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A man by the name of Thornberry was the conductor, and a man by the name of Hickein was the gripman on the west-bound or downgrade cars. A man by the name of Gurley was the gripman in charge of the east-bound car which struck the plaintiff. Said Thornberry, who was not working for the defendant company at the time of the trial, testified that the accident occurred as follows:

"I live at Sedalia, Mo.; have been since I was six. Worked as conductor for the Metropolitan Street Railway Company December 1, 1908. Saw Mr. Holzemer when he was struck by the on-coming car. I was on the grip car of the train going west on Twelfth. I was conductor, out there collecting fares. The gripman was S. R. Hickein. When I first saw Mr. Holzemer, he was coming from the north across the tracks in a southeast direction, crossed our tracks, and was in the clear, and I didn't pay any more attention to him at that time. When I last saw him he was on his hands and knees on the south track. At that time the upcoming car, I guess, was probably 15 or 18 feet from him. When I saw him in that position I hollered at Gurley, the gripman on the other car. I judge that other car went about 15 feet, and maybe more, after its struck Holzemer; all of that. There was no decrease in the speed of the car there that I could notice from the time I first noticed and hollered at Gurley until Holzemer was struck. The speed of the road there is eight miles an hour. I had been conductor there the last time 15 or 18 months. Never worked as a regular gripman, but had gripped some, at nights; just a trip or so every night. Have had occasion to stop a grip car coming up that grade, one night when a milk wagon had backed on the track, and we were in 12 or 10 feet of this wagon, and I stopped the car then. That was right at the top of the incline, about the same place where Mr. Holzemer was struck; I don't know whether that is called Belleview or Lincoln. The street is not cut through to the south. Travel coming up the hill crossed Twelfth street diagonally as a rule. I had gripped a trip or two at night ever since I have been over there; understood the appliances for stopping the car. They were ratchet brake and automatic brake. The ratchet brake was on the left-hand side of the grip. It works on the grip car wheel. The automatic brake works on the coach; that is on the right-hand side of the grip lever. The uphill car, Gurley's car, had a seated load; I should judge, 40 or more passen

There was evidence offered by plaintiff tending to show that the bell or gong on the east-bound car was not sounded by the gripman as the car approached the scene of the accident. Plaintiff's evidence tended to show that street cars coming up this upgrade with a load of passengers and the conditions similar to those under which the cars in question were being operated on the day of the acciIdent could be stopped by the gripman in a distance of less than 15 feet-some of the witnesses putting the distance at 6 feet, others at 8, and some at 10 and 12 feet. Plaintiff was 57 years old at the time of the injury. His occupation was that of boiler maker, and he worked for the Missouri Pacific Railway Company at Marquette, Kan., and had come to Kansas City from his home in Kansas the day before he received this injury. At the time of the injury, he was earning from $100 to $107 per month, and weighed 139 pounds, and was in good health. Since a question is raised as to the excessiveness of the verdict, it becomes necessary to state somewhat in detail the evidence concerning plaintiff's injuries. The evidence concerning the injuries received was uncontradicted. Plaintiff testified concerning his injuries as follows:

"Was at the hospital there from December 1, 1908, to January 26, 1909. * * * I got back to Marquette on the 5th day of May, 1909, and went back to work for the Missouri Pacific on the 11th day of May, 1909. I was working on engines, calking leaks, and putting staybolts in, and such like. It was hard, hot work. When I would get in the engine my head just seemed as though it would swell up. I was getting dizzy. Also my arm was so weak that I couldn't do the work right. The wipeman, Fred Sharkey, helped me do that work. Didn't work longer than a week, because I was not able to do the work; couldn't stand it. Done no work since. Wasn't able to work. I was struck down on my face, down along in here (indicating right side of face), through here (indicating) and down through here, at my nose; it was broken and my teeth were knocked out. I was cut on here (indicating); my right eye was injured. I was bruised in through here (indicating chest) some, bones broken here in the

