*1 quо to a warranto proceeding preserve quo status in order may that full given force and effect judgment be to such as would be rendered quo' warranto proceeding. There we pointed purpose out the temporary injunction of a preserve subject controversy matter of the in its then condition.
One the strongly controverted in the quo issues turna warranto on the legality charge present in excess of rate level. Under may anticipate the facts before us we the ultimate deter- mination by granting of this temporary injunction through issue a summary decision this issue.
Support demurrer grounds claimed additional we neither consider nor decide. ancillary
The demurrer is sustained and for a petition tempo- injunction rary except Gantt, All J., is dismissed. concur absent.
H. F. Goslin v. J. M. Kurn and John G. Lonsdale, Trustees Railway St. Louis-San Francisco Company, Appellants. No. 38477. 173 S.W. 79. One, July
Division *2 appellants. & Mann for Nahler, E. and Mann G. P. Stewart *3 Myres respondent. Justin Ruark & and Sizer *4 BRADLEY, Employers C. This cause under the Federal Liability (45 A., 51-59), against Act and was commenced U. C. Secs. Railway Topeka Frisco & Atchison, trustees and the Santa Fe injuries Company personal to recover for received about 5:30 a. m., switching crew, December plaintiff, a member of a Frisco yards in Enid, the Frisco Oklahoma. found for Fe, Santa against but returned a verdict favor of. upon judgment the Frisco for $15,000, trustees which was entered. overruled, The trustees filed motion for new trial which they appealed. Plaintiff filed no motion for a new trial as to the Santa company Fe and that out went case. yards tracks the Frisco in Enid run east and west. The
eastbound track on injured mainline was the south track. Van Burén street north and south and runs crosses the midway. about Kentwood boulevard runs northwest and south- and crosses the east mainline tracks about 150 feet east of Van crossing Burén street Van Burén intersects street crossing. feet north of said
Plaintiff switching was field man standing crew and was on Van Burén street on the north side of the eastbound mainline track flag in order to crossing, traffic at that and to look out for traffic at the Kentwood boulevard to the east. The switch was on the eastbound mainline track, west, headed and moving west, ' pushing and was two ears front at about per 5 miles hour. Plaintiff intended board the northwest corner of the front car (called Gunning, point), pin but puller in crew, point, attempted to board the northwest cor- engine. ner of the car next to the He said that when he made such attempt right foot went into a rut the street, his left foot *5 stirrup the and missed that he struck the side of the car, in resulting .upper a fracture of the femur of leg; the left that at the moment by headlight he was blinded of a Frisco train on track 3, No. track, by headlight and scale of Santa Fe train on track No. were track; these trains that both Frisco westbound mainline crossing. 600 feet east of 550 or n by negligence оf were caused injuries that his Plaintiff ,eon- and acting separately Fe, and the Santa Frisco trustees : petition) in the (we change sequence from jointly, as follows negligently, Lonsdale, Kurn and John G. defendants, “The J. M. ordinary to furnish care carelessly recklessly and failed exercise the duties perform in reasonably place which plaintiff safe him, performance they in employment in that ordered of his and upon work yards, in their duties as switchman his in the manner crossing which public street certain defective to stumble plaintiff caused the out, set and which defects hereinabove ours). (italics footing stirrup of the ear” his on the and lose language follows: allegations in the italicized referred width, crossing and approximately “That said ten feet plaintiff space permit so did not a sufficient narrow over said freight passed which to board cars as street dip crossing; crossing inch decline or that said had a ten of twelve thereof; crossing had on west and that the timbers on the east side tracks, unevenly laid with the crossing, parallel which Avere chat and permitted and said defendant trustees had cinders crossing Avas timbers, become washed out around said and said dips maintained nits in defendants so there were and perform Avhere place made the had reasonably duties not safe.” ‘‘ alleged: Plaintiff further M. Kurn and defendants, J. Railway Lonsdale, John G. St. Francisco trustees Louis-San did, Company, operating their Avhile agents, employees servants and engine yards Oklahoma, freight Enid, their within the where employees negligently, recklessly and other were working, said, carelessly headlight engine, fail to dim the did carelessly negligently, recklessly operate engine said with its headlight on bright, in violation of the trustees’ rule 114 Frisco (amended 17) to read hereinabove set out. defendants, Lonsdale,
