(No. 16480.)

years as a motorman. He stated that he

1. MASTER AND SERVANT (§ 240*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE.

As regards the question of contributory negligence of a motorman, injured by his car running into an unseen work car standing on the track, he was not required to slacken his speed because of a car coming in the opposite direction on the parallel track, with the confusing effect of its headlight.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 751-756; Dee. Dig. 240.*]

2. MASTER AND SERVANT (§ 289*)-INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE QUESTIONS FOR JURY.

Whether a motorman, injured by his street car running into a work car standing on the track, was guilty of contributory negligence in not seeing the work car, in the absence of a red light on the rear of such car, and in the rain, and with the glare in his face of headlight of another car coming towards him on the parallel track, is a question for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]

3. CUSTOMS AND USAGES (§ 18*)-NECESSITY OF PLEADING.

For admission, under a petition charging common-law negligence, of a custom, and its nonobservance, as evidence of negligence, the custom need not be pleaded.

[Ed. Note.-For other cases, see Customs and Usages, Cent. Dig. § 40; Dec. Dig. § 18.*] 4. TRIAL (8 1082*)-CONDUCT OF COUNSEL VOIR DIRE EXAMINATION.

It is proper, in a servant's action for injury, to ask jurors on their voir dire examination whether they were connected in a business with a certain insurance company, liable to pay any judgment obtained against defendant, and which, through its attorney, was making defense ostensibly for defendant.

[Ed. Note.-For other cases, see Trial, Dec. Dig. § 1082.*]

ing as a motorman on defendant's car No. 123 at the time of the alleged injury, at about 9:40 p. m., on June 11, 1909. His car was going east on the defendant's line from Kansas City to Independence. The place of the accident was in the country, about 100 feet west from Tullis station and 300 or 400 feet east of Smalley station. It is a double track; the south track was used for cars bound eastward, and the north track for west-bound cars. Those tracks were eight or ten feet apart. They were straight from Smalley to Tullis, and then curved to the northward; there was a moderate upgrade. Beaumont station was a distance of two There short blocks eastward from Tullis. was a cluster of ordinary incandescent lights on the trolley pole at Tullis. The evidence is conflicting as to whether they were burning. Plaintiff testified that they were not. One witness for defendant stated that they were. Plaintiff's car No. 123 was an ordinary trolley car with the usual vestibule inclosed in front with sheet iron waist high to the motorman as he sat on his stool. windows of the vestibule had three sash, which opened by being dropped. The center and left sash were up and closed. The right-hand sash was down and opened. There was an ordinary incandescent light, and also an arc light, called a "headlight," attached to the front of the vestibule of plaintiff's car. The arc light had a reflector to throw the light ahead along the track.

The

The injury was caused by a collision between plaintiff's car and a "work car," sometimes called the "mogul." That car was an ordinary box car fitted with a motor, con

While, it being apparent that under the evidence a verdict for plaintiff would have resulted in any event, improper argument of plaintiff's counsel to prejudice the jury is not reversible error, as it would be in a close case, the verdict, following it, in an action for loss of a leg, will not be allowed to stand for more than $10,000.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060;* Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. 132.*]

Appeal from Circuit Court, Jackson County; E. E. Porterfield, Judge.

Action by Benjamin F. Kinney against the Metropolitan Street Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed on condition.

Action for damages for personal injuries. Verdict for $20,000. There was a compulsory remittitur of $5,000, and a judgment for $15,000, from which defendant has appealed. Plaintiff's age is not shown. He has a wife but no children. He testified that he had

plaintiff's car. There were doors in each end and also in the middle of boun sides. There were windows on both sides, one near each end, but none in the end. There were five 16 candle incandescent lights in a row in the center of the roof inside the car. It had an arc headlight.

Two witnesses for the defendant stated that the car extended 6 inches above the end door, but plaintiff testified that it was about 18 inches above the end door. There were two lanterns lighted and sitting inside of the car on the floor. That car was in charge of Wilbur F. King, who acted as motorman, and with him were Jennings and Walters. That car had preceded plaintiff's car on the same track. There is no evidence showing that plaintiff was aware of its presence ahead of him. Plaintiff's car was going at 10 miles an hour, and he testified that the car could have been stopped in 70 or 80 feet. Defendant's evidence was to the effect that it could have been stopped within 30 or 40

feet. The work car stopped at the place of accident for the purpose of unloading tools and material for track repairs. There was no red light or light of any kind on the rear end of the work car. The rule and custom of defendant required a red light on the rear of all cars at night as a danger signal. The

evidence as to such rule and custom was objected to by defendant on the ground that such rule and custom were not pleaded. The objection was overruled.

King testified that he could give no excuse for the absence of that red light. At the trial it was a contested question as to whether the rear door of the work car was open at the time of the accident, and as to whether the lights in that car were then visible to the plaintiff. The plaintiff testified that no lights of any kind were visible on the work car or in it either before or after the collision.

