*1 21&
death, told (Hall) Mr. Hall change “he wanted him testator said will so give as to Mary Loretta Murphy something, but did not , mention in what, place by him, stock sold and had which he already bequeathed to .her his testimony, in said will.” Such if properly admissible, seemingly thought would indicate that testator inoperative the bequest ineffective rendered and to the extent by shares of stock him, sold and intended thereafter to sub property stitute intention, other by therefor —an if tes entertained ,a tator, by change was never will, consummated and an of. intention which to be in cannot be said inconsistent with the other by tention, bequest will in its entirety, disclosed originally will, by in unchanged testator, and should left general. may, language be specific, But be that' and .as unambiguous, and, opinion, the will is in clear and our' calls parol testimony intention, respecting no or extrinsic testator’s respecting meaning ascribe to testator the clear intended in con unambiguous language throughout paragraph him used remaining will. troversy paragraphs in items of said 576; Bradbury, v. 290 Mo. [Wooley Hays, 566, McCoy Mo. v. In 650, Enright (Mo. Sup.), 811, 264 S. W. 658; Murphy v. 813.] 414, that, if a free from Wood, 104 it is will is Wheeler Mich. held v. general respect ambiguity, the intention of testator legacies be determined specific character of the is testimony. parol language not from itself, the will extrinsic from, herein, us follows, reached It the conclusions executor, appellant judgment favor of nisi should have been circuit judgment of George Hovey,' therefore, and, S. ElKson, GC., Lindsay and so ordéred. court reversed. It'is must be concur. opinion by SeddoN, C., adopted foregoing
PER' CURIAM:—The concur. judges All opinion as the of the court. Railway Com & Pacific Rock Island Chicago, v.
John Gann pany (2d)W. George Appellants. S. 39. N. Liston, One, 1928. Division March *3 Burns,' Henry Luther S. L. E. Durham Hale Houts Conrad, appellants. Gillihan, Davis & Ashby, L. B. Murphy M. P. and Pross Cross T. for respondent.
ELLISON, plaintiff C. The judgment had a verdict and below for defendants, $10,000 damages personal injuries against the. U. George
Chicago, Railway Company, & Rock Island Pacific case engineer. appeal. The Liston, its locomotive Both defendants Missouri, grows grade Jamesport, out collision at. riding the back 1922.
afternoon of June and owned touring Gillilan Ford car driven one Tobe seat of a party. As Gay, by Frank was the third member who along a the railroad station passing public road across re- train. The evidence for passenger grounds it was struck broken, crossing was the railroad planking spondent was that wheels the automobile After the front rough and uneven. rough planking, they struck the track rail of the the first
crossed started the stopped. The driver the motor car bounced and back struck nearly the locomotive again over, but engine got and fender. wheel negligence assignments petition made several respondent’s were: he stood which Those on jury. were not submitted (2) crossing; maintenance (1) negligent construction (3) whistle; signals bell warning statutory give failure other appellant doctrine, humanitarian plaintiff seen, saw, should train operatives passenger
220 position a peril imminent on or approaching the track, in time to have averted injuries by stopping slowing the train or warning occupants of the separate automobile. The answers of the two defendants both general contained a denial plea a contributory negligence.
The-respondent’s instruction submitting the issue as to the defec- tive authorized against railway verdict the defendant company only; the instruction n covering alleged failure to sound the statutory warning signals and the one on the humanitarian doc- trine against authorized a verdict already both defendants. As stated, the verdict returned jury against both defendants. assignments
The of érror appellants are as follows: (1) Under all proximate the evidence sole cause the ac- cident was the defective crossing, consequence of which the trial refusing court erred in to direct a engineer, verdict for the defendant Liston, in instructing on the two other theories.
(2) against Since the found both defendants the verdict joint must have been on one of the two submitted issues whereon a authorized, verdict was and as support there was no evidence to judgment verdict on grounds, either of these should be reversed as to both defendants.
