have seen, that the plaintiff was not going to stop before he got into a position of peril." Gordon v. Park, 219 Mo. 600, loc. cit. 612, 117 S. W. 1163, and cases therein cited. had the right to assume that the plaintiff would stop before he went upon the track, and that the gripman was not required to check or stop the car until there was danger of a collision. Under the evidence in this case, instruction E was properly refused. Ellis v. Met. Street Ry. Co., supra, 234 Mo. loc. cit. 681, 138 S. W. 23. The correct theory applicable to the evidence in the present case is contained in appellant's given instruction No. 3. [6] Instruction G was as follows: "The court instructs the jury, if you find and believe from the evidence that at the time that the plaintiff got into a position of peril the car was then so close to him that it was impossible for the gripman to avoid the accident, plaintiff is not entitled to recover in this action, and your verdict must be for the defendant." [3] In support of the second objection to said instruction, appellant contends that there was no evidence that the gripman could have seen the plaintiff going into a situation of danger. It is a sufficient answer to this to say that the evidence shows that plaintiff, coming from the north, started across the double tracks of defendant in a south-easterly direction, unaware of the approach of the east-bound car. This would throw his back somewhat towards the east-bound car. A west-bound car was also approaching the crossing. It is very doubtful if there was sufficient space between the two tracks to allow a pedestrian to stand between two passing cars. At the time plaintiff started across the tracks, he was within plain view of the gripman on the east-bound car. And, had the gripman been looking ahead, he could have seen plaintiff in the above situation and could have seen him crossing the north Instructions H and K were on the question track to avoid the west-bound car, and of burden of proof. This point was proptherefore could have reasonably anticipated erly covered by appellant's instruction No. 2, that plaintiff would come within the danger which was given by the court, and the reof the east-bound car, if it was not slack-fusal of these instructions did not constitute ened or stopped, or the plaintiff given some warning of its approach so that he would wait until it had passed, or, if in a position where he could not wait by reason of the other car approaching him from the east, to have caused him to have put forth an extra effort to clear the east-bound car. was [4] Appellant further contends that "there no evidence that any warning could have been given which might have avoided the accident." In support of this contention, appellant cites the case of Heinzle v. Railway Co., 182 Mo. 528, 81 S. W. 848. But the facts in that case clearly distinguish it from the present case. In the Heinzle Case the evidence shows that the motorman in charge of the car did not see and could not have seen the little girl until she ran out from behind another car, within a very few feet of the oncoming car and too close to the car to have been saved by any action upon the part of the motorman after he could have seen her. But in the present case the gripman's view was unobstructed, and he could have seen the plaintiff approaching the danger, unaware, had the gripman been in the exercise of proper care upon his part. Under the situation, it was for the jury to say whether the giving of an alarm would have aided in preventing the injury. Cytron v. Transit Co., 205 Mo. 692, 104 S. W. 109; Ellis v. Met. Street Ry. Co., 234 Mo. 657, loc. cit. 683, 138 S. W. 23. [5] II. Appellant further contends that the court erred in refusing its instructions E, G, H, and K. Instruction E told the jury that, even though the gripman saw plaintiff approaching the track, yet under the law he The court did not err in refusing this instruction, because the law applicable to the points attempted to be covered by said instruction had already been properly set forth in appellant's instruction No. 3, above men tioned. error. [7] III. The action of the court in admit ting certain evidence is assigned as error. erred in allowing the rock, said to have been this evidence occurred in the following way: Witness Russell testified that he helped take tion of his evidence concerning the rock was plaintiff out from under the car. as follows: That por "After we got him up I saw a stone in his face, and I pulled it out, right there through the jaw. Q. Now, is that the rock you saw there? The Court: Wait a moment. Do not Just state whether or not that is the rock. A. show that outside of the paper. Mr. Bird: Yes, sir; that is the rock. Q. And whereabouts, now, on Holzemer did you find this rock? Mr. Page: I object to that as immaterial, and not proving or tending to prove any allegations of negligence contained in the plaintiff's petition. The Court: It is not intended to prove negligence, I presume, but as bearing on the injuries. I presume that is what it was for. Go ahead. (To which defendant duly saved its exception.) I took that out of the