*1 any against Railways “Have you any pending suits the Street Company any your family or near suit relatives that have a against Company?” Railways the Street juror grounds

Said set forth remained silent. One the motion for a new is: trial Albín

“There a mistrial reason that Juror in this cause for the any Johnson, question not asked as to whether or he or when associate, family, his or close business relatives, cióse or member of City any against Com- had had the Kansas Public Service lawsuits any predecessors, and refused to disclose pany, or failed Adolph brother, Johnson, fact time his instituted at that county, Missouri, City, in the court Jackson at Kansas suit circuit Adolph in case No. wherein Johnson was Railways defendants; City Company were receivers of the Kansas to have being personal suit claimed been sus- said one by plaintiff.” tained entirely ground, stated, is found to be accurate as

This not question jurors generally. The record asked the purport against defendant, pending question was suits shows the quotes question as to “whether trial while the motion for new family, or close business associate any of his not he or member quite There is a dif- any against” defendant. lawsuits had had jurors question actually asked the and that ference between The former referred alleged ground for a trial. new contained past. fails to show the latter to the The record present, the any them relatives who had ever had a has jurors were asked question against asked was coun- The suit law pending suits. record was confined to sel amicably had brother been settled the suit Juror Johnson’s shows issue tried. trial suit years before the seven about have influence circumstance could could not assume court counsel, Moreover, trial. defendant’s this adverse developed the facts relative to question, have could by proper juror’s brother. record, judgment and the is accord- error

We find no reversible concurs; Trimble, J., P. absent. Bland, J., ingly affirmed City Ap Respondent, Stofer, Alma v. Kansas Public Service pellant. (2d) 41 S. 614. City Appeals. Kansas June Court *2 Dwight McLaughlin respondent. Roberts and Ira B. appellant. R. Weiss

Charles L. Carr and Louis damages. parties to the BOYER, C. Action for We will refer appellant. respondent and plaintiff and defendant instead alleged to have been personal Plaintiff sued on account- from a plaintiff fell by when caused of defendant de- shows petition alleges and the evidence motor bus. The operated hire and passengers fendant was a common carrier October business. On pursuit motor busses operated upon motor bus passenger was a a permit place to regular stopped at a Signal given bus and the street and fell alight. leaving the bus her In following: charged is the severely injured. stepping platform

"That while she was in the act from the step negligently of said bus permitted defendant caused and said throwing suddenly start, unexpectedly thereby bus to and caus- ing plaintiff pavement.” fall general

The answer was a denial. get off; stopped Plaintiff testified bus she started when door, floor stepped step the rear down on the first from the went to opened; car that she started to raise her um- and the doors brella, made a movement to close and the bus the doors moved forward; stepped back with one foot on the floor of little she nodded, car, looked in a mirror at the driver head, turned her again just my I foot opened "and raised after which the doors gave forward, again, step the bus sudden lurch to make the down called testified I out.” Numerous witnesses fell stationary no stopped it remained and there was the bus that after *3 plaintiff fallen in after had the street. it whatever until movement of alleged or did as to whether the bus moved of fact The issue alighting was submitted in the act of plaintiff was not move while by upon issue, that both by instructions jury appropriate jury plaintiff found and assessed plaintiff and duly followed, appealed, Judgment defendant damages $7500. at her refus- instructions and and giving plaintiff’s assigns error and grossly exces- D, that the verdict and Instruction ing defendant’s course of the further noted will be The evidence sive. Opinion. alleged prejudicial

Plaintiff’s Instruction 1 is assailed because of an stinger paragraph opening paragraph. the tail the first of the instruction is in these words: from you

"The court if and believe instructs the that find plaintiff paid her day October, 1927, the evidence that on 1st bus mentioned passenger upon fare and became a the automobile and defendant, by then operated evidence and that the same defend- duty of the event, you that it was the that are instructed ordinarily exercised highest degree ant to use the of care that circumstances very same or similar careful skillful men under the in a safe at her destination discharge plaintiff from said bus would constitute manner, use such care and the failure to injuries suffered responsible for all would be and the defendant slight negligence, however plaintiff result of such as a direct might be.” same concluding solely at defendant is directed The criticism of objection might no slight be.” There is same "however words jury, directs the It further instruction. other feature proceeds: “If, therefore, you further find and from believe the evidence