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vertebræ, the third vertebra; the spinal column, the doctor called it. My right arm was broken in two places, hurt down around the chest, in through my back and right shoulder. Don't know how big a cut that was around my right eye. My face was split open. My head was all bandaged up, and I couldn't say how big it was. Must have been cut way in; my face was laid open. Jaw was broken (indicating right side of head). * * Think my jaw had to be wired up to hold it together. Don't remember when they put the wires in. Something wrong in back there. I can't move my head as I should, and if I go to sleep I lay in bed a couple of hours or more before I know which way to get my head to get to sleep; keep moving around; and finally, then, it seems like though it gets numb and I drop off to sleep. Am bothered with headache now in here (indicating top of head). Seems always a kind of whirling noise, humming like. Pain in the top of the head. Headache generally lasts about an hour; sometimes half a day. *This injury in my back, neck, the bones thickened out, whatever it is, I don't know. Yes, you can feel it (witness exhibits his neck to the jury, having taken off his collar and tie). The Court: Let each juror put his hand on the place there, so he can know, so that all have the same knowl edge. (Jurors do so.) Did not have that lump there in my spinal column before I was hurt. Was cut through on the upper lip, through there and through here (indicating), I guess just as far as the jaw. Nose was broken right here (indicating). Bothers me now. I can't breathe very well through it at the right nostril. Noticed that as soon as I got the bandages off my face. The cut near my right eye hurts the eye. I can't see very good with the eye, and there are times when it seems like though there was a needle run in, comes down kind of sudden like. Can't see to read very much out of that right eye. Looks like two or three lines where there is only one line. Eyesight was good before I got hurt. Am a little hard of hearing. Boiler makers generally are. I could hear 'most anything at that time, but now I cannot hear a thing out of the left ear. Don't know how many teeth I lost. Before I was injured I had 'most all my teeth, with the exception of two or three. While in the hospital they fed me with a little dish with a pitcher-like spout which I put in my mouth-kind of like soup. Guess I was fed on that about a week and a half or two weeks. My head was so bandaged up; they always kept all these bandages on so I couldn't open my mouth, and they had to feed me that way. The loss of my teeth bother me now in eating. Can't chew anything. My teeth lap over; they don't come down on one another so that I can bite them. Can't chew beefsteak -meat. Was fond of meat before. Don't know whether my face was bruised. For a long time it seemed as though there was a weight pressing down on top of my head. Whilst I was in the hospital I would try to look up and see who was pressing on my head, and there was nobody there pressing on it. At times feel a sensation like that now, maybe once a month, maybe sometimes oftener. Have no strength in my right arm. I know it because I can't use a hammer. Can't use nothing. It is weak. My arm was broken here at the wrist and also in around here (indicating part of lower arm). About where the arm was broken when I was a schoolboy is here (above the elbow). Back was hurt up around near the shoulder, between the shoulders. Noticed it hurting me during the week I worked at Marquette, from the shoulder over in there and around the chest. Chest hurts me now in here (indicating); feels bruised and sorelike all the time. Feels numb from the shoulder down to the arm here at times, maybe about every day; especially if I am walking a little ways, it seems as if there was some little weight pulling down here as though it was

heavy (indicating arm). Can't grip anything very hard in my right hand. Hammer handle keeps turning around in my hand. Prof. Schwartz at Ft. Scott treated me there for about a month, masseur treatment. That helped me. Before he treated me I couldn't move my arm any way, and my hand stood out like that, so I couldn't close my fingers at all. He treated me for my back and arm, and it got so I could close my hand. Was injured on my right leg above the ankle, in here (indicating). There was some flesh torn out there, almost two inches square or round, and it was bruised."

Dr. Neal, the acting superintendent of the General Hospital, who attended plaintiff when he was brought there for treatment on December 1, 1908, described the plaintiff's injuries as follows:

"He had some lacerations about the face, was bloody and dirty from evident contact with the dirt on the street, or something of that kind. I found he had a fracture of the jaw and cheek bone, double fracture of the forearm, and wounds on the face, on the chin, and on the cheek. We surgically cleaned the wounds. There was a fracture of the nose, and, as I recall it, there was a linear fracture extending across the temple into the skull from this wound Which Iafd open the cheek up into the eyebrow. These wounds were surgically cleaned and sutured (that is, sewed up) with drainage; and the fracture of the arm reduced. The man was put to bed; remained there probably seven or eight weeks. I had general supervision of his treatment. My two assistants, Dr. Bates, who carried out most of the treatment, and Dr. English, were also on the surgical service at that time. Dr. Bates is now at Adrian, Mo., about 60 or 65 miles from here. Dr. English, the last I knew of him, was one of the assistant physicians at the tuberculosis sanitarium at Mt. Vernon, Mo. I examined the plaintiff on the 23d of this month. Was present at the making of the X-ray picture; helped place Mr. Holzemer in the position that would little experience with the making of those plates, show the injury to the neck. Have had some and can read them to my own satisfaction, at around this cervical vertebra for evidence of inleast. Without reference to the plates, I felt jury there, and found there was a part of a cervical vertebra there in which there was no motion between the individual bones, and then they were fused or grown together, healed together in some way. The X-ray picture shows the condition present under those circumstances Don't reand the various bones as they are. call that he complained of any injury to his neck when he was brought into the hospital. thought that the man could not live but a few hours. He was in bad condition mentally and physically. I couldn't say how long it was before he was able to give any clear connected statement."

