the cars, if he wanted to, then the first act of negligence so charged by the plaintiff must not be considered. And, unless you further find that plaintiff's fall was caused by negligence of the gripman in running the car with a jerk, then, without more, your verdict must be for the defendant, even though you may believe that plaintiff was thrown to the ground by a jerk of the car. A jerk of the car, if not negligently made by the gripman, gives the plaintiff no right to recover. 4. Even if the car was going at the full speed of the cable rope, and even if there were jerks and jars which caused the plaintiff to fall, still, if such jars and jerks were only such as were necessarily incident to the proper and careful operation of the cable road in its usual and ordinary way, then there was no negligence, and defendant is not liable. 5. Even if you should find that the defendant's gripman was negligent in the matter specified, still plaintiff cannot recover, if he was negligent, and thereby contributed to his own injury. There is a difference between a plaintiff's and a defendant's negligence, in relation to its connection to any injury. The difference is this: Defendant's negligence, if any, must be the cause of the injury, whereas plaintiff's negligence, if any, need not be the cause of the injury, for it defeats a recovery if it but contributes to the injury. And even though defendant's negligence, if any, or anything else, were the cause of the injury, still, if, contributing thereto, there was negligence on plaintiff's part, the verdict must be for the defendant. Or if both parties were negligent, and thereby contributed to the injury, then plaintiff has no case. 6. Plaintiff was bound to exercise reasonable prudence in looking out for himself, and in finding a safe place on the train. If he failed to do so then he was negligent. Forgetfulness, inattention, or any failure to exercise ordinary care, upon plaintiff's part, was negligence; and if, by the exercise of ordinary care upon his part, he would not have fallen from the car, then he has no case, even though you may believe that the defendant's gripman was also negligent, and even though you may believe that he was thrown from the car by a jerk."

There was a verdict for defendant, which, upon motion of plaintiff, the court afterwards set aside, and granted a new trial, "for the reason that the court committed error in giving and refusing to give instructions to the jury on the trial of this cause." The defendant excepted to the action of the court, and appealed the case to this court.

KARNES, HOLMES & KRAUTHOFF and FRANK HAGERMAN, for appellant.

W. J. HOLLIS, for respondent.

MARSHALL, J. (after stating the facts). 1. The order granting the new trial is in general terms, - "for the reason that the court committed error in giving and refusing to give instructions to the jury on the trial of this cause." This is a compliance with the letter, but not the spirit or reason, of Rev. St. 1889, sec. 2241. No index is thereby afforded to the error the court believed it had committed. Respondents explanation, however, is that the instructions given for defendant placed the burden of proof upon the plaintiff throughout the whole case; and it is claimed that this is a proper cise for the application of the doctrine of imputable negligence to the defendant, and hence the plaintiff's case having been made out, by showing the accident and the injury, the presumption of negli gence attached, and the burden was cast upon defendant to exonerate itself by disproving negligence on its part. If this was the moving cause in the action of the court, it was clearly erroneous; and, if this was not the ground of its action, we are at a loss to understand the reason. The only negligence charged in the petition is that the gripman "so carelessly and negligently operated said grip iron as to cause said car to jerk and lurch with such force that it broke the plaintiff's hold, and threw him on the paved street with great force." This is a specific charge of a particular act on the part of the gripman, which was susceptible of positive and direct proof, and excludes any idea of intention of the pleader to rely upon general negligence, but, on the contrary, expressly limits the plaintiff to proof of the specific negligence averred. Waldhier v. Railroad Co., 71 Mo. 514; Ely v. Railway Co., 77 Mo. 34; Leslie v. Railway Co., 88 Mo. 50; Hite v. Railway Co., 130 Mo. 132, 31 S. W. Rep. 262, 32 S. W. Rep. 33; McManamee v. Railway Co., 135 Mo. 440, 37 S. W. Rep. 119. To sustain his allegation of negligence, plaintiff testified that he boarded the grip car, and stood on the running board (although there was at least one vacant seat, beside his friend Watkins, on the car), intending to ride to his destination, the while standing on the running board; that the car came to a full stop just after he had gotten on it, then started, had attained the full speed of the cable rope, and had gone thirty or forty feet (other witnesses say half a block), when "it [the car] kind of stopped, or something, - gave a lurch. I don't quite understand how it was, but it gave a lurch, or something, the nature of which I don't understand; " that it was some action of the gripman that caused the jerk, but he could not say positively what it was, whether it was running faster than the speed of the rope or not, he did not know, but that "he (the gripman) caught the rope with a quick jerk, or made a motion with his grip like as if he was." The only other witness for

