*1 Wаye: objection ground exceptions We renew our on the “Mr. remark, of the Court is for that and ask that rebuke not sufficient discharged. jury discharge jury, The Court don’t think refuses “The Court: sufficiently prejudicial. remark was ruling excepted “And defendant then Court exceptions.” saved his degree declaring
A trial court is clothed with some discretion improper arguments are mistrial for of counsel. this case we opinion justified in of the the trial court would not have been declar- ing given A a mistrial. strained construction must be the statement guilt something prosecutor opinion of the that his on based expression followed a outside of evidence. The resume the tes- timony an adduced the State. The trial court made it clear that prosecutor improper. based the evidence was opinion refusing discharge ruling, jury, mistrial The declare a and to entirely proper. assignments of error in Other the motion for new trial were by appellant. We have examined them and find them to briefed proper An without merit. examination the record fails to disclose any error. Cooley judgment is, therefore, of the trial court affirmed.
Fitzsimmons, CC., concur. foregoing adopt-
PER opinion CIJRIAM: The isC., by Westhues, opinion judges cоurt. All ed as the concur. Estate of James Administratrix Hiatt,
Juanita Wabash Hiatt (2d) 627. S. W. Railway Company, Appellant. Two, February 23, Division
89&
Homer Hall and <& appellant. Woodward Evans for
897- *3 Asohemeyer <&Waechter and Frank P. Fagleion, Henwood for re- spondent. , , ,¡ ; l *4 brought by
COOLEY, James Hiatt C. Suit to recover personal injuries in the employ while of sustained defendant unloading steel Charles, Missouri, St. car on February 23, rails from a near judgment for $12,500, verdict and obtained Hiatt which judg- appealed. Later Hiatt died and the defendant ment cause was re- Hiatt, name of Juanita in administratrix of here the vived his estate. plaintiff. Hiatt refer-to James We'shall alleged upon provisions violаtion of the is suit founded The of the relating to the use of Safety Appliance Federal Act air brakes. a operating consisting Plaintiff was a member of crew a train of en- gine, being six cars. his tender and The work done at the time of dropping along consisted of rails railroad steel defendant’s by follow-up track which were to be track crew installed said a replace lighter rails the then in use. The track which the upon being operating train and which was rebuilt was defendant’s track, commerce, disputed main used in line interstate and engaged at of plaintiff the time the аccident and defendant were commerce. interstate morning, The train in had left St. Louis that run west- plaintiff ward to St. where boarded it about Charles and thence west miles, track, place four all over defendant’s main line to the where unloading Counting engine the was to done. and tender as a car designated ears, the train consisted seven the witnesses the beginning following order, 1, at the end of the train: No. the west tender; “green” caboose; engine 3, and car No. No. loaded with steel; “regular” rails, flat ear with steel which we shall No. loaded car; 5,No. call “loader” cаr on was the derrick or the steel rails; 6,No. car tie plates, hoist unload the and No. used to being angle The rails and other one of bars. materials were dis- A along unloaded, track. rail would tributed the would the train length, thirty-nine feet, stop rail then westward one and unload move rail, projected the on the another so on.' Some of rails steel car and west end of the loader car. Plaintiff was on the west over on to the being car, his work to turn the ball loader rails with the end tongs of the hoist or unloader could be up the rail so swing lift and the rail from lower it fastened it to the car and over ground. standing block He bent over one foot on a to the forming hoisting machinery of the part the foundation or beam engaged car, turning rail, floor when and the other on unusually jarring ear jerking foot to hard and caused his an injured caught and to be and between the block slip from the block jerking prove Plaintiff’s evidence fended rail. consequent injury jarring proximately of the car his eighty-five per failure to have at least cent of the due to defendant’s equipped air brakes so connected cars the movements of the cars controlled could be engineer. machinery operated by unloading engine. air from the equipment. engine brake all had air The air line
The cars and counting engine car, of the loader and tender as one four west *5 could be operated by so that théir brakes car, the en- was connected at the line was disconnected east end of the air the steel gineer. But pass air to the brakes no could loader car (No. 4), so that car leading unloading ap- hose of it. An air to the east ears or the two with car was connected the air line at the loader paratus on the through east car, end the steel which supplied air apparatus, breaking thus the air connection with the three east cars.'. appears It. there was another on which hose the loader car could have been connected with the air line on car the steel so as to have connect- ed' the air line on the three east cars with on the other four but Appellant was'not plaintiff’s used. thus states the substance evi- point: dence equipped cars hose, by “The with an air line and means of loader, brought power