. that said bus stopped for permitting pas- purpose sengers alight therefrom at said place, you usual find stopping if place said regular was a stopping place there- bus; for said that after and at place said time plaintiff alight attempted to from said bus and while she alighting you was in the act if therefrom, so facts, find the suddenly said bus unexpectedly started that you thereby, if so facts, plaintiff find the was thrown or caused pavement fall to the Boulevard, said Linwood that direct result of such fall, you if fall, find plaintiff she did so received bodily injuries, then you and in that event such are instructed that occurrence creates a presumption if de- for which the fendant is disprove liable burden such defendant presumption. ‘negligence’

“The term as used this instruction means highest failure to use practicable degree of care and caution very men, business, cautious engaged and skillful in a like would use under the same or similar circumstances.” given B

Instruction on is this: behalf “The you court instructs if believe from and find place evidence that at the time and mentioned in the evidence stop regular the bus to a place came Linwood stopping on Brooklyn Avenue; you near and if further believe and from the find alight evidence that thereafter undertook to from bus said stationary, while said bus was did not move said bus start or alighting while was in then therefrom, so, the act your must And against plaintiff. verdict be for the defendant and though you is true from even believe and find the evidence *4 steps fell from the said bus.” of liability ques-

With of the reference to the defendant contested started, alleged, tion simply of fact was the bus as whether stationary, asserts, or as plain- whether remained defendant while it pres- alight. by tiff is the attempting to This shown manner of that, by foregoing instructions as a entation of issue well as only question, testimony. It was the contested voluminous of record plaintiff’s injury. of extent of We aside from the nature and that of point consideration to a defendant’s preliminary state this as because it de- reversible error holds that contains slight might negligence “however same responsible fendant for be.” argument is that hold re to appellant’s The effect of duty place upon it to would

sponsible slight negligence for greater burden than it was re extraordinary a care and exercise requires only the exercise of the law quired carry because the to liable for highest is not a failure care; that defendant degree of degree extraordinary care, of exercise that but failure to usually by very persons of under same care careful exercised degrees circumstances; or similar are of there no recognized negligence” by “slight used law, and that the term speculation and authorizes opens an instruction wide the field whim jury according to render a verdict to own might phrase it to be actionable. conduct that determine slight might be,” considering the the instruction “however the same might ap portentous as first used, connection in which is not as Degrees of pear, potential appellant nor for harm as insists. as day jurisprudence as present are unknown to our held Young 227 Mo. c. ex Railroad, cases of l. and State l. (2d) by appellant. 25 W. c. cited But these Haid, rel. v. ancient fiction of authorities ones discard the and similar which degrees negligence, slight, ordinary, gross, tell us such as nothing to an instruction similar the one in reference whether to says Appellant case of contains reversible error. under review Ry. Magrane l. has & c. v. St. Louis Suburban instruc question the law as contends. The decided and states ‘‘ duty far as placed upon defendant the tion examined foresight, carry passengers such capable human care and to is resulting responsible injury all safely, the defendant any, neglect negli slightest, or passenger from even the such gence.” was liable be mis the instruction It held imaginable, meaning care limit utmost construed required. And the further than the law court and that was more said: neglect negligence’ slightest should also term ‘even

“The degrees negligence; no There are be instruction. avoided degree proper degrees care, and a failure exercise the are there degrees puzzled not negligence. The should be care negligence.” injurious not of ef- the instruction was further held that It was decide opinion. The ease does not fect for reasons stated thing say that certain in hand. It one question we have their quite another to hold use avoided and be terms should proper It is to refer to the con- error. constitute reversible would found, objectionable are words instruction wherein text of the presenting jury, issues to with a view to other instructions from criti- effect of harmful words determining probability *5 duty clearly 1 defines the of defendant refer- Instruction cized. correctly a carrier and to be exercised degree care of ence to the required to find that the negligence, the' term defines unexpectedly plaintiff fall and started and caused suddenly bus negligence. of presumption was there in that event

