*1 23, pas- discretion, average over-all less than should deem ad- such a course visable, effect senger days. To prove each four might same value in future “off” daily average is the passengers problem. of the determination However n that 24 at the may be, Train stations. Wind- foregoing eastbound facts convince City sor to and from Kansas has bus service us the by losses sustained the com- protest of these pany operation and does not discontinuance in the Trains and extreme, in- some, trains. October, Eldon at but as of patently were so dis- expense proportionate and to Mis- public access convenience has and convenience City. trains souri Pacific necessity by then or thereafter to be served Jefferson Moreover, patron- the failure of Eldon them as to be they render order that equip- these not to continued ize trains is due their unreasonable arbitrary and with- schedules, ment from in primarily public but their meaning service com- possi- mission statutes. which the fails to show evidence bility relief. Versailles serv- has no bus judgment trial court re- is says, ice. there was a One witness “If versed and remanded directions to * * * decent and decent schedule service trial court report to set aside the order and men like to have some cases we would herein reviewed and to remand cause City.” train to and from service Kansas the Public Service Commission for its fur- little But that the wish of witness means ther consideration. for determining here involved issues All concur. reason, stated, cannot schedules Stover, average daily reversed. with a no bus passengers, of 1.28 westbound has postmaster some says

service is, and, inferentially, be, made

use would if continued.

of the trains that, ex

These facts show with the ception Stover, compara of Versailles McVICAR, Plaintiff-Appellant, Robert expense will tively little inconvenience public general result heretofore COMPANY, Inc., W. R. ARTHUR & they discon by these are served trains Defendant-Respondent. plan proposed, under the tinued No. 45450. Stover, which of Versailles citizens 4.30 together averaged heretofore have Supreme Missouri, Court of per day, lose passengers will westbound Division No. 2. transporta only to public their direct access April 14, 1958. City. Kansas The demand tion to th'e served passenger service in area May Rehearing Denied no declining by trains these improvement. hope The resort for its the Ozarlcs surrounding

area the Lake of passen practically demand for

affords on trains. reasonable

ger service demand for such service

assume than it even when

will become less decided the commission in

this case A

October, 1956. reconsideration developments subse light of

matter commission, time, its if the quent to *3 Peterson, employee-driver, Mr. transport Sarah

drove the truck east on Street, east-west an 18 to 20 foot wide paved public street, Kirk- City transport stopped truck on wood. He the south side of so Sarah Street could unload three trucks were transported. parked Peterson testified foot of the truck within a *4 south curb of Plaintiff Sarah Street. parked testified was it toward the over it; south against curb but was separated the north curb of Sarah barely by enough Street a car room for Louis, plain- Inman, St. & Schurr already pass. on Sarah to- Two Street tiff-appellant. transported the three trucks were for the Company. Rauscher Chevrolet One Martin, Grand, Leper, & Hocker, Jones, was these two on the the trailer bed of Gaebe, St. C. Harold and Roudebush and the ramp. other was on the overhead defendant-respondent, W. R. Louis, for The third vehicle was for a downtown St. & Arthur Co. Louis dealer. HUNTER, Judge. Special ELMO B. transport The eight truck was feet wide top and the sides metal were about plaintiff-appellant appeal is an This 31/ n to 4 high. ramp feet The overhead entered judgment McVicar from Robert on placed which two of the trucks were in fa- jury’s verdict with accordance in was necessary constructed so it was Arthur W. R. defendant-respondent, vor of to raise it to load and unload the truck on appeal case Company, Inc. On & raised, ramp the trailer bed. When so the briefs on submitted originally was was about 8 feet 6 inches above the trailer opinion was written. and parties bed, and ramp awas handle about re- for a Thereafter, motion defendant’s beyond 6 to 8 inches the rear of the trailer was the cause sustained was hearing ramp. Apparent- end crossbar of the to the court. argued ably fully ly supported the rear half of the ramp was things, other among petition, Plaintiff’s position by a raised steel bar on each inspecting was while alleged side of the trailer. steel bar Each was changing the moving and operation ramp attached several feet from its truck, transport “de- cars on top end and to the corresponding employee, care- fendant, by through its metal side of the trailer. Each bar was upper pulled down the lessly negligently hinged about three-fourths of its distance transport truck and ramp of loading ramp, from the side of the trailer to the thereof, plaintiff’s result a direct heavy spring top extended from the bars of said between crushed head brace, supporting ramp, a steel also operation in the that move transport on each side and near the center of the injury ramp” to moving of said point hinge on that side. $20,000. Defendant’s answer sum picture exhibit D below, Reference to in- denial, general aof nature evidence, parties troduced which the contributory charged also representation agree is fair of the de- negligence. clarify scribed will much of ramp this detail. as it facts are undis- is shown in the essential Many of raised, April 29, approximately that exhibit half morning of puted. On