“The M. Kurn J. and Jokn.G. trustees of Railway the St. Louis-San Company, agents, Francisco their serAmnts employees did, operating freight engine Avhile their AA'ithinthe Enid, Oklahoma, yard employees other recklessly working, negligently, and carelessly fail to dim their headlight recklessly engine, negligеntly, carelessly and did operate said with the bright, violation of a long trustees, agents, established of said their custom servants and headlights moving to dim the employees, locomotives within the yai’ds.” *6 failing Fe charge negligence against the Santa was of
The charged rule custom as dim of the same and the violation against the Frisco trustees. denial, assump a general answer of trustees was the Frisco negligence. the Santa went contributory
tion of risk and Since Fe important here. out of case in the trial court its answer is the record, point the but no made on the reply appears No was absence though filed. reply, reply of a were besides the was tried as cause Fuchs, Von Eime et ux. v. 320 Mo. 8 S. W. See 824. the Hereinafter, term defеndants has reference to Frisco trustees unless stated otherwise. (1) assigned
Error is on the refusal of defendants’ demurrer case; (2) at plaintiff’s of close, instructions 1, 2, (3) .0, D, 3; and on the refusal of defendants’ instructions E; (4) on an excessive verdict. Liability stated, Employers
As this cause under the Federal Act, negli- not, plaintiff’s do that brief, defendants claim ' gence greater defendants, equal or than or that was that of negligence injury, his was the his or as a he, sole cause of matter law, say of They negligence assumed the risk. that “no actionable (of defendants) particular (alleged) was shown either ’’ that reason the demurrer to evidence should have been sustained.
Plaintiff, injury, at the time emрloy had been in of yards, the Frisco and working in defendants, the Enid for about years. shift, time, His was from 11:59 m. to 7:59 a.- 21% m., P. shift, and such been had appears, supra, about months. As injured he was about 5:30 day December was M., A. Friday. Plaintiff prior testified that a week it had rained froze; the rain “left about of an three-fourths inch of ice ground”; began Wednesday, to thaw 18th, December Friday and on morning, December 20th, crossing Van Burén street “ wet, muddy was Q. and slippery. I want 'to tell the what the condition of Van Burén street was where had to stand just north of the north rail main protect crossing. track to this A. It had holes and had along automobiles hit this side the road trying Q. to miss those ruts. deep Why, How A. these ruts? I suppose some of them Q. were at least fivе deep. inches What was in those A. ruts? Water many and mud. How ruts ivere north north rail on the main line track? A. Mister, I don’t them, know. I didn’t count there were plenty”; that Van street, Burén at “13 wide”, was feet and “was dirt, out cinders, gyp made chat”; rock and gyp rock is used making plaster.” “for .engine
And further: As pushing those two cars went track, down the mainline what did Gunning (the do as far pin puller) watching concerned? I was two me saw they got almost to main When up come line. cars car. west corner northwest Gunning point, on the Why couldn’t A. No. you get point? . . Could do you have did Q. What Gunning there. you? A. E. J. have you should Gunning point when saw *7 the again locate and and look A. I to turn car? had boarded the Now, Q. . car. . . get behind, on that grab the car iron on next jury west, tell the being engine backed two cars this these the first with reference light your was switch the light on you the Q. see the box car. Could A. Behind first
'box car. light, by you Q. Were blinded your engine? A. I could not. No, engine? A. sir. you light of the switch if were blinded you your Gunning point on Q. you was discovered .that After you another car, did see began grab for the iron on second to look you what trains saw yard? Q. jury Tell the A. I train in the did. Frisco from you you know. A. saw, trains whose Tulsa, was headed up into the scale track (the second track track).... the eastbound mainline north from train A. Fe Fe train? The Santa Now, where was the Santa main (westbound) here, standing just heading out on or this was line. line of the A. This Q. line of the Frisco? Was looking you lоoking the east and Q. When were down toward Frisco. you going board, did grab were for the iron on second car you first train Santa Fe train and on the see lights Q. A. I Tell