Plaintiff's witness Diamond, a passenger on plaintiff's car, stated that from the inside of the car he could see nothing ahead on account of darkness. Mr. Roberts, another passenger, witness for plaintiff, testified that after the accident he went out of the car and forward so that he stood by the side of plaintiff's car near the front end and saw what appeared to be reflected lights in the

work car.

Jennings, one of the crew of the work car and witness for the defendant, said: That, after the car stopped, he was standing leaning out of the door on the north side, look

ing back at plaintiff's car, which at first was about two blocks away, and said that he supposed it would stop and not run into the work car. That, when it got 50 or 75 feet away, he hallooed, "Look out, the car is going to hit us," and jumped. That Walters was in the west end of the work car, and ran out of the west door with a lantern and

got off the car.

King testified that he heard Jennings cry out, and, looking forward, saw the headlight of plaintiff's car through the door of the work car, and that the collision immediately followed.

One Sproul, a passenger, testified for the defendant, stating that he was chewing tobacco, and that between Smalley and the place of the accident he twice put his head out of the window to spit, and saw the light in the work car a block ahead. The evidence shows that it was raining at the time of the collision; there was water upon the windows of the vestibule. The testimony for both sides

was to the effect that rain on the windows and on the glass of the headlight served to obscure the vision and light.

King testified:

"Did you have your windows open or closed in front of you? A. I had it open. I started with it closed, but I afterwards dropped it. Q. After you dropped it, did you have any difficulty in running your car on account of the rain? A. No, sir. Q. Why did you drop it? A. Because the heavy mist that was falling

gathered on the glass. Q. Could you have let down one on the side. Did you have a side window that you could let down next to the front window? A. Yes, sir; they were there, but they were down when I had started. Q. They were down to start with? A. Yes, sir. Q. Now, do you know whether or not the window in the front of No. 123 could be let down the

same as yours? A. Yes, sir; that could be let down."

Mr. Ward, the conductor of plaintiff's car, testified for defendant:

"Q. When there was water on the windows so that you could not see through them, what was the proper thing to do under those circumstances? A. If you could not keep your glass through it, the proper way would be to put the clean in front of you so that you could see window down to the side of you, or, if you could not see that way, the one to the front of you. It has been the custom; most all the boys do that."

The plaintiff did not testify as to whether he looked through the open window on the right-hand side of the vestibule or through the closed window in front of him. He testified that he was looking constantly straight ahead of him, and that as he left Smalley he saw the headlight of a west-bound car at Beaumont, and that such car was from one to four car lengths east of the work car

when the collision occurred. The other evi

dence corroborated his statement as to the west-bound car.

Plaintiff testified that he did not see the

work car until he was within 15 or 20 feet of it, and that he then threw off the power and threw on the emergency brake, but the collision followed so quickly that his foot was caught and crushed, requiring amputation about five inches below the knee. He was seven weeks in the hospital. The leg heals at times, and then breaks out again. The surgeon testified that another operation

would be necessary to make the wound heal He was out of employment for about a year. and prepare the leg for an artificial limb. The week before the trial he began work as a night watchman for the city at a salary not shown. He was earning $70 or $75 a month when hurt.

The negligence of defendant and plaintiff's injuries were alleged in the petition as follows:

"That on the 11th day of June, 1909, at about 9:38 o'clock p. m. of said day, this plaintiff, acting in his capacity as motorman as aforesaid, was running said car from Kansas time of night it was very dark and raining, and City, Mo., to Independence, Mo. That at said by reason thereof it was impossible for this plaintiff to see any object on said track at any distance from his car unless said object was equipped with lights or illuminated in such manner as to give this plaintiff a warning and notice that said object was on the track. That at said time the defendant carelessly and negligently caused, suffered, and permitted its work car, commonly known and hereinafter designated as a mogul car, to remain on said track in front of the car which this plaintiff was operating, without having any lights or illuminations of any kind thereon to warn this plaintiff or give him notice of the danger to which he was subjected by reason of said mogul car being on said track. That at said time on said day this

