*1 private in all seals 2159, which abolishes cite Section Appellants re- were conveyances like, which theretofore instruments, and the common law a contract Under the quired by be under seal. law to apparently imports consideration, appellants a and the under seal contracts, formerly were which the conclusion that have reached import consideration notwithstand- required seal, he still a under to on here was Even if contract sued ing seal is abolished. the inquired seal, he under when common law was one which at presumptions incidents Section seal was abolished were attending under seal abolished. That a contract executed 2159 is im- legislative intention, because Section followed plain quoted sets the' kind above, which out mediately by Section import This not a consideration. contract is instruments which one of them. James, de-
III. P. peculiar Julia Another here. situation arises by any fendant, any not bound party is not a She is contract. petition allegations show contract and is vested property involved that the title to the against plaintiffs cause of action her. The have no Joseph agreed Prank Haddock had merely because she knew that her agree signed sign it, which he was to contract, hut had not plaintiffs could not property. The to vest her with title not Joseph against $5,000 any other sum as Frank damages be or awarded sign agreement sued only signer contract Haddock, the alleged plaintiffs or show that were could are on, because no facts damaged in any amount. prayed because it They specific performance as could have not relief; already mischief ivas done and the afford them would no They have could cancellation the deed question is moot. signed agree- Haddock ames, neither she nor Carrie P. J
Julia plaintiffs claim was violated. sign contract ment concurs; accordingly Blair, J., P. judgment is affirmed. Wallcer, J., absent. E. Administratrix of Estate William Berry, Berry,
Lenora W. Railway Company, Appellant. Francisco Louis-San St. (2d) 988. S. W. Two, February
Division 1930. *3 appellant. E. Miller T. and Mann & Mann for
m
780 *5 Randolph respondent. A. M. and O. J. Fisher *7 Federal Em- based on the judgment herein was DAVIS, C. The damages personal in- for Liability Act. an action for ployers’ It is by a col- plaintiff’s intestate, caused juries resulting in the death by petition operated defendant. The com- trains lision between two passes counts, third from consideration prised three the count but by plaintiff the close of the evidence. The as it was dismissed earnings damages for and conscious prays loss of expense, first count pain suffering to-wit, 15, June injury, of deceased from date and death, to-wit, 23, 1923. The 1923, November count to date second pecuniary loss his death. trial in a asks The resulted verdict $10,000 $5,000 count, and on the count, on first second and judgment appealed from the entered thereon. defendant finding presented The warrants the on defendant, evidence engaged a 15, 1923, railroad, June was common carrier in in- day mentioned, intestate, on the terstate commerce. Plaintiff’s was employ engineer assigned of defendant. He was a locomotive in the engine commonly train 516, engineer. to called train as 516, To assigned switching duty was ears in the Red Plant dis- trict, adjacent City, morning Webb Missouri. On mentioned, to engine plaintiff’s intestate, driving together 516, crew, with its left sixhwenty Joplin, Missouri, proceeded about and to the Red m., a. switching freight district switch cars. Plant to There the en- train switching gaged cars, some which were loaded with chat be to repair hauled and used defendant’s roadbed in other states. empty The switcher also some cars that morning, hauled but nothing regard record shows further previous to them. Just to collision, mentioned, which morning later occurred that about :thirty-five proceeded siding to ten switcher a switch to m., A. permit passenger train pass wait to to main line. After passenger passed, had the conductor train train knowing freight train, which was four an interstate hours late, des- likely moving to 331, ignated train be southwardly as on the informing plaintiff’s them, without line toward main intestate of engine, him drive the to ordered to fact, coupled City, Webb Oronogo, near northwardly to line main caboose, on the cars, ballast empty nine eight or move Waring, to called a switch to conductor The loaded. siding later to be them on place empty Oronogo to move the siding go left the train as the com- flag train a local there a brakeman cars, stationed