GOODE, J.
This plaintiff, some time in the evening, but after dark on January 14, 1914, was struck by an electric trolley car and badly hurt. When the accident occurred he was a lad fourteen or fifteen years old, was still a minor when this action was instituted with his mother as next friend, and also when it was tried at the March term of the Circuit Court of Jackson County. The plaintiff’s skull was fractured by the impact of the street car, and on January 23, 1917, after the trial of the case, but before the motions for new trial and in arrest of judgment had been passed upon, he was found to be a person of unsound mind by the probate court of said county, and James A. Shannon was appointed by the court last named as guardian of his person and estate. Pursuant to a proper procedure for the purpose, said guardian, on November 28, 1917, was substituted by the circuit court as curator for the plaintiff in the present action in lieu of his mother as next friend, and an order was entered that the action be further prosecuted in the name of Clarence E. Pennington, by James A. Shannon, as guardian.
The eausalty to plaintiff happened on Twelfth Street, in Kansas City, Missouri, a short distance east of its intersection with Brooklyn Avenue. Twelfth Street is a thoroughfare running east and west and Brooklyn Avenue one running north and south; and on both of them are two street-car tracks. A building in which, at the time of the accident, a moving picture exhibition was conducted, is located on the south side
of Twelfth. Street about one hundred feet or more east of the east line of Brooklyn Avenue. On the evening in question a political meeting was to be held in the theatre building, at which the mayor of the city was to deliver an address, and for that reason and because a free exhibition of moving pictures .would be given in connection with the speaking, there was a considerable group of persons standing about the sidewalk in front of the theatre. The two streets about the scene of the accident were brilliantly lighted by electric street lamps, and the lamps of the theatre and other places. Plaintiff, with his younger brother, a boy about ten years old, and, Floyd Wolff, about plaintiff’s age, were.on the north side of Twelfth Street, near the corner of Brooklyn Avenue, immediately before the accident, from whence, according to their statements and those of other witnesses, they started across Twelfth Street diagonally to the southeast in the direction of the theatre. They were moving one behind the other and about three feet apart, plaintiff being in the rear. A trolley car, No. 285, operated by Robert J. Dunham and Ford Harvey, Receivers of the Metropolitan Street Railway Company, running east, had stopped on the west side of Brooklyn Avenue to admit and discharge passengers. Having done so it resumed its movement eastwardly across Brooklyn Avenue, advancing at the rate of from fifteen to twenty miles an hour, and encountered plaintiff just as he was in the act of stepping over the south rail-of the south or east-bound track. The fender of the car caught his legs, causing him to fall backward against the front of the car and then to fall into the street between the south rail of the track and the curb. While he lay in the street unconscious, probably three or four feet from the street-car track, his little brother went to him and lifted his head, a company of persons gathered about and two of them carried him into a drug store at one of the corners of the two streets, and there he received first surgical attention and was later taken to a hospital in an ambulance.
The negligence alleged in the petition was that the receivers and their agents in charge of the car, did not keep a reasonable lookout; and when, by the exercise of ordinary care they would have seen plaintiff in a position of danger, or going into a position of danger and unaware of the approach of the car, did not exercise ordinary care and skill in the use of the appliances to reduce speed or stop, the ear, or give warning by bell of its approach. The answer contained a general denial and a plea that the injury plaintiff received, if any, was the result of his own negligence directly contributing to it; and that plaintiff, by his own acts and conduct, assumed the risk of injury at the time and place mentioned in the petition. A reply in the form of a general denial was filed.
The appellant’s abstract of the record says that the action was instituted against the aforementioned receivers and the appellant, the Kansas City Railways Company, but that on March 19, 1917, the day the trial was begun which led to this appeal, the petition was amended by striking out the names of the receivers, leaving said Railways Company the sole defendant; and it thereupon filed an answer setting up the aforesaid defenses. The respondent’s additional abstract says that about six months before, and on October 23, 1916, in Division Two of the Jackson County Circuit Court, that substitution occurred, and sets out the following transcript of the entry of it in the records of said court:
“Now on this day come the parties hereto and by attorneys, this cause coming on for trial, by agreement of parties the Kansas City Railways Company is substituted as party defendant in this cause, and said cause is by the court dismissed against the defendants Robert J. Dunham and Ford F. Harvey, Receivers of the Metropolitan Street Railway Company. Thereupon the plaintiff is by the court given leave to amend his petition by substituting the Kansas City Railways Company as party defendant herein.
