*1 showing any rehearing judgment motion for as to rendered September Term, 1933, pre- duly the aforesaid was ever filed and sented the court. showing

From case, this we must conclude thing appeal attempt- before this court is an from court’s at an garnishee’s overruling judgment action in motion to set aside Term, judgment September 1933, that became a final at the County Jackson Circuit Court. rulings express appeal from statute, an lies the absence of no App. Goldstein, motions. rel. v. Mo. ex [State 102.] authorizing overruling appeal We find no statute as judgment, judgment shows

a motion set aside where procedure, regularly with established rules of reached in accordance made provision we case at bar. There is conclude.is shown against vacating judgment appear .when sum who does one s Missouri, moned, 1081, 1084, Revised Statute to-wit, Sections 1929. appellant has law herein not followed the

We conclude that judgment. respect vacating a default- nothing presents for us us we the record before As conclude points presented refrain from further discussion review, we brief. appellants’ n All given, appeal herein is dismissed. reasons above For concur. Co., al., et Dahl Chevrolet McWhorter, Respondent, v.

E.W. Appellant. Co., Defedants; Hoffman Morris Construction (2d) 240. 88 W. S. Appeals. City October 1935. Court *3 Cowgill <&Popham, Sylvan Bruner and John P. Cook for re- spondent.

Langworthy, Spencer <&Terrell for appellant. damages per- for REYNOLDS, C. This is action to recover alleged by plaintiff, W. injuries E. to have been sustained sonal expense on McWhorter, for and- incurred the loss of services minor, injuries McWhorter, a son James B. as to his account Eighteenth and Central of a collision at the intersection result Missouri) auto- between an- (public City, streets in Kansas Streets -riding, which auto- plaintiff and his said son were mobile in which on westerly being direction .in a mobile at the time driven being time Street, same an automobile driven Eighteenth northerly on Central Street. direction M. Bowen in a by one Edward the, County of Jackson Circuit Court instituted The action was re- jury, verdict was a Upon trial had before 22, 1931. on June judgment- for plaintiff $4450; and, from a for turned Hoff- Morris against the defendant duly in said sum thereon entered con- (hereinafter Company called man Construction for a motion timely unsuccessful it, after a but company), struction trial, appeals. new tending is evidence to show that, There at the time of col-

lision, the defendant company, contractor, construction was en- gaged constructing two-story building brick and concrete property located at the southeast corner intersection mentioned; two streets mentioned, they the two streets where property upon building abutted which the erected, bricks, boxes, were covered with mixers, mortar concrete blocks, barrels, building cinder material various placed kinds stored thereon for use in prosecution erecting connection with building; of its work in Eighteenth thirty wide from Street feet curb to curb with *4 a ten property foot sidewalk between the and the curb line and building north, the on the thirty- abutted site and Central Street was six feet width from curb to curb with a sidewalk one- twelve and building west; Eight- half feet wide abutted and site on that upon rising grade approached eenth Street was a as it the intersection east, approached from the as likewise was Street as it Central south; using the defendant construction that was at least, than, more if not one-half of streets for the deposit both storage piled of the materials mentioned and same six or had high along building more the sides of the streets next feet constructing and in such manner that the view of motorists traveling on'Eighteenth west Street and north on Central Street was impossible them, ap- such an that it was obscured to extent streets, proaching crossing intersection over the of said to see point past or one of them reached a at the center one another until that, Eighteenth intersection; Street, the materials on were beginning approximately with the deposited corner street n building .running next to Central Street and back half about length building. Likewise, Street, on Central the materials