plaintiff who explained the accident was George Price, who was a passenger on the grip car, who said plaintiff got on the car, about the center thereof; that there was a vacant seat behind the witness, and one ahead of him, but plaintiff was walking along the running board, towards a vacant seat near the front of the car, when he fell off; that the car had moved about a half a block after plaintiff boarded it, before he fell off; that he don't know what caused plaintiff to fall off, unless it was "a little kind of sharp jerk;" that the gripman did nothing to make the car jerk, and was not jerking up or tightening upon his grip; that the jerk was not very perceptible; that it was the slack in the rope which caused the jerk; and that there was no other way of accounting for the jerk. This was practically all the evidence adduced by the plaintiff to sustain the issue of carelessness and negligence on the part of the gripman in operating the car. To state it is all that is necessary to conclusively demonstrate that the plaintiff utterly failed to make out a prima facie case such as entitled him to go to the jury. Plaintiff's testimony does not rise to the dignity of proof of negligence, for it fails to show what the gripman did, or how he caused the jerk, or that he caused it at all, while the testimony of his witness Price is positive and direct that the gripman did not jerk or tighten the grip, but that the jerk, which was not very perceptible, was caused by the taking up of the slack in the rope. It is a matter of common knowledge, of which even a court is not ignorant, as well as a matter of physics, that the rope of a cable railroad cannot be kept taut, and that the jerks which are common and unavoidable to such roads are caused by the slack in the rope being taken up. In order to recover from a cable railroad, it is not enough to show that there was a jerk, but it must affirmatively appear that the jerk was an extraordinary or unusual one, or attributable to a defect in the track, an imperfection in the car or apparatus, or to a dangerous rate of speed, or to unskillful handling of the car by the gripman. Adams v. Railroad Co., 9 App. D. C. 34; Weaver v. Railroad Co., 3 App. D. C. 436; Railroad Co. v. Snashall, Id. 420; Hayes v. Railroad Co., 97 N. Y. 259; Stager v. Railway Co., 119 Pa. St. 70, 12 Atl. Rep. 821; Mitchell v. Railway Co., 51 Mich. 236, 16 N. W. Rep. 388; Muller v. Railroad Co., 48 N. Y., Super. Ct., 546; Holland v. Railway Co., 155 Mass. 387, 29 N. E. Rep. 622; Stewart v. Railroad Co., 146 Mass. 605, 16 N. E. Rep. 466; Turnpike Road v. Cason, 72 Md. 377, 20 Atl. Rep. 113. Clearly, the testimony in this case does not show anything extraordinary or unusual in the jerk. No defect in the track or car or apparatus is shown, and no negligence of the gripman is made to appear. It was therefore the duty

of the trial court to so declare, and to sustain the demurrer to the evidence at the close of the plaintiff's case, and it was error on its part not to do so

2. This is practically conceded by respondent in this court, but, to help out, he insists that negligence should be imputed to defendant, and hence he was entitled to go to the jury, although his testimony fell short of making out a prima facie case. This contention is not tenable. It is not true that jerks do not usually occur in the running of cable cars, but, on the contrary, it is a fact that they are unavoidable. It is only in cases where the injury would not occur in the ordinary conduct of such affairs that negligence is imputed to a defendant. Where, as here, it affirmatively appears, and is proved by common experience, as well as by the laws of physics, that the particular thing complained of is unavoidable, there can be no negligence.

