(Miss., 83 So. 730.) condition. The author is there dis- must be some casualty, something which could not be foreseen as one of the necessary incidents of the adventure. The purpose of the policy is to secure an indemnity against accidents which may happen, not against events which must happen." And, further: "Rule 7 of the Rules for Construction of Policy in the First Schedule of the Marine Insurance Act, 1906, declares that 'the term "perils of the seas" refers only to fortuitous accidents or casualties of the seas. It does not include the ordinary action of the winds and rotten hulk. Lord Mersey observes: "There was no weather, nor any other fortuitous circumstance, contributing to the incursion of the water; the water merely gravitated by it own weight through the opening in the decayed wood and so damaged the opium. It would be an abuse of language to describe this as a loss due to perils of the sea." The contention that the underwriters are estopped to deny that the barge was seaworthy presents a more debatable question, and one which, under our view of the vital and controlling issue, it is unnecessary to decide. In the opinion of the writer there is much difficulty in the way of applying the doctrine of estoppel in this case. It is in evidence that not only Anderson, but that Captian Larche approved the original specifications for the repairs, and that both Anderson and Fant believed the barge would be seaworthy when the contractor, Weaver, had done the work in accordance with these specifications. parties to the contract thought the It affirmatively appears that both barge would be seaworthy, and therefore it is not a case where the underwriters, with knowledge of the unseaworthy condition of the vessel, nevertheless admit that the vessel is seaworthy. How can appellee company waive a condition which it did not know to exist? Mr. Arnould, in 688, observes: "Whether the assured were ignorant of the unseaworthiness of the ship or not also makes no difference; if the ship was not, in fact, seaworthy at the outset of the adventure, either in the degree commensurate with her then risk, or for the voyage, as the case may be, that state of things never existed which was the foundation for the underwriter's promise, and he subsequently can never be bound thereby." used as a witness by either party, and there is evidence which tends to show that the repairs which Mr. Weaver did were not sufficiently substantial, and that the money paid to Weaver is a clear loss. This, under the issues, is appellant's misfortune. On the law and the facts the decree of the learned chancellor must be 'affirmed. Petition for rehearing denied. ANNOTATION. Inherent defect in vessel as affecting question whether loss is due to "perils of the sea" within policy of marine insurance. Although the question whether particular losses were caused by a "peril of the sea" has frequently been decided, and there are many cases involving a warranty of seaworthiness in a policy of marine insurance (see 14 R. C. L. pp. 1043, 1203), there are few decisions which determine the exact point decided in the reported case (GULF TRANSP. Co. v. FIREMEN'S FUND INS. Co. ante, 1307), as to whether the action of the elements on a vessel which is inherently unseaworthy constitutes a "peril of the sea." These decisions, however, all confirm the rule announced in that case, that a loss directly due to an inherent defect or unseaworthiness of a vessel is not within the meaning of the term "perils of the sea," as used in a policy of marine insurance. Thus, in Charles Clarke & Co. v. Mannheim Ins. Co. (1919) Tex. 210 S. W. 528, reversing (1913) Tex. Civ. App. —, 157 S. W. 291, it was said: "Loss or damage occasioned by natural deterioration or decay, or by ordinary wear and tear of the vessel, are not within the term 'perils of the sea.' . . . Whether expressed in the contract of insurance or carriage or not, there is an implied warranty that the vessel is seaworthy; that is, that she is so constructed, manned, supplied, equipped, and in such condition of repair, as to be able reasonably to perform the service in which she is engaged; from which it follows that any loss proximately caused by unseaworthiness of the vessel at the time of leaving port is not a loss