*1 821. ‘1 re one the business that, public The interest,- contention Congress'thus-fat quiring challenged. But regulation, need not be the sole silence, it has regulate where has it, not seen fit to and its particular power speak, equivalent to a declaration ” regulation. shall commerce be free from 688. Co., See also v. Fed. Landon Public Utilities (cid:127) review judgment Our under is' that the of the commission order The commission imposes a upon direct burden commerce. interstate the order right make does not contend its otherwise but bases regulate such ground Congress attempted to has never not oc- has Congress has or presents.- situation as this Whether case Natural Gas Kansas cupied v. field, ruling in Missouri under the upon burden is' a direct Co., supra, if the order of the commission legislation. Federal regardless of interstate it fall commerce must (cid:127) (cid:127) case, disposes of the already necessarily Since what we have said ' ¡ questions other will raised not be discussed. remanded judgment and cause is reversed circuit court commission.

with directions to that aside the order of court to set concur, All sitting. except Collet, J., not Railway Ap Company,

Ben Harrison v. Francisco St. Louis-San (2d)W. 841. pellant. S. One, 1936.

Division November *2 Henry Joseph Jamison, Conrad, S. W. L. E. Durham, Hale Houts Lee appellant. Iius M. áñd *3 Cowgill <&

Cope Popham John Cooh respond- <& F. Hadsell, ent. *5 cause,

BRADLEY, personal injury, C. This for is under the Fed Liability (45 Employers’ A., seq.). eral Act C. U. S. Sec. 51 et Plain fireman, tiff, judgment a locomotive verdict and $40,000. obtained for new appealed. Motion trial was and defendant overruled It is *6 he defend- and was both that, plaintiff injured, at the time conceded transportation. engaged in interstate ant were May 14, 1930, when he injured was four a. Plaintiff was about m., oc- The accident furnace of the boiler. put to coal in the

preparing freight while Okmulgee Muskogee, Oklahoma, between and curred siding or switch traveling' east of a east, and a short distance train was alleged is that de- Mowery. negligence and submitted as The known ordinary keep its track and roadbed failed exercise care to fendant to running reasonably in the train over in condition and this a safe (1) speed. rate of The answer is at an éxcessive track and roadbed contributory negligence. (2) (3) general denial; risk, a and assumed general a Reply is denial. evidence; assigned (1) the admission and exclusion

Error is on (4) (2) instructions; (3) argument and on giving counsel, on alleged excessive an verdict. assign peremptory its error on the refusal of

Defendant does not says request case, for directed at the close of verdict great justice against weight the evidence and “the verdict was closely rulings be scrutinized demands that all the trial court ’’’ in prejudicial Plaintiff, prior injury, error. his had been to years. train employ a fireman for seven of defendant as about firing Muskogee Okmulgee, con- was ran between twenty-three according cars, plaintiff," sisted of about injured. running thirty he was He per miles hour the time just stepped testified that he had down from the fireman’s seatbox to put in partly stooped coal and had taken the shovel and was over getting shovel, engine suddenly coal with dipped when the receiving up cab, down and and he was thrown on the floor of the injuries complained Plaintiff’s tended show that of. evidence dip repair the ties and roadbed where this were occurred out of probably dip defective and would cause a such condition as says as he occurred. He been run for had on this about two weeks standing not, prior injury, engine and had his on the been deck passing question, place that, while over the said inches; engine opinion, the as dipped much as four or five that “it g'o would have to as much four or five inches to throw a man.” Plaintiff was track corroborated as the condition of the and road- bed. Defendant’s evidence show that track tended to and road- place good bed at the place were condition and that there was no near where claims to have been because of the thrown sdd- dip, exceeding den dip quarter where there could an inch, be blit concedes, effect, question as to the con- dition of the track and fact, roadbed was one hence it will be necessary pursue siibject of the condition the track and except roadbed further, as occurs in the separate consideration of the " assignments. witness, Green,