deposited extended south from building the southeast corner of the Eighteenth at along Street half the east of Central next to the .prop- erty quite line for a distance. -There likewise some evidence tend- ing, upon show that materials deposited were intersection. (cid:127) There tending is evidence to show that plaintiff, with minor son James B. McWhorter, riding in an ear Auburn driven L. Waters, employee H. Company, that, of the Dahl Chevrolet they passed over the intersection mentioned, of the streets their car was run into coming car on the intersection from south Street, Central they severely driven Bowen, one injured. plaintiff The car in riding going which Mras along west speed at variously plaintiff Street estimated. The .Eighteenth placed eighteen hour, twenty miles per while the driver there of'placed eight it at from per miles ten hour. It was north on-the Eighteenth side of Street, driveway being on said street restricted by reason of the materials Likewise, the south half thereof. part traveled of Central Street was way restricted to° a narrow upon the west thereof, by side reason materials the east half thereof. When the car in plaintiff riding reached a point about intersection, center the driver was able to obtain his first view of by< ear pro driven the said Bowen ceeding north on the west side of Central Street toward the inter section. His view prior reaching point thereof that- was cut off deposited the materials on the streets between him and that car. There is tending evidence to show placed that the materials were also over in the intersection. The evidence tends to show that this was the first at which traveling Eighteenth one west on Street coming could see. a car north on Central Street. The evidence tends further, to show that, plaintiff when car, first saw the Bowen that coming right car- was car; into his the car in which he rid wasi ing sped up, seeking get way,- out of its part the rear there of--was struck the Bowen ear and against thrown into the curb pole- at the intersection; northwest- corner of the plain tiff sustained injuries, serious as did also his minor son James B. McWhorter, plaintiff compelled has been expense to incur much n on account of medical and other treatment for'himself and his son ; injuries. on account-of .such introduced evidence sections chapter and 579 of X, Kansas'City article 6.-of--the General Ordinances-- in force and *5 accident, reading effect'at-the time of the as follows: - person, corporation “No firm or-(cid:127) deposit upon any shall portion of-any'street, side-walk, alley'.or public place, refuse from or build- ing-material for-a-ny building being on'abutting or erected structure property for such upon room such long shall be as there so property person, firm or material; any shall such neither building refuse or first without from excavation an rock earth or corporation remove of Street Clean- from the Commissioner therefor obtaining permit a of by the Commissioner be issued permit shall such ing, before building permit a obtained shall applicant Cleaning, the Street Buildings of Commissioner from the building or structure for such upon property room sufficient If there is Inspections. re- of such deposit for the being erected building is any upon which upon application specified, then is hereinbefore or material as fuse for may granted Cleaning permit a Commissioner Street front building in the street in material or deposit refuse property. of the “All for application^ permits provided for in this shall be article n n

signed by person or duly agent authorized firm person, corporation any or who street, sidewalk, desires to use alley or public place any purpose preceding, for paragraph, permit and said plain object permit.” terms the location of such shall,state “No firm person, corporation or shall use occupy or. more than roadway one-third of the nor more than one-half of the sidewalk space alley piling storing or for the building or material. Such use or occupation shall roadway, space be confined to the sidewalk or alley abutting property building on the where the or structure,is However, be erected.. if written consent and waiver of claims damages against for City is from all obtained the owners adjoining property building which or said structure erected, Cleaning to be may then the Commissioner of Street extend right roadway, use occupy space, alley sidewalk or : public -upon place- provided, terms and conditions- for herein which, adjoin places those building property or. struc where ” is' ture be erected. agreement shows record counsel that application procured had made for and permit -proper city authorities under said .of ordinance n ; use of'one-third the streets. - n .Plaintiff’s'petition charges, was based common of-both negligence negligence city law ordinance violation -the .more, using prohibiting defendant from mentioned the. than' one-third roadways abutting part property. of 'the on the . ..(1) by way construction- answered The defendant. (2) general injuries-complained at-the .denial time that* by- passenger plaintiff, the automobile in which he was a was be- ing wrongful, -consent driven with -and at- and unlawful advice time, that,, by -Bowen, speed at such ear driven rate with, which, riding-collided, the-car *6 1096 by driven wrongful speed said Bowen at a of and unlawful rate that, by

and thereof, reason in force section of ordinance in City regulating upon Kansas speed the of motor vehicles rate streets, the City, by plaintiff, Kansas driver violated the the his-car, and Bowen. by Section 2031 appears ordinance record as offered company. defendant'construction petition only 'Plaintiff’s as construc- filed not the defendant made (the tion defendant but made driver of also Bowen .the plaintiff’s car which car) Company ran into Dahl and the Chevrolet (the riding) owner of the'car in and Morris (the manager Hoffman company) of the defendant construction and (a City, charg- corporation) defendants, Missouri municipal ing each negligence parts with distinct acts their also joint negligence with several and of omission' commis- acts the parts charging plaintiff’s sion on of all other defendants and injury joint neg- awas direct result of all of said several acts ligence commission, severally acting and acts of omission and concurrently However, during progress with each other. of the plain- prior jury, trial and the submission of cause all of tiff dismissed the cause as to such defendants other than the company; defendant construction and the cause submitted to the jury with the defendant construction as the sole defendant. evidence,

