*1 sufficiently substantial character to establish the oral contract al- leged prescribed or to answer, procedural his meet the tests adjudicated announced in judg- rules similar cases court, this reversed, ment nisi should be and the cause should be remanded with judgment to enter a petition, directions the first count of the adjudging plaintiff, Collier, J. H. title, simple, to have fee abso- lutely, to an undivided one-half of lands, adjudg- the described ing defendant, Porter, simple E. Charles have title fee to the remaining lands; proceed undivided one-half of the described and to partition of said described lands under second count petition. CC., Lindsay Ellison, It is so ordered. concur. foregoing opinion by adopted
PER Seddon, C., CURIAM: The opinion judges All of except the court. concur, Frank, J., sitting. Fleming W. and Francis
Nellie Fred M. Re Fowlkes Wilson, Railways City ceivers of Kansas Appellants. Company, S. (2d)W. 511. One, Division March *3 Tipton appellants. Carr, Moberly John and E. M. Charles L. B. *5 respondent. Rogers Ralph Mosman, & Buzard and E. Griffith *6 LINDSAY, C. The judgment damages had for in the $14,000, injuries alleged sum of by to have been received her passenger while she a operated was on a street car by the defendants. The employed was millinery as a saleswoman in a store Kansas City, evening and on the 3, 1924, way of March while her on place from employment her her a home, one was on of defendant’s cars, street eastbound Twelfth Street. on She took a seat near the stopped rear end Brooklyn of the car. It at Avenue to take passengers. on immediately coming stop after Almost to a the rear by end of this car struck was another car, eastbound mov- ing speed at a of about ten miles an hour. The force of the collision many was of the Plain- windows both ears were broken. tiff seat, was thrown from her the floor of testified onto the car. She that she did happened not have a clear what there- remembrance of after for hours, clearly got several and did remember how she up got car; and trying get off the but she up remembered from the floor thrown; between the seats she was where remembered lean- ing against something thought which she the front of the was door car; sitting stopped, remembered bench near where ear had on a collision; and people gathered place a crowd about the walking, home, that she started remembered at times and different on the way sitting curb, finding down remembered her- Street, self Thirteenth home, apartment on and then at 1310 at Boulevard, children, Benton where with her unmarried a she lived daughter years twenty-two years Dur- old, and a nineteen old. son ing night frequent- pain, nauseated, she suffered was vomited ly. plaintiff’s daughter blood, testified that vomited her mother extremely nervous, sufficiently and was at herself and not at A happened. time to relate much was called of what had doctor day, plaintiff, next he her nervous who examined and testified found places hysterical; her found a number of bruises and sore on principally spine and person, about lower of the across the pelvis. day following that, On the son called Dr. Dorsey, she was who examined and at his direction taken said, Mary’s necessary, the in or- Hospital, being to St. doctor requisite She re- der that she have the care treatment. could more, there hospital twenty days treated mained at the home, her Dorsey; afterward removed to thereafter Dr. osteopath, Dorsey. and also Dr. for some an treated months Dorsey’s had suffered a strain of testimony was that the Dr. tilting pelvis. causing He also joint, the left saero-iliac hospital, she was taken to the at the time characterized her condition spasm.” He amplified by pyloric condition, upset, as “an nervous being exaggerated muscular action pyloric spasm defined stomach, which closing causes the the outlet. spoke He further spasm “real outlet, which will close awhile, and then open, then up again, shut especially when food in the stomach.” evidence for the prior was to the that, effect ac- to the cident, she was a healthy work, woman and able to and did work in regular employment, every day; afterward, but that as a result of said injury, she was any all, obliged unable to do work at *7 use a in walking, cane away apart- not go and could about from her ment person. without the aid some of other reference will Further be in questions made to the evidence connection discussed. complain
I. The defendants of action of trial court giving plaintiff’s refusing 1 de- 2, instructions and and numbered fendants’ 4 thereto, instructions 10. In it insisted and addition is prej- grossly excessive, that of the verdict and the result bias and is udice.
