Fuchs, deceased, to recoller damages for the and also drained the City Hall and Four death of her husband, caused by the explosion Courts. Fuchs' building was located over this of Mill Creek sewer. The petition, after for sewer, which was built in 1858 or 1859, in the mal and preliminary statements, alleges that most solid and substantial manner, the stones the defendant city bad built the sewer, and composing it being very massive, and it ran then proceeds to state tbat a fire broke out on through the lot on which the store building of the premises of defendant the Waters-Pierce Fuchs was situate in a northwesterly and southOil Company on the 22d of July, 1892, where easterly direction and crossed Fourih street and a large stock of oils was stored by that com. Broadway, which converged at that point, and pany; and that such company did cause and were, in consequence of such convergence, permit said oils to escape and run into the some 200 to 300 feet wide at that point. On above-mentioned sewer, fill the same with oil, July 26, 1892, the sewer exploded about 4:25 and generate gases therein, etc. Having made P. m., and in consequence of which Carl E. these allegations, the petition tben avers that Fuchs died on that day. The explosion tore “under a license from the then owners of said out the front of the store, except the iron pillot (referring to the lot afterwards bought by lars; also the rear wall of the entire building, Carl E. Fuchs in May, 1884] the said sewer and the floor of the store; and opened the was by said city constructed and carried under sewer through the whole length of the build. neath said lot eastwardly towards the said ing, and extended eastwardly between Second river, and that said sewer was located below and Main streets, where the entire top arch of the cellar afterwards caused to be built upon the sewer was thrown out for a distance of said lot by said deceased, Carl E. Fuchs; tbat about 400 or 500 feet. The street west of the when defendant the city of St. Louis obtained store was not disturbed, but the sidewalk on said license from said owners it assumed and the west side of Broadway was torn up, and agreed with the then owners of said lot and also the property next to it. There were their assigns, and became bound, to keep and covers for the sewer in the middle of the stieet maintain said sewer in good order, and to care (where Broadway and Fourth street join) opfor the said sewer, so that said lot and any im- posite the store, and another on the west side provements which might be put thereon would of Broadway, about 150 feet from the store. be free from danger of injury on account of This cover was blown off,--the one in the said sewer and the use thereof.” The petition striet west of the store, -an ordinary-sized manthen.concludes thus: “Plaintiff further alleges hole, 3 feet in diameter, with a solid cast-iron that said sewer was provided with openings | lid, about of an inch thick. After the exespecially designed to carry off any gases plosion this lid was found broken in pieces, which might arise in said sewer and be liable and the contents of the store, barrels, boxes, to combustion and explosion, and that said bottles, shelving, and woodwork, wood floors, sewer and tbe openings thereof aforesaid, joists, plaster, and wainscoting were in the on and prior to the said 26th day of July, sewer, through which the water was rushing. 1892, were in the sole care and control There was a substance in the cellar which of defendant the city of St. Louis, its agents looked like an oily mass, and had a gaseous and servants, yet the said city, its agents and smell. The Waters. Pierce Oil Company's servants, knowing that said defendant the place of business was between Gratiot street on Waters. Pierce Oil Company had flooded said ihe south. Twelfth street on the east, the railsewer with oil, neglected to open said vents, road tracks on the north, and Fourteenth street and carelessly and negligently failed to take on the west, and was ten blocks west and two measures and precautions to prevent gases or three blocks north of the Fuchs store, and arising and accumulating in said sewer so as was close to the Mill Creek sewer, where the to endanger the same; and that between the company bad large iron tanks for storing oils, said 220 and 26th days of July, 1892, gases from which they filled sheet.irou wagons for did arise and accumulate in said sewer in great distributing oils to retail dealers in the city, and very dangerous quantities, and on the etc. The floor of the cellar of the Fuchs date last named, and within six months next house was composed of a layer of 2 or 3 inches before the commencement of this suit, ignited of cinders with a cement top, constructed on and exploded with great force, throwing open the arch of the sewer. The sewer was 14 feet said sewer underneath the property of said wide, 12 feet bigb, and with walls 20 to 24 Carl E. Fuchs, shattering his said building, inches thick. At the time of the explosion the and also then and there causing the death of river was very high, and filled the cellars and said Carl E. Fuchs,” etc. The answer was a first floors of the buildings on the levee. A general denial by defendant city as well as by fire occurred at the defendant company's works defendant company.