ballast 516 was train that, while testified The brakeman Joplin. ing from passenger siding permit Oronogo to the up from backing say to the defendant superintendent of pass, heard up in the west fixed got pretty well “We have conductor many today for the as we can get like out as end; we would meant, end, Kansas the west they spoke of When end.” south morning two question, On the Oklahoma. end, south moved cars Oronogo by 516, and it had made to trips had been sidings put be placed them chat rock and loaded with spurs at at one of the was loaded company chat This transit. lines had occurred on defendant’s washouts Oronogo. At time Missouri, and Joplin, and between Arkansas in Oklahoma Oronogo, going 516 in purpose of train Neodesha, Kansas. .to *8 by is shown the follow- 331, train collision with of the the time at ing: get empty for? A. To some
“Q. going there you What were cars. cars; empty ballast going I ? I going A. think was
“Q. put them you Where were to place on of them tracks track; them some on the put them Good to there. down
“Q. loaded? A. Yes.” be later To company 516 testified that that was all of train
The conductor day. up had that he lined chat that siding, 516, order passed train train on passenger
After proceeded northwardly siding and on the conductor, left the of its proceeding, a between collision while so line, and, main occurred freight running south- 331, train, an interstate 516 and train train hours 331 about four late. wardly. Train was freight provided trains, yard within of defendant A rule limits, stop, seen, unless the main prepared move to track or must proceeded Oronogo, 516 to As train it was clear. known, to be the vision was obscured trees and where un- running on a curve right-of-way. telegraph The right poles to of the were derbrush witnesses estimated apart. Various the vision this 152 feet on curve telegraph poles, four seven or from 600 to 1050 from to at feet. The Engineer testimony Allison, of on who effect occasions ran engineer witness, was that an plaintiff’s engine 516, engine on an place curve, this could see north, any at going least four tele- speed of 608 The train as 516, or feet. graph it ran, poles, 784 twenty hour. 33.1 com- miles an Train
estimated at from twelve prised engine, thirty-six its ears, an loaded was on caboose way running' thirty-five forty to Kansas. It was an hour miles passed "Waring as 1200 1500 crossing, which was north of feet point running of collision. Another witness stated ivas twenty thirty from miles an hour. The collision 150 occurred plus of curve, opposite milepost feet south the north end of the 323 going track, Waring crossing 20. The south, from to the north end application A straight. service curve was airbrakes 331 train made 1100 point feet from the of collision, about slightly speed. A application reduced its second service 500 the brakes was made south. An emergency feet farther or third application point from collision, made 150 feet and the going thirty train was 331 then miles an hour. Train crashed vio- lently injuring into train intestate. Train after length colliding, engine, or, of its as said, moved one witness from ten to fifteen feet. roadbed, ties and rails under the en- gine up, 331 train were torn but that under train 516 was intact. By application service the brakes 331 train could have been stopped, going thirty-five forty hour, miles an in from 1500 to 2000 feet, which was a reasonable stop, and ap- an emergency plication stopped it could 800 have been An feet. emer- gency stop entirely freight is never safe to a length train the 331. From train around the curve, the vision extended 331 going feet. Train at twenty miles an hour would require stop for a service 1000 feet, and for emergency an stop, engineer A feet. locomotive testified the circumstances emergency application called-for an engineer the" brakes. The application testified made a service of the air and emergency application when approach notified of the *9 Train 516 rights 516. was within using its track, main as was Oronogo 331. also train junction, At about a mile and a half north point of collision, the crew 331 of train were told train 516 was within the Red Plant district and look it, to out for as it expected proceed Oronogo switch cars. It was the cus- duty tom and of 331 train to blow the frequently whistle in that running, while but 331 district train did not whistle on this oc- engineer casion. The of train witness, defendant’s did not re- member when he previous last blew the whistle to the collision.
