source: Caselaw Access Project

author: PER CURIAM. GRAVES, J. VALLIANT, C. J.

license: Public Domain

text:
    ELIZABETH PRICE v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    In Banc,
    May 22, 1909.
    1. NEGLIGENCE: Collision of Cars: Prima-Facie Case: Demurrer. Tiie plaintiff makes out a prima-facie case of negligence against defendant by showing the relationship of passenger and carrier, the collision of the car with another, the consequent injury of the passenger, and the control, management and operation of the cars to have been exclusively in the hands of defendant, its servants and employees; and with these facts proven, a demurrer to plaintiffs case should he overruled. There then arises a presumption of negligence on the part of the carrier.

      2. -: -: General Charge. A petition -whose only charge of negligence is that “the defendant carelessly, negligently caused and permitted the train on which plaintiff was riding as a passenger, to come in violent collision with another train of defendant’s, said other train being on said Twelfth street and on said incline as aforesaid; that said collision was occasioned without any fault on the part of the plaintiff, hut by reason of the negligence as aforesaid of the defendant,” does not charge specific negligence, hut charges general negligence; it does not undertake to say what specific acts of negligence caused the collision. And plaintiff, under such a charge, need prove no more than the relationship of passenger and carrier, the' collision of the two cars, and the exclusive control over them by defendant, and her consequent injury and the extent of her injuries, thereby resting her case upon the well-founded doctrine of the presumption of the carrier’s negligence arising from the established relationship. [Distinguishing Davidson v. Transit Co., 211 Mo. I. c. 361.]
    3. -: -: -: Presumption of Carrier’s Negligence: Waived by Specific Proof. Where the petition charges the relationship of passenger and carrier and contains a general charge of negligence, plaintiff does not lose her right to rely upon the presumption of the carrier’s negligence that arises upon the proof of the relationship, collision and the consequent injury, by putting in evidence tending to show the specific acts of negligence which caused the collision. She thereby assumed an unnecessary burden, but not having charged any specific acts of negligence,, she does not, by undertaking to prove them, waive her right to rely upon the presumption, or to have the case submitted to the jury upon the instructions based upon that presumption.
    4. -: -: -: -: Instruction: Res Ipsa Loquitur. Where the relationship of passenger and carrier is established, and the petition charges general and not specific negligence, apd an unusual occurrence and the passenger’s consequent injury, without her fault, are shown, and the car is shown to he exclusively under defendant’s control, the doctrine of res ipsa . loquitur applies, and an instruction basing plaintiff’s right to recover upon the presumption of the carrier’s negligence arising from .these established facts is properly given.
    5. -: --: -: --: Burden of Establishing Inevitable Accident. In a case where the relationship of passenger and carrier, a collision, and the consequent injury of the passenger are established, under a general charge of negligence, an instruction telling the jury that “the presumption is that the collision was occasioned by some negligence of defendant, and the burden of proof is upon the defendant to rebut this presumption of negligence and to establish the fact that there was no negligence upon its part, and that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care would not have •avoided,” is proper, and especially appropriate where all the instrumentalities connected with the collision were under the control of defendant, and there is no evidence tending to show an intervening or separate cause. The burden, under the general charge, is upon the carrier to show that it exercised the highest degree of care, and the same proof that will show that the highest degree of care would not have, avoided the accident will show that it was the result of inevitable accident. [Refusing to follow Peary v. Railroad, 162 Mo. 1. c. 100.]
    6. -: Instruction: What Plaintiff Claims: Assumed to be True. A preamble to the instruction on the measure of damages, wherein “the jury are instructed that the plaintiff claims in her petition that on November 4, 1903, she was a passenger on a cable train of defendant, and that while she was a passenger on such train it came in collision with another cable train of defendant,” is unobjectionable, and in no wise assumes such claims to he true or to have been proven.

      1. -: -: Burden: In Case of Collision. Where the passenger is injured by a collision between cars, and the petition charges general negligence, an instruction placing the burden on plaintiff to prove that defendant’s servants were negligent, should not he given. Such an instruction has no place in a case to which the doctrine of res ipsa loquitur applies.
    8. -: -: Of Servants in Charge of Train: Passenger. Where the plaintiff while a passenger was injured by a collision, the court properly struck from defendant’s instruction, telling the jury that if the injuries sustained “were merely the result of accident, other than by the negligence of defendant’s servants in charge of the train,” the words “in charge of the train” — there being proof of other acts of negligence which might have produced the accident.
    9. -: Evidence: Retroverted Womb: Pleading Permanent Internal Injuries. Evidence that after the collision plaintiff suffered from a displaced and retroverted womb is admissible under a general charge that she “received serious, painful and permanent internal injuries.” Such an injury is an internal bodily injury; hut a bodily injury is to he distinguished from conditions and diseases resulting from bodily injuries, which should be specifically pleaded, or evidence thereof excluded.
    10.-: -: Best Appliances: Rail Brake. In a case- between a passenger and a carrier the court does not err in permitting plaintiff to show that a rail brake would have been a better and more effective appliance for stopping the car whose grip broke and thereupon the car ran down an incline and collided with another, than those used, where it is also shown that rail brakes were in use upon a similar incline on which defendant operates cars. That rule will apply to a case between master and' servant, where the better appliance had been adopted by the master and was in use under similar conditions; and for a better reason it applies in a case between a passenger and carrier, because the law exacts a higher degree of care from a carrier than-from a master.
    Appeal from Jackson Circuit Court. — Hon. John G. Park, Judge.
    Affirmed.

      John H. Lucas, Ben T. Hardin and B. B. Young for appellant.
    (1) The court erred in refusing to sustain the demurrer offered by defendant, at the conclusion of plaintiff’s evidence, and the peremptory request at the conclusion of the whole case. 2 Fetter, Carr. Passengers, sec. 480-; Nellis, Street Surface Railroads, p. 519 ; Spencer v. Railroad, 17 Am. and Eng. R. R. Cases (N. S.) 166; Hite v. Railroad, 130' Mo. 140; Roscoe v. Railroad, 202 Mo. 576. (2) The court erred in giving instructions requested by plaintiff for the following reasons, viz.: - No. 1: (a) Because the doctrine of res ipsa loquitur does not apply to the case at bar. Roscoe v. Railroad, 202 Mo. 576; Bailey v. Railroad, 152 Mo. 449; Feary v. Railroad, 162 Mo. 101; Tuttle v. Railroad, 48 Iowa 236; Fitzgerald v. Railroad, 50 Mo. 516. (b) It too broadly states the rule of law sought to be invoked, casts the burden on appellant, and is misleading. Ham v. Barrett, 28 Mo. 388; Porter v. Hauser, 52 Mo. 524; Mansur v. Botts, 80 Mo. 651; Estes v. Desnoyers Shoe Co., 155 Mo. 577; Clark v. Kitchen, 52 Mo. 316. Instruction 2 is erroneous, in that it excludes from the consideration of the jury the evidence of defendant, ignores the issues tendered in pleadings and proof, and is misleading. Sawyer v. Eailroad, 37 Mo. 240; Chappell v. Allen, 38 Mo. 213; Eaysdon v. Trnmho, 52 Mo. 35; Bailey v.- Eailroad, 152 Mo. 449; Feary v. Eailroad, 162 Mo. 101; Tuttle v. Eailroad, 48 Iowa 236; Fitzgerald v. Hayward, 50 Mo. 516. (3) The court erred in refusing to give instructions asked by defendant. They properly declared the law, were sustained by the evidence and applicable to the pleadings. Instruction 2: It is the law that the burden of proof was on plaintiff. Bond v. Wood, 124 Mo. 72. Instruction 4: The petition charged that defendant had caused and permitted the collision by failure to exercise ordinary care, and plaintiff was bound by her theory. Wolfe v. Supreme Lodge, 160 Mo. 675; Sprague v. Sea, 152 Mo. 327;'Beardon v. Eailroad, 114 Mo. 384. Instruction 6: There was uncontradicted proof of care in selection and inspection of machinery, and the jury should have been confined to the only controverted issue of operation of train. Eoscoe v. Eailroad, 202 Mo. 586. (4) The court erred in admitting evidence with respect to the injury to plaintiff’s womb, over the objections of defendant. Magrane v. Eailroad, 183 Mo. 119; Muth v. Eailroad, 87 Mo. App. 422; Atkinson v. Eailroad, 80 Mo. 212; Chitty v. Eailroad, 140 Mo. 64; McManamee v. Eailroad, 135 Mo. 440. (5) The court erred in admitting evidence with respect to rail brakes, over the objection of defendant. Eailroad v. Hall, 91 Ala. 112; Eailroad v. Kithcart, 149 Fed. 108; McGinnis v. Canada Southern Bridge Co., 49 Mich. 466; Eailroad v. McCormick, 74 Ind. 440; Eailroad v. Bates, 146 Ind. 564; O’Neill v. Eailroad, 66 Neb. 638; Eailroad v. Seley, 152 U. S. 145.