on July 22d, four days prior to the explosion. The evidence, in substance, so far as neces. The witness giving the foregoing testimony sary to stale it, was to this effect: Carl E. was Dr. Fuchs, a son of the deceased. On bis Fuchs, deceased, owned the building on the cross-examination this witness stated: Genereast side of Fourth street, seven or eight doors ally ordinary sewage is dark and greasy-looksouth of Chouteau avenue, and about fouring. That he could not tell whether any peblocks from the river. This section of the troleum oil was mixed with the water in the city is a valley, and the sewer in question is sewer, but that it had an odor like gas; not like kvown as “Mill Creek Sewer.” This sewer ordinary lighting gas, but a greasy smell like was formerly a creek, and constituted the nat petroleum or gasoline: something like that; ural drainage of a large portion of the city, though he was not sufficiently versed in cheminto which very numerous smaller sewers istry to tell what kind it was. That the smell emptied, and it drained the property in Mill was not like that emanating from the black Creek valley from Grand avenue eastwardly, I liquid which he had seen taken from sewers.


That the smell was different from the ordinary | about 800 feet. Thte he encountered water gases from the gas works. That the manhole from 5 to 6 or 7 or 8 feet deep. That in the at the intersection of Broadway and Fourth sewer were “sawdust and muck and petroleum street was about 100 to 150 feet west of the and coal oil, and everything else that you could store. That he knew of no manholes in the think of that was nasty.” That there was a sewer east of Fourth street. That after the little current, enough to carry him along, but the explosion he saw tlat cars, which bad fal. none right where the dibris from the house len into the opening of the sewer which was dammed up the sewer. That there was a large constructed under the property before bis amount of sawdust in solution, and general father bought it or built on it, and since that muck, more like molasses or tar or something time no repairs on the sewer east of Broadway of that kind. That petroleum is a thick fluid, had been necessary. That there was a slight like tar; and that there was coal oil on top of current to the water in the sewer the day of the water This be recognized in the darkthe accident, but the mouth of the sewer was dess of the sewer. That there was “gas, either blocked up by the river. That there was only from petroleum or wbatever it was that blew one sewer inlet at the north end of Market at up the sewer.” “That the explosion didn't the junction of Fourth and Fifth streets, and ignite all the gas in the sewer. That there one at the south west corner of Broadway and were other odors there besides that of gas. Chouteau avenue. That the one at the north That witness was compelled to hold his nose, end of the Market was reconstructed, and it was and get under the water, to keep from being made of clay pipe, with a goose neck to it, to asphyxiated with the gas, which was just like prevent the escape of gases into the open air. needles going up into his pose.” That the deThis was done at the instance of the people in fendant oil company's works were located the neighborhood, who complained of the gases alongside of the Mill Creek sewer, between and odors thus escaping. That the inlet at Twelfth and Fourteenth streets, on the Pacific the corner of Chouteau avenue and Broadway Railroad; and that this was the only oil mill is intended to drain the surface water from the on that sewer. streets.