whether or not the were 633? did. Bright. Q. Both of them. bright? dim or A. Both of them? A. they Q. I were you will ask to state where the reflection—where directly Q. They shining west. shining, which direction? A. were A. It down how far train down there? was About Frisco Q. far from about how distance, even in there. About the. same something that. crossing? feet, A. like the Van Burén 550 or looking Q. train, you there for Now, was Frisco when were this standing? your grab iron, moving train, the Frisco or it Q. moving, moving A. If I Was it was it so slow couldn’t tell. moving standing? just the Santa Fe A. I think had train you Q. grab grab move. When started to A. started to iron? Yes. . . . you
“Q. Now, bright when looked down thеre saw these two lights you Gunning you passed you, what did do after what did do boarding with reference to the train? What was the first thing you I up grab Q. did? A. reached the third iron. With My you Q. which A. grabbing hand? left hand. While with ' you looking? Q. the left hand direction were A. which East. Was bright lights Yes, Q. you where the were? A. sir. After took your you grab hold of iron with left hand what did do next? got grab I with my right A. hold of the next iron my hand with I; (indicating), got being my then hold hand like that lantern right you the left hand and got . . After hold with grab iron. my you do? A. I head grab iron what did .turned hand my car two speed with box little, started to run to increase take, my foot to' raised left steps, three or whatever would My right went,into stirrup. foot rut caused me stumble you When turned where did and threw into the car. me to.look When west look? A. To west and down. did look Why Nothing. Q. couldn’t down, what did see? A. nothing? looking from see Because was blinded into those n n ” headlights. Rice, witness, Plaintiff’s Carl D. testified that he went over the crossing 20, 1940; on December 19 and was so times, driving it, narrow that lots “he would have to over passed being rough wait until the other car on account of it so Q. Now, footing, bad. what was the condition of the or where the crossed, cars walking it, pedestrian, or where a man would use *8 footing neighbor- what the condition region, in the hood the south main line track ? ItA. was full of chuck holes and time full of . . were water. What kind of material, you know, if crossing, was there this Van this Burén crossing street across there, is, this line track between main .Well, the rails and north and south of the rails? A-. to it looked me like it had graveled been at one time with rock and some cinders put they put in. Then some white stuff in there and don’t know ’’ what it was. Defendants’ evidence tended to show that were no ruts there and chuck crossing, the area necessary holes will but it not be to set out such evidence. It cannot well be said on the issue of conflicting. ruts was argued not But it is that “there can presumption be no which plaintiff the ruts to had referred long existed enough charge to knowledge defendants with' of them give repair them time to them.” defendants’.yard
Earl J. Shackelford, foreman, duty whose it was remedy to says such plaintiff defects as were the Van Burén this street (Van crossing every crоssing, Burén street said that hundreds' crossing) hours. And plaintiff pretty well cut up.” testified that of automobiles went over ‘‘ after rain Saturday The storm was on and Sunday, December 14th and 15th. thawing It commenced Wednesday. about noon If crossing “was pretty up” rain, well cut plaintiff after a says, then considering the traffic and composition street, it is reasonable to infer pretty that it up well cut in a few after hours the thaw commenced. crossing which from attempted to board movirig place car was the furnished work, defendants for him duty and it was their to exercise reasonable care to furnish him a 404' Louis-San v. St. Tash carry work. place on his
reasonably safe 690, 696; Bird l. c. (2d) 1148, 76 Co., S. W. Ry. 335 Mo. Francisco (2d) W. 316, 78 S. 336 Mo. Ry. Co., Francisсo Louis-San v. St. Ry. Co., 338 Mo. City Markley Southern 392; v. Kansas 389, l. c. 409, c. 410. 436, 90 (2d) l. S. W. the evidence truth of the evidence admits