The evidence in behalf of defendant tends to show that the col- milepost lision opposite plus occurred 323 point 20. The col- lision was within the switch they limits. As started, the conductor engineer: 331 said train “"We keep want to a close watch- here, down because the out switcher down here somewhere.” The
785 engineer speed said lie low all handled the train at a rate way through light application Oronogo down there. At he made a keep getting He was speed. the brakes to from too much exceeding eight an hour information he any miles at time. The first lookout, approach had of the train 516 was when the brake- engine man, “Somebody’s him, shouted, coming on the with here.” emergency application engineer, He then made an of the brakes. The conductor, engine fireman and all brakeman, train hour, running alighted upright which was three miles an then position engine losing from the without balance. All airbrakes 331, except cars, good train condition, on two were but their braking power. condition did setting not affect the After the emer- gency brakes, nothing there was else that could have been done. The engine of 331 stop train came to a stopped before the collision. It from 100 150 emergency application. within Engine feet after engineer at the time 331 of train saw it, telegraph was two poles or 304 running twenty feet distant. It miles an hour. speed There was reduction of application no 516. train No of the brakes on it was heard. The throttle of train 516 and the emergency open position. brake running were both and in engineer of 516 was However, any train on the seat. coming force striking from the rear and the lever would emergencj release the brake. engineer The collision was violent. The of train 331 stated. “I whistling.” a lot of possible did extra It was 516 train speed, slackened its engineer but the it, did not notice and wTas possible emergency applied. Going brake was twenty- at engineer hour, miles an train 331 said he believed he could stop about feet. 516, running Train twenty miles an hour, could have been stopped from 100 feet. Train 516, when engine the brakeman on the train first saw it and engineer, notified the something poles like four telegraph dis- tant, he said. The fireman it was six to telegraph said seven poles distant. The brakeman of said that he did not see the engineer of sight. train 516 in It was estimated engineer that the of train 516, from sat, where he could see train 331 coming about five telegraph away. poles The curve of the track pre- and trees vented farther vision. Train 516 engine consisted of an and a only. caboose The conductor engineer ordered the where proceed. and when He him nothing told about a train com- ing from the north when he ordered him out on the main line. The conductor of said: “That was all company I chat had day.” up lined facts, Other if pertinent any, issues, will be noted later. *10 and record tlie abstract compiled Respondent
I. additional for was set cause 1929, appellant. it, April 16, on on served April on Appellant, 1929. hearing April 22, on Rule. this comply with ground did not on motion to filed a and later respondent on court, served Rule herein. the record from respondent’s additional abstract strike short form appellant appeals in the provides, substance, that, in if of the appellant’s abstract with respondent is satisfied and clerk fen file with the appellant copy a record, he serve and shall on set days the cause is before copies least fifteen of said abstract at complete a provides that, where hearing. Rule this court for respondent instance, brought first if transcript is this court appellant shall to the abstract, file an additional he deliver desires to hearing is days before the cause copy of same least five set a day preceding. copies clerk and ten with the It according form. Appellant appealed the short contends filing serving was not time ac- abstract additional Appellant any 11. cording does not controvert fact to Rule stated argues abstract, although, reply brief, in his in the additional appellant’s not found in ab- states no fact additional abstract main, appellant correct, In but cannot find in its stract. we Moreover, the evidence we abstract relative washouts its lines. respect penalty prescribed are unable to find in with the rules respondent the failure of to file an additional abstract as time, respect appellant’s filing is the case with an abstract. [Rule 16.] filing Notwithstanding Rule we view are inclined to the that the by respondent of an additional abstract is within the discretion of Moreover, appellant reply this court. admits in its brief exceptions appellant bill of shows that had washouts Oklahoma Missouri, Joplin, Neoclesha, and Arkansas between Kansas. In view of the facts herein and admission, the motion to strike out the additional abstract overruled.
