Applegate v. Quincy, Omaha & Kansas City Railroad

252 Mo. 173 | Mo. | 1913

LAMM, J.

Plaintiff began his action in the Grundy Circuit Court for personal injuries' grounded on negligence. The venue was changed to Daviess on •defendant’s application. From a judgment on a verdict for $10,000, defendant, on apt and due steps, appeals. An outline of the case is this: .

A brewing company of Quincy, Illinois, built a ■cold-storage beer warehouse hardby defendant’s spur track (known as a “team’.’ track) at Trenton, Missouri, on defendant’s right of way. This warehouse had three 'doors next to the team track and was built under a contract between defendant and said brewing" company. Presently, under a contract between brewing company and one Davis, a beer dealer at Trenton, said Davis got the use of the warehouse to store beer purchased by him from the brewing company in car load lots and carried by defendant from Quincy to-Trenton and delivered at the warehouse at so much per car. The details of these contracts are unimportant except as evidence of a running arrángement for the mutual benefit and profit of defendant, Davis and brewing company. Certain kinds of loaded freight cars (among them beer cars) consigned to Trenton over defendant’s railroad were customarily stored on this team track to be unloaded by their respective consignees. Under the running arrangement between brewing company, defendant ánd Davis, when a car of beer came in it was “spotted” on its team track, so that the car door would be opposite the east or west door of the warehouse. The brake was then set and, by use of a plank runway from the car door to the warehouse door, the beer would be unloaded into the warehouse, kegs in one door and the bottled goods in another. The warehouse was so arranged that this could only be done by moving the cars. 'When defendant spotted such car, as aforesaid, the unloading was done by Davis. Any spotting of the car contemplated, however, that there would be a necessity to move the car from one door to the other of the warehouse, and to do that man power was necessary —the team track being a gravity track on a grade of one per cent fall to the east.

On the 8th day of May, 1909, defendant company “spotted” a car load of beer, consigned to Davis by said brewing company, in front of this warehouse on its team track in such way that the car door was-opposite the west door of the warehouse, set the brake and left the car there to be moved as necessary, unloaded and then reloaded by Davis from tbe warehouse with “empties” ready for resbipment. This' car was loaded in such way that to unload its contents into tbe warehouse it was necessary to move it by manpower, as usual, from one door to tbe other, say nineteen feet. Tbe unloading as well as tbe moving were wholly performed by Davis’s men, as usual. Plaintiff was an employee of Davis in and about moving and unloading tbe car as were all others so engaged. In moving this car it gathered speed unexpectedly en route, and ran on a pinch bar used by plaintiff to chock it. The pinch bar thereat caught the top of plaintiff’s boot leg and crushed his right leg down, mashing the bone of that leg between the knee and ankle, making immediate amputation necessary.

More than one ground of negligence is averred in the petition, but only one was put to the jury, namely, the negligent condition of the track.

So, a swarm of exceptions were saved. at the trial, but defendant does not here press rulings thereon as reversible error except as follows:

First: In overruling an objection to the introduction of any evidence, for that the petition did not state facts sufficient to constitute a cause of action.

Second: In refusing a mandatory instruction at the close of the case (and herein of contentions (1) that plaintiff’s own negligence caused his injury, and (2) failure to prove that the pleaded negligence caused his injury, and (3) because the condition of the track was not the cause of plaintiff’s injury).

Third: In giving plaintiff?s instruction number one, for that the evidence did not support -it and it ignores both pleadings and evidence.

Fourth: In giving plaintiff’s second and fourth' instructions.

Fifth-. In refusing defendant’s third and fourth instructions as asked and in changing them by inter-lineation and giving them as changed.

Sixth-. In refusing defendant’s second instruction.

Seventh: Because the damages are - excessive (and herein of passion and prejudice engendered hy inflammatory language and conduct of plaintiff’s-counsel in his closing argument).

It is obvious that those questions fall logically under four heads, viz: (1) The sufficiency of the petition; (2) the sufficiency of the evidence to make a case (and herein of the mandatory instruction); (3) the instructions; and (4) the excessiveness of the verdict.

We will dispose of the appeal under those subheads. Sufficient of the pleadings, evidence and other parts of the record to present the case understandingly will - appear in connection with the determination of those questions seriatim.

■ I. Of the sufficiency of the petition.

(a) No demurrer was filed, hut counsel objected to the introduction of testimony, for that (they argued Pleading: ^ Testimony!0 then and now) the petition did not state facts sufficient to constitute a cause of action. On the disallowance of the objection (which happened), the point was. saved.