Plaintiff’s 1 Instruction is as follows: court from jury you
“The instructs the that if believe evidence upon passenger that the car defendants at the was a of a time then, plain- she claims have injured, having received upon obligation tiff car, board of such due defendants to of among highest degree practicable was to of care use business, kind of prudent, experienced skillful men that same (if you a believe carry of the defendants safely, and failure degree con- care would failure) highest there a use such of responsible part, would negligence stitute its and defendants on negligence, any, plaintiff, from such injuries resulting all if there was a col- any. you evidence if And from the that if believe which defendants, on one of operated lision between cars two passenger there- a passenger (if you believe she was a of some is that was occasioned on), presumption it the defendants proof cast defendants, and the burden of that fact negligence and establish presumption this of to rebut any, if injuries, that the part, and negligence on their there was no which cause some accident, inevitable by an were occasioned avoided.” highest degree care could not of many times approved which has been The instruction is one discussed instruction copy of the It is literal eases of this character. 435. Mo. Railway, 220 Metropolitan Street approved in v. Price Fleming, Trowbridge v. 420; Mo. 255 Railroad, Powell v. See also Primarily, grounds. on several 611, 269 It is now assailed S. W. proof de- the burden shifted it asserted injury finding requiring fendants without negli- presumption reason this was improper until arises carrier, gence, never on the 726 established the relation of carrier, accident unto
ward occurrence, and resulting injury. A long
line
cases
cited:
Robinson v. St. Louis & Sub.
103
Railroad,
App. 110, 114;
Mo.
Lemon Chanslor,
v.
68
340;
Railroad,
Mo.
Hurck v.
39,Mo.
c.
l.
47; Van Tresse v.
Co.,
(2d)
Public Service
1095;
S.
Laible v.
W.
Wells, 296
428,
S. W.
430;
Metropolitan
Gardner v.
Ry., 223
Street
391, 419;
Mo.
Trowbridge
Fleming,
v.
Next, is complained instruction, allowed the presume injuries, proof placed of accident, from the de- disproving plaintiff’s alleged fendants burden injuries, if or, she injuries injured, proving that her did not result from the applicable accident. As thereto, the line authorities counsel cite above mentioned. objection
The next is, plaintiff’s the “instruction submitted case on ipsa the res evidence loquitur doctrine, after contradiction, clearly,
demonstrated without *8 thereby knowledge specific accident, the had the cause yet are broadening proof.” There made the the issues noted, the objections will be but other made instruction which to this chiefly requiring three consideration. mentioned are those part plaintiff pleaded negligence The the of defendants. general on charged the cars as the petition The the collision two resulting plaintiff’s injury. The case in negligent the act doctrine, under the petition in therefore one stated general denial. was a ipsa loquitur. The answer res specification now the third defendants, under for Counsel case out of took the plaintiff argue that the evidence considered, who called the motorman loquitur. The ipsa rule, res testified examination ear, who, direct operated rear on his front in with one his car collision of of the of the fact occurrence cross- 1924. His March, Avenue, the 3d of Brooklyn on of it at follows: examination No, A. sir. purpose? car “Q. into on did not run You it? A. Yes.” you help could not “Q. into because You ran is as follows: by counsel for His examination redirect work. would “Q. help it? A. The brakes you Why couldn’t stop it you tried to working up “Q. until The had been brakes con- little had a that —I before They worked A. had time? fusion with them before. Yes. A.
“Q. stop you it before? But had able to “Q. And you on this some stop occasion when undertook to reason sir.” they it? A. correct, Yes, failed isn’t to work. That excused, immediately The witness was then but was recalled for further direct examination, as follows: “Q. Mr. Sadler you asked about trouble Had with brakes.
you had some trouble before this? I little A. had a trouble before that.
“Q. passed And you before inspector had at Twelfth and Wyandotte, along in there? Yes, somewhere A. sir.
“Q. mean you passed inspector? You had you trouble before A. Yes, sir.”