“The case now being dismissed as to the receivers, now comes the Kansas City Railways Company, and having by virtue of the orders and decrees of the United States District Court for the Western Division of the Western District of Missouri assumed the liability of the receivers, if any herein exists,' and enters its appearance herein, waiving amendments of the petition to show such assumption, and adopts the pleadings heretofore filed herein by the receivers. ’ ’
A motion was filed here to strike out the additional abstract for having been filed out of time, but that motion has been overruled.
Persons who qualified as experts regarding the time in which a car moving at a speed of fifteen to twenty miles an hour could be stopped, gave testimony to show the car in question could have been stopped, after it started across Brooklyn Avenue, before it reached the point where it hit plaintiff. There was testimony on the part of defendant tending to the contrary conclusion. In truth, the record is exceptional throughout in the remarkable conflict of the statements of the witnesses upon all the issues involved.
The case was tried for plaintiff upon the supposition that he was, as said before, hit by the fender of the car just as he was passing over the second rail of the track on which the car was moving; that he had moved into that position of peril, unconscious of the car’s approach, and no warning was sounded by the motorman, or any effort made to stop or slacken the speed of the car; and a dozen or more witnesses gave testimony to prove those were the facts; further, that the motorman was not looking ahead at the time, but had opened the door on the north side of the vestibule to order two boys, who were riding on the north front steps, to get off, and while he was doing this, instead of stopping the car or slackening its speed, he permitted it to run along at the speed it.'was under when he turned to the north door. The narratives of the witnesses also embraced statements that the boy lay just south of the south rail
when he fell; that blood flowed from his head and formed a pool in the street at that point.
The ease as shown by the evidence for defendant presents an entirely different aspect. The substance of that evidence is as follows: Plaintiff and another boy climbed onto the front steps of the north side of the car, while it was stationary on Brooklyn Avenue, or just as it left that stop; after crossing Brooklyn Avenue, the motorman, after stopping the car, as some of the witnesses said, or perhaps while it was still moving, opened the north door of the front vestibule and made the boys get off the steps; they immediately ran to the rear of the car and plaintiff got on the step at the rear on the north side of the car and where the vestibule was closed, while the other boy took hold of the rear fender, which was up, and was running along behind the car; that while the boys were in this position, a west-bound car came along on the north track, struck the plaintiff, knocked him from the step and left him lying in the space between the north and south tracks, where a pool of blood formed A dozen or more witnesses gave testimony tending to show the accident happened in that way; and in two instructions asked by defendant and given, the court advised the jury that if it did, the plaintiff could not recover and the verdict should be for the defendant. Defendant also relies on the facts that plaintiff, of necessity would have seen and hard the approaching car, had he looked and listened before he walked on the track; that his statement that, he looked but did not see it, is contradicted by the physical facts and by the testimony of witnesses that he looked west when the car was a short distance to the west and plainly visible; but nevertheless plaintiff continued to go ahead and onto the track.
The inconsistencies in the testimony may, in some measure, be reconciled by supposing that two other boys, not connected with the group plaintiff was in, were riding on the steps in the manner stated, and were warned off the front steps by the motorman at the instant the car struck plaintiff as he was crossing the
street. Some of the evidence supports this view. The discrepancies between the witnesses as to where the plaintiff was lying and where the blood was found in the street after the accident, may have arisen from these circumstances: two bystanders lifted plaintiff, so one of them testified, from the place where he fell south of the south rail of the east-bound track, and started with him to a drug store on the northwest corner of Brooklyn Avenue and Twelfth Street; they were halted for a moment or two in their progress by the west-bound car coming between them and the drug store and, it seems, plaintiff’s feet during that hesitation, rested on the ground. Blood was flowing from his head all the time, and it is possible the witnesses who testified he was left lying between the tracks, saw him first at that time. It cannot be said the different versions of the accident can be reconciled completely on those suppositions; but they help to reconcile them.
Other portions of the evidence will be related, if necessary, in discussing the points presented for decision on the appeal.
The jury returned a verdict in plaintiff’s favor for $22,500. The court required five thousand dollars to be remitted as the condition on which the motions for new trial and in arrest of judgment would be overruled, and this having been done, judgment was entered for plaintiff for $17,500, from which judgment defendant appealed.
Three instructions were given at the request of plaintiff, and error is assigned in respect of them. Of the instructions requested by defendant, seven were given in the form they were requested, four after the court had made slight changes in them, and three were refused. Errors are assigned for the refusal of the four as asked, and without modifying them, and for the refusal.of the three.
