author: LAMM, J.

text:
    THOMAS APPLEGATE v. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Appellant.
    Division One,
    July 10, 1913.
    1. PLEADING: Cause of Action: No Demurrer: Objection to Evidence: Liberally Interpreted. An objection tbat tbe petition does not state a cause of action, not made by demurrer, but by an objection to tbe introduction of any testimony, is never sustained because of a lack of certainty or definiteness in allegation, or because of informality in tbe statement of essential fact, or because a cause of action is defectively or obscurely stated, but is disallowed if, by reasonable intendment or fair implication from facts stated or by most liberal construction, the essential allegation may be pieced out or made clear by reasonable inference.
    2. -: -: Breach of Contract or Tort. Where plaintiff’s action against a railroad company is one sounding in tort, to recover damages for personal injuries received while attempting to stop a car with a pinch bar on a switch track in front of a warehouse so that beer hauled therein might be unloaded, allegations of a running arrangement between the railroad company, the brewing company and the consignee of the beer for unloading and storing the beer in the warehouse, brought in for the manifest purpose of showing plaintiff was an employee of such consignee and therefore was not a trespasser at the place of injury, .will not be held to convert the action into one for a breach of a contract made for his benefit, but will be held to fortify his action ex delicto to the point of showing plaintiff was at a place where he had a right to be and that defendant owed him a duty not to negligently injure him.
    3. NEGLIGENCE: Low Joint in Railroad Rails: Moving of Car by Pinch Bar: Question for Jury. Low joints in railroad tracks are a fruitful cause of accidents, and the negligent maintenance of them is actionable where injury results therefrom to those rightfully using the track. Where a carload of beer had arrived and was “spotted” on a side track in front of a warehouse to be unloaded; the consignee sent his employees, plaintiff among others, to unload it; to do that, it was necessary, as usual, to move the car so that its door would be opposite a certain door of the warehouse; when the brake was loosed, the car moved off slowly of its own gravity, the grade declining about one per cent; plaintiff’s assigned duty was to assist on the ground in controlling the movement of the car, so that it would stop opposite the door; to do this he took an iron pinch bar usually employed for that purpose, and put the beveled side next to the ball .Of the rail and in line with it, so that the flange of the wheel would miss it, but the tread would not, and in that way undertook to control the movement of the car by chocking the .wheel; as he was moving backward, chocking the wheel, suddenly the car made a quick lunge or jerk, ran up on the end of the bar, pressed it down on his boot top, threw him across the track and crushed his leg; the evidence is contradictory as to whether he employed the right method of chocking a car moving slowly of its own gravity down a slight grade, but it is substantial that he employed a usual and reasonably safe method; on the other rail there was a low joint that had been there for several months, five or six inches out of surface level, described as a “swinging” joint, with a “lip,” and there is substantial evidence that the lunge or jerk of the car was caused by this defective joint, which was on the other side of the car from him, covered by the car, and its existence unknown to him— the court could not say as a matter of law that plaintiff’s injury was due to his negligent use of the pinch bar, or that defendant’s negligence in maintaining the defective joint was not the proximate cause of the injury, but both questions were for the jury to answer.

      4. -: Specified in Petition: Identified in Instruction. Where the petition alleges specified negligence without a general charge, plaintiff is not to he confined in his instructions to a specification of the identical plan he adopted for doing the work he was engaged in when he was hurt. So that where the petition charged that plaintiff, in checking the movement of the car to another door of the warehouse, did so “by placing the end of a heavy iron bar between the rail and wheel,” an instruction telling the jury that if “plaintiff was engaged in blocking said car with an iron bar” and “was in the exercise of ordinary care,” etc., did not merely require the jury to find plaintiff was “in the exercise of ordinary care,” and did not substitute ordinary care for the petition plan of checking the car.
    5. -: Combined With Negligence of Others. It is not error to instruct the jury that if the negligence of defendant combined and united with the negligence of some one else to cause the injury, it would not defeat recovery. And such instruction is appropriate where defendant has pleaded that plaintiff’s injuries were due to other persons not in its employ.
    ¡8. -: Plaintiff’s Carelessness: Ignoring Issues. The court did not err in refusing an instruction asked by defendant telling the jury that “if you find from the evidence that the plaintiff received his injuries because of the carelessness of himself and others working' with him your verdict must be for defendant,” since it entirely ignores defendant’s negligence, attempts to connect the conduct of other workmen having nothing to do with that negligence with plaintiff’s injuries, and the issue of his contributory negligence was covered by another instruction.
    7.-: Inserting Words “Knowingly or Negligently” in Instructions. Where the instruction asked by defendant told the jury that “if plaintiff chose an unsafe way of doing what he undertook to do when there was a safe way open to him, the verdict must be for defendant, even though you should believe his reason for taking the unsafe way was his inexperience or ignorance,” the court did not err in inserting the words “knowingly or negligently” before the word “chose.” If he chose an unsafe way, it was negligence, and the word “negligently” neither added to nor subtracted therefrom; and the word “knowingly” merely clogged plaintiff’s case, since an inexperieinced or ignorant man is chargeable with the same due care that an experienced and skillful man is.
    S. EXCESSIVE VERDICT: $10,000: Loss of Leg. Compensation is the measure of damages for personal injuries due to negligence; and the age, earning capacity, the extent and nature of the injury and suffering, time lost, and complications, that arose, are all considered. Where plaintiff, aged 53 years, made a living by doing odd jobs of carpenter work, earning $25 to'$40 per month, lost his right leg below the knee, as a result of the accident, tliere being no complications and no other injuries, and $200 covered the charge for medical attendance, a verdict for $10,000, there being an instruction telling the jury to allow damages not exceeding the amount mentioned in the petition and improper argument not technically reversible error, is reduced to $7500.
    Appeal from Daviess Circuit Court. — Hon. Arch B. Davis, Judge.
    Affirmed (conditionally).

      ■ Dudley & Selby, Hall & Hall and J. G. Trimble for appellant.
    (1) The trial court erred in overruling appellant’s objection to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action against the defendant. Howsmon v. Water Co., 119 Mo. 308; Phoenix Ins. Co. v. Water Co., 42 Mo. App. 118; Manny v. Frasiers, 27 Mo. 419; Page v. Becker, 31 Mo. 466; Street & Johnson v. Goodale, Barger & Co., 77 Mo. App. 321; Harberg v. Arnold, 78 Mo. App. 239; State ex rel. v. Loomis, 88 Mo. App. 507; Lewis v. Land Co., 124 Mo. 684. (2) There was a total failure of evidence to establish the allegations of the petition and the demurrer to the evidence should have been sustained for that reason. There was no evidence that plaintiff was pinching the car, or blocking it, by placing the end of a heavy iron bar between the rail and the wheel, causing the car to move slowly and perfectly at the time of the injury as charged in the petition. The injury was the result of plaintiff’s own negligence, and for that reason he was not entitled to recover. Fulwider v. Gas, L. & P. Co., 216 Mo. 598. Plaintiff’s own negligence caused his injury and bars a recovery. Huss v. Bakery Co., 210 Mo. 53; Spiva v. Coal & Mining Co., 88 Mo. 75; Mill-sap v. Beggs, 122 Mo. App. 7; McIntosh v. Railroad, 58 Mo. App. 288; "Wray v. Light Co., 68 Mo. App. 380;. Beymer v. Packing Co., 106 Mo. App. 726; Junior v. Light & Power Co., 127 Mo. 84; Loving v. Railroad,. 128 Mo. 349; McCarty v. Hotel Co., 144 Mo. 397; George v. Manufacturing Co., 159 Mo. 333; Holmes v. Brandenbongh, 172 Mo. 53; Doerr v. Brewing Co.,. 176 Mo. 547; Smith v. Box Co., 193 Mo. 715; Dressie v. Railroad, 145 Mo. App. 163; Deg v. United Railways Co., 140 Mo. App. 461; Holland v. Railroad, 210 Mo. 338. The plaintiff conld have readily seen the conditions of the track if he had used ordinary care. He was a man of mature years, and a skilled workman, and was capable of judging the natural and probable effect of moving a heavily loaded ear over an uneven track with low joints. He could have seen the condition. Moore v. Railroad, 176 Mo. 528; Cooley on Torts (2 Ed.), 812; "Wheeler v. Wall, 157 Mo. App. 44; 7 Am. & Eng. Ency. Law (2 Ed.), 385, 386; Kinney v. Onsted, 113 Mich. 96; Gibson v. Loinard, 143.' Ill. 182, 36 Am. St. 376; Plummer v. Dill, 156 Mass. 426, 52 Am. St. 463; Sparks v. Siebrecht, 45 N. Y. Supp. 993; Atkins v. Transportation Co., 182 Ill. 237;. Brisco v. Railroad, 103 Ga. 224; Quinn v. Railroad, 162 Ind. 442; Hogan v. Railroad, 150 Mo. 55. To entitle plaintiff to recover it devolved upon him to-prove that the particular act of negligence complained of caused his injury. McGee v. Railroad, 214 Mo. 530; Glaser v. Rothschild, 221 Mo. 180; Kinlen v. Railroad, 216 Mo. 145; Decker v. Railroad, 149 Mo. App. 537. The condition of appellant’s unloading track was not the proximate cause of his injury, hut his-own negligent and inexperienced manner in using the bar, for which appellant was not liable. Richmond v. Railroad, 133 Mo. App. 463; Saxon v. Transfer Co.,. 145 Mo. App. 693; Lymon v. Dale. 156 Mo. App. 431 Haley v. Transit Co., 179 Mo. 30; Monday v. Railroad,. 136 Mo. App. 692. (3) There was not sufficient evi-Hence to support or authorize the giving of plaintiff’s instruction 1. It ignores both the pleadings and the evidence. The plaintiff in the petition specifically alleges the manner in which he was attempting to stop, or block the car; “that is, by placing the end of a heavy iron bar between the rail and wheel.” Watson v. Railroad, 133 Mo. 251; McCarty v. Hotel Co., 144 Mo. 402; McManamee v. Railroad, 135 Mo. 440; Waldheir v. Railroad, 71 Mo. 515; Schneider v. Railroad, 75 Mo. 295. The plaintiff alleges just what he was doing and just how he was doing at the time of the injury, he cannot be permitted to recover under an instruction submitting a general allegation of negligence, on the part of appellant, and of ordinary care on his part. Fulwider v. G-as, Light & Power Co., 21.6 Mo. 597; Boyd v. Transit Co., 108 Mo. App. 303. (4) The damages assessed by the jury was excessive, and the result of passion and prejudice engendered by sympathy and the inflammatory language and conduct of plaintiff’s attorney in his closing argument. Clifton v. Railroad, 232 Mo. 714.