Two hours after the occurrence of the exploFollenius, whose marble works were located sion, another witness, Dr. Bowler, who was in at 508 and 510 Chouteau avenue, and who had the second story of the Fuchs building when occupied those premises for about twenty-two it occurred, states that a characteristic pungent years, and who had been familiar with the lo- smell was poticeable arising from the opening cality for some twenty-eight years, testified in the sewer, such as usually arises from that he remembered ihe fire which occurred sewers; that after the explosion there was at the oil company's works on Thursday, the smoke or vapor arising from the sewer, indi22d of July. There was a manbole at the cor- cating that there had been fire or combustion ner of Broadway and Chouteau avenue, on the in the sewer, and that the gas bad been conwest side of the latter. That on Sunday (next sumed; that the ordinary gas which accumu. before the Monday, the 26th of July, on lates in sewers from decaying vegetable or which the explosion occurred), bis place bav. animal matter is explosive when ignited under ing connection with the sewer he observed a certain conditions: that the density of the gas peculiar smell from the sewer. That it seemed would have to be sufficient, and also suflicient as though mixed with sewer gas and coal oil, beat to produce the explosion; that, if all the which was different from the sewer gas smells conditions were favorable, you would get which were there most all the time. That he spontaneous combustion or explosion by igniwas seated at his desk when the explosion oc- tion,-that is, applying a light to the accumucurred, and after that went out into his yard, lated gas; that sewer gas may explode, under which looked as if it had been plowed up with certain conditions, without the presence of pea large plow. That large holes were blown troleum; that he understood the process of in the top of the sewer 3 or 4 feet over, from manufacturing gas from crude petroleum, which issued an odor like he had noticed the which, and coal oil, are explosive when subday before. That the shock threw the lid off ject to a certain degree of heat; and that under the manhole at the corner, and on going east- favorable conditions either of the gases menward be noticed the same kind of odor issuing tioned might explode spontaneously. at the southeast corner of Broadway and Schneider, who lived in the next door south Chouteau avenue; also east of the Fuchs of Fuchs, testified: That there were two manbuilding; and that the smell was unlike coal holes in the Mill Creek sewer at the junction gas, and different from any smell that had of Fourth and Fifth streets (the latter of which come from the sewer before. That the odors is usually called Broadway), -one in the midthat came from the manhole at the southeast dle of the street and the other on the sidewalk corner of Broadway and Chouteau were there on the west side of the street, -and they were before the sewer was built, but since its build- kept closed with solid covers. That there ing could only be detected on a cloudy, rainy were two other openings to the sewer: ---one on day. He further testified that he saw a col. the corner, and one right in front of the Mar: ored mass mixed with the dirty water that was ket,-which were made for water to flow into; flowing down the sewer, of a kind of violet and two openings of usual size to the sewer, color, but could not say whether it was oil. also open, covered with grates, in the alley,

Tunstal, another witness, was in the back 144 feet east of the Fuchs property, right beroom of the building when the explosion took hind the property of witness. These openings place, and Fuchs and Kriebaum were in there in the alley are to a sewer connected with the with him, and by that explosion he was cast main sewer. That on the evening of the into the sewer, and from which he got out day of the fire (which occurred just a after struggling in the stream a distance of litile after poon) the smell from the sewer of coal oil was so strong in his house that they matter of how gases originate that are formed had to close the windows. That his sewer in a sewer. That gases arise by evaporation. connects with the Mill Creek se wer. Tbat They are not made that way, but are produced each succeeding night it was the same way, that way by simple evaporation. That some and they could not stand it in the rear of the of the constituents of the oil would evaporate. house, and had to go to the front, because of That this was the case with all kinds of oil this smell of coal oil. There was always some from crude petroleum down to naphtha, -gasoodor coming from the sewer, but not so strong line. That illuminating oil that is sold as as at the time mentioned. That the odor was kerosene would not give off any vapor under much stronger after the fire than before. ordinary temperature, por would it produce That since ihe manholes on Fourth and Fifth any gas. I have tried that may times.” That streets had covered tops they did not suffer so if you poured such oil on the floor, with a much from the odor. That the branch sewers lighted candle in the room, the oil would not affording connection from his house with the take fire. That it only explodes or burns by Mill Creek sewer had no self-acting safety contact. That crude petroleum gives off a cocks to shut off odors from the sewer in the vapor under ordinary temperature; that is, any yard.

