*1 jury manifestly instruct unfair kind. It was of this case running de- charge employees in in this case that “the attempt train until required stop were not train fendant’s crossing so near to actually driven automobile had ’’ instructing effect of peril. prejudicial position in a as to be by argument of defendant’s well illustrated in this fashion is ad- that “our common sense to the effect predicated thereon counsel danger being by the struck in no that an automobilist is vises us crossing,” course, plain- Of actually gets etc. on the train until he if his come have been hurt automobile tiff would not by train, but crossing it could be struck 'near so danger zone extends in such cases the many times held that we have observably by ap- he was traversed after distance over the peril of which he was oblivious. place of imminent proaching a Ry. App.), 253 W. Larkin (Mo. S. v. Wabash Co. [Koontz 1087, 1088; Maginnis v. Mo. Pac. (Mo. App.), v. Wells 667, 678, 187 Railroad, 268 Mo. S. W. 1165.] giving prejudicial this instruction was Furthermore the stated second sentence thereof assumed and in the because of his “plaintiff had, reason failure to look fact that as a train, driven his automobile so close to approaching listen for the ’’ neg An ant crossing position peril. bespeaking to be in a as given up thus held undue ligence on the neg although jury, plaintiff’s the' element of before the prominence place in a case submitted under the humanitarian ligence has no jury advised, had in effect In instruction been so another rule. again bringing negligence to the fore method of and this jury. to confuse and mislead serve could n judgment sustaining the order and reasons above stated For the for a new trial is affirmed and the causé remanded. motion laintiff’s 11concur. Corporation, Company, Pacific Missouri
Goodwin (2d) 988. S. W. Appellant. —72 One, June 1934. Division *2 appellant. Blair for E. David J. Cole Thomas *3 Clay Rogers, Rogers C. <&Bumrd for Mosman, Pross T. Cross and respondent; A. B. Lovan of counsel. *4 damages injuries. personal is an action for for
HYDE, C.—This $30,780. $15,000 A remittitur Plaintiff had a for verdict judgment made, $15,780. a new entered for Defend- ordered judgment. from that appealed ant has injured by getting been eyes, Plaintiff claimed to have eye resulting impairment right loss of his left and the of his eye, defendant as section hand Marshall at November) 1924. (October fall evidence in the *5 injury testimony. his occurred was how own as to record freight frequently when trains came into Marshall there He said part front of the tender no coal so that the fireman would firing on conveniently reach it when the road. On such could occa- man be ordered to would coal from sions, a section shovel the back They coaling engine- of the engine. tender. called this The men “generally supper” went to men while the section “coaled the engine.” several section men would work on the Sometimes same tender and when one man worked it him more would often take than engine. an hour to day coal the Plaintiff said that on the injured quit regular he had at four and P. m. (cid:127) waiting depot at passenger to see the afternoon train arrive. freight agent The came him and an told that the fireman on (cid:127) engine go needed coal. some Plaintiff him that he told could got (The on the from his without orders boss. section men pay hours.) regular freight agent overtime for this work after The got the section boss to come down and between five six o’clock go iip told fireman and shove down some coal for the freight they go train “so could to Boonville.” switching at that “I him the trains time and said told I moving, get were up didn’t want to there and shovel coal because dangerous, me, go they stop supper, it was said would '’’ generally they as did. The foreman then went home. thereafter, happened as follows: Plaintiff testified as to what ‘‘ crossing caught -tender, get at the they stopped I for me to on track, oh, tender, they up on the got pulled I then up on they off ways switching where could cut quite some above did get and they -wanted switch them onto each track those cars and they there I would stand they stopped over there believed when throwing down. not, . this-coal . . started to they back of coal behind next standing up on the . I was . . -this sloped high point and sloping, a It ... tender. this top of on hole, about' I was way down towards had been .' . .1 hole. way towards shoveling it this coal suddenly until all at once minutes- six