jaw; right by the side of his jaw there (indicating). Mr. Bird: We offer that in evidence. it does not prove or tend to prove any allega(Objected to by defendant for the reason that tion contained in plaintiff's petition.) Objec reasonable satisfaction, that the gripman was guilty of negligence, and that such negligence was the direct cause of injury complained of, then your verdict must be for the defendant.' Defendant's given instruction No. 3 (the portion in parenthesis having been inserted by the court over the objection of defendant) was as follows: John H. Lucas and C. S. Palmer, both of Kansas City, for appellant. Charles A. Stratton, of Jefferson City, and Bird & Pope, of Kansas City, for respondent. upon which said cable train was running. If, | preponderance of the credible testimony, to your therefore, you believe and find from the evidence that on or about December 1, 1908, and at about the hour of 12 o'clock noon, on said day, the plaintiff was walking southeast on West Twelfth street, in Kansas City, Mo., and was crossing the tracks of said defendant at or near Belleview avenue and said West Twelfth street, and that said West Twelfth street was a public street and thoroughfare of said Kansas City, Jackson county, Mo., and that one of the cable trains of the defendant, "The court instructs the jury that, even east bound, was run into and against the plain- though you might believe and find from the tiff and injured him, and if you further be- evidence that the gripman operating the car lieve and find from the evidence that plaintiff saw the plaintiff approaching the east-bound was on or approaching the east-bound track of track, yet under the law the gripman was not the defendant at or near said Belleview ave- required to begin to stop his car or to check or nue and West Twelfth street, and that, by slacken the speed of same until he saw, or by reason of the fact that he was on or approach- the exercise of ordinary care could have seen, ing said east-bound track, he was in a situation, that the plaintiff was not going to stop before or was going into a situation, where it was he got into a position of peril, and you are reasonably probable that he would be run into instructed that if you find and believe from the by said cable train and injured unless the speed evidence that the gripman could not by the exerof said train was checked, or it was stopped cise of ordinary care prevent the accident (by before it collided with him, and that the grip-stopping the car or checking or slackening the man in charge of said east-bound train saw, or speed of the same or by warning the plaintiff) by exercising the care of a reasonably pru- after he saw, or by the exercise of ordinary care dent gripman, under the circumstances, would could have seen, that the plaintiff was not gohave seen, that plaintiff was in a situation, or ing to stop before he got in a position of peril, was going into a situation, where a reasonably your verdict must be for the defendant." prudent gripman would have concluded that it was reasonably probable that plaintiff would be run into by said cable train and injured unless the speed of said train was checked, or it was stopped, or plaintiff was warned of the approach of said train before it collided with the plaintiff, and if you further believe and find from the evidence that said gripman in charge of said east-bound train saw (if you find he did see), or by exercising the care of a reasonably prudent gripman, under the circumstances, would have seen (if you find that by exercising such care he would have seen), that plaintiff was in a situation, or was going into a situation where a reasonably prudent gripman would have concluded that it was reasonably probable that plaintiff would be run into by said cable train unless the speed of said train was checked, or it was stopped before it collided with the plaintiff, and could thereafter, by exercising the care of a reasonably prudent gripman, under the circumstances, and with due regard to the safety of the people on said cable train, have checked the speed of said car, or stopped the same or warned the plaintiff of the approach of said train before it collided with the plaintiff, and thereby could have avoided colliding with and injuring the plaintiff, and failed to do so, then the defendant was negli gent. And, if you further believe and find from the evidence that said negligence (if any) of the defendant caused the injuries (if any) to the plaintiff, then you will find for the plaintiff, and assess his damages (if any) at such sum as the evidence shows is a full. fair, and just compensation for the injuries (if any) sustained by him, considering their nature and character as shown by the evidence, not exceeding, however, the sum of $25,000, the amount claimed in plaintiff's amended petition, although you may further believe and find from the evidence that plaintiff was negligent, or did not exercise the care of an ordinarily prudent person under the circumstances, in crossing the tracks of the defendant without looking or listening for, or becoming aware of, the approach of the cable