On the admission of evidence: Plaintiff’s Bert freight testified be fired a train over this stretch-of track “with day injured; in a two” after mis fortune had been called to his this attention in because formation “noticed that condition' there.” Green asked *7 question: “Taking the few hundred feet of track Mowery, east of 486, post you just mile I jury want to you tell the what noticed about your after this this immediately was called to attention after man there?”, was hurt “Well, and answered: was dip there a there.” objected After had ground he answered defendant “on the that it is subsequent alleged to objection the date of the accident.”' The was exception, overruled1"and defendant saved but did not strike, move to and point failing makes the that defendant, to move to strike, position is in no complain. to Such is the rule. [Brackett v. Black Masonry Contracting Co., James & 326 387, Mo. 32 S. W. (2d) 290; Garvey l. c. 288, (2d) v. Piel 43 S. (Mo.), 774; et al. W. Boyd 1009; v. 291 City, 622, 1001, 237 S. W. l. c. Kansas Mo. Radler 968, Ry. v. (2d) St. Louis-S. 51 W. F. Mo. S. Co., 1011.] But testified, occasion, witness Green further and of same the engine place Objection the at the rock back.” “would down and then subsequent was to ground made the that was it the time to plaintiff’s injury. Also, plaintiff photographs introduced some track, immediately Mowery, the at and west of and east taken plaintiff’s injury. Objection ground after was made these on the “nothing that there was to show that the then condition witness, as at Cole, the time of this accident.” Plaintiff’s a railroad many years man experience, including* as service fireman and injury (the engineer, shortly plaintiff’s testified that after inference day is in thereafter) Mowery the next two at switch or and examined west, the track several feet both east and hundred fairly photographs represented situation as saw it when He further there. testified that the ties were rotten and that play “Well, (ties) there was considerable in the rails. some of them rotten; you along pick could walk there and them out like that (indicating); play much was that there in the rails they where Q. play up would and down. What is whether the fact or not those joint joints supported? A. Well, up were worked down gravel much and and ballast had worked out from under so much they Q. your play engineer had experience there. From an you track capacities man in the have various worked rail roads, jury your I want tell opinion whether or not in tendency a a throw a condition would have fireman from his position going speed twenty-five thirty a miles an ? hour A. Absolutely.” Dudley, witness, experience James whose in thirty-six period thirty-eight railroad a years, work covered or in cluding crews, “Q. service as of section Now, foreman testified: yon where the. question abont Conrad Mr. asked with the connection engine an with tender of supported that improperly joint is so inches rebound drop will or five it, it four over passing that, that a before good for some time has been the weather where suddenly judgment, your experience and comes condition, A. alb long Well, thing a a time existence? overnight, is it or or ” ’ long duration. had, has been of a experience I ever it have general present a existence of condition' proof of the “As rule any same con presumption not raise or state facts does 92, p. sec. prior J., at a date.” C. or facts dition existed 30.] [22 standing pre is not “Ordinarily, proof present alone condition v. Trenton theretofore.” sumptive evidence its existence [Conduitt 31 W. l. c. S. But Co., & Electric Gas 21.] subsequent of the present case as to the condition evidence including appears, track, photographs, does not stand alone. As Dudley supra, condition, testified that the described to witness had, him, long Also, opinion, appears been of duration. it only subsequent day the observation as condition two *8 plaintiff’s injury. tlj.e parallel after We think here situation Bailey 189 principle City, 503, said in v. 87 to what was Kansas Mo. “ 1182, S. W. was ruled If of character, where it that: defects are such decayed example, stringers boards, as for a of condition or of the rust ing consequent nails, rotting holes, off or the of nail out the loosening boards, as to gradual show that the condition was the joint product neglect, time proof that condition sub sequent to the accident but so near thereto as to indicate that the condition existed accident, at time of the The admissible.”' entirely situation here is obtaining different to that in the Conduitt case, supra. There, subsequent condition, as to which evidence admitted, was seventeen months after injury, it was case held that such “going too far.” Under the facts here' we do not think that error was committed in the admission of. subsequent evidence as to the condition of the track and roadbed. assignment