II. Plaintiff submits that we cannot disturb the action evidence, court, overruling trial defendant’s demurrers to the bring because defendant failed to up all the evi- By relating dence to the filing issues. an addi- tional abstract of record, supplying what plaintiff deemed to be omissions in evidence, right complain was waived. The contention is overruled. [Nordquist (2d) W. Nordquist, 583; S. Parks v. Marshall, (2d) S. W. 590.] *11 bring the action argues the facts do III. Defendant that ’ in Liability the work Act, because Employers
within Federal the engaged employed, plaintiff’s and was which intestate x commerce, or injury, was not interstate time of the the of closely part a it. practically so to it as to be related by rules enunciated guided, determinations, be in our We are to Q. v. In B. & Railroad by Supreme Court. C. United States say: 180, c. “It is not im Harrington, U. S. l. the court 177, engaged in com interstate portant previously he had been whether engaged be so after contemplated that he would merce, or that- it was performed.” Illinois Rail duty In Central his immediate had been effect, in that Behrens, 473, held, 233 U. is the true v. S. road by engaged railroad test, provided employer a common carrier is being by the done commerce, in nature of the work interstate is the injury. at employee the time develop that,
However, if the an inference facts and circumstances engaged in plaintiff’s directly intestate injury, at the time of closely commerce, or his work was so re- interstate that the nature of practically part of his it, it as to be a the determination lated to jury question. In inter- employment interstate commerce was a we preting respect arising, inference evidence with to such an develop are aware that the facts more than and circumstances must conjecture a of proof, speculation. scintilla or and Joseph Railway States, In & St. G. I. Co. v. Fed. United effect, hauling by said, it is rail that material interstate repair be used road to in the its roadbed is interstate commerce. employed develop plaintiff’s The facts morn that intestate that ing generally indiscriminately commerce, and for he interstate switching had been cars with chat loaded rock and thus started repair other states to [Pittsburg, C., transit defendant’s roadbed. Railway L. C. & St. Glinn, Co. Fed. is a It fair in 148.] evidence, think, although ference from the we fact is of little importance, that the cars loaded with chat, rock and switched plaintiff’s previously intestate that morning, were destined to the repair its roadbed in importance, however, Kansas. It is superintendent defendant’s directed the conductor of shortly before occurred, get many possible out as as collision day for the end, south to-wit, for Oklahoma. Pursuant to the superintendent’s direction connected therewith, the record ad plaintiff’s vises intestate, injury, at the time of driving engine siding Oronogo to the switch empty cars ballast to be preceding From later loaded. facts an inference arises that the empty cars, plaintiff’s ballast intestate was then proceeding when get, loaded with rock -were be chat, that day hauled foregoing in- If the roadbed. repair defendant’s Oklahoma continuity move- is, we think permissible, ference cars, and the ballast empty move going to in thus
ment for the Oklahoma ballast cars said contemplated movement temporary broken held to be be indicated, could not purpose Thus- it re- loading cars! movement interruption their intestate, the- warranted an inference sults that *12 The engaged commerce. in interstate collision, was of the time jury. for was question negli- develop its the facts fail to that asserts Defendant
IY. submitting erred in resulting the trial court gence, that jury. the cause to finding ivas
(a) justified the that defendant ^16 ^ac^s negligent Rule 331 in violation of operating train in moving in track in the 331 the main that was train yard know, speed, see, limits in could or excess that crew its stop. plaintiff the track to and clear, prepared be to Both defend except interpret yard limits, all, in first ant this rule to mean that class half trains, prepared stop must move to the distance that seen, known, the main track or be clear. Defendant refused was to upon to stand its the evidence at close of demurrer to offered plaintiff’s introducing case, but evidence its lie- went forward ruling plaintiff half. Consequently, demurrer, on such is entitled benefit of all that to the the evidence tends her, to aid whether be it plaintiff that or defendant. The evidence most favorable to plain going thirty-five 331 forty hour, tiff was that train was an miles to emergency that an application required and of the brakes from 800 going* to 1000 feet stop speed. going to that However, it at twenty at hour, required an miles it 600 stop feet to Again, it. the evidence plaintiff most favorable to was that brakeman on train 331 was watching for that, train when and he first it, saw it was four telegraph poles, or 608 feet, distant. It is evident then sub that stantial evidence obtained that 331 running train was at the time of collision in a speed excess of prepared that stop it was to interpretation accordance with the on,, relied rule -and that stop. ruling it did not so Our think, by. we justified,, Chicago, & Railway Rock Island Pacific v. Wright, Co. 239 U. 548. S. In ad dition, follows that, engineer as the conductor of train 331 likely knew that train 516 running was to be on the main track, a speed of from twenty forty miles an hour, in view of the curve inability and the see, negligence. Moreover, knowing that likely 516 ivas running train to be track, flic same negli gence the crew 331 whistle fail warn [Toledo, & Railroad Co. approach. St. Louis Western its 276 U. S. Allen, 165.] plaintiff’s injury avers intestate
Y. Defendant that 93. proximately solely his violation of Rule directly, caused plaintiff "-^e most favorable both and defend- ev^ence just collision, en- that, prior to the ant tends to show gine attached, running twenty 516, with caboose miles hour, feet, stopped could have been in from and that engineer traversing going point curve pole collision see of four or 608 lengths, could a distance feet. It evident, therefore, driving engine that intestate was stop could the distance he so he Avithinone-half could see. violating Rule 93. Consequently, he was not develops,
YI. asserts Defendant record as a matter law, plaintiff’s intestate assumed the risk. The burden defendant, proof assumed the risk was on Michigan Railway Kerse, Co. v. U.