That way of testing the sufficiency of a petition is not entirely without the pale of correct practice, and this is so by virtue of the doctrine of this court that a petition so lame as to state no cause of action at all presents a jurisdictional defect. [East St. Louis Ice & Cold Storage Company et al. v. Kuhlmann, et al., 238 Mo. 1. c. 702 et seq.] Such course smacks of lying-in wait, comes late after all invited preparations for trial are made on issues of fact joined, and is tolerated, bnt not favored.

The rnle to go by on such belated objection is this: It is never sustained because of lack of certainty or definiteness in allegation, or for informality in the statement of essential fact, or because a cause of action is defectively or obscurely stated. Such objection is disallowed if (by reasonable intendment or fair implication from facts stated or by most liberal construction) the essential allegation may be pieced out- or made clear by reasonable inference. It has been held that the rule applied in disposing of motions in arrest is applicable to' such objection wherein the grace of- every implication is allowed to aid the verdict and mere ambiguity in allegation is resolved in its favor. [Vide the Kuhlmann case, supra, and authorities therein cited and discussed.] It is by that rule the petition must be judged.

(b) ' The petition charges, in substance, that plaintiff is a domestic railroad corporation, in the times in hand owning and operating a railroad and its Bre^fTof contract or Tort. appurtenant sidetracks, cars and locomot-*ves as a eoniinon carrier of passengers and freight for hire from Quincy to Trenton, That a named brewing company of Quincy, Illinois, was engaged in the manufacture, sale and storage of beer, having one D'avis as its representative at Trenton; that for mutual purposes said company, Davis and defendant maintained a warehouse for the storage of beer at Trenton appurtenant to defendant’s sidetrack there; that the beer was shipped in carload lots over defendant’s railroad by said brewing company to said warehouse where it was unloaded and stored; that there was an arrangement between the brewing company, defendant and Davis that defendant should provide suitable cars to' ship the beer and' provide a suitable sidetrack from its main line to said warehouse, where the car should remain and be moved to and fro in front of the warehouse to be unloaded; that in unloading such cars it was necessary to move them along said sidetrack from one door of the warehouse to another by “man power” and by the aid of gravity, all of which defendant knew and intended. That in performing its duty in the premises defendant placed a car of beer for Davis on its sidetrack in front of said warehouse on May 8, 1909. (The pleader went on to make averments relating to the legal duty of defendant to furnish a reasonably safe car with reasonably safe brakes to control the movement of the car, but, as plaintiff ■abandoned those charges below, we omit them.)

The petition continues as follows:

“It was also the legal duty of the defendant to furnish and provide for the use of the plaintiff, and ■others so engaged, a switchtrack and sidetrack that was reasonably safe for the work and purposes aforesaid, and to keep and maintain said . . . sidetracks in a reasonably safe condition for use and operation, and in a reasonably safe condition for transacting said business and doing said work.

“The defendant then and there negligently failed to perform said duty and negligently furnished and provided a car” (here follow averments relating to the car, then follows this:) “and the defendant’s switch-track and sidetrack on the south side of said warehouse, and in front of said warehouse was then and there defective and dangerous and had five ‘low joints’ in it in the space of sixty feet on the south side of said warehouse and in front of the same, which low joints caused a car to move and proceed with jerks, jumps and bounds and with great violence, instead of moving in the ordinary way, and the defendant then and there negligently kept and maintained said switchtrack and sidetrack in said condition," at the place and point aforesaid. The defendant knew of said defective conditions of said . . . sidetrack, and might have known of said condition by the exercise of ordinary care and diligence. The plaintiff did not know of said defective condition of . . . said track.

‘ ‘ On May 8,1909, while the plaintiff was assisting in unloading beer from said car, and while the plaintiff was acting nnder the orders of said Brewing Company and said Charles Davis and their representatives and while the plaintiff and other servants were moving said car from one door to another of said warehouse, and while said car was moving slowly to the east, of its own weight down said grade, and while one Ora Davis was trying to hold said car with said brake and acting for said Brewing Company and Charles Davis, and while the plaintiff was in the exercise of ordinary care, and while the plaintiff was at the east end and south wheel of said car ‘pinching it’ — or ‘blocking it;’ that is, by placing the end of a heavy iron bar between the rail and the wheel, causing the car to move slowly and properly — the wheels of said car came to and passed over and down said low joints, gave a sudden and violent lurch and plunge to the east, jerked said bar out of the plaintiff’s hands and passed over said bar and pressed the plaintiff’s right leg between said bar and the south rail and cut off the plaintiff’s right leg below the knee, rendering amputation necessary, which movements of said car and which injury to the plaintiff was caused by the negligence and negligent acts of the defendant, as aforesaid.