A demurrer to inferences of admits all directed, and also which the demurrer is to. evidence; such might fairly from that draw jury fact and the in evidence only the facts be sustained when can demurrer against strongly so such facts are to be drawn from fair inferences no for room as to leave whom the is directed party at demurrer 992, 333 Mo. Young al., et differ. v. Wheelock minds to reasonable v. Missouri- 954, cited; Trower 950, l. (2d) c. and cases 64 S. W. 792, 796; W. (2d) l. Co., R. 347 Mo. Kansas-Texas W. Darby al., 346 Mo. 145 S. v. Henwood et ordinary question as to whether defendants exercised reasonably carry on work place plaintiff a safe care to furnish rule jury, and we so rule. And we likewise- was, think, we long enough had “existed on the contention ruts necessary It to consider charge with” will not be defendants notice. infra, charges negligence, up, we take these other since here the ruling assignments plaintiff’s instructions. grounds negligence three plaintiff’s instructions. The On submitted, directing charged separate instructions, each if the found as therein submitted. Instruc verdict charge that defendants failed exercise tion submitted carry reasonably ordinary place care to furnish safe charge submitted, This as follows: his work. “ trustees, further find defendant ... that said agents, employees public maintained said their servants *9 defective, rough reasonably in а and not street safe condition at such perform getting freight in off and' plaintiff for the his duties on to they along crossing on No. passed as and over said track cars you find, keep crossing if and that failure to said in a reason- so such condition, ably perform duties, you to plaintiff find, his if safe so circumstances, not, ordinary all the in the’ of under exercise you then part trustees, on the of the defendant -are care warranted guilty negligence; of finding the defendant if you in and fur- trustees any, directly negligence, if and proximately, find that such in ther plaintiff part, in contributed to cause to stumble whole or and miss being footing pushed car over the crossing, on box west his street 9 9 against complаint first instruction No. 1 is
The that there was support alleged to substantial evidence submission on no defec- crossing. complaint ruled, of Such supra, condition tive ruling assignment on the' the refusal of the on demurrer to the evi-
405 1 bad because say No. instruction dence. But defendants alleged in or condition particular to submit defect failed “the miss claims, him stumble petition, which caused or And, absent stepped.” footing, namely, into he a rut which instruction say the particular defect, of the defendants submission negligent be- “gave roving appellants commission find jury condition, defective, reasonably of safe rough or not cause some in- proximately caused other than that shown to havе jury.” defendants, that de- court, request
The at the instructed “guilty negligence fendants narrowness” were not because on crossing. of Van at in instruction And, Burén 'street contributory negligence (No. 12) given request, defendants’ this: ‘‘ you jury court that if find and from the instructs believe you roadway find, plaintiff stood, on if so in attempting rough reasonably to board the car was and not safe” (italics . . ours). effect,
Instruction No. in question submitted the condition way in the same submitted such issue. being And the situation, complain. such cannot defendants Atchison, v. Topeka Ry. Evans Santa Fe Co., & 345 Mo. (2d) 604, 611; Ry. W. Chicago Co., l. Johnson v. & E. I.
22,Mo. (2d) 674, S. W. it, l. c. see situation, as we - involving not one the rule that failure predicate, plaintiff’s instruction, main a fact or faсts recovery, essential to cannot be by given cured an instruction on behalf of the defendant.
Plaintiff’s instruction No. they told the if found “that there had a long yards been established custom in said headlights dim the standing moving locomotives within the yard engines night switching- crews time, if find, so night did, defendants question, dim the on their locomotive within the fail yards, by said and that reason of said failure was blinded by such headlight, find, if so and if further find that such part failure their under all the circumstances, facts and was not ordinary care, exercise of finding then are warranted in guilty negligence, defendants” further found negligence, such if any, acting conjunction “that alone inor with any one or specific grounds negligence, more of the inas these' defined, against instructions trustees, the defendant in whole or directly part, proximately caused the said F. H. Goslin thereby be blinded said headlight, caused to stumble and *10 miss foothold on said ear injuries, you and receive find, if so plaintiff and that did-not assume the as in risks these instructions against plaintiff the your be for defined, then verdict should ours). (italics the defendants” apply would 2No. that appears It from instruction although he moving trains, standing and both