gQ9 D' Exhibit *5 plaintiff’s give morning brought version what

On that same as to oc- the curred. When work his automobile Rauscher Chevrolet on his car was servicing. completed plaintiff The Rauscher Company for went out side en- opens Road. About Kirkwood trance which garage fronts on onto Sarah Street and parking space get used as endeavored to of car out 30 feet of small i garage area but parking of between could not s do lot south because proceed positioned We other were Street. cars so on the on Sarah parking sidewalk head, my just passed crown make of him to impossible for make lot as to pushed top my edge chin trans- down past necessary out and turn path. side the trailer.” his exit this port truck which was watch car and get Pie decided to out On cross-examination he was asked: still vehicles two unloading He transport truck. “Q. Well, you those how close remaining on were of Sarah you curb hinges leaning the north when over on were first stood two these unloading up ? A. tightening watch the first time this Street to as was unloading, one I I then After their didn’t know at that time but since vehicles. by backing my reloaded directly were over they two vehicles understand these * * * transport lower head. it onto the section backed been this truck. When “Q. you your stuck over When head init Peterson secured trailer bed onto there, this truck driver of oper- tightening fastening or position by a A. was in a crouched at this time? He around chains a chain or by placing ation position tightening truck down. this rear around the also the front axle about ture exhibit D. handle. Plaintiff pears in trailer tightening into at truck on its left Plaintiff was Peterson about axle against the device on five two portion, place the street and who “ICC —18135” or the backed-in feet upper asked, six where the truck with his was watching (north) away, feet from moved He edge in a crouched leaned tightening conversed side facing northward. as shown (dash) trailer. truck to the the the approximately hands truck the curb body of —mark the side a crank rear with He position on resting chains driver was pic- Mr. bed ap- the *6 the out the was possibly a which would ^[*] how much of A. As for this ing none was (just) He was “Q. And how much of my chest would be ^[*] each truck. over him to tightening leaning position (indicating), jj n a comfortable I my side, said, minute looking Peterson tighten the truck chest against mean that your body and I believe a chain around (was I down them. the assume it would take a minute “had two in the truck ever position did my hands were anything side of at He had you have lean in your Peterson who time, and it) the chains, my the head forward * * * n axle of said truck stand half” chest any? * * words. few “Q. you you Did notice him looking at any you at time while standing were ? “Q. After he finished the tightening A. Yes. chains, you did continue to watch the driv- doing? er to see what he was A. After happened “Q. Tell us what after that? wrench, no, the tossed I he sir. not did operation tightening A. the After was the driver see after that.” completed, driver, Peterson, the Mr. tossed over wrench side of the the the trailer And, stated, when as heard the noise right which was towards me. wrench the tossed into the truck bed, went, he leaned to watch where it in "Q. A. Yes. And as he tossed position in that remained matter sec- - hit the bottom of wrench trailer. onds, caught and was then between the attention, my attracted and The noise I ramp hinges and its bed. only He not did just in forward see this leaned where getting Peterson not see rear of gone. had wrench pull ramp trailer to down but also did happened Well, any then? A. “Q. What or hear noise of ramp not see com- something caught my head, did not ing down. have time He at business to he asked indicated be between two beams had not Peterson and been with only approximately reason “other” even with the word work. help him with his satisfy A, picture, (which was to shown in would trailer exhibit he looked into the plaintiff and outside “curiosity”. the east just hinge west of scissor watch- plaintiff had testified Peterson approximately large upright bar located pro- reloading unloading and the whole ed picture above the “S” shown letter as unloading of including the ceedings, what D). exhibit Peterson asked raising of top vehicles two elapsed length the time he of time the truck unloading of ramp permit plaintiff last Peter- standing saw up walked had Plaintiff in the bottom. grabbed son said Peterson until while watch- rig side of down the handle, answered, “just a matter He saw operation. unloading ing the imagine.” plain- of seconds I He testified on sev- trailer plaintiff close to the stand pinned triangle, tiff was inside the half plaintiff on saw but never eral occasions hinge (and under hood thus out- touching side of or leaning over the portion plaintiff triangle side had after acci- any time until trailer indicated). plaintiff to not invite Peterson did dent. plaintiff’s At again the close of case and him ask for get on the touch or at the all close of the evidence defendant him help, plaintiff never assisted moved for a rea- directed verdict some ex- work. Plaintiff had in his plaintiff trespasser (1) sons That awas Cook, George him and tent conversed truck; That (2) on defendant’s defend- Rauscher’s, who was employee plaintiff only ant exer- the unload- assisting watching but not ordinary prevent injury to cise care to stand plaintiff to tell ing. did not He been after discovered to lower back, going that he was peril; (3) That the front chaining ramp. after Then *7 the showed that defendant had evidence steps to about three axle, Peterson took plaintiff never discovered use made of a rear of the the peril prior happening to ac- the the to mount “strips” the rear couple of at cident. pull to reach handle bed to the the trailer jump several ramp down. Pie to the plaintiff appeal On this contends that the ramp He is handle. reach the inches to giving trial court erred in Nos. instructions to the walked and when he right-handed 3 and S. Defendant contends there was no jumped trailer, it and mounted of the rear instructions; giving error in plain- that plain- to ramp his back was handle for trespasser was tiff a duty to whom no was This plaintiff. took did not see tiff and except owed to refrain from intentional in- jumped, Peterson of seconds. a matter jury; plaintiff that make failed to a submis- handle, ramp and came hold secured case, that plaintiff sible was guilty of at the rear of the ground on the down contributory negligence as a matter of law. he had indication The first trailer. ramp hitting anything wrong allOf these various contentions of the George hollering. Cook something parties none is more fundamental than that around, hold, turned saw concerning legal plaintiff his status of released He injury, under his plaintiff’s head time of for it half of determines about any, duty, plaintiff if ramp. raised what hinge, by The ramp proceed defendant. We before acci- saw discuss time last subject. about happened one dent up way (north) on the left third standing and was about Missouri the trailer decisions involving