In the on the admission of evidence defendant further complains of the evidence of “up that the and down move ment,1'’ injured when extraordinary he was was “an movement of the engine;” and of the evidence witnesses, Cole, Green and fireman likely would increasing be thrown speed over the stretch question track twenty twenty-five from miles to1 thirty per miles hour. complains Also admission of the evidence of plaintiff’s Green, witness, that the condition in which he found the track would take “weeks and months to accumulate.”' says Defendant all such was in evidence nature of conclusions: and invaded the province jury. merely of This evidence was opinion evidence, given by experienced men. Plaintiff had railroad .engine fired an section, for years, seven had on the worked the-

8.30' shop and had been twenty-five years’ brakeman. Green had had some experience service; in railroad had worked on the section been and had years.”' “for a Cole, number of experienced fireman likewise was an man, railroad with twenty years; a service of man, had been section helper, pipefitter, boilermaker, blacksmith, machinist’s fireman and engineer. case, In Ry. recent v. St. F. 335 Williamson Louis-S. Co., 917, (2d) Mo. 583, question S. W. we had a similar one here. There we twenty-five ruled: “The witness years’ had experience on locomotives and as a qualified switchman. We think he was ex an pert testify with coupling reference to the automatic of cars. The testimony was testifying In conclusion of the witness.' only gave opinion question the matter. was a matter expert evidence, for proper and it was permit the witness Young answer.” And in Wheelock, 992, v. S. W. question. there was a similar Young In the case error was as signed on the opinion engineer admission of the of the used as an ex pert. as speed to what grade “of such a train on such a and curve ’’ various ruling conditions would tend to under cause derailment. In assignment we said: “We these proper matters were think subjects testimony. expert for Such are not within matters the ex qf average perience jurors. One test opinions experts of whether ‘ should be jury .received is whether the court or will be aided re ceiving such necessity evidence.’ C. J. sec. ‘The [22 736.] testimony subject such arises where the inquiry matter of an is so far removed from the realm of experience common ordinary jury, fully even when the placed fairly facts are them', before cannot ’expected be to’ draw a therefrom, correct inference the same time, person no competent to draw an personal such inference has knowledge of the facts. Under such circumstances the fact that a possessing necessary witness skill would draw certain inference possesses probative from facts justifies reception force as its *9 ” as evidence such [See, also, some inference is the correct one.’ Ry. 895, Hiatt v. Wabash 334 Co., Mo. 69 S. W. We do 627.] think that the evidence of these witnesses falls within the class conclusions, opinion given by but those, qualified by was evidence experience give to their opinion. among assignments

Defendant, the based on admission the assigns question evidence, on a asked redirect on examination. during you gone Plaintiff was that, asked: “And times had over the you any go had ever seen particular train over that stretch of track other,than any speed twenty-five hour, there at faster than miles an question particular Objection time?” was made this the to ground leading suggestive. objection it was The was over question then re- exception. ruled and defendant saved The was ‘‘ day going any speed framed : Had it faster until seen twenty-five answered,-“No, than sir.” miles an hour?”

831- objection question was made the but there is no reframed, as No questions. objec distinction in substance two When an between the squarely made, tion the introduction it of evidence has been is not necessary objections up to follow in order to save repeated with the point. 273 [Bailey 396, v. v. City, supra; Smith, Elsea Kansas question 409, l. c. S. W. complained some 1071.] leading, what approval disapproval leading questions but the largely discretionary court, with the trial and will not constitute error, reversible v. unless the discretion is abused. Randol [Howlett (Mo. App.), (2d) 463; Lynch, S. W. v. 152 Mo. S. Coats 865; W. We Pritchard v. 192 S. W. do not Thomas (Mo.), 956.] by leading seriously think that char prejudiced defendant was question. acter of the assigned permit

