*1 793 with compliance in substantial indictment or information that an v. 547; State D. S. McPherson, 30 v. was sufficient. statute [State too, accord, inbe would 50 N. W. "We 564, S. D. 210 Lynch, 988.] in an holding sufficient Oklahoma Supreme of with the Court un declaring it statute compliance with a formation substantial directly borrow' of a bank managing officer any active lawful connected, and he is which indirectly bank with money Cr. State, Okla. 35 felony. denouncing a violation as v. [Witte excep disjunctives or contain not But statutes do those 204.] we stated reasons For the loan limits. tions, or variable of scales prop information quash the opinion motion to are of erly sustained. information, quash up Defendant, motion to set his
IV. grounds the sections the statutes under- therefor of as further specified provisions drawn violate certain which information was of of of Missouri and also the Constitution the State States. These con-
Constitution the United questions will as a de- stitutional not be considered termination them pro- these disposition not essential to a ceedings by writ of error.
V. For Paragraph judgment III, reasons stated Cooley Westimes, circuit court is CC., affirmed. concur. '
PER foregoing opinion by Fitzsimmons, CURIAM:—The C., is adopted opinion judges of the court. All of the concur. Clay County R. Mahaney, Appellant, v.
Nell City, Kansas & St. Company Joseph (2d) . 46 S. W. Auto Transit 817. Two, February 17, Division 1932. *3 <&Madden Madden, Freeman Jones and Ta.ylor, J. V.
James appellant. *4 & respondent.
Karris Koontz for WESTHUES, Missouri, Plaintiff, Clay County, a resident of C.— defendant, carrier, damages sued a common to in sum recover thirty injuries dollars, alleged personal thousand for have been fall, attempting as of a sustained the result while from descend jury defendant’s bus. On a trial the returned a verdict for defend- ant. Plaintiff, being trial, unsuccessful motion for a her new duly perfected appeal an to this court. against negligence charged plaintiff’s
The acts of defendant petition substantially Plaintiff, passenger, are as follows: a was permitted, compartment driver enter small part distance, ground the rear bus. from the to the floor compartment, alleged been about three and one-half petition charges equipped feet. compartment was not descending entering with passengers handholds to aid or from only bus; provided step that a small means of assistance passengers entering compartment; leaving directly bumper materially an which with below iron interferred prevented leaving compartment firm persons getting step; was bent downward it foothold so *5 sloped slippery; and smooth and toward the outside was that permitted step required Was to from the bus without and assistance being fell, causing firm get slipped and to foothold and her unable a petition. injury complained injury, principle as set out in the a petition of in the suffered plaintiff’s testimony and in that she sprain severe joint. of the sacroiliac denial, of plea a a-general and
Defendant’s answer of consisted alleged to contributory negligence setting acts, specific forth four if injury, 'by her plaintiff, been which contributed to committed any she received. finding plain- evidence, part that plaintiff, supports on the a of bus,
tiff be- 25, 1925, Liberty, Missouri, on entered a December at Glenaire, Mis- longing defendant, passenger to as for a destined passengers, souri. had been part bus, provided The main of the for the bus di- prior filled to driver of the time arrived. The compart- a small rected the and a number of others to enter carrying of part ordinarily ment in rear of for the the the bus used baggage. equipped and was used It was also with four five seats by passengers, especially part of bus was filled. when the main the stopped When the bus it the driver arrived at Glenaire Was purpose discharging taking passengers. Four of the the of and riding, passengers compartment, in the small was where by one point. opened leave bus at The door was decided to prior plain- passengers. Two from bus to ladies descended tiff, place using step they.jumped floor to the but ground. attempted step Plaintiff and while in the act of use getting injured. the bus Plaintiff and a off fell and was number partially step witnesses testified that the Was at least hidden step bumper. rear Other witnesses that the was bent down- testified sloped ward so that it to the outside. Plaintiff testified that she slipped, causing her fall. stepped on her foot Defendant testimony tending prove type that offered of bus in use on this extending trip bumper part step; across did not have a one, good was a condition the bus no defect new step. existed in the motion for a new trial and in her complains
Plaintiff her brief unduly court limited the that the trial cross-examination of defend- witnesses, improperly also that the. trial court ant’s commented plaintiff's prejudice. on the evidence to The first oc- this, requires consideration, currence of our is when witness, Wilford, being defendant's cross-examined by plaintiff’s counsel. Plaintiff’s witnesses had testified that bumper bus' in had attached to it a that extended at least way leading half compartment. across to the rear Defend- witness, Miche, bus, ant’s the driver of the had also testified that the bumper partially step. extended across the Wilford Was the first testify type witness to of bus driven Miche on day bumper step. across the did not have extended Wilford was not testimony, type His accident. as to the witness
799 fact the evidence disclosed the number of the bus on the based day by of the accident. Plaintiff’s counsel then Miche the used attempted fact that the defendant com- to elicit Wilford the bumper extended, plain- of on which the pany type did have a bus following point At this the tiff’s witnesses and Miche had described. occurred:
“Q. pipe— form a bumper itself, pipe w'as the of Well, the Yes, sir. round? A.
