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| lived in Kansas City 25 or 30 years, and had KINNEY V. METROPOLITAN ST. RY. CO. been in the service of the defendant about 5 (No. 16480.)
years as a motorman. He stated that he (Supreme Court of Missouri, Division No. 2. was experienced in that work. He was actJune 23, 1914. Rehearing Denied
ing as a motorman on defendant's car No. July 14, 1914.)
123 at the time of the alleged injury, at 1. MASTER AND SERVANT (8240*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE.
about 9:40 p. m., on June 11, 1909. His car As regards the question of contributory was going east on the defendant's line from negligence of a motorman, injured by his car | Kansas City to Independence. The place of running into an unseen work car standing on the accident was in the country, about 100 the track, he was not required to slacken his speed because of a car coming in the opposite
feet west from Tullis station and 300 or 400 direction on the parallel track, with the con feet east of Smalley station. It is a double fusing effect of its headlight.
track; the south track was used for cars [Ed. Note.-For other cases, see Master and bound eastward, and the north track for Servant, Cent. Dig. 88 751-756; Dee. Dig. 8 240.*]
west-bound cars. Those tracks were eight or 2. MASTER AND SERVANT (8 289*)-INJURY TO
ten feet apart. They were straight from SERVANT - CONTRIBUTORY NEGLIGENCE - Smalley to Tullis, and then curved to the QUESTIONS FOR JURY.
northward; there was a moderate upgrade. Whether a motorman, injured by his street
Beaumont station was a distance of two car running into a work car standing on the track, was guilty of contributory negligence in
short blocks eastward from Tullis. There not seeing the work car, in the absence of a was a cluster of ordinary incandescent lights red light on the rear of such car, and in the on the trolley pole at Tullis. The evidence rain, and with the glare in his face of headlight
is conflicting as to whether they were burnof another car coming towards him on the parallel track, is a question for the jury.
ing. Plaintiff testified that they were not. [Ed. Note.-For other cases, see Master and One witness for defendant stated that they Servant, Cent. Dig. 88 1089, 1090, 1092–1132;
were. Plaintiff's car No. 123 was an ordiDec. Dig. $ 289.*]
nary trolley car with the usual vestibule in3. CUSTOMS AND USAGES (8 18*)-NECESSITY
closed in front with sheet iron waist high to OF PLEADING. For admission, under a petition charging
the motorman as he sat on his stool. The common-law negligence of a custom and windows of the vestibule had three sash, nonobservance, as evidence of negligence, the which opened by being dropped. The cencustom need not be pleaded.
ter and left sash were up and closed. The [Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. $ 40; Dec. Dig. 8 18.*]
right-hand sash was down and opened. There. 4. TRIAL ($ 10814*)-CONDUCT OF COUNSEL
was an ordinary incandescent light, and also VOIR DIRE EXAMINATION.
an arc light, called a "headlight," attached to It is proper, in a servant's action for in- | the front of the vestibule of plaintiff's car. jury, to ask jurors on their voir dire examina
The arc light had a reflector to throw the tion whether they were connected in a business with a certain insurance company, liable to pay
| light ahead along the track. any judgment obtained against defendant, and The injury was caused by a collision bewhich, through its attorney, was making de- tween plaintiff's car and a "work car," somefense ostensibly for defendant.
times called the “mogul.” That car was an (Ed. Note.-For other cases, see Trial, Dec. Dig. $ 10842.*]
ordinary box car fitted with a motor, con5. APPEAL AND ERROR (8 1060*)-DAMAGES (8
troller, and vestibules similar to those on 132*)-PERSONAL INJURIES-EXCESSIVENESS. plaintiff's car. There were doors in each end
While, it being apparent that under the and also in the middle of bowo sides. There evidence a verdict for plaintiff would have re
were windows on both sides, one near each sulted in any event, improper argument of plaintiff's counsel to prejudice the jury is not
end, but none in the end. There were five reversible error, as it would be in a close case, 16 candle incandescent lights in a ro the verdict, following it, in an action for loss of the center of the roof inside the car. It bad a leg, will not be allowed to stand for more
an arc headlight. than $10,000. (Ed. Note. For other cases, see Appeal and
Two witnesses for the defendant stated Error, Cent. Dig. 8 4135; Dec. Dig. $ 1060;* that the car extended 6 inches above the end Damages, Cent. Dig. 88 372–385, 396; Dec.