train that collided with him." Defendant's given instruction No. 2 was as follows: WILLIAMS, C. (after stating the facts as above). I. Appellant contends that plaintiff's instruction No. 1 was erroneous (1) because it enlarged the issues framed by the petition; (2) because it was not justified by the evidence. [1] With reference to the first objection, appellant insists that the use in the instruction of the phrase "going into a situation" instead of the phrase "in a situation," as alleged in the petition, amounted to an enlargement of the negligence alleged. We are unable to agree with this contention. It will be noticed that, both in the petition and in the instruction, the "situation" in which plaintiff is required to be before the defendant is required to act is one which, if continued to exist, coupled with the failure of defendant to do certain specified acts, will result in plaintiff being struck by the car. The allegation of negligence in the petition, especially when given the liberal construction to which it is entitled after verdict (Sharp v. Railway Co., 213 Mo. 517, loc. cit. 525, 526, 111 S. W. 1154), is sufficient in scope to embrace the meaning that plaintiff was moving toward the fixed path of the street car in such a manner and under such surrounding circumstances as would cause him to be struck by the car if the gripman did not do certain things with reference to the operation of the car or give a warning of the car's approach. [2] Furthermore, appellant should not "The court instructs the jury that the burden of proof is on the plaintiff to prove to your now be heard to complain in the above rereasonable satisfaction, by the preponderance gard, since it adopted practically the same or greater weight of the credible testimony, that theory in its instruction No. 3, wherein the the gripman was guilty of negligence; and unless you believe and find from the evidence in gripman is not required to act "until he saw, the case that the plaintiff has proved by a or by the exercise of ordinary care could have seen, that the plaintiff was not going to stop before he got into a position of peril." Gordon v. Park, 219 Mo. 600, loc. cit. 612, 117 S. W. 1163, and cases therein cited. [3] In support of the second objection to said instruction, appellant contends that there was no evidence that the gripman could have seen the plaintiff going into a situation of danger. It is a sufficient answer to this to say that the evidence shows that plaintiff, coming from the north, started across the double tracks of defendant in a south-easterly direction, unaware of the approach of the east-bound car. This would throw his back had the right to assume that the plaintiff would stop before he went upon the track, and that the gripman was not required to check or stop the car until there was danger of a collision. Under the evidence in this case, instruction E was properly refused. Ellis v. Met. Street Ry. Co., supra, 234 Mo. loc. cit. 681, 138 S. W. 23. The correct theory applicable to the evidence in the present case is contained in appellant's given instruction No. 3. [6] Instruction G was as follows: "The court instructs the jury, if you find and believe from the evidence that at the time that the plaintiff got into a position of peril the car was then so close to him that it was impossible for the gripman to avoid the accident, plaintiff is not entitled to recover in this action, and your verdict must be for the defendant." The court did not err in refusing this instruction, because the law applicable to the points attempted to be covered by said instruction had already been properly set forth in appellant's instruction No. 3, above men tioned. somewhat towards the east-bound car. A west-bound car was also approaching the crossing. It is very doubtful if there was sufficient space between the two tracks to allow a pedestrian to stand between two passing cars. At the time plaintiff started across the tracks, he was within plain view of the gripman on the east-bound car. And, had the gripman been looking ahead, he could have seen plaintiff in the above situation Instructions H and K were on the question and could have seen him crossing the north track to avoid the west-bound car, and of burden of proof. This point was proptherefore could have reasonably anticipated erly covered by appellant's instruction No. 2, that plaintiff would come within the danger which was given by the court, and the reof the east-bound car, if it was not slack-fusal of these instructions did not constitute ened or stopped, or the plaintiff given some warning of its approach so that he would wait until it had passed, or, if in a position where he could not wait by reason of the other car approaching him from the east, to have caused him to have put forth an extra effort to clear the east-bound car. was [4] Appellant further contends that "there no evidence that any warning could have been given which might have avoided the accident." In support of this contention, appellant cites the case of Heinzle v. Railway Co., 182 Mo. 528, 81 S. W. 848. But the facts in that case clearly distinguish it from