We first, consider the contention of defendants the evi- just quoted, dence only way tending any explain evidence ipsa collision, rule, made was not within the res case one loquitur. Metropolitan
In Price v. Railway, Street 220 Mo. similar a case charged bar, only general negligence. case at In petition train, which, that case a while on cable moving up an backward down the incline, stopped, and then started running incline, and another increasing speed, back with collided with plain- whereby plaintiff injured. defendant, cable train tiff introduced as a number of witnesses of her case chief used, appliances gave testimony who much the character of operation train, and manner of the cable condition immediately prior track, appliances, time, and of the at in- going up time the collision. motorman testified that put grip he on the auto- snap, cline “his and that broke stop the unable to brake, brake, matic and then the ratchet but grip and found train;” he that after took out the collision be- throughout. was contended broken, being It break fresh specific proof some put in in chief cause the on her case presumption precluded from thereby negligence, acts of she was petition. That under entitled to which she as- doing she said, “In so 1. c. 45fi.: denied. It was contention was *9 making out assume not to burden she did sumed a upon resting the right of case, her the prima-facie not lose but it does what clearly show does not if introduced presumption, the evidence so Massachusetts certain reference to After cause the accident.” did 457: said, 1. c. situation, stating rule, in like decisions, the the pleads that plaintiff wherein the from a ease “This is different negligence. of specific acts by or more one collision was occasioned record, of an admission dignity of pleads the she so rises to When points so, only but Not accident. knew the cause of the that she recover, them, and prove acts, and must specifically negligent out prove attempt A mere pleaded. if upon negligent acts all, at knows hardly justifies the conclusion negligent acts the cause accident.”
728 The rule stated in the is in Price case accord the authorities with generally. 1028, 1029, C. J. applies [10 sec. It only in cases 1427.] where the is charged negligence defendant generally, and not specific where acts alleged. which injury caused the are A case upon we notice question, is Kinehlow K. City v. Kansas V. & W. Railway, 264 S. 416.W. In that case the rear end of the seated, stopped car in which the while at crossing,
a street was struck by another car. The cause of the collision was colliding the defective brakes car. by plaintiff, motorman of that was called car as a witness and operating “stopped”; testified that the valve for the brakes giving he knew it was trouble out of order had Disposing objection several months. an instruction for made to opinion Small, C., said, this Division in an 1. c. 420: alleges plaintiff’s petition specific negligence, “It contended only general negligence but alleges is admitted it of defendant operating injury. its cars of the Under such circum cause bjr stances, proof specific negligence plaintiff does not acts of presumption of defendant’s which arises from waive the passenger proof relationship in of carrier and jury.” not suf testimony of in this ease does the motorman deprive itself, case; fice does not of change the character of the hold the therefore we presumption, and of the benefit of the issues subject objection it broadens the instruction is not objection to beyond defendants’ proof. therefore overrule We testimony motor upon 1 plaintiff’s instruction founded man. stated&emdash;the the in- assertion that complaints first recur to We proof, the burden of prematurely shifted improperly struction burden injuries, placed the presume allowed an- counsel disprove The cases cited same. defendant negligence on the presumption of actionable rule nounce the up- must be founded character in cases of this defendant carrier, the oc- showing the relation of on evidence operation in the not usual other event of a collision currence Among passenger. therefrom, cars, and resultant announcing case, and of this the character cases counsel of cited Chanslor, 68 following: Lemon v. are the foregoing essentials City Kansas v. 39; Van Tresse Mo. 340; Railroad, Hurck v. Mo. 641; W. Dunham, S. v. 1095; Stofer Co., (2d) 4 W. S. S. P. v. Dougherty 391; 223 Mo. Ry. Co., Street Metropolitan Gardner v. Rail- Logan 428-; 296 S. W. Wells, 647; Laible v. Railroad, Mo. announce cases these all Of course others. way, 183 Mo. show cases burden the rule that the *10 unusual other collision, carrier, the passenger the relation 29i operation train, occurrence the of the car resulting injury passenger. therefrom to the We are also cited to a line cases as announcing the only things rule that is these are shown, after presumption that arises the injury that was negli- the result of gence part defendant, on the only and that showing after such made, is the burden devolved the defendant to rebut presumption that was the result of defendant’s negligence. cited, showing when, Cases as under conditions what what proof' is termed defendant, the burden of shifts to rebut the presumption negligence may be Railroad, mentioned: Bell v. 125 App. 660; Metropolitan Mo. Goodloe Railway, v. Street 120 Mo. App. 194; Railway, 197; Clark Och Ry., v. Mo. v. K. & T. M. 27; Smiley Railway, Mo. Mo. 629. The list not need lengthened by be the mention of others.