381 B, given Instruction request defendant, informed plainly jury that not it found did from the bus the evidence that start or move while that alighting, in the act of was verdict must be clearly for defined With so the issues apparent is not misled ordinarily would be minds reasonable or confused, or speculation would be led into the field negligence by vagrant other phrase body instruction might which con- negligence. be said to context characterize sidered, objectionable may descriptive be also words be said agree of and refer to care. We due use failure phrase slight might have “however be” should the same been avoided. It an unfair looks to obtain somewhat like effort advantage pressing could be tolerated. to be for the utmost that in

Appellant also relies which have condemned decisions Hires contributory negligence structions on and cities the issue of Packing v. Grocery (Mo. 408 ; Krey Sup.), Co. 296 Bobos v. S. W. Co., 317 Mo. 296 108, 157, 161, S. W. l. c. Howard v. Scarritt Co., ruling 267 298, Estate 184 cases Mo. these applicable. is not instructions In the cases the Hires and Howard contributory comparative on negligence involved doctrine require they not negligence condemned, which did and further directly contributed to find injury. humani was submitted under the cause The Bobos case Au contributory in the case. not tarian rule cited; they are been jurisdictions from have also thorities other controlling persuasive. not- recognize degrees of has law does not

While it been said cases, and numerous negligence, judicially declared in has been passengers is rule, that a accepted carrier must be as the settled “slight negligence.” responsible injuries arising [Price from 458 ; Ry. 127 Mo. Co., 435, Co., 220 Clark v. Ry. v. Street Mo. Met. Met. Co., 1, 9 ; v. 185 Mo. Stauffer 208 ; Ry. l. v. St. Redmon Met. c. Co., Building 327 ; Holland v. Ry. Co., 243 Goldsmith Mo. St. Co., 207 Mo. Distilling 597, 607 ; Klebe v. Parker 182 Mo. 122 ; Siegel v. Co., Ry. App. Mo. Agnew v. 488 ; Met. St. Supreme and Our Co., App. 186 Mo. R. 653.] Central Illinois con approved instructions repeatedly have courts appellate other responsible that defendant taining to the effect words import. The of similar “slight negligence” or words arising from subject v. to be Lemon appears in our State leading on case upon made ruling there 340, 342, 355. The Chanslor, consistently followed. have been question appears instruction 438, 450, Ry. Mo. Pac. Mo. of Furnish In the words : these contained *6 382

“ slight injuries resulting . . . from responsible for all negligence.” instruc Peoples Ry. Co., 216, 220,

In v. 121 l. c. Bischoff Mo. tion contained these words: neglect of defend- slightest

(cid:127)“And defendant is liable for even the ant’s servants.” 385, the instruction Sweeney Ry. Co., 393, K. 150

In v. C. Cable Mo. contained these words: agents, serv-

“. . if its . in liable slight cars, guilty of even employees, charge in were ants and of said ’’ operation thereof. management in the 401, l. c. it is said: opinion, And in the course of the was liable in that defendant fact that were told “The nothing slight negligence was guilty if its servants were of even degree highest telling required of it the them law more than that the it.” care, and did not vitiate 430, l. c. Co., 426, 152 Mo. Ry. v. In the case of Olsen Citizens containing words: these approved an instruction court cars, failed charge of the said if servants “And the defendant’s directly con- care, thereby slight degree, use such even in a ” . . liable, . injury, defendant is plaintiff’s then tributed to cause Joseph in Porter v. St. case was said In reference to the Olsen l. 74 : Ry. Co., 311 Mo. c. Light, Heat & Power was car, street passenger on a plaintiff, “In case the the Olsen department ve- a fire injured the ear and by a collision between telling the plaintiff, instruction for the gave court hicle. The car, upon defendant’s passenger was a if the watching high degree required of care latter, exercise if failed wagon, the defendant fire approaching for an care, thereby in- slightest and the degree to sue such was liable.” jured, then the defendant App. 399, l. c. Cooley Dunham, 196 Mo. In v. the case said : 195 W. the court saying subsequent cause “Hence starting car with from the evidence jury believed guilty slight 'were even of jerk the defendants or violent a sudden car,’ etc., was operation of said management and cases. v. approved other has been [Stauffer It