claimed custom to concede only moving trains. Defendants pleaded applied that it a headlight train dimming required that rule No. 17 In- yard engines employed.” are standing yards “while we 17, hence of rule No. breach struction No. submits No. 2. moving of instruction only with the feаture shall deal here alleged custom? Was there substantial Plaintiff testified: question not extensive. evidence on the custom A. A rule that was by mean custom? you know what we “Q. Do you to tell the by Q. I will ask practice. law and established dimming custom, one, with reference to the what there was was the yards? A. It was the lights running trains inside of yards. coming engine lights dim the into the for man to custom Yes, Q. by employees? A. that custom observed the Frisco Was employees Fe observed the Santa sir. Was custom yards Yes, A. used the Frisco there? sir.” “Q. say You examination On cross testified: engine moving yards a road a for had been custom there (cid:127) yards headlights through yards? A. Yes. through dim its any Q: Q. Every every them. Did train that? A. Not one of did That Quite Q. What did A. percent of them do it? A. few. it? by plaintiff defendants’ deep for me.” In a made is too statement days injured, he he said: “The Santa agent, claim two after engine engine facing me, judge and I would 33’s Fe burning engines headlights Both on these distance. same they should dim their brightly, and while there a rule that headlight always in with headlights, they do, never come bright headlights, a man has burning bright, and bn account of these closely doing, what he is so and turn and look to see to twist my eyes.” lights keep had to turn sidewise to out engine with which engineer on the switch Burns, Thomas “Q. I will working, defendants, testified: and a .witness engine. regular I mean a train. custom is with a road ask what the to that time when road prior practice that time What as the headlight? their through yard with reference to engines moved through yards. bright headlight When car They burn A. ' or turn them out. If dim them standing still either entirely dimmed turned out engine with its train or see a yards, is a notice of. what? A. He is in the-clear. Standing standing Moving still? still.”. yards had puller, and who worked pin Gunning, defendants, I will testified: ask years, as a.witness been in those 'when road haA’e time the entire
407 train moving with through yards, a head- keep those do their lights burning brightly? They Q. keep burning. A. That them through is the Yes, custom there all time? A. sir.” acting.” A custom “a practice of This course concise approved Light definition is in Hartman v. Electric & et al. Union Power al., 230, 241, Co. et 53 Mo. S. W. will 1. c. It be that plaintiff, noted “a evidence, his defined custom as rule that was practice.” established law and
In brief defendants’ it is said: “While to (plaintiff) he testified a mere conclusion of fact that there was such a and which custom, testimony objectionable conclusion, because it was a mere his testimony further question actually toas what the trains were in thing gave the habit of doing, custom, rise to the if there one, was that all the trains headlights, didn’t dim their did, few percentage a of them but what he was to unable tell.” Plaintiff a “quite “a few”, few.” said
It
plaintiff’s
alleged
is true that
toas
a
custom was
conclusion and
say,
objectionable,
as defendants
but the trouble
is,
objection
no
was made. “To make a custom effective it must be
shown
uniform,
notorious,
to have been general,
certain, and
known
to
parties,
general
or so
and universal
in its character
knowledge
presumed.”
Pankey
be
Topeka
must
v. Atchison,
&
Ry. Co.,
Fe
App.
Santa
185,
199,
Mo.
l. c.
make a custom? supra, submissible issue As examination, said that plaintiff, direct “it the custom for lights coming yards.” engine man to dim the into the On cross say You examination he testified: had been a custom engine moving through yards' for a in the road there tlm yards? through Every dim its Yes. train did every any A. Not one them. Did thatí them do ití A. Quite percent did What it? A. That too deep me” few. (italics ours). What'plaintiff said in statement, supra, to the agent go claim about the violation only custom would credibility. Ry. v. Jones St. Louis-San Co., to affect Francisco l. 228 S. W. and cases Except Mo. there cited. italicized, we have could, cross examination we think, making question be no submissible issue on the alleged custom. testimony single party of a ivitness