Upon question under consideration have in mind be- we cases tween carrier, where there is an unusual occurrence operation instrumentality under entire control of carrier, and where the circumstances of the accident are such occurred, except through negligence that it could not well on appellant of the carrier. Such is this ease. Counsel for per- concede that the in almost identical form instruction cases, argue approval mitted to but stand numerous approval such an authority instruction in cases other is not so, because, several say the same instruction this here, and questions case, never raised present were in this ever which were approved. in the eases an instruction was where such objection the in- case, supra, is stated In the Price here) broadly (identical states struction with the-one it “too ap- sought invoked, casts burden the rule of law way objection general in a covers pellant, misleading.” objections held well consideration. It was to be not under here founded. dispute ease, there was argue in the no
Counsel Price collision; therefore, injured in plaintiff was the fact that there finding in the instruction require that omission to is fatal error, and the omission reversible given in question whether here, because dispute throughout the case. was in collision jured result as a pas question whether includes then, that the fact was a collision. The there whether senger, plaintiff was in require finding expressly instruction does not was not collision, assertion that it with the jured a result of collision, constitutes injuries from suffered conceded that this case and made between sought to be the distinction basis of *11 the case in respect Price to the correctness of the instruction. We are opinion the instruction here, itself, in and of is not mis- leading. It is advisory, and does not undertake to direct verdict. By the first sentence of jury the instruction the were if plain- told that tiff passenger was a duty of high- the the defendants to use the degree est carry failure, of eare safely, to if there awas highest degree eare, failure to use such negligence of would constitute part on of they responsible the injuries defendants and would be resulting any. to plaintiff, any, negligence, if from such if jury The would understand that the failure referred to involved failure to carry plaintiff safely. The second sentence of ad- instruction they found, evidence, if jury vised the under the there was a cars, pas- which collision between the two on one of was a senger, presumption by collision was occasioned some was the negligence of the defendants. “neg- is The
The whole of the instruction be considered. word ligence” carry used, so is of lack of care to as to be taken the sense plaintiff safely. hypothesis that It was used here on there was a used, carrying passengers reference collision cars as so had of —and permitted the collision under the of or that lack care which caused run causing car to or of one permitting circumstances. street The violently carrying passengers, against of the rear end another negligence. neg- It actionable passengers in is putting peril, is such injury reason of ligence only who sustains as to collision. such adoption 3, far went toward Instruction Defendants, their say they which they complain, which negligence theory of Instruction Defendants’ plaintiff’s Instruction
is embodied in they were “to determining the case the facts of told facts and all the question as under whether decide first negligence any is not is or circumstances, there employees, defined servants agent, agents, defendants’ negligence defining you The other by other instruction.” 3, going Instruction 1; and defendants’ plaintiff’s Instruction negligence had question of further, jury that until told consideration take into right to “they had no them, determined plaintiff.” injuries to alleged nature, character or extent pre- 1 authorizes Instruction complaint The requiring first negligent without ’were sumption that defendants in connection injured, be considered plaintiff was proof that Instruction Defendants’ given for defendants. certain instructions may accident jury that an instructs 7, “The court follows: by caused is not therein, person injured happen jury be- if the therewith, and any connected person result injury from lieve the evidence mere such accident or misadventure, your then verdict must be for defendants.” It defined word, then accident. words, “such mere accident misadventure” necessarily referred collision and its result plaintiff. question presented by the instruc- tion was not whether injury, had an but whether her in- jury was the result mere accident or misadventure. The in- struction as worded assumed her as a fact. Defendants’ In- struction first sentence, defined “an occurrence,” unusual of a character such as is to be considered an accident. It then con- *12 tinued: “If plaintiff the injuries received her a result as of some occurrence prudent which careful and men in the situation of de- fendants’ agents, would not reasonably anticipated expected, have or then is in is occurrence what law termed accident, and the defendants are resulting not liable for injury plaintiff.” the Defini- tion of again given. Again, accident was the defendants assumed that injuries. put question received by The the not whether injuries, she received injuries, but whether her injuries has, she were result of an occurrence which defendants’ agents reasonably anticipated. would not have
