*1 1232 (if it lien, however 13337. Such R. A. 1939,

13337 R. S. Mo. S. sec. subsequent it), would be to enforce necessary for Alcazar’s counsel Alcazar’s have owners-plaintiffs to right to the and subservient claim of the upon satisfaction upon its claim made conditional relief de declared and by judgment and decree owners-plaintiffs as Alcazar owners-plaintiffs and termined, the claims of inasmuch as arose out very and inhered in and this action arose the course of Fidelity & S. rel. U. of the same transaction. State ex Hinde v. also Kansas App. 160, 115 W. 1081. See 135 Mo. S. Guaranty 175 Young, App. 289, & 188 Mo. City Rapid Transp. Motor Co. v. Van 5; Dunkin v. 95; Mitchell, 277, W. 94 Tenn. 29 S. W. Roberts v. denbergh, Paige 622. modified, the cause judgment decree,

The and as is affirmed and is remanded. Bradley Dalton, CG.,

It is concur. so ordered. and (cid:127) C., PER foregoing Osdol, Van is opinion CURIAM: —The All adopted opinion judges as the of the court. concur. Rehearing. On Motion eor case, PER Re-examining the we have reached ÓURIAM:— payments conclusions annual in the provided that of installments as 3, 1942, contract of made as of 26th of October should be December year; unpaid each that upon and semi-annual interest deferred and principal 26, balances run should from December 1942. This date upon was that paid which Alcazar into the hands of the escrow $8000 depositary. It was provided purchase the contract of that this sum paid days should be within after Alcazar five was notified Milner option It, therefore, had refused to purchase. exercise its seems that facts, December 1942, became, under the the time when parties contemplated purchase the contract of should become effective transferring equitable -property, title to -the and time when definitely obligated Alcazar became under the contract purchase. n judgment The trial court’s decree should be further modified to comply with respects,-and our views in these it is so ordered. rehearing motion for or to transfer the cause to the Court n Banc en is overruled. Evan D. Francis v. Terminal Louis, Railroad Association of St. Corporation, Appellant. (2d) 39573. 193 S. W. 909. No. Two, April 8,

Division 1946. Rehearing Overruled, Motion for April 30, or to Transfer to Banc 1946. *2 Sheppard Fuller Arnot appellant. Warner L. *4 Tawtges, respondent;

Roberts P. Elam and Rene J. Lusser *5 Rerat (cid:127)& Welch of counsel. *7 Respondent, judg- WESTHUES, Francis, a obtained C. against appellant, Association,

ment Terminal Railroad in sum the $40,000 personal injury ap- of in action. The railroad company pealed. In opinion parties designated course of this will as plaintiff and defendant. employ

Plaintiff in the was of the defendant pipefitter’s helper. as a 1943, Gastorf, On October pipefitter employ also in of de- assigned fendant, stopping was to the task of expansion leak in an joint pipe carrying of a steam to the trains at the Union Station St. Louis. Plaintiff helper assignment. was Gastorf’s on this The joint expansion defective square was in a conduit box about four feet deep, and five feet which was located between tracks and seven southerly eight at the end of the train of the Union sheds Station.

There was no sidewalk between tracks, two but was a these there space of seven covering about feet. The for this consisted conduit heavy of two metal or plaintiff doors lids. Gastorf and removed these lids placed and to They them the south the conduit. were compelled twenty to wait about minutes beginning before their work because heat caused the steam. Gastorf then at- tempted tighten to the expansion joint doing and in so a bolt broke thereby causing more steam escape. to Plaintiff was sent a new for bolt he and when it returned was found had threads thereon expansion tightening be used to enable it to be extended to' defendant shop of the joint. went a machine Gastorf guard plaintiff to on the bolt. He left cutting

purpose of the threads es- steam falling The anyone from therein. prevent the vacuum standing on the Plaintiff was vision. caping pipes from obscured track standing on train cars A northerly of the vacuum. was side conduit. Wabash eight extending beyond and south of number north. seven passenger standing on track number cars were the conduit and cars, however, did not extend to This train of thereof. While feet the north southerly end was several hundred engine was backed conduit a Wabash plaintiff guarding was thus per upon speed about five miles hour. northerly track seven at engine injury. resulting in This struck serious recovery right upon provisions Plaintiff bases his of the Employers’ grounds negligence Act. relied Liability Federal Of warning upon First, given approaching was of the are two: that no engine, second, negligent failing that defendant was to fur- *8 plaintiff reasonably place nish in which work. Defendant safe to urges plaintiff that is not entitled to recover in this case because the any, employed if negligence, by was the of the trainmen the Wa- act bash, urges in this connection that and defendant sections 5162 Mo., and Mo. R. 5163, Ann., 1939, apply Rev. St. S. do not to the later.) Terminal of (More Railroad Association St. Louis. of this Defendant also plaintiff contends that failed to introduce evidence a charge negligence against to sustain sufficient of the Wabash em- ployees warn; for a failure to that the evidence was insufficient to charge sustain the that plaintiff defendant failed to furnish a reason- ably place safe in which to work. dispose We will of points defendant’s in the order stated. All reference to sections the of Missouri statutees will refer to the Annotated, Missouri Revised Missouri, Statutes Revised Statutes of 1939. Defendant in its brief question stated the as follows: 5163,