Error is on the refusal of the trial court to defendant in deposition introduce evidence the whole by taken deposition, November 1931. The as stated counsel, “First, impeachment was offered purposes: for three for purposes; secondly, thirdly,’ as plaintiff; admissions made light bearing upon shedding upon credibility as witness, as a great which is an in materiality, issue this ease of de doing offering termination of the I jury, and am the entire may deposition though because even there be some immaterial matters deposition, necessary deposition whole and relates more clearly purpose matters and situations -is for which the offer Objection made.” to the deposition made introduction of the ground deposition whole on much contradictory was irrelevant and immaterial and much that was not plaintiff’s deposition evidence and much in no wise- against tended to show admissions interest. The court ruled that de portions deposition fendant could introduce such of the “as impeach testimony further, any plaintiff, portions deposi of the against plaintiff; tion as are admissions interest of the course,* limiting the introduction to such matters as are relevant and ma ’’ ruling Upon- any the court so defendant' did specific terial. not offer question portions deposition, of the but selected a on the tenth page printed thereof offered remainder as a-whole. Plaintiff’s - objections deposition as when the counsel made the was offered sustained, and as a and were defendant saved exception. whole The- nearly thirty-eight portion pages as whole covers offered wholly much that is printed record and contains irrelevant im contradictory- that is no wise material and much evi dence, against that in wise tends to show and much no admissions in thirty-eight for defendant had offered the terest. When counsel pages’ *10 “The Court: Mr. Conrad, you- the record shows: whole, as a can t particular part deposition any of the point out offered that cOn upon anything said the stand? Mr. he -yes, radiets Oh, Conrad: 832 counsel- admits' something there is contradictory, I pre- am not

pared pick out; it if all is I illustrative, it will it point out as illustrative. If will point parts out the that are Court: (Interrupting): Well, your Honor, I contradictory CoNrad: —Mr. am declining to ground rest it on that alone. The Court: Well, of get course, question we back to the any there whether is admission against already interest admitted; that he hasn’t anything if there in. deposition which is against an admission which he interest already hasn’t stand, admitted on . the Court will it. . . admit Well, Mr. CoNrad : great there is a interspersed deal in there that is so through deposition impracticable comply, it is for me to and neither do I think it meets purposes the offer.”

“When an clearly offer evidence mixed with matters incom petent, required trial court is not the competent sort out from the-incompetent,-but reject it can v. [Lynch the whole offer.” M. K. & T. Co., 89, Railroad 333 61 W. l. 918, S. c. and 923, cases Ry. In Peppers Co., v. F. 316 Mo. St. Louis-S. cited.] S. W. the. a impeaching court said: “In use witness having deposition, procedure, we it the after proper declare wit identify by identifying ness his and after signature, the instrument exhibiting it, deposition, to the witness the if he asks see to read questions, deposition question, answer, witness from the or and testify; -answers; procedure or him if and he did not and such ask may repeated. permits explain answer, if -be This the witness to and impeaching party Then must offer read evidence desired. interrogated the witness. Follow all about which the''detail matter ing examine witness to rehabilitate this, party may the other do, necessary may and if it or so to deems desires testimony; if not portions as desired other or such deposition offer the whole incompetent.” wise irrelevant assignment upon based action is no defendant’s merit