side this point classify the trailer kind of issue at a or two individuals as foot tres- a 812 Liability of Land in of a Possessor Wolfson v.

passers, invitees. licensees and Injured tres While Chelist, A Missouri Persons Mo.Sup., 447. 284 S.W.2d Land, 45; Neg- 1 65 onto Mo.L.Rev. enters passer defined as who C.J.S. 24i, privilege ligence pp. has been said 444-445. It without a property another § trespasser right or consent that a is not denied the by possessor’s created do so Thus, trespass wrongful on a who enters recover because is a adult otherwise. an any act, because, presence without but property since his is not of another im express anticipated, or to be authority, property owner owes right, lawful or license, not invitation, permission, or him duty precautions for plied to take own safety. Annotation, performance supra, 156 A.L.R. business person charge exception or on 1234. Another er pur person, own merely but for his under of such certain (which circumstances we trespasser. curiosity poses, pleasure is a do not now define) possessor knows own for trespassers A licensee is one who enters frequently upon intrude a express permission, purposes particular place, required he is to exercise entrance implied, possessor. An reasonable care as to activities carried on. distinguishes purpose for the entrant’s own generally, See II of The Restatement Law 65 licensee from an invitee. See ff.; of Torts, 333-336, Boyer page C.J.S. 901 §§ 23a; Kelling, 353 Porchey v. Negligence, Marble, Guidicy § v. Co., Terrazzo & Tile 820; Nor v. Twine Mo. 185 S.W.2d Mo.Sup., 742; 246 Porchey S.W.2d Co., Mo.App., 226 S.W.2d ris Grain supra. Kelling, broad to state is often stated that these have undertaken We of land is possessor trespassers concerning is that the rule general fundamentals trespassers caused licensees, general harm to rule these for because as a liable rea put ap his land failure to and considerations either his fundamentals same reception, their sonably per for trespass safe condition is on alleged ply where en to not so as carry on his activities property or to which is of such nature sonal regard for increasing An trespass, them. danger may subject development of safety has led to human generally, motor vehicles trucks such as ex These exceptions this rule. Negligence certain 65 wagons. See C.J.S. cir recognized and are exist ceptions 440; Blashfield, Cyclopedia 24b, page § justice calls human cumstances Practice, Law and of Automobile § Chelist, supra, Wolfson v. exception. Co., 506; Packing page Krey Bobos v. *8 generally, See loc. cit. 450. 284 S.W.2d 157; 108, Stipetich 296 S.W. v. Se Mo. Ed., Torts, 2nd Law Prosser, The §§ Co., curity Mo.App., & Mfg. Stove 218 that al Recognizing pp. 432-452. 76-77, 964; Quirk Metropolitan v. St. R. S.W. trespasser may wrongdoer be a though 103; Co., Mo.App. 585, 210 S.W. Tar 200 being, a human is outlaw but not an he is 399, Bowker, N.J.Super. 5 asewicz 69 v. pres exceptions if the is that of the 350; Birmingham Ice & Cold Stor A.2d discovered, trespasser 503, ence Alley, v. 247 Ala. 25 age Co. So.2d peril position of he is particularly 37; Birmingham Co., McGhee v. News possessor commonly re danger, 492; or 487, Barry Stevens, Ala. 90 So. v. 206 ordinary care under the exercise quired to 997; 78, 91 Mass. N.E. Stefan v. 206 New safety ac as for his circumstances Laundry Co., 373, 323 185 Process Pa. A. may carry possessor operations tive 734. Trespasser Annotation, Liability to on. Affected as law concerning as Distinction tres Licensee Bare Just Negligence, property passes Passive on real growth underwent Active between n Duty-to change out Seen Tres increasing 1226. aware A.L.R. 156 403; McCleary, duty man’s Harv.L.Rev. ness of exercise ordinary 27 passers,