“Q. step particular type far over this That was how above the step a car where it comes clear across? A. Just little above the just step step. inch—the flat side of it a little above the The about an up opening (indicating). here sets here and the door talking about car? “The Court: You are not this thing this clear type Madden: of car where comes “Mr. across.
“The car in this accident. Court: You are bound ‘‘ ruling duly time ex- To of the 'court the at the which cepted excepts^ still We not bound this. is by? Madden: Bound are This
“Mr. hap- diagram type of car where this accident and shows that that pened; bumper ran clear across. say
“The Court: You are mistaken. Some witnesses it went ivay say way, it went whole but the part and some confusing. Objection type simply is other of cars sus- about the ruling except- at time To which of the court the tained. excepts. still ed and object court, if Your Madden: We to the remarks of the
“Mr. please— Honor (interrupting) asking : You are this witness what
“The Court improper. ruling types (they) of had. That is To which other cars excepted excepts. time and still of the court the at the know car it type Madden: This witness don’t what “Mr. this anything don’t know' about happened on. He accident. ‘20’ asking him to state about number cars. You are
“The Court: anything you, I didn’t know understand “Mr. Madden: As No, A. this accident? about sir.
“Q. anything type of cars it occurred on? Didn’t know about the type nothing.” anything of car or No, sir; I know about the A. don’t Miche, driver of the testified bus (Y) number 22. Miche also testified as type pony 20 bus coach follows: ‘ ‘ people step Q. way when down out this com- And that is the way stepping step, of their down bumper partment, Well', right in the possibly it is middle the door. isn’t it? A. thing swing out “Q. stepping is to the door Now, off, first bumper, passenger steps down and he has to over and the Yes, sir.” below'? A. they, get their foot on don’t attempted plaintiff’s cross-examination, as to be made It be that defend permitted. been will noted counsel, should have *7 evidently objection cross- no deemed the counsel made ant’s by positive evidence, was and direct proper. There examination Miche, defendant, a witness for that plaintiff’s witnesses, and her passenger, was a at the time she received on which bumper which alleged type of bus has extended injuries, was the across,the compartment. might Wilford have rear been step of the that, type question of bus in honestly he testified mistaken when bumper as other witnesses testified. His equipped with a was not testimony of other testimony in direct conflict with the witnesses. was permitted by been cross- Therefore, plaintiff’s counsel should have show, company type that the defendant had bus examination present time is at the described the witnesses such as injuries. type use, in her What bus was alleged to have received accident, jury for the was a to decide. of the at the time might jury also lead court to believe The comment testimony of witness Wilford. Since plaintiff was bound that counsel, represented wholly able it was unneces was defendant objections, interpose and the comment on the court to sary for the always A in court should the trial of improper. cases evidence was Quincy impartial attitude. v. O. & K. C. an maintain [Landers 801; Vaughn 134 545, App. May, W. 1. c. Mo. Co., 114 S. v. Railroad Co., 156; v. 50 S. 921, Schmidt St. Louis Railroad W. (2d) 9 S. W. right Cyc. (4).] 1320 As to the 38 to cross-examine 269; 149 Mo. Co., Transit S. W. 1. c. 898. Gurley St. Louis v. see assigns error the action of the trial court ex also Plaintiff Ayres prior of Dr. as to inconsistent statements cluding the evidence Skinner sharp Drs. and Kuhn. There was a witnesses defendant’s conflict in the as to whether had Sll;ffered injury joint. an to her sacroiliac Dr. Skin X-ray had testified on direct examination that the ner to, picture injury. Ayres, plaintiff’s referred disclosed no such Dr. physician, injury. had did such an testified suffer being While was Dr. Skinner cross-examined he was asked: “Q. separation? picture In this I case does the reveal A. don’t it think does.