There deposition. to'the relative of'the court 2. and assigns plaintiff’s instructions error Defendant place plaintiff’s in finding and the time submitting as to After were en plaintiff and defendant whether finding as to jury,' and a verdict directed a No. Instruction commerce, gaged in interstate engine locomotive “That when said jury found: if Muskogee, Okmulgee and between in Oklahoma a point reached tender Mowery, over track near east of a-short distance insecure and engaged passing and there was then same which danger repair rough and out and was insufficiently supported ordinary passing such train reasonably safe for ous and danger reason thereof you so'find, arid that if theteovef, passing over same to tender so engine cause 'would ous-'and and unusual lurches unusual make violently dip and suddenly injury the fireman reasonably-likely to cause Yas movements *11 833 performing customary you while duties, find, thereof his if so and by using ordinary that defendant knew or care could have known you if facts, facts, all above so find them to plain- be before so, long enough if injured, prior by tiff was and the use thereto ordinary dangers care have conditions, any, to remedied if said and any, if injury, before his said and defendant failed to use ordi- nary thereby you so and if negligent, find, care to do was and that so under all the circumstances and shown in evidence defend- conditions engine dangerous ant then and there ran said and said tender over you dangerous, negligent if track, so find it was at an excessive and so, if speed, plaintiff standing and that while was then and there and performing fireman, engine violently his if so, as such said duties dipped surge movements, down and an if made unusual and unusual so, plaintiff thereby dislodged position and his was and thrown from thereby injured, injuries and if and that his resulted as a whole so, or part directly negligence (if neg- was from the aforesaid ligence) defendant, plaintiff on if part find, and that did being injured time, so, explained not risk said if as assume the your plaintiff other be for Ben instructions, then verdict must ’" against Harrison and defendant. 1 regarding No. Counsel Instruction state their contention as upon speed a of miles 30 follows: “Plaintiff in ease at bar relied neg- negligence. proof predicated an hour as The most favorable ligence All upon speed miles an hour. 25 excess of or 20 and negligence, an was not evidence assumed that or 25 miles hour 20 that the testified there was no evidence that it was. The actual that the speed employees was 30. Defendant’s testified actual entitled to speed plaintiff was not was 20 or 25. Under this evidence the actual jury find that negligent if speed recover as for should to recover He was not entitled speed or 25 an hour. 20 was miles unless from 25 was 30 proved speed unless negligence. 30 25 jury 30 miles an hour or found that generally, submitting speed It follows instruction cir- and conditions negligent as under the to-wit, excessive cumstances, was under the evidence.” erroneous was further alleged: “That defendant petition In the which engine upon permitted said

negligent in that it caused thereto cars attached riding the tender plaintiff was dangerous track at rough, unsafe, uneven run over such speed under rate of reckless dangerous, unusual high, unsafe, existing.” and there then and circumstances all the conditions any speed. rely upon did not particular petition discloses injured the train time that at the His evidence was him require tó hour, that did but an running thirty miles jury question for the jury. The any speed particular submit the speed, evidence, disclosed was, under was whether conditions, negligent... excessive and as Defendant, appears, supra, says that all of evidence “assumed that miles ” uegligenee. hardly hour was not "We an think that is a fair negligence based on the of the track and cpndition The. inference speed conjunctive, were submitted in the we persuaded, are not urges, particular because of this speed should have been submitted. our Defendant attention to Brainard v. *12 calls 890, 5 Co., Mo. Railroad Pac. S. W. 15. In that case an require instruction was held erroneous because it omitted to finding upon plaintiff, as to a fact which based part, his case. We plaintiff’s do not .that present Instruction No. in the case believe erroneous, was and so rule. challenged alleged Plaintiff’s Instruction No. is on the ground jury it that “excluded from consideration of the plaintiff’s dangers assumption ordinarily of risks employ and incident to his directing assumption ment.” After that risk was an affirmative defense, 2No. to jury went on tell the what risks Instruction plain assumed, is, “only tiff that open such risks as were and obvious” appreciated by and such as were known and or would been have the jury ordinary care, exercise then told the and character of risks did assume. given not Defendant’s instructions D-2, D-3 D-9 clearly subject and directed on risk, of assumed and together, ground when support the instructions are read there is no to defendant’s, complaint as 2. to Instruction No. argument: urged On It is that error committed in was over ruling objection argument by plaintiff’s concerning counsel Dr. Twyman. “Also, opening argument, Popham In Mr. said: young by Twyman, record shows this was Dr. man that examined I and Dr. he asked their Virden was when stand about their ’ by Twyman, Objection Dr. and was employed he the railroad. was ’— ground object made as “Mr. CONRAD: I that follows: this.on I testimony is ask improper; no such here and it is the court ’’ : Exception was admonish counsel. Overruled. saved. The Court Twyman point The is that does show Dr. record not that was by It will be noted employed defendant. that all that argument asked court admonish counsel. to-do objection. Argu this, The-court did not instead overruled the do appears ment record, appears for. full in the and it both sides making subject argument pursue counsel did not further after objection. Also, entirely it is-not clear counsel intended convey Twyman impression employed Dr. defendant. record, We do if deviation from the counsel did such think intend, situation, import consequence. is of as to be is next It contended that error was committed counsel for argument concerning plaintiff in Dr. Woolsey. The record shows: “By Popham: they And Woolsey had Dr. down at St. Louis MR. Woolsey examine this Dr. was over young this doctor, man. young Woolsey this Dr. doctor under had been there month, one they young deposition used this doctor’s they didn’t use Dr. they Woolsey’s and object I to that, any didn’t — Mr. CoNrad.- testimony side; object here was available to I either to it as improper ’’ ask the court to admonish counsel it is improper. The court not rule. Then the record following: did shows the Popham: “Mr. I am saying Here what I am saying, testimony this shows you Woolsey hired charge and he is in hospital bring here; him didn’t silent, remained and there couldn’t have anything part been more deliberate on the lawyers brilliant than keeping bringing him silent and not him here to the jury —Mr. my objection : I renew court, to the argument that the im Conrad proper, any testimony here was available to either side. Popham objection. : Sustain the last : The evidence shows Court Mr. charge hospital; of their the evidence shows he wasn’t put on, gentlemen it? doesn’t You yesterday. were not born they And *13 used a doctor here that had been in hospital there the month, one in specialty.’’