(3) Respondent’s erroneously Instruction commented on the parties jury. appealed prejudice We out shall set this instruction later. (4) plaintiff’s improper. argument counsel The and conduct of
n foregoing assignments re- A necessitates a fuller discussion particularly respondent, favorable to since evidence, view sufficiency thereof; gleaned challenge but facts appellants may summarized within a nearly pages from the record already been general circumstances fairly compass. narrow plat facts, be- detailing of further with the In connection stated. consulted. low should be public highway figures in the case was a street of James-
port called East Street. As it entered grounds the station from a curve, north it described easterly first southerly, then straight thence ran in a substantially line south, crossing the railroad right angles. tracks There were four tracks. The first track —the one farthest north —was a storage, loading house track for the *7 unloading Thirty-six of cars. feet south of this was the main or through track at which the accident occurred. The train involved passenger was a train approaching local station from the east. traveling
To one highway south on the -view to the east of trains on the main track was obstructed until the house track had passed, explained. day strings been as will be On the of the collision standing of box on the track both sides of the cars house highway crossing. The end of the car on west the east side of the highway overhang, crossing. was close to the of these was cars two is, projected feet and six inches—that the sides that far over cars, something forty rails. near About ten feet north these (cid:127) highway, building. possible, feet a It east- of the cement a along railroad going point, at this to obtain view of the East Street building by looking the cement and the box tracks to the east between brief, A civil necessarily and restricted. cars, but the view appellants testified that appeared as a witness for who 4000 feet a to ranged from a maximum distance field of vision along grade crossing, 312 feet east of the minimum distance track. main from highway, as first came behind
Continuing one south on the thereof, dis- along side the south eastwardly and looked box ears according 225 feet, along main track was within view tance This feet, according appellants. 265 respondent, about From main track. north of the thirty-three feet a about point from finally there, at increased progressively until range of view on south traveller’s track the main north twelve feet about ten or point see east altogether and he could box cars cleared -the line of vision given in Figures mile. than half a more along track the -main for as follows: point were this testimony appellants on seen to be Distance position View from track main down track of main north 285 feet 30 feet 355 feet 25 feet feet 20 feet 515 feet 15 feet 2875 feet 12 feet approached testimony respondent’s trains, listened ways both looked he railroad toto both for protection his own and that occupants of the other car. eight About six or feet north of the stopped house track car (respondent) he looked and listened, position but from his the back he seat could see to the east on account concrete building. The forward, moving automobile started aeross the house at track per two or eight three miles hour and then from six or per miles hour. His coming attention was drawn to from noise west, might he switching which feared be from cars. He continued looking beyond westward passed until the automobile cars. the box Then he east, looked again but saw and heard train. He turned no looking the west station, piled a truck with high toward where baggage swung obstructed view. Then he his back to the head east, noting rough crossing turned, there he saw train away. others, feet called He out' to became get excited and tried to out. that time the front of the automo- At respondent, put bile was track, within two feet to'six in. the seat, eighteen rear ten feet back or twelve to there- further feet forward, hit from. wheels The driver continued but when front *8 rough crossing occupants in bounced, car flew the air the the the got up again had engine the went driver started dead. The partly the when them. the motor stalled over the train struck When away. the probably 100 This was all locomotive was to feet said, however, that at the accident. He remembered of train. time or whistle of the no did he hear the bell signals. statutory Five witnesses sounding As to alarm the at a the train whistled produced respondent who testified were crossing,” of distance “gate the the point them called some of Jamesport, of variously half mile a mile east given which was as a to just be- whistles were sounded the alarm and not that until after said witnesses Three of these fore the hit the automobile. locomotive evidence— There some whistles. they did not hear the alarm making substantial, of sense the still, think, positive, but we not so ringing. bell was jury, the question the the issue a for —that they the locomotive heard appellants that testified Ten witnesses it was for whether as to whistle, definite all of them were but not occurred, were unable these of and some crossing the accident where they could say were though where ringing, the bell was to crew, however, were engineer the train and most of it. The heard ringing the whistle and that the bell positive and definite (a) the the accident: before separate occasions on four was sounded (next crossing (b) “Mill Pond” east of whistle, for the station crossing the collision (c) Street where Question), the Bast one just the automobile was before occurred, whistles (d) a.nd.the alarm struck. collision, story as told of defendant Getting back to the sixty-five were five steel cars train Tn his there engineer. locomotive seventy to long. feet The locomotive and tender probably were of length. about the same forty forty-five It was to feet from the engine front of the back to cab Going window. west, riding right side, on the right could see way. the north side of the itHe who just observed the movements pre- of the automobile ceding the collision.