      Brown, Harding & Brown for respondent.
    (1) The demurrers at the close of plaintiff’s case and at the close of the whole case were properly overruled. Eedman v. Eailroad, 185 Mo. 1; Wilber v. Railroad, 110 Mo. App. 690; Clark v. Railroad, 127 Mo. 197; Magrane v. Railroad, 183 Mo. 119; Lemon v. Chanslor, 68 Mo. 340; Hipsley v. Railroad, 88 Mo. 348; Allen v. Railroad, 183 Mo. 411; Condy v. Railroad, 85 Mo. 85; Och v. Railroad, 130 Mo. 51; Malloy v. Railroad, 173 Mo. 75; Robinson v. Railroad, 103 Mo. App. 115; Chouquette v. Railroad, 80 Mo. App. 520; Tateman v. Railroad, 96 Mo. App. 453; Rattan v. Railroad, 120 Mo. App. 270; Plamilton v. Railroad, 114 Mo. App. 509; Roscoe v. Railroad, 202 Mo. 576. (a) Plaintiff did not waive the res ipsa loquitur doctrine. Cassady v. Railroad, 32 Am. & Eng. Ry. Cases (Mass.), 666; Redmon v. Railroad, 185 Mo. 9; Wilbur v. Railroad, 110 Mo. App. 694. (2) The court properly gave instruction 1. (a) The doctrine of res ipsa loquitur obtained. The petition alleged relationship of carrier and passenger and a collision. The evidence admitted it. Authorities under point 1. (b) This instruction followed the allegations in the petition. “From the facts alleged the law will draw a presumption of negligence. It is sufficient to follow the allegations.”Allen v. Railroad, 183 Mo. 433. (c) It properly put the burden of exculpating itself on defendant. Clark v. Railroad, 127 Mo. 208; Redmon v. Railroad, 185 Mo. 9; Lemon v. Chanslor, 68 Mo. 355; Chouquette v. Railroad, 80 Mo. App. 520. (d) Instruction 2 was properly given. It must be read in the light of instruction 1 and all of defendant’s instructions, and the jury is presumed to have read them all. It first and foremost required the jury to find for plaintiff, and that she was injured by defendant’s negligence, before any damages were recoverable, and then proceeded to properly fix a measure and guide. Reilly v. Railroad, 94 Mo. 600; Gordon v. Burris, 153 Mo. 223; Fisher v. Packing Co., 77 Mo. App. 108; Keen v. Schweigler, 70 Mo. App. 409; Deweese v. Mining Co., 54 Mo. App. 476; Yegele v. Pickle, '56 Mo. App. 583; Noble v. Blount, 77 Mo. 735. (3) The court did not err in refusing to give instruction 2 asked by defendant. It improperly placed on plaintiff tbe burden of proving tbe negligence of defendant. Cases cited under points 1 and 2. (4) The court properly admitted evidence relative to plaintiff’s womb, (a) Tbe injury was covered by tbe allegations in tbe petition. Wilbur v. Railroad, 110 Mo. App. 693; Brown v. Railroad, 99 Mo. 318. (b) It was tbe natural and direct result of her injury. Wilbur v. Railroad, 119 Mo. App. 69.3; Coontz v. Railroad, 115 Mo. 674. (c) Defendant waived objections by bringing out evidence on tbis subject. (5) Tbe court properly admitted evidence respecting rail brake, (a) Defendant made no objection to tbe introduction of any of tbe evidence on tbis subject except Kevan, and that was upon a different ground than tbe one urged in tbis court. Russell v. Glasser, 93 Mo. 360'; Bank v. Harris, 54 Mo. App. 160. (b) The evidence was properly admitted because it was shown without contradiction that tbe rail brake was an effective factor in controlling trains on an incline; that defendant was and bad been using tbe rail brake on its other lines for nine 'or ten years.
   PER CURIAM.

Upon consideration of tbis cause by tbe court In Banc, it is considered that tbe petition herein does not charge specific negligence, but general negligence, and tbe opinion by Graves, J., in division is adopted as tbe opinion of tbe court. Tbe court is of tbe opinion that there is no real conflict between tbe views expressed in tbis case and that of Davidson v. Transit Company, 211 Mo. 320, and that tbe language used in tbe Davidson case, supra, and quoted in tbe opinion in this case, was language used arguendo in tbe discussion of an instruction there under consideration, and it was not thereby meant to say that tbe petition in tbe Davidson case was a charge of specific negligence. Judgment is therefore affirmed.

All concur; Vallimt, G. J., in separate opinion.

GRAVES, J.

