Robinson, J.
This action was begun by the respondent Annie Gannon against appellant to recover $5,000 for the death of her husband William Gannon, alleged to have been caused by the fault of the defendant company, as set out in her petition, containing- the following substantial averments :
“That the Laclede Gas Light Company, defendant, is a corporation under the laws of Missouri, engaged in the business of furnishing and selling electric light throughout the city of St. Louis, Missouri; that in conducting said business the defendant had erected and strung upon poles along the streets and alleys of said city wires charged with a certain dangerous and life-destroying fluid and current known as electricity. And that on the 18th day of April, 1894, on a certain public highway of said city, to wit, in an alley running east and west through the block bounded on the north by Sheridan avenue, on the south by Thomas street, on the east by Elliot and on the west by Leffingwell avenue; through and along which alley it then and there had erected" and maintained as aforesaid its said [508]*508wires as aforesaid charged with electricity in the conduct of its said business; and at a point in said alley in the rear of residence No. 2737 Thomas street the defendant negligently and carelessly permitted its said wires, to the number of six or seven, then and there charged as aforesaid, to become broken in two and to fall to the pavement of said alley, and to remain broken in two and down for a long time then and there while full charged with electricity as aforesaid, when it knew, or ought by the exercise of any care and caution to have known, that the said wires were so as aforesaid broken and down and liable if touched by any human being while so broken down and- charged as 'aforesaid to destroy human life. And plaintiff states that while the said wires were then and there in said alley broken in two and down and charged as aforesaid, her said husband, while walking along in the said alley at said point, struck with his foot against one of said defendant’s said wires and was thereby instantly killed by the fault and recklessness and carelessness of the said defendant then and there in the premises as aforesaid, to her damage in the sum of $5,000, for which sum plaintiff prays judgment.”
Defendant’s answer was a general denial coupled with a plea of contributory negligence on part of plaintiff, to which plaintiff replied denying the allegation of new matter contained in defendant’s answer.
At the close of plaintiff’s testimony in chief the defendant asked the following instructions: “The court instructs the jury that on the pleading and evidence the plaintiff can not recover and the verdict will be for defendant,” which being refused, the defendant offered testimony on its part to the effect that the wires belonging to defendant that killed plaintiff were melted or burned. in two by reason of a fire originating in a stable that was fronting on the alley¡ in which its wires [509]*509were strung; that said fire was not caused by the wires and that its origin was unknown; that the defendant was not notified of the existence of the fire or that its wires were broken down in the alley where the fire occurred until after plaintiff’s husband had been killed; and that said wires were down upon the ground in the alley only a short while before plaintiff’s husband was killed; that there was no appliance at defendant’s power house at the time to indicate when one of its wires was grounded; and that defendant had at the time of the fire a contract with the city for lighting certain streets and alleys with electricity, and also certain public and private institutions which required it to keep in operation during the day a constant current of electricity passing over its wires.
At the close of all the testimony in the case, defendant again prayed the court to instruct the jury “that upon the pleading and all the evidence the plaintiff can not recover,” which being. refused, the jury under proper instructions submitted by the court found a verdict-for plaintiff for $3,000 on which in due time judgment was entered, and to reverse which on account of error alleged in refusing defendant’s two peremptory instructions this case is here. No objection is made now to the proposition of law announced in the instructions given by the eourt, if the refusal of defendant’s instruction at the close of the case is held good: ■ The sole controversy has grown out of the application of the law to the facts under the peculiar averments of the petition.
The plaintiff to sustain her case offered testimony tending to show that William Gannon in respect to whose death this action was begun, was the husband of plaintiff; that he came to his death by stepping upon an electric wire belonging to the defendant company that was' broken in two and lying upon the ground [510]*510in one of the public alleys of the city of St. Louis, charged with an electric current of more than double the voltage necessary to kill a human being; that plaintiff’s husband was at the time in the discharge of his duty as one of the city firemen, trying to extinguish a fire that had originated in a stable fronting on the alley where he was killed, and along which defendant by permission of the city had strung its electric wires for the purpose of enabling it to furnish light to the city and for various private consumers along the course of the line; that two of a series of seven of defendant’s wires strung overhead in said alley were down when plaintiff’s-husband arrived at the fire, and two other of the firemen engaged with him were also stunned and knocked to the ground at and near the same time and place.