plaintiff was operating his car at the usual and ordinary rate of speed, and, when said car as operated by this plaintiff arrived at a point between Smalley avenue and Beaumont stations, it collided violently with said mogul car, as said mogul car was standing on said track as aforesaid. That said collision was caused wholly by reason of the carelessness and negligence of the defendant in causing and allowing said mogul car to stand on said track at said place, without any lights or illuminations being placed on said mogul car, and without warning this plaintiff in any manner of the existence of said mogul car on said track at said place. That, when said car so operated by this plaintiff collided with said mogul car as aforesaid, the front vestibule of the car operated by this plaintiff was crushed and mashed in, in such a manner that this plaintiff's foot and limb were mashed, bruised, lacerated, and injured to such an extent that it became necessary for plaintiff's right foot and limb to be amputated at a point about four inches below the knee, and at said time and place, by reason of negligence of the defendant as aforesaid, this plaintiff received a cut over the eye and on his nose, and this plaintiff's body was bruised, crushed, and injured, and by reason of the injuries which this plaintiff received at said time and place, and caused by negligence of defendant as aforesaid, this plaintiff has been rendered a cripple for life, and by reason of said injuries this plaintiff has suffered great bodily pain and mental anguish in the past, and will continue to so suffer for the remainder of his life; and plaintiff says that, before he received said injuries, he was a stout and able-bodied man and able to work and earn $5 per day as result of his labors, but since he received said injuries, and by reason thereof, that plaintiff has not been able to and has not performed work or labor of any kind, and this plaintiff says that, by reason of the premises, his capacity and ability to work and earn wages have been greatly diminished for the remainder of his life, and so by reason of the carelessness and negligence of the defendant, as aforesaid, this plaintiff has lost and will lose the wages which he would have been able to earn had he not been injured by the wrongful carelessness and negligent acts of the defendant, as aforesaid. And this plaintiff says that, by reason of the premises, he has been compelled to expend and become liable for doctor's bills, for medicine, for surgeons, for hospital bills, and for nurse hire in the sum of $750, and plaintiff says that by reason of the premises, he has been damaged in the sum of $50,000."

The answer was a general denial and a plea of contributory negligence.

During the examination of the jurors on their voir dire, plaintiff's counsel asked if any one of the panel was connected in a business way with the American Fidelity & Accident Insurance Company. To which counsel for defendant objected and asked that the jury be discharged. The objection was overruled.

The supplemental motion for a new trial contains the following:

"Because in examining the panel of jurymen preparatory to making the challenges and selecting the 12 jurymen to try the cause, the court, over the objections of the defendant, permitted Mr. Brewster, attorney for the plaintiff, to ask the jurymen on their voir dire the following question: Is any gentleman on the panel an officer or connected in a business way with the American Fidelity & Accident Insurance Company?' To which ruling of the court the defendant then and there excepted and asked that the jury be discharged, which exception, objection, and motion to discharge the

jury was overruled; that said case was being defended by the American Fidelity & Accident Company, being then and there represented by Mr. Chas. M. Howell, the above question was asked for the purpose of informing the jury and calling attention of the jury to the fact that the case was being defended by an accident insurance company, which would be liable to pay any judgment obtained in the case, and was prejudicial to the defendant."

Among the instructions the court gave the following for the plaintiff :

"(2) The court instructs the jury that if you find for the plaintiff you may, in assessing his damages, take into consideration the nature and extent of plaintiff's injuries, if any, sued for in this case, and the jury may further take into consideration whether or not said injuries, if any, are of a permanent character. The jury may also take into consideration such physical pain and mental anguish, if any, as you find and believe from the evidence plaintiff will suffer in the future on account of said injuries, if any, sued for in this case, and you may assess his damages at such an amount as you find and believe from the evidence will fairly compensate him for his injuries, if any, so received, not to exceed the sum of $50,000." During the argument of counsel for plaintiff to the jury, the following occurred:

"I ask you, gentlemen of the jury, this question: Suppose that, instead of Mr. Kinney being the plaintiff in this case, the woman who was a passenger on that car was the plaintiff here, and suppose that it was shown, as it has been shown here, that there were no lights on the back end of that mogul car, and that it stopped dead on that track, and that it was a rainy, dark, drizzling night, and that the car upon which Kinney was riding ran into that car and that woman's limb was cut off, what would your verdict be in that case? And, gentlemen of the jury, let me ask you if that was the case here, that Judge Johnson was defending, can't you hear-can't you hear the defendant's witnesses coming on the stand and saying that you could not stop one of these cars within 250 feet? Mr. Howell: I object to that because, under the law, the measure of negli gence is different, and therefor that argument is improper. Mr. R. R. Brewster: I say it is different, and I will tell you where it is different. They were bound to exercise, as to a passenger- Mr. Howell (interrupting): I object to any argument along that line. My objection is that it is different, and improper to argue it. Mr. R. R. Brewster: I will withdraw it, but I want to say this- The Court (interrupting): The objection will be sustained. Mr. Johnson: I ask your honor to censure the counsel for making that kind of argument to the jury. Mr. Brewster: And I ask you too, if I am in the wrong. Mr. Johnson: The court said you were in the wrong. The Court: The arguments will be withdrawn from the consideration of the jury, and the jury will not consider them in arriving at their verdict. * I don't know how you feel about it, but here is the plaintiff, who is in the employ of the defendant, their trusted employé, who went about driving this great car, in whose charge they put the lives and limbs of your fellow citizens, and here he is injured in the performance of his duty; here he is maimed and crippled as he. stood at his post; and they are not saying to Kinney, 'You were injured through the negligence of this company, and we will gladly pay you for it; but they are saying, 'Come into court and fight us; fight all our combined power which we have at our command; fight our claim agents; fight our legal department; fight us through the courts; and then, if you can recover for your crippled leg, you can have the money.' Mr. Howell: I object to that, because the argument is offered only for the purpose of

