Heinbach v. Heinbach. FARIS, J. (concurring)-I concur in the result reached in this case, but I do not agree that either a lay witness, or an expert witness, may express an opinion as to the quantum of the alleged insanity with which the person whose 'mental condition is the subject of the judicial inquiry, is, or was afflicted. That is, such a witness will not be permitted to say that the insanity of the testator was such as to destroy his testamentary capacity, or to render the testator incapable of comprehending and understanding the several elements by which such capacity is tested. Conversely, the witness will not be permitted to say that the testator was mentally capable of making a will, or that he comprehended and understood the specific elements mentioned in the questions propounded. I put my concurrence touching this point upon the ground that the objection made, upon this specific phase, to the introduction of this erroneous testimony was not sufficiently explicit to call the attention of the trial court to the vice thereof. A witness is not to be permitted to express an opinion upon the questions directly in issue, and thus invade the province of the jury. Herein, it was for the jury to find whether the testator had sufficient memory and mental capacity to comprehend who his children were, to understand the nature and extent of his property and to know to whom he desired to give it. [Deiner v. Sutermeister, 266 Mo. 1. c. 522; State v. Klinger, 46 Mo. 224; Kane v. Railroad, 251 Mo. 13; Castanie v. Railroad, 249 Mo. 192; 17 Cyc. 238; Thomasson v. Hunt, 185 S. W. 1. c. 167; May v. Bradlee, 127 Mass. 414; Runyan v. Price, 15 Ohio St. 1; Schneider v. Manning, 121 Ill. 376; Marshall v. Hanby, 115 Iowa, 318.] The comprehension inquired about and the capacity to know and understand the nature and extent of a testator's property and to whom testator desires to give it are chief among the ultimate tests of testamentary capacity, and these elements comprised practically the whole of the issues required to be found by the triers of fact. McMiens v. United Railways. It must be conceded, of course, that broadly, the issue of insanity vel non in a will contest, is one of the issues to be passed on by the triers of fact, and that the opinion which the law permits a lay witness to give touching this issue ordinarily constitutes an invasion of the jury's province. But the practice of offering such opinions is now firmly fixed and well settled. We excuse such an invasion of the jury's province by limiting the opinion of the witness to the fact of insanity; leaving to the jury to find the quantum thereof, and whether such quantum is sufficient to destroy the testamentary capacity of the testator. In my opinion the questions asked violated the rule stated, and the answers thereto would have constituted reversible error if the point had been preserved by a proper objection. I concur in the result therefore. Walker, P. J., and Williams, J., concur in these views. MRS. S. E. McMIENS, Appellant, v. UNITED RAILWAYS COMPANY OF ST. LOUIS. Division Two, April 26, 1918. 1. NEGLIGENCE: Custom: Stopping Car. A pedestrian who attempted to cross the track in front of an approaching street car, on the theory that it would stop before it reached the path which skirted the platform and along which she was hurrying for the purpose of boarding the car, must produce evidence that it was customary for the car to stop before projecting its front end into the path, in order to recover for the injuries received when it struck her; and to establish a custom that cars stopped before reaching the path it must be shown to have been general, uniform, certain and notorious, known to her or so general and universal that knowledge will be presumed. 2. : : : Intention to Stop. Even though it was customary for street cars, in stopping for passengers at a certain 3. McMiens v. United Railways. platform, to stop before they reached a certain path crossing the track, along which path a pedestrian was hurrying in order to board an oncoming car and was struck, she cannot recover if there was no one on the platform and there is no evidence that the car was intending to stop at the point at all. -: Humanitarian Doctrine: Anticipation. There is no room for the humanitarian doctrine in a case, in which a pedestrian seeks to recover for injuries received as she was attempting to cross the track in front of an oncoming street car, if there was no reason to anticipate that she would get too close to the track. Appeal from the St. Louis City Circuit Court.