Referring to. the facts stated by our learned associate, the Presiding Judge, in the opinion tendered by him for adoption by the court: I find myself wholly unable to concur in the conclusions of law pronounced upon these facts. The view I have taken of this case and the doctrine of the opinion tendered may be properly presented in a memorandum as follows:

I am persuaded that it was proper to send the case 'to the jury. The girl testified that while she knew the areaway was there, she had not noticed it was so close to the door, and it was not such a place as a person of ordinary prudence would not go near. The opinion holds that the plaintiff should be declared guilty of contributory negligence as a matter of law for the reason the girl knew of the areaway. Now the mere fact of knowledge touching a danger of this kind is not .of itself sufficient to operate negligence as a matter of law. This idea runs through all the decided cases in this State, as I understand them. Indeed, it has been expressly decided in a case where a lady walked off an embankment and it appeared she was familiar therewith. It is said in that case that the mere fact a person had previous knowledge of a defect or hole in the ground is not conclusive evidence of negligence if she afterwards walked into the same. The fact should be submitted to the jury with the other evidence, for them to ascertain whether the party exercised that degree of care which would be exercised by an ordinarily prudent person under the circumstanced. [See Smith v. St. Joseph, 45 Mo. 449.]

And this too is the doctrine of the case of Buesch [*545] ing v. St. Louis Gas Light Co., 73 Mo. 219, cited in the opinion. I do not understand that portion of the Buesching case quoted by Judge Reynolds to be the doctrine of that case; that is, the nub of the case. The portion relied upon in the present instance as pointing this plaintiff guilty of contributory negligence as a matter of law, is where Judge Hough says in the Buesching case, as follows: “So that if it were essential in order to sustain the demurrer to the evidence, that it should appear to the court at the conclusion of plaintiff’s case that the deceased had knowledge of the opening in question, inasmuch as such knowledge could only appear by way of inference in favor of the defendant from facts which were proven, the demurrer could not be sustained.” Now the opinion reason's as though Judge Hough implied by these remarks that if it appeared plaintiff had knowledge of the opening she co,uld not recover. In fact, those remarks were only preliminary and did not purport to state the law of the case. The law of the Buesching case on the question of prior knowledge of the opening, is stated on top of page 232. In discussing the question of a defect or nuisance in or near a highway, and what influence prior knowledge on the part of the plaintiff should have in such case, Judge Hough states the law on page 232, as follows: “In the latter case, no person is required to abandon a convenient or customary route of travel in a city because of dangerous excavations near the highway, unless the use of the way under such circumstances would be inconsistent with the exercise of reasonable and ordinary care. [Barton v. Springfield, 110 Mass. 131; Snow v. Provincetown, 120 Mass. 580.] And a traveler, if injured thereby, may recover, notwithstanding his knowledge of the existence of the nuisance, provided he was at the time using ordinary care. [Smith v. City of St. Joseph, 45 Mo. 499; Thompson on Negligence, p. 1203, 4, 5, 6, secs. 52 and 53; Shearman [*546] & Redfield on Neg. sec. 414.]” It therefore appears that the Bnesching case approves the doctrine of Smith v. St. Joseph, 45 Mo. 499, and that it asserts the doctrine that mere knowledge of itself is not sufficient to charge a party with contributory negligence. In fact, this doctrine runs through all of the cases on the law of negligence, as I understand it. And at page 233, Judge Hough, in speaking of the fact that if Buesching knew of the areaway in the sidewalk, says: “The law is that the deceased was guilty of negligence” if he knew it and did not avoid it, “provided he could have avoided it by the exercise of ordinary care.” The result of the authority is, then, as I understand it, this: that knowledge of the areaway is not sufficient to charge the plaintiff with contributory negligence as a matter of law. Therefore, the only question for determination is whether plaintiff would have avoided falling into it by exercising ordinary care on her part. I think that question, in view of the situation, and in view of the plaintiff’s testimony that she did not notice the areaway Avas so close to the door, under the circumstances surrounding the case, ought to be decided by a jury. The circumstances which more or less influence this conclusion, are: first, that the areaway was not a place of imminent and great danger; that is, it was an ordinary affair about Avhich and near which persons of ordinary prudence frequently go. In this respect, the case is distinguishable from those which present imminent and threatening dangers which all persons of ordinary prudence know are likely to entail injuries. For instance, if this were a coal shaft fifty or one hundred feet deep and unprotected, I Avould say that a person was guilty of contributory negligence as a matter of law for thus inattentively moving about it. But as it was only a small areaway, about which people move or go, it does not present that feature of glaring and imminent danger which is essential under our decisions to infuse the element of negligence as a matter of law. [*547] For the distinction which obtains with respect to declaring negligence as a matter of law and a question for the jury, see Garaci v. Hill-O’Meara Const. Co., 124 Mo. App. 709; Huhn v. Mo. Pac. Ry. Co., 92 Mo. 446, 447. This was not a place of great and imminent dangers, bnt it was an ordinary affair about which prudent persons moved with more or less carelessness believing it safe to do so. If the danger is one which a prudent person will move about, believing that by the exercise of even great care they are safe in so doing, the question is for the jury. [See Huhn v. Mo. Pac. Ry. Co., 92 Mo. 477.]