As appears, objection, the court sustained the but did not ad appears monish counsel. It notwithstanding also that the court objection, proceeded sustained the counsel to comment and added “you gentlemen the additional comment yester were bom day,” objection but defendant made no request further concern ing Also, the matter. there is this further situation. Plaintiff inwas Hospital the Frisco at St. by Louis and was examined and treated Dr. Woolsey. Woolsey The inference is clear that Dr. inwas employ Hospital, of the Frisco in a sense in employ of defend Woolsey’s ant. similar (except deposition The situation here is Dr. file) in Bolt, was on to that Gabelman v. 80 S. W. requested by

171. was if Plaintiff that case asked he had been attorney go physician for the to a certain pur for the pose being injuries. as to the extent examined of his He stated requested by physician. that he had been and had been examined by as a physician was not called witness defendant and this argument subject by was made of comment failure counsel for assigned here, case, error was on an plaintiff. In that excessive ver case, court, ruling point in the dict. The Gabelman said that respondent through an “if Dr. Kuhn had examination of found, injuries respondent’s as serious as that his were not evidence tended reasonably Dr. presumed it can would prove, be Kuhn have persuaded We are not that the been called as witness.”' comment Woolsey Dr. deposition was error. the failure to use the on n stated,

On excessive verdict: As $40,000. the verdict was for injury (May 14, 1930) At-the time of thirty-nine years was “job old. (fireman) He testified that the paid per $180 about month,” perhaps 'but he was receiving, time, at the much less because he was on the regularly. “extraboard” and did not work Defendant's evi year dence showed injury income for the prior to the was given $900. around Plaintiff's condition as him substantially injury as follows: Prior physically strong to his he was and vigorous, weighed 175 to 180 pounds. injury After the he had not been able to (cid:127) any up (January 15, do work trial 1934), the time of the and at weight 141 pounds. time of the trial his was He said that he pain injury; suffered constant in his back from .'the date of only twenty-four; sleep he could about three hours out that he numbing frequently had in his side and that sensation entire'left got stand; generally weak up when he he could not that he was feeling hand grip did not have much the left and no or much strength it, leg: and that the was true his left that his day kidneys condition, frequent occurred were action out night; except have use of that he was not able to bowel action unsteady and unable to strong purgatives; nervous, that he was fence on stepping In á one occasion maintain natural balance. over fence.” “my up I fell backwards into that would not hold me feet way; leg gave says left that he occasions when his He he fell on other by wasps, pain; no that he has stung but felt the left hand was on naturally walk; he was left all the time to used a cane most using right hand for and awkard in it difficult handed and finds was in injury left. Plaintiff he used purposes which before where an Muskogee time, weeks, about two a short hospital at leaving hospital After back. applied to the hotpad electric Hospital in St. Frisco Louis to the Muskogee, was taken receive the continued to weeks where he three in St. (Tulsa) hospital from the home He went hotpad treatment. family living with his the trial the time of At Louis. Arkansas. Paul, in northwest near St. *14 a farm Miers, witnesses, Drs. Edward physicians three Plaintiff used give City. We Kansas Elliott, all of B. Landis "Wallaceand B. Frank physicians testified: these summary what of twenty-four years; that practicing been That he had Dr. Miers: him on occasions had seen 1931, and January, in