“Q. you Ayres Did talk Dr. Well, one time? A. about this at it, I have no he me I I Dr. recollection of tells did and believe but Ayres.
“Q. you you Would him if him believe he stated told joints were off separate? A. I would want to hear whether we
8ÓÍ ease report says this discussing my case, same because been had examination; but writing, at the time made down ” . . question. unfair . be a rather would Ayres. you, Did Dr. your with “Q. see about interview Well, let’s discussing this telephone, you Ayres not, Dr. over or did tell Well, I I A. don’t think joint off? was case, that the sacroiliac my examination I say that, because don’t care would believe— Ayres said that out, but if Dr. report my made was made mistaken say probably I it I that, if was, I it but did I said said I of this think mistake about what ease, is no because there in the ease; ’’ Ayres. Dr. I but believe rebuttal, by plaintiff, and Ayres a witness was called as Dr. following occurred: the' ‘‘ conversation, regard Q. say to in that Did Dr. Skinner revealed Mahaney case, found that the examination that he joint that effect? separated, or words to was off or sacroiliac reasons as stated object to for the same “Mr. Caldwell: We objection. in the last *8 impeach to the attempting are Sustained. You “The Court:
testimony witness? time ruling court at the which action and the “To excepts. excepted still and Certainly I am. “Mr. Madden: was, he Skinner remembered “The Dr. Court: Objection think made it. and that he didn’t he
no such statement sustained. ruling of court at the time which action the the
“To and duly excepted excepts, still and except. To “Mr. Madden: which we
“Q. Doctor, you talking Dr. other were to Skinner about him in when talked to that conversation? case object as and not the “Mr. Caldwell: We to that immaterial pur- proper proper impeachment, if offered for that rebuttal and not pose. Objection sustained.
“The Court: ruling “To at that which action and of the court duly excepted excepts. time and still prove I except. To which we offer Madden: “Mr. by the offer to show witness that
witness that this conversation —I witness, Dr. at Ayres, talking to Skinner time of Dr. Mahaney talking case and the examination and that he was about the I doctor that Dr. Skinner stated no other case. offer to show the Mahaney it an of Miss revealed that him that from examination joint joint was off. was off-—sacroiliac is objected to for the reason it not Now, “Mr. Caldwell.- immaterial, Dr. Skin- impeachment, proper and proper not rebuttal having having ner stated that he didn’t remember such a conversa- Ayres tion with and, conversation, if he he was Dr. did have such a about, picture inquiring mistaken about the case—about the he was therefore, impeachment Ayres— it is not if and, an matter Dr. (interrupting) question : It is not a here whether “The Court joint question is, here, the sacroiliac Dr. was affected. The whether upon stand; question. Skinner told a falsehood is the It question may is not a Dr. whether been mistaken Skinner have question. question his recollection. That is not the is whether upon stand; purpose, he told a falsehood if it is offered for that competent purpose question it is for that and no other. The asked Dr. Skinner whether he made the question statement. As the was asked whether Ayres or not Dr. him came to see and see the plates and asked the of Dr. Skinner and Dr. Skinner said he except didn’t talk to him telephone over the at that time and that he could not have told him that joint the sacroiliac was out of place, injured abnormal or distended or plates, shown court proper impeachment holds that foundation for was not laid and the so court rules. ruling
“To which duly the court the at the time ex- cepted still excepts.”
It will be noted that Dr. Skinner was if asked he stated Dr. Ayres, Mahaney over telephone, discussing case, D¡r. joint separated. sacroiliac was off This, indirectly Skinner by saying denied had he no recollection of conversation, such a and he also if insinuated that may he made this statement he discussing been case, Ayres some other but if Dr. stated that Skinner, statement, he, made such a he Ayres. would believe Dr. Under these circumstances, plaintiff permitted should have been introduce the evidence Ayres offered of Dr. to the effect that Dr. Skinner did make such a statement with Mahaney reference to the *9 case. judge The trial stated, w'as in error when question he “The is, whether Dr. Skinner upon told falsehood the stand.” The law recognizes frailty memory the of the human in may that a witness honestly be mistaken may about a matter or not having remember made certain statements testimony. inconsistent with his When this presents condition itself in trial the of a opposing ease party the right has the to tending offer prove to that the witness ¡did contradictory make such statements. applicable rule is well stated in Jones On Evidence, Cases, (3 Ed.) Civil page 1337, sec. 849, supported by and is numerous authorities there cited. See also Cyc. (c) 40 2737 and cases there cited.