Since writing the foregoing memorandum, Judge Goode has directed me to note him as concurring in the view therein expressed, and suggested that it be filed as the opinion of the court.

As to the other arguments in the brief, it is sufficient to say that we have examined the questions presented and do not find sufficient error in the record to warrant a reversal. In this connection, we invite attention to our statute (sec. 865, R. S. 1899, sec. 865, Mo. Ann. St. 1906), providing as follows: “The Supreme Court, or courts of appeals, shall not reverse the judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action.” Judge Goode concurring, the judgment will be affirmed.

Judge Reynolds is of the opinion the decision is in conflict with the opinion of the Supreme Court in Buesching v. St. Louis Gas Light Co., 73 Mo. 219. It is therefore ordered that the cause be transferred to that court for final determination.

dissenting (after stating the facts). — Probably the case nearest in line with this, so far as the principle of law controlling cases of this kind is concerned, is the case of Buesching v. The St. Louis [*548] Gaslight Company, referred to and relied upon by counsel for appellants as decided by this court (6 Mo. App. 85), and relied on by counsel for respondent, as decided by our Supreme Court (73 Mo. 219) . When the case was before the Court of Appeals, that court held that the facts in, it raised a presumption of negligence on the part, of the deceased which precluded a recovery. On appeal to the Supreme Court, the judgment of the Court of Appeals was reversed. Judge Hough, who delivered the opinion, said (73 Mo. 219, 1. c. 229): “It has been repeatedly decided by this court that it is not incumbent upon the plaintiff, in the first instance, to show that he was free from negligence, or in the exercise of ordinary care at the time of receiving the injury complained of, but that the concurring negligence of the plaintiff is a matter of defense, and the burthen of showing it is, therefore, upon the defendant. If, however, it appears without any conflict of evidence from the plaintiff’s own case, or from the cross-examination of his loitnesses, that he was guilty of negligence proximately contributing to produce the injury, it would be the duty of the court to talce the case from the jury, by declaring as a matter of law, that the plaintiff cannot recover.” We know of no better declaration of the law on the subject as applicable to cases of this kind than the foregoing, and it has never been questioned or disturbed by any decision in this State. Like the case at bar, the accident occurred in consequence of an open area or cellarway on a public thoroughfare. The case differs from the one at bar, however, in this, that the husband of plaintiff in the Buesching case was found lying at the bottom of the areaway dead; no one saw him fall; no one knew how long he had lain there; there was even a suggestion that he might have been murdered and thrown there; the theory of homicide, however, being held by the court to be untenable from the fact that his personal effects were found on the body of the deceased and every surface indication tended [*549] to show that he had met his death by falling down into the open area, and knowledge by deceased of the open area rested entirely on presumption. How the accident occurred was left entirely to presumption and conjecture. The Court of Appeals held the presumptions under the facts led to the conclusion of negligence on part of the deceased. This was denied by the Supreme Court. In the case at bar, it is not necessary to resort to presumption. The actual facts of the accident are in evidence.