not erroneous. Swinney, 305, 327, 332 ; Zwick v. Ry. Co., 243 Mo. Metropolitan St. Ry. Co., 166 Mo. Metropolitan St. 142 ; Richardson App. 178 Mo. ” Co., App. 202, 115 Mo. Transit 162 ; 209.] v. St. Louis Brod App. 253, 254, fol Co., 247 S. W. is the City Rys. v. Kansas In Faulk lowing : instruction that de to an been entitled have would “Plaintiffs slight negligence, bound for even and was responsible

fendant was

383 to furnish equipment safe employees so far as human skill and foresight provide. could Ry. v. Mo. Pac. [Furnish 438, 442, 452, 13 S. Am. Rep. St. As was said 781.] in Lemon v. Chanslor, 68 340, 356, Rep. Mo. 799, quoting Am. *7 from Story on Bailments: “It accordingly has been held that passenger carriers them- bind

selves carry safely to they those whom take into their coaches as far as foresight human care and go, can the is utmost care diligence and very persons, cautious they course are re- sponsible any, even slightest neglect.” the expressions

Similar in instructions have not been condemned or except in criticized Magrane case, supra, where it was said that 'they should be avoided. ~Weare not authority holding cited to an instruction assigned erroneous for the reasons to the extent of requiring reversal. Under prevailing required the- decisions we are to hold that Instruction 1 in the case at bar does not contain re- versible error.

Plaintiff’s Instruction 3 is said to be erroneous. It is on meas- of damages ure part: reads in

“The if jury court instructs the under evidence your instructions of the court plaintiff, verdict is in favor damages then your 'duty plaintiff becomes to assess in favor of against reasonably the defendant in such an amount will com- pensate injuries, any, re- her for if she has received as a direct in- negligence, any, sult of if mentioned arriving your you struction No. and in at take into verdict should following*: consideration the immediately

“1. physical plaintiff before condition any, sues.” injuries, if of which she since the on account by paragraphs cover- foregoing is other followed numbered in- refer to “such ing subjects be taken consideration and into juries, injuries, if if any” any.” and to “said jury language in that the

The error is said to be in of Clause injuries, “the into consideration erroneously directed to take subse- any, It claimed that the on which she sues.” account using injuries” “such quent the instruction the words clauses of 1 injuries in Clause injuries,” to the named and “said refer objectionable words are It is claimed that the also erroneous. further regard facts without pleadings to ascertain jury to the refer the injuries actually recovery injuries not limit the proved and do pleadings to de- jury to search the proved, is directed but that sues.” of which she injuries “on account termine the Mo. Transit Louis St. Fisher Defendant relies au- which instruction was condemned In case complains” which he “of jury thorized to find injuries that all were the direct result of a fall. No instruction informed what were left issues were and the court said that “the injuries to form plaintiff their own which conclusions as to the complained, petition, which, according em- allegations liable,” injuries braced held which the defendant could not be It is further said page on 591:

. by “In presented sharply bar the issues were petition jury what the issues answer, telling and instead of were di- the instruction received as the told them that ‘if injuries rect complains,’ result thus authoriz- thereof the of which he ing jury, inclined, if so take into consideration the by of his attack claimed have been reason sustained diphtheria, respect to which was much evidence.” there damages Another instruction is considered on the measure of the same case in which it is said: broad, defendant,