At the all com- close'of of the the defendant construction requested directing pany an instruction in nature of a demurrer favor, verdict in its which was court denied. The case jury requiring submitted facts to be to the under instructions found conjunctive negligence upon justify a verdict sufficient to jury as company, if found part of the defendant construction hypothesized instructions, in the violation duty. law arising as violation its common ordinance but out of a OPINION. company assigns error this

The defendant construction refusing its re appeal relating chiefly of the court the action giving in quested directing its favor and in a verdict in instruction refusing to sustain a P-1 also in motion plaintiff, struction for the discharge jury account of al during the trial made It part counsel. leged on the remarks and conduct jury, contending of the assigns upon further error verdict prejudice. is the of bias and in amount and result excessive it',is trial; but overruling of for a assigns its motion new also error points forward in the or carried no have been made seems to assignment. last relating to such argument in its brief made by first-point made with, requested instruction refusal the court of its respect to the directing behalf. verdict in its close of all evidence refusing instruction, committed court, It contends that urges is no causal contention, it that there its support error. proven negligence established the evidence'between connection *7 resulting injuries complained as therefrom and of part on its the and. as negligence proximate the is to be construed that, therefore, such not injuries. cause of such injury is sufficient proof negligence'and not mere of

It is true that which a causal connection proof from there must be also that proof that negligence injury such such between appears injury. v. proximate of such negligence is the cause such [Warner 134, 67; 125, 133, 77 S. W. l. c. Co., & R. 178 Mo. Louis M. R. St. 367, 869, 871; l. c. 276 Boeving v. Cox, 310 S. Mo. ex rel. State W. (2d) 58 (Mo.), W. Co. S. Freund v. Walter 477.] Iman Bread negligence situations arises from act of is whether the Such true constituting law, a rule of of ordinance or the violation such asi violation from the per se, or it arises negligence act whether such Cal of v. general law. duty principles of under [Krelitz some (Mo.), 58 S. W. Webb (2d) 909; Larsen v. 33 W. (Mo.), S. caterra (2d) 967.] purpose

For the contention, its the defendant construction com pany tending admits that there is evidence to show a violation it of the ordinance of City evidence, prohibiting in the use any abutting more than one-third property street to the thereon, improved placed with materials in its -use of such streets thereof, to the extent of at least one-half that such concedes negligence per violation was se but contends there is that no evidence its negligence doing that violation or its ordinance in so proximately produce complained injury caused or the contributed to plaintiff son, of to and his in that the facts in the not show record do that, negligent part, injury absent such act its would not (Coble Ry. (Mo.), v. have occurred St. Louis-San Francisco Co. (2d) 1036), plain

S. W. l. c. 1031, that burden showing. Co., tiff make v. Missouri Pac. R. Mo. [Kane 28, n 29, l. c. 157 S. W. 644.] lines that, by "streets, It contends the use of one-half Street, upon Eighteenth ap- Street and Central vision drivers the south thereof from east proaching the intersection in, question occurred, less, any, if barely to- where the accident space deposited streets materials in said the excess limited occupied they only had would have been one- thereof used than ordinance; it was limited that streets third of said might nothing evidence-from which be said that (cid:127)there only occurred if one-third had been oe- injury not have would conjecture to cupied; and a matter therefore it occupied occurred if it had say injury that the would not have same; only one-third of the occupied but had one-half said streets upon him to establish therefore not met the burden had negligence injury; proven and between causal connection and that it to submit cause. was error proximate of an in

Ordinarily, is the cause question what jury. question is not of science or jury question a a for a from all of the legal knowledge. It is fact to be determined Ry. & St. Paul attending circumstances in evidence. [Milwaukee R. Chicago Island & P. 469;W. v. Rock Kidd Kellogg, Co. v. 94 S. 28, 29, 274 W. Co., 1, l. 310 Mo. c. S. 1079.] it,be resting alone though considered as one case, In this even arising ordinance negligence from violation of the upon the in,the question question greater space streets occupancy injury oc ordinance, not have would than limited been, ques occupancy became if it excess had suchl curred not' *8 evidence; and in from all of the facts jury to tion for the determine or not the of whether not a mere consideration it was limited to in, situations. All same the two lines of vision were were not the in de in for its consideration of the circumstances evidence were termining question. such of question consideration involved, it important becomes to understand in what manner an space of occupancy in of excess by

