REYBURN, J.
(after stating the facts as above).
—1. The first contention of appellant is that the lower court erred in its ruling that the assignment of an interest in plaintiff’s cause of action to her counsel, as pleaded, constituted no defense to the action. The legislation creating a lien in favor of the attorney upon the client’s cause of action (Acts, 1901, p. 46), which was the subject of interpretation lately in this court (Young v. Renshaw, 102 Mo. App. 173), is not herein involved, for the conditions precedent to, perfecting such lien imposed by the act of the Legislature are not averred to have been complied with. The decision of the Federal Court invoked by appellant, upon analysis, merely denies the right of a plaintiff to sue in forma pauperis, when it appears that such plaintiff has made a. contract with her attorneys for a fee contingent upon recovery, holding that in such event as plaintiff represents not only her own but the interests of her attorneys as well, she is suing for herself and as trustee for them, and that while standing alone she might be entitled to sue as a poor person under the law, yet in her representative capacity she can not be poor, within the meaning of the act of Congress, unless the beneficiaries whom she represents are poor also, in no wise sustains the position of appellant but rather militates against it. Feil v. Railroad, 119 Fed. 490.
Section 540, R. S. 1899, provides that every action shall be prosecuted in name of real party in interest, except as provided in the succeeding section, which relates to executors, administrators and trustees of an express trust, and the final clause of section 540 expressly recites that it shall not be deemed to authorize the assignment of a thing in action not arising out of contract.
In Alexander v. Railway, 54 Mo. App. 66, involving a contract for professional services where the client [479]*479had made an independent compromise, the court clearly holds that no causes of action are assignable, except such as survive the death of the plaintiff and that an action for personal injuries does not survive, and that there could be no assignment of a part of a claim, even though definite and fixed in amount, without consent of the debtor. It follows, therefore, that such attempted assignment of plaintiff’s unliquidated claim was without the sanction of law in this State, and invalid, and the defense sought to be based thereon properly stricken out.
2. The next assignment of error presented, is that the usual peremptory instruction asked at close of plaintiff’s case and repeated at close of all the testimony, should have been given. The only testimony on plaintiff’s behalf describing the occurrence was to be found in her own narrative from which the statement of the ease was compiled. From this testimony, it is disclosed that the car had stopped and while passengers were alighting, plaintiff sought to pass in front of the stationary car, which was started without any signal to her that it was about to move. It is no unfair deduction that the motorman saw or should have seen plaintiff’s effort to get by the car, nor are we prepared to declare that in the most crowded portion of the city of St. Louis, a pedestrian, who seeks to pass in front of a non-moving car in plain view of the attendant in charge is attributable with such contributory negligence as to debar recovery.
Negligence has been concisely defined to be the absence of care according to the circumstances: at the intersection of Broadway and Washington avenue, the junction of two of the most prominent thoroughfares in the city of St. Louis in frequent and constant use by pedestrians and vehicles of every sort, defendant’s motorman should have exercised a degree of care commensurate with the conditions attending the passage [480]*480over Broadway by his car, being imputed the knowledge that the vigilance that might have sufficed in the less populous and travelled parts of the city would fall far short of constituting ordinary care in such thronged portions frequented by the public about the retail stores of the city, and where indeed the watchfulness exacted would vary a.t different hours of the day and even on different days of the week. Under such state of facts, where reasonable men might fairly differ in their conclusions, the question of due care or negligence on plaintiff’s part was properly relegated to the jury.
3. The instructions composing the charge to the jury, additional to those involving the weight and value of the testimony of experts and the measure of damages, comprehended the following:
“If the jury believe from the evidence in this case that on or about the twenty-sixth day of April, 1901, the defendant was operating the street car mentioned in the evidence, within the city of St. Louis; and if the jury find from the evidence that Washington avenue at the intersection of Broadway, at said time, was an open public street within the city of St. Louis; and if the jury further find from the evidence that the plaintiff was walking north on the west side of Broadway, on a street crossing generally used by pedestrians, and that when she reached a point about five feet south of the defendant’s eastbound track she looked and saw a car approaching on said track, and that said car came to a stop with its fender within a few feet of the said crossing over which plaintiff was about to pass, and that plaintiff, while exercising ordinary care continued her journey north and in front of said car, was struck by said car moving forward, and was injured; and if the jury believe from the evidence that defendant’s agent, its motorman, saw, or by the exercise of ordinary care could have seen plaintiff while she was walking in front of said still and motionless eastbound car, and that she [481]*481was in danger of being struck and injured, if said eastbound car should be caused to be moved forward, and thereafter the defendant’s agent, its motorman, started said car forward and caused it to strike plaintiff, and that such conduct on the part of said motorman was negligence, then and in that case the plaintiff is entitled to recover.
“By the term ‘ordinary care,’ as used in these instructions, is meant that degree of care which an. ordinarily careful and prudent person would exercise under the same or similar circumstances, and by the term. ‘ negligence ’ is meant the absence of such care.