five or working there not over back jerk, jarred gave it a that hillside there on loose let my hand, coal with a shovelful forward, down me and throwed my hand, the that in down with another; I went or somehow something in lump or kind of a hit some handle of the shovel middle I ... my face. the side of here coal and throwed there They . . . or no bell. all, whistle no warning at heard no heard whistle, yourself-or you brace me, at or told hollered generally both got into It ... long they moved. before rang bell or Well, . . right one. . eye than the worse got the left eyes, into got I train, get stop off, I have to fireman that I. told any more.” I couldn’t do coal, my eye full of further, as -follows: plaintiff testified On cross-examination shoving and started into the tender you climbed “Q. When Yes, A. sir. engineer on there? fireman'and down, was-the Standing sitting. ? A. just standing there Q. They . . *6 Q. you? from A. there where How them were He was far Q. you . ? up . were A. me he fires. . He knew there He seen Q. they get up . get you . . Did tell to there them- up there. Yes, sir; to coal. A.. he said he would have have some selves? Q. engine coaling you . . on an it when it was . Have been ever Q. moving? No, that; no, A. I Never would not do sir. have? they they moving, sir; they A. when are unless No, do not coal them Q. moving they awful slow. Didn’t them were mov- were coal Q. moving ing they up. were awful A. Couldn’t stand unless slow? (the foreman) you Now, not to coal that didn’t Moad told he, engineer supper? fireman went A. Didn’t tell until the to to, they supper, to me he said while he told me not coal it went to Q. they going supper. coal while were to You did wait? not Q. they They going. A. You didn’t wait until to were not went got you They they supper, up and to A. told me was started coal.? n Q. they been, something. going supper, not had Moad’s direc- Yes, you supper? they while went A. tions were to coal it Q. you they go sir. . . . He told do it Q. that, you supper,, Yes, despite got he? A. sir. on didn’t And n it, anyhow They they ? going A. añd coaled me told ' Q. I supper, they making time. to coal it some steam Were making they Q. .Sure, engineer there? A. steam. fire- Q. Getting man ? making Yes, were there steam all the time A. sir. Q. ready start? A. Yes, They sir. You that? A. knew switching pulled they I forth, they up you back and there where told Q. they going stopped: You knew ? ahead to continue to switch ' Q. words, every they A.' I it. . . In didn’t know other time they give warning? you would I moved some kind of had coaled A. every give they warning. before and moved they time would- me a Q. engines You have coaled before when the would move around? Q. Yes, sir; they stop you A. ? but then, you What did do would myself -they Q. ? A: yourself would coal Brace ? stopped. until Brace Q. myself stopped. A. they Brace until you yourself Would brace go ,Q. yourself ahead and coal? A. No, sir. Brace and rest? Yes, A. stopped.” until that, mostly-fine coal; Plaintiff said slack coal-was the' high; way pile-was four or five feet and that struck, the shovel fell, go eye when he caused a lot it to his left and a smaller right eye. in his amount Plaintiff said went place lady where get he boarded there undertook the coal (She handkerchief eyes. out with a and also bathed his corroborated testimony.) his eyes He said that'his hurt day; the next getting them; that he told foreman about eyes that his continuously; pain bothered go, get “would come and get get again;” and then worse at times better worse but that finally, kept working thinking they get better until April, 1925, hospital was taken in St. Louis for to defendant’s treatment, operation finally performed. where an Plaintiff tes- that, prior tified and had evidence of witnesses to show other *7 tender, eyes time he claimed to been in his have thrown down the good in condition; glasses; that he that he read without and lining exceptionally up did work the track such as which took rails good eyes. piece up Plaintiff in 1918 a flew and admitted that of ice eye went with cleaning into his left the track while he ice from days pick. said, however, injury He in a few up that this cleared any and never medical caused further trouble. Plaintiff also had testimony subsequent as to the condition of connection between the might requiring his which result eyes, operation, the and infection getting them, from in in the manner he described. incident, related, denied that which plaintiff