that limited the ordinance contributed to or could have contributed plaintiff’s injury. to What part occupancy by did construction of Eighteenth five feet more on Street and six feet more on Central Street than the ordinance in prescribed, evidence all under evidence, circumstances in bringing have to with do plaintiff’s injury? about is claimed that such occupancy operated not to cut off his vision approaching of.the car at the intersection so that he could not approach learn of its vision of the driver of ap proaching ear so that driver could not see the car in which plaintiff was riding operated that but it place to also the car in plaintiff which riding was in path the immediate of the car ap proaching Street, on Central when such came the intersection so,that the car in riding which he was escape being could not struck thereby and thereby. so that it struck There is evidence tending the,vision show occupants the drivers and of the ears question was cut from off one another deposited the materials space the excess used both of said streets until the car in plaintiff riding which reached a intersection such streets about center thereof. The is conflicting evidence as to whether any part the intersection was used However, with its material. there evidence and; not; both to the that was effect that it was effect to the plaintiff from approaching the fact that could have no view of the car reaching1 intersection, by the south until the center of the reason strongly supports effect streets, materials evidence used, along parts it was with the other of the streets. Other wise, approaching ear from plaintiff could have had a view riding reached center the south before the car in which he was tending that, by as There show reason of aforesaid. is evidence Eighteenth space the excess on used the defendant con Street nar plaintiff struction was restricted to the use- company, the and, by the excess strip row on the thereof reason of north side space company, on Central Street used the defendant construction re approaching car Central Street likewise the south on strip west side of that street stricted tof the use of a narrow on the Street, wrong intersection side Central and came into the on the thereof, struck the rear end at the west side where it tends to get it could off the intersection. The evidence car before that, the center the intersection and show reached south slightly point, approaching car from the passed had coming his car that his car imme on Central Street was into diately up get out of the to do so sped way but unable just go intersection, as it was was run into the west side of the that, ing apparent had the defendant con off the intersection. It is than that occupied Central Street struction more of ordinance, there driver the car was limited of said required; west side on would not been use the extreme roadway to the least six feet more street but would have had at middle upon; intersection at or near the east and could have come and, west outer side thereof the street rather than on the *9 of upon reaching intersection, passed in rear could have therewith. thereby a collision- plaintiff’s car and would have avoided view also, had an earlier apparent, that such driver would have car. These stop plaintiff’s opportunity car and an earlier of the for the consideration other matters in evidence were all and injury plaintiff’s jury; that it and find therefrom could did company defendant construction would not have occurred had the it was Central Street occupied only twelve feet of the east oc not have injury such would by limited the ordinance and that defendant, com construction all, except by for the use curred at it was limited. space to which pany in excess of the one-third therefore The of the construction contention proxi- not negligent violation the ordinance its act in causal alone that no injury, by the reason plaintiff’s mate cause of well made and injury, is not it such shown between connection .1100 all sufficiently appears from

must be denied. Such causal connection the facts in evidence. com construction Neither is the of the defendant contention injury was the collision pany proximate that the cause negligent operation automobiles, growing out of the two degree of that and the lack them same drivers thereof surrounding existing at and required of care under the conditions cannot, in reason, accident, that, for such place proximate act, if event, negligent established as the any held for its negligent if held act well taken. It can be its injury, cause of such way injury. any contributed 1, Thompson’s Negligence, 75, section volume Commentaries on

it is stated: negligence persons, com- two

“If concurrent and successive may person, he recover injury to a third together, results in bined both, interpose damages can defense and neither either or negligence of to the the other contributed prior and concurrent ’’ injury. law in case approved as statement of the This text was a true Louis, App. 155 Mo. Railways Company of St. of Miller v. United 541, l. c. 134 W. 1045. S. In addition negligence to the of the defendant construction violating in evidence, petition ordinance counts negligence the common law of such defendant in depositing ma terials in the streets covering a space of over one-half thereof in such a manner and to height such an dangerous as to create ob struction therein and to ordinary, make public use thereof dañgerous and unsafe and to obstruct and cut off the view of the streets operators of cars -prevent thereon them from see ing one another approach and the and movement of one another’s cars and in negligently maintaining dangerous con unsafe dition the streets at the time of the many accident and for days prior point thereto at said knew, when it or by use of due known, could have care of such long enough condition prior to the have, accident to in the exercise care, of due removed and remedied but, in which respect, it negligently failed. will We therefore consider the now under consideration raised relating to both negligence acts of charged, negligence is to 'charged both the in its violation negligence charged ordinance in its violation duty. its'common law public maintenance of the streets for the benefit *10 adjoining the owners of general property public; but the owners,

such when they streets, undertake to use such assume the possession duties to incident their as adjoining owners of property.