“By reason of plaintiff’s leg being so cut off, and said injury, plaintiff’s ability to labor has been permanently impaired aiid lessened; and his general health greatly impaired, and plaintiff has thereby suffered great bodily pain and mental anguish and will continue to suffer the same in the future.

“The plaintiff has expended large sums of money and incurred large indebtedness for medicines and medical treatment and operations and has lost and will lose his time and the earnings and profits of his labor, and has been physically disfigured and made a cripple for life.

“Wherefore, plaintiff says he has been damaged to the amount of thirty thousand dollars, for which he prays judgment, together with his costs in this behalf laid out and expended.”

(Note: We may say in passing that, outside of ■conventional admissions, the answer denied the aver-ments of the petition and pleaded affirmative matter, to-wit, that plaintiff’s injury was alone due to his own negligence and that of his fellow workmen (none of whom were defendant’s servants) in moving and handling the car of beer; and the reply traversed the new matter.)

The indictment of the petition does not go so much to an absence of an essential averment, or vice of form, as it does to what counsel conceive is a fundamental misconception of the law on plaintiff’s part. Counsel construe the petition as counting on the contractual running arrangement between , Davis, the brewing company and defendant, hence that the suit is one for the breach of a contractual duty.. They argue that plaintiff was a stranger to that contract and not privy to its terms or considerations; that on the face of the petition the arrangement was not made for the benefit of plaintiff and therefore defendant owed plaintiff no contractual duty to be breached. On that contention we rule as follows:

There is a doctrine of the law to the effect that before a promise made by A to B can be sued on by C, a stranger to the contract, it must be made for the benefit of C and be so intended by the contracting parties. [Howsmon v. Trenton Water Company, 119 Mo. 304; Lewis v. Brookdale Land Company, 124 Mo. 672; Roddy v. Railroad, 104 Mo. 234; Street & Johnson v. Goodale, Barger & Co., 77 Mo. App. 318; and Harberg v. Arnold, 78 Mo. App. 237.]

We find no fault with the principle announced. .But it is quite inapplicable to a case sounding solely in tort, as here. Plaintiff did not sue ex contractu, but ex delicto. He did not ask damages for the breach ■of contractual duty, but for breach of a common law duty. The function of that part of his petition referring to the contractual running arrangement between brewing company, Davis and defendant for their mutual benefit and profit, was not -a statement of facts ■constitutive of his cause of action, but was merely by way of prelude or inducement intended to put plaintiff in such relation with the facts as to sue at all, namely, to show that he was not a trespasser on defendant’s brack, but was an invitee to whom defendant owed the primal duty all men lie.under, viz., of exercising ordinary care.

The law is that if plaintiff was where he had the right to be and where he was intended to be by defendant in transacting legitimate business in unloading ■one of defendant’s cars (that is, where he was expressly or impliedly invited to be, Glaser v. Rothschild, infra), then defendant owed him a duty essentially differing in degree from that it owed a trespasser or bare licensee, to-wit, a duty not to injure him by wantonness or some form'of active mischief. Contra, it owed him the duty to maintain its team track in a condition reasonably safe for the uses it was intended by defendant that those unloading the car, to-wit, the employees of its customer, would naturally and properly put it to. For a breach of that common law duty an action lies. [2 Thomp. on Neg. (Ed. 1901), sec, 1841; 1 Ibid., sec. 978, and authorities cited; Sykes v. Railroad, 178 Mo. 693; Young v. Waters-Pierce Oil Company,. 185 Mo. 634; Tateman v. Railroad, 96 Mo. App. 448; Butler v. Railroad, 155 Mo. App. 287; Glaser v. Rothschild, 221 Mo. 1. c. 185-6. In a late case, Clark v. Railroad, 234 Mo. 1. c. 417 et seq., both, the rule and its reason are well stated and discussed by Woodson, J.]