Defendant the ever freight happened engineers and produced a and number of firemen of coming they trains Marshall into at the time who testified never that foreman, heard of it. Plaintiff’s and other'men who worked with plaintiff, plaintiff said that never told them about it said that he or got eyes. coal in his Defendant also had several witnesses who told injuries eyes-; glasses plaintiff’s other to he said that wore before eye; speck the fall of and spot that had or in left his eyes weak, that both red, watery. of his looked and Defendant also signed plaintiff had statements 1925 while in defendant’s hos pital in piece St. Louis which told the incident in 1918 when a eye; any ice went into his that never accident stated had other eyes; negligence his and there was of defendant to said no on the testimony medical eye that caused his Defendant also had trouble. eye, of such tending plaintiff that a cataract his left to show had injury absorbed, some old partly due-to long that it was had enough eyeball; that he puncture the been severe right eye age and deterioration forming in due to cataract his senile eye right was not due to disease; the and that the condition of or injured his injury eye. Plaintiff denied that he ever any the left defendant, in and eyes except the times while two at defend were taken each time 1924. statements He said that two n covering injury covering and one hospital, ant ’s one time he unable read at the injury; said that he was also them;-and make some of the statements signed that he did not that two statements Defendant’s witnesses turn denied contained. any plaintiff claimed that accident occurred that ever were taken or in 1924. was, by alleged plaintiff was that negligence and submitted go upon and work a loco foreman, “directed and ordered his ’ ’ move coal the tender of said engine and shovel and
motive doing defendant, Company, and that while he so “the engineer carelessly, thereof, negligently its in charge or servant suddenly caused, permitted move allowed or said locomotive warning or Goodwin, any and violently, giving plaintiff, objection- plaintiff’s in notice no thereof.” Defendant makes1' assigns overruling structions but as error of its demurrer frankly contend says evidence. Defendant that it “does not now jury of justifying there was no evidence submission to questions injuries eyes re plaintiff’s from coal dust tender, testified, ceived, as in a fall in defendant’s locomotive therefrom, resulted condition at the time of the trial jury.” con if Defendant’s otherwise made for the case a case for are to make tentions on demurrer failed jury following First, reasons: -that defendant owed no for the be warn him to be moved along employees tracks cause them whose duties take engines look between, upon moving cars' must around and *8 engine being safety; second, out for their the risk of the own risk was a shoveling moved the tender while the necessarily plaintiff, work and that which was incident to that as therefrom; injury third, law, matter of the risk of assumed contributory law¡ of guilty negligence, a matter of as doing engine remain knowing work without the the stationary completed he had it. until question which really present one is
These contentions namely: evidence, Did defendant owe decisive of demurrer the the engine duty him or was it plaintiff a warn before the moved if plaintiff’s duty true, for himself? This is because to look out looking he did duty out for himself plaintiff was not under of engine warning being while risk moved without assume the of the warning working. enginemen duty he was If the of owed moving engine *him him would their failure to warn before negligence' assumes risks under rule servant never the Missouri liable, arising negligence master but-“those from for which the ordinary care.” after the has exercised alone which remain master Co., 1117, 33 [Whittington Operating 326 Mo. S. Westport v. Hotel Co., 320 Mo. (2d) 963; Francisco W. Clift v. St. Louis-San Railroad Co., 317 (2d) 972; 9 S. Hoffman v. Peerless 791, W. White Lime 86, 764; Co., Rich 315 Mo. Compton Mo. 296 W. Construction S. v. Co., 474; K. T. 1068, Holloway Missouri, 287 v. & Railroad S. W. Waverly Co., 27; 208 W. Brick & Coal 490, 276 S. v. Mo. Johnson 613, 272 200 S. 615; Pryor, Mo. 276 205 W. Williams v. 42, S. Mo. 106, 263 S. W. & P. 172 53; C., Co., R. I. Railroad Mo. W. Fish v. 147; Rail 1916B, St. Louis-San Francisco 340, Ann. Patrum v. Cas. 622; L., I. M. & S. Co., 168 Honea v. St. 109, S. W. road 259 Mo.