Appellant contends that certain given instructions court, the on behalf of defendant, the are erroneous. Given in
structions numbered four and ten read as follows: charge .jury plaintiff “4. not The court instructs the that does ground step question excessively high or the in was from the excessively in determin- far from floor of the and therefore the disregard your you will all ing verdict in who shall have this case step and floor of bus to the evidence as to the distance from the the pavement. step the distance from to the the jury that, regardless of all other
“10. the The court instructs injury was case, you plaintiff’s in if find that considerations the firmly upon negligence failing put her own in to her foot caused you find, stepping therefrom, if so or step as she was the of the bus failing in to and consider the distance from the floor observe thereby causing step pavement, step to and from the to the bus find, attempting in equilibrium fall, you if or lose her and so her to manner, you find, get if so out of the bus in a hurried directly acts, find, contributed to cause one or more of said if so your recover, fall, cannot and verdict then must be for the defendant.” inconsistent a difficult task to write instructions more
It would be quoted. than instructions above Instruction with each other disregard jury as to the dis four told the evidence number step from the to the tance from the floor of the bus jury plain ten if pavement. Instruction number advised the from floor to the and thence tiff failed to consider the distance contributory negligence. guilty How pavement she would be of to the they question When were told jury determine the latter could the to the minds all evidence with reference to banish from their question? from of to the The distance the floor the bus distance in ought jury to have pavement in the ease that the was circumstance handholds; necessity necessity determining the considered step; question of whether should and location driver and also for from the bus defendant’s been assisted questions in the case. The distance of other the determination plaintiff’s ground pleaded petition to the floor of the bus is, therefore, Instruction number four and one-half feet. was three number ten is erroneous that it assumed Instruction erroneous. negligent. plaintiff’s con plaintiff to have been jury, have been submitted to the tributory negligence should recovery, ground, plaintiff’s to bar order First, jury should have found: a°t commission or omission at second, her; plain tributed to that such conduct of tiff, negligence part; third, negligence plain on her that this tiff, any, if plaintiff’s injury. ques directly contributed to These *10 tions of fact must not be assumed in must the instructions but be jury. submitted to the Instruction ten violates rule number this of law. jury In instruction number seven the court told the if the bumper, evidence, prevent referred to in did not interfere with anci
plaintiff getting step, plaintiff from a firm foothold on the then could ground not recover on the was not convenient or acces- bumper. sible reason of the This instruction bumper any way is too restrictive. If the in- plaintiff's to, terfered with free access or use of bus unsafe from the the exit thereof rendered step and reason be would thereof, defendant injured as a result liable.
Instruction part number nine reads as follows: “You further are that if instructed find and believe evidence alighted from the had bus before the driver opportunity go reasonable to the rear of the bus and alighting, offer his assistance to her in then can- any not recover on account of failure of the driver in that respect. (Given.)" any testimony support part of do not find the instruc- We According no effort tion. to the evidence driver the bus made departing passengers from the bus. At whatever to aid at of the accident the driver was still his seat the steer- the time ing wheel. He made no effort to from the bus until after he of the accident. If the had waited for the driver informed probably her from the bus she w'ould have found herself to assist driver’s'duty, riding station. Whether or not it was the to the next circumstances, to render such aid is a of fact for under the instructions, keeping degree proper mind the jury, under passengers. required of a common carrier of care urges demurrer, Respondent offered at the close of the sustained, contending evidence, have been should the evidence guilty contributory negligence plaintiff to have been reveals Therefore, judgment a matter of law. of the cir- though cult court should be a~rmed even the trial court committed error in the admission of and in its instruc tions. v. Mining [Traner Co., 243 371, 148 Mo. 1. c. S. 1. c. W. 72 (1).] Viewing the light evidence in its most ap favorable pellant, which we must demurrer, do appellant made a sub missible jury. case Therefore, the rule respond relied on ent apply does not in this case. v. Mo. Pac. R. R. Co., 37 [Barr S. W. (2d) 1. c. 929 (2-5).]
For the errors judgment indicated the of the circuit court is re- versed and the cause remanded for a new trial. Cooley and Fitz- simmons, CC., concur. PER CURIAM: The foregoingopinion by Westhues, C., is a
dopted opinion as of judges court. All of concur.