Plaintiff, a passenger of the defendant, sues for damages in the sum of $15,000, for injuries alleged to have been received by reason of the car upon which she was riding having collided with another on the same track. The locus of the accident is the viaduct on the Twelfth Street line of defendant’s railway system in Kansas City, Missouri, and the date November 4, 1903, between seven and eight o’clock in the morning. Plaintiff was a resident of Kansas City, Kansas, and was working for the firm of Emery, Bird & Thayer, having charge of the underwear department of that firm’s store. On the day in question she boarded one of defendant’s cars at Grandview station in Kansas City, Kansas, and rode to a point two short blocks from the defendant’s Twelfth Street line, where it crosses Mulberry street. Procuring a transfer ticket she went to Mulberry street and there boarded an east-bound cable train (composed of a gripcar and coach or trailer) to go to her place of business. Mulberry street is near the west end of the Twelfth Street viaduct, which is quite a steep incline, upon which were two' cable tracks, one for east-bound and one for west-bound cars. The eastbound cars used the south track. After leaving Mulberry street, there is quite a space covered by this overhead viaduct, and going east the first street reached where the car rests on terra firma, is the bluff or sometimes designated Bluff street. A block east is Lincoln street, which is on an upward incline from the bluff or Bluff street, and whereat is a level space to receive and discharge passengers. Then there is an upward incline to Summit street, where there is another level place to receive and discharge passengers, and going east from Summit is another upward incline. The cable train upon which plaintiff was riding passed over the incline and reached in safety Summit street, where it stopped. It then started and after going up the incline a short space started to run backward, slowly at first, but continued to increase its speed until it reached a point somewhere near the middle of the viaduct incline, where it collided with another of defendant’s cable trains, bound eastward, and by this collision the plaintiff was injured. The petition, being a third amended petition, charges the relationship of passenger and carrier, and charges the negligence of the defendant in this language: “that while plaintiff was a passenger as aforesaid on one of defendant’s said trains, going in an easterly direction on said Twelfth street in Kansas City, Missouri, and at a point commonly known as the Twelfth Street incline, the defendant carelessly, negligently caused and permitted the train on which plaintiff was riding as a passenger, to come in violent collision with another train of defendant’s, said other train being on said Twelfth street and on said incline as aforesaid; that said collision was occasioned without any fault on the part of the plaintiff, but by reason of the negligence as aforesaid of the defendant; that said cars collided with great force and violence, wrecking both trains of defendant, so in charge of defendant’s agents, servants and employees.”

By way of answer the defendant said that it “denies both generally and specifically each and every allegation in said petition contained.”

Upon trial of the issues there was a verdict, signed by ten jurors, giving plaintiff the sum of five thousand dollars damages, upon which judgment was entered. After timely but unsuccessful motions for a new trial and in arrest of judgment, the defendant appealed to this court.

For the plaintiff the cause was submitted to the jury upon two instructions, one on the measure of damages, and the other couched in this language:

“1. The court instructs the jury that if you believe from the evidence that the plaintiff was a passenger upon a train of defendant at the time she claims to have been injured, then having received plaintiff upon board of such train, the due obligation of the defendant to plaintiff was to use the highest degree of care practicable among prudent, skillful and experienced men in that same kind of business, to carry her safely, and a failure of the defendant (if you believe there was a failure) to use such highest degree of care would constitute negligence on its part; and defendant would be responsible for all injuries resulting to plaintiff, if any, from such negligence, if any. And if you believe from the evidence that there was a collision between two trains of defendant on' one of which plaintiff was a passenger (if you believe she was a passenger thereon), the presumption is that it was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence and establish the fact that there was no negligence on its part, and that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care could not have avoided.”

Those given and refused for defendant will not be noted here, but will receive attention later as occasion requires. ■

The plaintiff in person testified to facts showing the relationship of carrier and passenger, the collision of the two trains and her consequent injury, and the extent of the injury. Not being able to get a seat she was standing in the aisle of the coach at time of collision. By doctors she also showed the nature and extent of the injury. The plaintiff, however, did not stop here as she might have done, resting her case upon the well-founded doctrine of presumptive negligence, but she introduces witnesses, the purport of whose testimony is to show a number of negligent acts upon the part of the defendant. This testimony for the plaintiff tends to show the following facts:

William Kevan testified that he was an experienced gripman of eight or nine years’ experience on the line of defendant in Kansas City; that by riding over it he ivas familiar with the Twelfth Street incline ; that at the time of the accident defendant was using two brakes upon the cars on the Twelfth Street line, the ratchet brake which was applied to the wheels of the gripcar, and the automatic brake which was applied to the wheels of the coach or the trailer; that both were operated from the gripcar; that if the ratchet brake was applied by the motorman too tightly it would lock the wheels of the car and cause them to slide, in which event the automatic brake would not work; that upon another incline, viz., the Ninth Street incline, defendant also used what is called a rail brake, which was applied directly to the rail and has nothing to do with the wheels; that the wooden shoe of the rail brake when applied to the fail had more friction than the other brakes named, and in his judgment was the best to stop a car on an incline; that sand used upon the track would help in stopping a car; that by spacing the cars was meant that they should be kept a certain distance apart upon the line; that he understood the Twelfth Street incline to be a twenty-five per cent grade and Ninth Street incline a thirty per cent grade; that the rail brake which had a two-foot surface applied to the track could be so applied as to lift the moving car from the track, but this would be better in case of a backing car on this incline, and was not dangerous; that if the rails were gummy by means of a foggy, damp morning, it would require a good load to hold the rail brake down to the rail and keep the cars from sliding (the evidence shows these cars were very heavily loaded); that if the ratchet brake is put on too suddenly it will lock the wheels; that the proper thing is for the motorman to put it on gradually; that if the wheels were locked, the brake should be released and put on again and likewise with the automatic brake; that the motorman ought not to lock the wheels with his brakes.

P. J. Ryan testified: that he was in the employ of defendant, November 4, 1903, the date of the accident and had been for two months; that he was on the Twelfth Street line and among his duties he had to go over the whole Twelfth Street line to take care of the carrying pulleys and the curve pulleys; that the carrying pulleys carry the rope along; that the wreck occurred two hundred and fifty yards west of Summit street; that he got there seven or eight minutes after the wreck; that the coach was all broken up into small pieces and the gripcar was badly wrecked; that he was familiar with the conduits and conditions of the rope in the West bottoms; that all along from Fourteenth and Wyoming streets to Twelfth and Wyoming streets, the rope was at places dragging through mud and water; that this was west of the viaduct; that he was an oiler and truck man; that he went over the road every day, opened up the rope conduit and examined the wheels or pulleys; that the conduit was an oval shaped affair through which the rope ran; that in certain places where the rope dragged through the mud there were no wheels or pulleys, because he was unable to get them from the shop; that the conduit had not been all cleared out since the flood in June preceding; that there were bright places on the rope where the tar and oil usually on the rope had been cut off by the mud and water through which the rope passed.

By Elmer Graybill, a former employee of the defendant, it was shown: that he had worked for defendant in different capacities for thirteen years and for four years as gripman on the Twelfth Street line; that at the time of the accident and prior thereto defendant only used the ratchet and automatic brakes on the cars used on the Twelfth Street incline; that the rail brake has the greater surface friction and such brakes were used on the Ninth Street line; that he was superintendent at the time of the wreck; that P. J. Ryan was an oiler and looked after the wheels and^such as that; that he was familiar with the conduit from Fourteenth to Twelfth on Wyoming street, as he went over the road every day; that there was mud and water in the conduit between those points, and the rope dragged through the mud and water, which had the effect of taking the tar off of the rope; that with the oil and tar off of the rope the grip would take hold quickly and start the car with a jerk, bub when the rope was oiled and slick, when the grip was attached it would slip through the jaws of the grip so that the car would not jerk upon starting; that sand upon the track made it easier to stop a car, and especially if the track was slick and gummy.