“Where relies on contradictory testimony issue, given ivitness is prove and the such issue, tending prove thereof conflicting, version one contradiction, exрlanation tending it, with no disprove other tending show and no other fact or circumstance case true, no case and the should made, of the evidence is version *12 guess the speculate or statement of permitted not be to which^ case, if, in such a accepted. hand, be On the witness 'should other contradictory are conflicting of the the statements witness and circumstances reasonably if are and explained, or there other facts story tending true, case show of the ivitness and the to which in evi all from a fair consideration of the facts circumstances reasonably a could determine which statement dence credibility true, be then of the ivitness aсcepted should as the witness ’’ testimony weight jury. questions to to’ are and the be his given 644, 647; Adelsberger (2d) 59 l. c. Sheehy, v. 332 Mo. W. S. Ry. 175 W. Kansas City, Co., 265 Mo. S. v. Southern Steele 234 179; Independence, National Stoll Bank of 177, l. c. v. First Massey-Harris 682; v. App. 364, W. l. c. Co. Mo. 866; v. Rich, App. 509, (2d) 858, 233 Mo. 122 S. W. l. c. Swain Anders et al., Mo. App. 125, 140 S. W. (2d) 730, l. 736. days by
In former it held a few that “one was was courts witness enough custom, it now not to the existence” a but establish any may proved that be other fact. 17 well settled a custom as . J., However, points out p. 524, C. Sec. cited that text prove practice it have at least witnesses to is desirable to two custom, one will not be because evidence of witness sufficient City unsatisfactory.” “if vague Kansas Suburban Shields v. Co., quoted. cited the text App. 637, support Belt R. Mo. switching appears plaintiff; In that a member of that case moving crew; car in á top that he was of a box which was cat .on ready the brake when the cars, brake, and was hand to set signaled foreman came out from between two cars of the cut made; been uncoupling that the had been made or had not uncoupling, that foreman to make the and instead of so failed signaling gave engineer stop signal, plaintiff, the foreman stopped and the cut of cars were was thrown “down on injured. track” required which there was a Plaintiff claimed that custom engineer cautionary foreman, give “a slow or situation, in the signal, stoрping stop so that the would signal” instead the usual plaintiff’s held It was evidence have been less sudden. custom. make submissible issue was not sufficient to App. l. c. : said Mo. The court 645] [87 statutory no law, regularly pre- “There is or or common rule by or, general scribed adopted employees, defendant or its .custom or local, imposed upon switchman, being defendant’s after , a coupling emerging unable to effect from between the cars the duty give cautionary signal giving stop the slow or before testify any knowledge part train. The did not on his cautionary or signal general slow uniform use amongst railway gave companies, any and as no other witness such' we testimony must conclude that there n6 evidence adduced duty tended to establish the fact that defendant’s it was give signal in question.” inability
It is not plaintiff’s give percent contended that traius that did moving dim the when destroyed his positive there such custom. If his statement that destroyed was such a as claimed was custom .he it was by answer, “quite few”, any when trains asked headlights yards. dimmed moving when quite entirely word “completely, wholly, totally, means . . . (cid:127)
to a near, considerable . . . degree, ., quite extent . *13 quite a good many” few—a (italics ours). New Inter- Webster’s Dictionary, national Unabridged. 2d Webster defines word Ed.— ‘‘ ’’ many consisting great numerous, Among as of number, not few. of (Per. Ed.) 491, definitions 26 & many Words Phrases is this: “Many and, very though is word of meaning, indefinite it is ‘multitudinous’, recog- dеfined to mean ‘numerous’ and it is also ” synonymous nized ‘several’, with ‘sundry’, ‘various’, and ‘divers.’ although witness, may cross examination it of weaken his examination, evidence a particular given on or pre issue on direct viously on will examination, justify cross not be sufficient to substantia] holding gave issue, such witness that no evidence on fairly where different conclusions could be from his evidence drawn entirety. Clayton (Mo. App.), its Van Hafften al. v. et 530, 533, cited; Duerbeck, S. W. cases there Bloecher v. 681, Mo. S. W. l. c. 688. In situation, there, it be substantial cannot said was no tending alleged dimming evidence to to show custom as yards headlights moving plaintiff’s on trains as submitted in No. 2. instruction ’ alleged Plaintiff’s instruction No. 3 was based breach lаnguage, to rule and is similar in instruction No. applicable 2, except to make it to the rule and No.' as modified Rule No. 17 follows: custom. every displayed train will be “The front extinguished or when a train night. It must be concealed turns stopped track, clear main or out to