plaintiff he examined weight; considerable examined, had lost when since; plaintiff, that abnormal; feeble, “marked pulse action normal, heart pressure blood weakness;” trembling con- muscular coordination muscle loss in the fourth lesion “a distinct standing; muscles'when dition sensation over the loss of displacement;” awith vertebra lumbar Romberg urination; definite frequent constipation; side; obstinate left (unable eyes closed); power with stand loss of hand, left unable hand; headaches; inability sleep. (Much to clench left of this, his- tory.) Dr. made Miers the examination from observation and de- by feeling. X-ray as to the vertebra He made termined no and ex- question hypothetical detailing amined none. To an briefly the ac- plaintiff tivities injury, fall, before the incidents of his suffering, asked, etc., fall, Dr. Miers if the in his opinion, “produced the very can, yes.” condition find?”' answered, “It Again, a longer hypothesis and more detailed ques- submitted and the if, asked, opinion, tion in his “reasonably infirmities were attributable to violence?” and was, they that the answer “I think are.” He plaintiff’s injury permanent. also testified that graduated

Dr. Wallace: That college he 1917; from medical in that plaintiff he early part 1931; examined in plaintiff that had lost pounds weight; complained several in of numbness and weakness on pain back; left gait, difficulty side and of in walking unstable bending side; Romberg side that from test was positive; plaintiff that he day examined within a or two of the trial and found condition; improvement. hypothetical the same found no To an question, Dr. Wallace opinion again stated that “it is a matter of knowing condition) (plaintiff’s that it persisted period has for this airy improvement, of time without it would be suppose reasonable to might years better, require condition several become if at all.” practicing years;

Dr. Elliott: That he had been about fifteen 1931; gave February, plaintiff he him examined history examination, his how he On suffered, troubles and told etc. normal; difficulty pressure pulse rapid; Dr. Elliott found blood maintaining difficulty walking; equilibrium; his “he walks .awk- impaired; wardly uncertainty; in left side and with some sensation during may life, possible whole continue it is that “this condition may get Dr. Elliott also examined better, that after a too. time just improvement. the trial and found no prior to question plaintiff’s injuries, person, used in Defendant, on the Louis, Drs. L. depositions St. and the W. Dr. C. E. Virden of Macon, Louis, Fessenden, Springfield, Dr. E. M. Missouri. St. summary. give a We X-ray three in the work of

Dr. That he was associated Virden: 1922; engaged in addition since hospitals, and had been so named X-ray work, had two hospitals he did much other to work exclusively town; his work is confined laboratories down X-rayed 1931;.that X-rayed X-rays; November that he spine heart, spine, lower dorsal skull, lungs, lumbar headache, constipa- backache, plaintiff complained of pelvis; kidneys up a month with his until tion, had “no trouble said he *15 ’’ ago; causing told injury; X-ray about occasion that dis- injury closed no skull fracture and spine pelvis; no to the or that the fourth lumbar displacement vertebra showed no of indication and no abnormalty. graduated

Dr. college Macon: That 1929; he from medical in Hospital Louis; connected with Frisco in St. plain- that he examined May 1930; history tiff at hospital 29, case; that he took of the only plaintiff complained that pain back; of in lower soreness X-rays back; that X-rays were taken and covered that were negative “any injury bone;” plaintiff as to that was treated by applying back; hotpad plaintiff that left hospital electric “markedly improved;” June and had in much less soreness the back. surgeon, 1915'; practicing