1101 in, right public The to obstruct the use the of the streets does not any arise out of in property title the owner public adverse to the but arises as an easement of necessity, public subordinate to con trol and limited necessity the arises; which it under and such right must reasonably be is right. exercised. It not an exclusive v. City, 161, [Lindman Mo. 522; S. W. l. c. v.

Shafir Sieben (Mo.), S. 419,W. l. c. 423, 424.] The defendant construction company did right not obtain to its use through the streets It the right ordinance. had the to their reasonable use the without ordinance. The merely regulated ordinance right by limiting its operation to one-third of the streets. It right did not add to use the streets any the one-third in thereof an unreasonable [Searcy manner. Welty v. Noll Co., 295 Lumber 118, 243 Mo. S. W. 318.] duty was the of the defendant construction in the of the use streets to so used the as same to have unreason- ably restricted the use thereof public protected the but to have public plaintiff and the the as public, one the in the reasonable streets; use made of said although true the immediate plaintiff’s might- and direct cause of injury the an have been from independent person- act of a third .

“. . we consider the rule be well established in this state that where the direct injury, although and immediate cause of the independent belongs against act of third to a person, class which plaintiff is legally protect bound one the as of the general public, damage injury defendant will liable in for such be Sieben, . . .” v. supra.] [Shafir (cid:127) wag plaintiff against That in this bar injury case at one the legally which construction was bound protect publie, him aas member of the we think can be no there lawfully upon highway one plaintiff doubt.

public protected to be use thereof. was entitled in reasonable injury necessarily plaintiff’s

The causes Of consist two riding, (1) presence which-he elements, in the car car approaching Bowen, driven path which automobile time, (2) which-plaintiff blow .the the car in struck plain through striking of car in which plaintiff delivered present, Both these causes riding by Bowen car. tiff was very injury.. instanti of operation, at .Krom in full finding jury, evidence, of the petition, allegations position car in which gathered of -the it' approaching car path front .struck of and riding wrongful act of the defendant to the it was due n forcing driver of Bowen obstructing the streets Street, and that Central. west side upon the extreme travel ear to *11 the blow occasioning plaintiff’s injury by struck wrongful the act of Bowen when he ran his car into the ear in plaintiff which riding. Neither act could or would have opera occurred the without tion of the other at the Both commingled same time. in the single act injury. Sieben, supra.] the [Shafir v. appears injury the complained happened of would not have negligent but for the act of the defendant construction in obstructing the in streets the manner it and to the extent did in the first instance maintaining and in thereafter such obstruction and that negligence such proximate is therefore to be viewed as a and efficient cause injury, although of the independent another act intervened in subsequent thereto, concurring operating of time therewith. and

The blockading act construction in openly operated in streets the manner and to the extent it did in traveling upon connection with act of Bowen in the side coming intersection street west of the center thereof and in nothing say place wrong at the he did and side thereof —to to piled in obstruct and the manner it materials so as space the six excess therein cut the view in.its use both feet off reaching ordinance, to space which it was and the limited forcing Bowen to use the west center of street and therewith the left thereof at the side and come on the intersection side thereof to center. instead of at or near the jury have found that which the could was evidence from There not, was or As to whether it was obstructed. intersection itself right take the ways. jury had the was evidence both