by peril of the sea." So it was held in Thompson v. Hopper (1856) 6 El. & Bl. 172, 119 Eng. Reprint, 828, that a plea alleging that the plaintiffs sent the ship to sea in a state of unseaworthiness "at a time when it was dangerous for the ship to go to sea in the state and condition in which she then was;" and that they "wrongfully and improperly caused and permitted the said ship to be and remain on the high seas near to the seashore, for a great length of time, in the state and condition aforesaid," was a good defense to an action on a policy of marine insurance for loss occasioned by "perils of the sea." In West India P. Teleg. Co. v. Home & C. Marine Ins. Co. (1880) L. R. 6 Q. B. Div. (Eng.) 57, 50 L. J. Q. B. N. 41, 43 L. T. N. S. 420, 29 Week. Rep. 92. 4 Asp. Mar. L. Cas. 341, it was held that a loss occasioned by the bursting of a boiler was a peril not within the general term "perils of the sea." See, to the same effect, Miller v. California Ins. Co. (1888) 76 Cal. 145, 9 Am. St. Rep. 184, 18 Pac. 155. In Sassoon v. Western Assur. Co. [1912] A. C. (Eng.) 561, 81 L. J. P. C. N. S. 231, 106 L. T. N. S. 929, 17 Com. Cas. 274, 49 Scot. L. R. 1045, Ann. Cas. 1912D, 1037, it was held that where a cargo stored in a wooden hulk moored in a river was damaged by water percolating through a leak caused by the rotten condition of the hulk, the damage was not caused by a peril of the sea, within the meaning of a policy of marine insurance, but was caused by the unseaworthiness of the hulk, although the damage was proximately due to sea water. In The Gulnare (1890) 42 Fed, 861. a suit on a policy of marine insurance, the claim of the petitioner was re jected, the court holding that since the evidence disclosed that the vessel, almost immediately after starting on a return voyage, sprang a leak, she was unseaworthy, and the loss was not due to a peril of the sea. W. F. F. STATE OF MISSOURI EX REL. B. F. BUSH, Receiver of St. Louis, Iron Mountain, & Southern Railway Company, V. JOHN T. STURGIS et al., Judges. Missouri Supreme Court (Division No. 2) — March 13, 1920. (— Mo. 221 S. W. 91.) Railroad injury on highway crossing trespass in traveling tracks. 1. One injured by a railroad train while on a public highway crossing is not a trespasser, whether he reached the crossing by traveling the public highway or the railroad tracks. [See note on this question beginning on page 1322.] Appeal review of decision of court of appeals-scope. 2. Upon certiorari to review a decision of the court of appeals because it contravenes decisions of the supreme court, the power of the latter court is limited to determining whether or not the decision of the court of appeals discloses such conflict. difference in theory of case. 3. A mere difference in findings as to the conditions under which an accident arose between the trial and appellate courts does not warrant a quashing of the decision of the latter court on the ground of difference in theory of the case, unless the difference is such as to constitute an essential factor in determining the result. Evidence burden of showing liability of defendant. 4. If an injury may result from one of two causes, for one of which, and not for the other, the defendant is liable, plaintiff must show with reasonable certainty that the cause for which defendant was liable produced the result which may have resulted. Appeal 8. A decision cannot be reversed because based upon matters stated in the reply instead of in the petition, if the reply was given no other office by the court than to inform defendant of the facts which plaintiff intended to prove in rebuttal of the plea of con5. The manner in which one injured tributory negligence. theory of case difference in findings. PETITION for a writ of certiorari to review the record of the Springfield Court of Appeals, in a case against relator, which affirmed a judgment of the Circuit Court for Christian County (Stewart, J.) in favor of plaintiff in an action brought to recover damages for the alleged negligent killing of her husband. Writ quashed. The facts are stated in the opinion of the court. Messrs. J. F. Green and Barbour & McDavid, for relator: In disposing of the case on appeal, respondents have done so on a theory not presented below, and thus