813 open to tell safe- defendant’s door for the circumstances under the care package it into the tres- driver had fallen off a man, regarding law ty of a fellow n dragged him caught street. The truck property likewise personal on passers street, along injuring him. In dis many early juris- rule in The progressed. said, duty cussing court 219 .personal owed the trespassing on regarding dictions imposing P.2d loc. cit. 77: “This rule a duty was owed no was that property duty as to exercise care towards property, such reasonable personal trespasser on a trespassers except known train, so far as affirmative acts wagon, or vehicle, a motor concerned, are is in with the wantonly wil- accord mod refraining from ern Am.Jur, trend of 38 See trespasser. courts authorities. Some fully injuring the p. 771, 109, p. Appellant with- rule 773. contends § this apparently have retained may that whatever the law be as to exception discov- as to recognizing an out duty trespassers real property, on subjected act of trespassers to an ered that, trespassers vehicles, as to only on See v. negligence. affirmative Jacamino duty is to Co., Pa.Super. refrain from wilful Freight 135 wanton Harrison Motor Weiss, trespasser’s acts whether presence 393; 99 356, Faggioni v. 5 A.2d known 840; or not.” The Strayhorn spe California court 157, Beale & 122A. N.J.L. cifically rejected 812; 681, argument, this Clayborn, 120 overruled 152 Miss. So. v. previous Lines, cases contrary, Spence Browning Freight Motor de v. clared the Inc, 748, rule to be 806; that as known 77 S.E.2d Cun tres 138 W.Va. passers vehicles, duty on a Bell, 103, there is ningham Ohio St. N.E. v. 149 77 use 918; reasonable care Co, not to them Badger harm insofar 2d Hartman v. Tobacco 577; affirmative 519, Supply acts are Perry 210 Wis. 246 N.W. concerned. See also, 133, Oettinger 290, Stewart, v. Brown, 24 Cal.2d Co. v. 221 Ala. 128 So. 19, 1221; 148 P.2d 156 jurisdictions A.L.R. Other advanced to rule Kakluskas v. Lines, Somers Motor presence trespasser 134 Conn. that after the 54 A.2d 592. of the vehicle is and it is also discovered peril, discovered that he is undisputed Under the facts of this then arises to use the and cau care trespasser case was at the time reasonably prudent

tion person that a injury? It seems to us undenia him, would use to refrain from injuring bly portion A body (his was. e, ordinary i. under care the circumstanc space head) partially within the occu es. See Voltz Orange Fire Volunteer pied by motor vehicle Ass’n, 220; Inc, 118 172 Conn. A. space hinges through operated. which its Mulloy, Salemme v. Conn. A. actually injury partly occurred 870; Madden v. L.S. Mitchell Automobile within the vehicle. Had he not to some ex Co., 21 Ga.App. 92; 108,94 S.E. McGhee v. tent within the been vehicle at Birmingham Co., supra. News Still other operated, hinges injury its could have jurisdictions adopted have what we believe pres resulted to him. This unauthorized rule; namely, sound once *9 plaintiff portion ence of or a of him within the owner or his servant has discovered the property defendant’s under such circum presence trespasser of the up or partly constitute him judgment stances in our to be on the vehicle duty he is under a trespasser. a trespasser ordinary to use care under the circumstances to not cause him injury trespass discovered Was a by any affirmative act part. on his impose duty on to a er so as defendant care, ordinary through of driver to use