“Do Sections 5162 R. and S. Mo., 1939, question? affect this provides The former any that railroad which a foreign to leases cor- poration permits or it railroad, to its use shall remain liable for the acts of the other. provides any latter that whenever railroad, railway railway street or other company any permit shall other cor- poration, any running under agreement, upon to cars run its road or track in this state, the corporation owner shall be liable for the acts of the user.”- Defendant insists that the sections do govern rights not the because parties of the by are provisions controlled of the Em- Federal

ployers’ Liability regard Act any without to state statute or decisions. may It be conceded that the federal act controls the ease over any state statute or may decision which to the contrary provisions of

1241 5162 in so far provisions 5163, and federal act. The of sections act. way in no conflict with the federal applicable ease, to this as sue plaintiff as is to person situated Those sections authorize injuries in connection company personal for sustained defendant tracks, whether upon operation of trains the defendant’s with using company other they be trains the trains of some defendant’s or holding theory for says Defendant that the sole tracks. defendant’s not be company such .cases is that the owner will a lessor liable in that performance duty public, its to and permitted escape to strictly duty therefore performing public is its the defendant subject not the inter apply. The sections do not sections are legislature has placed by defendant. The pretation thereon grant person fit as to sue the defendant seen situated good company Wabash. There reasons for the In or the statute. are many injured person for an to determine instances would be difficult it causing negligence injury or lessee. whether the was that the lessor example earnestly at bar. that Take the case Defendant insists defendant-company require rules operators did not engine warning approach. the Wabash sound its was con It company governed ceded that the defendant was in control. Its rules (2d) Henwood, 396, train movements. Smith v. 349 161 W. Mo. S. (3). c. 236

232, apply l. We hold the sections do to the defendant company. Atchison, 865, See Clark v. T. & F. R. 6 S. Mo. (2d) 954, (2, 4) (5) (6), many W. where of the l. c.

points adversely made the defendant are discussed and decided Defendant, however, says to its' contention. is it bound under law permit Wabash its and therefore has to use facilities no choice and not be We see how that should held liable. do not change public All public could situation. utilities must serve the indiscriminately. coming So the defendant must all railroads serve *9 indiscriminately. the city Merely into com because the defendant pany permit must the railroads its facilities to the various use operations. point does not from take the control The defendant over against defendant. must be ruled upon is that the evi point by the defendant

The next relied give any duty enginemen to a part to of the on dence failed show nor warning. proof made, was was is no of a custom It insisted that company required warn defendant a that the rules of the it shown employee theory plaintiff was an This, on the that ing given. to be' yards duty it his to on look working in the and therefore was a question whether was will not discuss custom We out. company required defendant a whether rules proven, or plaintiff’s petition to base warning, the reason that is sufficient duty theory The upon of a common law to warn. ease recovery a jury theory opinion to such a are of a on we was submitted question jury. a ample to submit such that the evidence was operating engineer Wabash and the fireman Both the of the engine question plaintiff; see there they testified that did not that vapor their The was a of steam which obscured vision. cloud or fireman, engineer track, he testified that could see the rails or but the plaintiff was, was on the side where said he could not see the who standing something rail plaintiff east near which was and that he knew wrong was of so much steam. In such circumstances it was a because ordinary question jury required for a whether care decide a warn given ing blindly through to be proceeding vapor before cloud expected where men were to be at work plaintiff and where been had assigned expected locality to work. Men were to be that because plaintiff’s duty guard against anyone falling was to open into Defendant, however, says warning conduit. given; was that number of witnesses Plaintiff so testified. testified he heard bells ringing engines on other east, tracks but hear on did not ring engine

bell on track seven; Wabash on that he heard warning any kind; no engine that he did not know the on was track seven and did not know what struck him until some time afterward. Plaintiff’s evidence was sufficient to submitting authorize question jury. to the In Borrson v. R. Missouri-Kansas-Texas Co., (2d) 161 W. 227, l. (11) c. (12, 13), this court said: necessarily “It follows that if negative its admissible evidence.is weight jury is for the appellant’s and the instruction positive that evidence was weight negative entitled to more than evidence was properly refused. Springfield Johnson v. Traction 176 Mo. App. 174, 161 S. W. 1193.”