In the Buesching case the cellarway was an open space on the street, without any protection whatever around it or on either side. In the case at bar the area was open only at one end, and that open end not toward the alleyway, but on the side of the wall, the roadway, passage or space six feet and three inches wide between its rail and the opposite wall, so that persons passing up and down the alleyway were in no 'danger whatever of falling into this open space. To get into or fall into this area, one would have to go out of their way, unless coming out of or going into the store. It was not on the line of travel of persons coming in from the Cardinal avenue entrance, and would not even be on the line of travel of those coming out of the doorway of the grocery unless they turned toward it, instead of going straight out into the alleyway. That is to say, it was not on the usual path of passage or travel through the alleyway. Therefore, in this respect it differs radically in position from the open area in the Buesching Case. After stating the facts in evidence, Judge Hough continues: “In passing on a demurrer to the evidence, the court is required to make every inference of fact in favor of the party offering the evidence, which a jury might, with any degree of propriety, have inferred in his favor, and if, when received in this light, it is insufficient to support a verdict in his favor, the demurrer should be sustained. [Wilson v. Board of Education, 63 Mo. 137.] But the court is not at liberty, [*550] in passing on such demurrer, to make inferences of fact in favor of the defendant, to countervail or overthrow either presumptions of law or inferences of fact in favor of the plaintiff; that would clearly be usurping the province of the jury. So that if it were essential, in order to sustain the demurrer to the evidence, that it should appear to the court at the close of plaintiff’s case, that the deceased had knowledge of the opening in question, inasmuch as such knowledge could only appear by way of inference in favor of the defendant from facts which were proven, the demurrer could not be sustained.”.

Applying this to the case at bar and drawing the inferences and conclusions from it, which are so plainly deducible and unmistakably follow, we have in the case at bar the very facts, by uncontradicted evidence, that were absent in the Buesching Case, and which facts, if present in the Buesching Case would have resulted in withdrawing the case from the jury. In the case at bar, the plaintiff herself admits that she knew of the cellarway, or area; she knew that it was unprotected; she had gone past it hardly an instant before, gone over by exactly the same route and, unmindful of the proximity of the opening, she has walked or backed into it, her only explanation being that she had not realized that it was so near. This will not do, and if I understand the law announced in the Buesching Case would have warranted, even compelled, the trial judge to have taken the case from the jury. Plaintiff should not be allowed to shift on to the defendants the responsibility for her carelessness.

Smith et al. v. City of St. Joseph, 45 Mo. 449, is relied on by my learned associates as particularly in point in support of the view they take of this case. Reading that case will show that the facts in it are in no manner analogous to those in the case at bar. In that case, plaintiff with knowledge of the existence of the excavation, tried to avoid; in this case, plaintiff with [*551] knowledge of the open area carelessly and negligently stepped into it. There is no possible analogy between the facts in the two cases. The use of expressions in the Smith Case as applicable to this case fairly illustrates the danger of the application of a correct principle to entirely different facts. The same remark applies to the application made by my learned associate of the Buesching Case. My learned associate appears to reason on the theory that because Buesching fell into an open areaway, and the defendants were held liable, that the plaintiff in this case falling into an open area, therefore the defendants are liable, and that because the Supreme Court held in the Buesching Case that a demurrer to the evidence should not have been sustained, that it would be error in this case to sustain the demurrer.

That reasoning, I respectfully submit, destroys and is directly contrary to the rule announced by the Supreme Court, through Judge Hough, in the Buesching Case. To put it briefly, there was no evidence in the Buesching Case, that Buesching knew of the presence of the open area; that knowledge had to be presumed; there was no evidence as to how he fell into the area; that had to be presumed. The court held that if the positive and uncontradicted facts showed knowledge of the dangerous opening and that by his own negligence or carelessness Buesching was killed, the case should have been taken from the jury. But if knowledge and acts amounting to carelessness had to be presumed from the mere fact of the fall, then carelessness could not be presumed because the facts on which it might be predicated, rested on mere presumption and not on evidence. My contention therefore is that my learned associates, in allowing the verdict of the jury to stand in this case, and in holding that the case should not have been taken from the jury, have disregarded the principle underlying all the cases, and taking the law to be as stated by Judge Hough in the [*552] Buesching Case, have gone contrary to the last controlling decision of the Supreme Court. Of course any quantity of cases can be cited where the court holds a case should go to the jury. None of the cases referred to overrule the rule of law announced by Judge Hough, as to when a case should be taken from the jury. This case illustrates the danger of following what is sometimes referred to as “case law;” that is to say, looking to the decision in a particular case, rather than to the underlying principle. When the Supreme Court announces a rule, as a jumciple of law, we are bound by it. When it applies that principle in a given case and reaches a certain result, we are not bound to apply it in another case, to reach a like result, unless the very facts in the case before us are “on all-fours,” as it is aptly said, with the case before us, that is, are so nearly analogous as to bring the. cases in line. Applied to the facts in this case, I contend that the rule laid down in the Buesching Case as to when a case should be taken from the jury is controlling and as applied to the facts in this case must result in a reversal.