Upon cross-examination he says: that this mud got into the conduit during the June flood and had not been cleaned out; that'it had been cleaned out around the covers and pulleys; that the mud and water made the rope clear of tar and oil and the grip would take hold quicker, and the rope would not slide through the grip as it would when oiled, and the gripman would have to be particular or he would start with a very sudden jerk; that grip shanks had frequently been broken on the Twelfth Street line; that he had seen them break on heavily loaded cars; that he never knew1 the grip itself to break; that if the grip is tightly attached to the rope where the oil has been cut off by mud and water, it is liable to break the jaws-of the grip, but -witness did not recall of one being tbns broken; tbat this incline was not sanded bnt one nigbt in tbe year whilst be was superintendent, and tbat was Carnival nigbt, and because they expected a heavy travel and overloaded cars; tbat tbe cars were supposed to be spaced two minutes apart; tbat one car should stand at Mulberry street until tbe other got to Lincoln street on this incline; tbat at tbe time of tbe morning when this accident occurred no spacer was kept on duty, but from five o’clock to half past six in tbe evening, the hours of heavy travel, a man was kept at Mulberry street to space tbe cars so as to keep' two cars off of tbe viaduct at the same time; then tbe witness further proceeds in this language:

“Q. In your opinion, could a heavily loaded car, even if tbe tracks were wet, be stopped tbat bad started back after having stopped at Summit street and proceeded eight or ten feet east, and then something bad gotten wrong with tbe cable, or bis grip, or be bad lost tbe cable, or it bad become broken — could tbat car be bandied or stopped by tbe gripman? A. Yes, sir — well, tbat is owing to tbe condition of tbe track more than anything else.
“Q. Under tbe circumstances tbat I have put to you? A. Well, there is two different kinds of wet tracks; there is quite a bit of difference in them.
“Q. Any wet track tbat is properly sanded? A. Well, if tbe .track was properly sanded, of course a man ought to bold it with bis brakes if properly sanded. . . .
“Q. Now, then, on a steep bill like tbat in a foggy morning, when there is a gummy or slippery rail, what would putting sand on tbe tracks, or anything else do, towards stopping a heavily loaded train? A. Sanding will help.
“Q. It would not bold tbe train? A. Yes, sir. If there bad been plenty of sand it would have held tbe train.
“Q. With a car on as steep a place as that — with the wheels locked would it not slide notwithstanding the sand? A. You are not supposed to have the wheels locked. . . .
“Q. You do use sand on parts of the Twelfth Street road? A. Have a man to sand them?
“Q. Yes. A. Well, we used to have a man to sand the tracks at between Baltimore and Main, eastbound, and between Broadway and Washington, eastbound, and between Walnut and Main east-bound, and west-bound at about half way between the alley between McGee and Grand avenue and Walnut street.
“Q. What was that for? A. So that .the car would not slip down on the track and run into any other one.”

This witness further says that if a car going up the incline for any reason should become detached from the cable rope, the proper way was to set the automatic brake first and then the ratchet brake.

By H. H. Rogers it was shown: that he had worked on the Twelfth Street line as conductor and gripman, passing over the line twenty-two times per day; that there is a level space of forty to fifty feet at Summit street crossing; that' the grade east of Summit is medium, not so steep as between Summit and Lincoln; that only the ratchet and automatic brake were used on that line; that the ratchet operated on the grip car and the automatic on the coach; that if the train had started up the grade from Summit street and the rope was lost by reason of breaking the grip or otherwise and the car started backward, the proper course would be to apply the automatic brake first and then the ratchet brake; that sand on the track would help materially in stopping a car going backward on that incline; that a rail brake had much more friction for stopping- the ear than did the other brakes.

On cross-examination some hypothetical questions were propounded thus:

“Q. Now, then, with that grade — assuming that a car is heavily loaded with passengers, all the seats taken and people standing in the aisle, and a dark, foggy morning, with the track slippery, after stopping at Summit street and then picking up the rope — that is, stopping the grip and rope so that it will pull the train from ten to a hundred feet up the incline east of Summit, if the grip then breaks, can the gripman hold it with any brakes, even with rail brakes or anything else?
“Q. Yes? A. I say he ought to stop the train on that level.
“Q. On which? A. On the level of Summit street.
“Q. After it has left Summit street? A. Yes, sir.
“Q. And stop it after it runs how far? A. You mean if it runs up?
“Q. Yes, sir. A. If it runs up the length of the train, that is forty or fifty feet.
“Q. I say, suppose he goes a hundred to a hundred and fifty feet, and the rail is quite slippery, a foggy morning, and the rail is slippery and gummy, a gummy rail, then can he stop it? A. The chances are against him; if he gets from a hundred to a hundred and fifty feet, he will not stop it with a big load.
“Q. Not stop it? A. I don’t say not stop it, the chances are he would not.
“Q. He would not stop it even if the track was sanded, if it got that start? A. I would say if the track was sanded, he ought to stop it
“Q. How is that? A. I say, if the track was sanded, he ought to stop it.
“Q. With what kind of a brake? A. With a ratchet brake and an automatic.”

There were a number of witnesses who testified to the good health of plaintiff prior to the accident, and also to her subsequent bad health. Also witnesses who were present at the wreck who described the condition of the car upon which plaintiff was riding after the collision, as well as the appearance of the plaintiff after the wreck.

Such was plaintiff’s case in chief and at.this point the trial court'overruled a demurrer to the testimony-offered by the defendants.

The defendant from a number of witnesses who were or had been in their operating department deduced a number of facts, as follows: First, by an experienced man there was explained to the jury the full operation of a cable train — the movement and condition of the cable or rope — the mechanism and operation of the grip which attaches to the cable for the moving of the car — the mechanism and operation of the three kinds of brakes, i. ratchet, automatic, and rail brake — the construction and purpose of the cable conduit, and the pulleys therein — in fact a full description of the operation of a train and the instrumentalities used in such operation. It was also shown that a casting on the grip jaw broke first before that train started backward. The grip itself and the parts thereof were before the jury and fully explained. It was shown that the rail brake was not better than the ones used, and in fact not as good; that the material used in the grip was the best obtainable; that the' grip on this ear had been inspected the night before and was in good condition; that there was no mud or water in the conduit for the cable; that the rope or cable was well oiled; that mud and water would take off the tar and oil from the rope and make the grip take hold of the rope firmer and quicker and start the train with a jerk; that this would place a greater strain on the grip; that the rope or cable was in the grip just after the accident, bnt the grip was broken and the break a fresh one.

The motorman was a witness and testified that his car had gotten about the train-length from Summit street when his grip broke with a snap; that he put on the automatic brake and then the ratchet brake, but was unable to stop the train; that he did all that could be done, and remained with his train until the collision; that he then took out the grip and found it broken, the break being fresh throughout; that he had the train well loaded. Other witnesses not employees of defendant corroborate him as to the grip snapping just before the train started backward.

By one witness it was shown that sand was not a good thing to use on an incline because it made the cars pull heavy up hill. By another that the rail brake would knock off the sand. By another that they usually sanded this incline every morning, but he would not say that it had been sanded on this morning. By another it was shown that there was a flagman who was stationed at Mulberry street to watch the street crossing, and also to see that the cars did not run too closely together on that viaduct and incline, and that at the stockyards a mile west of Mulberry street there was a man to space the cars going east over this incline.

From the evidence it also appears that it was a damp, foggy morning and the rails were wet and gummy; that the rope was being properly oiled; that the grip was properly inspected, although on cross-examination it Was developed that there was but one man to inspect twenty or more trains, and it took a half hour to the train, which was more hours than he had from the time the trains came in at night and went out in the morning.

In fact the evidence showed care upon the part -of the gripman and the use of proper appliances in proper conditions.

This sufficiently states the case.