After sifting the philosophy of the doctrine as gathered from precedents, a standard treatise states the sum of the matter to be that (1 Thomp. on Neg. (Ed. 1901), sec. 978, supra):

“The owner or occupier of premises manifestly owes to the employees of his customer, .coming upon his premises to do business for their employer, the same duty that he would owe to their employer himself. Thus, the owner of a coal yard, in which a railroad track was built for the mutual interest of the owner and the railroad company, was held to owe to an employee of the railroad company, while riding on a freight car in the coal yard, with the knowledge of the servants of the owner of the yard, the degree of care which an ordinarily prudent person would exercise in favor of another under like circumstances. So, a railroad company permitting another railroad company to use its tracks, is bound to exercise ordinary care in the construction and maintenance of its bridges, to the end of protecting the servants of the lessee company; and this will require it to maintain its bridges in such a manner as to permit, a safe passage through them, in the usual way, to cars which are in common use upon other roads, although such cars are higher than the cars of the lessor company. "Where the owner of premises, or one carrying on a business, provides something to a customer, for the use of the servants of the latter in carrying on the business of the customer with the former, a servant of the customer injured by the defective condition of the thing so provided, may have an action against the person furnishing it to his master; for it was actually intended by the defendant to be used by the .servants of his customers; and if. the servant’s employer, as such a customer, was invited by the defendant to use it.”

It is on such premises we conclude that the petition stated facts constituting a cause of action, hence that the objection to introducing any evidence was well ruled below.

II. Of the sufficiency of the evidence (and herein of defendant’s refused mandatory instruction).

Defendant did not demur to the evidence at the close of plaintiff’s case in chief, but went on and put Negligence: Moving Car in Unloading: Low Joints in Rails: Chocking. in its case elaborately. When able and veteran counsel take that course, may not an appellate court indulge the notion that the first impression of counsel, struck off in the very heat and glow of the work, was that plaintiff had made a case for the jury it was called on to meet? Why go on and defend against nothing? May not a safe conclusion be that the strength of defendant’s present position is somewhat sapped by its failure to act sooner? Is that course not letting defendant impugn itself by pitting its final affirmative claim over against its early silence? May not one in law, as in the drama, “Look here on this picture — and on this?”

But the case need not break on fanciful conceits. Defendant finally asked a mandatory instruction for the jury to find in its favor at the close of the whole case, and now argues that the evidence did not make a case to go to the jury at all. That contention seeks the facts. Avoiding details, spread throughout a voluminous record, attend to those facts not already -stated:

Plaintiff put in proofs tending to show that the ■custom was to unload beer on the day the car was spotted. Accordingly on the day in question when Davis was notified his carload of beer had arrived and was spotted at the warehouse, he sent his employees to unload it. Plaintiff was a picked-up man. In the-course of the business it was necessary, as usual, to-move the car so that its door would be opposite the-east door of the warehouse, instead.of the west door where defendant left it. To that end, the brake being tig’ht set, it was necessary to loose it. One of Davis’s-employees got on the car and, failing to release the-brake by twisting the hand wheel, loosed it by knocking .the dog from the cogs of the raehet wheel. Such-course was allowable when there was call for it, as-here, and there is no testimony tending to show that it had aught to do with the accident. One witness testified that sometimes when a brake is set very tight on a standing car, the car gathers up, and when the brake-is loosed there is a movement or spring of the car, but he said all cars did not act that way and there is no testimony this one did. Contra, when the brake was loosed the car moved off slowly by its own gravity for several feet. Plaintiff’s assigned duty was to assist on the ground in controlling the movement of the car so that it would stop at the right spot opposite- the other door. To do this he took an iron pinch bar usually employed for that purpose — a bar about five or six feet long, beveled on one side at the heavy end. A pinch bar is a kind of crow-bar. He put the beveled side next the ball of the south rail and in line with the rail, he says, so that the flange of the wheel would miss it hut the tread or rim of the wheel would come in contact with the beveled edge of the bar, and, standing outside the south rail of the track, he undertook to control the movement of the car by chocking it with the bar. The employee who had loosened the brake was still on top of the car. manipulating the brake wheel. Everything was well for three or five feet, plaintiff was moving backward facing the car and chocking it when suddenly it made a quick lunge, or jerk, ran up on the end of the bar, smashed it down on plaintiff’s boot top, threw plaintiff down across the track and crushed his leg practically off. There are. no prescribed rules for chocking cars. It seems to be left to the common sense of the employee. Experienced railroad men testified pro and con on . the. issue whether the plan plaintiff says he adopted was a proper one in chocking a car moving slowly down a slight grade on its own gravity. Some of them were of opinion it was and some -were of opinion it was not. We do not gather from defendant’s testimony precisely what the proper plan would be for chocking under such circumstances. Some witnesses said one thing, some another. But there was emphatic and believable testimony that the plan adopted by plaintiff was a usual and reasonably safe plan if the track was in order. Plaintiff had little or no experience in chocking cars, in fact was a carpenter and not a railroad man. To sum up the matter, allowing to defendant the most favorable view possible it cannot be said on this record that it made a case of a negligent use of the bar as a matter of lato. The most that can be said for defendant is this: it succeeded in getting in testimony that made the question of plaintiff’s negligence one of fact for the jury. The testimony, however, strongly preponderated in favor of plaintiff on the issue of his own negligence.