have aifirmed the cause on issues never presented to the trial court or jury by pleadings or instructions; which is not permissible. Brunswick v. Standard Acci. Ins. Co. Mo., 7 A.L.R. 1213, 213 S. W. 46; Degonia v. St. Louis, I. M. & S. R. Co. 224 Mo. 588, 123 S. W. 807; Chinn v. Naylor, 182 Mo. 595, 81 S. W. 1109; Deschner v. St. Louis & M. River R. Co. 200 Mo. 332, 98 S. W. 737; Mirrielees v. Wabash R. Co. 163 Mo. 486, 63 S. W. 718; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 369, 78 S. W. 579; Henry County v. Citizens Bank, 208 Mo. 226, 14 L.R.A. (N.S.) 1052, 106 S. W. 622. A plaintiff must recover, if at all, on the matters alleged in the petition, and may not eke out such petition by matters brought into the case by reply. Mathieson v. St. Louis & S. F. R. Co. 219 Mo. 552, 118 S. W. 9; Milliken v. Thyson Commission Co. 202 Mo. 654, 100 S. W. 604; Moss v. Fitch, 212 Mo. 502, 126 Am. St. Rep. 568, 111 S. W. 475; Hill v. Rich Hill Coal Min. Co. 119 Mo. 30, 24 S. W. 223. Crossing signals are for the benefit only of travelers on the public highway, and not for trespassers, and trespassers may not expect or depend upon signals, and they may not expect or depend upon headlights. Degonia v. St. Louis, I. M. & S. R. Co. 224 Mo. 592, 123 S. W. 807; Burger v. Missouri P. R. Co. 112 Mo. 246, 34 Am. St. Rep. 379, 20 S. W. 439; Frye v. St. Louis, I. M. & S. R. Co. 200 Mo. 407, 8 L.R.A. (N.S.) 1069, 98 S. W. 566; Bell v. Hannibal & St. J. R. Co. 72 Mo. 58; Maxey v. Missouri P. R. Co. 113 Mo. 11, 20 S. W. 654; Gurley v. Missouri P. R. Co. 104 Mo. 223, 16 S. W. 11; Evans v. Atlantic & P. R. Co. 62 Mo. 57; Ayers v. Wabash R. Co. 190 Mo. 237, 88 S. W. 608. Where a case has been tried and appealed, the opinion rendered by the appellate court on such an appeal becomes the law of that case for any subsequent trial, and is binding on the trial court, the parties in interest, and on the appellate court on any subsequent appeal. May v. Crawford, 150 Mo. 524, 51 S. W. 693; Benton v. St. Louis, 248 Mo. 102, 154 S. W. 473; Gracey v. St. Louis, 221 Mo. 5, 119 S. W. 949; Armor v. Frey, 253 Mo. 465, 161 S. W. 829; Southern Illinois & M. Bridge Co. v. Stone, 194 Mo. 184, 92 S. W. 475. Messrs. George Thornsberry, Hamlin & Hamlin, and Collins, Holladay, & Stough, for respondents: Deceased had a right to assume that defendant would give statutory signals and warn him of the approaching train. Kenney v. Hannibal & St. J. R. Co. 105 Mo. 270, 15 S. W. 983, 16 S. W. 837; Crumpley v. Hannibal & St. J. R. Co. 111 Mo. 158, 19 S. W. 820. The failure to ring the bell or sound the whistle makes a prima facie case for a jury. Byars v. Wabash R. Co. 161 Mo. App. 702, 141 S. W. 926; Kenney v. Hannibal & St. J. R. Co. 105 Mo. 270, 15 S. W. 983, 16 S. W. 837; King v. Missouri P. R. Co. 98 Mo. 235, 11 S. W. 563; McNulty v. St. Louis & S. F. R. Co. 203 Mo. 475, 101 S. W. 1082. There need be no proof that the failure to ring the bell or sound the whistle caused the injury. The law supplies that proof, and casts the burden upon the defendant to show that the failure to ring the bell or sound the whistle was not the cause of the injury. McNulty v. St. Louis & S. F. R. Co. 203 Mo. 477, 101 S. W. 1082; Huckshold v. St. Louis, I. M. & S. R. Co. 90 Mo. 554, 2 S. W. 794; Crumpley v. Hannibal & St. J. R. Co. 111 Mo. 152, 19 S. W. 820; Lane v. Missouri P. R. Co. 132 Mo. 4, 33 S. W. 645, 1128; Barr v. Hannibal & St. J. R. Co. 30 Mo. App. 248; Kerr v. Bush, 198 Mo. App. 607, 200 S. W. 672. The law presumes that deceased exercised due care for his own safety. Stotler v. Chicago & A. R. Co. 200 Mo. 146, 98 S. W. 509; Byars v. Wabash R. Co. 161 Mo. App. 702, 141 S. W. 926; Kerr v. Bush, 198 Mo. App. 607, 200 S. W. 672. Whether or not deceased should have stopped in approaching the crossing, in addition to looking and listening, was a question for the jury. Byars v. Wabash R. Co. 161 Mo. App. 708, 141 S. W. 926; Mayes v. St. Louis, K. & N. W. R. Co. 71 Mo. App. 140; Frank v. St. Louis Transit Co. 99 Mo. App. 323, 73 S. W. 239. Even if plaintiff had no positive evidence that no bell was rung or whistle sounded, and her sole evidence on this score was negative evidence, as against positive evidence on behalf of defendant, it would be for the jury to say whether it