407. Co., 245 151 119; George Railroad 621, Mo. S. W. v. St. Louis-San Co., 364, 196; Francisco Railroad 225 125 S. Charlton v. Mo. W.
St. 98 529 Co., 413, Louis-San 200 W. Francisco Railroad Mo. S. (earlier cited).] hand, plaintiff’s duty If, cases tbe it was on other engine being to look for risk himself, out moved undertaken, in which “would be a risk the work incident employer part, employee assumed would have no and which the implied as an an employment, contract of and for such his injury damages employer from the rea he' could not recover his for Co., son he 276 assumed the v. Brick & Coal Mo. risk.” [Johnson moving l. c. example, For fireman expects coal'on a to shovel 53.] work, doing protect and must learn his from himself, ordinary starting stopping its usual or decreases .increases' necessarily in speed. employment, Those are risks incident his very purpose contemplates that much nature and Likewise, same is in motion. work shall be done while the negli question contributory is decisive of the matter of before, gence. If it was the defendant to warn moving guilty contributory negligence, not be could starting a matter law in he did not. as to do the know completed would not be moved before he it. men, apply rule, applicable Defendant seeks to section tracks, employees others that such must look railroad protection thereon. v. Wabash out his own from trains [Evans 508, 77 C. & A. Co., 515; Railroad 178 S. W. Cahill v. Railroad Mo. 532; Co., 205 224 393, Degonia 103 W. v. Mo.
Co., Mo. S. Railroad 462; 807; 462, 123 S. S. W. Bixby, W. v. Mo. Kirkland Hughes 915; M. S. v. Payne, v. Mo. Hammontree W. 560, Co., B. T. 309 Mo. Voorhees
R. & *9 (2d) 835, 30 Switch- Co., 325 Mo. S. W. C., R. I. & P. Railroad 22.] yards and about railroad or employees in men and other therein are likewise under engines moving about to moved or be ears or rule, a cus themselves, in the absences of looking for out around, warning, going on or requiring a when assurance tom or & S. engines L., v. St. I. M. Railroad tracks, cars. near [Rashall Co., O. 426; 155 W. B. & Railroad Co., 249 Mo. S. O’Donnell 509, v. (2d) 929; 26 v. St. Louis-San Francisco 1097, S. W. Jones Mo. 1153, (2d) 481; S. Martin v. Wabash 30 W. Co., 325
Railroad Mo. (2d) Ingram v. Mobile 1107, 735; 30 S. W. Co., 325 Railroad Mo. 989; Armstrong (2d) 30 S. W. Co., 163, 326 Mo. Railroad & Ohio (2d) 55 S. W. Co., Mo. & Railroad v. Mobile Ohio Assn., (2d) 747; v. Crossno Railroad Reed Terminal (2d) Plaintiff S. W. Assn., 333 Mo. 1092.] Terminal duty requir arising common-law duty warn out upon a to relies and not ordinary care under the circumstances ing the exercise of any in work. employee engaged an upon rule or custom to warn such men, Were the here from those of section circumstances so different required a to yard ordinary that care men, or switchmen Considering engine? plaintiff’s evidence moving the plaintiff before may light all reasonable inferences in the most favorable with ruling de- therefrom, in drawn in his as must do be favor we evidence, plaintiff was in a situa- murrer we think that to the do not in cases. contemplated the rules laid down those tion such as was trains, engines, or upon moving Plaintiff employed was not to work ground upon tracks. He docs cars, upon but was to work solid It was any work. seem have done other kind of railroad not to ever shovel only occasionally men called to that he or other section were was, conditions, them, coal in a for work under unusual tender. This ordinarily risks it not and the risks incident to were similar tends to regular employment. Plaintiff’s evidence incident to their engine moving do this work section men did not show that the they not do that would it from the evidence seems reasonable arguing an fact, recognizes this, right its to Defendant, so. saying: “A instruction, sloping pile of coal of the character accident support ordinarily exceedingly unstable used locomotives affords working there or top it, particularly mm on when for merely standing side, its and that a slide is sloping on even loco- likely any with the at time under such circumstances occur if a fire- stationaryIndeed, motive tender it is to be ‘doubted train, moving man, stand shoveling coal on a accustomed to so, high, while it top pile of a loose coal five feet do on moving. having the sec- suppose that one reason for
It Seems reasonable yards, forward, men while the train was tion move the coal running doing to the firemen so while was to obviate the risks incident on the road. work, says protested