While recognizing as the law, that it is the province of the jury to pass on the evidence and that their ver-, diet is usually binding on the courts, there is the grave and ever present obligation resting on the trial as well as appellate courts, to determine whether. the case should go to the jury at all.

Moreover, it is the duty of the appellate as well as of the trial court to see to it that in and by their verdict, the jury have followed the direction of the trial judge, and are supported in or have evidence before them warranting the verdict. In this case, I am so clearly of opinion that the jury not only had no evidence warranting their verdict, but that they disregarded the instructions as to contributory negligence of plaintiff barring her recovery, that I do not think it should be permitted to stand. The jury were told that if they-believed from the evidence, “that the plain [*553] tiff knew, or by the exercise of ordinary care on her part, sbe would have discovered, prior to said accident, that the areaway or stairway described in the evidence was partly unprotected and unguarded, then the plaintiff cannot recover and your verdict must be for the defendants, even though you may believe that plaintiff was injured by falling into said stairway;” and “that the plaintiff was bound to exercise ordinary care for her own safety. If you find from the evidence that plaintiff did not exercise ordinary care for her own safety, and that such failure of plaintiff to exercise ordinary care for her own safety, if any, contributed to cause the injuries of which plaintiff complained, then the plaintiff cannot recover, and your verdict must be for the defendants.”

There was no dispute, no contradictory testimony, over the fact that plaintiff knew of this opening; that she backed or stepped into it, not remembering or realizing, as she says, that it was so close to the door. Her own testimony, to my mind, proves that she came within these two instructions, and should not recover. That being so, I am clearly of opinion not only that the law as announced by Judge Hough in the BueSching Case comes into play, and that the court, in refusing to take the case from the jury, acted in disregard of that rule of law and that in affirming this judgment we are in direct conflict with it, but also that the verdict is contrary to the instructions given, and should have been set aside for that, if for no other reason.

Furthermore, as going to the absolute justice of the case, we should not overlook the fact that plaintiff was where she had no business to be on the evening of the accident. It was Sunday evening, about dusk; the store was closed, as it should have been. Two or three people were sitting inside talking. Plaintiff insisted on being admitted, to buy oysters, she says, but when she got in she forgot what she was sent for and [*554] turned back to find out from her employer, when she stepped into the area.

Nor is there any proof that defendants had any occasion to consider the open area dangerous. They were landlords, not tenants in possession, and that they should be mulcted in heavy damages under the facts in this case, seems to me very unjust. They have every right to. demand that plaintiff should prove herself free from careless negligence before they are called upon to respond.

Another proposition in the case, in my opinion, calls for reversal.

There were certain photographs in evidence, showing the area and alleyway. Admittedly they were taken after the accident. On one of them hinges, as of a gate, appeared on the post at the side or open end of the area. It was conceded at the trial that no gate had ever been across this end prior to the accident. The court in an instruction, told the jury that they should disregard all evidence, if any, of. any gate having been placed on the stairway — that evidence of repairs or alterations made after the accident, is not competent evidence of any negligence on the part of defendants.

In the face of this, counsel for plaintiff, in his closing address to the jury, with the photograph in his hands, said: “Are there — in this picture, sworn to, brought here by them — are there or are there not hinges on that upright there? Don’t you see there are?” Counsel for defendant checked counsel for plaintiff and, calling the court’s attention to the remark, asked the court to check and correct counsel, whereupon the court said: “The court declines to correct counsel in his argument with reference to the photograph.” Exception was duly saved. I think this reversible error.

On the whole case, I think the judgment should be reversed, without a remander of the case, on the refusal of the court to take the case from the jury, and that my learned brothers, in holding to the contrary are in [*555] conflict with the decision of the Supreme Court in the Buesching Case. I therefore request that this cause be certified to the Supreme Court.