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The doctor then exhibited to the jury the X-ray plates showing the injury to the bones of the spinal column. The doctor also testified that he made an examination of the plaintiff about two years after the date of the injury and found the following conditions existing:

"I found that he had a healed fracture of the nose, of both nasal bones and the septum of the nose, with depression of the bridge. The septum of the nose is deviated to the right, almost closing the right nostril. The point of the nose is also deviated to the right. The septum is the middle bone and cartilage which separates the two nostrils. I found a scar of lacerated wound extending from the nasolabia fold, which extends from the nose down to the corner of the mouth, extending on the right side upward

outward irregularly to the corner of the right eye. Then upward and inward from that up to a point directly above the center of the upper lip, scar adherent to the malar or cheek bone, and also to the upper maxillary or jaw bone. The malar or cheek bone presents evidence of healed fracture. It is depressed, displaced, and the service (surface) is very irregular. The lower lid of the right eye is drawn downward and outward by the above-described scar. The outer portion of the lower right lid is averted; that is, turned outward, showing the red mucous membrane. Unable to fully close the right eye on account of the contraction of the lid. Tears slightly overflow on the face. Healed scar of lacerated wound extending from the center of the lower lip outward to a point threequarters of an inch below the left corner of the mouth, and thence irregularly downward and inward under the point of the chin to a point 11⁄2 inches below the right corner of the mouth. A scar adherent to the jaw bone, and the jaw bone, a palpable deficiency in the jaw bone on the right side at the point of the chin at the seat of old fracture. Only two teeth remain in the upper right jaw; the other six are missing. The upper right lateral and incisor (that is, the second ones from the center, and canine teeth); the teeth are broken off flush with the gum. The other four are entirely missing. Then the two molar or back teeth missing in the lower right jaw and the same in the left. The remaining teeth in the upper and lower jaw do not articulate accurately. That is, I mean they do not come together as they should on account of the fracture of the jaw. Some paralysis of the face muscles on the right side. Unable to pucker lips. Right corner of mouth drooped to a considerable extent. Unable to fully protrude tongue on account of above paralysis. Tongue, when protruded as far as possible, falls to the right. Speech seems thick and uncertain, and slightly halting. Has some difficulty in pronouncing some sounds of words containing 's,' 't,' and 'th.' Seems to have been entirely deaf in the right ear; partly so in the left. An old fracture of the right elbow of many years' standing. Healed fracture of the right ulna, just above the styloid process, but in good position. Styloid process is the bone of the wrist. Healed fracture of the right radius at the middle of the bone. That would be about the middle of this outer bone of the arm (indicating). Right forearm much smaller than the left, showing by the following circumferences: Circumference of wrist, right 6 inches, left 62; circumference of forearm five inches above the wrist, right 72, left 8; slight deviation of the axis of the eyes (that is, the line sight of the two eyes is not exactly parallel). Neck and spine, lateral curvature of the spine with convexity to the right extending from about eighth dorsal; that is, about the middle of the chest, up to the second cervical vertebra from the skull. Unable to fully flex head either anteriorly, posteriorly, or laterally; that is, he cannot throw his head forward or back or far to either side, as far as a normal man can. Found great difficulty either when he was remaining passive or flexing it himself, either active or passive motion. There is evidence of injury to all the cervical vertebræ except the first. All the cervical vertebræ from the second to the seventh, inclusive, are fused together and move as one bone. All the bones in this region surrounding the spinal canal are fused together. His thickness of speech comes from his inability to protrude the lips and tongue as a normal man does. There is some slight paralysis of the lips, slight paralysis of the tongue, which could come from these injuries. The right arm is smaller than the left. Normally it should be as large. Assuming plaintiff is weaker now than he was before he was injured, that could be the probable and natural result of his injury. With the amount of injury which was

shown in the vertebræ there, there must be some interference with his nerve supply to his arm, of course. His nervous system at the time of this injury received a distinctly severe shock, and that probably remains with him at the present time. Those bony injuries are permanent injuries. In my opinion the paralysis is permanent. It has been going now for two years.'