I. Defendant insists that its demurrer to plaintiff’s evidence should have heen sustained. To this we cannot assent. The relationship of passenger and carrier was shown. The collision of two cars was shown, and the consequent injury of the plaintiff was shown. The management, control and operation of these two cars or trains were shown to have been exclusively in the hands of the defendant, its agents and-employees. The occurrence, i. e., the collision, is not: of the usual and ordinary occurrences in the operation: of such trains. On the other hand it is an unusual! occurrence. The full details of this collision were before the jury. With this situation proven there arises for the protection of a passenger a presumption of negligence upon the part of the carrier, so that at the close of plaintiff’s case, unless for reasons to be discussed later, she was debarred of this presumption of negligence, she had made a prima-facie case for the jury, and the demurrer was properly overruled.

II. But it is contended by the defendant that the doctrine res ipsa loquitur does not apply to this case. This it would seem was urged upon two grounds, when we read the briefs in this and the companion case of Loftus v. Metropolitan Street Railway Co., infra, page 470, and passed upon at this term of the court, and which for good reasons we have in a way considered with this case. First, defendant urges that the petition charges specific negligence and not general negligence, and for that reason the doctrine of' res ipsa loquitur has no application. Secondly, they urge that although it be conceded that the petition is-one charging general negligence, yet the plaintiff in her proof in chief undertook to point out specific acts of negligence, and for that reason the doctrine of res ipsa loquitur does not apply and all instructions. based upon that theory were erroneously given. Of these two contentions in their order.

(a). Does this petition charge specific acts of negligence? We think not. The only charge is that “the defendant carelessly, negligently caused and permitted the' train on which plaintiff was riding as a passenger, to come in violent collision with another train of defendant’s, said other train being on said Twelfth street and on said incline as aforesaid; that said collision was occasioned without any fault on the part of the plaintiff, but by reason of the negligence as aforesaid of the defendant.”

This to our mind is a charge of general negligence. Had the petition averred a negligent collision of the two trains, and then proceeded to state that such collision was occasioned by the negligence of the gripman in the operation of the car, or the negligence of the conductor in the operation of the train, and pointed out wherein they or either of them had been negligent, or had it charged a negligent failure to use proper appliances and pointed out the insufficient appliances; or had it charged that the collision was due to some negligent condition of the track, nam-. ing and pointing out such, or other such similar specific acts, then there would have been specific negligence. By defendant we are pointed to the case of Roscoe v. Railroad, 202 Mo. 576. This case is not in point nor an authority here. In that case not only a negligent collision was charged, but we analyzed the petition and found six specific charges of negligent acts which were alleged to have brought about the collision. We then held, and rightly, under the great weight of authority, that the plaintiff had pleaded negligence specifically, and if a recovery was had it must be upon specific acts of negligence. But the petition there and the petition here are not at all similar. No specific acts of negligence are charged in the petition before us now. It is as general as it could be to state a case or charge negligence at all. Nor do these views conflict with Orcutt v. Century Bldg. Co., 201 Mo. 424, for in that case there was a number of specific assignments of negligence charged in the petition, as there was in the Roscoe case, supra.

We are next cited to the case of Davidson v. Transit Co., 211 Mo. 320, and especially that part of the opinion found upon the bottom of page 361 and top of page 362. This case is apparently in conflict with the views as herein expressed on the question of the petition in the case at bar stating general and not specific negligence. In the Davidson case the charge of negligence “was very much as in the case at bar. It was a collision of two street cars, and the negligence was thus stated, “defendant so carelessly and negligently conducted itself that a car in which plaintiff was riding was caused to collide with another car belonging to defendant upon Grand avenue, near its intersection with Finney avenue, whereby plaintiff was thrown down,” etc. The Davidson case, when finally determined by the court.In Banc, makes this observation as to the character of the charge of negligence contained in the petition of that cause: “A recovery in this action is sought upon the negligence which is alleged to consist in the defendant’s so carelessly and negligently operating its cars that the car in which plaintiff was riding was caused to collide with another car belonging to defendant upon one of the avenues of the city of St. Louis. In other words, specific negligence was alleged upon which a recovery was sought, and the instruction in order to conform to the uniform rulings of this court should have limited the consideration of the jury to the acts of negligence specifically complained of in the petition.”

The case of Roscoe, supra, is cited in connection with this proposition. We are inclined to think that the language of the Davidson opinion goes too far when it denominates the charge of negligence so contained in the petition of that ease specific negligence, rather than general negligence.

(b). Nor are we impressed with the contention made that because plaintiff on her case in chief put in proof of some specific acts of negligence, she is thereby precluded from the presumption of negligence to which she was entitled under her petition, it being one charging negligence in general terms and not Bpeeifically. In so doing she assumed a burden that she did not have to assume in making out' a primafacie case, but it does not lose her the right of resting upon the presumption, if the evidence so introduced does not clearly show what did cause the accident. The rule is well stated by the Supreme Court of Massachusetts, in Cassady v. Old Colony Street Railway Co., 32 Am. and Eng. R. R. Cases (N. S.), l. c. 671: ‘£ The defendant also contends that even if originally the doctrine would have been applicable, the plaintiff had lost or waived her rights under that doctrine, because, instead of resting her case solely upon it, she undertook to go further, and show particularly the cause of the accident. This position is not tenable. It is true that, where the evidence shows the precise cause of the accident, as in Winship v. Railroad, 170 Mass. 464, 49 N. E. 647, and Buckland v. Railroad, 181 Mass. 3, 62 N. E. 955, and similar cases, there is, of course, no room for the application of the doctrine of presumption. The real cause being shown, there is no occasion to inquire as to what the presumption would have been as to it if it had not been shown. But, if at the close of the evidence, the cause does not clearly appear, or if' there is a dispute as to what it is, then it is open to the plaintiff to argue upon the whole evidence,, ,and the jury are justified in relying upon presumptions, unless they are satisfied that the cause has been shown to be inconsistent with it. An unsuccessful attempt to prove by direct evidence the precise cause does not estop the plaintiff' from relying upon the presumptions applicable to it. ’ ’ To like effect is D’Arcy v. Railroad, 81 N. Y. Supp. 952.

This is different from a case wherein the plaintiff pleads that the collision was occasioned by one or more specific acts of negligence. When she so pleads it rises to the dignity of an admission of record, that she knew the cause of the accident. Not only so, but she points out specifically the negligent acts, and must prove them, and recover, if at all, upon the negligent acts pleaded. A mere attempt to prove negligent acts hardly justifies the conclusion that a plaintiff knows the cause of the accident. The Roscoe case, supra, does not go to the extent of supporting this contention of the defendant, nor do we feel that we should go a step further as argued by counsel in the' oral argument.

III. Defendant lodges several complaints against the action of the trial court in giving instruction numbered 1, for plaintiff, which instruction we have set out in the statement.

(a). It is urged as being erroneous because the doctrine of res ipsa loquitur does not apply to this case. This contention we have disposed of in our preceding paragraph. If the negligence pleaded is general negligence and not specific negligence, as we have above concluded, then the case falls peculiarly within the doctrine of res ipsa loquitur. We have an unusual occurrence in the operation of machinery entirely under the control of defendant. We have an injury without fault of plaintiff. We have undisputed the relation of carrier and passenger. In such case, presumptive negligence arises, and the doctrine aforesaid is fully applicable.

(b). It is urged that this instruction “too broadly states the rule of law sought to be invoked, casts the burden on appellant, and is misleading.” We are unable to view the instruction as defendant sees it. That the burden is upon the defendant to rebut the presumption and to show that it has not been guilty of- negligence in a case of this character is unquestioned law. The latter part of the instruction, which says, “and that the injury, if any, was occasioned by inevitable accident or by some cause which such highest degree of care could not have avoided,” is the bone of contention.