door, but plaintitt testified that it was about Dig. $132.*]
18 inches above the end door. There were Appeal from Circuit Court, Jackson Coun two lanterns lighted and sitting inside of ty; E. E. Porterfield, Judge.
the car on the floor. That car was in charge Action by Benjamin F. Kinney against the
of Wilbur F. King, who acted as motorman, Metropolitan Street Railway Company.
and with him were Jennings and Walters. Judgment for plaintiff, and defendant ap
That car had preceded plaintiff's car on the peals. Affirmed on condition.
same track. There is no evidence showing Action for damages for personal injuries. that plaintiff was aware of its presence Verdict for $20,000. There was a compulsory ahead of him. Plaintiff's car was going at remittitur of $5,000, and a judgment for $15,- 10 miles an hour, and he testified that the 000, from which defendant has appealed. car could have been stopped in 70 or 80 feet. Plaintiff's age is not shown. He has a wife Defendant's evidence was to the effect that but no children. He testified that he had ) it could have been stopped within 30 or 40
•For other cases seo same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
feet. The work car stopped at the place of gathered on the glass. Q. Could you have let accident for the purpose of unloading tools down one on the side. Did you have a side winand material for track repairs. There was dow that you could let down next to the front
window? A. Yes, sir; they were there, but no red light or light of any kind on the rear they were down when I had started. Q. They end of the work car. The rule and custom were down to start with ? A. Yes, sir. Q. of defendant required a red light on the rear Now, do you know whether or not the window of all cars at night as a danger signal. The in the front of No. 123 could be let down the
same as yours? A. Yes, sir; that could be let evidence as to such rule and custom was ob- down." jected to by defendant on the ground that
Mr. Ward, the conductor of plaintiff's car, such rule and custom were not pleaded. The
testified for defendant: objection was overruled.
"Q. When there was water on the windows King testified that he could give no ex
so that you could not see through them, what cuse for the absence of that red light. At was the proper thing to do under those circumthe trial it was a contested question as to stances? A. If you could not keep your glass whether the rear door of the work car was through it, the proper way would be to put the
clean in front of you so that you could see open at the time of the accident, and as to window down to the side of you, or, if you whether the lights in that car were then visi- could not see that way, the one to the front ble to the plaintiff. The plaintiff testified
It has been the custom; most all the
boys do that." that no lights of any kind were visible on the work car or in it either before or after The plaintiff did not testify as to whether the collision.
he looked through the open window on the Plaintiff's witness Diamond, a passenger right-hand side of the vestibule or through on plaintiff's car, stated that from the inside the closed window in front of him. He testiof the car he could see nothing ahead on ac- fied that he was looking constantly straight count of darkness. Mr. Roberts, another pas- ahead of him, and that as he left Smalley senger, witness for plaintiff, testified that he saw the headlight of a west-bound car at after the accident he went out of the car Beaumont, and that such car was from one and forward so that he stood by the side of to four car lengths east of the work car plaintiff's car near the front end and saw
when the collision occurred. The other eviwhat appeared to be reflected lights in the dence corroborated his statement as to the work car.
west-bound car. Jennings, one of the crew of the work car
Plaintiff testified that he did not see the and witness for the defendant, said: That, work car until he was within 15 or 20 feet after the car stopped, he was standing lean- of it, and that he then threw off the power ing out of the door on the north side, look and threw on the emergency brake, but the ing back at plaintiff's car, which at first was
collision followed so quickly that his foot about two blocks away, and said that he was caught and crushed, requiring amputa
He supposed it would stop and not run into the tion about five inches below the knee. work car.
That, when it got 50 or 75 feet was seven weeks in the hospital. The leg away, he hallooed, “Look out, the car is
heals at times, and then breaks out again. going to hit us,” and jumped. That Walters
The surgeon testified that another operation was in the west end of the work car, and would be necessary to make the wound heal ran out of the west door with a lantern and He was out of employment for about a year.
and prepare the leg for an artificial limb. got off the car. King testified that he heard Jennings cry a night watchman for the city at a salary
The week before the trial he began work as out, and, looking forward, saw the headlight of plaintiff's car through the door of the not shown. He was earning $70 or $75 å
month when hurt. work car, and that the collision immediately followed.