On cross-examination the doctor further testified:

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"He was pretty badly bunged up when they brought him out there. I thought then it was very questionable whether he would recover. examined him and found these broken bones, and set them, or it was done under my direction. He unquestionably received proper treatment. He responded to the treatment. I did not expect him to recover. Made as thorough examination at the time as his condition would permit. Don't recall that I found any dislocation of his neck or bones in his neck at the time. If I found a dislocation of the neck, I might have done something for it or might have let it run, depending largely upon the symptoms. There were no symptoms at the time pointing to anything wrong with the neck, that I recall. The two places on his arm that were broken were set either by myself or Dr. Bates, under my direction. They grew together in fairly good position; don't think I would like to say it is as strong as it ever was. His arm is in pretty good shape for a man who had his arm broken in two places. The union is permanent. The fracture of the nose has entirely healed. Lower jaw bone was broken in one place, and there was a fracture extending into the upper. Those have healed in fairly good shape, but he has not his teeth; they don't articulate properly, I think, from the position in which the jaw has healed. They healed fairly well in the position in which the bones were set. Q. Now, outside of Mr. Holzemer being disfigured in appearance, there is not anything so very much wrong with him to-day, is there? A. Yes, sir; there is. That fusing together of the bones of the neck is a matter which I would consider a very serious matter, had I had it myself. Outside of that there is difficulty in talking, partial paralysis of the tongue, and the few teeth remaining do not properly articulate, which must be very inconvenient. Gets around pretty well for a man 59 years of age; seems to have no great difficulty in locomotion. Does not look sickly. Outside of his injuries I should say he is a very good man-outside of all his injuries together."

The evidence on the part of the defendant tended to show that the bell or gong was sounded on the east-bound car as it approached the scene of the accident, and that it would take from 20 to 30 feet to stop the car under the conditions existing at the time of the accident. Some of defendant's witnesses testified that, if the car was on a level place and the grip was released from the cable and no brakes applied, the car would move 55 or 65 feet before it would come to a stop.

S. R. Hickein, who was the gripman on the downgrade car near the scene of the accident, testified that the accident occurred as follows:

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"When the accident happened I was going west down the hill at Twelfth and Summit. Thornberry was my conductor. * When I first saw Holzemer he was on the west-bound track, about Belleview, the north track on which our car was running. When I first saw him he was standing on the north side of the north track,

and I rung my bell and looked up and started across the track, and he kept in between the two tracks for a minute, and then he stepped right in front of this other car coming up the hill; it was right up to him, within two or three feet of him. Before the car struck him he got about to the center of the track, about over the steel (slot) rail. He didn't fall at any time there until after this car struck. After it struck him and stopped, I stopped my car right beside of it. The front end of my grip car was right even with the back end of his coach. I got off and went around the car to help the man that was hurt. He was lying on his back with his feet to the northeast, his head to the southwest, with his head back, the back of his head on the rail; the fender of the grip car, made of oak boards, resting right across his face."

On cross-examination he further testified: "When I saw Holzemer he was right on the north side of the north track, not over a couple of feet from the north rail. He was looking to the west, towards the depot. I rang my bell, and he turned and looked towards my car. When I rang, my car was about 100 or 150 feet from him. That is as near as I can say. I rang to warn him of danger, as was my duty. I did not see him until that time. He was then standing still, looking towards the west. He started south almost as soon as I could commence to ring the bell-stepped across the track.