-Hon. Wilson A. Taylor, Judge. AFFIRMED. Fauntleroy, Cullen & Hay for appellant. (1) It was error to give defendant's instruction numbered 2. (a) Plaintiff had a right to presume that the motorman would stop the car, as such cars were customarily stopped, and that he would not allow it to be run beyond the platform so as to endanger her. Scott v. Met. St. Ry. Co., 138 Mo. App. 201; Percell v. Railroad, 126 Mo. App. 44; Lawson v. Met. St. Ry. Co., 40 App. Div. 307; Frank v. Met. St. Ry. Co., 58 App. Div. 100; Zimmerman v. Union Railway Co., 3 App. Div. (N. Y.) 219; Brozek v. Steinway R. Co., 10 App. Div. (N. Y.) 360; Dunican v. Union R. Co., 39 App. Div. (N. Y.) 497. (b) By instruction numbered 2, the jury are told that if she knew the car was approaching (wherever it was and however it was, and although she was entitled to presume it would stop, before reaching the east end of the platform), then as a matter of law plaintiff was negligent in getting on the track at all. This is palpable and fatal error. Laurent v. United Rys., 191 S. W. 992. (2) error to give instruction numbered 3, which told the jury that if she knew the car was approaching and could by the exercise of ordinary care have remained off of the track, then she was not entitled to recover. McMiens v. United Railways. As to this unique, ludicrous, but fatally harmful, instruction, the doctrine of res ipsa loquitur should apply. The thing (certainly) speaks for itself. (3) It was error to give the instruction on the credibility of witnesses here, where there was not only no effort at impeachment, but no contradiction of any witness. Keeline v. Sealy, 257 Mo. 498; Price v. Bldg. Co., 191 Mo. App. 404. T. E. Francis and Thomas Bond for respondent. (1) The demurrer to the evidence should have been sustained. (a) Because there being no duty on the part of respondent to stop the front end of the car at any particular point, there was therefore no negligence in running same beyond the east end of the platform. (b) Because the evidence is insufficient to establish a custom to stop the front end of the car west of the east end of the platform, so general, uniform, certain and notorious as to constitute a rule of conduct upon which appellant could rely in knowingly going in front of a moving car. Shields v. Sub. Belt Ry. Co., 87 Mo. App. 643; Percell v. Railroad, 126 Mo. App. 53; Pankey v. Railroad, 180 Mo. App. 199. (c) Because there is no evidence that under the last-chance doctrine respondent's motorman saw appellant in a place of danger in time to have stopped the car, or otherwise have avoided the accident. Keele v. Railroad, 258 Mo. 79; Paul v. Railroad, 152 Mo. App. 783; Zurfluh v. Railroad, 46 Mo. 642; Boecker v. Railroad, 240 Mo. 521; Hamilton v. Railroad, 250 Mo. 722; McGee v. Railroad, 214 Mo. 531; Roenfeldt v. Railway, 180 Mo. 564. (d) Because appellant was herself negligent and her negligence directly contributed to her injury. Paul v. Railroad, 152 Mo. App. 586; Cole v. Railway, 121 Mo. App. 610; Gunn v. Belt Ry. Co., 141 Mo. App. 314; Green v. Railroad, 192 Mo. 142; Holland v. Railroad, 210 Mo. 350; Slotler v. Railroad, 204 Mo. 640; McCreery v. United Rys., 221 Mo. 31. (2) Errors in instructions are harmless where a demurrer to the evidence should McMiens v. United Railways. have been sustained. Trainer v. Mining Co., 243 Mo. 359. ROY, C.-Plaintiff sued for damages for personal injuries. The verdict and judgment were for defendant, and plaintiff has appealed. The accident occurred at the intersection of Manchester and Tamm Avenues in St. Louis. Defendant has double tracks at that point, the south track being the east-bound. South of that track is a passenger platform, with its east end about the west line of Tamm Avenue. The latter street is not opened south of that point, except by a pathway leading across a footbridge over the river Des Peres to residence territory beyond. That path strikes the defendant's track just east of the platform, the exact distance not being shown. As it turns west to the platform it passes alongside the defendant's track in close proximity thereto. To what extent that path from the south is used by people passing across Manchester Avenue is not shown. From five hundred to a thousand passengers use that platform in a day. The plaintiff, in company with two grand-daughters, who were about twelve years old, came from the south along that path, and seeing defendant's car approaching from the west, hurried to catch it. One of the children rushed upon the platform. Plaintiff was just turning west toward the platform when the car hit her, she evidently having got a little farther north than was safe. So far as we can ascertain from the evidence the path to the platform ran between a telephone pole and the track, there having been about thirty inches between the pole and the side of the car. It does not appear that there were any other persons waiting there for the car at that time. Mr. Fish, a son-in-law of plaintiff, testified that he had previously waited there for the car about a dozen times, and had frequently traveled on that line, and that, about four months after the accident, he staid there |