In the recent Fernandez v. Con- its case question Fisheries, Cal.App.2d 91, duty 98 was breached? This solidated 219 which 73, sweeper essentially submissibility involves P.2d a street endeavored to the of

814 anticipated person have duty, reasonable would review

plaintiff’s we As our case. is upon a basis to into account as cannot be taken light most favorable the evidence of predicate wrong all in the law which to a of the benefit plaintiff, to him according arising Am.Jur., negligence. Negligence, 38 reasonably § inferences favorable page is in has various that which 669. It been stated therefrom, disregard and we Thus, ways authorities, in and while we different helpful this issue. defendant on to necessarily that do not to the state- testimony subscribe disregard we themselves, acknowledge or touch ments we do at no time saw Peterson get each; namely, that gist of even or ever trend truck lean within the carrier duty trespassers truck. Accord- as to discovered closer than two feet to standing by ordinary injure care not to an affirmative testimony, was plaintiff’s he ing to anticipation Peterson act not public watching generally does include in street trespasser go trans- that adult a will from to the bed tightening place port safe area or on the into an unsafe one where trailer and leaned side resting subject injury by activity he transport hands will be some truck with his possessor, upper body of of the against of the and that be edge must knowledge part possessor’ his then some on the didn’t know if trailer. He that him truck area alerts or alert him to body was within the should that danger. he that refer but it as as We to a few to gave his conclusion illustrate. there, trespasser chest actually his “Where forward of a anything leaned discovered truck; in a position peril, would none of situation of there is it, position duty a “just ordinary to exercise chest was in a care to comfortable avoid him, noise duty may heard which injuring to stand.” was when he be breached by wrench into either tossed active conduct or omission to 24i, watch pp. that he act.” Negligence bed leaned in to 444— § C.J.S. position operator and remained in that several “The went or owner of a motor injured. until Plaintiff not see trespassers seconds did vehicle is under no duty toward thereon, after and is except Peterson he the wrench refraining tossed that of say Pe- say not injury them, and, thus unable and did wanton or wilful him terson lean case trespasser’s saw in. the driver knows of the presence and position that he peril, effect, any, of isWhat to use the care and caution that a reason- testimony touched plaintiff’s ably prudent person would use under the possibly his chest hands trailer with circumstances to refrain from injuring position “a comfortable there in he was Blashfield, him.” 4 Cyclopedia of Automo- tightening observing Peterson stand” Practice, bile Law and page 506. § Ordi trailer bed? backed-up truck to duty trespasser One’s to a discovered is the tres an adult narily person who observes any person rightfully same as to on the safety is entitled to as passer premises “after he has discovered place, in a safe and is will remain sume trespasser imperiled by activity. such In trespass anticipate that required to not words, occupant the owner or other owes suddenly, unexpectedly negli er will ordinary to use care or reasonable danger. into See gently go injure trespasser care whom he 24j, p. 24g, Negligence § § C.J.S. reasonably know, knows, should be in application is but pp. This 443-444. danger, by act or affirmative force set in anticipate, that no one is bound the rule *10 Am.Jur., Negligence, 111, 38 motion.” § measures avert against, or take to guard great majority (of page courts) “The 775. which, circumstances, a under that ‘wilful wanton’ entirely have discarded reasonably prudent person would not antici limitation, outright and have said a that likely happen. Mischief no as pate which as