      Platt Hubbell and George Eubbell for respondent.
    (1) Plaintiff’s petition states facts constituting a cause of action. The plaintiff’s cause of action does not arise by reason of a breach of any express contract. The contracts between the defendant, the brewery company, Davis, and the plaintiff, were proved simply to show that the plaintiff was rightfully and legally working in connection with this switch track, and working in connection with defendant’s business. (2) Defendant owed the plaintiff the duty to keep and maintain its switch track in a reasonably safe condition for the uses that the plaintiff might properly make of it. 23 Am. & Eng. Ency. Law (2 Ed.), p. 739; 1 Thomp. Neg., sec., 978; 2 Tb., sec. 1841; Sykes v. Railroad, 178 Mo. 712; Young v. Oil Co., 185 Mo. 666; Railroad v. Hummel, 167 Fed. 89. If the track was negligently constructed, as alleged, and that condition occasioned the injuries alleged, defendant would he charged with such negligence. Railroad v. Bryant, 66 S. W. (Tex.) 804; Railroad v. Rodes, 102 S. W. (Ky.) 322; Railroad v. Farris, 100 S. W. (Ky.) 870; Dooley v. Railroad, 110 S. W. (Tex.) 135. Tateman v. Railroad, 96 Mo. App. 448; 3 Elliott on Railroads, sec. 1265c; Butler v. Railroad, 155 Mo. App. 297; Glaser v. Rothschild, 221 Mo. 185; Lessenden v. Railroad, 238 Mo. 247. An injury caused by ‘‘low joints” is within the foregoing rules. Railroad v. Benton, 132 Fed. 461; Shugart v. Railroad, 133 Fed. 505; Houts v. Transit Co., 108 Mo. App. 686; Dumphy v. Stock Yards, 118 Mo. App. 516; Hach v. Railroad, 208 Mo. 581; Railroad v. Shaughnessy, 81 S. W. 1026. (2) Plaintiff proved the facts hypothesized in his first instruction. Plaintiff alleged that the- defendant negligently maintained a defective switch track. Whether this allegation is true, was properly submitted to the jury. (3) Choice of ways or method of doing the work, is not negligence, unless the choice is knowingly or negligently made. Browning v. Railroad, 118 Mo. App. 449; Well v. Moran Bros. Co., 104 Pac. (Wash.) 174; Olson v. Erickson, 102 Pac. (Wash.) 400.
   LAMM, J.

Plaintiff began his action in the Grundy Circuit Court for personal injuries' grounded on negligence. The venue was changed to Daviess on •defendant’s application. From a judgment on a verdict for $10,000, defendant, on apt and due steps, appeals. An outline of the case is this: .

A brewing company of Quincy, Illinois, built a ■cold-storage beer warehouse hardby defendant’s spur track (known as a “team’.’ track) at Trenton, Missouri, on defendant’s right of way. This warehouse had three 'doors next to the team track and was built under a contract between defendant and said brewing" company. Presently, under a contract between brewing company and one Davis, a beer dealer at Trenton, said Davis got the use of the warehouse to store beer purchased by him from the brewing company in car load lots and carried by defendant from Quincy to-Trenton and delivered at the warehouse at so much per car. The details of these contracts are unimportant except as evidence of a running arrángement for the mutual benefit and profit of defendant, Davis and brewing company. Certain kinds of loaded freight cars (among them beer cars) consigned to Trenton over defendant’s railroad were customarily stored on this team track to be unloaded by their respective consignees. Under the running arrangement between brewing company, defendant ánd Davis, when a car of beer came in it was “spotted” on its team track, so that the car door would be opposite the east or west door of the warehouse. The brake was then set and, by use of a plank runway from the car door to the warehouse door, the beer would be unloaded into the warehouse, kegs in one door and the bottled goods in another. The warehouse was so arranged that this could only be done by moving the cars. 'When defendant spotted such car, as aforesaid, the unloading was done by Davis. Any spotting of the car contemplated, however, that there would be a necessity to move the car from one door to the other of the warehouse, and to do that man power was necessary —the team track being a gravity track on a grade of one per cent fall to the east.

On the 8th day of May, 1909, defendant company “spotted” a car load of beer, consigned to Davis by said brewing company, in front of this warehouse on its team track in such way that the car door was-opposite the west door of the warehouse, set the brake and left the car there to be moved as necessary, unloaded and then reloaded by Davis from tbe warehouse with “empties” ready for resbipment. This' car was loaded in such way that to unload its contents into tbe warehouse it was necessary to move it by manpower, as usual, from one door to tbe other, say nineteen feet. Tbe unloading as well as tbe moving were wholly performed by Davis’s men, as usual. Plaintiff was an employee of Davis in and about moving and unloading tbe car as were all others so engaged. In moving this car it gathered speed unexpectedly en route, and ran on a pinch bar used by plaintiff to chock it. The pinch bar thereat caught the top of plaintiff’s boot leg and crushed his right leg down, mashing the bone of that leg between the knee and ankle, making immediate amputation necessary.

More than one ground of negligence is averred in the petition, but only one was put to the jury, namely, the negligent condition of the track.

So, a swarm of exceptions were saved. at the trial, but defendant does not here press rulings thereon as reversible error except as follows:

First: In overruling an objection to the introduction of any evidence, for that the petition did not state facts sufficient to constitute a cause of action.
Second: In refusing a mandatory instruction at the close of the case (and herein of contentions (1) that plaintiff’s own negligence caused his injury, and (2) failure to prove that the pleaded negligence caused his injury, and (3) because the condition of the track was not the cause of plaintiff’s injury).
Third: In giving plaintiff?s instruction number one, for that the evidence did not support -it and it ignores both pleadings and evidence.
Fourth: In giving plaintiff’s second and fourth' instructions.
Fifth-. In refusing defendant’s third and fourth instructions as asked and in changing them by inter-lineation and giving them as changed.
Sixth-. In refusing defendant’s second instruction.
Seventh: Because the damages are - excessive (and herein of passion and prejudice engendered hy inflammatory language and conduct of plaintiff’s-counsel in his closing argument).

It is obvious that those questions fall logically under four heads, viz: (1) The sufficiency of the petition; (2) the sufficiency of the evidence to make a case (and herein of the mandatory instruction); (3) the instructions; and (4) the excessiveness of the verdict.

We will dispose of the appeal under those subheads. Sufficient of the pleadings, evidence and other parts of the record to present the case understandingly will - appear in connection with the determination of those questions seriatim.

■ I. Of the sufficiency of the petition.

(a) No demurrer was filed, hut counsel objected to the introduction of testimony, for that (they argued then and now) the petition did not state facts sufficient to constitute a cause of action. On the disallowance of the objection (which happened), the point was. saved.

That way of testing the sufficiency of a petition is not entirely without the pale of correct practice, and this is so by virtue of the doctrine of this court that a petition so lame as to state no cause of action at all presents a jurisdictional defect. [East St. Louis Ice & Cold Storage Company et al. v. Kuhlmann, et al., 238 Mo. 1. c. 702 et seq.] Such course smacks of lying-in wait, comes late after all invited preparations for trial are made on issues of fact joined, and is tolerated, bnt not favored.

The rnle to go by on such belated objection is this: It is never sustained because of lack of certainty or definiteness in allegation, or for informality in the statement of essential fact, or because a cause of action is defectively or obscurely stated. Such objection is disallowed if (by reasonable intendment or fair implication from facts stated or by most liberal construction) the essential allegation may be pieced out- or made clear by reasonable inference. It has been held that the rule applied in disposing of motions in arrest is applicable to' such objection wherein the grace of- every implication is allowed to aid the verdict and mere ambiguity in allegation is resolved in its favor. [Vide the Kuhlmann case, supra, and authorities therein cited and discussed.] It is by that rule the petition must be judged.

(b) ' The petition charges, in substance, that plaintiff is a domestic railroad corporation, in the times in hand owning and operating a railroad and its appurtenant sidetracks, cars and locomot-*ves as a eoniinon carrier of passengers and freight for hire from Quincy to Trenton, That a named brewing company of Quincy, Illinois, was engaged in the manufacture, sale and storage of beer, having one D'avis as its representative at Trenton; that for mutual purposes said company, Davis and defendant maintained a warehouse for the storage of beer at Trenton appurtenant to defendant’s sidetrack there; that the beer was shipped in carload lots over defendant’s railroad by said brewing company to said warehouse where it was unloaded and stored; that there was an arrangement between the brewing company, defendant and Davis that defendant should provide suitable cars to' ship the beer and' provide a suitable sidetrack from its main line to said warehouse, where the car should remain and be moved to and fro in front of the warehouse to be unloaded; that in unloading such cars it was necessary to move them along said sidetrack from one door of the warehouse to another by “man power” and by the aid of gravity, all of which defendant knew and intended. That in performing its duty in the premises defendant placed a car of beer for Davis on its sidetrack in front of said warehouse on May 8, 1909. (The pleader went on to make averments relating to the legal duty of defendant to furnish a reasonably safe car with reasonably safe brakes to control the movement of the car, but, as plaintiff ■abandoned those charges below, we omit them.)