The engineer forty running perhaps testified train was miles per got station, hour until within about 2000 feet of the when he amade application preparatory service air brakes to station stop. speed thereby twenty twenty-five Its reduced or miles per point hour it 150 to time reached about 175 feet east of grade through crossing. looking There, northwest space building narrow box cars open between cement and the- pass along high- on the house he saw the automobile south track, vay He disappear behind box ears. continued to watch and thirty presently cars, it the south side reappeared on box (according thirty-five the main track admitted feet north of figures the box ears exact distance from south side of inches.) thirty-three feet north rail of the main track was and three as continued do until then, before—and it moving speed of twelve or fifteen miles at uniform struck —was stop engineer thought the would per car either hour. At first the along without grounds, but after it ran the road turn into station track, something slowing twenty like feet the main up until within whistle, sounded the alarm might stop at once he concluded it (not emergency) application an blasts, and a service three short fifty perhaps feet east The locomotive of the air brakes. stop, might'not him the automobile it occurred to when first hour, drifting twenty per miles into the station and was blowing whistle three the car. The he first saw since been brakes, second, all air application first, and
times, *9 crossing. The automobile close the was that the train done after view, the in front of unchecked, disappeared from on, went yet the cross- ten or feet from latter was twelve locomotive, when the right car over the stop with the fourth to a ing. train came The ran 300 and 350 feet be- crossing. (This the train between means stopping.) fore application a of the air why service explaining he used
By way of engineer the an emergency application, said' instead of an brakes valve—a a emergency operation the of different involves application air-pressure train-line respond unless the will not triple valve—-which pressure on seventy train-line high The standard pounds. as is as railway carried that seventy pounds, he Rock Island the two the air brakes application the service day. When he made pres- it the train-line the back for reduced stop, feet station thousand sure pounds, sixty ten pounds, which trip was too low to the emergency valve.
Four engineers locomotive appellants expert testified for wit- They nesses. said a stop within three hundred feet four hundred on a application service brakes, twenty air at per hour, the miles good stop. a respondent produced engineers The two former experts, one of whom testified twenty at per miles hour the train could have an emergency stop twenty-five made in thirty feet, second; or one forty the other said feet or two seconds. One of these stated if previous application witnesses had been a there service so that the brake shoes set all slack taken out of the train and the braking equipment, emergency stop the could even quickly. more pressure pas- other said standard train-line on senger pounds, trains freight was one hundred ten on trains ninety pounds.