Defendants’ Instruction follows: “The instructs court jury that required prove the defendants in this not case are what caused the another, car which on was located to collide though cause, even you evidence cannot find from the the exact if such still if shown, or cause unknown and not been after only by all in the testimony case, not offered negli- defendants, but that find that was no by you offered there gence part on the servants sub- the defendants’ of the character you have your consideration, mitted to defendants then the must passenger and received verdict, though plaintiff even their was ’’ injuries any de- part. fault This instruction of her without on her passenger car which was a on fendants assumed that movement) (a alleged collided with car reversal of the other not of the collision was hypothesis and submits the the cause was shown shown, unknown, of defendants negligence and no or was jury defend- that, it Upon tells “of the character submitted.” though (granting or notwithstand- verdict, ants “even must have the injuries her with- that) plaintiff received passenger their ing sup- together taken part.” These instructions any out fault her on instruction. wanting plaintiff’s in now plied the elements said to be assuming the fact instructions Having giving of procured the the submission in present injury, fact, element, passenger a plaintiff whether question The jury. case submitted occurred, collision and while such Instruction defendants’ 1. Instruction facts were assumed Those last-mentioned instruction expressly “located” subjected on the car to collision. The other instructions referred, defendant which plain- we assumed fact of injury. things tiff’s presumption Out of these that her arose in- juries were the result of on the of defendants, and upon the burden was presumption. cast them By overcome these instructions defendants submitted their defense not on ground injury, but, ground suffered no injury accident, misadventure, received was the result of or an foreseen, negli- unusual occurrence not to due and not gence part. on their They submitted the same defense theory of assumption their Instruction 8, but, in that instruction withheld plaintiff. put they Defendants cannot now take out the case what into jury. theory appeal its submission to the on does con form submission as instructions theory to the on shown up- disposition 11. “This of causes court, theory upon the appeal, '0n should determine them presented litigants court; not, in the will not be trial should permitted proceeding upon theory then, when to contest one position by demanding the formal court, reaches this shift its proof court below. facts, admitted practically which were *13 [Meyer 369, citing Farrar v. Drug Bybee, 179 Mo. c. Bros. Co. 1. v. also 162 161 Mo. See 469; Crowley, Railroad, Mo. v. 657.] Goodman Railroad, 200 Mo. Naylor, 594; Chinn v. 583, 182 Mo. Deschner v. 332; Railroad, 453, Walker 193 Mo. law places which the now
Defendants be relieved that cannot upon in their instructions. the assumed them under state of facts cannot plaintiff’s instruction Upon ground stated, the hold that we and improperly theory that it be held be error on the to reversible the defendants, allowed or upon prematurely the burden shifted dis- the burden of put upon defendants jury presume injuries, to proving injuries. is It Instruction 1. plaintiff’s made objections Some are to other “ find jury to requiring the not fatally
insisted it is defective as that the complained were and collision accident the plain from which any disability proximate cause of to purporting “as suffering,” and also might be tiff plaintiff’s to essential omitting elements by cover entire case which is not one recovery.” It be observed that must ad verdict, but a coerce ease, and purports to cover entire visory only. (cid:127) she found plaintiff for necessary It a to verdict No instruc- collision. of the injuries proximate suffered result as Instruction given. asked tion directing a verdict
733 1, and Instruction which measure damages, were plaintiff. the only given instructions for the Under the conclusion we have reached and heretofore as announced to the effect of de- 11, fendants’ Instructions and any deficiency plain- asserted tiff’s Instruction as cause of her supplied de- fendants’ own instructions, and follow, verdict would if jury injuries believed were accident, result of an as submitted defendants. complained discussing
It erroneous as instruction is propositions plain abstract and law, giving prominence undue they injuries requiring
tiff’s without to find that suggested collision, proximately were and caused it is prominence gives it dwells and such undue injuries subject and It disabilities. is not criticism. proposition plaintiff’s application of law is in its case: concrete point as cause of instructions for the collision defendants out fact, plaintiff’s injuries; injuries and those assumed are misadventure, re for the collision an accident or submitted as own sult not liable. In view of defendants’ of which defendants are complain they plaintiff’s instruction well instructions cannot are gave prominence injuries. objections undue overruled.