The petition continues as follows:

“It was also the legal duty of the defendant to furnish and provide for the use of the plaintiff, and ■others so engaged, a switchtrack and sidetrack that was reasonably safe for the work and purposes aforesaid, and to keep and maintain said . . . sidetracks in a reasonably safe condition for use and operation, and in a reasonably safe condition for transacting said business and doing said work.
“The defendant then and there negligently failed to perform said duty and negligently furnished and provided a car” (here follow averments relating to the car, then follows this:) “and the defendant’s switch-track and sidetrack on the south side of said warehouse, and in front of said warehouse was then and there defective and dangerous and had five ‘low joints’ in it in the space of sixty feet on the south side of said warehouse and in front of the same, which low joints caused a car to move and proceed with jerks, jumps and bounds and with great violence, instead of moving in the ordinary way, and the defendant then and there negligently kept and maintained said switchtrack and sidetrack in said condition," at the place and point aforesaid. The defendant knew of said defective conditions of said . . . sidetrack, and might have known of said condition by the exercise of ordinary care and diligence. The plaintiff did not know of said defective condition of . . . said track.
‘ ‘ On May 8,1909, while the plaintiff was assisting in unloading beer from said car, and while the plaintiff was acting nnder the orders of said Brewing Company and said Charles Davis and their representatives and while the plaintiff and other servants were moving said car from one door to another of said warehouse, and while said car was moving slowly to the east, of its own weight down said grade, and while one Ora Davis was trying to hold said car with said brake and acting for said Brewing Company and Charles Davis, and while the plaintiff was in the exercise of ordinary care, and while the plaintiff was at the east end and south wheel of said car ‘pinching it’ — or ‘blocking it;’ that is, by placing the end of a heavy iron bar between the rail and the wheel, causing the car to move slowly and properly — the wheels of said car came to and passed over and down said low joints, gave a sudden and violent lurch and plunge to the east, jerked said bar out of the plaintiff’s hands and passed over said bar and pressed the plaintiff’s right leg between said bar and the south rail and cut off the plaintiff’s right leg below the knee, rendering amputation necessary, which movements of said car and which injury to the plaintiff was caused by the negligence and negligent acts of the defendant, as aforesaid.
“By reason of plaintiff’s leg being so cut off, and said injury, plaintiff’s ability to labor has been permanently impaired aiid lessened; and his general health greatly impaired, and plaintiff has thereby suffered great bodily pain and mental anguish and will continue to suffer the same in the future.
“The plaintiff has expended large sums of money and incurred large indebtedness for medicines and medical treatment and operations and has lost and will lose his time and the earnings and profits of his labor, and has been physically disfigured and made a cripple for life.
“Wherefore, plaintiff says he has been damaged to the amount of thirty thousand dollars, for which he prays judgment, together with his costs in this behalf laid out and expended.”

(Note: We may say in passing that, outside of ■conventional admissions, the answer denied the aver-ments of the petition and pleaded affirmative matter, to-wit, that plaintiff’s injury was alone due to his own negligence and that of his fellow workmen (none of whom were defendant’s servants) in moving and handling the car of beer; and the reply traversed the new matter.)

The indictment of the petition does not go so much to an absence of an essential averment, or vice of form, as it does to what counsel conceive is a fundamental misconception of the law on plaintiff’s part. Counsel construe the petition as counting on the contractual running arrangement between , Davis, the brewing company and defendant, hence that the suit is one for the breach of a contractual duty.. They argue that plaintiff was a stranger to that contract and not privy to its terms or considerations; that on the face of the petition the arrangement was not made for the benefit of plaintiff and therefore defendant owed plaintiff no contractual duty to be breached. On that contention we rule as follows:

There is a doctrine of the law to the effect that before a promise made by A to B can be sued on by C, a stranger to the contract, it must be made for the benefit of C and be so intended by the contracting parties. [Howsmon v. Trenton Water Company, 119 Mo. 304; Lewis v. Brookdale Land Company, 124 Mo. 672; Roddy v. Railroad, 104 Mo. 234; Street & Johnson v. Goodale, Barger & Co., 77 Mo. App. 318; and Harberg v. Arnold, 78 Mo. App. 237.]

We find no fault with the principle announced. .But it is quite inapplicable to a case sounding solely in tort, as here. Plaintiff did not sue ex contractu, but ex delicto. He did not ask damages for the breach ■of contractual duty, but for breach of a common law duty. The function of that part of his petition referring to the contractual running arrangement between brewing company, Davis and defendant for their mutual benefit and profit, was not -a statement of facts ■constitutive of his cause of action, but was merely by way of prelude or inducement intended to put plaintiff in such relation with the facts as to sue at all, namely, to show that he was not a trespasser on defendant’s brack, but was an invitee to whom defendant owed the primal duty all men lie.under, viz., of exercising ordinary care.

The law is that if plaintiff was where he had the right to be and where he was intended to be by defendant in transacting legitimate business in unloading ■one of defendant’s cars (that is, where he was expressly or impliedly invited to be, Glaser v. Rothschild, infra), then defendant owed him a duty essentially differing in degree from that it owed a trespasser or bare licensee, to-wit, a duty not to injure him by wantonness or some form'of active mischief. Contra, it owed him the duty to maintain its team track in a condition reasonably safe for the uses it was intended by defendant that those unloading the car, to-wit, the employees of its customer, would naturally and properly put it to. For a breach of that common law duty an action lies. [2 Thomp. on Neg. (Ed. 1901), sec, 1841; 1 Ibid., sec. 978, and authorities cited; Sykes v. Railroad, 178 Mo. 693; Young v. Waters-Pierce Oil Company,. 185 Mo. 634; Tateman v. Railroad, 96 Mo. App. 448; Butler v. Railroad, 155 Mo. App. 287; Glaser v. Rothschild, 221 Mo. 1. c. 185-6. In a late case, Clark v. Railroad, 234 Mo. 1. c. 417 et seq., both, the rule and its reason are well stated and discussed by Woodson, J.]

After sifting the philosophy of the doctrine as gathered from precedents, a standard treatise states the sum of the matter to be that (1 Thomp. on Neg. (Ed. 1901), sec. 978, supra):

“The owner or occupier of premises manifestly owes to the employees of his customer, .coming upon his premises to do business for their employer, the same duty that he would owe to their employer himself. Thus, the owner of a coal yard, in which a railroad track was built for the mutual interest of the owner and the railroad company, was held to owe to an employee of the railroad company, while riding on a freight car in the coal yard, with the knowledge of the servants of the owner of the yard, the degree of care which an ordinarily prudent person would exercise in favor of another under like circumstances. So, a railroad company permitting another railroad company to use its tracks, is bound to exercise ordinary care in the construction and maintenance of its bridges, to the end of protecting the servants of the lessee company; and this will require it to maintain its bridges in such a manner as to permit, a safe passage through them, in the usual way, to cars which are in common use upon other roads, although such cars are higher than the cars of the lessor company. "Where the owner of premises, or one carrying on a business, provides something to a customer, for the use of the servants of the latter in carrying on the business of the customer with the former, a servant of the customer injured by the defective condition of the thing so provided, may have an action against the person furnishing it to his master; for it was actually intended by the defendant to be used by the .servants of his customers; and if. the servant’s employer, as such a customer, was invited by the defendant to use it.”

It is on such premises we conclude that the petition stated facts constituting a cause of action, hence that the objection to introducing any evidence was well ruled below.

II. Of the sufficiency of the evidence (and herein of defendant’s refused mandatory instruction).

Defendant did not demur to the evidence at the close of plaintiff’s case in chief, but went on and put in its case elaborately. When able and veteran counsel take that course, may not an appellate court indulge the notion that the first impression of counsel, struck off in the very heat and glow of the work, was that plaintiff had made a case for the jury it was called on to meet? Why go on and defend against nothing? May not a safe conclusion be that the strength of defendant’s present position is somewhat sapped by its failure to act sooner? Is that course not letting defendant impugn itself by pitting its final affirmative claim over against its early silence? May not one in law, as in the drama, “Look here on this picture — and on this?”