temperature over 60° Fahren beit, which is inKuntz, a plumber, testified that seven or flammable by coming in contact with fire. eight years ago be connected the premises of That it cannot be called a gas, but is a vapor. the Waters-Pierce Oil Company with the Mill That if you filled a large vessel with crude Creek sewer at a point on Gratiot street op- petroleum, and put it in a closed room, after a posite Thirteenth, to drain their yard; that there time, depending in the atmosphere, there was a grating at the junction of Fourth and would be gas enough in the room to make it Fifth streets over the main sewer, to let the dangerous to go in there with a light. That water flow in,

there would have to be a great deal of ventilaHartung, reporter, testified: That he was tion in a room to prevent it being danger: present at the time the tire of the oil company's ous. “I would be afraid of it even in any works occurred, and was there some three case.” That he had given the question of the hours. That he saw men who wore overalls, construction of sewers in a city no attention. and were laborers, who were acting under the That naphtha is one of the first products of command of Lindsay, chief of the fire depart. distillation of petroleum, and is a very light ment, digging trenches in among the railroad oil, and vapors form from it much quicker tracks, and thus conducting the oil and water than they would from petroleum alone. (which was in large quantities in the ground, That gasoline is the same as naphtha only a from 5 to 12 inches deep) to the public sewers. little lighter grade. Asked whether sewer gas *That these men at work were about 15 feet or marsh gas would not ignite or burn spon. north of the oil company's plant. That it was taneously, witness said that the former would impossible to tell the proportions of the flow- not, and that ordinary gas would not, to his ing water and oil. That the men were not knowledge. That it would take a very large firemen. That while the works of the oil com- quantity of crude petroleum to generate enough pany were furiously burning, the oil from the vapor to cause Mill Creek sewer to explode. works ran out on the ground and among the That when he spoke of oil evaporating at a railroad tracks on which the cars were stand. temperature of 60°, he referred to oil in an ing. That he asked Chief Lindsay “whether open vessel; such a one as would admit of air. there was any danger from that oil that was That from his general reading he knew that scattered among the tracks catching fire and there was a constant generation of gases from damaging the railroad property, and he said, animal and vegetable matter, and was called No,' he thought not; that the men were lead. í sewer gas,” wbich is a mixture of gases. ing it into those inlets; and I heard him say, that there is a mixture of sulphureted bydro*Move along,' 'Is it hot?' and questions of that gen, and maybe some marsh gas. That marsh sort.' That there was no way to prevent the gas emanates frem decaying vegetable matter. oil, etc., from escaping and going northward That witness believed that it was common in into the Union Depot yards, where there were sewers. That the conditions were favorable to cars standing, except by turning it into the it, and that the conditions were more favorable sewers. That the fire department was playing to sulphureted hydrogen being in sewer gas, on the fire at the time the works were burning. and more so than ordinary marsh gas. That That one of the officers of defendant company gas is generated in sewers from human excrestated to him that there was naphtha in some ments, rotting vegetables, and animal matter. of the company's tanks. This witness also That explosions from sulphureted hydrogen or testified that there were 300 or 400 gallons of marsh gas would be about the same in their oil flowed into the sewers, and then, after that, violence as gas from petroleum vapors. That 3,000 or 4,000 gallons; and then said he could in the opinion of witness, if the explosion bad noi estimate the quantity, as he could not tell resulted from crude petroleum or other cause, how thick the oil was on the surface of the such sudden ignition would have raised the water.

temperature to about 2.200", and the heat Wilson, a policeman, testified that just as he would have ignited and burned any petroleum passed the Fuchs place the explosion occurred; in the sewer at the time, and would have ig. that a dense smoke came out of the building; nited the petroleum more readily on the surwhich resembled the scent which arises after face of the water than if lying on a dry surthe extinguishment of a gaosline stove.