On engineer several times cross-examination admitted he did fifty whistle locomotive sound the alarm until was within crossing, stop. feet he because automobile would thought admitted, also, He then within the automobile three crossing. feet of the said the marks on twelve He a indicated if the car had run locomotive after the collision He it have hit. denied the auto- foot or would not been so farther that, if it denied stopped crossing, on further even mobile two air brakes did, by applying train stopped could have he (where respondent said the locomotive was when feet back hundred admitted, however, could stopped). he the automobile He directly asked forty It was not up appears in he slowed the train feet. looking occupants the automobile whether saw the at the trial he he train; deposition previous but the direction of at sight (in loco- they my front went out “Just before testified: engine I up seen motive) they toward kinda looked This, he as I ever saw.” expression their face astonishing most added, part that knew saw on their he was the first indication trial deposition was introduced coming. train ivas only. engineer against appellant admission, anas at the time. One the locomotive men on were two other There was the learning road, and the other who another engineer said, fireman Contrary appellant to Avhat fireman. it first saw standing track when he the automobile testified accident; south put further but he very before few seconds appeared said it was. The fireman said it respondent had than the rails midway two between about vehicle was end the rear testimony re- contradiction Further, in direct track. therefor —that reasons engineer, with his given peatedly *10 fifty within locomotive was the until whistle alarm did not sound the feet of the crossing engineer fireman said the sounded the alarm —the whistle on two occasions. The first when time was the locomotive was just past the Mill Pond crossing,, next east of the East Street cross- ing. He estimated the distance between crossings the two at one hundred feet, but map the scale by introducéd in appellants evidence .it shows was four twenty hundred and feet. The fireman testified n he looked out the window that time and nothing. could see The loco- motive was close to the crossing engineer East Street when the sounded the alarm whistle the fireman) time. He (the second looked out once more within thirty-five a second or and saw only less the automobile away.- feet giving After testimony this the fireman the took stand again following day the and said the first time he heard whistle (when engine nothing) looked out ninety and saw was feet the crossing. contradicting from Also positive the detailed and testi- mony appellant engineer, engineer riding the observer who on the locomotive said alarm first time whistle sounded the between the track frog, house switch' stand and -switch about one sixty crossing. hundred two hundred east of the feet appellant’s frog map scale this is about shows the switch two eighty-five crossing, hundred and feet east of and the switch sixty-five stand three hundred and feet. respondent
There were other matters in which the was corroborated engine by testimony in the crew contradicted other case. respondent will be Tt z’emembered the testified the locomotive crossing fifty hundred feet east of the still one hundred feet to one engineer thereon, insisted when automobile stalled whereas stop crossing only did at Not was this state- the car all. engineer’s (as fireman has been ment of contradicted respondent’s Rader, appellant’s and the noted), but witness Irvin, eye-witnesses they these well. Both of witness crossing they put the train stop did on the said automobile —and respondent; it said time than did east at that even further back away. hundred feet two feet to three hundred theory respondent’s to bear out physical facts also tend ap- introduced map The scale important of fact. issue this oil the locomotive surveyor show testimony of their pellants and the eighty-three to three feet hundred and at least two must have been see crossing fifty east of feet hundred side of north (looking along the thereof fifty north' feet automobile so, being track). This house cars on the box got to that locomotive well before to reach bound across moved the automobile whether point. is true This same said, and from hour, respondent per miles three track at bouse eight per hour as miles track main there at a travelled testified, whether witnesses other several *11 226 speed
uniform of engineer twelve per to fifteen tour, miles as the obviously time under hypothesis, the latter locomo- since the said— tive was going twenty per miles hour under all the evidence. inference to be drawn from engi- physical the the facts corroborates testimony neer’s that he not the within apply did air brakes until fifty feet of crossing. the The testimony appellants’ experts was that a stop service twenty within or three four hundred miles feet per hour was all that expected. could be with en- The five-car train gine and tender long. was about four hundred feet Two witnesses said stopped the train with crossing, the ear west two that rear the fourth car engine along- was on crossing, stopped the one that the depot the side depot. one that it did The east end not reach the depot crossing. sixty-five was two hundred and feet west of the All this stopped indicates the locomotive four three hundred feet fifty crossing. hundred and point fifty a the feet west of feet east of So which it was shown the had case for the (1) to two substantial evidence train was one hundred that there; crossing stopped hundred feet east when the automobile (2) approach- engineer looking automobile saw ing period time fifty over a an appreciable distance of about feet or that; (3) occupants did see before automobile not that the them; (4) that appear to see the it was almost train until on put engineer, or nevertheless, did sound the alarm whistle not crossing; (5) that he air fifty until within brakes about feet of feet; (6) he had forty that if could have slowed train some given thereabouts, it foot, run more the automobile time one would not been struck. have proximate sole Looking appellants’ assignments
I. crossing, and that there cause of the accident was defective on the instructions giving of no to warrant evidence statu- failure sound the and the humanitarian doctrine appellants’ whistle.- warning signals bell t°ry got across would have automobile reasoning that since the crossing, defective on the stalled it not injury had without track cannot We accident. cause sole was the crossing therefore summary conclusion. to this agree the case take evidence sufficient there already said haveWe given. were not statutory signals theory jury on would not, presume must we Granting Wabash v. [McGee sounded. they been had track gone upon have & Railroad A. v. C. 544, 33; Monroe W. S. 114 214 Co., Mo. Railroad Co., 275 S. Ry. Pac. v. Mo. 68; Pierson W. 488, 219 S. Co., 280 Mo. W. 564.]