[Kanawha & assumption-of-risk S. rule is stated in Chesa 576.] *13 peake Railway & Atley, 310, Ohio v. Co. De 241 U. S. l. c. Chicago, Railway Rock Island & Pacific v. Co. l. Ward, U. S. c. thus: “According to our decisions, is, settled the rule that not duty employee is the of an to exercise ordinary care discover to dangers extraordinary may negligence that arise from the employer or of those for Avhose employer responsible, conduct the is may employee the agents but that employer that the or assume his respect proper have exercised care with his safety to until notified contrary, the danger to unless the Avant of care arising from so ordinarily it are obvious an person, that careful under the cir cumstances, would appreciate observe and it.” deA^elop The facts conductor of 516, knowing that the train that train had not passed and possibly it, train 516 plaintiff’s that would meet ordered proceed intestate Avith to on the main track in without forming appears him of those tending facts. No evidence sIioav plaintiff’s that intestate had to know reason that train late, AAras likely any or coming that he Avas to meet it or other train south. We may infer from the eAddencethat he Avaswarranted in anticipating a clear track.
As jury from substantive the evidence found defendant negligent, question It is that is evident, concluded. therefore, plaintiff’s that did such negligence, intestate not assume until he Avas notified the contrary, or ordinarily prudent unless it Avasso obvious an per- it. We are Avarranted, from the appreciate son would observe and m (hat observe did not noiified, not concluding be
evidence, ivas Con- negligence. 331 or defendant’s approach of train the either so ob- negligence of defendant question is, was the sequently, the circumstances, the ordinarily under prudent person, vious that- that it was obtains appreciate postulate it? The observe and would ordinary dis- care to exercise duty intestate to plaintiff’s the not negli- from defendant’s dangers arise the extraordinary cover assuming its justified defendant or ivas gence and that safety. At respect with to his proper agents care would exercise visibility running a with his curve he was the collision time of the expect approach Without reason to 600 feet. to about limited expect every a clear reason coming south, but with of a train proceed tends es- to him to of the conductor as the order track, charged obtaining postulate that he tablish, and with the neg- ordinary discover defendant’s duty care to to exercise with plaintiff’s in- assumption of the risk ligence, think that we fact jury question, especially in view of the least a testate was at only discovery intervened which make few moments that a Moreover, view, we inclined to the al- are approaching train. unnecessary it, that the want of determine care though such, contributory guilty of involved intestate, if he Railroad, assumption of risk. negligence rather than [Schlemmer Railway 590; Purucker, Co. v. U. S. Erie 220 U. S. 320.] give refusing court complained erred in VII. It requested defendant, instructions offered eight withdrawal assignments negligence ^ie withdrawal certain unproven that are averred or abandoned. The instruc- request relate tions to and court to refuse to con- negligent operation ascertaining of train 331 sider without 516; negligent operatives location failure of the of train lookout; keep proper negligent failure of train 331 to negligent approach; speed 331; negli- warn its *14 gent stop danger failure to or slow down 331 train after the be- imminent; negligent came failure plain- of warn defendant.to likely tiff’s 331 approach intestate that train Avas at the time of neglected collision; 331 that whistle; train to sound the and that the speed 331 of could be neg- rate not considered as of an act ligence. assignments negligence, hypothesized
The three of plaintiff’s principal instruction, sufficiently developed permit were finding a jury. by They of a by them related to Adolation defendant anof negligent operating rule, speed a and failure warn. It results attempted instructions as that such withdrawal to AA'ithdrawthese
791 assignments negligence jury of Even properly from the were refused. assignment unproven, though negligence a certain of is abandoned or concerning unproven aif withdrawal instruction the abandoned or assignment assignment negligence negligence an either affects properly jury, submitted to the or Avould to confuse the jury, tend every properly refused. As withdrawal instruction offered it they effect, properly have had this were refused. would [Unter 755; 296 8 Tober, (2d) 607; S. W. Reith Wells, v. v. S. W. lachner 9 (2d) W. Railroad, Clift S. 972.] by
