was void for want of jurisdiction. With this question lodged in the case, it went to the Kansas City Court of Appeals a second time, and after an opinion was written, the cause was certified to this court. We adopted in toto the opinion of SMITH, J., and made it our own. [149 Mo. l. c. 491.] Discussing the defective affidavit we there said: "After the cause had been remanded to the latter court, the defendant moved to dismiss the same for the reason that no affidavit for an appeal had been filed by the plaintiff and therefore the appeal granted was unauthorized by law, and did not confer jurisdiction upon this court to render said judgment of reversal. To the affidavit upon which the appeal was granted, there was no jurat appended. The circuit court, after hearing evidence as to whether or not the plaintiff's attorney, by whom the affidavit was signed, had made oath thereto before the clerk, overruled the defendant's said motion to dismiss and permitted the clerk to attach the proper jurat to the affidavit. The order granting the appeal was regular on its face, and our attention was at no time called to the defect in the affidavit, either by motion or otherwise. "Section 2114, Revised Statutes 1889, expressly provides that the omissions, imperfections, defects and variances mentioned in the preceding section (2113) and others of like nature, not being against the right Clark v. Railroad. and justice of the matter of the suit, and not altering fhe issues between the parties on the trial, shall be supplied and amended by the court when the judgment shall be given, or by the court into which such judgment shall be removed by writ of error, or appeal. No reason is therefore seen why the omitted jurat could not have been supplied by leave of either this or the circuit court, even after the judgment of reversal was given by the court. [Bergesch v. Keevil, 19 Mo. 127; Crum v. Elliston, 33 Mo. App. 591.]" We have since followed the Cooley case in State ex rel. v. Broaddus, 210 Mo. 1. c. 14, whereat we said: "In Cooley v. Railroad, 149 Mo. 487, it was held that under section 2114, Revised Statutes 1889 (Sec. 673, R. S. 1899), a jurat omitted from the affidavit upon which the appeal is granted may be supplied by leave of either the appellate or the trial court, upon a showing that the affidavit had been properly signed and sworn to." The proceedings had in this cause seem to be in conformity with these views. The motion to dismiss. is therefore overruled. II. The first vital question urged goes to the petition. Defendant contends that under the petition there can be no recovery under the so-called humanitarian doctrine, and as that question permeates the whole case, this contention had best be settled even before we discuss the demurrer to the evidence. A discussion of the demurrer to the evidence involves the question. In addition to what we have heretofore quoted from the petition in our statement we find the following: and carelessly and negligently failed to apply or use an air brake or an emergency brake, or any brake whatever on said backing train as aforesaid 242 Sup.-38 |