“If too be seems to intimated *8 damages allowable, should it an item not embraces damages plaintiff’s restricting recovery have to asked an instruction ’’ allowable. point controlling authority upon is not the made The case the facts the instructions differ from The facts and jury the in ease instructions the case at bar. In the instant- instructions, the instruction informed of the issues other damages measure of which is under is the now consideration express jury By paragraph the is alone. initial terms and injuries, compensation for the ly limited in its award to reasonable negligence, any, of if any, received “as a direct result subsequent 1.” The No. instruction the defendant mentioned injuries “such sues” and to account of which she reference to “on qualified injuries” necessarily limited injuries” and “said injuries which were compensable to that character of in so far as Further, ref negligence. a direct result of defendant’s received as respect primarily plaintiff’s 1 condition to in Clause erence “on phrase subjoined injuries. The and since to time before not au misleading could not of which she sues” account compensation any injury shown for not jury to award thorize the ever sus no evidence In fact there is in evidence. disability any ailment, afflicted injury or was ever tained question. casualty in arising from the other than or disease jury refer the to for an instruction course, improper it Of issue of fact as held a on controverted pleadings information 829, Co., (2d) S. W. l. c. 9 & Metal Iron Missouri v. in Dietderick other instruction and Considering entire many cases. other jury 3 Instruction refers say cannot given; we instructions allegations of or to the in the case issues for the pleadings 385 petition injuries ascertain the "on of which account sues.” she petition was not in nothing evidence and there is record which would jury any conception indicate that con- had of its tents. jury It must be evi- assumed that considered dence adduced. Payne, 1005, v. 263 S. W. [Brice 1007-8.] instruction permit jury damages injuries does not to assess liable, jury which defendant such is not but the was limited to injuries directly negligence. resulted from defendant’s 173, Co.,

In the Cap Mfg. ease of Jablonowski v. Modern Mo. 190, 89, 279 S. W. di approved court an instruction which physical rected the condition to "take into consideration plaintiff immediately receiving the before and since on account which was criticized she sues.” The instruction "on considered reference to other features of and the words A specific attention. account of which she sues” did not receive v. phrase in Curtis approved similar is contained in an v. McNair, 73 W. and in Holman Southern Mo. l. c. S. Co., she App. "on account of which Iron 1. c. 685. The words apparent have heretofore sues” or similar words used in instructions a harm ly complaint of and without accepted been without criticism the measure especially an instruction on effect, when used in ful objectionable fears of the effect damages. If defendant had duty seek modification words, opportunity and the had the prevent subject which would instruction on the same offer an Co., (2d) 15 W. S. Oil v. Standard result. harmful [Oldham anv 899, (2d) 26 W. Cunningham 901 ; Run Lead Doe Instruction error shown reversible has not 961.] Defendant right instructed have the that it had Defendant insists *9 plain safety of insurer company was not that defendant entitled was D. Defendant requested Instruction. in its offered tiff as safety of insurer A is not an law. carrier of to that declaration only Louis- negligence. v. St. [Bond passengers liable and is its Co., that was not But Ry. W. l. c. 783.] 288 S. Francisco San directed It further in instruction. only contained proposition duty defendant follows: to the reference degree of care required to exercise was defendant "Nor reasonably practicable.” foresight was not objectionable was and quoted words were care than degree of a less forth It sets properly refused. 1, the word and Instruction plaintiff’s required confusing and "practicable” word "reasonably” qualifying 100, Wells, 306 Mo. l. c. [Weissman v. misconstrued. liable to be Metropolitan Ry. 407 ; St. 406, 400, Kirkpatrick 267 S. Ry. 682 ; Metropolitan St. Benjamin v. 109 S. W. 211 Mo. 614, 151 W. 96.] Co., Finally, is the question verdict excessive? This state- calls for a eyidence