„■ We reproduce an instruction granted for the defendant, and as asked, except that the word “ apparently”
was inserted in two places before tbe words “unaware of such danger,” where those words occur:
‘ ‘ The burden is on the plaintiff in this casé, to prove by the greater weight of all the credible evidence in the ease, that at the time and place in controversy, he was on the east-bound track in front of the east-bound car, in a position of danger in front of said car; and further, that the motorman of said east-bound car ran said car into and struck and injured him after he, the said motorman, by the exercise of ordinary care could have seen that plaintiff was in such position of danger and
apparently
unaware of such danger, and that after said motorman, by the exercise of such care, could have so seen the plaintiff in snch position of danger, and
apparently
unaware of such danger, the motorman could, by the exercise of ordinary care, have avoided injury to plaintiff. If the plaintiff has not proven all those facts by the greater weight of all the credible evidence in the case, to the satisfaction of the jury, or if the evidence on those facts as to its weight, is evenly balanced in favor of the plaintiff and defendant, then in either of such events the findings and verdict of the jury must be for the defendant, regardless of any other question in the case.” (Italics ours).
The counterpart of that instruction, setting out the condition of a verdict for plaintiff from the positive instead of the negative standpoint, was given for plaintiff, and in it the terms “negligence” and “ordinary care” were defined. Said instruction was the only one given at plaintiff’s request, except two formal ones relating to the credibility of witnesses and the burden of proof.
I. The assignment of error that should be disposed of first, is the refusal of the court below to direct a verdict for defendant. It is presented in two phases: one that no evidence was introduced to prove the present defendant is answerable in damages to the plaintiff, even if his injury was due to a tort; the other that no conclusion is possible from the facts in proof than
that plaintiff’s own negligence caused, or contributed to cause,-his injury.
Subtituted Defendant:Consent.
The consent entered of record and which we have recited above, for-the substitution of the Kansas City Railways Company as defendant, was not put in evidence at the trial. The entry wherein that consent is set forth contains other matters; namely, a recital that, pursuant to the decree of a Federal court, the Railways Company had assumed the liability of the receivers, if there was any; contained also, an entry of appearance of the Railways Company; a waiver by it of an amendment to plaintiff’s petition to show the company was liable if the receivers were, and an adoption of the prior pleadings against the receivers, as sufficient to state a case against the Railways Company. This stipulation was an admission of record by defendant that it stood in the shoes of the receivers as regards liability to plaintiff, and the case was tried on that theory. The purpose of the admission of record was t,o relieve plaintiff of the task of pleading and proving the fact. A fact essential to a cause of action or defense need not be proved if the adverse party admits it. [State to use Levy v. Adler, 97 Mo. 413; First Nat. Bank v. Ragsdale, 158 Mo. 668.]
It is equally clear that when a party enters on the record its admission of a fact, to dispense with' the necessity of pleading it, it need not be proved; for what need not be averred to state a cause of action, need not be proved to establish it. So where a fact appears of record, it is unnecessary to prove it; for the court will take notice of it. [State v. Daugherty, 106 Mo. 182, 187.]
It is insisted for defendant that this admission of record was made in another division of the court and preliminary to a former trial. That there was a previous trial the record fails to show clearly; but the fact is immaterial. The record containing the admission was a portion of the record in the case and binding on
the defendant in any division of the court to which it might he transferred.
It appears an amended petition was filed wherein the assumption by defendant of all the liabilities of the receivers was alleged; but the allegation was unnecessary, because of the stipulation to waive an amendment of that character, and treat the original petition as sufficient.
Contributory Negligence.