3. The defendant's testimony established clearly that there was no unusual jar or jerk or lurch; that the gripman was wholly without fault; that plaintiff was walking along the running board, towards the front of the car, although there were plenty of vacant seats that he might have safely taken; that while so walking he missed catching hold of one of the posts or uprights, and fell off. Even if this could be treated as a proper case for the application of the doctrine of imputable negligence, the defendant has completely exonerated itself from blame, and has overcome any possible presumption of negligence, and the verdict of the jury was the only verdict which they could have found, consistently with the evidence, and the only verdict which could have been allowed to stand in the case; and therefore, under the many and uniform decisions of this court, it is wholly immaterial whether the trial court erred in the declarations of law given to the jury or not. Fitzgerald v. Barker, 96 Mo. loc. cit. 666, 10 S. W. Rep. 48; Fox v. Windes, 127 Mo. loc. cit. 520, 30 S. W. Rep. 326; Homuth v. Railway Co., 129 Mo. loc. cit. 642, 31 S. W. Rep. 906. In the case last cited, Robinson, J., speaking for this court in banc, said: "While this is a suit at law, in which all the issues of fact triable are to be determined by the jury, when the facts, as disclosed by the testimony of plaintiffs themselves, as in this case, entitled them to nothing, or when they admit the existence of the defence as set up by the defendant, the jury have no office to perform. And when the court delegates to the jury a work that it should have done, and in doing so it gave an erronous instruction, and the jury proceed thereunder, and make a finding for the right party, as the court should have done without them, no error has been committed authorizing the granting of a new trial, 'notwithstanding

the error in the instruction.' It is the settled doctrine of this court that if, upon the pleadings and undisputed facts, the judgment is for the right party, there can be no reversal, no matter what errors intervened upon the trial. Orth v. Dorschlein, 32 Mo. 336; Ellerbe v. Bank, 109 Mo. 445, 19 S. W. Rep. 241; and others. Then, upon the same principle, if the judgment is for the right party upon the undisputed or admitted facts in the trial court, that court should not disturb the verdict and judgment thereon, notwithstanding error in instructions was made by it. Kelly v. Railroad Co., 88 Mo. 534." Accordingly the judgment of the Circuit Court in awarding a new trial in that case was reversed, and the cause remanded, with directions to enter judgment upon the verdict for defendant. If that opinion had been written upon the facts and pleadings in this case, it could not fit it better than it does. The Circuit Court therefore committed error in granting a new trial in this case.

4. The foregoing conclusions make it unnecessary to consider whether the Circuit Court erred in giving and refusing instructions, and also whether it erred in admitting evidence as to the release having been procured by fraud. It is enough now to say that the verdict of the jury was the only verdict that could properly have been rendered, and that the Circuit Court erred in granting a new trial. For this error the judgment will be reversed, and the cause remanded to that court, with directions to enter a judgment upon the verdict for the defendant. It is so ordered. All concur.

CAMERON v. KENYON-CONNELL COMMERCIAL

COMPANY.

Supreme Court, Montana, March, 1899.

ORDINANCE INCONSISTENT WITH STATUTE-STORAGE OF POWDER EXPLOSION. — An ordinance of a city permitting the storage of powder in a warehouse in quantities exceeding that permitted by a state law will not relieve the warehousemen for liability for death from an explosion. DIRECTORS OF CORPORATION LIABLE FOR DEATH FROM EXPLOSION OF POWDER IN WAREHOUSE. The directors of a corporation in whose warehouse an unlawful quantity of powder was stored are per. sonally liable for the death of one killed by an explosion though they had no knowledge of the quantity stored, if by the exercise of ordinary diligence they could have ascertained it, and the burden is on them of showing that they could not have discovered it if they had exercised ordinary diligence.