It view, ample is our furthermore, warrant that there evidence ing (Banks the submission of the ease on the humanitarian doctrine v. Co., theory Morris & 484); Mo. S. also W. on this defective If sole cause of the accident. only application air brakes one service stopped, hundred feet or track, more east of-the after the automobile it- gotten could though we across even did stall —at least cer - *12 tainly say cannot as a is matter of law such fact.
It possibly may
true,
nearly true,
be
appellants insist,
or more
as
if
case
respondent’s
facts,
be taken
theory
of the
that
auto
along
mobile moved
eight
road at
hour and
as if
per
miles
looked
it would cross
safely;
the track
that
locomotive
was then one
going
per hour;
hundred to
away,,
twenty
two. hundred feet
miles:
true,
that
suddenly
may
stopped
automobile
track —it
we
be
the,
say, -under
alarm whistle
facts,
these
that
to
the.
failure
sound
n
proximate
for there was no need
cause
collision^
sounding-
to sound
stopped
it before the
and no use
it
afterward;
it is re
but
that
to
doubted when
even
conclusion is
occupants
appear
membered the
to be look
of the automobile did not
ing
train,
any event, was
omit
.the
or to
In
inexcusable to
see it.
predicament
all effort
of the travellers
up
stop
to slow
after the
fifty
feet of the
apparent,
became
until
the locomotive
within
testimony
crossing.
engineer’s
that the auto
Taking the case on the
auto
locomotive and
stop
to
that
say,
mobile did not
is
—that
to
failure sooner
time—the
crossing
reached the
at the same
mobile
case.
plainly made a last-chance
[Zumwalt
sound the alarm whistle
]
Co.,
v. & A.
W.
C.
Railroad
266 S.
725.
Ry.
(Mo. App.), 286 S.
Co.
George v. K. C. So.
W.
The
of
case
theory
the defec-
bearing
130,
by appellants
out their
is
cited
the ease
accident. We think
crossing was the
cause of the
tive
sole
The facts there
distinguishable-from
at bar.
clearly
the case
is
engine
accidentally “killed” the
driving a motor truck
that G. in
switching
during
About that time
track.
a railroad
while
feet
one hundred
standing
track some
car
on the
operations a box
along
until it struck
loose
bumped
away
and rolled
into
or more
proximate
sole
Appeals
of
held
Springfield Court
The
the truck.
on the
stalling
motor
the automobile
of
was the
accident
cause
it;
stopping
stop
of
box
to
car
crossing.
was on the
But no one
defendant;
of
any negligence
was not due
the track
truck on
track,
any
negligent failure
because
on the
not drive
and G. did
warning signals.
statutory
to sound
defendant
showing
under
respondent’s
argue the-
next
Appellants
drawing
adopting
only by
upon
is
doctrine
humanitarian
can-
engineer;- appellant
admissions
engineer’s testimony, first,
not base his ease on the
because it is de-
structive
own,
of his
and, second,
if
because
he would
appropriate and take
part
over a
engineer’s
tes-
timony he must accept all of it.
Indeed, appellants go
further and
adopt
corroborating
assert he must also
’
testimony of all
appellants
other witnesses as well. The cases cited
are Behen v. St. L. Transit Co., 186
441,
Mo.
85 S.
346, W.
and Graefe
v. St. L.