Turning to another issue, to-wit, whether defendant itself was negligent, the record disclosed the following: There was a great deal of proof introduced by plaintiff tending to show that on the north rail of the track next to the warehouse, at a point that one set of trucks would have to cross in moving the car from the west door of the warehouse to the east door, to-wit, nineteen feet, there was a low joint that had been there for several months. Some of the witnesses made this joint, at the time of the accident, five or six inches out of surface level. Some much less. The fish plate or angle bar on one side of the joint was cracked. The one on the opposite side was a short bar. These bars were bolted with two bolts instead of the usual number. ' The tie at the joint was rotten and the two joint ties were unusually wide apart. It was described as a “swinging joint” — that is, a joint whose tie did not rest on a solid foundation but clung to the rail by aid of the spikes and when a car wheel passed over it would give way and spring down. Much the greater weight of the testimony made this joint a very bad one and the rail with a ball battered that would give way under the weight of a heavily loaded moving car. There was also a lip at the joint — i. e., the end of one rail was a little higher than the abutting end of its neighbor. Plaintiff’s theory is that the sudden lunge of the car was caused by this low swinging joint and a painstaking study of this record convinces us there was persuasive evidence, and much of it, tending to prove that fact. In fact, defendant’s testimony as we read it was not directed to proving the absence of a low joint, nor was it 'directed to proving that a low joint would not cause a lunge in a moving car, but it was directed to proving that the joint was not as low and bad as plaintiff’s evidence indicated. Plaintiff put in testimony tending to prove that the low joint was on the other side of the car from him, in fact was covered by the car, and that he knew nothing about its existence before the accident. No one contradicted him in that particular. Indeed there was no testimony indicating that any of the employees of Davis engaged in moving that car knew of the existence of the bad joint prior to the accident, the car in hand being the first carload Davis had shipped in. (It may be well to say that Davis took the place of one Holland who theretofore represented the brewing company and used the warehouse in question.) There was uncon-tradicted testimony that a low joint would cause a sudden increase in speed in a moving car — speed of a kind properly characterized as a “lurch” or a “lunge. ”

There was testimony on behalf of defendant tending to show that it was not customary on all roads to beep their side or spur tracks in as good condition as their main tracks; that the season of 1909 was a wet one; that wet weather conduced to low joints. But all this fell short of showing that the low joint in question was reasonably safe track maintenance in view of the uses the track was put to. There was also testimony tending to show that the men engaged in moving this •car were not experienced railroad men. But there is no testimony pointing out that any- one of them was negligent in any such designated particular as became a causal factor in the accident. For all that appears they adopted the best plan possible, assuming (as they had the right to) that the track was reasonably safe to move the car by hand power, and carried out the plan free from negligence.

Taking the tendency of plaintiff’s proof on the issue of defendant’s negligence, and the tendency of •defendant’s proof on the issue of plaintiff’s negligence, and the state of the whole record on the issue whether the negligence of defendant in maintaining its track was a proximate cause of the accident, it is ■quite out of question that any of them should be decided by the court against plaintiff, as a matter of law. Contra, we must hold they were each and all issues of fact to be submitted to the jury to be decided by assigning due weight to the testimony, and reconciling conflicts and contradictions therein, if any, as was •done.

Defendant’s industrious counsel have searched ■out and cited many cases. Some of them hold, in ■effect, that where there are two or more theories for an accident,' all equally credible, oh some of Which •defendant may be liable and on others not (and the proof is left so that such equilibrium is undisturbed) Then the case resolves itself into the classical predicament of the celebrated ass of Bnridan that put itself equidistant between two bundles of equally savory hay, and then (in that logical equipoise) died of starvation because it could not (logically) make up its asinine mind which way to turn and eat — some holding that plaintiff’s own negligence barred recovery as a matter of law — some that defendant’s negligence was not made out beyond mere suspicion and conjecture, some deal with the negligence of co-employees, others stress the proposition that negligence, to be actionable, must be the proximate cause of the injury —that the concurrence of negligence and injury, absent causal connection, will not do. But, as we see it, none of them apply to the facts of this record.