has meet another junctions. at the end of track or standing train double meet a yard engines standing in where “It must dimmed while be be stops are employed; approaching at which are [88] stations ap- discharging passengers; receiving made or or trains are delivery; ap- indicating for proaching signals train orders order main standing on proaching junctions meeting points or'while approach- when meeting рoints, track or more tracks two ing opposite trains in direction.” n n no there-was against No. 3 is complaint instruction .that No. 633 was tending train substantial evidence that Frisco show evidence, on direct standing at question. Plaintiff’s time out, supra, but examination, standing, is set relative to the train “Q. Now, was it. reader, again to the we state convenience iron, your grab was train, you looking Frisco when there it was standing? A. If moving train, Frisco was it examination, moving, it I tell.” On cross was so slow couldn’t plaintiff testified: 633) (train No. You that if testified on examination it direct you, moving, moving you it, it couldn’t tell didn’t was so slow remember. many questions, A. I I can’t
this afternoon? answered so A. It was moving You or not? couldn’t tell whether it was standing (italics оurs). still What think makes standing it was stand- still ? do on that What base statement ing base that A. How that? On what do still? say you standing How dó statement? You think it was still. n cut that at that conclusion ? Because had to arrive go off and round house.” support
It our conclusion that there substantial instruction 3. C, D, E. assigned Error refusal of instructions the. respectively, would have told the D,
Instructions C and any negligence guilty “were was no evidence that defendants of the Van Burén street because the condition” *14 rulings, “any no of violation of rule 17.” The there was of D. supra, dispose assignments of on refusal C and ‘‘ ’ E follows: instructs Defendants refused instruction court M. case, find the J. cannot, defendants, that in this any Lonsdale, trustees, guilty of negligence, Kurn John G. on the their train failure to dim the of because of the place from the east of the where approaching which was (italics ours). ruling, supra, the box car” attempted to board 2 disposes assignment No. of plaintiff’s, instruction instruction E. refusal of defendants’ injury awas trans the verdict excessive? Plaintiff’s
Was femur, upper left the medical evidence fracture of the verse injured permanently and disabled from is to show he tended switching again a member of a crew. Defendants do functioning dejay not case, that such is' the but it claimed that at time is of plaintiff’s injury he suffering' Paget’s disease, which from is deficiency’in said to be incurable and which a calcium causes bones, heal, and bone exists, fractures such are slow disease if'they heal at say all. And who defendants that “the doctors testi- fied appellants say (absent disease) hail he have should a complete recovery in from three six months. If he had made such recovery it successfully judgment could not be disputed that $15,000.00 of grossly excessive.” F. A.
Drs. Benage Hudson and C. for plaintiff, II. were witnesses Joseph Jr., Drs. Dr. C. Peden and II. for defendants. Crego, O. plaintiff; not, Benage Hudson treated others did but Dr. examined him. Crego X-rays Drs. Peden plaintiff. examined of
Plaintiff Paget’s does not admit that nor does he disease, he has deny. Dr. Hudson, August, 1941, who from treated cross examination, testified:
“Q. deficiency Now the describe, bone condition is that a thing? calcium bone, A. Deficiency one calcium the throughout not bone, gives the whole in spots; peculiar but it tliat appearance (in mottled X-ray). Q. cause Then that cause—the of metabolism, that absorption, it the is result of some in the condition is it caused the condition A. I know what in the bone? don’t it is Q. throughout the result of. And is a condition exists the entire bony No, sir, body, structure it doctor? A. of the is plates showing have spots doesn’t, it not there in some it 'but is entirely Q. confined particular to this Then are other bone. bones, fractured, besides the femur that was that are the same condition; may that- have the calcium have deficiency, whatever been cause, throughout prevails the same a number condition body, bones of the A. is that correct? That is correct.” Dr. Crego, can, A man examination, on cross testified: disease) (Paget’s early have stages, know In never it? first; stages they they before the end were reached would know Q. had it. ordinary Paget’s And a man can with or does do labor long period right. disease for a and not it? A. time know That is testify are attempting how'long might You not this man A. No, have had disease the bone? sir. Nor- are not some long might testify how he have continued work he attempting doing type injury disease have seen these with that right. X-rays? A. That don’t know? 'A. That The doctor’s right. Q. strictly conjecture part It would be their any days attempted months, years it to time ? to limit A. Thаt ’’ necessary right. It will not be to set further out evidence of the ' doctors. able hospital get Plaintiff was out bed ,weeks, *15 trial, up time of chair, to the Dr. Hudson’s bill sit a 412 experience expenses, any,