Co.,
Transit
“To have, by the exercise of ordinary care, stopped said train, or slackened speed thereof (haying regard due to the reasonable safety of persons on and the equipment of train) said or to have given a warning,” etc. .The criticism is that because presence of the of the comma after line, word train in the second and the absence of a comm» after thereof,
the word qualifying phrase parenthesis is solely made to refer slackening speed train, and stopping well, thereby of the train as imposing duty on the train operatives stopping the train regardless safety persons thereon, etc. This is criticism too spun fine to merit discussion. We think meaning of the instruc- ¡seems tion punctuation is obvious. Indeed good conforms usage, parenthesis being marks used where commas otherwise would inserted, be and performing the same office. III. Respondent’s Instruction P-4 aswas follows: ‘‘ jury are if jury instructed that should find verdict
plaintiff against both defendants, plaintiff then law under the only
would be entitled one satisfaction said plain- say, you find for judgment; if should should collect defendants, plaintiff against tiff both plaintiff could defendant, then from one judgment amount of the defendant.” from the other anything not collect improperly issues, outside went say this instruction Appellants if should told and in effect parties commented on company railway engineer and both against a verdict return that the fact bill—ignoring to foot the latter could indemnity or right action would railway company [Sec. misfeasance. account against the contribution *14 S98 Mo. Ry. Co., 200 &R. I. P. 1919; v. C. McGinnis 4223, R. S. the in kind of this that in cases asserted ] is further W. It 590. prevent a removal joined to frequently is defendant dividual is served been has purpose that that after courts, but Federal in with gently deal disposed to juries are encumbrance, because an by defendants; and corporate harshly with and defendants dividual fa,r as so aside cast is defendant individual an instruction such might jury saying the by respondent defends may be. amount full that given, been if thought, instruction each from collected be could might return they verdict of whatever verdict. recovery double defendant, full making the Respondent unconvincing. and as lame impresses us This defense Co., Ry. & P. R. I. C., v. in Shaffer given was says instruction 230 477, 254 257; Youtsey S. W. Mo. C., & Ry. R. I. P. Co., 251 S. v. 468,W. and Youtsey C., v. R. I. & Ry. P. Co. (Mo.), 259 S. W.
771. An examination of point these cases shows no on the instruction in any them, least there is no reference to it in the opinions. We say shall there never are circumstances in which proper would be jury to tell the plaintiff how a can collect money though verdict and judgment, think of none, after we but certain it is nothing there was in the calling facts of this case such a Ordinarily direction. against an joint action tortfeasors rights of the co-defendants between each other are issue. not at [K City Telephone Co. Louis, v. of St. Mo. inloch S. W. 182.]
Still we are to hold prejudicial unable the error was so as to call for a remanding reversal happens cause. It case this that one jury issue to imposing was submitted liability, on the corporate namely defendant alone, issue as to the defective cross- ing ; and it was ivhich the appellants say keystone that issue respondent’s They enough case. admit there was to take evidence deny that jury, issue there was substantial evidence war- ranting the submission of the humanitarian doctrine and failure (cid:127) statutory signals. gave to sound The trial sub- court instructions mitting against verdict, three defendants, forms of one both one for plaintiff against other, in favor of the either defendant and. jury against one both defendants. both defendants. It found appears they deliberately. therefore refused to favor the individual alone, finding against corporate defendant when the defendant open strongest re- road was so evidence the them do theory. spondent appellants’ according to presented, jury encouraged the instruction Neither can it be said the they larger would against defendants than to return a both verdict corporate they have returned had not received .the intimation brief, judgment. In pay their defendant could made to the whole complaint about the appellants’ say counsel make no size respondent’s injuries— verdict, and the evidence under larger verdict would hip. back—a much injured a broken very verdict the size justified. appellants contend have been But not to jury therein are only concurred and the nine fact fairly with to deal intended be taken as evidence that rather, the case indicate, They say parties. these circumstances being that, liability, question of regarded as doubtful on the in- against verdict given instruction to understand ahead went form,-they merely a matter dividual defendant was defendants against both a verdict nevertheless returned gets back That defendant. really corporate aimed at the mainly predicated criticism original proposition. Appellants’ *15 assumption average that jury is actuated an improper prejudice in this; such cases as and while may indulge we not in speculation to why as how and jury arrived at the verdict reached in this case, the fact they might remains that given have a verdict against corporate defendant alone based on substantial evidence, n whether or not actuated improper They motives. did not do it. This leads us to the conclusion prej- that the instruction was not udicially in harmful the ease at bar. IV. Appellants’ assignment final argument is that the and conduct of respondent’s during counsel improper prej- trial were argu-