In the first place, when the defendant has assumed, as it must do under the law, the burden of showing that it has exercised the highest degree of care, and has carried that burden successfully, the same proof establishes that the collision was the result of inevitable accident or was by some cause which the highest degree of care could not have avoided. In other words the proof of the one is proof of all the propositions. And especially is this true where all the instrumentalities connected with the collision are absolutely under the control of the defendant, and not a scintilla of evidence tending to show an intervening and independent separate cause, as in this case.

The wording of -this instruction is well grounded on authority in this State.

In Lemon v. Chanslor, 68 Mo. l. c. 356, this court quoted with approval the following: “When damage or injury happens to the passenger by the breaking down or overturning of the coach, the presumption, prima-facie, is that it occurred by the negligence of the coachman, and the onus probcmdi is on the proprietors of the coach to establish that there has been no negligence whatever, and that the damage or injury has been occasioned by inevitable casualty, or by some other cause which human care and foresight could not prevent. For the law will, in tenderness to human life and limbs, hold the proprietors liable for the slightest negligence, and will compel them by satisfactory proofs, to repel every imputation thereof.”

Not only so bnt we expressly approved of instructions one and two given for tbe plaintiff and found set out at length in 68 Mo. l. c. 342 and 343. The latter part of instruction one reads: “then it rests on the defendant to prove to your satisfaction that said hack was safe, sound, roadworthy, not overloaded and carefully driven, and that said axle broke, and said accident arose from and was caused by inevitable accident or defect that could not have been seen, detected or known to defendants, their servants or agents, by the exercise of the utmost skill, knowledge, foresight, care, inspection and examination of said coach by defendants, their agents or servants, and unless the jury so believe they will find for plaintiff. ’ ’

And instruction two, so approved, reads: “If the jury believe from the evidence that on February 3, 1874, the defendants were engaged in the business of transporting passengers from the railroad depot in Lexington to any and all points of said city, and that on said day the plaintiff was received by them, or their agents, at said depot to be carried on one of the hacks of defendants, and that while being so transported on said hack plaintiff was injured by reason of the breaking of an axle 'on said hack, then the burden of proof rests upon defendants to prove to the satisfaction of the jury that said breakdown was caused by inevitable accident and not from any defect, imperfection in the hack, overloading or careless driving, and that by the exercise of the utmost human foresight, knowledge, skill and care, such injury could not have been prevented by defendants, their agents or servants, and unless the jury so believe they will find for the plaintiff.” The instruction in the case at bar goes no further. In each of the instructions, supra, the burthen was placed upon defendant not only to show no negligence on his part, but in addition that the injury “was caused by inevitable accident.”

Again in the case of Coudy v. Railroad, 85 Mo. l. c. 85, Norton, J., said: “The court gave an instruction predicating the right of plaintiff to recover on the facts stated in the petition, and told the jury that if they believed from the evidence that those facts were true they would find for plaintiff, unless they further found that the checking of the train was the result of some unforséen or unavoidable accident beyond the control of defendant’s agents, and that the burden of proof was on the defendant to show such fact. It is claimed that this instruction is erroneous in that it devolves on defendant the burden of excusing the sudden cheeking of the train. The instruction, we think, is sustained by the authorities which hold that when an injury is shown to have been occasioned by an error of the carrier or his servants in operating the instrumentalities employed in the business of carrying, a presumption of negligence arises against the carrier, which casts on him the burden of showing that the accident happened notwithstanding the exercise on his part of the high degree of care which the law imposes upon him. ’ ’ It will be noted that the instruction complained of in that case placed the burden upon defendant to show that the injury was the result of “some unforseen or unavoidable accident.”

Further, in Hipsley v. Railroad, 88 Mo. l. c. 352, this court said: “In the case of Lemon v. Chanslor, 68 Mo. 341, we had occasion to consider the rights of a passenger and the duty under the law which that relation cast upon the common carrier, and it was there held that when the evidence shows that a passenger, without fault of his own, received injury by the overturning or breaking down of the vehicle in which he is being carried, a prima-facie case is made out for him, and the onus is cast upon the carrier of relieving himself from the responsibility by showing that the injury was the result of an accident which the utmost skill, foresight and diligence could not have prevented. This rule was applied in a case where horse power and hack were used by the carrier for carrying passengers, and it applies with equal if not greater force when the more powerful instrumentality of steam is used as the motive power. While carriers are not insurers of the absolute safety of passengers and are not responsible for inevitable and unavoidable accidents, regard for the safety of human life and limb has led to the adoption of the rule announced.”

To a like effect is the language of Gantt, P. J., in Clark v. Railroad, 127 Mo. l. c. 208, wherein he says: “The obligation of a steam railway carrier to its passengers is, as far as it is capable by human care and foresight, to. carry them safely, and it is responsible for all injuries resulting to its passengers from any, even the slightest, neglect, and when the passenger suffers injury by the breaking down or overturning of the coach the prima-facie presumption is that it was occasioned by some negligence of the carrier, and the burden is cast upon the carrier to rebut and establish that there has been no negligence on its part and that the injury was occasioned by inevitable accident or by .some cause which human precaution and foresight could not have averted. [Lemon v. Chanslor, 68 Mo. 340; Furnish v. Railroad, 102 Mo. 438.] ”

The broad doctrine announced in Feary v. Railroad, 162 Mo. l. c. 100; under paragraph IX, by Marshall, J., is not in accord with the cases cited above. It is based largely upon the case of Tuttle v. Railroad, 48 Iowa 236, and entirely ignores the pronounced doctrine of this court in the cases, supra. The Iowa court is not in harmony with this court upon the question in hand, except in the Feary case, supra, and on this point we are not inclined to follow the Feary case. Had it reviewed and overruled the previous Missouri cases a different question would have been presented.

In cases such as is disclosed by the record in this case, this instruction is proper.

IV. Objection is urged to plaintiff’s instruction number 2, wbicb reads: ‘ ‘ The jury are instructed that the plaintiff claims in'her petition that on November 4,1903, she was a passenger on a cable train of defendant, and that while she was a passenger on such train it came in collision with another cable train of defendant.

“Now, if you find for the plaintiff, and if you believe from the evidence that she sustained injuries as a direct result of said collision, then you may allow her damages for such injuries, if any, as you may believe from the evidence she has sustained as a direct result of said collision. In estimating such damages you may take into consideration the pain and suffering which you may believe from the evidence she has endured, if any, or is reasonably certain to endure in the future, if. any, as a direct result of such injuries, if any. You may also take into consideration the loss of earnings, if any, which you may believe from the evidence she has sustained as a direct result of such injuries, if any. You may also take into consideration any sum of money which you may believe from the evidence plaintiff has reasonably become liable for, if any, for necessary medical treatment received by her on account of and as a direct result of said injuries, if any, not to exceed $250, but the whole amount of your verdict should not exceed the sum of $15,000.”

The portion attacked is the first paragraph, wherein the court sets out what the plaintiff claims in her petition. The remaining portion of the instruction is certainly not objectionable as to the measure of damages, and the items going to make up such damages. There was evidence as to her earning capacity, as there was also evidence of the sums for which she had become obligated for medical services. This portion of the instruction has met with frequent approval by this court. Nor is the first paragraph objectionable, for it simply recites what the plaintiff claims in the petition and no more. It in nowise assumes such claims to be true or to have been proven, but makes a simple recital of her claims as stated in the petition. There was no error in giving this instruction.