was in,the Other if are not As to his $319. shown. “Q.Now, hospital, etc., plaintiff suffering, .while testified: you you with hospital happened reference were to what your I injuries,- you placed to A. was position in, what etc.? my leg TÜéy in a (indicating). with left position frame in about this my through through pin drilled a hole a leg, put bone in bed, a that bone. There with pullies two with frame of thirty leg pound weight. thirty weight I a on that pound carried twenty-five think, days. pounds. I for, It was ten reduced to my twenty-five leg was weight leg I until pound carried ” February. first takеn out of that frame about the home being to his hospital After 9 weeks was taken Enid, go months, not to to bed home able you pain, any, bath room alone. have suffered What kind you since accident? have suffered since this whether State A. have accident now. I degree just generally, this and in what — necessary anything from It was suffered as much as else. weakness somebody stay can’t sleep all time. I with me most Q. What night. got my leg broken. Six hours is all I have since you maybe hours. go sleep do mean? A. one or two sleep will to Q. A. Yes. Does Q. your leg hip Has hurt since then? Q. from Does it present it do that now? at the moment. A. Not Q. day You have a day? day day. A. . . . Yes, from way? any Q. you get other crutch and cane? A. around Yes. Can way any other get A. No. able to around Have ever been you. walk without than do since No. Can the accident? your No.” walk cane? A. crutch? A. No. without Can 24, The trial was October 1942. assignment of law an excessive verdict applicable rule on an assignment to an that the evidence applicable
is the same as that All the support plaintiff. verdict not' sufficient presumed are in favor of the verdict and reasonable inferences (2d) 23 W. City, 454, 324 Mo. S. true. Peterson v. Kansas be Co., R. 342 Mo. 1048; 1045, l. c. Webb v. Missouri-Kansas-Texas (2d) 27, 116 W. c. 30. S. by an required performed be “One most difficult tasks justness of verdict court determination appellate Mining tort”, Jackson, v. Walker Coal Span for a in an action & task, (2d) 190, 1. and task 158, 16 c. 203. This Co., Mo. S. W. grown helpful which are up have frequently, but rules is, recurs “when question. One Of rules disposition -of such these . . are similar injuries losses sustained to the the facts as ’’ uniformity amount of verdicts. as to the be a reasonable there should (2d) 1085, W. al., Mo. 70 S. Rindskopf v. et O’Brien Inc., W. Wolferman, 347 Mo. Fred 1093; Murphy v. l. c. (Mo. Sup.), (2d) 117 S. W. 489; Lynch v. Baldwin 481, l. *16 273, Opinion Lines, Inc., l. 278. O’Brien Vandalia v. Bus 351 Mo. O’Brien ease the 500, S. W. (2d) 76, is handed down years old and his herewith. earnings In the per month, annually. were present $190 In ease, $2280 years was 56 injured, earnings old when and his annual for the last years $2050, (he were in excess injured several of and for 1940 earnings 20, 1940), $2210.17, December injury and the similar to injury case, in the O’Brien which was comminuted junction upper right fraсture at of and middle third of the femur, hospital phlebitis and while in the developed in leg, the left right elbow, A shoulder and neck. $15,000 verdict reduced uniformity $12,500. followed, If the rule think present we $15,000 verdict of is excessive in the sum $2500. O’Brien v. Lines, Inc., supra; Vandalia Johnson Chicago Bus v. & E. Ry. Co., I. (2d) 674; W.
334 Mo. 64 S. Mitchell Ry. v. Wabash Co., 334 (2d) 286; W. Mo. 69 S. Evens v. Terminal R. (Mo. Assn. (2d) 69 W. 979. Sup.), days will, filing within
If from the opinion, this $2500, judgment $12,500 a remittitur file here will be affirmed, judgment will otherwise be reversed and the cause It Dalton Van so ordered. Osdol, CC., remanded. concur. foregoing opinion by PEB C., Bradley, CUBIAM: The adopted of the court. All opinion judges as the concur. City Appellant, Municipal Corpo Steelville, v. Walter Zinn, Mayor ration, Judge, Ex-officioPolice Kreamalmyer, Albert Parsons, City and Bart Marshal. No. 38167. 173 S. W. 398. Banc, July
Court en