Dr. Fessenden: he was a been That since Hospital Springfield; Frisco in that he he was connected with the that July 13, 1930; that him all examined about told legs pain back, acted, etc., complaint how his but made no examined; head; stripped that there about his injury back; “I or external evidence of bruises, were no scars wrong nothing excepting that practically with the back he found complained in his more seemed to be rather deliberate motions I anything of than else in the back at the time examined weakness him;” subjective; no evi- were found symptoms that these objectively general weakness; nothing to determine dence “there is of any any appearance as emaciation particular weakness, such or anything that; man- any great but more his or like weight, loss give you would lead demeanor, impression, ner or that would way he way himself, acted complaints, he handled to these apparently general;” condition muscular nerves; nothing no dis- normal; was found as to the abnormal right extremities found leg; upper in the in the turbance of sensation and re- .right hand, sensation grip “but slight difference gait; be normal;” peculiar seemed to walked with flexes were all legs arms and himself;’'’ measurements “a little bit afraid (but arms had no record sides; atrophy muscles of no on both memory; loss of no evidence of that); paralysis; evidence found no was he seemed to mental condition only thing I noted under “the condition;” “I asked him general very worried about his be much had some angles apparently right leg, flex the foot at tremor of difficulty a marked bringing up there was the foot only objective evi- effort. That was when he made this foot term it you might wouldn’t any what or weakness) dence of —I stated slight Dr. Fessenden motion there.” paralysis, loss of “Q. To what do nothing wrong plaintiff. with physically he found you his com- complaints, attribute, present if can attribute, examina- the time of the My conclusion at plaints at that time? A. *16 839 having just tion, date, and seen him the once until to was that his symptoms complained whole upon would have to be based a func- thing; is, I by tional that that apparently organically mean there Q. nothing wrong. that, Do mean it was mental? A. might way. gets You state it that A mental such as a man state into following a symptoms severe accident, and that are more these mental they any organic any organic than are due to disease or lesion.” On cross-examination said that home was on the side ‘‘ a Paul; of hill or St. mountain and about two from once miles back; in a while” he walked to St. Paul and that the hillside is not it;” steep that “a horse make that sometimes he can’t made this walk a plain- “once week.” is a about three miles from Combs town says tiff’s Combs, say home and he he has does walked to but not how often. is plaintiff malingering,

It not claimed that is disclaimer respect is (based made. is However, it on the evidence stated Elliott) disclosing counsel, persons symptoms Dr. brief of (1) of nervous are into Those where disorder divided three classes: objective resulting injury physical there nervous is evidence of disorder; (2) objective, evidence of those where there is no ocular injury person per- where is physical aside manifestations from fectly (3) malingering. condition; And honest as to the nervous assignment suggested it in the class. The is is second always is where there merit to on excessive is troublesome verdict definitely be, been, devised assignment. rule has or can No depend facts. guide. assignments .upon particular All such must always satisfactory. Evidence of Comparison with cases is not other 73 335 S. W. Ry. Co., F. injuries in St. Colwell v. Louis-S. kidney here, except the bowel as to was similar to that not Colwell shown shown in case injuries were trouble, thirty years injured old party was In that case the here. case Verdict earning per month. injury $200 of his time $13,000 required remittitur The a $33,000. trial court was for leaving court, by this directed $8000 remittitur further —, Co., Mo. Grain v. Uhlmann $12,000. amount at In Cole final subject concurrently herewith (2d) 311, 100 W. down S. handed extensively We here. more than is considered verdict excessive subject. reasoning this further reference to that case

make number attention to here call our counsel for both sides Able We think necessary these cases. to review it We do deem cases. by $25,000. is excessive present cause verdict filing file opinion, days from the will, If within ten affirmed, $15,000 will be judgment for $25,000, here remittitur It remanded. judgment the cause otherwise the will be reversed and Ferguson CC., Hyde, so ordered. concur. C., adopted PER Brad-let, foregoing opinion CURIAM: The All judges opinion as the concur. of the court. Harry (2d) 535. S. W. Maddox, Appellant. State v. *17 Two, 17, 1936.

Division November A. Lamhin James and Louis J. Basse for appellant.