Plaintiff, when ordered to do the doing moving while around. his foreman about necessary it would work The foreman assured moving they go supper. Plaintiff stop would soon as attempting the work to do got rode there on the inquired of continued. He switching movements were while already they going supper had enginemen told about them opportunity do have the would not been and so learned He been stopped purpose. change but was confronted with do the work ordered to expect, led to still did not which he had been but conditions *10 in tender and it while attempt get up pile on the coal the move to jury than a moving. most, At it could be no more engine was the contributory negligence in guilty was question whether doing changed the be noted at all under It to work the is conditions. only stop,
that it which when the under circumstances jury thinking in it the warranted reasonably eould‘ believe got stationary, time, up would on the remain' some pile enginemen .and on the commenced work. knew he was his The they tender work for stopped because had let him on do this to request. They their benefit and at their had reason know that moving, from did not the work the expect to do while go inquiry stopping their from about them experience, former his supper, fact work until and from the that he did-not commence they speak louder brought stop. to a said to sometimes Actions are minutes, shoveling than If had words.- been coal-for five they doing help-but know work could not the because they sitting were throw- directly in' front of he was where ing ordinary care the coal. Under such circumstances we think that suddenly required give warning a them to some kind of before moving engine. Plaintiff, working.on unstable'place, such an the being unless he protect little chance himself from thrown down engaged in which was first warned He of movement. required hardly such that he observe his attention to an extent could enginemen time, doing it, the all of the to see when engineer about All to start. the had to to start >the do sitting cab, Plain- the was to reach out and move the throttle.
tiff, movement, protect to know of and himself from such have also have to look toward him all the time but would stay inside position where he could observe movements of the cab. discussing duty
In kind of the of a master to a servant Servant, 2929-31, situation, in 3 Labatt’s section Master and it is said: system duty very aspect provide
"One a safe common gravamen' complaint presented the is in those cases which the obligation arising against perils is a warn a servant breach of the by iso- in which are affected from manner the instrumentalities frequent during which occur at less intervals lated events more or work, per- which no produce but performance of the servant’s upon the of the instrumentalities manent effect intrinsic condition signal form warning may . . . take the of some themselves. informing change imminent. . This ob- is . . servant that the business on ligation is to conduct the out of one arises obligation indicated system. phase . . One a safe re- with master to see no order principle is bound ex- subject shall be of the work change position spect to employee. . Under such ecuted without due ... an absolute it is reasonable to infer
circumstances existence *11 a duty arrangements imparting the make on master’s a cause. timely warning any may imperiled by such servant who be warning fur- give are duty The numerous of most illustrations the move- danger produced by the by nished those eases in which the was [See, railway rolling stock, appliances.” similar of or other ments 743, 572-577, 634, 638, see. also, p. p. J. secs. see. 749.] C. duty may are shown of in which arise Illustrations situations this by a In St. Louis-San Francisco number of Missouri eases. Weaver v. Pull- 284, plaintiff, car for the Co., App. Mo. a cleaner on Company, defendants, man one the was inside car of washing ceiling. Other cars were top stepladder the a small the of unusually coupled severe but a manner not or onto violent floor enough plaintiff the to the top to throw from of the ladder injure court, Company liable holding and her. the Pullman charge plaintiff failed because of work to warn its foreman in the on, coupled that other were about to be said: cars engaged in Company, Pullman "Plaintiff was the servant of the and proper place in the performing her work which master’s she unexpected move- position She was where a sudden and manner. utterly safety imperil ment car her and where she was would helpless