That low joints are a fruitful cause of railroad accidents and that the negligent maintenance of them is actionable where injury results therefrom to those rightfully using the track, are trite propositions needing no support by citation of cases at this late day.

Accordingly we hold there was no error in refusing defendant’s mandatory instruction.

III. Of instructions.

Defendant complains of some given for plaintiff, of some refused for it, and of the alteration of others. Of those in their order.

(a) Plaintiff’s instructions challenged are the first, second and fourth.

The second, on contributory negligence, needs-only the attention counsel give it, to-wit, none. While counsel condemn it, yet they put their finger on no particular vice. What they could not find with the eyes of their minds sharpened by interest and learning,0 we have no call to try to be astute to spy out as a court.

(1) The first instruction reads:

• ‘ ‘ The court instructs the jury that a person rightfully engaged in unloading beer or other merchandise from a car, is on the railroad company’s premises by an implied invitation, and has a right to he there; and that the railroad company owes to such person the legal dnty to exercise ordinary and reasonable care to maintain its side tracts, on and along which cars are to he moved in doing such work, in a reasonably safe condition and state of repair for said purpose and work; and that the defendant company owes this duty to anyone who is duly employed to do said work and who is doing the same, when such person so doing the work has been employed by an owner of or dealer in beer or other merchandise — regardless of whether he is in the employ of the defendant railroad company.

“Therefore, if the jury believe from the evidence that under an agreement with the defendant railroad company, Dick & Brothers Quincy Brewing Company kept and maintained a warehouse or cold storage, for the storage of beer at Trenton, Missouri, and that the defendant railroad company furnished cars in which and tracks over which to transport and move said beer, from Quincy, Illinois, to said warehouse; and that in the usual course of dealing and business of the defendant railroad company, cars loaded with beer were moved and run on to the side track on the south side of said warehouse; that under an agreement between himself and said brewing company, Charles Davis was storing said beer in said warehouse and selling the same; and that in unloading beer from cars it is reasonably necessary to move cars on and along said sidetrack by hand, and man power, immediately in front of and south of said warehouse, then, it became and was the legal duty of the defendant railroad company to exercise ordinary and reasonable care to provide and furnish, at that place, a track in such a condition and state of repair as to its joints, as' to be reasonably safe for said purposes; and, a failure to perform this duty, is negligence in law, and, if the jury further believe from the evidence that the plaintiff,, Thomas Applegate, was in the employ of Charles Davis and acting nnder the orders of his representative, and engaged, along with others, in moving one of said cars from one door to another of said warehouse to he unloaded; and that defendant’s side track, at that place, had.‘low joints’ in it and by reason thereof was defective and not reasonably safe for said purpose and work; and that defendant'acting through its officers, servants and agents, either knew of said condition of said track, or might have known of it by the exercise of ordinary care and diligence; and that defendant negligently permitted said track to remain in said condition; and that plaintiff did not know of said condition; and that plaintiff was engaged in ‘blocking’ said car with an iron bar while the brake was loosened by Ora Davis so as to permit the car to move slowly of its own weight; and while Ora Davis was trying to hold said car with said brake; and, that by reason of said defective condition of said track; and, while the plaintiff was in the exercise of ordinary care, said car gave a sudden lurch and plunge to the east and caught the plaintiff’s leg between said bar and raií and crushed it so that amputation was necessary, then, the plaintiff is entitled to recover and your verdict must be in his favor.”

The foregoing instruction is not criticized (hence needs no defense) except from one viewpoint, to-wit: specified Acts of Negligence. Counsel say the petition specified the plan plaintiff adopted to chock the car; ^ l.ngirucilon ¿eparts from the petition in not specifying the plan, viz: “by placing the end of a heavy iron bar between the rail and wheel;” that the instruction merely puts it to the jury to find that plaintiff was “in the exercise of ordinary care.” The conclusion is that there is an improper substitution of “ordinary care” for the petition plan ■of chocking the car. Something is said about a “roving commission to the jury to go outside the pleadings and evidence in making np their verdict.” But the snm of it all is that the instruction is said to he faulty in the above particular and not otherwise. Counsel rely on cases like the Waldhier case, 71 Mo. 514; the Schneider case, 75 Mo. 295; the Watson case, 133 Mo. 246; the McCarty case, 144 Mo. 397; the McManamee case, 135 Mo. 440; the Fulwider case, 216 Mo. 582. All of those cases announce this doctrine: That where plaintiff alleges general negligence and follows that general allegation with specifications of negligence or where he alleges specified negligence without a general charge, then he is confined in his proof and instructions to negligence in the very particulars specified and may not recover on general negligence. Counsel concede that such is the gist of those cases, hut they argue that the rule ought to he extended so as to confine plaintiff to a specification of the identical plan he adopted for doing the work he was engaged in when he was hurt.