The defendant’s contention here is, that no testimony was offered which tended to prove that the death of plaintiff’s husband was caused by negligence on part of defendant, after the manner as alleged in her petition; that no substantial evidence, nor any evidence whatever was offered by plaintiff tending to show, either that the wires in question became broken in two or fell to the ground in consequence of any negligence on part of defendant or its agent; or that said defendant knew or ought by the exercise of ordinary care or caution to have known that said wires were so broken and down at or before the time when plaintiff’s husband was kiiled; or that defendant or its agents with knowledge or notice actual or constructive that said wires were broken and down in the alley where plaintiff’s husband was killed, did negligently permit said wires to remain so broken and down for a long time after notice thereof. And in the second place it is contended by defendant that, if it be conceded that a prima facie case was made by plaintiff in the first instance, it was [511]*511entirely overcome by the positive and uncontradicted testimony of defendant’s witnesses and for that reason a finding should have been directed for defendant by the court at the close of the case.
While there is no doubt of the general proposition so vigorously and repeatedly asserted by the counsel for appellant in his elaborate and able brief filed herein, “that a party can not declare upon one cause of action upon one negligent act, and recover upon an entirely different act of negligence, without a disregard of all rules of pleading and practice,” it must be borne in mind, that it has likewise been a rule of long practice, and frequently asserted in this court, based upon the plainest principle of propriety and fairness, that a party will not be driven out of court merely from the fact that he or she has alleged more than has been proven, when the unproven allegations are shown to be unnecessary averments to authorize a recovery; nor will plaintiff’s action be denied merely because the testimony offered does not support certain averments in his or her petition when it does support other averments which are sufficient to authorize a recovery* Knox Co. v. Goggin, 105 Mo. 182, and cases cited.
Here the plaintiff in her petition not only alleged the act from which defendant’s negligence might be inferred when shown, but went further to say that the act of negligence was committed or suffered under circumstances that admit of no excuse, that is, after notice etc.
Plaintiff’s petition was complete when the charges had been made that her husband had met his death upon one of the public alleys of the city, when in the discharge of his duty as fireman, and without fault upon his part, by stepping upon an electric wire of the defendant charged with electricity that defendant had negligently suffered to become broken into and fall to [512]*512the,pavement of the alley. The other averments of carelessness on part of defendant, that it knew, or ought by the exercise of care and caution to have known that said wire was broken and down and liable if touched by a human being, while so broken and down and charged with electricity, to destroy human life, were not necessary allegations; and the fact that the act of negligence as alleged to have occurred after the particular manner detailed in the petition, was not shown in all its fullness, is not fatal to a recovery if sufficient was shown to have made a prima facie case of negligence under ány of the charges made, and this announcement is no disregard of the rule of pleading and practice that prohibits variance between allegations made and proof shown. Surely, no harm could be said to have come to defendant because of plaintiff’s failure to establish all that was alleged, if what was proven under the allegations disclosed, showed defendant liable; nor can defendant be said to be surprised at the variance between the proof and the allegations of the petition, if that shortage or variance was in the failure to establish facts that were alleged. which defendant must have affirmatively asserted and shown not to have existed, in order to relieve itself from the prima facie case made by the facts proven. It is scarcely necessary to assert that it was the duty of the defendant company to- so keep at all times its electric wires over which was continuously being transmitted that most dangerous energy, force, or fluid known to man called electricity, out of the way of the citizen that contact with them would not occur as he went to and fro in the prosecution of his business.
It was a matter of the plainest duty for the defendant to see that the streets and alleys of the city along which by permission it was suffered to place its overhead wires for its own private gain were at all [513]*513times maintained in the same condition as to safety from the danger of electricity as they were before its overhead use thereof was begun, and a most imperative duty was placed upon defendant in assuming the overhead use of the publi'c alley with its wires to see that persons passing along and using the alley are not injured thereby, and when proof under the allegations of plaintiff’s petition was made showing that one or more of defendaht’s wires charged with its death dealing force was down upon one of the public alleys oE the city, and that plaintiff’s husband met his death in the discharge of his duty, a prima facie case of negligence was made out against defendant, and the burden was then put upon it to show that its wires were down in the alley through no fault of its agents and servants, notwithstanding the plaintiff had alleged further that said wires were permitted to become broken in two and to remain down and broken in said alley for a long time, when it knew or ought to have known by the exercise of care and caution the broken condition thereof.
The unnecessary or additional allegations made on part of plaintiff can not have the effect of changing the presumption that the law raises from the proof of a given state of facts, and when that presumption attaches from proof made of facts alleged, the after allegation will not stay the course of procedure resulting therefrom.