The negligence of defendant and plaintiff's
injuries were alleged in the petition as fol. One Sproul, a passenger, testified for the
lows: defendant, stating that he was chewing to
"That on the 11th day of June, 1909, at bacco, and that between Smalley and the place about 9:38 o'clock p. m. of said day, this plainof the accident he twice put his head out of tiff, acting in his capacity as motorman the window to spit, and saw the light in the aforesaid, was running said car from Kansas work car a block ahead. The evidence shows time of night it was very dark and raining, and
City, Mo., to Independence, Mo. That at said that it was raining at the time of the col- by reason thereof it was impossible for this lision; there was water upon the windows of plaintiff to see any object on said track at any the vestibule. The testimony for both sides distance from his car unless said object was was to the effect that rain on the windows equipped with lights or illuminated in such
manner as to give this plaintiff a warning and and on the glass of the headlight served to notice that said object was on the track. That obscure the vision and light.
at said time the defendant carelessly and negli
gently caused, suffered, and permitted its work King testified:
car, commonly known and hereinafter designat"Did you have your windows open or closed ed as a mogul car, to remain on said track in in front of you? A. I had it open. I start- front of the car which this plaintiff was opered with it closed, but I afterwards dropped it. ating, without having any lights or illuminations Q. After you dropned it, did you have any of any kind thereon to warn this plaintiff or difficulty in running your car on account of give him notice of the danger to which he was the rain ? A. No, sir. Q. Why did you drop subjected by reason of said mogul car being on it? A. Because the beavy mist that was falling said track. That at said time on said day this
plaintiff was operating his car at the usual and jury was overruled; that said case was being ordinary rate of speed, and, when said car as defended by the American Fidelity & Accident operated by this plaintiff arrived at a point be Company, being then and there represented by tween Smalley avenue and Beaumont stations, Mr. Chas. M. Howell, the above question was it collided violently with said mogul car, as asked for the purpose of informing the jury said mogul car was standing on said track as and calling attention of the jury to the fact aforesaid. That said collision was caused whol- that the case was being defended by an acc reason
e carelessness and negligence Linsurance company, which would be liable to of the defendant in causing and allowing said pay any judgment obtained in the case, and mogul car to stand on said track at said place, was prejudicial to the defendant." without any lights or illuminations being placed
Among the instructions the court gave the on said mogul car, and without warning this plaintiff in any manner of the existence of said following for the plaintiff : mogul car on said track at said place. That, "(2) The court instructs the jury that if you when said car so operated by this plaintiff col- find for the plaintiff you may, in assessing his lided with said mogul car as aforesaid, the damages, take into consideration the nature front vestibule of the car operated by this and extent of plaintiff's injuries, if any, sued plaintiff was crushed and mashed in, in such a for in this case, and the jury may further take manner that this plaintiff's foot and limb were into consideration whether or not said injuries, mashed, bruised, lacerated, and injured to such if any, are of a permaner
racter. The an extent that it became necessary for plain- jury may also take into consideration such tiff's right foot and limb to be amputated at a physical pain and mental anguish, if any, as point about four inches below the knee, and at you find and believe from the evidence plainsaid time and place, by reason of negligence of tiff will suffer in the future on account of said the defendant as aforesaid, this plaintiff receiv- injuries, if any, sued for in this case, and you ed a cut over the eye and on his nose, and this may assess his damages at such an amount as plaintiff's body was bruised, crushed, and injur- you find and believe from the evidence will ed, and by reason of the injuries which this fairly compensate him for his injuries, if any, plaintiff received at said time and place, and so received, not to exceed the sum of $50,000.” caused by negligence of defendant as afore- | During the argument of counsel for plainsaid, this plaintiff has been rendered a cripple for life, and by reason of said injuries this
tiff to the jury, the following occurred : plaintiff has suffered great bodily pain and men "I ask you, gentlemen of the jury, this questal anguish in the past, and will continue to so tion: Suppose that, instead of Mr. Kinney besuffer for the remainder of his life; and plain ing the plaintiff in this case, the woman who tiff says that, before he received said injuries, was a passenger on that car was the plaintiff he was a stout and able-bodied man and able here, and suppose that it was shown, as it has to work and earn $5 per day as result of his been shown here, that there were no lights on labors, but since he received said injuries, and the back end of that mogul car, and that it by reason thereof, that plaintiff has not been stopped dead on that track, and that it was a able to and has not performed work or labor rainy, dark, drizzling night, and that the car of any kind, and this plaintiff says that, by rea-'| upon which Kinney was riding ran into that son of the premises, his capacity and ability car and that woman's limb was cut off, what to work and earn wages have been greatly di- would your verdict be in that case? And, minished for the remainder of his life, and so ! gentlemen of the jury, let me ask you if that by reason of the carelessness and negligence was the case here, that Judge Johnson was deof the defendant, as aforesaid, this plaintiff fending, can't you hear-can't you hear the dehas lost and will lose the wages which he would fendant's witnesses coming on the stand and have been able to earn had he not been in- saying that you could not stop one of these cars jured by the wrongful carelessness and negli- | within 250 feet? Mr. Howell: I object to that gent acts of the defendant, as aforesaid. And because, under the law, the measure of neglithis plaintiff says that, by reason of the prem- gence is different, and therefor that argument ises, he has been compelled to expend and be- is improper. Mr. R. R. Brewster: I say it is come liable for doctor's bills, for medicine, for different, and I will tell you where it is difsurgeons, for hospital bills, and for nurse hire ferent. They were bound to exercise, as to a in the sum of $750, and plaintiff says that by passenger- Mr. Howell (interrupting): I obreason of the premises, he has been damaged in ject to any argument along that line. My obthe sum of $50,000."