would take the negative (— Mo. —, evidence in preference to positive evidence. Johnson v. Springfield Traction Co. 176 Mo. App. 191, 161 S. W. 1193; State ex rel. Essex v. Kansas City, Ft. S. & M. R. Co. 70 Mo. App. 641; Milligan v. Chicago, B. & Q. R. Co. 79 Mo. App. 393. Whether the deceased negligently caused his death was solely a question for the jury. Lagarce v. Missouri P. R. Co. 183 Mo. App. 70, 166 S. W. 1063; Goff v. St. Louis Transit Co. 199 Mo. 694, 9 L.R.A. (N.S.) 244, 98 S. W. 49. Under the facts in this case, if plaintiff is entitled to anything, she is entitled to the full amount awarded her; and as to the amount of the verdict under this record, defendant is not at all injured. Hufford v. Metropolitan Street R. Co. 130 Mo. App. 644, 109 S. W. 1062; Parman v. Kansas City, 105 Mo. App. 691, 78 S. W. 1046; Wheeler v. Bowles, 163 Mo. 398, 63 S. W. 675; Haymaker v. Adams, 61 Mo. App. 581; Browning v. Wabash Western R. Co. 124 Mo. 55, 27 S. W. 644; Waddell v. Metropolitan Street R. Co. 213 Mo. 8, 111 S. W. 542; Minter v. Bradstreet Co. 174 Mo. 491, 73 S. W. 668; Smith v. Fordyce, 190 Mo. 32, 88 S. W. 679. The defendant should, if he desired, have asked for more definite and explicit instructions pointing out the proper element of damages, and excluding any improper element. Winston v. Lusk, 186 Mo. App. 381, 172 S. W. 76; Hawkins v. St. Louis & S. F. R. Co. 189 Mo. App. 201, 174 S. W. 129; O'Malley v. Musick, 191 Mo. App. 405, 177 S. W. 749; Rickards v. Kansas City, 181 Mo. App. 338, 168 S. W. 845; Nelson v. United R. Co. 176 Mo. App. 429, 158 S. W. 446; State ex rel. United R. Co. v. Reynolds, 257 Mo. 38, 165 S. W. 729; Lathrop v. Quincy, O. & K. C. R. Co. 135 Mo. App. 16, 115 S. W. 493; Gummerson v. Kansas City Bolt & Nut Co. 185 Mo. App. 16, 171 S. W. 959, 8 N. C. C. A. 907. The credibility of its eleventh-hour witnesess, Levert and Williams, was a question for the jury; and what the jury "bound" in the trial court will not be "loosed" in this court. Kerr, v. Bush, 198 Mo. App. 610, 200 S. W. 672; 16 Cyc. 1051; United States v. Ross, 92 U. S. 283, 23 L. ed. 707; Glick v. Kansas City, Ft. S. & M. R. Co. 57 Mo. App. 104; 1 Rice, Ev. p. 53, 34; Lawson, Presumptive Ev. p. 221 S. W. 91.) 569, Rule 118; Bird v. Sellers, 113 Mo. 580, 21 S. W. 91; Philadelphia City Pass. R. Co. v. Henrice, 92 Pa. 431, 37 Am. Rep. 699. Where the facts bearing on the issue are disputed, or are undisputed, but admit of different constructions and inferences (presumptions), it must be left to the jury to decide. Powers v. St. Louis Transit Co. 202 Mo. 280, 100 S. W. 655; Berry v. Missouri P. R. Co. 124 Mo. 223, 25 S. W. 229; Eckhard v. St. Louis Transit Co. 190 Mo. 593, 89 S. W. 602; Marshall v. Schricker, 63 Mo. 308; Ostertag v. Pacific R. Co. 64 Mo. 421; Mauerman v. Siemerts, 71 Mo. 101; Charles v. Patch, 87 Mo. 450; Tabler v. Hannibal & St. J. R. Co. 93 Mo. 79, 5 S. W. 810; Fletcher v. Atlantic & P. R. Co. 64 Mo. 484; Huhn v. Missouri P. R. Co. 92 Mo. 440, 4 S. W. 937; Roddy v. Missouri P. R. Co. 104 Mo. 234, 12 L.R.A. 746, 24 Am. St. Rep. 333, 15 S. W. 1112; Bell v. Hannibal & St. J. R. Co. 72 Mo. 50; Nagel v. Missouri P. R. Co. 75 Mo. 653, 42 Am. Rep. 418; Petty v. Hannibal & St. J. R. Co. 88 Mo. 306. Walker, J., delivered the opinion of the court: Certiorari to the Springfield court of appeals to review the record of that court in the case of Susie E. Kerr against Bush, receiver of the St. Louis, Iron Mountain, & Southern Railway Company, for damages for the killing of her husband through the negligence of that company. Upon a trial before a jury a verdict was rendered in her favor in the sum of $3,500. From this finding an appeal was perfected to the Springfield court of appeals, which affirmed the judgment of the trial court (Mo. App. 215 -9 S. W. 393). We are asked to quash the record of the court of appeals on the ground that its ruling contravenes certain decisions of this court. I. The limit of our review is the opinion of the court of appeals. If it does not disclose a conflict with Appeal-review the former rulings court of appeals of this court, then of decision of -scope. our power of superintendence is at an end. State ex rel. United R. Co. v. Reynolds, 257 Mo. 19, 165 S. W. 729; State ex rel. Dunham v. El |