udicial. The motion for a new trial eomnlains of onlv imorouer ment, and specification contains during no of misconduct reception of disregard evidence, so trans- we must
gressions though character, the latter illustrated pages quotations exceptions covering some the bill eleven from closing argument of from the counsel Two extracts of the brief. assignment. as the this out basis for respondent for are set Gross, engaged in extended for Mr. first, respondent, In the counsel telling jury he had instructions, persistent comment on side; given defendants on his the instructions written any because if error doubt; do so every that he had to the benefit ground for crept would finger in it big of his little as the end they if found jury he told the court. Then appellate in the reversal errors remember in the instructions discrepancy any conflict court, higher in the in a reversal result would in his instructions de- in were error plaintiff and there find for whereas, if should appeal. instructions, plaintiff could fendants’ ap- counsel remarks of these course during the Three times objection in each instance objection court pellant made instructions jury told the the court Twice was sustained. conclusion At the instructions. given court’s were the other passed on to for' counsel quoted argument above request the court did counsel Appellants’ in the ease. points be dis- move nor respondent, counsel reprimand charged. the seven- referred complained of argument part other company in railway appellant by the air-pressure carried ty-pounds Respondent’s question. train apparatus the air brakes company with direct railway charged the repeatedly counsel permit pressure sufficient failing negligence in primary following a service brakes air emergency application of an negligence was specification shortly previous. No such application in- air-pressure concerning petition. evidence humanitarian under only as a defense by appellants troduced *16 doctrine, on theory that it tended to show the could not
have averted the accident after respondent he saw position in a peril. It true, is however, that respondent earlier in the trial in making out his case had shown two experts, without objection, the air-pressure standard on other ninety pounds freight railroads trains and one pounds hundred ten passenger trains. This argument, quoted as in brief, pages. covers two and a half Seven times appellant counsel for objection made it was within issues pleadings objection and each time the sus- tained objections court. Tn sustaining these six times the court expressly argument ruled pleaded issues; was not within the once the court jury disregard instructed the part argu- ment, and three times admonished stay counsel to within the issues. There dropped. the matter appellant Counsel for did not ask the reprimand court to counsel for and did not that the move jury discharged. be We opinion argument are of the that the in both im instances was proper. The instructions, discussion of us, point it seems to really bearing less well and had no on outcome the ultimate every case. appellants’ But sustained instance the court ob jections pre requested. exceptions and did all that was No served, been, every ruling appellants’ ivas none could have because They permitted proceed favor. with matters the case to standing they were, prepared say, in this state we are record, and remanded. In the cause should reversed deed, ruling, an an authorities are that absent adverse ex ception thereto, nothing saved is before this court for review. there Q., K. (en Banc), 773: & v. 293 S. W. Adams v. O. Sutton [Anderson 535, 790; C. Co., Hines, Mo. 229 S. W. Kersten v. Railroad that, Mo. 223 S. W. Aside from in our view the case was 586.] result of not so facts as indicate the verdict was the close passion prejudice point does not and the size of the verdict large reposed in A discretion is the trial that conclusion. measure of holdings numerous passing court in matters and under such disturb unwarranted in appellate of this State we would feel courts ing the result reached. hereby af- judgment be and is
Our is that should conclusion Seddon, OC., concur. Lindsay and firmed. by Ellison, 0., adopted foregoing opinion
PER CURIAM:—The judges concur. All of the opinion of the court. as the