jection is that it is different, and improper to
argue it. Mr. R. R. Brewster: The answer was a general denial and a
I will with
draw it, but I want to say this - The Court plea of contributory negligence.
(interrupting): The objection will be sustained. During the examination of the jurors on
| Mr. Johnson: I ask your honor to censure the their voir dire, plaintiff's counsel asked if
counsel for making that kind of argument to the
jury. Mr. Brewster: And I ask you too, if I any one of the panel was connected in a
am in the wrong. Mr. Johnson : The court business way with the American Fidelity & said you were in the wrong. The Court: The Accident Insurance Company. To which
arguments will be withdrawn from the considercounsel for defendant objected and asked
ation of the jury, and the jury will not consid
er them in arriving at their verdict. * * * I that the jury be discharged. The objection don't know how you feel about it, but here is was overruled.
the plaintiff, who is in the employ of the defendThe supplemental motion for a new trial
ant, their trusted employé, who went about
driving this great car, in whose charge they put contains the following:
the lives and limbs of your fellow citizens, and "Because in examining the panel of jurymen here he is injured in the performance of his dupreparatory to making the challenges and se-ty; here he is maimed and crippled as he lecting the 12 jurymen to try the cause, the stood at his post; and they are not saying to court, over the objections of the defendant, per- Kinney, “You were injured through the neglimitted Mr. Brewster, attorney for the plain- gence of this company, and we will gladly pay tiff, to ask the jurymen on their voir dire the you for it;' but they are saying, 'Come into following question: "Is any gentleman on the court and fight us; fight all our combined powpanel an officer or connected in a business wayer which we have at our command; fight our with the American Fidelity & Accident Insur claim agents; fight our legal department; fight ance Company? To which ruling of the court us through the courts; and then, if you can rethe defendant then and there excepted and ask cover for your crippled leg, you can have the ed that the jury be discharged, which excep-money.' Mr. Howell: I object to that, because tion, objection, and motion to discharge the I the argument is offered only for the purpose of
prejudicing the jury and not the argument of , work car. We do not undertake to decide any facts in this case. The Court: Objection whether, had there been no glare of the overruled. (To which ruling and action of the court the defendant then and there at the time headlight coming toward him, the plaintiff duly excepted, and still excepts.) Mr. Brews- would have been guilty of contributory neg. ter: I am not going to let these interruptions ligence in failing to look through the open interfere with the argument in this case, and window on his right and thus avoiding the you are not going to let them interfere with your mind in following the argument in this obscuring effect of the rain on the glass in
You perhaps know something of the front of him. It is an unquestioned fact tricks of the trade-- Mr. Howell (interrupt- that the west-bound car was, at the unlucky ing): I object to that. I am making proper and legal objections bere, all but one of which moment, coming westward from one to four have been sustained by the court, and I object car lengths east of the work car. It needs to the attorney arguing against my objections. no testimony of witnesses to establish in Mr. Brewster: I am talking about the last ob- court the confusing effects of such a headjection, which was overruled by the court, and which was not a proper objection, and which I light on one just in front of it or nearly so. say was made- Mr. Howell: I object to the At times it utterly obscures all objects not counsel arguing about my making objections and in the direct line between the observer and criticising me for making objections, calling it tricks of the trade, etc.