But the case need not break on fanciful conceits. Defendant finally asked a mandatory instruction for the jury to find in its favor at the close of the whole case, and now argues that the evidence did not make a case to go to the jury at all. That contention seeks the facts. Avoiding details, spread throughout a voluminous record, attend to those facts not already -stated:

Plaintiff put in proofs tending to show that the ■custom was to unload beer on the day the car was spotted. Accordingly on the day in question when Davis was notified his carload of beer had arrived and was spotted at the warehouse, he sent his employees to unload it. Plaintiff was a picked-up man. In the-course of the business it was necessary, as usual, to-move the car so that its door would be opposite the-east door of the warehouse, instead.of the west door where defendant left it. To that end, the brake being tig’ht set, it was necessary to loose it. One of Davis’s-employees got on the car and, failing to release the-brake by twisting the hand wheel, loosed it by knocking .the dog from the cogs of the raehet wheel. Such-course was allowable when there was call for it, as-here, and there is no testimony tending to show that it had aught to do with the accident. One witness testified that sometimes when a brake is set very tight on a standing car, the car gathers up, and when the brake-is loosed there is a movement or spring of the car, but he said all cars did not act that way and there is no testimony this one did. Contra, when the brake was loosed the car moved off slowly by its own gravity for several feet. Plaintiff’s assigned duty was to assist on the ground in controlling the movement of the car so that it would stop at the right spot opposite- the other door. To do this he took an iron pinch bar usually employed for that purpose — a bar about five or six feet long, beveled on one side at the heavy end. A pinch bar is a kind of crow-bar. He put the beveled side next the ball of the south rail and in line with the rail, he says, so that the flange of the wheel would miss it hut the tread or rim of the wheel would come in contact with the beveled edge of the bar, and, standing outside the south rail of the track, he undertook to control the movement of the car by chocking it with the bar. The employee who had loosened the brake was still on top of the car. manipulating the brake wheel. Everything was well for three or five feet, plaintiff was moving backward facing the car and chocking it when suddenly it made a quick lunge, or jerk, ran up on the end of the bar, smashed it down on plaintiff’s boot top, threw plaintiff down across the track and crushed his leg practically off. There are. no prescribed rules for chocking cars. It seems to be left to the common sense of the employee. Experienced railroad men testified pro and con on . the. issue whether the plan plaintiff says he adopted was a proper one in chocking a car moving slowly down a slight grade on its own gravity. Some of them were of opinion it was and some -were of opinion it was not. We do not gather from defendant’s testimony precisely what the proper plan would be for chocking under such circumstances. Some witnesses said one thing, some another. But there was emphatic and believable testimony that the plan adopted by plaintiff was a usual and reasonably safe plan if the track was in order. Plaintiff had little or no experience in chocking cars, in fact was a carpenter and not a railroad man. To sum up the matter, allowing to defendant the most favorable view possible it cannot be said on this record that it made a case of a negligent use of the bar as a matter of lato. The most that can be said for defendant is this: it succeeded in getting in testimony that made the question of plaintiff’s negligence one of fact for the jury. The testimony, however, strongly preponderated in favor of plaintiff on the issue of his own negligence.

Turning to another issue, to-wit, whether defendant itself was negligent, the record disclosed the following: There was a great deal of proof introduced by plaintiff tending to show that on the north rail of the track next to the warehouse, at a point that one set of trucks would have to cross in moving the car from the west door of the warehouse to the east door, to-wit, nineteen feet, there was a low joint that had been there for several months. Some of the witnesses made this joint, at the time of the accident, five or six inches out of surface level. Some much less. The fish plate or angle bar on one side of the joint was cracked. The one on the opposite side was a short bar. These bars were bolted with two bolts instead of the usual number. ' The tie at the joint was rotten and the two joint ties were unusually wide apart. It was described as a “swinging joint” — that is, a joint whose tie did not rest on a solid foundation but clung to the rail by aid of the spikes and when a car wheel passed over it would give way and spring down. Much the greater weight of the testimony made this joint a very bad one and the rail with a ball battered that would give way under the weight of a heavily loaded moving car. There was also a lip at the joint — i. e., the end of one rail was a little higher than the abutting end of its neighbor. Plaintiff’s theory is that the sudden lunge of the car was caused by this low swinging joint and a painstaking study of this record convinces us there was persuasive evidence, and much of it, tending to prove that fact. In fact, defendant’s testimony as we read it was not directed to proving the absence of a low joint, nor was it 'directed to proving that a low joint would not cause a lunge in a moving car, but it was directed to proving that the joint was not as low and bad as plaintiff’s evidence indicated. Plaintiff put in testimony tending to prove that the low joint was on the other side of the car from him, in fact was covered by the car, and that he knew nothing about its existence before the accident. No one contradicted him in that particular. Indeed there was no testimony indicating that any of the employees of Davis engaged in moving that car knew of the existence of the bad joint prior to the accident, the car in hand being the first carload Davis had shipped in. (It may be well to say that Davis took the place of one Holland who theretofore represented the brewing company and used the warehouse in question.) There was uncon-tradicted testimony that a low joint would cause a sudden increase in speed in a moving car — speed of a kind properly characterized as a “lurch” or a “lunge. ”

There was testimony on behalf of defendant tending to show that it was not customary on all roads to beep their side or spur tracks in as good condition as their main tracks; that the season of 1909 was a wet one; that wet weather conduced to low joints. But all this fell short of showing that the low joint in question was reasonably safe track maintenance in view of the uses the track was put to. There was also testimony tending to show that the men engaged in moving this •car were not experienced railroad men. But there is no testimony pointing out that any- one of them was negligent in any such designated particular as became a causal factor in the accident. For all that appears they adopted the best plan possible, assuming (as they had the right to) that the track was reasonably safe to move the car by hand power, and carried out the plan free from negligence.

Taking the tendency of plaintiff’s proof on the issue of defendant’s negligence, and the tendency of •defendant’s proof on the issue of plaintiff’s negligence, and the state of the whole record on the issue whether the negligence of defendant in maintaining its track was a proximate cause of the accident, it is ■quite out of question that any of them should be decided by the court against plaintiff, as a matter of law. Contra, we must hold they were each and all issues of fact to be submitted to the jury to be decided by assigning due weight to the testimony, and reconciling conflicts and contradictions therein, if any, as was •done.

Defendant’s industrious counsel have searched ■out and cited many cases. Some of them hold, in ■effect, that where there are two or more theories for an accident,' all equally credible, oh some of Which •defendant may be liable and on others not (and the proof is left so that such equilibrium is undisturbed) Then the case resolves itself into the classical predicament of the celebrated ass of Bnridan that put itself equidistant between two bundles of equally savory hay, and then (in that logical equipoise) died of starvation because it could not (logically) make up its asinine mind which way to turn and eat — some holding that plaintiff’s own negligence barred recovery as a matter of law — some that defendant’s negligence was not made out beyond mere suspicion and conjecture, some deal with the negligence of co-employees, others stress the proposition that negligence, to be actionable, must be the proximate cause of the injury —that the concurrence of negligence and injury, absent causal connection, will not do. But, as we see it, none of them apply to the facts of this record.

That low joints are a fruitful cause of railroad accidents and that the negligent maintenance of them is actionable where injury results therefrom to those rightfully using the track, are trite propositions needing no support by citation of cases at this late day.

Accordingly we hold there was no error in refusing defendant’s mandatory instruction.

III. Of instructions.

Defendant complains of some given for plaintiff, of some refused for it, and of the alteration of others. Of those in their order.

(a) Plaintiff’s instructions challenged are the first, second and fourth.

The second, on contributory negligence, needs-only the attention counsel give it, to-wit, none. While counsel condemn it, yet they put their finger on no particular vice. What they could not find with the eyes of their minds sharpened by interest and learning,0 we have no call to try to be astute to spy out as a court.

(1) The first instruction reads:

• ‘ ‘ The court instructs the jury that a person rightfully engaged in unloading beer or other merchandise from a car, is on the railroad company’s premises by an implied invitation, and has a right to he there; and that the railroad company owes to such person the legal dnty to exercise ordinary and reasonable care to maintain its side tracts, on and along which cars are to he moved in doing such work, in a reasonably safe condition and state of repair for said purpose and work; and that the defendant company owes this duty to anyone who is duly employed to do said work and who is doing the same, when such person so doing the work has been employed by an owner of or dealer in beer or other merchandise — regardless of whether he is in the employ of the defendant railroad company.
“Therefore, if the jury believe from the evidence that under an agreement with the defendant railroad company, Dick & Brothers Quincy Brewing Company kept and maintained a warehouse or cold storage, for the storage of beer at Trenton, Missouri, and that the defendant railroad company furnished cars in which and tracks over which to transport and move said beer, from Quincy, Illinois, to said warehouse; and that in the usual course of dealing and business of the defendant railroad company, cars loaded with beer were moved and run on to the side track on the south side of said warehouse; that under an agreement between himself and said brewing company, Charles Davis was storing said beer in said warehouse and selling the same; and that in unloading beer from cars it is reasonably necessary to move cars on and along said sidetrack by hand, and man power, immediately in front of and south of said warehouse, then, it became and was the legal duty of the defendant railroad company to exercise ordinary and reasonable care to provide and furnish, at that place, a track in such a condition and state of repair as to its joints, as' to be reasonably safe for said purposes; and, a failure to perform this duty, is negligence in law, and, if the jury further believe from the evidence that the plaintiff,, Thomas Applegate, was in the employ of Charles Davis and acting nnder the orders of his representative, and engaged, along with others, in moving one of said cars from one door to another of said warehouse to he unloaded; and that defendant’s side track, at that place, had.‘low joints’ in it and by reason thereof was defective and not reasonably safe for said purpose and work; and that defendant'acting through its officers, servants and agents, either knew of said condition of said track, or might have known of it by the exercise of ordinary care and diligence; and that defendant negligently permitted said track to remain in said condition; and that plaintiff did not know of said condition; and that plaintiff was engaged in ‘blocking’ said car with an iron bar while the brake was loosened by Ora Davis so as to permit the car to move slowly of its own weight; and while Ora Davis was trying to hold said car with said brake; and, that by reason of said defective condition of said track; and, while the plaintiff was in the exercise of ordinary care, said car gave a sudden lurch and plunge to the east and caught the plaintiff’s leg between said bar and raií and crushed it so that amputation was necessary, then, the plaintiff is entitled to recover and your verdict must be in his favor.”