• II. Turning to the second phase of the proposition, that a verdict for defendant should have been ordered because of the facts of the accident, we observe, as pertinent to the point, that the main instruction for plaintiff allowed him to recover only on a finding that the motorman, by using ordinary care, could have prevented the car from striking him; or, to state the matter more in detail, no recovery was permitted unless the jury found the following facts: that the motorman either saw, or, if duly careful, would have seen, the plaintiff Avalk on the track where he was in danger from the advance of the car; that in doing so plaintiff was unconscious of the danger to which he was exposing himself; that, by using with ordinary care the means available, the motorman could have warned plaintiff of his danger, or could have reduced the speed of the car, or have stopped it, before it reached the plaintiff. The brief for defendant concedes there was evidence to prove those facts in support of plaintiff’s case; evidence to prove the motorman was at the north door of .the vestibule and not looking ahead; that plaintiff and his tAvo companions walked from the north sidewalk of Twelfth Street into the roadway and toward the picture show, the plaintiff being in the rear; that the first and second boys both cleared the tracks in safety and the plaintiff came near doing so, but was hit as he was stepping over the southernmost rail; that he was unaware of the approaching car, the speed of which was not reduced after it left the west side of Brooklyn Avenue. Those conceded facts restrict the basis of the
contention that plaintiff should have been denied a recovery to the proposition that, even if the motorman was negligent in not watching ahead, or in sounding no warning of the approach of the car, or in failing to slow down or stop, nevertheless plaintiff went on the track in front of the approaching car when it was so near that there was no timé to stop or check it before it reached plaintiff, even if all the precautions charged to have been neglected had been taken. Otherwise expressed, the argument is that the carelessness of plantiff in going into peril was concurrent with the motorman’s negligent ommissions of precautions and left ho chance to avoid a collision with the plaintiff after he had walked on the track. This theory of the case is opposed to the positive testimony of some witnesses, and to an inference deducible from the principal facts .of the occurence, if we lay aside the evidence tending to prove plaintiff was swept off the north rear steps of the east-bound ear by one bound west; a contingency which, under the instructions, precluded a verdict for plaintiff. Stated in the terms most favorable to defendant, witnesses said the car was from fifty to sixty feet distant from plaintiff when he stepped over the
north
rail of the track on which the car was approaching. Expert testimony was given that it could have been stopped within forty or forty-five feet, if its speed was fifteen or twenty miles an hour, as the testimony inclined to prove. The plaintiff was struck as he was stepping over the south rail. Hence it is plain the question was for the jury as to whether there was a chance to save him by stopping the car or checking its movement and whether the proximate cause of his hurt was the omission of the motorman to do what he could, within the limits of ordinary care, to stop or slow down.
Other and more influential facts stand in the way of a ruling for defendant on the point in hand. The distance from the place of the collision to the west side of Brooklyn Avenue was about one hundred and seventy-nine feet; and from the east side, where the motorman
diverted Ms gaze and opened the north door of the vestibule, to the point of collision nearly opposite the picture show, was one hundred and nineteen feet. The boys advanced slowly across the street in single file, three feet apart, walking slightly toward the southeast, the plaintiff behind. Considering these facts, it is plain there was room for the jury to conclude that if the motorman had kept his attention fixed on the track after he crossed Brooklyn Avenue, instead of allowing it to be diverted, he would have seen the file of boys in time to avert the accident, either by arousing, them to their danger by sounding a warning, or by checking or stopping the car; to conclude, also, that if it was necessary to open the north door to chase away trespassing boys, the motorman should have stopped the car while doing so, instead of allowing it to proceed under full headway. The plaintiff was within a step of safety when he was struck; and that it was impossible for the motorman, by ordinary care in the way of vigilance or of an effort to stop the car, to prevent the collision, is not the only inference warranted by the evidence. A precedent standing upon facts exactly like those in the case at bar is not at hand, nor is it worth while to hunt one; for the pertinent legal doctrine and the principle and limits of it, have been expounded in many opinions, of which we cite as apposite: Pennington v. K. C. Rys., 213 S. W. 137; Ellis v. St. Ry. Co., 234 Mo. 657; and Moore v. United Railways Co., 185 Mo. App. 184.
instruction.
Minor criticisms are suggested of the principal instruction given for plaintiff, of which one is that it assumed the occurrence of incidents about which the testimony was discordant; namely, that plaintiff did not look to learn if a car was coming before he 011 track; that he was unaware of the car’s approach, and that if the motorman had made use of the means at hand, he would have avoided striking plaintiff. The instruction required the jury to find those were among the facts of the occurrence instead of
assuming they were; and so did the instruction defendant requested, which we have transcribed.
Another point is made as to the use of the word “should” in the place of “could” or “would,” in the part of the instruction for plaintiff where the question was submitted of whether the motorman “in the exercise of ordinary care,
should
have seen and realized the plaintiff was unaware of the approach of said car,” etc. “Should” was an inapt word where used; but it had no misleading tendency. Especially was this so, as the court in the instruction supra, given substantially as defendant requested it, required the jury, as one condition of a verdict for plaintiff, to find “the said motorman, by the exercise of ordinary care,
could
have seen that plaintiff was in such a position of danger and unaware of such danger.”
Every ruling on the requested instructions is assigned for error, and each of the assignments has been studied, with the result that we deem them all untenable. The instructions are too numerous for us to take up space in reproducing them or in an elaborate discussion of the various objections raised by defendant. It suffices to say that in our opinion the case was presented to the jury in a manner to inform them clearly and correctly of the rules of law they were to observe in coming to a verdict. The conditions on which plaintiff could recover were stated accurately in a charge requested by him and in the one asked by defendant, and copied above. As already said, a recovery was excluded by two charges, if the jury found plaintiff was hit by a west-bound ear while on the steps of the one bound east, as defendant contended was the case. In three charges presenting the defense in as many aspects, the jury were advised that if the plaintiff went from a place of safety on the track when the car was so close that it could not. be prevented from striking- him, the verdict must be for the defendant. They were advised, too, that neglect of the motorman to signal was immaterial if plaintiff saw the car approaching. The value of the testimony
was explained to the jury hy instructing them that if the physical facts or common experience conflicted with the statements of a witness, or if a witness had sworn falsely to a material fact, such testimony might be ignored. Two of the refused instructions related to matters sufficiently covered by those given, and the modifications made in two or three of plaintiff’s requests were proper to either clarify or define more accurately, the rule of law declared.