VIII. The five court refused instructions offered defendant. question 4-R was properly Instruction refused because the of the damages any neg- due contributory reduction ligence plaintiff’s fully by intestate covered given. other instructions 5-R Instruction should not have been given, empty because it assumes that cars, which train way place on its to haul loading, and for were then en- not gaged in interstate commerce. 6-R Instruction not based hypothesizes issue, places evidence adduced and a false that it proof plaintiff burden directs if verdict defendant jury plaintiff’s found intestate was not, at the time col- lision, hauling point loaded cars billed destined to a outside Mis- 7-R by souri. given Instruction was covered other instructions to the jury in behalf of defendant. Instruction 8-R by was also covered jury. other defendant’s instructions submitted IX. principal Defendant says attacks instruction. -Tt stopped the record Avantsevidence that train could not been have employees Avithinthe distance the could that train have seen they the track be clear. It is known evident that knoAY track not. clear, did not Avas for it AAras vision, brakeman, As to Avhoacted as lookout for engineer ap- testified train that he first saAv train or proaching telegraph poles, feet, away. four The evidence running develops thirty-fiAm forty Avas or miles an emergency stop speed hour, and that an at this could be made not less than 800 feet. Other eAÚdence tended show that just running prior collision, tAventy to the Aims miles would take 600 feet to hour, emergency stop. and that make an Surely refutes this Avasevidence that defendant’s contention. reading of the instruction convinces us that
A defendant recpiire jury saying does not to find that train error negligent beyond ran speed, its rate reason of and did stop employees distance that such could, within the ex- *15 792 bp is lo It true clear. or known ordinary caro, of have scon
ercise but the stopped,” not be uses words "could the instruction the as tantamount words verbiage the the instruction construes of stop.” "did not the rate for submission of no room the argued is is that there It negli- act of operated as an being was train speed
of at this the postulate evidence argument based on the that gence. is way be- point of half north the occurred that collision establishes could see time crew of each the trains the the tween the two effect, is to that but evidence that defendant’s other. It is true running only 331 was train its shows that also that evidence true stopped 150 feet. The most evidence eight hour, was miles an and thirty-five running 331 was train plaintiff shows that favorable forty may be inferred then that train did hour. It miles an brakeman, watching the was that who stop not hálf the distance Even if it, to-wit, 600 feet distant. train for saw train first twenty miles an running hour, the evidence not more than was required any it. stop 600 feet event to shows that it portion of complains reading: of that the instruction Defendant Berry W. further that said William did know you "And if find not ordinary approach care not know the or exercise of the could place, employees 331 at of said train said time that ordinary operating train or in the exercise knew, said care should presence place known, of at or near said have argues portion said track.” It inconsistencies above if instantly apparent, for, crew of of the instruction train are duty discovering plaintiff’s with train 516, were cast in- duty discovering approach testate also cast with the train 331. The crew of train were warned watch for train they likely meet 516, as were the track. On the other hand, anticipate Berry coming of any had no reason or time, other the main track at showing train on there was no any train was due. It evident that the of the situations two running crews were same. The of train 331, not under the evi- negligence plaintiff, dence favorable most as heretofore shown, duty exercising intestate was cast with ordinary negligence. Consequently, care to discover defendant’s question Berry knew or have known, should the exercise ordinary approach care, properly of the sub- jury; inconsistency mitted to the and we see no in the instruction as asserted. complains portion of a reading: instruction
Defendant employees charge that such you "And further find if train 331 ordinary care to warn said use William failed to W. Berry of *16 Berry if approach argues that, the of if so.” Defendant proximate 331 coming, warning saw train was the then a lack of not though of the the injury, cause for useless. Even it would have been necessary respect, as in still it instruction was definite as this not negligence nothing, assignments were avails defendant for of the and, as the find- conjunctively, submitted this other instruction ings negligence be instruction held as submitted cannot the portion, indefinite, if is sur- erroneous, it is evident that this even plusage Moreover, and as evidence ineffective error. defendant’s Berry approach of the 331. to show that was oblivious tends part knowledge crew of train 331 With on the the that running duty likely track, and be the main the cast with whistling, in that train not view evidence did ivhistle Berry’s obliviousness, jury do not think and we that the was misled charged prejudicial. the error or that B