the present case. In the Heinzle Case the evidence shows that the motorman in charge of the car did not see and could not have seen the little girl until she ran out from behind another car, within a very few feet of the oncoming car and too close to the car to have been saved by any action upon the part of the motorman after he could have seen her. But in the present case the gripman's view was unobstructed, and he could have seen the plaintiff approaching the danger, unaware, had the gripman been in the exercise of proper care upon his part. Under the situation, it was for the jury to say whether the giving of an alarm would have aided in preventing the injury. Cytron v. Transit Co., 205 Mo. 692, 104 S. W. 109; Ellis v. Met. Street Ry. Co., 234 Mo. 657, loc. cit. 683, 138 S. W. 23. [5] II. Appellant further contends that the court erred in refusing its instructions E, G, H, and K. Instruction E told the jury that, even though the gripman saw plaintiff approaching the track, yet under the law he error. [7] III. The action of the court in admitting certain evidence is assigned as error. Under this point, it is claimed that the court erred in permitting Dr. Neal to answer a certain hypothetical question, because the question asked was not based upon all With rethe facts shown by the evidence. gard to this point, it is sufficient to say that the reason or ground now given by appellant as to why the question was improper was not contained in the objection made to the question at the trial. erred in allowing the rock, said to have been [8] It is further contended that "the court duced as an exhibit." The introduction of taken from the face of plaintiff, to be introthis evidence occurred in the following way: Witness Russell testified that he helped take tion of his evidence concerning the rock was plaintiff out from under the car. That por as follows: face, and I pulled it out, right there through "After we got him up I saw a stone in his the jaw. Q. Now, is that the rock you saw there? The Court: Wait a moment. Do not Just state whether or not that is the rock. A. show that outside of the paper. Mr. Bird: Yes, sir; that is the rock. Q. And whereabouts, now, on Holzemer did you find this rock? Mr. Page: I object to that as immateallegations of negligence contained in the plainrial, and not proving or tending to prove any tiff's petition. The Court: It is not intended to prove negligence, I presume, but as bearing on the injuries. I presume that is what it was for. Go ahead. (To which defendant duly saved its exception.) I took that out of the jaw; right by the side of his jaw there (indicating). Mr. Bird: We offer that in evidence. it does not prove or tend to prove any allega(Objected to by defendant for the reason that tion contained in plaintiff's petition.) Objec tion overruled, to which defendant duly saved would justify this court in saying that the its exception.' court erred in that regard. The trial occurred about two years after the date upon which plaintiff received the injuries, and the wounds on his face had undoubtedly healed much in that time. The introduction of the stone which the witness claims to have pulled from the face or jaw of the plaintiff just after the injury would enable the jury to get a more accurate impression of the original extent of that portion of his injuries. The extent of plaintiff's injuries was one of the issues in the case, and therefore the above evidence was properly admitted. [9] IV. It is next contended that "the court erred in excluding evidence of an actual test of the distance within which a cable train could have been stopped at the place in question." Two of defendant's witnesses were asked if they had seen "an emergency stop made there this morning," and further asked, "Within what distance was the car stopped?" To these questions plaintiff's counsel objected. The court sustained the objections, and the defendant excepted to the ruling of the court. In the case of Riggs v. Railroad, 216 Mo. 304, 115 S. W. 969, the rule with regard to receiving evidence of experiments and their results was stated by Lamm, P. J., as follows: "We find no fault with plaintiff's proposition of law, viz., that experiments and their results are admissible proof when it is first shown that causal conditions and circumstances are substantially reproduced at the experiments." [10] Under the above rule the questions asked did not lay a proper foundation for the introduction of the evidence showing the result of experiments which were claimed to have been made. Furthermore, when the court sustained the objection to the question, appellant did not make an offer of proof setting out what the testimony of the witnesses would be if permitted to testify in that regard, and for that reason, even though the question had been properly propounded, we would still be unable to deter mine whether or not the exclusion of the testimony constituted error. Copper & Iron Mfg. Co. v. Manufacturers' Ry. Co., 230 Mo. 59, loc. cit. 77, 130 S. W. 288; Shelby County Ry. Co. v. Crawford, 235 Mo. 489, loc. cit. 492, 139 S. W. 115. [11] V. It is further contended that