ment of permissible and favorable to inferences most support the award. "With facts. At view we state the plaintiff’s injury time of thirty years age, she physically, ivas sound weighed pounds, bookkeep- about 165 regularly employed and was as a salary er at per $120 a month. fell When left the bus she pavement principal received a shock the fall right her particularly upon knee, knees and which was so bruised mangled back, piece knee, it resembled “a of flesh.” The left bruised, and elbows were also but these result latter did not any .permanent disability. hospital Plaintiff was removed to the where X-ray pictures medical attention and were taken. she.received There no brokén were bones. Plaintiff home late in the was sent evening day days the same two remained bed about half; a thereafter she up pillow sat at times with a her foot on A evening chair. doctor day was sent her on first to. again he morning. called to see her the next At time the greatly knee was hemorrhages swollen and. internal in and had set extended from the cap ankle; knee almost to the her knee was ordinary swollen size; twice there were black al- three streaks ankle, most to the way and a blood clot half between the knee and Through the anide. apparent misunderstanding some the first doctor ’ again physician did not call and plaintiff obtained another who daily visited and treated her twice for four weeks thereafter day once a for several longer, weeks and then at less fre- and less quent intervals years until the time of the trial two after in- jury. Shortly lumps injury after the appeared two on the side just of the knee cap; pained continuously below the knee the knee weeks; for six weeks, plaintiff the end of about four returned place of employment, special provision her but was for her made that her limb chair, could be left on a and she was not so general get office. She could with around crutches which she eight continued use for about weeks after she returned to work. employer provided transportation Iíer and friends means of from her supplied home.' For month! or six weeks she with salary required an assistant to run and was to divide her .errands assistant. th.e

In time, the course of plaintiff walked without aid of cane or crutch, but there whs an impediment in the right use of her knee. At times right knee ready .when flexed step take a *10 catch or lock would and she would be unable to place extend it or her ground oh the Until' manipulating knee foot and foot it would, become unlocked; she would feel something snap and could then take step. a This or catching locking has happened as often ' or day. as two three times a Sometimes there’ would an be interval days of four or five when locking there would be ño knee. of the "When the knee locks she has not always been retain bal- able to her ance and has been caused to testimony fall a number of times. The shows that locking this occurs “many “real often” times” and and good many “a “quite good times” “very and many a times” and ’’ frequently. plaintiff It has getting occurred when off street- car; when she walking along street; theater; when walking across home; place the floor at work, at her of and else- where. Whenever locking pains; occurs knee she is com- pelled stop manipulate put place. it to it back in The last attack of just this bind occurred days a few before the trial. The swelling has completely receded; plaintiff limps times; never her pains knee still her if feet; she is much swelling on her when in- creases she wears bandage; a she still calls on doctor for aid. In addition catching locking plain- or of the knee at times tiff something grind feels complete scrape step; and cannot then hex' begins weight knee ache and she cannot bear her though it even it does not catch. physicians

Two shortly examined before trial. Their testimony, regular plaintiff’s that of physician, is the effect has cartilages suffered a dislocation of the semilunar right knee; symptoms by plaintiff are evidenced dislocation; characteristic such permanent; that her condition is remedy is except by surgical operation there no which propriety doubtful extremely danger hazardous on account of infection, irritation, and a stiff knee a result. semilunar cartilage calcifies; calcify difficult to locate until it does not usually ages thirty-eight fifty until between the years. Some- times in such permanently cases the knee becomes locked and usually operation is not resorted to until that exists. When condition cartilage is removed there is no cushion between the bones of plaintiff’s At the trial right knee. time knee was one larger prognosis one-fourtli in circumstance than other. The plaintiff’s disability unfavorable. testimony strongly medical ap Defendant’s tended to show that nothing parently plaintiff’s right knee, there was abnormal about question disposing but we cannot consider .evidence Service, City Kansas Public S. W. hand. [McClellan (2d) 902, 910.] tending large, appears but in view of that evidence

The verdict inconvenience, greatest disability, probable hazard to show future, support which tends to unanimous plaintiff in the approval by the trial cannot court, and its we award error, plainly passion excessive as to indicate is so say the verdict power appellate interference. The call prejudice and to *11 with, when- should be exercised verdibt of interfere however, power, clearly unjust. This the award is the amount of ever pre- and is used caution and reluctance exercised injustice. vent manifest procedural or not shown appellant has conclusion is that Our judg- affecting materially merits other error of.tbe Camp- recommends. so Commissioner be affirmed. ment should bell, C., concurs. foregoing opinion by

PER Boyer, C., adopted CURIAM: The opinion judgment concur, of the court. is affirmed. All except Trimble, J.,P. absent. Shout, Respondent, B.

Samuel v. Gunite Concrete Con Appellants. Co. al., (2d) et struction S. 629. City Appeals. Kansas Court June