there obstructed, Bowen’s that, being so it view that was obstructed obstruction Without such car was further restricted. operation of his might used, he portions the streets upon the excess thereon so car have approaching plaintiff’s view an have had earlier injury plaintiff. have avoided car as to managed his its act company eliminated construction defendant Had the striking have avoided could apparent that Bowen it is negligence, car operate his in which to having space á wider car plaintiff’s center or near upon the intersection come have and could passing turning or ear plaintiff’s avoided and have thereof question a done so he would Whether rear thereof. jury. occupation Thus the by the ordinance limited of that in excess question the streets place operated it did to the extent manner effecting instrumental car and approaching path injury plaintiff; consequent cars and the two between collision proximate a became to but only contributed way, not such it, injury. cause negligence It is true that defendant’s the connection between a may, a in- injury instances, in some be broken [nd however, ervening order defendant, cause. excuse cause, superseding responsible or cause must either ptervening not, entirely cause, intelligent t is if so superseding whether operation négligence alone, lupersedes the defendant’s *12 slightest negligence contributing degree, his in the Without thereto actually if injury; not broken but the connection is produces ordinary intervening might, he one natural and event is pourse things, entirely proper; and de anticipated not negligence chain causa- remains an essential link fendant’s with negligent negligence his If is combines a defendant lion. ;hat any independent intervening cause, he another or with other although negligence negligence or sole liable, his is not the sole [is although negligence in such other proximate caxise without produced injury. dependent intervening not cause would have (2d) App.), 49 W. Drug (Mo. S. v. Co. [O’Bauer 1065.] Katz things, every In transaction a succession nature of there is and it dependent preceding; lof those is the events more or less or of events facts province jury of- the to look at such succession they naturally properly connected ascertain whether are [and by new sequence or are dissevered another a continuous one [with land in view of agencies; this be determined independent must existing [Milwaukee, Ry. Paul at time. St. Co. circumstances R. supra; Chicago, Co., supra; Rock Hood Kellogg, v. v. Island Kidd 471; Laughlin Co., 259 W. 609, & R. 302 Mo. S. v. Baltimore Ohio 459, 3; 205 R. 275 Mo. W. Johnson City Co., v. Southern S. App. 173 Hydraulic Co., Mo. Construction

v. Ambursen (Mo. 1081; Fleming App.), S. W. W. Gilman v. S. 104.] duty of the defendant respect to common law anticipated a traffic accident was company, have it should Eighteenth Street, running likely it is considered that occur when to running uphill Street, from west, Central east to north, on Central Street were uphill, that travelers south coming wrong on side of the street compelled use the streets, where these at a Eighteenth Street and that between thereto, or had used hills near it they top of the intersect at the storage building streets for inside halves both least feet) (five piled high ten things so which it materials and other approaching south impossible for motorists from the that was Eighteenth see east on Street one from the Central Street and way across this narrow in- half than they more another until tersection. con-1 streets. a reasonable use The

This was not right pile building this material so had no struction at| dangerous place. this rightl had no company at common law

The defendant construction usel any to make unreasonable use of the streets or the exclusive thereon. completely view of motorists as to block thereof so | acquire right under the ordinance. Neither did sayJ used, though had Even the defendant construction storage I of the streets for the the intersection and one-half one-half of have occurred ! material, likelihood would not its collision' all height thatf piled only so been to a reasonable if the material had tops cars approaching motorists could seen approach-1 ing respective upon the streets. charged however, liability person negligence, with does reasonable question whether, depend on the exercise very injury com he have foreseen the prudence, could should which, may after plained of; anything but he be held liable consequence proper injury, appears to have been natural and Co., & v. Yards Horse Mule of his or omission. Stock act [Buckner *13 766; Obermeyer Logeman H. 710, 120 v. F. 700, Mo. l. c. S. W. Co., 229 Mfg. S. W. Chair Mo. 209.] company construction contention of the defendant The further a condi placed by the streets created upon that the obstruction take notice of the ears bound to tion which drivers of two were the ex that, of their to combined with the because failure do so driven, such speed with de cessive which their automobiles be held to be placing act in such obstruction cannot fendant’s so plaintiff’s injury such defendant can proximate 1he cause of can the therefor of cars only not be held liable but the drivers to without Such con therefor must be held be merit. be held liable neg evidence, by jury found to be was, upon dition sufficient the injury. ligent contributing plaintiff’s Such contention to condition by already has said herein. been.disposed of what been has the reached has been and from conclusions It follows from what said plaintiff’s requested verdict at the instruction for directed that the by the trial upon properly trial was ruled close of the the evidence judge properly was denied. company point by the construction made The second P-1, request at the giving court instruction

is that the trial erred upon appears to be based three plaintiff. of the Such contention hypothesis support (1) the grounds, that there was no evidence intersection of the streets in the instruction that the contained in (2) upon there was no evidence question that was obstructed view of the driver of the north hypothesis that the base the which to by was obstructed the on Central Street approaching bound car (3) building streets and that there was no evi- upon materials the building of that the streets with the occupation dence materials in excess one-third of the width defendant construction plaintiff’s injury cause of proximate streets was said of the shows thereto. An examination record such contributed grounds only are taken. There is not direct evi- none of such well was in the record to the that the intersection ob- dence effect itself placed materials thereon the defendant construction structed company; proof facts made therein from which further but was may reasonably be inferred. fact evi-