appellant's peremptory instruction requested at the close of the case should have been given. In support of this proposition, appellant does not contend that there was a failure of proof, but that the principal witness for plaintiff showed by his own testimony that he was unworthy of belief. The credibility of the respective witnesses was for the jury's determination. In passing upon the motion for a new trial, the trial court passed upon the question of the weight of the evidence, and ruled against appellant's contention. The testimony is not of such character as [12] VI. It is next contended that the verdict was excessive. After careful consideration, we have reached the conclusion that the verdict is excessive by $3,000. If, therefore, the plaintiff will, within ten days, enter a remittitur of $3,000 as of the date of the judgment in the trial court, the judgment will be affirmed for $12,000, with interest at 6 per cent. from the date of the judgment in the trial court; otherwise the judgment will be reversed, and the cause remanded. ROY, C., concurs. PER CURIAM. The foregoing opinion of WILLIAMS, C., is adopted as the opinion of the court. All the Judges concur. BOESEL v. WELLS FARGO & CO. (Supreme Court of Missouri. July 2, 1914. NECES Contributory negligence, to be available as an affirmative defense, must be pleaded, but if the proof shows plaintiff to have been negligent as a matter of law so as to bar a recovery, such negligence is available though not pleaded. Cent. Dig. §§ 195-197; Dec. Dig. § 117.*] [Ed. Note.-For other cases, see Negligence, 2. APPEAL AND ERROR (§ 1062*)-REVIEWSUBMISSION OF ISSUES. Error in submitting plaintiff's contributory negligence to the jury, though not pleaded, is not reversible error, where the court finds from the whole evidence that plaintiff was negligent as a matter of law. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. § 1062.*] 3. MASTER AND SERVANT (§ 234*)-INJURIES TO SERVANT CHILDREN CONTRIBUTORY NEGLIGENCE. testified that she was employed by defendant's Plaintiff, a girl 14 years, 81⁄2 months old, foreman to answer the telephone in defendant's express barn and notify him when wanted, using a freight elevator to do so; that, being required partially sitting on a guard bar with one leg to find the foreman, she started the elevator, over the bar; that she knew there was a space between the elevator floor and the edge of the second floor of the building; and that she did looked as though the space would be wide not remove her leg from the bar because it enough for her leg to go through without hitting or touching the floor. She was mistaken in this, that, notwithstanding plaintiff's youth, she apand her leg was caught and injured. Held, preciated the condition, and deliberately took the chance that the space was sufficiently large for her leg to pass through, and was therefore negligent as a matter of law. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 684-686, 706-709; Dec. Dig. § 234.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 4. MASTER AND SERVANT (§ 96*)-INJURIES, kick me, and then a call came for him, and I TO SERVANT-CHILDREN CAUSAL CONNECTION BETWEEN EMPLOYMENT AND INJURY"EMPLOYED TO OPERATE ELEVATOR.' Where plaintiff, a girl 14 years, 8 months old, was employed temporarily to answer the telephone in an express barn and was injured while operating a freight elevator which she was permitted to use to communicate with the foreman, she was not employed to operate the elevator within Rev. St. 1909, § 1723, providing that no child under the age of 16 shall be employed to operate or assist in operating an elevator; and there was no causal connection between her employment and the use of the elevator at the time of her injury, so as to entitle her to enforce an alleged civil liability for her injuries, based on defendant's alleged violation of the statute in employing her. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 157, 158, 162; Dec. Dig. § 96.*] Brown, J., dissenting. In Banc. Appeal from St. Louis Circuit Court; W. B. Homer, Judge. Action by Edith E. Boesel, an infant, by Adam Boesel, her next friend, against Wells Fargo & Co. Judgment for defendant, and plaintiff appeals. Affirmed. This case coming into banc from Division 2, we adopt with some minor emendations, the statement thereof made by ROY, C., who wrote the opinion in Division. It runs thus: Suit for damages for personal injuries. Verdict and judgment for defendant, from which plaintiff appeals. The defendant had its barn at the northwest corner of Johnson and Spruce streets in St. Louis. It fronts south on Spruce. It is 75 feet front by 175 feet deep. The office is on the first floor in the southeast corner. That floor is used for vehicles. At the north end of the building is a freight elevator about 13 feet by 9. It is operated by wire cables. Across the south opening to the elevator is a wooden removable bar about 3 feet high. Near the elevator begins a chute by which horses are taken to and from the stalls on the second floor. Hay and other feed is kept on the third floor. Near the foot of the chute is an extension bell