V. (a). It is next urged that there was error in refusing defendant’s instruction number 2. This instruction attempted to declare the law thus: “The court instructs the jury that in this case the burden of proof rests upon the plaintiff to prove to your satisfaction by the preponderance of the credible evidence in the case, that defendant’s servants were guilty of negligence as submitted to you in these instructions for your consideration; and this burden of proof as to said negligence continues with the plaintiff throughout the entire trial; and unless you believe and find from the evidence in this case that the plaintiff has proven by a preponderance of the credible evidence in the case, to your satisfaction, that the defendant’s servants at the time and place alleged, were guilty of negligence as alleged and specified in these instructions, and that said negligence was the direct and proximate cause of plaintiff’s injury, then you cannot find for the plaintiff, and your verdict must be for the defendant.”

Such an instruction has no place in a case where the doctrine of res ipsa loquitur is applicable. It destroys every vestige of the doctrine of presumptive negligence. In a preceding paragraph the question of the burden of proof is fully discussed, and we shall not reiterate at this point. The instruction was properly refused.

(b). Defendant also complains of the court in modifying instruction number 6 as asked by it. The court struck out the words, “in charge of the train,” which we have italicized in the original draft presented by defendant, which original instructions reads: ‘ ‘ Carriers of passengers are. not insurers of the safety of those whom they convey, nor answerable for an accident, no matter how produced, excepting only those accidents which can'be traced to some neglect of duty. If, therefore, you believe from the evidence that the injuries sustained by the plaintiff were merely the result of accident, no matter how produced, other than by negligence of defendant’s servants in charge of the train, then plaintiff cannot recover, and your verdict must be for the defendant.”

With the five italicized words stricken out the court gave the instruction. There was no error in striking out these words. Under the proof in this case, which not only covered acts of the servants in charge of the train, but divers other acts which might have produced the accident, the modification was imperatively demanded. The instruction as modified and given was really more favorable to the defendant than was authorized by the record.

Several other similar objections are urged to the refusal of instructions by the trial court, each of which we have examined, but find them without sufficient merit to require detailed notice herein.

VI. In the course of the trial it was shown over the objection of the defendant that after this collision the plaintiff suffered from a displaced or retroverted womb. The admission of this testimony is alleged as error, as being beyond the purview of the injuries charged in the petition.

The petition charges: “That she received a hard and serious blow on the back of her head, seriously injuring plaintiff’s head; that she received a hard and serious blow in the chest and stomach, seriously injuring the same; that plaintiff’s right hip was crushed, dislocated and injured, her right arm was sprained, skinned and bruised; that her back was twisted, wrenched, sprained and injured; that her left side and leg were skinned and injured, and that she received serious, painful and permanent internal injuries.”

This evidence Was evidently admitted under the latter clause of the allegation pertaining to internal injuries, which is rather general on the subject of internal injuries. Yet, this was an internal bodily injury, and we use the terms “bodily injury” purposely, so as to distinguish such from conditions and diseases which may result from bodily injuries. The one may be shown under a general allegation whilst to the mind of the writer the other should be specifically pleaded and pointed out by the pleadings.

A similar question is thus disposed of by Johnson, J., of the Kansas City Court of Appeals, in the case of Wilbur v. Railroad, 110 Mo. App. l. c. 693: “Over the objections of defendant the plaintiff was permitted to introduce evidence of various bodily injuries, chiefly internal, sustained from his violent projection and fall. The ground of the objections was the absence from the petition of allegations of the existence of the particular injuries which the evidence admitted at the trial tended to prove. The averment is that plaintiff ‘was greatly injured in body and mind and suffered great permanent injury.’ It is true, as urged by defendant, that all of the facts constitutive of the cause of action must be pleaded in the petition. [Sidway v. Mo. Land, etc., Co., 163 Mo. 375; Lanitz v. King, 93 Mo. 513; Pier v. Heinrichoffen, 52 Mo. 336; Leete v. Bank, 141 Mo. 581.] But defendant in making application of this rule assumes an incorrect premise. It is the fact of injury that is elemental, not the nature or character of the particular wounds and hurts which necessarily and naturally result from the negligent act. They serve to create the substantive fact and are included within its bounds. Evidence of particular bodily injuries received by plaintiff in the wreck resulting from defendant’s negligence was admissible under a general averment of injury to the body. [Brown v. Railroad, 99 Mo. 318; Seckinger v. Mfg. Co., 129 Mo. 590; Coontz v. Eailroad, 115 Mo. 674; State to use v. Bacon, 24 Mo. App. 405; Pinney v. Berry, 61 Mo. 359; Barrett v. Telegraph Co., 42 Mo. App. 542.] It is not to be inferred defendant Would not have been entitled to a more definite statement had he by proper motion sought to be informed of the nature of the injuries claimed. Without filing such motion defendant answered, putting in issue the fact of any injury. In this condition of the record, the objections, made for the first at the trial, came too late. [Seckinger v. Mfg. Co., supra; Grove v. Kansas City, 75 Mo. 672; Spurlock v. Railroad, 93 Mo. 530; Bowie v. Kansas City, 51 Mo. 454.] ”

We think this correctly states the law as to bodily injuries received in an accident, but it should be limited as Judge Johnson does limit it. If plaintiff proposed to rely upon conditions and diseases growing out of the alleged bodily injuries, then specific pleading thereof should be required, or the evidence excluded.

We are cited by defendant to the case of Magrane v. Railroad, 183 Mo. 119. It is from the fifth paragraph of that opinion wherein defendant seeks consolation. It will be observed that for some reason unknown to the writer not then a member of this court, that paragraph was withdrawn by a per curiam opinion. The case as it now stands, therefore, lends little weight to defendant’s contention, but the original opinion accords with the views of the writer, because the evidence there introduced was such as showed a condition or disease superinduced by a bodily injury, and as we see it, such condition or disease so resulting should have been specifically pleaded, and could not be proven under a general allegation of bodily injuries alone. But the case at bar is different. This petition alléges internal bodily injuries generally, and one of those internal bodily injuries is shown to be a misplaced womb. In other words, it is a bodily injury itself that is shown, rather than a condition or disease growing out of a bodily injury. This contention is ruled against defendant.

YU. Further contention is made that there was error in admitting the testimony concerning the rail brakes. There was no error in admitting this evidence. It appears that upon a similar incline controlled by defendant and over which defendant operated its cars, rail brakes were in use and that they were very effective in stopping cars on an incline. In fact, that they were the most effective appliance for such purpose. This presents, therefore, a different question to a case wherein the defendant had never adopted the use of such appliances. Here it had adopted and used such appliances, but failed to have them upon the car .in question, or in use upon the line in question.

The cases relied upon by defendant are such as hold that a railroad is not required to adopt every appliance which some roads, or even a majority of well-regulated roads have adopted, nor to adopt the latest and newest appliances. They are not in point in this case and that for two reasons. First, these cases relate, to the duties of a master to his servant,, and the degree of care required in that case is not. the degree of care required between carrier and passenger. And, secondly, even if the same degree of care were applicable to the two classes of cases, which is not true, yet where it is shown that the defendant, had adopted and used the device and it was safer and better than others in use for a like purpose, the evidence was proper as tending to show the failure to exercise that degree of care required by the law.