face. This witness could not state what the Enger, a gas engineer, who bad twenty on temperature of the sewer was. That tank cars years' experience in making gas from petro containing hundreds of barrels of oil are conleum and its products, had not studied the stantly being transported all over the country


without any protection froin the sud, and hav- exhibition and profert of that evidence someing on the top of each a cupola top with a what at large. In cases of this sort, as must manhole in it, and by means of such holes the be obvious, facts are indispensable factors in cars are filled.

determining the correctness of the action of Humpert, who did business for Peters at the trial court in popsuitiog the plaintiff since French Market, across the street from Fuchs' those facts must constitute the TOUOTw of place, testified: Tbat on the 26th of July be plaintiff's action and of the defendant's defense. went down in the afternoon, with a lighted From the facts in evidence it appears illucandle, 10 put some watermelons away in an minating oil that is sold as kerosene (coal oil) ice chest in the cellar, when a cloud of fire will not give off vapor por produce gas under came right in his face and knocked bim on his ordinary temperature; that it only explodes or knees, etc. Ilis place is about 150 feet from burns by contact; that crude petroleum, if Fuchs' place. And that there was a sewer in placed in a large, open vessel in a closed room, the cellar which connected with that one in the would after a short time, if subjected to a lemalley. That there was a manhole in the alley, perature of about 60' Fahrenheit, give off sufover the sewer, which is covered by a grate. ficient vapor-not gas-to cause an explosion This was just back of Peters' building. if the room were entered with a ligbt. There

Kern vext testified that he was in front of was no evidence, however, as to what the temPeters' place when the explosion happened; perature of the sewer was, nor as to what the that he saw Humpert, w bo bad just come from effect would be in the way of generating gas the cellar with his clothing on fire; that wit or vapor in the sewer, where, according to the ness took Humpert's shirt off, the fire from his testimony, the proportion of the crude petro. clothes; and in about the time a person could leum, etc., must have been exceedingly small count ten, a loud report was heard, and the when contrasted with the vast quantities of front of Fuchs' building came out.

water contained in a sewer 16 feet wide, 12 feet At the conclusion of the testimony the court, high, and from 5 to 6, 7 and 8, feet deep, even at the instance of defendants, gave instruc- if we adopt the bare conjecture that there tions in ihe nature of demurrers to the evi. was as much as 3,000 or 4,000 gallons of oil dence, whereupon plaintiff took a nonsuit, turned into the sewer. It is true that the tes.

timony sbows that Daphtba, etc., would give 1. It will have been inferred from the fore-off vapor at a much lower temperature than going quotations from the pleadings and ihe crude petroleum, but there is no testimony evidence that this cause requires consideration showing what the temperature of the sewer was from two points of view; one relative to the nor that any naphtha, etc., was turned into the pleadings, the other to the evidence.

sewer on the day of the fire. So, that, under lu the first place there is no evidence to the testimony, we must put out of view as show that the city contracted with the grantors constituents of the litigated injury vapbiha and their assigns or Fuchs to “keep and main- and gasoline, because not shown to have tain said sewer in good order, and to care for escaped from the tanks, nor to have been the said sewer, so that said lot and any improve conducted into the trenches leading into the ments which might be put thereon would be sewer; and besides, conceding such escape and free from danger of injury from or on account such conducting of those fluids, no temperature of said sewer and the use thereof." This of the sewer was shown. So that, under the being the case, there is no right arising out of testimony, kerosene or coal oil and crude petrocontract which could hold the city liable in leum must also be excluded from consideration the premises.