Plaintiff by her testimony made out a prima facie case of negligence against defendant, although her proof was not in full after the manner the negligence was charged in her petition. The proof of facts that were alleged was adequate to east the burden upon defendant of showing the non-existence of negligence on its part, notwithstanding plaintiff went further in her [514]*514petition and charged that the negligent act complained of was done under circumstances that could not be defended against. In the case of Gurley v. Railroad, 93 Mo. 445, so often quoted and so much relied on by appellant the proof was of an entirely different act of negligence from that alleged in the petition. It was not mere variance, resulting from incomplete proof 'of unnecessary averments, as in the case at bar. There the proof was that defendant negligently left certain of its cars on its track without securing them, by reason of which a collision occurred, causing an injury to plaintiff, while the allegation of the petition was that defendant’s agents negligently drove a loose car against certain other cars standing on its track, whereby plaintiff was injured. There the negligence shown was no part of the negligence charged, and had no tendency to establish either presumptively or conclusively the existence thereof. In fact the proof on part of plaintiff, in the Gurley case, showed the non-existence of the allegations of negligence made in the petition, and the court properly held there was a fatal variance between allegations made and proof shown; or a want of proof to support the allegation of the petition.
If then it is determined that a prima facie case of negligence on part of defendant was made out by the testimony offered in behalf of plaintiff in the first instance, and that the plaintiff is not to be defeated on the grounds of variance between the facts alleged and the proof made, we are brought to the consideration of the other questions raised by the presentation and refusal of defendant’s second peremptory instruction asked at the conclusion of all the testimony offered in the case. That is, had the court the right to determine upon the couclusiveness of defendant’s uncontradicted testimony offered to sustain its burden of proof (made [515]*515by plaintiff’s prima facie case), by an instruction to find for the defendant.
It must be said that in our reports quite a contrariety of opinion has been expressed on this proposition (and that to some extent the bars are leftin doubt as to the absolute rule of practice). One line of decisions, prominent among which is the case of Reichenbach v. Ellerbe, 115 Mo. 588, so much relied upon by appellant in his brief, holding that when the uncontradieted and unimpeached testimony in the case shows a complete defense to plaintiff’s prima facie case it was the plain duty of the trial judge to have directed a verdict for defendant, and not have submitted the ease to the jury, and that for having refused to so direct at the time, or afterwards when its attention was called to the fact by the motion for a new trial, this court would reverse the case. The converse of that proposition, which was assumed by the trial judge in this, as in the Beichenbach case, that when either party to a controversy submits testimony (other than written instruments that call for the courts construction of their meaning and import) to sustain his or her burden of proof, the other party though offering nothing to contradict it is entitled to have the jury pass upon the whole case, and to determine the credibility of the witnesses and the weight to be given to their testimony, has from our earliest reported cases been often asserted with mueh positiveness. This court as far back as the 4th Missouri Report, at page 106, in the case of Bryan v. Wear, when the plaintiff had offered uncontradicted evidence of his title in an action of ej'ectment, announced as a rule, that it was error to instruct the jury as to the weight of evidence by telling them that plaintiff had shown a good title, because it was practically telling the jury that they must believe the evidence. Also in the early case of McAfee v. Ryan, 11 Mo. 364, this [516]*516court refused to disturb a verdict rendered against the undisputed testimony of a witness when nothing appeared in the record to impeach his veracity or to indicate why it should not have been believed. If this court can now set aside the finding of the jury on the matters of facts involved in the issue raised by defendant’s answer, we must assume to ourselves the prerogative which the writer has always thought un der our Constitution and laws rested exclusively with the jury. If we can set aside this finding on the grounds that the ■defendant’s proof was undisputed, and sufficient as a defense, we ought to reverse the case, and in that we have made the finding of facts and passed our judgment thereon contrary to the finding of the jury with the apparent sanction of the trial court as indicated by its refusal to set aside the finding so made by them.
Upon the broad,'simple proposition that the juries are the triers of facts in all cases of this character, certainly no question can be made.
Here by the well established facts a prima facie case was made out by plaintiff, and the onus was cast upon the defendant of relieving itself from responsibility by showing that plaintiff’s husband met his death as the result of an accident, not occasioned by that want of care and caution which the law made obligatory upon defendant to bestow, in using its highly dangerous agency, electricity, through overhanging wires upon the public streets and alleys of the city. .