depend protect compelled herself. She unable to safety master on the care of others for was the her her and it obligation discharging provide its reasonable care to exercise work, adopt a reasonably place its with safe in which servant being car she was prevent reasonable means to from moved while foreman, position dangerous. Scanlon, in a so knew that three belonging might cars train be switched were absent any infre- in at knew was so time. Further he that such occurrence might quent looking plaintiff not be for it and that she would in position danger. had no control helplessness of utter He by company, over the movement but he have cars railroad by flagging opportunity protecting and means for his servant either by working keeping cars on the cleaners were or lookout missing warning giving cars timely for the to his servants approach.” their
A Brick Company, similar case was Johnson & Coal somewhat supra. top In that case on a car of coal away picking throwing Other out rock and other substances. any coupled giving plaintiff cars were the coal ear without onto injured. warning and he was thrown out and While there company upon of the foreman of the coal relied the assurance switching movement, warn him said that he would of a court company company both liable eoal and the railroad because right "the plaintiff to assume the'defendants causing the car which he imperil safety by permitting or or without notice by was at be struck other ears and moved many authorities); said: (citing him” and further defendants, the result them, escape “Nor can the or either of against upon which causing pushed car permitting cars to be showing warning, working, neglected habitually This is or either of them to do so. *12 is usage
principle that no can make that lawful custom or push unnecessarily dangerous; say ears back and no one will that to against warning plaintiff on which was at without the one work unnecessarily dangerous.” was not W. Co., 141, 481, plain
In v. St. 209 Mo. 107 Koerner Louis Car S. injured were painting tiff was while a car when other- cars without liable, warning holding said: court, onto it. This the railroad coupled upon plaintiff is view was entitled “But there another which the jury. duty It is of the master to have his case submitted to the provide- place to reasonably and maintain for his servant to safe defendant, (Citing authorities.) through the work. When then the ear, paint boss, plaintiff upon unfinished Mehlin, sent to tracks, provide duty against on one of its it its other cars was to running against working upon down he see the car which was to pulled that other ears which were not to the car were out attached working, giving warning which he in- was without him of its tention to move the said car.” Likewise, L., Tetwiler v. St. I. M. & S. Co., 242 Railroad Mo. 178,
145
780;
S.
Ostertag
W.
v. Union Pacific
Co., 261
Railroad
457,
Mo.
169 S.
1,W.
and Carbaugh v. St. Louis-San Francisco
Co.
Railroad
(Mo. App.),
We hold under by plaintiff’s the circumstances disclosed evi- dence, engaged in the class of work where an em- required himself; him ployee protect defendant owe
duty to warn him a sudden movement of the after com- work; menced justified finding jury that the negligence it was top so move the while was pile of the coal tender, giving warning. overruling court was therefore correct in defendant’s demurrer evidence. assigns Defendant further as error the refusal of the follow requested ing instructions it: jury you
“The Court instructs the that if find believe from injured, you injured, the evidence that if find he was by reason an accident, happened is an occurrence which with- negligence defendant, of either out then that event your verdict must be favor defendant.” question Hogan
Defendant does not rule of v. Public Service 1103, 707; Company, (2d) Mo. S. W. v. Polar Wave Sloan 476; Wright Company, (2d) Ice & 323 Mo. Fuel (2d) Dyer Quattrochi, 330 Mo. 49 S. (Mo.), W. Mitchell v. (Mo.), (2d) 1082; 64 S. S. W. and Brewer v. Silverstein W. *13 (2d) simply negli- “when issue is defendant’s that the one of génce error;” giving vel non instruction the of an accident is that “only supports when an inference occurrence the record that the ’’ proceeded may given; unassignable from an instruction cause the be merely give “the proper that not such instruction because is negli- parties of permits an that the were innocent evidence inference tending something gence . . is in there the record unless cause;” casualty that from an unknown and show the resulted