as injury producing ingredients, because the 2. And it is patent of record that the other former does not generate either gas or vapor portions of the petition do not state that it was under ordinary temperature, 60°, nor the latter the duty of the city to keep Mill Creek sewer free generate anything but vapor-not gas-under from noxious or dangerous gases, or free from that temperature; and po testimony as to what fluids and substances which would generate degree of heat or cold existed in the sewer, and suci gases. Unless the duty of the city to do gases-not vapors--are alleged in the petition. this is alleged in the petition, it states no negli as the cause of the explosion. These things gence: for duty un performed is the sole predi- alone would certainly seem to warrant the rulcate of negligence, and without it the latter caning of the trial court in giving the instructions not exist. Cooley, Torts, 2d ed. 791, 792; Flint complained of. & P. M. R. Co. v. Stark, 38 Mich. 714; Cole v. 4. But other inferences are to be drawn from Mckey, 66 Wis. 500, 57 Am. Rep. 293; 1 the facts in evidence already related, which, if Shearm. & Redf. Neg. 4th ed. $ 8; Hallihan possible, even more strongly tend to support v. Hannibai & St, J. R. Co. 71 Mo. 113. The the conclusion reached by that court. It canpetition therefore states no facts sufficient to not be known with any plausible degree of constitute a cause of action,-a fatal defect, probability from the facts developed in eviwhich may be noticed in this court for the first dence what was the cause of the explosion. time (Smith v. Burrus, 106 Mo. loc. cit. 97, 13 No one can carefully read the testimony, and, 1. R. A. 59, and cases cited), or on which ac after due deliberation upon it, be enabled to count objection could have been taken in the say what gas or combination or commingling lower court to the introduction of any evidence of gases produced the unfortunate result which (Butler v. Larson, 72 Mo. 227). Other matters gave origin to this action. The conditions in regard to the petition will receive comment were favorable, as the evidence shows, to the in a subsequent paragraph.

generation of several gases, viz.: Methane, or 3. Inasmuch as the trial court granted in- marsh gas; or carbureted hydrogen, formed by structions in the nature of a demurrer to the the decomposition of vegetable matter under evidence, it has been thought proper to make water, also known as fire damp, colorless and inodorous, which is the cause of the ex- feet from Fuchs' place of business there were plosions which so frequently take place in four openings through which the gases in the coal mines, and is given off when the mud in sewer could escape, saying nothing of the sewer stagnant pools and marshes is stirred; and the connections at Peters' store, and at Follenius' indications are of the possibility of making marble works; and so the only thing that rethis gas from the elements, since its constitu- mains of plaintiff's claim of the city's negli. ents may be thus formed (Remsen, Organic | gence in this regard is as to the manhole in the Chem. 23 et seq.), and which constitutes the center of the street where Fourth and Fifth most abundant ingredient of coal-gas (Flownes, streets intersect each other, and that at the Elem. Chem. 229). Sulphureted hydrogen, or sidewalk on the west side of Fifth street. Rehydrogen sulphide, also a colorless gas, but by specting the first one, Dr. Fuchs' testimony no means inodorous, having the odor of putrid shows that it was constructed with a goose eggs, and being the frequent product of the neck, so as to prevent the escape of gases, bav. putrefaction of organic matter, both animal ing been changed from a straight pipe, because and vegetable. Id. 173. Now, if we say the people in the locality complained of the nothing of a gas or gases which might result odors formerly coming from it; so that, even from an admixture of those aforesaid, and if if the covering had been removed from this we admit tbat the conditions were also favor. manhole, no gases could have escaped, and it able to the generation of gas in the sewer from will not be presumed that plaintiff intended to the oils introduced therein, as one of the inci. include in her petition this manhole, but only dents of the fire, still we are confronted by the those whose covers, if removed, would have rule which declares that where an action is given ventilation to the sewer,—that is to say, brougbt for damages wbich are occasioned by egress for the gases therein. As to the second one of two causes, for one of which defendant manhole cover, it was the only one which is responsible and for the otber not, the plain- could have been removed that was not retiff is fated to failure if his evidence fails to moved. But did the nonremoval of this one show that the damages were produced by the so retard or prevent the escape of gases as to former, or if, from the evidence, the probabil cause the accident? If it did, then the burden ities are equally strong that the damages were is on plaintiff to show that it did. It devolved caused by the one as by the other. Searles v. upon her to “prove facts and circumstances, Manhattan R. Co. 101 N. Y. 661. This prin. from which it can be ascertained with reasonciple finds recognition in Priest v. Nichols, 116 able certainty what particular precaution the Mass. 401, and Smith v. First Nat. Bank, 99 defendant ought to have taken but did not Mass. 605, 47 Am. Dec. 59.