“It was the duty of plaintiff when she approached the crossing to look for approaching cars, and if she saw the car by which she was afterwards struck, before going upon the track, it was her duty to wait and allow the car to pass, and if you find that before starting across the track she saw the car in question a distance of about two feet, and that she knew said car was approaching upon the track she was about to cross, and that she stepped in front of said car and was thereby injured, she can not recover; provided you further find that the motorman could not have stopped the car after he either saw, or could have seen by using ordinary care, that plaintiff was in a position of danger.
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REYBURN, J.
(after stating the facts as above).
—1. The first contention of appellant is that the lower court erred in its ruling that the assignment of an interest in plaintiff’s cause of action to her counsel, as pleaded, constituted no defense to the action. The legislation creating a lien in favor of the attorney upon the client’s cause of action (Acts, 1901, p. 46), which was the subject of interpretation lately in this court (Young v. Renshaw, 102 Mo. App. 173), is not herein involved, for the conditions precedent to, perfecting such lien imposed by the act of the Legislature are not averred to have been complied with. The decision of the Federal Court invoked by appellant, upon analysis, merely denies the right of a plaintiff to sue in forma pauperis, when it appears that such plaintiff has made a. contract with her attorneys for a fee contingent upon recovery, holding that in such event as plaintiff represents not only her own but the interests of her attorneys as well, she is suing for herself and as trustee for them, and that while standing alone she might be entitled to sue as a poor person under the law, yet in her representative capacity she can not be poor, within the meaning of the act of Congress, unless the beneficiaries whom she represents are poor also, in no wise sustains the position of appellant but rather militates against it. Feil v. Railroad, 119 Fed. 490.
Section 540, R. S. 1899, provides that every action shall be prosecuted in name of real party in interest, except as provided in the succeeding section, which relates to executors, administrators and trustees of an express trust, and the final clause of section 540 expressly recites that it shall not be deemed to authorize the assignment of a thing in action not arising out of contract.
In Alexander v. Railway, 54 Mo. App. 66, involving a contract for professional services where the client [479]*479had made an independent compromise, the court clearly holds that no causes of action are assignable, except such as survive the death of the plaintiff and that an action for personal injuries does not survive, and that there could be no assignment of a part of a claim, even though definite and fixed in amount, without consent of the debtor. It follows, therefore, that such attempted assignment of plaintiff’s unliquidated claim was without the sanction of law in this State, and invalid, and the defense sought to be based thereon properly stricken out.
2. The next assignment of error presented, is that the usual peremptory instruction asked at close of plaintiff’s case and repeated at close of all the testimony, should have been given. The only testimony on plaintiff’s behalf describing the occurrence was to be found in her own narrative from which the statement of the ease was compiled. From this testimony, it is disclosed that the car had stopped and while passengers were alighting, plaintiff sought to pass in front of the stationary car, which was started without any signal to her that it was about to move. It is no unfair deduction that the motorman saw or should have seen plaintiff’s effort to get by the car, nor are we prepared to declare that in the most crowded portion of the city of St. Louis, a pedestrian, who seeks to pass in front of a non-moving car in plain view of the attendant in charge is attributable with such contributory negligence as to debar recovery.
Negligence has been concisely defined to be the absence of care according to the circumstances: at the intersection of Broadway and Washington avenue, the junction of two of the most prominent thoroughfares in the city of St. Louis in frequent and constant use by pedestrians and vehicles of every sort, defendant’s motorman should have exercised a degree of care commensurate with the conditions attending the passage [480]*480over Broadway by his car, being imputed the knowledge that the vigilance that might have sufficed in the less populous and travelled parts of the city would fall far short of constituting ordinary care in such thronged portions frequented by the public about the retail stores of the city, and where indeed the watchfulness exacted would vary a.t different hours of the day and even on different days of the week. Under such state of facts, where reasonable men might fairly differ in their conclusions, the question of due care or negligence on plaintiff’s part was properly relegated to the jury.
3. The instructions composing the charge to the jury, additional to those involving the weight and value of the testimony of experts and the measure of damages, comprehended the following:
“If the jury believe from the evidence in this case that on or about the twenty-sixth day of April, 1901, the defendant was operating the street car mentioned in the evidence, within the city of St. Louis; and if the jury find from the evidence that Washington avenue at the intersection of Broadway, at said time, was an open public street within the city of St. Louis; and if the jury further find from the evidence that the plaintiff was walking north on the west side of Broadway, on a street crossing generally used by pedestrians, and that when she reached a point about five feet south of the defendant’s eastbound track she looked and saw a car approaching on said track, and that said car came to a stop with its fender within a few feet of the said crossing over which plaintiff was about to pass, and that plaintiff, while exercising ordinary care continued her journey north and in front of said car, was struck by said car moving forward, and was injured; and if the jury believe from the evidence that defendant’s agent, its motorman, saw, or by the exercise of ordinary care could have seen plaintiff while she was walking in front of said still and motionless eastbound car, and that she [481]*481was in danger of being struck and injured, if said eastbound car should be caused to be moved forward, and thereafter the defendant’s agent, its motorman, started said car forward and caused it to strike plaintiff, and that such conduct on the part of said motorman was negligence, then and in that case the plaintiff is entitled to recover.