The foregoing instruction is not criticized (hence needs no defense) except from one viewpoint, to-wit: Counsel say the petition specified the plan plaintiff adopted to chock the car; ^ l.ngirucilon ¿eparts from the petition in not specifying the plan, viz: “by placing the end of a heavy iron bar between the rail and wheel;” that the instruction merely puts it to the jury to find that plaintiff was “in the exercise of ordinary care.” The conclusion is that there is an improper substitution of “ordinary care” for the petition plan ■of chocking the car. Something is said about a “roving commission to the jury to go outside the pleadings and evidence in making np their verdict.” But the snm of it all is that the instruction is said to he faulty in the above particular and not otherwise. Counsel rely on cases like the Waldhier case, 71 Mo. 514; the Schneider case, 75 Mo. 295; the Watson case, 133 Mo. 246; the McCarty case, 144 Mo. 397; the McManamee case, 135 Mo. 440; the Fulwider case, 216 Mo. 582. All of those cases announce this doctrine: That where plaintiff alleges general negligence and follows that general allegation with specifications of negligence or where he alleges specified negligence without a general charge, then he is confined in his proof and instructions to negligence in the very particulars specified and may not recover on general negligence. Counsel concede that such is the gist of those cases, hut they argue that the rule ought to he extended so as to confine plaintiff to a specification of the identical plan he adopted for doing the work he was engaged in when he was hurt.

But we may not write the law as we are asked to— because:

The burden was on defendant to make out its defense of contributory negligence. Plaintiff, however, assumed the burden in this instance of writing into his instruction his duty to exercise due care. Now, due care, after all, was the touchstone, the ultimate standard whereby the jury should measure plaintiff’s duty. Mark, when defendant asked a mandatory instruction, that request was equivalent to a challenge of the plan plaintiff alleged and testified he adopted. When the court overruled the mandatory instruction, as it did, and when we sustained the court in that ruling, as we did, that is equivalent to saying that the plan plaintiff says he used was not per se negligent.

Furthermore, the instruction does put it to the jury to find whether “plaintiff was engaged in ‘blocking’ the said car with an iron bar,” etc. That sufficiently identifies the transaction with the plan pleaded, and then puts-it to them to find whether he was “in the exercise of ordinary care.” So that nnder the given instruction the jury were either obliged to find that the nse of the plan was dne care or find for defendant on the theory it .was not dne care. We cannot conceive how defendant conld be injured by that instruction.

We are cited to no authority, and we believe there is no well reasoned one that applies the doctrine of the Waldhier and other cases cited in the way and for the purpose suggested by counsel. It seems to us that to do so would be but to weave .a net of artificial refinements and subtle technicalities in which to catch an unwary litigant, without subserving any useful end. The point is disallowed to defendant.

(2) The fourth instruction tells the jury, in effect, that if they found defendant was negligent as set forth in instruction number one and that the plain- tiff Applegate was exercising due care himself, then, if the negligence of defendant combined and united with the negligence of some one else to cause the injury, if they found that to be the fact, it would not defeat recovery. The giving of that instruction is assigned as error. We are cited to no authority for that assignment, and know of none, under such a record as we have here.

It is a hornbook doctrine of the law of torts that if B, C and D unite in negligently (or willfully) injuring A, A may recover against all or any one of them. If he sue B, B may not defend on the theory C or D or both contributed. The same principle applies where some form of vis major, or other independent instrumentality aids the event. [Bassett v. St. Joseph, 53 Mo. 290; Benton v. St. Louis, 248 Mo. 98, and cases cited; Brennan v. St. Louis, 92 Mo. 482; Straub v. St. Louis, 175 Mo. 413; Zeis v. Brewing Ass’n, 205 Mo. 638; Westervelt v. Transit Co., 222 Mo. 1. c. 344.]

In passing on this instruction it must not he overlooked that defendant affirmatively pleaded by way of defense that plaintiff’s injuries were due to other persons not in its employ. It tried its case partly on that theory, laying stress on the way Ora Davis knocked the dog loose from the ratchet wheel and handled the brake at that time. Under such circumstances we think it well enough.

(b) It is next argued that there was error in refusing instructions for defendant.

The main contention in this behalf arises on one of them reading as follows:

“If the jury believe from all the evidence in the case that the plaintiff received his injuries because of the carelessness of himself and others working with him your verdict must be for the defendant.”

Clearly that instruction was not the law of this case. It ignores entirely the main issue, viz.: the negligence of defendant. In so far as it connects plaintiff with his own injuries it was fully covered by an instruction on contributory negligence. In so far as it connects the conduct of other workmen with plaintiff’s injuries it had nothing to do with the case, provided defendant was negligent and that negligence was a causal factor in plaintiff’s injury, and provided further plaintiff was himself not negligent.

Two of the other three refused instructions were those in which the court interlined “negligently or knowingly” and are dealt with in the next paragraph. The other declared as a matter of law, in effect, that defendant owed no duty in connection with the maintenance of the team track, that is, it performed its full duty when it spotted the car in front of the warehouse. That theory of the case is considered heretofore.

(c) It is next argued there was error in inserting in some of defendant’s instructions the words “knowingly or negligently.” The court so modified two of defendant’s instructions over its objections and gave them as modified. One of them will do for both, thus:

“The court instructs the jury that if plaintiff knowingly and negligently chose an unsafe way of doing what he undertook to do when there was a safe way open to him the. verdict must he for the defendant even though you should believe.his reason for taking the unsafe way was his inexperience or ignorance.”

The choosing of an unsafe way was hut a form of negligence, whatever its cause, and harks hack to the plea of contributory negligence. [Brady v. Railroad, 206 Mo. 1. c. 530.] The possible “unsafe way’-’ was the selection and use of a pinch bar to chock the car in the way plaintiff and his witnesses said he used it. If that was not a negligent way, then its choice was not negligently made. If it was negligently made then it was so because the choice was a negligent choice. The thing is as broad as it is long and means the same either way. The phrase, “or knowingly,” merely clogged plaintiff’s case. It did no harm to defendant. The only virtue in inexperience and ignorance, as a defense, is that an inexperienced or ignorant man is more likely to act negligently — that is, fall below the standard or norm of conduct of an ordinarily prudent man- acting under the sanie or similar circumstances. Such is the canonized and sensible definition of due care; and, in the law of negligence, every one is held to it, .whether he be wise or unwise, learned or ignorant, inexperienced or expert.

“If a man,” says Justice Holmes, “is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the court of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from gnilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.” [Holmes’s Common Law, p. 108.] Verily, Due Care is the Procrustean bed of the law all must lie on, nolens volens.

IY. Of an excessive verdict.

Plaintiff, aged fifty-three years, made a living by doing odd jobs of carpenter work, earning thereby twenty-five dollars to forty dollars per month. As said, his right foot was amputated above the ankle. There were no complications and no other injuries. The doctor performing the operation said that $200 would be a reasonable charge for it and the resulting attention. In this form of action where compensation and not smart money is the measure of damages, this court had insisted on conservative recompense and has noticed and disapproved a tendency to go beyond that. [Neff v. Cameron, 213 Mo. 1. c. 366 et seq.] All the cases lay stress on the presence of the following elements: age, earning capacity, the extent and nature of the injury and suffering, time lost and complications that arise. In some cases where verdicts are large the court has looked closely to incidents of the trial not arising, may be, to the dignity of reversible error, but naturally registering a result in swollen damages. [Bragg v. Railroad, 192 Mo. 1. c. 365-6.] In the Devoy case, 192 Mo. 197, and in the Chitty case, 166 Mo. 435, lists of such cases were considered and briefly analyzed. Those lists and analyses may be of some value, but furnish no definite rule for determining the vexed question.

The sum of the matter is that each case is to be determined on its own facts. Cases are cited by plaintiff’s industrious counsel wherein we have allowed verdicts of $10,000 for the loss of a foot and part of a leg to stand, but it will be found they laid stress on age, earning capacity, time lost, surgical complications, and other injuries. In most of them, it will be-found that the trial was free from untoward incidents, likely to inflame the jury. In the case at bar there were unhappy incidents of that character. In justice to counsel for plaintiff it must be said they were not wholly to blame for some of them, but in others we cannot say quite so much. It would be unprofitable to blazon forth the details of those incidents and embalm them permanently here.

In Lessenden v. Railroad, 238 Mo. 247, we cut down-a $15-,000 verdict for the loss of both legs to $10,000, and in that case significance was put on an instruction telling the jury to allow damages not to exceed the amount mentioned in the petition. [P. 264 et seq.] That form of Instruction, whilst it has been held not reversible error, has been criticized as a judicial hint that the court would approve a verdict in the sum mentioned in the petition. In this case there is an instruction of that character.

The premises considered, we think the verdict excessive in the light of the age, earning capacity and freedom from complications or other injuries, and in the light of improper argument not technically reversible error and of the foregoing instruction. "We think the views expressed are sustained by Lessenden v. Railroad, supra; Bragg v. Railroad, supra; Jewell v. Bolt & Nut Company, 245 Mo. 720; Clifton v. Railroad, 232 Mo. 708; Hollenbeck v. Railroad, 141 Mo. 97, and the analyses of cases in Chitty v. Railroad, 166 Mo. 435, and Devoy v. Transit Company, 192 Mo. 197.

If the plaintiff will remit $2500, as of the date of his judgment, within ten days, it will be affirmed for $7500, bearing six per cent interest on that sum from judgment date, otherwise it will be reversed and the cause remanded for a new trial. It is so ordered.