take” (1 Shearm. & Redf. Neg. 4th ed. $ 57), 5. Recurring for a moment to the petition, which of course would include, as a legitimate preparatory to a further discussion of the evi- corollary therefrom, that, had such particular dence from other points of view, we find that precaution been taken, the reasonable probit charges that “said sewer was provided with ability is that the accident would not have ocopenings especially designed to carry off any curred. Thus, in Daniel V. Metropolitan R. gases which mighi arise in said sewer, and be Co. L. R. 3 C. P. 216, 591, Willes, J., said: liable to combustion and explosion, etc., yet “It is necessary for the plaintiff to establish by suid city, its agents and servants, knowing that evidence circumstances from which it may said defendant the Waters Pierce Oil Company fairly be inferred that there is reasonable prob. had flooded said sewer with oil, neglected to ability that the accident resulted from the want open said vents (and carelessly and negligently of some precaution which the defendants to tak measures and precautions to prevent might and ought to have resorted to; and I go gases arising in said sewer so as to endanger further, and say that the plaintiff should also the same”], etc. The words not included in show with reasonable certainty what particular the brackets are those which allege plaintiff's precaution should have been taken. Though cause of action, because, where a particular act The judgment in this case was reversed on anof negligence is specified as a cause of action, other ground, this doctrine was distinctly afthere evidence will not be received to support firmed in the same volume (page 591) and in a general allegation of negligence, but the the bouse of lords (L. R. 5 H. L. Cas. 45); and plaintiff will be confined to the act of negli the language employed by Willes, J., has been gence specifically assigned (Schneider v. Mis frequently cited and quoted with approval. souri P. R. Co. 75 Mo, 295; Waldhier v. Han- Hayes v. Michigan C. R. Co. 111 U. S. 228, 28 nibal & St. J. R. Co. 71 Mo. 514); from which L. ed. 410; Philadelphia, W. & B. R. Co. v. premise it results that no evidence was prop. Stebbing, 62 Md. 504: Williams v. Great Westerly admissible in regard to the words in ern R. Co. L. R. 9 Exch. 157; Sioux City & P. brackets. Besides, those words were but the R. Co. v. Stout, 84 U. S. 17 Wall. 657, 24 L. statement of a legal conclusion, something pot ed. 745; Randall v. Baltimore & 0. R. Co. 109 traversable. No issue of fact could be raised U. S. 478, 27 L. ed. 1003; Lovegrove v. Lonupon them.

Bliss, Code Pl. 3d ed. SS 212, don, B. & S. C, R. Co. 16 C. B. N. S. 669. 213, 413. Under our Code, the facts in plead- In the case at bar there was no attempt to ing are constitutive, and in order to be proved, make the proof here indicated as necessary; in must be distinctly alleged. Pier v. Heinrichof short, to connect the neglect to remove the fen, 52 Mo. 333; First Nat. Bank v. Hatch, 78 cover of the single manhole with the accident. Mo. 13; McKinzie v. Matheus, 59 Mo. 99; In illustration of this principle it has been Nichols v. Larkin, 79 Mo 264; Lanitz v. King, ruled, where the jury are told that, if all the 93 Mo. 513. Taking, then, the facts specific evidence satisfied them that there had been ally assigned as negligence, and contrasting negligence on the part of the defendant, althem with those offered in evidence in their though they might not be able to satisfy themsupport, we find that within a radius of 250 selves in what that negligence consisted, they

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