which the air could into the be brakes on the it, ear and the two cars east of referred to as cars and 7. That injury. hose line was not in use at the time of the There an air- whieli used, line hose on the hoist car could have been which would ’’ up have hooked the steel car and hoist car if it had been used. engine It will seen that be whether the and tender be counted fifty per cent, as a ear or not at least but less than eighty-five per. cent, of functioning the cars the train had air brakes. Defendant standing evidence, upon offered no its plaintiff’s demurrer to evi- dence. Other facts will be stated in points connection with the to- they pertain. Appellant I. operation contends that the train plain- which caused . tiff’s not a train meaning movement within the and that the statute does not applicable The Federal statute apply. statutes are Sections and 9 of U. S. A. Title T C. Section. provides any that it shall be engaged unlawful common carrier by any interstate commerce railroad to “run (inter- train in such state) . . traffic that has not a sufficient number of cars equipped power engineer it so with or train brakes that the on the drawing locomotive such train can control spеed requir- its without ing to use the common hand brake for that brakemen purpose.” 9 reads: Section with) “Whenever, provided in chapter, any as train operated
power such) or train brakes not less than 50 per centum of the cars in of) operated train shall have their brakes used and engineer drawing train; power-braked such all the.locomotive cars in such' shall, together which are train associated 50 per said centum with into, operated; and, have their brakes so used and .fully carry more objects chapter, effect the of said the Interstate Commerce Com.- may, time, from time to mission after hearing, full increase thé.’ any percentage minimum of cars in required operated power or train brakes which must have their brakes used and aforesaid; comply any failure to require,-) such of the said Interstate Commerce ment. Commission subject) shall any penalty requirement as failure comply to the like with- of this.) section.” being
The upon action bottomed the Federal statute the con- given the statute Federal governs. struction courts only)’ *6 found have that we attention or Federal decisions called to our move- train not а was movement which it was held the which are cases contemplation of statute within the ment breaking switching movement, such involved was a the movement might assembling yards similar movements trains in or up or Thus, switching movements. be denominated properly it had before Co., 237 U. S. the court Erie Railroad States v. switch trains between involving of transfer the movement a case switch tracks many apart miles where there were yards two or three assembled. It up and others many trains were broken and where was done and this yard to another necessary to transfer cars one twenty- trains, usually composed of about transfer called trains by engines spe- and crews having and cars, no caboose five train yards a .transfer engaged in that service. Between cially freight not for but used as main tracks over tracks moved as a unit moving was sub- the transfer train trains. While so passenger for busy regular in the sector confronted trains ject the hazards that holding subject In it to the air through it moved. which the court said: provisions brake with run- provision deals perceived that the air-brake “It will be using hauling or requirements relate to
ning train, while the other As the con- and in a car. a train is the unit the other а car. one engine and an sense intended consists of shows, train text together or coupled for a run assembled and cars have been proceeding made and is along up When a train is thus trip the road. provision. of the air-brake operation it is journey on its within yards in railroad with the various movements is otherwise But outgoing trains and coupled and into assembled whereby cars are broken incoming completed have their runs are whereby trains which switching operations, mere train movements but up. These are U. 1. c. provision.” within the air-brake 407.] and so are [237 which the trans desсribing conditions and hazards under After l. 408: further, 237 U. S. c. the court said operated, fer train ‘‘ using trains the same that, in common with other plain Thus it which -made exposed to hazards it essential tracks, mainline readily checking quickly and or con- at hand for appliances original prescribed act these trolling their movements. engineer air brakes controlled consist of should appliances requirement Act of 1903 declared that this locomotive, and the to all trains.’ We therefore apply conclude ‘be held should ’ ’ transfer trains. these that it embraced hold Q. Chicago, & B. Railroаd U. S. In United States held that a similar reasons transfer between court for both yards apart, miles of which were switching about two used breaking incoming assembling outgoing trains, receiving up necessary cars, between which it was within to transfer said, act. The l. court U. S. c. 412: (transfer) only exposed "And not were these trains to the hazards (of statute) provision which that was intended to avoid or *7 engineers minimize, readily quickly their were but unless able control their movements to cheek or were a serious to menace safety equally designed which the of other trains statute was to the protect.” (D. C.), v. Tеxas & O. Railroad 13
In United States N. Co. Fed. (2d) by appellant, the movement under 429, cited review was con mainly as a for on a track used feeder industries but partly ducted It purposes. main line was held it was not within safety for the holding statute but that was because the appliance movement under essentially was deemed to be and in the circumstances effect a switch ing operation.. Ry. United States v. Northern Pacific In U. S.
transfer,
moving
yards
as a unit between
was
train
held to be within
though,
a main line.
operating
said,
on
The court
the act
U.
l. c. 254:
nothing in the act which limits
application
.is
the
"Bút'there
(air
provision)
question
brake
provision
operations
here
the
on
requirement that train brakes
coupled
tracks.