. , Additional Abstract.
ITT. The additional abstract of the record was filed fewer than fifteen days before the appeal was set for a hearing in Division One, and therein the filing of it was not a compliance with Eule 11 of this n court. It was filed berore joinder m error upon the, abstract filed by defendant and therefore does not come within the provision of Eule 4, that no suggestion of a diminution of the record in civil cases will be entertained after joinder in error except by consent of the parties. [Everett v. Butler, 192 Mo. 564, 566.]
The defendant in suggestions in support of its motion to strike out the additional abstract, neither shows nor even says that to consider it will work any surprise or in any way be to its disadvantage in the presentation of its appeal, and it is apparent that it will not be.
If it be conceded that plaintiff’s counsel was negligent and remiss in not filing the additional abstract within the period prescribed by the rule, nevertheless this circumstance ought not to be held to prevent the court from treating said abstract as part of the record on the appeal, when to do so will not tend to prejudice the defendant and will prevent a reversal of the judgment for a default which does not affect the merits. Even in enforcing the general doctrine of the law, that a party will not be relieved against the consequences of his own negligence, an exception is made where the negligent act did no harm to the other party, while not to relieve against it would materially harm the negligent
party. Says a text-writer of authority: “Even clearly established negligence may not of itself be sufficient ground for refusing relief if it appears the other party has not been prejudiced thereby.” [2 Pomeroy, Eq. Jur. (4 Ed) sec. 856 and cases.cited in note g, p. 1751; Troll v. Sauerbrun, 114 Mo. App. 323, 327.] It is contrary to several sections of our Code of Practice, and to the spirit of it, to reverse a judgment for a harmless technical default. We quote two sections of the statutes:
“The Supreme Court, or courts of appeals shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.” [R. S. 1909, sec. 2082.]
“The court shall, in every stage of the action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed by reason of such error or defect.” [R. S. 1909, sec. 1850.]
Defaults in omitting to comply with statutory rules of practice as to the time of filing answers or taking other proceedings, are not always fatal, nor intended to be, as the cited sections show. So if- we accord to court rules of practice the force of a statute, it is not necessary to hold exceptions can never be allowed, no matter what the circumstances. A rule of court prescribing the time for filing' an additional abstract, should not be adhered to so rigidly as to stand in the way of the court relaxing it in the interest of justice, when to do so will injure neither of the litigant parties. In such a case the question is for the court and relates to whether to make an exception to the rule will' unduly obstruct the orderly dispatch of the judicial business of the court.
In discussing the enforcement of rules of appellate procedure, the Supreme Court of Texas, said:
“A failure to observe and comply with the rules prescribed by this court regulating the manner of bringing cases before it, is a valid and sufficient ground, in the discretion of the court, for the dismissal of an ap
peal or writ of error, unless good cause is shown why this is not done. It is not to be inferred, however, that the court must in all cases sustain motions to dismiss upon a mere failure to comply with the strict letter of this rule; but the court, in acting on such motion, may unquestionably ‘give such direction to the case as will cause the least inconvenience or damage from such failure, as far as practicable.’ Sup. Ct. R. 39; Dist. Ct. R. 100.” [Shanks v. Carroll, 50 Texas, l. c. 18.]
A text-work, after referring to a disagreement in the decisions regarding the suspension of court rules in particular cases, says:
“The general principles to be derived from these conflicting decisions seem to be that rules which are merely directory, or which are prescribed solely for the governance of attorneys and the convenience of the court, may be dispensed with when the ends of justice so require, but that this power of dispensing with rules must never be exercised in an arbitrary manner in cases where it will operate to the prejudice of the parties, or tend to unsettle the established practice of the court.” [18 Ency. Pl. & Pr. p. 1267.]
We find no prejudicial error in the record, so the judgment must be affirmed.
Walker, G. J., Williams
and
Williamson, JJ.,
concur;
Blair, J.,
concurs in separate opinion;
Graves, J.,
dissents in separate opinion;
Woodson, J.,
absent.