the light. If the attorney will
No one, however, would claim get within the record a little while, we will get that two trains of cars with locomotives along better. I want to know wliat the ruling should, when passing on parallel tracks, of the court is on this last objection. Brewster: I would like to know. Mr. a. W: slacken their speed because of the confusing Brewster: I would like to know what the ob- effects of the headlights. Nor should street jection is. The Court: The objection is over cars do so under ordinary circumstances. ruled. I will ask you to be very careful to keep Plaintiff was not required to slacken his within the record. (To which ruling and action of the court the defendant then and there speed because of the car coming in the oppoat the time duly excepted, and still excepts.) site direction. We hold that it was a quesMr. R. R. Brewster: I will say there were two tion for the jury whether, in the absence of objections that at least were wrong or the court the red light on the work car, and in the would not have overruled them, and I will say that I wouldn't let them interfere - Mr. How- rain, with the glare of the headlight in his ell (interrupting): I object to him arguing face, it was negligence in the plaintiff to fail about the rulings on objections either way, to see the work car. When different inferwhether sustained or overruled. It is not a matter of argument to the jury; that is my
ences may be drawn from undisputed facts, point. The Court: Don't argue any further the question of negligence should be submitabout objections."
ited to the jury. Paden v. Van Blarcom, 181 John H. Lucas, Boyle & Howell, Jos. s. Mo. loc. cit. 128, 74 S. W. 124, 79 s. w. Brooks, and Chas. N. Sadler, all of Kansas 1195; Powers v. Transit Co., 202 Mo. loc. City, and M. T. Prewitt, for appellant. Brew- cit. 280, 100 S. W. 655. ster, Kelly, Brewster & Buchholz, of Kansas
 II. It was not error to admit evidence
of the rule and custom of defendant to keep City, for respondent.
a red light as a danger signal on the rear
end of its cars at night, though such rule ROY, C. (after stating the facts as above). and custom were not pleaded. 1 Thompson [1, 2] I. Appellant has briefed this case on on Negligence, $ 420, holds that evidence as to the theory that it was the duty of plaintiff a custom is admissible on the question of to run his car slow enough so that it would ordinary care. It was said by this court in be possible for him to see any obstruction on Bailey v. Kansas City, 189 Mo. loc. cit. 514, the track in time to stop before striking it, 87 S. W. 1186: even though such obstruction had no light “If a cause of action is based directly on a or danger signal on it. We leave that ques- violation of a duty imposed alone by a municition undecided, for the reason that the fact pal ordinance, the pleading should set forth the
specific ordinance in hand because courts will is conceded that there was the ordinary arc not take judicial notice of its existence. City headlight on plaintiff's car. We will take it of Tarkio v. Loyd, 179 Mo. loc. cit. 605 [78 S. for granted that had plaintiff been looking 75: Mo. 192. But, if an ordinance of a city is
W. 797]; Inhabitants of Butler v. Robinson, through the open window on his right, and used as a mere matter of evidence, no good reahad there been no headlight of a west-bound son is perceived why it should be pleaded, for car in front of him, he could have seen the to plead evidential facts is bad, and, on principle, work car in time to have stopped before Railroad, 84 Mo. loc. cit. 121;
the rule applies to ordinances. Robertson v.
Danker v. striking it. In other words, he could have Goodwin Mfg. Co., 102 Mo. App. loc. cit. 731 seen the work car at the distance of 80 feet; [77 S. W. 338.] Now, the case under the fourth that being the distance within which plain- amended petition is not based on the violation tiff testified that he could stop his car un- violation of a duty imposed by general law.
of a municipal ordinance, but is based on the der the circumstances. Had there been no Therefore the objection in the form made was rain on the glass and no headlight of the properly overruled.” west-bound car in front of him, the plain The petition charges common-law neglitiff, by looking through the glass in front of gence. The existence of the custom was him, could have seen the work car at the merely an evidentiary fact tending to show distance of more than 80 feet. Under such lack of ordinary care on the part of defendcircumstances, it would have been contribu- ant. It was not necessary to plead such tory negligence in him to fail to see the evidentiary fact.
 IV. Complaint is made of the action, tion authorizing the recovery of not exceedof plaintiff's counsel in asking the jurors on ing $50,000, said: their voir dire whether they were connected "Yet the trial judge gave that instruction aftin a business way with the American Fideli- er he had heard the evidence in the case. He ty & Casualty Insurance Company. Mr.
doubtless labored under the erroneous impres
sion that it would have been error to have reHowell, the attorney for that company, was fused it. But whilst the long practice author. in court ostensibly as counsel for the defend-izes the giving of such an instruction, and ant, making a defense which was really in therefore it is not reversible error to do so behalf of his company, which was not a par: their verdict, and the question of excessive dam
when counsel ask it, yet when the jury return ty to the suit on the record. It is claimed ages arises, the probable effect of the instructhat it was an injustice to the Accident In- tion with its particular wording will be taken surance Company to call the attention of the into account.” jury to the fact that it was niaking a defense In Applegate v. Railroad, 252 Mo. loc. cit. and was liable to pay any judgment that 202, 158 S. W. 381, it was said: might be rendered in the case. It was held
"That form of instruction, whilst it has been in Meyer y. Mfg. Co., 67 Mo. App. 389, that held not reversible error, has been criticised as such an inquiry was proper.