.The
shall be
main line
engine
.
applicable
control is in terms
.
.
under
so as to be
‘
(cid:127)
any
engaged
.
.
on
railroad
all
.
used
trains
interstate com-
’
n .
cited
trains,
. The cases
show that
transfer
merce.
like
meaning
involved, are ‘trains’ within the
here
of the act. A
those
cars attached is without
moving
provision
the
locomotive
of the
train;
operation
&
as
only
is- not
where the
that of
act
when
assembling
classifying
yards
cars within
switching,
railroad
for
’ ’
making up trains.
-purpose
thе
effect, Ill. Central Railroad
v.
to like
Co.
See, also,
United States
(2d) 747;
Bridge
Louisville & Jeffersonville
(C. C. A.),
Fed.
Co. v.
foregoing
In
In our here in was a train the movement requirement as purview ment within the of the statute the to applies. air brakes authority stat express by
II. conferred the Pursuant to the ute, supra, Commission, by 9, order Section the Interstate Commerce any 1910, 6, percentage of cars dated June increased the minimum required power eighty-five .per to to with brakes be to failure meet the upon cent. Plaintiff’s case rests defendant’s ordered, his evidence shows requirement minimum thus as inсreased fifty properly equipped and per cent the cars were' that at least of by commission’s originally required statute. The as the connected 6, did’plain nor introduced evidence order of June showing promulgation. Respondent insists tiff introduce evidence its of.it; judicial appellant contra. We will take notice that courts .the agree respondent’s contention. The order of commission with statutory it authority provided is pursuant express to was made requirement comply any such “failure to in the statute subject Commission to the Commerce shall of the sаid Interstate penalty like as this sec any requirement failure of comply tion.” The order force commission when made thus had of 486, 488, law. (D. C.), In Cassarello v. United States Fed. court, discussing regulations by of certain made the Director Insurance, regu Bureau War “Furthermore, Risk rules and said: prescribed lations by department government pursuance a statutory authority, óf a law,” citing Fed several have the force of Grimaud, eral 220 U. S. cases. To v. same effect see United States 506; Colyer Skeffington (D. C.), v. 265 Fed. 211, 221, States, Caha 152 U. is said: regulations by “The prescribed Department rules and the Interior respеct formally of- contests before the Land Office were
fered in evidence, fatal, and and it is is claimed that omission that a verdict But should have for the defendant. been instructed opinion we are of necessity for a formal introduc- no regulations. They tion in matters evidence of such are rules judicial Questions of which courts of the notice. United States take of a frequently may kindred presented, have and it nature wherever, general cases, laid by rule, down dedueible from the language express any Congress, is power act of entrusted principal government to either of the departments prescribe regulations rules and in which the transaction business right public interested, they respect and in which have controlled, participate, and rules are to be regulations prescribed pursuance authority a mass become of such body judicial of that no- public take records of which the courts tice.” Court, Supreme The Vermont in Goulette’s Admr. v. Grand Trunk
Ry. 93 Vt. judicial held court would take notice of regulations promulgated the Interstate Commerce Commission *9 fixing equipping standards for safety appliances cars with pursuant authority by tо Safety Act, conferred Appliance citing v. Caha States, supra. court, One, Huckleberry So our in own Division v. Mo. Pac. Ry. Co., 1024, (2d) 324 Mo. 26 980, 986, W. said: “Judicial (of regulations” notice is taken of such orders and the Interstate pursuant authority), Commerce Commission citing made statutory to ease, the Caha case and other Federal decisions and the Goulette supra. argues Appellant Huckleberry that said statement in the purely ease persuaded, any obiter. We are not so but event we correctly rulings think it applies the Federal this point and we governed dealing are with a сase the Federal and de- statutes Exploration Gray Eagle cisions. also Cosmos Co., See Co. 190 Oil 309, holding judicial U. S. will notice taken of rules be regulations Department pursuant statutory of the Land made au- thority regarding exchange public sale or of land.