from the telephone, which rings whenever there is a call on the telephone: As the elevator passes through the second floor there is a space of about two inches between the edge of the elevator and the side of the opening in the floor. John Hodgson was the foreman in charge of the barn. The The plaintiff lived with her parents in the property adjoining the barn on the west. plaintiff was injured on August 19, 1909, and was 15 years old in December following. The injury occurred between 5 and 6 o'clock in the afternoon. Plaintiff testified as to what oc "I was curred between her and Hodgson, and as to how the injury occurred, as follows: called into the building by John Hodgson; he was the stable boss; bossed the men' and worked some himself. He was working for the Wells Fargo Express Company. Q. What did he say to you? A. He told me if I would answer the telephone he would pay me for it. Q. Now, tell what he said and what you said on this occasion? A. He called me into the office in the stable and asked me if I would answer the telephone; I told him, yes, and asked him how much he would give me; he said he would pay me to-night. He said he was going up to the third floor to get some sacks to clean the chute out with, and told me if a call came in to use the elevator and not to go up the chute, because he was afraid the horses would It looked as went and used the elevator. When a call came for him I got on the elevator. That was after he told me he was going to the third floor. When I got on the elevator, I pulled the wire that made the elevator go up; I went pretty near to the third floor. Then I was called down and I came down to the bar. My little brother called me down, and when I got down I stopped the elevator there. When I got down I put my leg over the bar. That bar was about three feet above the floor. My brother was in the chute at the time he called, but before I got down he went out of the chute and went on the second floor. I did not get off the elevator at all. Then I started to the second floor to get John Hodgson. As I went up my leg got caught between the elevator and the second floor and was crushed. The elevator does not fit close against the second floor. There is a space between them; I couldn't just exactly tell how wide it was. though it would be wide enough for my leg to go through without hitting or touching the floor at all. The elevator got past the second floor, and my little brother stepped in after I got my leg back on the elevator. My knee was dragged between the elevator and the second of the building. My little brother took me back floor. My mother ran over and helped me out to the first floor on the elevator. * * * Q. Now, state whether or not you were ever paid for the afternoon for answering the telephone at the time you were hurt. A. Yes, sir; John Hodgson paid me a quarter. I had answered the telephone before the 19th of August. I answered it before when asked to by John Hodgson. I was paid for answering it on those occasions for about three months. I did not answer it steadily every day. Just whenever I was called in there. I did not know how to operate the elevator. John Hodgson told me how, not very long after he had told me to answer the telephone." On cross-examination the plaintiff testified as follows: "The movement of the elevator was regulated solely and entirely by these wires to the best of my knowledge. They were the only wires I knew of. I operated it time and again by those two wires, and had seen other people operate it by them. I never saw anybody operate it in any other way. Those wires were not quite touching the wall. When Mr. Hodgson explained to me how to operate the elevator I tried to see if I could do it; I did it all right. I learned in a very short time how to operate it. From that time on to the time I was hurt, I operated the elevator by those wires at least 100 times. In operating the elevator down on the elevator; that was the first time. at least 100 times, I never before this time sat In operating the elevator before, I had passed the second floor and gone up toward the third I knew there was a crack befloor at times. tween the south edge of the elevator and the second floor. I had seen it often as I went up by it. It was light at the time I was operating it. heard a call way down at the south end of the building; then I got on the elevator which was way up in the north end of the building, and pulled the wire and started it; I was standing up then. went up to the second floor and got almost to the third floor. I didn't see Mr. Hodgson on the third floor. There are horses and stalls all through on the second floor. They are on the side of the elevator. Closed ones are higher than me, and those open are not. Those on the side I don't think are higher than me. I didn't go up to the third floor so I could see over the stalls. I thought he was on the third floor; he told me before he was going up to the third floor to get the sacks, and I started up to the third floor. He went up to the third floor on the elevator. When I went up there * ** For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |