Martin v. St. Louis-S.F. Ry. Co., 250 S.W. 1023; Avance v. Thompson, 55 N.E.2d 57, certiorari denied 323 U.S. 753, 89 L.Ed. 603; Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq. (2) The opinion of this court on the first appeal of this case should not be adhered to, because the court erred in the principles of law declared and inadvertently overlooked material testimony of plaintiff in the nature of admissions that he may have bumped into the doors and caused them to fall. Maxie v. G.M. O. Rd. Co., 202 S.W.2d 904; Federal Employers' Liability Act, 45 U.S.C.A., sec. 51 et seq.; Dunn v. Alton R. Co., 104 S.W.2d 311; Hogan v. Kansas City Pub. Serv. Co., 19 S.W.2d 707; Bird v. Sellers, 26 S.W. 667; McNatt v. Wabash Ry. Co., 108 S.W.2d 33; Davidson v. St. Louis-S.F. Ry. Co., 256 S.W. 169; Mangold v. Bacon, 141 S.W. 650. (3) On the first appeal of this case the court inadvertently misinterpreted the 1939 amendment to the Employers' Liability Act. The amendment was added to cover employees who constantly shift from interstate service to intrastate service.

(1) Plaintiff's testimony as to the manner in which the accident happened is contrary to physical facts and natural law and will not support the verdict. Carner v. St. Louis-S.F. Railroad Co., 89 S.W.2d 947, 338 Mo. 257; Dunn v. Alton Railroad Co., 340 Mo. 1037, 104 S.W.2d 311; Daniels v. Kansas City Elevated Ry. Co., 177 Mo. App. 280, 164 S.W. 154; Mahl v. Terrell, 342 Mo. 15, 111 S.W.2d 160; Sexton v. Met. Street Ry. Co., 245 Mo. 254, 149 S.W. 21. (2) Plaintiff failed to show defendant guilty of any negligence that caused his injury. There was no evidence of probative value that there was an unusual movement of the streetcar. Elliott v. Chicago, M. St. P. Ry. Co., 236 S.W. 17; Guffey v. Hannibal St. Joseph Railroad Co., 53 Mo. App. 462; Hawk v. Chicago, B. Q. Railway Co., 130 Mo. App. 658, 108 S.W. 1119; Hedrick v. Mo. Pac. Ry. Co., 195 Mo. 104, 93 S.W. 268. (3) There was no evidence that the operator knew that the plaintiff had left his seat and was in a position standing by an open window, but the evidence was to the contrary.

(1) The only evidence in the record to support a finding of causal connection between any act or omission of the appellant and the explosion was the opinion of the expert witness Alfred Benberg which was incompetent and inadmissible. State ex rel. Kansas City So. Ry. Co. v. Shain, 340 Mo. 1195, 105 S.W.2d 915; Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311; Boyd v. Logan Jones Dry Goods Co., 340 Mo. 1100, 104 S.W.2d 348; Iman v. Walter Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Sisk v. Chicago, B. Q.R. Co., 67 S.W.2d 830. (2) If it be conceded for the sake of argument that the record discloses the explosion was caused by gas escaping from appellant's line, still the record, discloses no actual knowledge on the part of appellant and no facts which would charge it with constructive knowledge that gas was escaping into respondent's basement and without such knowledge it cannot be charged with negligence.

(1) Respondent's evidence that the sudden and violent stop of the train while moving south threw him north over the rear end of the train is directly in conflict with well known physical laws, and is therefore wholly insufficient to make a prima facie case. Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311; Daniels v. Kansas City Electric R. Co., 177 Mo. App. 280. (2) Respondent's evidence is wholly insufficient to establish that the stop was unusually sudden or violent.

Rollison v. Wabash Ry. Co., 252 Mo. 541, 160 S.W. 994; Sullivan v. Gideon N.I. Ry. Co., 271 S.W. 983; Goodson v. Schwandt, 300 S.W. 795; Burge v. Wabash Ry. Co., 148 S.W. 925. (3) Oral testimony that obstructions prevent one from seeing approaching trains on defendant's track is contrary to the physical facts and common knowledge, and cannot be accepted as substantial evidence. Kansas City S. Ry. Co. v. Shain, 105 S.W.2d 915, 340 Mo. 1195; Dunn v. Alton Railroad Co., 104 S.W.2d 311, 340 Mo. 1037. (4) Oral testimony that proximity of the Illinois Central to defendant's track makes view of trains and signals indistinguishable is contrary to the physical facts and common knowledge, and cannot be accepted as substantial evidence. Kansas City S. Ry. Co. v. Shain, 105 S.W.2d 915, 340 Mo. 1195; Dunn v. Alton Railroad Co., 104 S.W.2d 311, 340 Mo. 1037. (5) The humanitarian or last chance doctrine does not obtain in Illinois.

" Thus "if a mistake of fact has been made on the first appeal, or the decision on said appeal is an injustice to the rights of the parties, correction will be made on the second appeal." [Dunn v. Alton Railroad Co., 340 Mo. 1037, 104 S.W.2d 311.] Moreover, the Court of Appeals had discretion to remand the case for another trial where plaintiff had tried the case on an erroneous theory, or even if there had been a defect in plaintiff's case, if it had appeared from the record that evidence might be available to make a case on the correct theory or to apply the defect. [Markley v. Kansas City Southern Railroad Co., 338 Mo. 436, 90 S.W.2d 409; Myers v. Union Electric Light Power Co., 334 Mo. 622, 66 S.W.2d 565.

The court committed no prejudicial error in permitting counsel for plaintiff to cross-examine defendant's witness Reddish of and concerning his report of the accident that he made in his line of duty as a police officer. 28 R.C.L., sec. 186 p. 596; 2 Wigmore on Evidence (2 Ed.), sec. 753, p. 32, sec. 762, p. 42; 70 C.J., sec. 816. p. 650; State v. Miller, 234 Mo. 588, 137 S.W. 890; Morris v. United States, 149 F. 123; Fuller v. Robinson, 230 Mo. 22, 130 S.W. 354; Steinberg v. Merchants Bank, 67 S.W.2d 68; Dunn v. Alton Railroad Co., 88 S.W.2d 228; State v. Ehlers, 119 A. 15, 25 A.L.R. 1003; Atchison, T. S.F. Ry. Co. v. Hays, 54 P. 322; Brown Co. v. Canty, 161 A. 91, 83 A.L.R. 804.

In Point III appellant contends the verdict in favor of Dudecks and Courters is against the weight of the evidence because it is contrary to the physical facts and the credible evidence in the case in that the testimony of Dudeck and Courter that land formed by building out from their high bank and that there never was an island or slough north of their land was shown to be false by their own witnesses, Riddle and Eblen, by Ellis's witness Lowe, and by some eight witnesses who testified as to conditions in Belmont Bend through the years. The gist of the argument is that plaintiff's evidence does not overcome a prima facie case made by the issuance and recording of the patent, and that the testimony of Earl Dudeck and William E. Courter is contrary to physical facts and to exhibits in evidence identified by plaintiffs' witness Riddle, Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885, 888, Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311, 314[1, 2], and should not, therefore, be accepted as substantial evidence. The transcript indicates that respondents have taken the position throughout that there was no island at the location mentioned in Ellis's patent; that Ellis could receive nothing by his patent but a mere recital of title because Buchanan County had nothing to convey; and that the quiet title action was to clear such cloud from their title to accretions.

In argument, appellants further attack the testimony of Betz as having observed blood in the water in an area five to ten yards across in the wash of the Tuscumbia at the place he dived into the water in an effort to recover Kiburz' body. Appellants argue that testimony is "too unreasonable to pass muster"; and that Betz, in testifying that Kiburz was able to rise to the extent mentioned in a calm, undisturbed, freshwater lake by treading water with skis on and wearing no life preserver, has ascribed to Kiburz "super-natural power" and the testimony was inherently worthless and no case was made for the jury. Appellants cite Weltmer v. Bishop, 171 Mo. 110, 71 S.W. 167, 169, 65 L.R.A. 584; Sexton v. Metropolitan St. R. Co., 245 Mo. 254, 149 S.W. 21, 25(4); Rose v. Thompson, supra; Clark v. Atchison Eastern Bridge Co., 333 Mo. 721, 62 S.W.2d 1079, 1081; Dunn v. Alton R. Co., 340 Mo. 1037, 104 S.W.2d 311, 314; Benton v. St. Louis-San Francisco R. Co., Mo.Sup., 182 S.W.2d 61, 63 (4); Lohmann v. Wabash R. Co., 364 Mo. 910, 269 S.W.2d 885, 891(1-4) and other cases. They do not aid appellants under the facts of this record. It is clearly apparent that the testimony which the appellants consider to be "inherently incredible" and contrary to what appellants refer to as the "incontrovertible physical facts rule" does not support the conclusion which appellants seek to draw, nor the position they have taken on this appeal. The testimony attacked is not essential in any respect to the making of a submissible case for the plaintiff, but would go only to the credibility, weight and value of Betz' testimony.

Oral testimony at variance with the physical facts will be disregarded. Carner v. St. Louis-S.F. Ry. Co., 89 S.W.2d 947; State ex rel. v. Shain, 105 S.W.2d 915; Machl v. Terrell, 111 S.W.2d 160; Aldridge v. Missouri Pac. R. Co., 256 S.W. 93; State v. Bland, 237 S.W. 1018; Dunn v. Alton R. Co., 104 S.W.2d 311; Payne v. Chicago A.R. Co., 38 S.W. 308; Wabash v. Huelsman, 290 F. 165; Rischeck v. Lowden, 147 S.W.2d 650; Donald v. Missouri-Kansas-Texas R. Co., 231 S.W.2d 627. (2) Deceased, as a matter of law, was guilty of contributory negligence. Rischeck v. Lowden, 147 S.W.2d 650: Scott v. Kurn, 126 S.W.2d 185. (3) The shack could not have been the proximate cause of Lohmann's death. Stanley v. Union Depot R. Co., 21 S.W. 832; Bowers v. Columbia Terminals Co., 213 S.W.2d 663; Nelson v. C. Heinz Stove Co., 8 S.W.2d l.c. 921.