905 ' Co., Railroad B. O. among others, Robinson v. & cites, Appellant making the Federal statute 506. that the U. S. That ease holds re evidence of the reports “competent published of the commission contained ports and of the Commission therein decisions thereof,” any makes such proof without further or authentication proof’.of without other reports and decisions admissible in evidence they judicially genuineness require noticed their but does not they offering in evidence as would litigants “or from them relieve upon.” The any competent relied other intended to be evidence considering made court an of the commission was not there order authority which, the- terms pursuant express of the statute law, statute, in effect of of when so made has the force —becomes part Robinson thereof. The Caha case is not mentioned ruling evidently with case and in conflict not deemed ju of approval point made. Thе Caha case on the has cited subsequent to the Robin dicial notice in of the same court decisions 11, 18; v. United Zerbst, son case. Givens v. 255 U. S. Thornton [See States, 271 U. S. 420.] quotes Law of on the Appellant Commentaries Jones* (2 Ed.), section 388: Evidence paternalistic years great trend “With increase recent government, however, quasi-judicial or of quasi-administrative numerous tribunals of being, the decisions purpose have come into regulations which, together for their rules and laid down regulation regulation of matters within the own internal and the judicial uniformly peculiar scope aсcorded powers, of their are not recognition. regulations 'de administrative1 Where the rules and partments or 'tribunals like nature are vromud- and commissions of effect, said, authority, may gated express statutory under notice; require jurisdiction part as the law the become ground such; likewise, on the notice has sometimes been accorded reports ‘by authority published no rule of law.’ But certain yet Notice governing all such cases.- can be to be established as said depart rules, regulations of various has been taken of and decisions acts; government, аs to certain federal but refused ments of the Commission, it while, Interstate Commerce seems as decisions rulings body reports rule that and rate to be an'established (Italics ours.) not noticed.” are stated, case, is of this applied to the facts We think the rule against appellant. rather than for Ry. Co., App. Appellant Mo. Pac. Mo. also cites Banaka v. discussion, follows, Robin without S. W. That case cites and case. supra, B. & O. without mention- of Caha
son v. Railroad *10 by analysis lengthen facts of the opinion shall not this of the' We correctly holding applies the Banaka of whether it case or discussion Banаka case runs in ease. If and in so .far as the the Robinson 906
counter to the rule announced in
it.
disapprove
the Caha
we
case
Neither
space
analyze
shall we take
City
to
St. Louis
or discuss
v. Kruempeler, 235
446,
by appellant.
Mo.
139 S. W.
cited
We
distinguishable
think it
from thé instant case.
In Moss v. Wells
(Mo.),
cited,
S. W.
also
judges
two of the
of Division
four
only
One
concurred
the result
so it
appear
does not
that there
question
judicial
decision on the
notice there involved. We think
action,
upon alleged
Safety
Ap-
based
violation of the
pliance Act and an order of the Interstаte Commerce Commission
authority
pursuant
express
act,
made
to
the court should take
judicial notice of such order and that the
trial
did not
learned
court
doing.
err in so
III. Appellant
complains that Instruction
on the measure
of damages does
the'recovery
earnings
not limit
for loss of
“either
to
alleged
the
petition
amount
in the
or
the amount shown
evidence,” and
any amount for
gave
jury
roving
therefore
commission to allow
Appellant
such loss.
cites no authorities on this
point.
petition alleges
that at
plaintiff
the time of his
earning
per month,
$100
good
“with
prospects of advancement.”
Plaintiff’s
earning
evidence was that he was
$100
somewhat less than
per month.
Said Instruction
recovery
limits the
past
for loss of
earnings
jury
and future
might
such amount as the
find “from
reasonably
the evidence” would
loss,
any.
compensate him for such
if
Defendant
facts,
asked no
subject.
instruction on that
On similar
plaintiff’s
where the
evidence tended
show'
earnings
loss of
less
than the
petition,
amount claimed in the
plaintiff’s
failure
specifically
instruction
recovery
to limit the
earnings
for loss of
petition
amount named in the
was held not to be reversible error
Laycock
Rys.
banc).
(en
Mo.
IY. Fowler, hoist, Plaintiff’s witness who had operated the permitted, objection over defendant’s that he was not shown to qualified, testify question, that a train if such as that throughout equipped brakes, brought slow, easy with air can be to a stop if equipped stops jerks. but not so with hard Fowler testified job” had he worked “on this and had observed trains “work ing with and without air” for three weeks before accident previously doing had worked on trains class of work same “where “Q. have had air.” period Over what long of time or how you watching had on, that sort of situation? Well, A. off and years.” for four The witness was not asked further as to extent experience during four-year his period. and observation *11 years experience Martin, twenty-two had witness, who had Another and performance superintendent of locomotive fireman, assistant whose freight and passenger, work trains engineer, operated and had in answer effect disputed, testified to the same qualification was con- and air questions upon size, equipment based hyрothetical question. train in nections of the testimony properly admitted. think Fowler’s was
We are inclined to and operated upon trains had worked had not himself he While he had observed with and without air and about them when Steel Wolff v. Scullin operation over a considerable time. their [See Co., 234 Mo. 571; Ry. (Mo. 217 W. Ellis v. Met. St. App.), Co. S. case, Moreover, of this 684, 138 W. in the circumstances 23.] testimony having and Fowler’s on defendant offered no evidence by Martin’s being merely proof of the facts shown point cumulative discredited, think the admission testimony, which was not we erroneous, prej- if been testimony, even could not have Fowler’s justify would not reversal. udicial to defendant and therefore [Drake (2d) 75, 81, 63 S. W. and v. K. Pub. Serv. Mo. C. (Mo. Trembley App.), 243 Fidelity Casualty Co. cited; & cases S. W. 201.]
Y. Finally, urged it is that the verdict is excessive. Plain tiff’s evidence tended to show that at the time of his was he twenty-two years about physically old and sound. His foot and injured seriously though ankle were except no bones broken were particle ligament that a small of bone to which a was attached torn off. injury, About three months after his Dt. Jenkins when began treating him, swollen, “his foot was and seem red somewhat ingly very ankle, tender over his part leg and the lower of his stiff.” He could walk limp without a decided and there considerable joint. placed inflammation about the ankle His foot was then in a kept plaster cast and so for two and a half months. Dr. Jenkins began nearly year. a of treatments which he course continued for a year injury plaintiff after his For about a used crutches and at the twenty-one trial, injury, and a half months after his time of the he continually cane. He testified that his foot had had to use a and ankle foot; try “if pain attempted him if he to use the I walk caused it, time, it me all and step up. оn hurts swells or way up my leg hip.” all the into and At the time of the trial It runs improvement in the condition of the foot and ankle there had motion, flattening a considerable loss of remained but there foot, had arch of the the bones of the foot become “more or is, be,” smaller atrophied, little than should due less —that inability use the foot. Dr. Jenkins estimated that joint. limitation X- thirty forty per cent of motion of the ankle or arthritis, ray thickening rough- “some also some pictures showed foot, piece with a ening small small pulled bones bone great top bones, small and a of one of these deal loose from is, thinned the bones are out.” atrophy of bones. That deformity joint. Pernoud, ankle Dr. pictures also showed some plaintiff just trial, before the who examined testified the whole size leg atrophied; “that it is smaller in foot wasted *12 is leg;” up and motion of the than the other that “the down foot cent, fairly good; say per I is limited but would it the lateral entirely gone.” of the foot are The movements evidence tends existing prove the conditions at of the trial were time permanent plaintiff pain using would his were such as cause doing labor; handicap him foot аnd would manual that he would previously future be able do the kind of work he had eight hours; periods present his done “over and under condition work at he wouldn’t able do that all.” plaintiff injury earning of his day, -At the time per $3.20 per year $1000 if approximately except Sundays. he worked regularly earnings up At that rate he had lost in time of trial between $1800 and expense $1700 $214 had incurred for treatments since, injured his foot. He had not been able manual to do labor his injury appear does not qualified money he was to earn otherwise. Chicago
In
v.
Johnson
& Eastern
Ry. Co,,
Ill.
64 S.
22,Mo.
(2d) 674,
pointed
we
W.
out
“while
can be
no
stand
fixed
damages resulting
ard for the measurement of
personal
injuries,
ordinarily
judgment
this court has not
allowed a
to stand
more
$10,000
leg
knee,
than
for the loss of a
below the
unless there were
injuries
aggravating
other
or
tending
conditions
to increase the dam
’’
ordinarily
ages
injury.
incident to such
plaintiff’s
In
case
seriously injured
ankle
foot were
and permanently impaired,
causing
impairment
permanent
earning
of his
capacity,
injury,
indicated,
pain.
the evidence
continue
him
would
to cause
But,
Spencer
similar
said of
somewhat
Co.,
C.
Quincy,
v.
O. & K.
353, 357,
Mo.
leg
Railroad
S. W.
“a
awith
impaired
leg
weak or
ankle is
than
all”
better
no
at
view our
holdings
$10,000
former
on this
we think
is the maximum
can
recovery
permitted
the instant
case.
Johnson v.
[See
Ry.
supra,
cited; Spencer
Co., supra;
and cases
Railroad
Connecting Ry. Co.,
Jordan v. East St. L.
308 Mo.
as the court.