Likewise, respect ground, with second there is ample justify jury in the record to the dence .submission of. is hypothesis direct evidence to the complained There effect that driver the northbound car ob- view upon streets, proof placed materials structed but might many reasonably the inference facts made drawn that it so obstructed. unnecessary ground, effect that

It is discuss the third space above there was no to show evidence use excess deposited width of streets with materials thereon one-third proximate cause of the defendant construction plaintiff’s question been ad- injury or thereto. Such has contributed disposed considera- versely of to such defendant’s contention this Its point tion and determination of its first herein. contention again regard against it. therefore ruled third of the defendant refusing discharge erred in its motion to effect that the trial court con jury, improper based remarks motion during the trial the course

duct counsel witnesses. Whatever of one defendant’s cross examination of such may be, they appear complained do not remarks and conduct *14 any proper in in manner for preserved have the record re to been very questions largely by appear remarks to been view us. Such have upon by plaintiff’s a witness the trial and remarks counsel of asked plaintiff’s counsel of the de and counsel cross-fired between during company examination, which cross- fendant construction provoked remark by to a firing appears the record have been injected No such examination. ob defendant’s counsel into of such jection appears to been made to court the-questions asked any time to at the complains. upon .it now examination which witness any objection which only remark of counsel might jury’s for the made, as the motion discharge other than following addressed him objection, was to regarded as an court, “Yes, sir, suggestion be- response a. court to the 1106 ’' you

cause lawyer after that did testifying more, insisted on somé objected which to by the defendant construction in the following object words: “I remark.” that running view of the preceding cross-fire between counsel this re mark, which had been started counsel of the defendant construc company, ground tion complaint defendant has no of such remark, even prejudicial. regard had it been We do that not it was so. is apparent was; It not objection, that thereto, it and the as made requirements does hot necessary objection. meet the amount to an None of complained open the other by us, matters of are to review objections in the absence of upon made thereto the trial the time at they appearing occurred Martin, in the record. v. Mo. [Ward Quint 966; (Mo. S. W. v. Loth-Hoffman Construction Co. App.), W. 236, S. l. c. nothing There is therefore 238.] may record which the trial court error over be convicted of ruling the motion discharge defendant construction jury or either of said motions. finally claimed that verdict is excessive. It must be remembered, however, plaintiff for personal not sued in juries, physical pain suffering therewith, in connection and his impaired own following therefrom, service for but loss of the (about years age) services his minor son nineteen and the cost expense of medical his minor son himself. That service plaintiff injury arm, right- sustained serious to his left hip, his his back, head, lower suffering and his from which he was still years later, abundantly trial some three shown' evidence. great pain injuries That he suffered on account of his still and was suffering appears. therefrom at the time of trial He lost about twenty pounds weight, which had he not recovered at the time the trial. He received a blow his a head occasioned ringing therein, hearing sens'ation from which blow his material ly affected. He became afflicted with headaches and nervous and dizzy as results thereof spells stop and often turned blind and had to lift great his work and sit down. He could not his left arm without pain. that, it, pulling teeth; He when like testified he used hurt hang down; that he had to let it it had become crooked. stoop great right pain hip over without He could largely incapacitated prosecu back. He had his lower been for the carpenter. labor, only so, that of Not of his work and but tion injured seriously son was shown that is likewise and disabled injuries incapacitated for labor and that his of permanent of his services thereby the value nature and greatly diminished. *15 minor tending is to show that both and his

There evidence treatment, plain- for which required much medical attention son liable, tiff became record, with contention of impressed, are

We under is company that verdict excessive defendant construction We think is evidence prejudice. bias and there is the result of sug- may justifying it; nothing appears which it he fully fair evi- consideration gested to the result other than jury. therefore contention must be denied. dence Such assignments points disposed made We is company. unnecessary dispose defendant with appeal plaintiff upon this reference raised questions with the court in the noneompliance rules this assignment making of errors. is Camp- judgment lower court should be and affirmed.

bell, C., concurs. opinion Reynolds, C., foregoing

PER CURIAM: The judgment affirmed. All court. The adopted opinion of'the concur. Fidelity City Jockey v. States Appellant, United Club,

Kansas Respond Company Guaranty Baltimore, Corporation, & (2d) S. W. 371. ent. 86 Appeals. City October 1935. Court of