** *

He

"Yet the trial judge gave that instruction after he had heard the evidence in the case. doubtless labored under the erroneous impression that it would have been error to have refused it. But whilst the long practice authorizes the giving of such an instruction, and therefore it is not reversible error to do so their verdict, and the question of excessive damwhen counsel ask it, yet when the jury return ages arises, the probable effect of the instruc tion with its particular wording will be taken into account."

[5] V. Exception is taken to the conduct of the plaintiff's counsel in his argument to the jury. We have carefully gone through the record in order to assemble all the facts bearing on that question, in order that it may be comprehensively decided. The employés of defendant fully supported the plaintiff as to the facts of defendant's negligence. They testified that the rules and custom of the defendant required a red light as a danger signal on the rear end of all cars at night. They testified as to the absence of such danger signal. The one in charge of the work car testified that he could give no excuse for its absence. Those employés testified that it was raining, and that rain on the window glass obscured the vision. Only one witness for defendant was criticised by plaintiff's counsel, or subject to criticism. That was Sproul, who was not an employé of defendant. His evidence as to seeing a light in the work car as he looked ahead about a block was to some extent corroborated by Roberts, plaintiff's witness, who testified that after the accident, standing behind the work car and by the side of the front end of plaintiff's car, he could see a reflected light in the work car. There is an utter absence of anything tending to show that defendant did anything in connection with the trial that was not clean and legitimate.

This court has repeatedly refused to sanction a judgment for more than $10,000 for the loss of a leg. Farrar v. Railroad, 249 Mo. 210, 155 S. W. 439; Brady v. Railroad, 206 Mo. 509, 102 S. W. 978, 105 S. W. 1195; Newcomb v. Railway Co., 182 Mo. 701, 81 S. W. 1069. In the latter case $762 was allowed for the surgeon's bill in addition to the $10,000. We are not now holding that in no case could a judgment for more than $10,000 for the loss of a leg be upheld. In this case the plaintiff's petition asks for $50,000. The plaintiff's instruction to the jury was to assess the damages in accordance with that instruction at not exceeding $50,000.

In Lessenden v. Railroad, 238 Mo. loc. cit. 265, 142 S. W. 332, 337, Valliant, J., speaking of the Partello Case, 217 Mo. 645, 117 S. W. 1138, in which there was an instruc

In Applegate v. Railroad, 252 Mo. loc. cit. 202, 158 S. W. 384, it was said:

"That form of instruction, whilst it has been held not reversible error, has been criticised as a judicial hint that the court would approve a verdict in a sum mentioned in the petition."

With the petition calling for $50,000, and with an instruction authorizing it, in spite of the lower standard set by this court, plaintiff's counsel in his argument introduced into the case, in place of plaintiff, an imaginary woman passenger. When called to order on the objection of defendant, he proceeded to prejudice the jury against defendant's "claim agents." It is natural that juries are influenced by the sufferings and afflictions of the victims of such accidents. That is a fact in nature of which the plaintiff's counsel has a right to take advantage in argument. The defendant must endure it, however severely it may affect its interests. But such fact in itself furnishes a special reason why false and unjust prejudice should not be stirred in the feelings of the jury against the defendant.

The conduct of counsel for the plaintiff in this case was most reprehensible. What can be said in defense of a lawyer who causes a party to be summoned into court and then proceeds to treat him as if he had no rights which a court of justice is bound to respect? After the worst is said about the defendant, it still remains a fact that its conduct in the preparation and trial of this cause was a model of propriety and fairness, as compared with the methods of plaintiff's counsel. It is our duty, however, not to be swept away by our indignation at such conduct. We believe that, under the evidence in this cause, a verdict for the plaintiff would have resulted in any event. Such being the case, the conduct of plaintiff's counsel is not reversible error, as it would have been in a close case. This court has hitherto refused to affirm judgments for damages for more than $10,000 for the loss of a leg. Farrar v. Railroad, 249 Mo. loc. cit. 227, 155 S. W. 439; Brady v. Railroad, 206 Mo. loc. cit. 540, 102 S. W. 978, 105 S. W. 1195; Newcomb v. Railroad, 182 Mo. loc. cit. 727, 81 S. W. 1069. We do not hold that in no case should the judgment exceed that amount; but we do hold that a verdict following such misconduct of counsel for plaintiff will not be allowed to stand for more than that amount.

If the plaintiff will, within ten days, enter