All concur.


source: Caselaw Access Project

author: BOND, J.

license: Public Domain

text:
    MARY DEVLIN v. CITY OF ST. LOUIS, Appellant.
    Division One,
    July 10, 1913.
    1. NEGLIGENCE: Contributory: Matter of Law. Where plaintiff was tripped by striking ber foot against one of tbe tilted ends of a plank, which lay lengthwise and with two others formed the sidewalk on which she was walking, thereby being caused to fall, resulting in an injury to her knee, for which she sues the city, and there was evidence that the sidewalk had been permitted to exist in an unreasonably defective condition for such a length of time that defendant was chargeable with notice thereof, but no evidence tending to prove it was so imminently dangerous that no person of ordinary care and prudence would use it as a pathway, the court did not err in refusing to declare, as a matter of law, that plaintiff was precluded from recovering by her contributory negligence.
    2. -: Excessive Verdict: Instruction Including Matters Not Shown in Evidence: Inability to Labor. There was no evidence showing any loss of time by plaintiff beyond the time she employed a helper in her housework at $1.35 per day for three weeks and occasionally thereafter for one day a week, the aggregate amount not exceeding $175; and'beyond this there was no evidence of her loss of time or inability to labor. The instruction, authorizing a verdict “not exceeding the sum of $2000,” told the jury to allow her “for loss of time and inability to labor.” Held,, that, the verdict being very large if not excessive, and it being difficult to account for its size on any other theory than that the jury intended to compensate plaintiff for a permanent disability to perform her usual work, the instruction was error. An instruction on facts not proven, if the verdict is' substantially larger than the evidence appears to warrant, is necessarily reversible error. The rule might be otherwise if the record demonstrated that the verdict was not materially Enhanced, for then the error would be harmless.
    Appeal from St. Louis City Circuit Court. — Hon. ■ Daniel D. Fisher, Judge.
    EeVERSED AND REMANDED.

      William E. Baird and Robert Bwrkham for appellant.
    (1) Plaintiff’s own testimony indisputably establishes that sbe was guilty of contributory negligence as a matter of law. Craine v. Railroad, 152 S. W. 24; Cohn v. Kansas City, 108 Mo. 387; Ray v. Poplar Bluff, 70 Mo. App. 252; Wheat v. St. Louis, Í79 Mo. 572; Coffey v. Carthage, 186 Mo. 573; Woodson v. Railroad, 224 Mo. 685; Ryan v. Kansas City, 232 Mo. 471; Diamond v. Kansas City, 120 Mo. 185; Border v. Sedalia, 161 Mo. App. 633: (2) Respondent’s instruction number four is clearly erroneous, since it permits the jury to compensate her for loss of time, though there is no evidence showing its value. Davidson v. Transit Co., 211 Mo. 320; Slaugher v. Railroad, 116 Mo. 269; Stoetzle v. Swearingen, 96 Mo. App. 592; O’Brien v. Loomis, 43 Mo. App. 29; Mammerberg v. Railroad, 62 Mo. App. 563; Leach v. Railroad, 137 Mo. App. 300; Paquin v. Railroad, 90 Mo. App. 118.

      L. Frank Ottofy for respondent.
    (1) The testimony being disputed as to the condition of the sidewalk, it appearing that many persons had used it, the question of contributory negligence was clearly a question of fact for the jury. A pedestrian is not precluded from passing over a sidewalk which he knows to be defective unless the danger was so great that a person of ordinary prudence would, in the exercise of ordinary care, have changed his course. Combs v. Kirksville, 134 Mo. App. 645; Flynn v. Neosho, 114 Mo. 567; G-raney v. St. Louis, 141 Mo. 181; Taylor v. Spring-field, 61 Mo. App. 263; Chilton v. St. Joseph, 143 Mo. 202; Swanson v. Se-dalia, 89 Mo. App. 128; Beauvais v. St. Louis, 169 Mo. 506; Swails v. Caruthersville, 158 Mo. App. 601; Lof-tis v. Kansas City, 156 Mo. App. 683; Howard v. New Madrid, 148 Mo. App. 57; Hill v. St. Joseph, 143 Mo. App. 389; Chase v. Railroad, 134 Mo. App. 655. (2) Respondent’s instruction number 4, authorizing the jury to find for plaintiff “for loss of time and inability to labor,” was properly given, because: (1) she was a widow entitled to ter earnings; (2) the value of housework is within the common knowledge of the jury; and requires no proof; hut there was evidence from which her loss can he estimated and to which there was no objection; (3) inability to labor is a violation of her personal rights. Wellmeyer v. Transit Co., 198 Mo. 527; McNeill v. Cape Girardeau, 153 Mo. App. 424, 160 Mo. App. 620; Becker v. Beal Estate Co., 118 Mo. App. 82; Ingles v. Bailroad, 145 Mo. App. 241; Cullar- v. Bailroad, 84 Mo. App. 346, 351; McBae v. Bailroad, 125 Mo. App. 562; Nelson v. Bail-road, 113 Mo. App. 665; Mabrey v. Gravel Boad Co., 92 Mo. App. 603; Peltier v. City, 237 Mo. 694; Snickles v. St. Joseph, 155 Mo. App. 311.
    STATEMENT.
    The plaintiff when walking over the pavement of Louisiana avenue with her daughter on November 8, 1906, was tripped by striking her foot against one of the tilted ends of a plank, which laid lengthwise and with two other planks formed the walk, thereby causing her to fall down and injure her right leg near the knee.
    At the time of the accident, which was about six p. m., plaintiff was on her way to the Grand avenue street car line to ride to Beers Hotel, where she was to take' dinner with another daughter.
    After the fall the plaintiff was assisted to arise and proceed on her journey to the car, which, she was assisted to enter by the conductor. When she arrived at the hotel she was met by her daughter and a friend of the latter, and went to her daughter’s room where her limb was rubbed with liniment. The meal was then had, after which, the plaintiff and the daughter who had accompanied her, about nine p. m., returned on the street car to the point where she had embarked on it and thence walked home.

      Plaintiff states that her limb was much swollen after the accident and cansed her much suffering during the night, so that she called in a physician, Dr. Borne, the next morning, who testified to the best of his recollections he visited the plaintiff about six times, that he prescribed “hot applications and antiphlogis-tine later on after the acute swelling was over; and bandaging so as to give rest until the ligaments and other parts could be restored; and, that he thought there was a perfect cure. But it was impossible to tell beforehand, as sometimes this happened and some-dimes it did not.”
    The plaintiff testified she was confined to her bed for about three weeks, during which time she hired a woman helper to do the housework, which she herself had performed previous to the accident. For this service she paid $1.35 per day. Plaintiff caused to be taken some. photographs of the scene of the accident, but she made no claim therefor until the bringing of the present suit more than two years later.
    Shortly before the trial of this case the plaintiff called at the office of another physician who stated that “he found from the statement of the plaintiff what seemed to be a sensitiveness on the inner side of the right knee — on pressure.” According to the doctors, this is what is termed by them a “subjective symptom, ’ ’ by which they mean a symptom resting on the statement of the patient, and not one discovered by them, which they call an “objective symptom.”
    For .the defendant, there was evidence that the plaintiff had used the sidewalk for a number of years and was fully aware of its condition. That sometime after the accident she had been observed by her next door neighbor to be doing outside work — sweeping the pavement. The defendant also introduced a physician who examined plaintiff, at the time of the trial, who testified that he found no difference in her two knees. That he noticed crepitation, or a crackling ■upon movement of the left knee. That this is very-common among old people and meant nothing. That she did not appear to he lame when she walked into the room, that she complained when he pressed her night knee and that she wore a “rubber stocking,” that he found no “objective symptom” of lameness.
    The present suit was brought on the theory of negligence on the part of the city in permitting the •sidewalks to remain in a dangerous and unsafe condition, thereby causing the injury sued for. The answer was a general denial and nip a of contributory negligence. Plaintiff had judgment for $1750, from which the defendant duly appealed and assigns for error the refusal by the court to direct a verdict in its favor and the giving, over of its exceptions, of subdivision (3) of instruction numbered 4 for the plaintiff, to-wit: “ (3) For the loss of time and inability to labor, which the jury believed from the evidence'she has sustained or will sustain by reason of said injuries and directly caused thereby, not exceeding the sum of $2000.”
   OPINION.

I.

BOND, J.

(After stating the facts as above.)--

The trial court did not err in refusing to declare, ■as a matter of law, that plaintiff was precluded from any recovery by her contributory negligence. There was ample evidence .that ,. ... the sidewalk m question was permitted to exist in an unreasonably defective condition at the place of the accident, and this had continued for so long that the defendant was chargeable with notice thereof. But there was no evidence proving- that it was so imminently dangerous that no person of ordinary care and prudence would use it as a pathway. Hence we overrule the assignment of error as to the submission of the case to the jury.

II.

In the subdivision of the instructions complained of, the jury were directed to consider plaintiff’s right to recover $2000 “for loss of time and lability to labor.” There was no evidence showing any loss of time by the plaintiff beyond the time she employed a helper at $1.35 per day for three weeks and occasionally afterwards, for one day a week. The aggregate of the amount thus expended did not exceed $175. Beyond this outlay, there is no evidence of plaintiff’s loss either of time or ability to labor, yet by the language of the instructions, the jury were told to look to both as elements of damage. This was confusing and misleading, for there was no. proof in this record of damages for “inability to labor,” as distinct from those caused by loss of time; since plaintiff wholly failed to prove any damages beyond what she sustained, while employing a substitute to do her work. [Davidson v. Transit Co., 211 Mo. 1. c. 355.]

Under the facts in this case, the verdict seems very large if not excessive. It is difficult to account for the size of the recovery on any other theory than that the jury intended to' compensate the plaintiff for a permanent disability to perform her usual work,, which this instruction was broad enough to permit, although there was no basis in the proof for such finding.

An instruction on facts not proven, which is followed by a verdict substantially larger than the case appears to warrant, is necessarily reversible error. The rule might be otherwise if the record demonstrated that the verdict was not materially enhanced,, for then the error would he harmless, as was shown in a recent case. [Shinn v. Railroad, 248 Mo. 173.]