IT. is as Instruction follows: Plaintiff’s verdict is the court the “If and instructions of under the evidence damages duty assess your favor becomes it then against the defendants in favor plaint reasonably compensate will amount as arriving received, and in any, injuries, if iff you your may into consideration take at verdict nature, injuries, her dis any, if character, extent of any, mind, if which any, body pain and' ability. if pain any, if and the injuries, said a result of h suffered as reasonably plaintiff is disability, any, if which body mind *14 any. injuries, if of the a direct result in suffer the future certain to verdict, any, exceed to your if should event “In no plaintiff’s in dollars, claimed the amount thousand twenty sum of direct not mean to does the court naming amount petition. this In merely men- sum, but sum, any this or you in find for to petition.” plaintiff’s in mentioned the sum tions improperly related “is instruction this complaint that 1,” the, also plaintiff’s Instruction by, of errors and inoculated negligence, defendants’ that jury find require fails to disability injury or plaintiff’s of cause proximate if any, was 734 assessing damages against argued
before defendants. It is this absence of element from 1, essential Instruction made it vital required finding such should be 2. Instruction Counsel for defendants, contention, rely upon under this the cases cited under assignments 1, against many their Instruction of which cases have concerning been heretofore What we mentioned. have said Instruc- assumption 1 instruction, tion and the effect in defendants’ disposes against of the contentions made 2. here Instruction As we jury heretofore 3 shown, have defendants’ Instruction told the they question negligence, should first determine the should plaintiff’s injuries they consider not and extent of until nature question negligence. had first determined The effect of the given jury other instructions for defendants was to submit to injuries negligence question whether were due to the misadventure, defendants, or, an accident were due to for which This responsible. are contention defendants is defendants overruled. is assigned give
III. There the refusal defendants’ Instruc- tion This instruction is as follows': proof
“The is on jury court instructs the the burden of greater prove your preponderance satisfaction weight testimony, defendants that the were the credible negligence you in in guilty of as submitted to these proof this burden of abides structions, and continues trial, you entire believe and plaintiff throughout the and unless proven by plaintiff has in the case that find from evidence your testimony reasonable satis preponderance of credible negligence, in guilty were as defined that the defendants faction the direct cause of instructions, these and that your de complained of, verdict must be injuries then ’’ fendants. given condemned the instruction is in the exact It terms set Metropolitan Railway, Mo. out Price v. Street said: case. was there “Such page report of that It full at ipsa res doctrine of case where the place in a an instruction no vestige of the doctrine of destroys every loquitur applicable. It form dis similar negligence.” An instruction presumptive Co., S. 913. Of H. P. W. Joseph Ry. L. & in Porter v. cussed St. said, “If l. 915: c. given the instruction there the burden told the had been limited so as.to evidence that she preponderance of the prove by car, while was ridinu passenger upon defendant’s a of said collision truck, a result and therein it collided with a fire
735 she injured, was and this burden remained with through her trial, out the it would not have error, because it would have shown the extent of the burden upon cast her and have likewise shown the burden upon cast defendant to enable it to overcome the prima-facie [Simpson case. Ry. v. (Mo.), Co. 192 743; S. W. Loftus v. Met. Ry., 220 470, Street 119 942; Mo. S. W. Railroad, Stauffer v. ” Mo. l. c. 147 S. W. In the case at bar in 1032.] given structions at the supplied instance of defendants the elements out of which presumption arose the part. on their
IV. D'efendants’ Instruction 10, which refused, was is as follows: court instructs defendants obliged are not provide foresee and against those casualties which have not been
known to occur before may and which reasonably not be expected; and if the defendants have availed them selves of the best known and most extensively used safeguards against they danger, requires, done all the law their liability not to be ascertained appears what first time, disaster, after the proper precaution to be against its oc currence.