But we may not write the law as we are asked to— because:

The burden was on defendant to make out its defense of contributory negligence. Plaintiff, however, assumed the burden in this instance of writing into his instruction his duty to exercise due care. Now, due care, after all, was the touchstone, the ultimate standard whereby the jury should measure plaintiff’s duty. Mark, when defendant asked a mandatory instruction, that request was equivalent to a challenge of the plan plaintiff alleged and testified he adopted. When the court overruled the mandatory instruction, as it did, and when we sustained the court in that ruling, as we did, that is equivalent to saying that the plan plaintiff says he used was not per se negligent.

Furthermore, the instruction does put it to the jury to find whether “plaintiff was engaged in ‘blocking’ the said car with an iron bar,” etc. That sufficiently identifies the transaction with the plan pleaded, and then puts-it to them to find whether he was “in the exercise of ordinary care.” So that nnder the given instruction the jury were either obliged to find that the nse of the plan was dne care or find for defendant on the theory it .was not dne care. We cannot conceive how defendant conld be injured by that instruction.

We are cited to no authority, and we believe there is no well reasoned one that applies the doctrine of the Waldhier and other cases cited in the way and for the purpose suggested by counsel. It seems to us that to do so would be but to weave .a net of artificial refinements and subtle technicalities in which to catch an unwary litigant, without subserving any useful end. The point is disallowed to defendant.

(2) The fourth instruction tells the jury, in effect, that if they found defendant was negligent as set forth in instruction number one and that the plain-Negligence Combining With Negligence of Others. tiff Applegate was exercising due care himself, then, if the negligence of defendant combined and united with the negligence of some one else to cause the injury, if they found that to be the fact, it would not defeat recovery. The giving of that instruction is assigned as error. We are cited to no authority for that assignment, and know of none, under such a record as we have here.

It is a hornbook doctrine of the law of torts that if B, C and D unite in negligently (or willfully) injuring A, A may recover against all or any one of them. If he sue B, B may not defend on the theory C or D or both contributed. The same principle applies where some form of vis major, or other independent instrumentality aids the event. [Bassett v. St. Joseph, 53 Mo. 290; Benton v. St. Louis, 248 Mo. 98, and cases cited; Brennan v. St. Louis, 92 Mo. 482; Straub v. St. Louis, 175 Mo. 413; Zeis v. Brewing Ass’n, 205 Mo. 638; Westervelt v. Transit Co., 222 Mo. 1. c. 344.]

In passing on this instruction it must not he overlooked that defendant affirmatively pleaded by way of defense that plaintiff’s injuries were due to other persons not in its employ. It tried its case partly on that theory, laying stress on the way Ora Davis knocked the dog loose from the ratchet wheel and handled the brake at that time. Under such circumstances we think it well enough.

ignoring assues. (b) It is next argued that there was error in refusing instructions for defendant.

The main contention in this behalf arises on one of them reading as follows:

“If the jury believe from all the evidence in the case that the plaintiff received his injuries because of the carelessness of himself and others working with him your verdict must be for the defendant.”

Clearly that instruction was not the law of this case. It ignores entirely the main issue, viz.: the negligence of defendant. In so far as it connects plaintiff with his own injuries it was fully covered by an instruction on contributory negligence. In so far as it connects the conduct of other workmen with plaintiff’s injuries it had nothing to do with the case, provided defendant was negligent and that negligence was a causal factor in plaintiff’s injury, and provided further plaintiff was himself not negligent.

Two of the other three refused instructions were those in which the court interlined “negligently or knowingly” and are dealt with in the next paragraph. The other declared as a matter of law, in effect, that defendant owed no duty in connection with the maintenance of the team track, that is, it performed its full duty when it spotted the car in front of the warehouse. That theory of the case is considered heretofore.