As to what doing was at the time he was struck he testi- fied on cross-examination as follows: stay “You intended to clear of' track 7,No. you? didn’t

A. Yes, sir. “Q. Because the train on track 8 you wasn’t moving didn’t have worry about that ? No, A. sir. “Q. only you track worry had to about -7, was track it, wasn’t at that time? A. Yes. “Q. So if anything along you came get wouldn’t hurt? That is you what do, intended to wasn’t it? A. Yes, sir. “Q. But instead of doing you got over within or twelve eighteen inches of that track realizing without where you were, didn’t you? A. Probably did.” *10 “I looking was track 8, towards looking south in stooped posi- tion like that (indicating), I so through could see there. There was

1243 anybody came there if around so I could see over blowing, wind little ’’ there. track 7.” towards my

“I had back ‘‘ coming bit,' anybody was Stooped around, so if a little over they coming around, so wouldn’t fall coming platform off that ’’ in the hole. negligence of in may guilty been inadvertently

Plaintiff have seven, negligence his however, track would to number stepping close damages. recovery only go mitigating An instruc- but to not defeat given request. point was at defendant’s Also sub: covering tion this question plaintiff’s negligence of jury to whether mitted the was the any negligence the proximate injuries his and not was the cause of . defendant. . question was that trial in Another briefed court erred submitting jury theory to on failed the case that defendant place reasonably says provide plaintiff to safe to work. Defendant place applicable plaintiff the safe rule not becáuse at the time was is steam, injured attempting escape he and Gastorf were stop very thing plaintiff danger which claims made his place work ; plaintiff engaged rendering that very ous was the task of safe now place defect which he claims made his work The unsafe.

following City Ry. Billingslea, cases were cited: Kansas Co. v. 116 335; Co., 367; Fed. Stone v. Pac. R. 293 Mo. S. W. Pritchard v.

Thompson, 348 Mo. 832, (2d) S. W. We 652. the de believe fendant Plaintiff injured any be in error. was not through in cident with connected his work. Therein lies the distinction cases cited and the case at bar. escaping The steam was not the sole danger. cause injured Plaintiff was not the steam. The place dangerous was because of a combination of elements. The escaping causing steam invisibility and the location of the conduit proximity close to the tracks which engines over cars and were permitted any to move at being required time without stop before entering danger all zone, plaintiff’s combined to position render unsafe. We hold that safe place applicable. rule Bailey was v. Ry. 350, Central Vermont U. S. 63 Sup. Ct. l. c. 1064 (5, 6). question The next Did is: justify the evidence submitting the ;ase jury on theory negligent defendant was in not plaintiff reasonably

providing place safe in which to work? Plain depended upon case negligence. tiff's negligence Without the de 'endant would not be liable. ease was jury so submitted to the iy jury the trial court. The was authorized to find for if plaintiff’s injuries were through caused negligence providing in not

1244 inter correctly Tbe trial court work.” reasonably place to a safe S. Co., 318 U. Line R. Coast v. Atlantic See Tiller tbe law. preted Ry. Co., supra. Vermont Bailey v. 444 and 54, Sup. 63 Ct. Central im on and Supreme passed Court States In those cases the United Fed the congress of meaning 1939 amendment of the terpreted the by^ the study opinions, both of those Act. A Employers’ Liability eral by the held that the court will reveal majority minority, and defense of risk as a assumption Congress the obliterated amendment by act resulted the to covered injury person an where any in case In the cir negligence defendant. through of the part in'whole or in question of we hold that the evidence cumstances and under the jury de negligent to was for in case was whether defendant this 439, 189 W. Co., R. Mo. S. cide. v. Missouri-Kansas-Texas Joice question the safe (9). In connection with (2d) 568, l. c. 573 that und§r contends this court which to work the defendant place in upon enginemen duty devolved the to warn rules no defendant’s certainly engine. true, oncoming If that be then the plaintiff of dangerous adding A condition. just another element the that was position unnecessarily dan jury plaintiff’s find that was could well required stop have be gerous enginemen could been because danger likely men at work. entering zone where were fore Ry. supra. Co., Bailey Central Vermont v. assigned ruling trial