“By the term ‘ordinary care,’ as used in these instructions, is meant that degree of care which an. ordinarily careful and prudent person would exercise under the same or similar circumstances, and by the term. ‘ negligence ’ is meant the absence of such care.
“It was the duty of plaintiff when she approached the crossing to look for approaching cars, and if she saw the car by which she was afterwards struck, before going upon the track, it was her duty to wait and allow the car to pass, and if you find that before starting across the track she saw the car in question a distance of about two feet, and that she knew said car was approaching upon the track she was about to cross, and that she stepped in front of said car and was thereby injured, she can not recover; provided you further find that the motorman could not have stopped the car after he either saw, or could have seen by using ordinary care, that plaintiff was in a position of danger.
“The burden is upon plaintiff to prove that her injuries, were caused solely by the negligence of the defendant and without fault or negligence of plaintiff and with fault or negligence on her part; and this burden rests upon the plaintiff, throughout the entire case, and if the jury find from the evidence that the negligence of the plaintiff as defined in the other instructions, wholly or in part caused or contributed to her injury, then the verdict will be for the defendant.
“The court instructs the jury that even though you believe from the evidence that the car in question [482]*482was in motion when plaintiff attempted to cross the track, that even under such conditions, if the motorman saw the plaintiff, or by the exercise of ordinary care would have seen the plaintiff, crossing the track in front of said car and that he could thereafter, by the exercise of ordinary care, have stopped the car before striking the plaintiff, then it was the duty of the motorman to exercise ordinary care to stop the car in or des to avoid striking the plaintiff; and if you believe from the evidence that the- motorman failed to exercise ordinary care to avoid striking and injuring plaintiff, as aforesaid, then such conduct on the part of the' motorman was negligent, and the plaintiff is entitled to recover.”
The court refused the instruction asked by the defendant in the form following:
“If plaintiff’s injuries were the result of the mutual and concurring negligence of the plaintiff and defendant’s mortorman and that either without the other would not have caused same, then plaintiff is not entitled to recover. ’ ’
In her conduct, as detailed by herself, as well as described by the witnesses who testified on behalf of defendant, the question of the negligence or want of care on part of plaintiff tending to bring about her injury, was a conspicuous issue confronting the jury, interposed in its defense by defendant. While in a measure this feature of the case is embraced in above instructions, especially in those portions declarative that the burden throughout rested upon plaintiff to establish that her injuries were caused solely by the negligence of defendant, and without fault or negligence on her part and referring the jury to other instructions, for definition of what constituted such negligence, yet defendant, as a matter of lawful right, was entitled to have the jury informed by a sharply defined and concise instruction, without qualification or obscurity, that if her [483]*483injuries resulted from the concurrent and mutual negligence of both herself and the corporation defendant, the latter was not responsible to her therefor. The clause containing the proviso in above quoted instructions, and thus presented with the context:
“It was the duty of plaintiff when she approached the crossing to look for approaching cars, and if she saw the car by which she was afterwards struck, before going upon the track,' it was her duty to wait and allow the car to pass, and if you find that before starting across the track she saw the car in question a distance of about two feet, and that she knew that said car was approaching upon the track she was about to cross, and that she stepped in front of said car and was thereby injured, she can not recover; provided you further find that the motorman could not have stopped the car after he either saw, or could have seen by using ordinary care, that plaintiff was in a position of danger,” and which modification is reiterated in the close of the instructions recited above, is independent of any support in the evidence and as well a departure from the issues presented by the pleadings and the theory of the trial. The statement of the occurrence by plaintiff evinced that the car had stopped two feet from the crossing upon which she started to pass over; there is no proof of the feasibility of stopping the car within such narrow space, if indeed to so stop it was physically possible ; the negligence assigned was the act of the motorman in charge of a motionless car recklessly starting it and striking plaintiff, and there is no averment that the casualty resulted from failure to stop a moving car, and the recovery must be confined to the cause of action relied on in the petition, and the instructions restricted and directed to the issues made by the pleadings and the evidence in support of the allegations therein, and recovery can not he sustained, although upon a basis or a state of facts, which, if properly pleaded, might have [484]*484exhibited a good cause of action. Chitty v. Railway, 148 Mo. 64; Bunyan v. Railway, 127 Mo. 12; Conrad Grocer Co. v. Railroad, 89 Mo. App. 534. While it might be doubted whether the declination of the instruction, in the form asked concerning contributory negligence, would have been error warranting a reversal, yet the infirmities in the instructions constituting a departure from the pleadings and evidence entitled the defendant to a retrial and the judgment is reversed and the cause remanded.
Bland, P. J., and Goode, J., concur.