815 trespasser is it, dis- As touching we view of presence once notified the covered, by plaintiff otherwise side of or the owner duty ordi- plaintiff’s a use trivial and danger, there is not with of his connected him, injuring injury. as It did nary care to avoid not serve to alert Peterson Prosser, thereafter, being.” anticipate any human might case of other that 15, Edition, Chapter Torts, suddenly looking, while he The Law of 2nd was not place his page point 76 head into the vehicle a § danger of and hold there while Peterson it of this decisions to several We refer was lowering ramp. Compare Glaser supra, Co., Krey Packing In v. state. Bobos Rothschild, 3,1, v. 180, 221 Mo. 120 S.W. a motor operating defendant’s driver L.R.A.,N.S., 22 1045, regard with plaintiff to public permitted “ street * ** a licensee been we said: has on, with truck forward get but started well give held that him his license not does boy sudden, before motion a violent the right will, to roam at without further n * complete act of opportunity full * prying invitation his what find cited and boarding truck. This Court * * * eye may there; ”, search out opinion in approval quoted with Wyatt Ry. City see v. Kansas Terminal Stipetich of case v. the somewhat similar Co., 179, 57; Mo.App. 51, 2 74 S.W.2d Co., supra, 218 Security Mfg. & S.W. Stove Torts, 336, Restatement the Law of of § ride was cit. “His invitation to loc. 967: pp. 911-12; 403, Duty 409, 27 Harv.L.Rev. authority, scope of beyond the an act To Trespassers. Seen does The evidence hence, employer, the the driver’s as to not plain disclose that Peterson ever saw occupied trespasser, a boy was in law occupied by tiff within the area so, But, in the driver that status. even position in danger. Pie had in master’s subsequent prosecution formation of the likelihood of such event. boy duty using business in Neither fact nor of law fiction in injure after he not to him care reasonable negligence field charged is one with place in a to be known was discovered knowledge possessed not and which he is Quirk danger peril.” In v. of imminent not wrong in in any sense for not Co., involving supra, Metropolitan R. a St. possessing. knew Peterson neither nor as trespasser on year seven old discovered person a reasonable under the circum said, car, the court 210 S.W. loc. railroad stances of this case should he be held to knowledge of “Having had actual 105: cit. plaintiff might trespass know that into a plaintiff, and hav- impending danger to danger. prevent his in- ing failed to take means posi- knowing in a that jury after Nor can we characterize this act latter peril, servants were tion of trespass by plaintiff purely as trivial or defendant is lia- negligence, guilty technical, having bearing in as Artesian Ice & Cold In Daniel v. ble.” determining what defendant owed Co., Mo.App., 45 loc. S.W.2d Storage plaintiff. It occurred after “It said: is the law this the court cit. tightening Peterson finish watched the last person be a tres- though even state ramp, away truck onto move loaded servant actu- yet the defendant’s passer, tightening tool. and discard his It perilous position, ally knows curiosity plain- from motive then knowledge negligently in- with injured truck and was tiff leaned regarded will be him, the servant jures It was this act bar. of tres- the lowered disregard utter having acted placed him pass that person, and the master injured safety of the danger. injured. was there that he was Eddy, Brill also v. See liable.” bewill a direct causal relation There was between 488; Quirk Metro- 22 S.W. Mo. injury. Co., the resultant supra. it and R. St. politan *11 always event, any recovery. In It There will be close cases either bars it rule; probable severely present which hence liti test seems to me that gation, dissenting opinion unnecessarily expands disagreeing juries and extends and admittedly opinions. liability the Missouri tres- case doctrine of The instant presents passers question concerning sub- when such a close discussion is not neces- missibility. analysis sary we final to a Yet in our determination of this case. plaintiff can but has failed conclude that

present jury composed facts from which a find that defend

of reasonable men could servant, Peterson, through

ant breached its ordinary care which stated, plaintiff. neither Peterson As person under

knew as a reasonable nor presented here should the circumstances Missouri, Respondent, STATE of plaintiff might or he be held know that trespassed danger into a subject personal injury on the he was MOODY,Appellant. Mack C. ramp lowering by Peterson as No. 46472. Therefore, preparing was to leave. Supreme li duty and hence no Missouri,

was no breach of Court of ability. Division No. 1. May 12, 1958. purpose

Having this result reached con- reviewing would the other be served parties.

tentions above, judg- given

For the reasons is so ordered.

ment is affirmed. It

STORCKMAN, J.,P. concurs.

LEEDY, J., sitting.

EAGER, Judge (concurring in result

only). may

I feel that this case be decided simply upon question

much more

plaintiff’s negligence; negligence was defendant,

pleaded by question

briefed here as determinative of the may, opinion, prop- my

case. This necessity

erly adjudicated without the (a) whether

deciding: was a

trespasser; (b) whether defendant was my view

negligent. law, negligent as a matter of and that was, any event, negligence either injury of his or it negli- cause

the sole directly contributing injury.

gence