"And where appliance, structure, machine or obviously not de- fective insufficient, daily been in long time, use for a and has uniformly proven adequate, sufficient, safe and may be continued imputation without negligence.”
There was no
concerning
appliances
evidence
appurtenant
car,
street
other than that which we have
set out
the testi-
mony
concerning
motorman
the brakes.
was
There
no evi-
as to
dence
whether defendants had availed themselves of the best
safeguards
known and most extensively
against danger.
used
submitted an issue
which
was
evidence,
there
no
[Quinn
its refusal was
Raalte,
71;
error.
Van
Mo.
Baker
Contracting
v. McMurray
Co.,
Defendants called Dr. C. in ¥m. employment many their years, that he who testified examined brought. testimony effect, was, after His that suit was opinion neurasthenic, gave it as that was and he his operation condition was due as suffered twelve or mentioned years opinion plain- expressed He fourteen before. also walk, might better, tiff walked under instructions could have pelvis, physician use left limb. This testified that could nothing wrong standing, tilted and that the manner of he detected plaintiff’s hips pelvis. if tell He asked did not he was: a and a she had strain the time he examined her that at sprain, observed, treat. He tell her it stubborn to which he andi Plain- anything the kind. answered he rebuttal, recollection of had no witness, Iuen, did' sav Dr. tiff. testified that the called An sprain, difficult treat. she and was her that had such trial, X-ray picture days Lockwood, before the Dr. taken two hips in evi- pelvis, was introduced the bones of the “the three picture included that the dence. Dr. Lockwood testified joints, hip vertebrae; pelvis, both all bones lower lumbar findings uoper portion it: “Our He said of of each femur.” and the a,re expressed opinion tilting his pelvis,” and those of an in- atrophy a result of caused an the jury.” could be “condition Lockwood Dorsey present when Dr. he testified that Dr. it, it con- X-ray picture; examined had took he taken finding at time he had made firmed per- the condition opinion hospital. He was of to the manent. conten- many under cases their have cited
Counsel for defendants are cases great of them A number is excessive. verdict tion that the al- cited plaintiff appeals. Counsel by courts of decided equal number. The persons cases involved most ages, various earning power, A disability. condition of review of them space require would an undue amount and even then no exact standard could be established. plaintiff’s age earning power and her at the time she was in-
jured receiving are be considered. At that $100 time ivas per employment. month in her Under this evidence she had lost wages than If $1500 more at the time of trial. re- her permanently ceived earning anything disables from of conse- quence future, in the the verdict not excessive. The members of testimony saw the her and heard as to condi- injury, testimony, before her and the tion condition after- *17 probability permanency. ward and the reasonable its A considera- evidence and cases tion of the cited not convinced us that justified are saying excessive, judg- we verdict and the Seddon, C., concurs; C., ment is Ellison, therefore affirmed. absent. PER opinion foregoing C., adopted CURIAM: The Lindsay, opinion judges as the court. All concur. Ruggeri Clay Manufacturing
Antonio Ap- Mitchell Company,
pellant. (2d) S. W. 775. One,
Division March