(c) It is next argued there was error in inserting in some of defendant’s instructions the words I inserting Words “Knowingly or Negligently." “knowingly or negligently.” The court so modified two of defendant’s instructions over its objections and gave them as modified. One of them will do for both, thus:

“The court instructs the jury that if plaintiff knowingly and negligently chose an unsafe way of doing what he undertook to do when there was a safe way open to him the. verdict must he for the defendant even though you should believe.his reason for taking the unsafe way was his inexperience or ignorance.”

The choosing of an unsafe way was hut a form of negligence, whatever its cause, and harks hack to the plea of contributory negligence. [Brady v. Railroad, 206 Mo. 1. c. 530.] The possible “unsafe way’-’ was the selection and use of a pinch bar to chock the car in the way plaintiff and his witnesses said he used it. If that was not a negligent way, then its choice was not negligently made. If it was negligently made then it was so because the choice was a negligent choice. The thing is as broad as it is long and means the same either way. The phrase, “or knowingly,” merely clogged plaintiff’s case. It did no harm to defendant. The only virtue in inexperience and ignorance, as a defense, is that an inexperienced or ignorant man is more likely to act negligently — that is, fall below the standard or norm of conduct of an ordinarily prudent man- acting under the sanie or similar circumstances. Such is the canonized and sensible definition of due care; and, in the law of negligence, every one is held to it, .whether he be wise or unwise, learned or ignorant, inexperienced or expert.

“If a man,” says Justice Holmes, “is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the court of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from gnilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.” [Holmes’s Common Law, p. 108.] Verily, Due Care is the Procrustean bed of the law all must lie on, nolens volens.

IY. Of an excessive verdict.

Plaintiff, aged fifty-three years, made a living by doing odd jobs of carpenter work, earning thereby twenty-five dollars to forty dollars per month. As said, his right foot was amputated above the ankle. There were no complications and no other injuries. The doctor performing the operation said that $200 would be a reasonable charge for it and the resulting attention. In this form of action where compensation and not smart money is the measure of damages, this court had insisted on conservative recompense and has noticed and disapproved a tendency to go beyond that. [Neff v. Cameron, 213 Mo. 1. c. 366 et seq.] All the cases lay stress on the presence of the following elements: age, earning capacity, the extent and nature of the injury and suffering, time lost and complications that arise. In some cases where verdicts are large the court has looked closely to incidents of the trial not arising, may be, to the dignity of reversible error, but naturally registering a result in swollen damages. [Bragg v. Railroad, 192 Mo. 1. c. 365-6.] In the Devoy case, 192 Mo. 197, and in the Chitty case, 166 Mo. 435, lists of such cases were considered and briefly analyzed. Those lists and analyses may be of some value, but furnish no definite rule for determining the vexed question.

The sum of the matter is that each case is to be determined on its own facts. Cases are cited by plaintiff’s industrious counsel wherein we have allowed verdicts of $10,000 for the loss of a foot and part of a leg to stand, but it will be found they laid stress on age, earning capacity, time lost, surgical complications, and other injuries. In most of them, it will be-found that the trial was free from untoward incidents, likely to inflame the jury. In the case at bar there were unhappy incidents of that character. In justice to counsel for plaintiff it must be said they were not wholly to blame for some of them, but in others we cannot say quite so much. It would be unprofitable to blazon forth the details of those incidents and embalm them permanently here.

In Lessenden v. Railroad, 238 Mo. 247, we cut down-a $15-,000 verdict for the loss of both legs to $10,000, and in that case significance was put on an instruction telling the jury to allow damages not to exceed the amount mentioned in the petition. [P. 264 et seq.] That form of Instruction, whilst it has been held not reversible error, has been criticized as a judicial hint that the court would approve a verdict in the sum mentioned in the petition. In this case there is an instruction of that character.

The premises considered, we think the verdict excessive in the light of the age, earning capacity and freedom from complications or other injuries, and in the light of improper argument not technically reversible error and of the foregoing instruction. "We think the views expressed are sustained by Lessenden v. Railroad, supra; Bragg v. Railroad, supra; Jewell v. Bolt & Nut Company, 245 Mo. 720; Clifton v. Railroad, 232 Mo. 708; Hollenbeck v. Railroad, 141 Mo. 97, and the analyses of cases in Chitty v. Railroad, 166 Mo. 435, and Devoy v. Transit Company, 192 Mo. 197.

If the plaintiff will remit $2500, as of the date of his judgment, within ten days, it will be affirmed for $7500, bearing six per cent interest on that sum from judgment date, otherwise it will be reversed and the cause remanded for a new trial. It is so ordered.

All concur.