We conclude that there was error in the portion of the instruction complained of, since it permitted a recovery for a continuing and permanent “inability to labor” beyond the time during which plaintiff’s, work was performed by another person.. We think the verdict in this case was influenced in a substantial degree by this instruction, and for that reason the judgment is reversed and the cause remanded.

Woodson, P. J., Lamm and Graves, JJ., concur.


author: BLAIE, C. PEE CURIAM.

text:
    CITY OF ST. LOUIS v. AUGUST A. BUSCH et al.; SARAH E. COLEMAN, Appellant.
    Division One,
    July 10, 1913.
    1. CONDEMNATION: Correcting Commissioners’ Report: Relates to Time of Filing Original. The circuit court of the city of St. Louis has the right to direct a correction of errors of form in the report of commissioners in condemnation proceedings; and the correction or amendment when made should he held to relate hack to the filing of the report, not to change the-report into a new one.
    2. -: -: -: Report to City Council. By the-charter of St. Louis it is provided that when the report of commissioners in condemnation proceedings is filed the circuit court shall give the city, upon application of the city counselor, reasonable time to report the result of the same to the assembly. Held, that such provision does not require a second report of a commissioners’ finding after it has been corrected as to form merely, and, aside from that, since in this case no such application was made by the city counselor after the correction, the failure of the court to grant, on its own motion, additional time,, is not a weapon appealing property-owners can use to destroy the judgment.
    3. APPEAL: Non-prejudicial Error. An appellant cannot complain of an error by which he is not prejudiced.
    Appeal from St. Louis City Circuit Court. — Hon. George H. Williams, Judge.
    AFFIRMED.

      J. L. Hornsby for appellant.
    (1) The judgment of the circuit court is void: (a) Because the judgment purports to confirm the report of the commissioners, filed May 7, 1909, although at the time said judgment was rendered said report had been withdrawn by leave of court, and was no longer before the court, 'and a subsequent report had been filed by said commissioners on June 11, 1909, to which later report appellant had filed her exceptions, being the exceptions overruled by the court, (b) Because no time was given by the court to the city of St. Louis “to report the result of the same to the Municipal Assembly for its information and approval,” as required by the city charter. Charter, art. 6, sec. 9. (c) Because in said judgment the circuit court attempts to render a special judgment in favor of the city of St. Louis, plaintiff, for the benefits assessed against the defendants, and to create a special lien against the several parcels of land benefited, and orders special execution against such parcels of land in favor of the plaintiff for the amount of such benefits. City v. Brinckwirth, 204 Mo. 280. (d) Because there was no evidence before the court of the approval by the municipal assembly of the report of the commissioners, as required by the city charter, in order to authorize the court to act upon the commissioners’ report. Charter, art. 6, sec, 9.: (2) ■ The recitals in the judgment of the circuit court as to the evidence offered in the case, if in conflict with the bill of exceptions, must be controlled by the latter. 2 Ency. PI. & Pr., p. 437n; Newsón v. Grrey, 109 Ala. 305; Rogers v. Diamond, 13 Ark. 474; Anderson v. Eield, 6 Ill. App. 313; Lonkey v. Keyes S. M. Co., 21 Nev. 318; Ezzell v. State, 29 Tex. App. 521; Schlach-ter v. Church, 105 N. W. 279. (3) Where a special statutory authority is exercised, although by a court of common law jurisdiction, all the facts essential to authorize the action of the court must appear by the record on appeal; they will not be supplied by presumption. Ellis y. Eailroad, 51 Mo. 203; Eailroad v. Campbell, 62 Mo. 588; Tarkio v. Clark, 186 Mo. 289; 2 Ency. PL &. Pr., p. 452. (4) The question of the jurisdiction of the circuit court to render judgment in this cause is before this court, whether raised in the lower court .or not; such question of jurisdiction is never waived. Hudson v. Cahoon, 193 Mo. 547; Paddock v. Somes, 102 Mo. 226.

      Lambert E. Walther and E. E. Percy for respondent.
    (1) There is only one commissioners’ report in the case, and therefore the judgment is valid. The amendment made to the commissioners’ report was for the purpose of correcting a clerical error in the wording of said report, and as it had no effect upon the result found by the said commissioners, did not have the effect in law of the filing of a new - report. Lewis on Eminent Domain (3 Ed.), sec. 641, p. 1106-7; In re Washington St., 19 E. I. 159. Having once filed their report, their power over it is gone, and they are functus officio. If a new report is to be made, a new appointment is necessary by the court. The amendment, not being in the nature of a new report, the original report must stand as the report in the case, and the'judgment in this cause must confirm the original report filed on May 7, 1909. (2) The judgment is in proper form, (a) The court properly entered judgment against this appellant, for benefits accruing to the property of said appellant remaining by reason of the proposed improvement, her predecessor, in title having been duly summoned in court, and having had their day in court, having filed exceptions, having litigated the questions ds to the regularity of such assessments of benefits before a court of competent jurisdiction, the court bad authority to enter judgment therefor, deducting the benefits from the damages awarded. Sec. 11, art. 6/ Charter, (b) Special benefits may he considered in estimating the damages to-the remaining portion of the property of an owner by reason of the taking of a portion thereof. Lewis on Eminent Domain (3 Ed.), secs. 691, 693; McElroy v. K. 0. & I. Air Line, 172 Mo. 555. Because the commissioners under the requirements of the charter have separated the benefits accruing to the property and did not deduct the amount in the first instance from the damages, does not affect the character of the assessment. (c) In a case of this character, the appellant cannot complain of alleged defects in the 'judgment affecting the property of other persons in which he has no interest. St. Louis v. Lanigan, 97 Mo. 180. (3) The appellant’s bill of exceptions, filed in this cause, shows the certificate of the clerk of the House of Delegates and the secretary of the council, to the effect that the municipal assembly had approved the report of the commissioners, and no objection or exception appears in the bill of exceptions to this evidence. The judgment in this case recites the fact that the municipal assembly, within the time limited by the court, approved the report of the commissioners, and this judgment is conclusive on the question of fact as to such approval. The appellant’s predecessor in title, the Commonwealth Trust Company, took the position in the trial court by going to trial upon the exceptions that the municipal assembly had approved the report of the commissioners. Sec. 9, art. 6, Charter. The appellant, who holds under deed from the Commonwealth Trust Company, having acquired her rights during the pendency of the suit, is bound by this position. A party canfiot take one position in the lower court and shift that position in the appellate court. Tomlinson v. Ellis, 104 Mo. 112; Nancy v. Metcalf, 19 Mo. App. 190. (4) The court below was conversant ■with the circumstances of the amendment to the commissioners’ report and the exact nature thereof, and the appellate court being a court for the review of ■errors will indulge the presumption that the court below acted properly, unless there is something in the record showing otherwise. City v. Lanigan, 97 Mo. 179. (5) Errors of a lower court made subsequent lo a determination of facts by the triers of the facts will not be ground" for a reversal of a cause. When such errors appear, the Supreme Court will merely remand the cause with specific directions to the lower ■court to proceed to enter a judgment in the proper way upon the verdict, or in a condemnation case upon the commissioners’ report filed and approved. Tread-way v. Johnson, 39 Mo. App. 176; Ilurck v. Erskine, •50 Mo. 116; Peterson v. Beha, 161 Mo. 513; Chouteau v. Allen, 74 Mo. 56; Phillips v. Evans, 64 Mo. 24; Eeed v. Colp, 213 Mo. 588; Lamont v. Egg Co., 109 Mo. App. 56; State v. Gordon, 153 Mo. 576. (6) Appellant does not complain of any error materially affecting the merits of this action, and her appeal should be dismissed. Sec. 2082, E. S. 1909.
   BLAIE, C.

This proceeding was instituted in the circuit court of the city of St. Louis to open Louisiana avenue from Merame street to Neosho street. There were thirty original defendants and about three hundred other persons against whom benefits were assessed.

The regularity of the proceedings prior to the filing of the report of the commissioners is not ques tioned. That report was filed May 7, 1909, and by it damages were awarded to the Commonwealth Trust Co., trustee, an<^ Pelagie Taylor, impleaded as the owners of the several interests in a parcel of land in IT. S. Survey 74, Caronde-let Common Fields, St. Louis, through which parcel the proposed extension of Louisiana avenne passed. On the application of the city counselor plaintiff was. granted until May 20, 1909, to report the result of the awards to the municipal assembly for its information and approval. On May 14 exceptions were filed, in one of which it was alleged that the commissioners, had allowed the above named defendants no damages for injury to the severed parts of the parcel owned by them as stated, i. e., that the damages awarded were solely for that part of the parcel taken for use as part, of the proposed new street.

June 11, 1909, the court gave plaintiff leave to. withdraw the report of the commissioners for correction and on the same day the corrected report was filed. What the correction was the record does not show, though respondent’s additional abstract contains the statement that it was purely clerical.