Appellant error to court following questions: answer the “If that permitting plaintiff to you ringing it?” engine been could have heard Plaintiff bell had he could. Plaintiff was also asked: answered that anything noise there about the manhole that “Was would hearing engine an bell you ringing, ringing from if it prevent was any fifty you it was or a hundred time while within feet where | sir; A. I standing? No, could have heard it from I were that dis- ” I ,tance. I urges questions that the called for part Defendant conclusions on questions the answers were such. The the witness did I part opinion witness, however, plaintiff on the of the call for an had interfering hearing. reference been examined with to noises with his Note he was asked: on cross-examination ‘‘ two noises there: noise of you So had or locomotive hissing coming leaky track 8 and the steam out line, Diesel on of that Yes. you? A. didn’t your

“Q. course, with hearing, Of that interfered didn’t it? A. I heard from the side.” Well, bells other jvere ringing to where other bells The distance was shown, not but B beyond they eight been track number must have and therefore someB away. It have would been difficult to present distance all cir-B jury pass intelligently could question so on cumstances ofB engine have heard the bell of the on track plaintiff could whether ability on to hear bells Defendant cross-examined his seven. hearing prevented warning him from that the noises

and insisted enginemen engine. We given him the the Wabash are of in the circumstances it was not error for the trial opinion that court- permit questions. witness In to answer Harrison v. St. (2d) 841, Francisco R. 339 Mo. 99 W. l. c.

Louis-San *12 following: quoted approval 844 court with (4), this “ opinions experts be ‘One test whether should received “is jury by will receiving whether the court or be aided such evi- ’ ” dence.” Plaintiff, expert, surroundings. an while not was familiar with the 22 J., page 528, 611, In following: C. sec. we find the regard tendency important

“The modern is to it as more get to the truth quibble of the matter than to over which are distinctions many impracticable, permitted in cases and a witness is a to state by him, though fact known to or observed even his statement involves ’’ element, a certain of inference. plaintiff

The manner in which was questioned, when in considered light of defendant’s contentions and cross-examination, was not error.

Finally says defendant that the $40,000 grossly verdict of is Plaintiff thirty-eight years excessive. was age, earning about per $40.00 $45.00 week. He had earned a by livelihood man hard principal injuries labor. His ual consisted left, of a fracture of the humerus, healing where after it was discovered that there was a- alignment; variation in the right fractured clavicle, resulting in a shortening; a separation at the joint acromio-elavicular and also-an' injury to left radial nerve. The medical evidence plainr' was n permanently incapacitated tiff had been for hard manual labor, but' that he probability would in all be able to do light some work. In compensation his petition asks for for pain such he, and suffering as he has past endured and for such as likely he will endure the future. evidence plaintiff was that had suffered paiu much and would continue to do so. reviewing Without question this at length will we state that we have read and considered the following question and-other cases on the of excessiveness of verdicts. O’Brien Rindskopf, v. 334 Mo. 70 1233, S. W. (2d) 1085, l. c. 1093 (10); Noce v. St. Louis-San Co., Francisco R. 337 689, Mo. 85 S. (2d)W. 637, (9, 10); l. c. 643 Westenhaver v. St. Louis-San Francisco R. Co., 511, 102 (2d) 661, l. Mo. W. S. (6, 7) c. 665 ; 340 Cason v. City Kansas Co., Terminal R. 123 (2d) S. W. 133, l. (12, c. 141 13); Jones v. . Pennsylvania Co., R. 163, 353 Mo. 182 S. W (2d) 157, 158, l. c. (2, 6), page (8); 159 also 161 Joice v. Missouri-Kansas-Texas R. 439, (2d) 189 W. Mo. l. c. 577 (30, 31), The latter two to be

cases mentioned that economic conditions were also considered. plaintiff’s injuries and the above Giving due consideration to eases $25,000 damages, plaintiff conclusion that as cited is our it harmony including pain suffering, element of and will be in his If, therefore, with amounts allowed in cases heretofore decided. days file in within fifteen this court remittitur will $15,000, judgment of will sum the trial court be affirmed original $25,000 judgment trial as of date entered in the court, Bohling Barrett, otherwise and reversed remanded. CC., concur. opinion

(cid:127)PER C., CURIAM: —The is foregoing Westhues, adopted opinion judges as of the court. All the concur. Corporation, L. Gerber, William Jr., v. Schutte Investment Company, d Appel- Corporation, Verbury, Incorporated, an lants. No. W. (2d) 39541. 194 S. 25. *13 One, April 8, Division 1946. Rehearing April Denied, 30, 1946.