negligence it not follow “though be doubt as does there a says mishap.” cause of the Defendant a as to the there is also doubt testimony that the jury right plaintiff’s to disbelieve that the fell, and still that engine moved he fell and believe theory jury that the instruction on the justify an accident pile testimony he fell because the coal might that find from his trouble engine standing still. The was slipped with him while the though jury de- the did not believe is that even with that contention him, warning engine testimony moved without the was fendant’s that thereby, is still no evi- there find not caused to fall and that he was slipped pile ever tending to the coal show that the record dence accident, by standing or other- engine still, mere was all, at while the injury. fall and slip plaintiff’s caused or slide wise, and that such by guess, speculation only conclusion jury reach that could that positive evidence is from evidence. Plaintiff’s and not surmise standing and that engine still was while the slip not the did defendant’s evi- down. Even throw him engine did' move the slipped, while the prove that the coal not tend to dence does ever oc- incident that no such still, instead but was fall; did he never did all; plaintiff at never curred obtain any-coal eyes.. Moreover, note that defendant did get in his we entitled to under following instruction, all it was which was namely: evidence, of all of the.jury that, if from consideration
“The court instructs injury, if evidence, you caused unable to determine what are cannot them, any, plaintiff's eyes, plaintiff of then the or either your be the defendant.” verdict must recover to warn assigns because, custom Defendant error- also objection testify over its alleged, plaintiff permitted not was engine- previous occasions, coaling an that on when was “gen tell always holler at me me” men “would or whistle or rang you yourself to brace or whistle erally hollered at me or told pleaded long No to warn bell before moved.” custom recovery. This evidence submitted as a basis of but none was (cid:127) only per general showed of a custom. It as evidence not offered instances and it experience former sonal enough general of that show a custom that it inclusive doubted Ry. Co., 325 Mo. Jones v. St. Louis-San Francisco work. [See course, (2d) allow would, It be error to 481.] upon pleaded but a violation of custom not submit and recover injected the case evidence introduced over defendant’s ob into jection. That is and we hold that not the situation here testimony way giving enginemen had as to' what the done on former occasions went to establish evi dentiary competent facts which were to show that guilty contributory negligence' as a risk and was not assume the knowing law, in work proceeding to do the matter and, therefore, completed it, be moved would not before required plain care ordinary the issue what also (2d) 23 S. W. doing. Wheelock, 323 Mo. tiff was [Norton *14 142; Co., 316 Mo. v. Missouri Pacific Woodward Railroad (Mo. Co. v. Carbaugh W. St. Louis-San Francisco S. in (2d) have tendered an App.), W. Defendant “could S. 195.] limiting effect of this evidence.” struction refusing to re complains of this court’s
Defendant further stenographer fur inability of the mand the “because of the ease proceedings in the transcript complete nish a of the evidence and overruling de of said motion denied “that case” and contends affirmance of equal laws and that an protection fendant deprive now before the court judgment below the record law, Section .prohibited as process due of property it of its of the United Amendment the Constitution of the Fourteenth plaintiff’s medical of the evidence one This involved States.” question plain- nothing of whether do with the experts, which had injured manner tiff was he claimed or whether defendant was goes negligent. It is out in narrative form and possibility set injury causing impairment such an the loss and injuries disability. eyes and extent of his Defendant ob- half a remittitur of almost verdict the trial court tained point upon appeal no about the and makes amount of the final proposition hold there is no merit in judgment. We therefore remanded because the cause must be evidence this witness that the question and answer form. produced cannot be Ferguson Sturgis, judgment CO., is affirmed. concur. foregoing opinion by Hyde, C., adopted PER CURIAM:—The judges All the concur. opinion the court. as the Raymond Railway Company, Appellant. D. Harlan Wabash (2d) 749. One,
Division June 1934.