X. is It said that Instruction constitutes reversible damages several reasons. The measure is the amount error 'Berry during would have his their contributed to wife joint that, lives had he killed. not been is al- It said though age probable the instruction the mentions and expectancy in plaintiff, ignores authorizing expectancy life her in jury the they given award her such find sum as he would have her during his life had not been In killed. view of the evidence that plaintiff was years younger seven than her husband and that her expectancy life greater, respect the instruction in this was not prejudicial. Moreover, jury they the instruction tells the that should consideration, fixing take into damages, age probable the expectancy in plaintiff. Railroad, life of v. 259 S. W. [Gill 93.] It is said that the is instruction erroneous that did not re- quire jury expense find that incurred was reasonable
for the services The rendered. instruction authorized the jury damages plaintiff to award for the ex- reasonable any, if pense, you may believe and from the find surgical for medical, evidence was incurred hospital treatment, necessary on was made injuries, any. as account said if We think tenable. criticism is objection to The next the instruction reads: petition alleges “The expense incurred medical deceased the sum that $1464.90. The paid hospital plaintiff proof drug is that bills, amounting $410.65, bill Dr. Grantham in the sum of bill $100, of Dr. in Neff the sum of $53, and Balsley’s bill, Dr. which was approximately $899, argued paid. been It has not evidence this shows that these consequently, and, court probate been allowed claims had not by defendant objection made voluntary. The payments were element not constitute bills did the trial was these petition. count of recover on either damages could for which she questioned. be cannot recoverable properly were That these sums urged the trial. urging was not now objection defendant The Turner, Bank [Exchange against defendant. point is ruled (2d) 425, l. c. 14 S. W. 432.] to the amounts instruction reference is said It *17 petition damages thus au the ^or as PraJe^ Chesapeake & authority of On the is error. thorized Railway Carnahan, 241, point 241 U. S. the Co. v.
Ohio against rulings dispose the is ruled These also of also defendant. refusing jury give the de contention the court erred 17-R. fendant’s Instruction jury gave XI. instance to the plaintiff, At the the court commerce, defining postulates thus
instruction certain as interstate authorizing jury engaged plaintiff’s find intestate the hypothesized all
suc^ commerce if it found the facts hypothesized, exception therein. The facts with the one which previously we discussed, have did not con- commerce, stitute interstate postulates even if true. were stated conjunctive, necessary jury every and was for the to find one true they before could plaintiff. jury find for As the cer- found tain facts true, to be previously have we and de- discussed termined Were facts from which an inference arises engaged collision, intestate was in such commerce at the time of the it is immaterial postulates the other hypothesized are in the instruction.
XII. It said that the $10,000 verdict of plaintiff awarded petition first count is excessive. The first criticism is presumed that the verdict is to indude the
sum expense medical $1464.90, which was proper not a item of damage. We have heretofore dis- posed of this against contention defendant under Para- graph X of opinion, this and need not discuss further. The second criticism is that $8540 for conscious pain and suffer- ing wages and loss of is excessive. Deductions from the evidence ad- vise jury that the probably awarded the sum $7500 pain suffering. Plaintiff’s injured intestate was June 1923, and died November 1923. In the interim of over five months, he suffered major five operations, including amputation leg. of a In crushing leg, a comminuted sustained, collision, besides injuries lungs, bladder and his Internal also resulted to fracture. sojourn of During five and ribs broken. his kidneys, and three were excruciating hospital, half he suffered intense months such say We cannot that the verdict was as pain, and faced death. v. Railroad, court. S. W. conscience to shock the [Talbert (2d) 762.] judgment be affirmed. It is must so ordered.
It follows that Cooley, (7(7., concur. Eenwood and
PER foregoing adopted opinion by 0., CURIAM: —The Davis, All opinion judges as court. concur. Finance, S. Ap- Commissioner ex
The State rel. L. Cantley, Meyer Tailoring Company pellant, (2d) al. 25 S. W. et 98. Two, February
Division 1930. *18 Shartel, Stratton Attorney-General, appellant; F. E. Wil- liams of counsel.