New exceptions were filed by the same defendants, like those filed May 14, except that the correction made is alleged to have been sufficient to make the report show an award for damages both for the part taken and for the injury to the residue. Respondent brings here that part of the report relating to the award of damages to the parcel mentioned and it clearly shows a sufficient assessment by the commissioners. This is from a report shown f to have been sworn to on April 28, 1909. October 1, 1909, a hearing was had on the exceptions. Evidence was offered, pro and eon, on the question as to the sufficiency of the damages awarded the defendants named, both for the parcel condemned and for the injury done the severed parts of the original tract. The city also offered evidence. tending to show that in making their award the commissioners had taken into consideration all proper elements of damages to exceptors’ property. The court, on October 11, overruled the exceptions. On November 3,1909, evidence that the assembly approved the report in proper time was filed, and the court rendered judgment, prefacing it with this:

“Now on this day this cause coming on to be heard upon the report of the commissioners, filed May 7, 1909, comes plaintiff by its attorneys,” etc. “It is therefore considered, ordered and adjudged, that said report he and the same is in all things approved, confirmed,” etc. No objection to the form of the judgment is suggested. On November 5, appellant was, on her motion, made a party defendant on the' ground that she had purchased from the Commonwealth Trust Company, the property which, as above stated, it had previously held as trustee for Pelagie Taylor. November 5, 1909, she filed her motion for new trial and this being overruled she appealed.

Appellant contends “that the judgment of the circuit court is void” because (a) it purports to’confirm the commissioners’ report filed May 7, 1909, and that report had been withdrawn and superseded by one filed June 11, 1909; (b) no time after June 11, 1909, was given the city in which to report the .result to the municipal assembly for its information and approval, and (c) there was (it is asserted) no evidence of the assembly’s approval of the result of the commissioners’ report, and (d) the court attempted to render a special judgment in favor of the city and against defendants for benefits assessed, and to create a special lien and award special execution against property benefited.

I. The allegations in the exceptions to the effect that the commissioners had not allowed the Trust Company and Pelagie Taylor any damages except for that part of their property actually taken do not prove themselves nor did they constitute any evidence of the facts alleged. No evidence of any substantial defect in the report was offered and the record here .shows none. Appellant does not abstract any report ■of the commissioners and does not show what correction was made nnder the leave granted June 11. Her argument assumes that whatever the correction was its effect was to destroy the report filed May 7, and on that assumption proceeds to the conclusion that since the judgment purports to be based upon that report, it also is absolutely void.

There being nothing to show what correction was made and the trial court having acted upon the report and treated it as unaffected by the correction, the usual presumption supporting rulings and judgments of trial courts leaves, on this branch of the case, but the single inquiry whether the circuit court in a case of this kind can permit any sort of correction to be made in the report of the cominissioners without eliminating that report and, by the correction permitted, bringing a new one into existence.

In Long v. Talley, 91 Mo. 1. c. 309, it was held that in proceedings in the county court to establish a public road that court had the power to require the commissioners to amend their report in particulars in which it was not sufficiently specific. It was said such report occupied the position of a verdict and was amendable on the principle warranting amendments of verdicts.

In Woolsey v. Tompkins, 23 Wend. 1. c. 327, the court had under consideration the question of the right of commissioners in proceedings to lay out a road to amend clerical errors in their report and in an opinion by Chief Justice NelsoN the court said:

“But I perceive no objection to the amendment made. The reversal of the order of the commissioners and determination to lay out "the road were quasi-judicial acts, and could not be reviewed or altered by the judges; but making up the record of the proceedings was immaterial. It would be strange i'f a slip’ in doing so must be fatal. In the administration of justice in courts of record, it is a matter of course to amend clerical errors; indeed, there is scarcely a paper or record in the proceedings there hut at this day is amendable. Absolute accuracy is beyond human care and power; and the most intolerable confusion and mischief would ensue a denial of this right there, or in all like proceedings.-”

In Pott’s Appeal, 15 Pa. St. 1. c. 416, a proceeding to lay out a public road, the Supreme Court of Pennsylvania said:

• “The exceptions filed to the action of the court below are entirely destitute of merits, and we deem it necessary thus to notice them particularly, only to express our approbation of the course pursued in sending their report back to the viewers for correction in a point not touching the propriety of laying out the road in question. It was done in pursuance of a recommendation I ventured to suggest in the case of the Towamencin Eoad, 10 Barr, 195. That recommendation was founded in experience of the vexatious trouble, expense, and inconvenience to which parties were frequently put by the practice of setting aside reports of reviewers, upon mere technical grounds, not in any degree touching the merits of the controversy. It frequently happened that, after years- of struggle, accompanied by the bitterness of feeling too apt to accompany these discussions, a report of re-reviewers was set aside for some trifling omission of form, such as occurred in this instance — neglect to note improvements on the draft — and the parties left just where they had begun; and thus the strife was renewed, possibly again to end in the same way. Every one, with the least practical knowledge of this subject, must have felt this to be an evil, of which the case before us is a pregnant example.”

Mr. Lewis in his treatise on Eminent Domain, vol. 2, sec. 641, recognizes the same doctrine: All these authorities and others (Cambria Street, 75 Pa. St. 1. c. 363; Boyer’s Road, 37 Pa. St. 1. c. 259; Greenville & Columbia Railroad v. Nunnamaker, 4 Rich. 107) recognize the distinction between setting aside a commissioners’ report and sending it back to them to correct some clerical error or matter of form.

In this last cited case (1. c. 111) the applicable statute provided that the commissioners must take into consideration “the loss or damage” and also “the benefit or advantage” resulting to the land owners and “state particularly the nature and amount of each.” The report in this case failed to “set out the particulars of damage as required by the act,” and a motion was filed to set aside the report on that ground. Upon the question thus raised, the court said: “But the omission was an informality which may be amended by requiring the commissioners to supply, in the return which they have made, the par-, ticulars of the damage which they assessed. The motion was, not to amend, but to set aside the return and vacate the proceedings of the commissioners, in order that the subject should be recommitted to them, or to others to be appointed in their stead. The return cannot be set aside unless the commissioners proceeded illegally or wrongfully in making the valuation. If their proceedings be regular and conformable to the ■direction of the act, but the return be incomplete, the proper course is to order the return to be amended, not set aside.”

' It is provided in section 7 of article 6 of the charter of the city of St. Louis that: “The report of said commissioners ■ may be reviewed by the circuit court on written esceptions . . . and the court shall make such order therein as right and justice may require and may order a new appraisement upon good cause shown . . .”

That the court might, under this provision, exercise its inherent power to cause clerical errors to be corrected is hardly disputable; and that the court’s ■discretionary power (St. Louis v. Buss, 159 Mo. 1. c. 13) to award a new appraisement could only arise upon good cause shown is the clear meaning of the •charter. No new appraisement or recommitment was asked or awarded, but the order was simply that the report might he corrected, doubtless in a matter of form, and not that a new, or additional, or supplementary report might be filed. In such circumstances it is right that the correction or amendment thus made should be held to relate back to the filing of the report, not to change the report into a new one. There is authority for this conclusion. [In re Washington Street, 19 R. I. 1. c. 159, 160.] If this is not correct, then it would appear that the inherent power of the circuit court to correct clerical errors, or to cause them to be corrected, is subject to the limitation that it does not-exist in condemnation proceedings. There is no reason to think this true, and this court was not of that opinion in Long v. Talley, supra. The fact that the proceeding is one in invitwn is of no consequence, since the requirement that in such proceedings every command of the law must be obeyed in no wise conflicts with the power of the court to cause the record and proceedings to speak the truth when some •clerical misprision has caused it to speak something else.

II. So far as concerns the failure of the record to show, on or after June 11, a second reference of the report to the municipal assembly, it will suffice to say that since the correction made did not change in the least the amount of damages awarded, and related back to the filing of the original report, the granting of additional time was not necessary. Further, without discussing whether in any circumstances appellant could raise this question, the city not complaining, it may be added that the charter requirement (Sec. 9, art. 6) is that when the commissioners’ report is filed “the court shall give to the city of St. Louis, upon application of the city counselor, reasonable time to report the result of the same to the assembly;” and since no such application was made by the city counselor after the correction was made, the failure of the court to grant, on its own motion, additional time is not a weapon appellant can now use to destroy the judgment. The contention that there was no evidence of the approval of the report is based upon the assumption that the report of June 11, 1909, was an entirely new report and falls with that assumption..

III. With respect to the assignment that the court rendered judgment making the benefits assessed a special lien and awarding a special execiltion against the property benefited, which, it is contended, runs contrary to the rule announced in St. Louis v. Brinckwirth, 204 Mo. 280, it is sufficient answer that the judgment attempts to fix no such lien on appellant’s property and awards no such execution against her. The error, if any, could not and did not affect appellant, and the 'general rule, that an appellant cannot complain of an error by which he is not prejudiced, is entirely applicable in a case of this kind; and so it has been held heretofore. [St. Louis v. Lanigan, 97 Mo. 1. c. 180.]

The questions raised are purely technical. Appellant took title subject to these proceedings (So. Ill. & Mo. Bridge Co. v. Stone, 174 Mo. 1. c. 35) and after the report was corrected her predecessors in title had been accorded a fair hearing on the question of the sufficiency of the damages awarded. On the evidence the court found the amount allowed, which amount was not affected in the least by the correction, was sufficient to compensate for all damage inflicted. The sufficiency of the evidence to support this finding is not questioned. The court acted on the report before it (Lemp v. Lemp, 249 Mo. 1. c. 305) and there was never actually but one report in the case.

If this judgment was reversed and the cause remanded on the grounds urged, the sole effect would be to require the trial court to base its judgment on the report as corrected, there being no complaint of any irregularity prior to the correction.

Since the damages awarded and benefits assessed were wholly unaffected by the correction, and since a trial of the justice of these has been had, and there was not in any event any error in failing to grant further time for a report to the assembly, the sole practical question really is whether this court, in the circumstances of this ease, will reverse this cause in order to compel the trial court to change the reference in the judgment to the date of the commissioners’ report from “May 7th” to “June 11th.” The answer to that question is that the judgment is affirmed.

Broim, G., concurs.

PEE CURIAM.

The foregoing opinion of Blaze, €., is adopted as the opinion of the court.

All the judges concur.