& judicial hint that the court would approve  V. Exception is taken to the conduct a verdict in a sum mentioned in the petition.” of the plaintiff's counsel in his argument to With the petition calling for $50,000, and the jury. We have carefully gone through with an instruction authorizing it, in spite of the record in order to assemble all the facts the lower standard set by this court, plainbearing on that question, in order that it may tiff's counsel in his argument introduced into be comprehensively decided. The employés the case, in place of plaintiff, an imaginary of defendant fully supported the plaintiff as woman passenger. When called to order on to the facts of defendant's negligence. They the objection of defendant, he proceeded to testified that the rules and custom of the de- prejudice the jury against defendant's "claim fendant required a red light as a danger sig- agents." It is natural that juries are innal on the rear end of all cars at night. fluenced by the sufferings and afflictions of They testified as to the absence of such dan- the victims of such accidents. That is a fact ger signal. The one in charge of the work in nature of which the plaintiff's counsel has car testified that he could give no excuse for a right to take advantage in argument. The its absence. Those employés testified that it defendant must endure it, however severely was raining, and that rain on the window it may affect its interests. But such fact in glass obscured the vision. Only one witness itself furnishes a special reason why false for defendant was criticised by plaintiff's and unjust prejudice should not be stirred in counsel, or subject to criticism. That was the feelings of the jury against the defendSproul, who was not an employé of defend- ant. ant. His evidence as to seeing a light in the The conduct of counsel for the plaintiff in work car as he looked ahead about a block this case was most reprehensible. What can was to some extent corroborated by Roberts, be said in defense of a lawyer who causes a plaintiff's witness, who testified that after party to be summoned into court and then the accident, standing behind the work car proceeds to treat him as if he had no rights and by the side of the front end of plaintiff's which a court of justice is bound to respect ? car, he could see a reflected light in the work After the worst is said about the defendant, car. There is an utter absence of anything it still remains a fact that its conduct in the tending to show that defendant did anything preparation and trial of this cause was a in connection with the trial that was not model of propriety and fairness, as compared clean and legitimate.
with the methods of plaintiff's counsèl. It This court has repeatedly refused to sanc- is our duty, however, not to be swept away tion a judgment for more than $10,000 for by our indignation at such conduct. We bethe loss of a leg. Farrar v. Railroad, 249 lieve that, under the evidence in this cause, Mo. 210, 155 S. W. 439; Brady v. Railroad, a verdict for the plaintiff would have result206 Mo, 509, 102 S. W. 978, 105 S. W. 1195; ed in any event. Such being the case, the Newcomb v. Railway Co., 182 Mo. 701, 81 s. conduct of plaintiff's counsel is not reversiW. 1069. In the latter case $762 was al- ble error, as it would have been in a close lowed for the surgeon's bill in addition to case. This court has hitherto refused to afthe $10,000. We are not now holding that in firm judgments for damages for more than no case could a judgment for more than $10,000 for the loss of a leg. Farrar v. Rail$10,000 for the loss of a leg be upheld. In road, 249 Mo. loc. cit. 227, 155 S. W. 439; this case the plaintiff's petition asks for $50,- Brady v. Railroad, 206 Mo. loc. cit. 540, 102 000. The plaintiff's instruction to the jury S. W. 978, 105 S. W. 1195; Newcomb v. Railwas to assess the damages in accordance road, 182 Mo. loc. cit. 727, 81 S. W. 1069. with that instruction at not exceeding $50,- We do not hold that in no case should the 000.
judgment exceed that amount; but we do In Lessenden v. Railroad, 238 Mo. loc. cit. hold that a verdict following such misconduct 265, 142 S. W. 332, 337, Valliant, J., speak- of counsel for plaintiff will not be allowed ing of the Partello Case, 217 Mo. 615, 117 to stand for more than that amount. S. W. 1138, in which there was an instruc If the plaintiff will, within ten days, enter