That issue of fact was addressed to the consideration of the jury for their determination, and the trial court in the first instance had no right to say to them, by an instruction, when they should become satisfied with the facts of the defense, and to have done so, would have substituted the judgment of that court for that of the jury. The plaintiff was entitled to have the [517]*517jury determine the credibility of the testimony offered, even though she offered nothing to contradict that offered in behalf of defendant, and it is not to be assumed by the court as a matter of law that evidence is true, satisfactory or convincing to the body called upon to hear it, from the mere fact, that no one by words contradicts what has been uttered. The right to judge the weight of evidence and the credibility of witnesses, implies of necessity the right to resist the influence of any part of what the witnesses may have testified to; of saying that it wants in the power to •convince. If the mere presentation of evidence of a fact is to be called its proof, because undisputed by any other witness or witnesses, then the right to judge the weight of evidence and the credibility of witnesses in such cases means nothing. There must not only be the presentation of the evidence of a fact by a witness ■or witnesses, but its acceptance by thé jury before proof can be said to have been made complete upon any given point, and if what has been uttered or said by a witness or witnesses fails to convince the mind or intelligence addressed, has not been accepted by them, then no sufficient proof has been made, however positive or unqualified the utterance of the witnesses upon which a finding can be predicated. The office of the court in the trial of a case by the jury is not to say when proof has been made sufficient for a verdict, but is limited to instructing when testimony offered tends or does not tend to establish a given fact or facts in issue. Testimony may tend in many instances to prove a given issue that falls far short of convincing proof. Suppose that a suit has been brought upon an open account for goods forwarded by plaintiff to defendant at his request, upon which issue has been joined by answer. A jury is called to try the cause, and the most positive testimony is offered as to the existence of every [518]*518averment of plaintiff’s petition, and defendant offers-no proof whatever, surely no one would say that the court had the right to direct a finding for plaintiff upon the uncontradicted testimony, and why ? Because defendant asked to have the facts of the case determined by a jury, and not by the court, as would be done if the court could direct a given finding. Because ‘ ‘the right of trial, as heretofore enjoyed, shall remain inviolate,” etc. Section 28 of article II, Constitution of Missouri. See Rev. Stat. 1889, sec. 2131.
Again suppose that suit has been instituted on a note of hand, and issue joined by a plea of payment on part of defendant, a jury is called to try the case, the burden is then upon defendant and he swears positively that at a given time and place he paid plaintiff the amount of the note in full, principal and interest. No witness is called to contradict his statement. The payee in the note may have been absent from the State and unable to be present at the trial, or we may suppose that the suit had been brought by an administrator and some witness had been called to the stand who swears positively that he either saw the defendant pay the deceased payee of the note, the full sum due thereon, or that the deceased had told him that the note had been paid in full. The administrator can not dispute the statement thus sworn to, by any known witness, neither is he able to impeach the character of the witness who thus testified, by any other witness, on the ground that his past reputation for truth and veracity was bad, or to effect by the most rigid cross-examination a self impeachment. Would the trial court under either of the circumstances above named ■ be compelled to instruct the jury to find for defendant on the uncontradicted and unimpeached testimony? We think not. The jury in the exercise of its prerogative of judging the weight of evidence and the credibility [519]*519of witnesses might say, “It fails to convince us;” “it fails to satisfy our minds;” “we da not believe it.” Something in the action, in the manner, in the bearing of the witness upon the stand (which finds no place in the transcript that reaches this court) might have repelled belief in the minds of the triers of the facts; and without belief in the existence of the truthfulness of a given statement or statements made, no verdict predicated thereon can be reached, and when not reached or believed, a verdict can not be ordered by a mandatory instruction from the court. If the jury in this as in all cases have the right to judge of the credibility of witnesses and the weight of their testimony, how could the trial court have dictated its verdict, contrary to that afterward made, without an abridgement of the exercise of that right, without substituting its beliefs and finding for that of the jury. The occurrence of undisputed testimony during the progress of the trial should furnish no occasion for a change in the rule of practice of asking the opinion of the jury on questions of fact, unless we are willing to announce for the future guidance of the bench and bar that uncontradicted and undisputed testimony is to be held and treated as facts agreed (and if this is done, to make proof and pleading consistent in this case plaintiff should have been required to withdraw her replication denying the allegation of new matter set up in defendant’s answer, and- thus new complications would arise).
To be logical and consistent under our Constitution and laws, we think the only course that can properly be pursued and maintained is, .that all questions of facts, in suits at law, must finally and conclusively be determined by the jury subject only to the corrective action of the trial court, to set aside the finding of facts, which in the opinion of that court is not war[520]*520ranted by the testimony, but never to coerce an opinion by a mandatory instruction directing a finding of fact in favor of one or the other of the parties litigant, according to its judgment of the facts'. To the question of facts the jury alone, and not the court, must respond. The judgment of the trial court, will be affirmed.
Gantt, O. J., Burgess and Williams, JJ., concur. Sherwood, Brace and Marshall, JJ., dissent.