* He glanced at me, commenced moving towards the south, got about in between the two tracks, hesitated, and then stepped right in front of the other car. He stopped just an instant in between the two tracks; I couldn't say whether he was nearer the north or south track. I was then about 75 feet from him, and began to set my brakes and ring the bell. He stopped there just momentarily and went right on. If 1 hadn't been watching, I couldn't have told he stopped at all. Stepped over, hesitated, and then went right on. Gurley was away two or three feet from him when he took a step. I didn't measure it; I just judged by the time it hit him. He couldn't have been over a foot or so from the south track when he made that step. The distance between these two rails is four feet, I believe. I judge he was about a foot from the south track when he stepped over, by the time from the time he moved until the car hit him. When Holzemer did step, Gurley's car was going about 8 miles an hour, and Holzemer was hit almost instantly as he got on the track. He stumbled over the drawhead of the grip car and fell over on the track, and we found him with his head on the south rail. His feet were on the slot rail between the two running rails. The fender was on his face, the part of it that reached over the south rail. When I rang my bell for this man, Gurley's car was then 25 or 30 feet west of Holzemer. When I first saw this man, I didn't notice Gurley's car at all. Didn't notice it until he started to walk south. Just noticed Gurley's car when he made the first step. The car was then 25 or 30 feet from the point of collision; and, when he got in between the two tracks, Gurley's car was then about 10 to 15 feet; and when, after hesitating, he stepped on the track, the car was right against him. He did get onto the track before the car hit him. That car, without any one under it, couldn't be stopped under 25 or 30 feet. Holzemer was dragged about eight feet. Before Holzemer made any step, and Gurley's car was two or three feet from him, I saw Gurley ringing his bell. He applied his brake about the time that he hit him."

S. L. Witton, a passenger on the eastbound car at the time of the accident, testi

fied as follows:

"I was on the east-bound car that struck Mr. Holzemer at Twelfth and Belleview coming up

the incline there, sitting on the front seat of the grip car on the south side. When I first saw Mr. Holzemer, he was north of the north track. I judge our car was then about 90 or 100 feet west of him. He was about 10 feet north of the north track, and I watched him until he stepped on the north track. Then I taken my eyes off of him and looked back and the car was striking him. I just throwed my eyes across the street south. At that time, the last time before the car struck him, I would judge he was 50 feet or more from the car. Then the last time I looked I seen a man-I don't know whether it was him or not-I seen a man struck and stepped in front of the car. I don't know how far we were away when he stepped in front, but I looked around just as the car struck him. He was just about halfway, the center of the car to the north side. With I would judge he would be, from what we call reference to the north rail of that track, I would judge he was about two feet over on the track. Q. * * Was he down on his hands and knees, or was he up? A. He was up. He fell to the south. He seemed to catch; I couldn't tell you what he caught on. He went down past my view then. I jumped off. There certainly was a bell rung on the car as he came up there. This man that was struck was not down on his hands and knees when our car was 15 or 20 feet away."

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On cross-examination he further testified: "When I took my eyes off the man he was on the north track, I would judge just about the center. He was heading southeast and kept going all the time I could see him. Did not at any time see him look west. When I took my eyes off him, when he was in the center of the track, I guess our car was 50 or 60 feet from him. At that time he was walking towards the track and just about the center of the north track, I would guess. When I looked again the car was striking the man. I saw he had his hand up."

Mr. Gurley, the gripman in charge of the car that struck plaintiff, did not testify.

M. M. Powers testified that he saw the accident; that at the time he was standing about 25 feet north of the place where the accident occurred. His testimony was as follows:

"When I first saw Mr. Holzemer he was right in front of the car a little bit to the north side of the center of the car. He was leaning forward with his hands throwed up a little bit. He had his hands throwed just like fixing to fall. It was done so quick I couldn't tell how far the car was away from him at that time. He was standing up; he was not down on his hands and knees in front of the car that I seen. Q. Did the car strike him just after you saw him? A. It would have been just the second before or right at that instant; I don't know. He was just leaning like he was falling. He was falling at that time, a little bit to the southeast. Then he was struck and went on the ground. Was drug about six or eight feet."

Defendant's testimony showed that the gauge of the street car tracks at that place was 4 feet 81⁄2 inches, and that the distance between the two rails was 4 feet 7 inches.

Instruction No. 1 given on behalf of plaintiff was as follows:

"The court instructs the jury that it was the duty of the gripman, in charge of the east-bound cable train mentioned in the evidence, to exercise the care of a reasonably prudent gripman to keep a reasonably vigilant lookout ahead for persons on or approaching the east-bound track