VIII. There is also a charge of improper remarks by counsel for plaintiff, which we have examined, and we fail to see any substantial error in the action of the court at the time.

Nor is there merit in the claim of excessive damages. The woman was under the evidence seriously and permanently injured. She earned $120 per month the month previous to the accident. She had not been able to return to her work at the time of the trial. A further detail of the injuries would serve no useful purpose. It follows from what has been said that the judgment should be and is affirmed, but inasmuch as the conclusion here reached upon the question of whether or not the petition states general or specific negligence is in conflict with Davidson v. Transit Co., supra, a case decided by the court In Banc, this cause should be and is certified to the court In Banc, for final determination.

Vallicmt, J., concurs in toto, except he does not think this case conflicts with the Davidson case; Woodson, J., concurs in result, but dissents from paragraph one and expresses no opinion on paragraph six; Lamm, P. J., concurs in all except paragraph six.

SEPABATE CONCURRING- OPINION.

VALLIANT, C. J.

The subjoined opinion written by me in division is filed herein as an expression of my views upon the case in this court.

I concur in all that my Brother Graves has written as the law of this case, but I do not agree that what he has said is in conflict with what was said in the case of Davidson v. Transit Co., 211 Mo. 320. That case and this are alike to this extent, to-wit, the injury in each case was caused by a collision of two street cars belonging to and operated by the same defendant, and it was so stated in each petition, and also that the collision was caused by tbe negligence of defendant’s servants operating the cars, but there was no further specification of negligence, that is, in neither case did the plaintiff specify in what respect the servants handling the cars were negligent; the statement was that the collision occurred by their negligence, that was all.

The charge of negligence in each case was in a sense general and in another sense specific; it was general in the sense that it did not specify the negligent act of the defendant’s servants in bringing about the collision, and it was specific in the sense that it did allege that the injury was caused by a collision of two cars operated by defendant. Therefore, reading what was said in the Davidson case, in the close connection in Which it was said, the court was entirely justified in saying that the charge of negligence in that petition was specific, because the court was comparing the allegation in the petition with the instruction given for the plaintiff. In that instruction there was no reference to a collision, and the jury were not required to find that there was a collision, but were authorized to find for the plaintiff if they should find that defendant was negligent in any respect whatever. After defining the degree of care that a carrier was required to exercise for the protection of a passenger the instruction said: “and the defendant is responsible for the injuries resulting to its passengers through the failure to exercise such care, and any failure on the part of the defendant to exercise a very high degree of care and diligence of a very prudent person in operating its cars would be such negligence as to make the defendant liable for any injury to the plaintiff resulting from such neglect.” So this court said: “A recovery in this action is sought upon the negligence which is alleged to consist in the defendant’s so carelessly and negligently operating its cars that the car in which plaintiff was riding was caused to collide with another car belonging to defendant upon one of the avenues of the city of St. Louis. In other words, specific negligence was alleged,” etc. Under the instruction in the Davidson case, though the plaintiff had failed to make any proof of a collision, and her evidence had tended to show that she had been thrown to the ground in attempting to alight from the car by a sudden starting of it, the jury were authorized to find a verdict for the plaintiff, but this court said, No, you have specified a collision between two cars and you can recover only on proof of that specification.

But in the case at bar there is no such instruction; the jury were authorized to find a verdict for the plaintiff only on proof of the negligence specified, to-wit, the collision. In that sense the charge was specific, although in pleading the negligence of the defendant’s servants in bringing about the collision the charge was general. Therefore, it is correct in this ease to say, in the connection in which the term is used, that the charge is general. In my opinion there is no conflict between what this court said in .the Davidson case and what Brother Graves now says in this case; therefore, I dissent from the order transferring the cause to the court In Banc.


author: PER CURIAM. GRAVES, J.

text:
    ESTHER LOFTUS, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY.
    In Banc,
    May 22, 1909.
    1. NEGLIGENCE: Collision: Instruction: “Experienced Men.” The court did not err, in a suit for damages for personal injuries to a passenger resulting from a collision between street cars, in instructing the jury that the obligation from defendant to the injured passenger “was to use the highest practicable degree of care of very prudent, skillful and experienced men engaged in that kind of business, to carry her safely.” A practical railroad operative must be one of experience in that line, and the instruction properly used the words “experienced men.”

      2. ONE NEW TRIAL: Judicial Discretion: In Light of Facts of Case. In a broad sense, the granting of a new trial, especially one new trial, rests in the sound discretion of the trial court, and this discretion, like all other judicial discretion, should not be disturbed when properly exercised. But there is no discretion as to the law of a case; and where the trial judge grants a new trial because of supposed error in an instruction given but in fact not error, his act in granting a new -trial for that reason alone cannot be said to have been the exercise of a sound judicial discretion.
    3. EXCESSIVE VERDICT: $7,595. Plaintiff, a passenger, was injured by a collision between street cars. The large bone of the left leg between the knee and ankle was broken, an oblique fracture; her back was sprained and bruised; her right side and hip were bruised; the right foot and leg were bruised, principally between the knee and ankle; she was in the hospital for eleven weeks, and used crutches for over four months longer; the injury to the hip is not classed as permanent, nor are the sundry bruises; after the injury she appeared to be troubled with nervousness, which is “apt to be permanent.” She had prior to the injury earned $5.50 per week, as a clerk in a dry goods store. -Held,, that a verdict for $7,595 is not so excessive as to have authorized the trial court to give a new trial, and there being no other error in the case, the order-of the court granting a new trial because of supposed error in an instruction is reversed, and the cause is remanded with directions to reinstate the judgment as originally entered.
    4. NEGLIGENCE: Passenger: Collision: General or Special Charge: Instruction. A petition whose only charge of negligence is that “at a point commonly known as the Twelfth street incline, the defendant carelessly and negligently caused and permitted the train on which plaintiff was a passenger to come into violent collision with another of defendant’s trains; that said collision was occasioned without any fault on the part of plaintiff, but by reason of the negligence as aforesaid of defendant; that said cars collided with great force and violence, wrecking both trains of defendant, in which collision and wreck plaintiff was injured as follows,” etc., charges general and not specific negligence; and- the doctrine of res ipsa loquiiw applies, and an instruction placing the burden on defendant to show that the collision could not have been avoided by the highest degree of care was properly given.
    Appeal from Jackson Circuit Court.- — Hon. John G. Park, Judge.
    Reversed and remanded {with directions).

      McGune, Harding, Brown & Murphy for appellant.
    (1) This court has a superintending power over inferior courts and the final responsibility to see that justice is properly administered rests here, but this court should never interfere except “when the verdict and judgment are manifestly wrong, or shock a judicial sense of right.” Taylor v. Railroad,. 185 Mo. 260. It is primarily the duty of the jury to fix the amount of damages in this case. There is and can be no scale of measurement. It admits of no test save the intelligence and good faith of the jury. To the-jury, therefore, as a favorite and almost sacred tribunal, is committed the exclusive task of examining the facts and circumstances, valuing the injury and awarding the damages, and the law that confers on them this power and exacts of them the performance of this solemn trust favors the presumption that they are acting honestly and wisely. And the courts will not interfere until the verdict so loudly proclaims prejudice and passion as to leave no doubtful conviction on that point. Hollenbeck v. Railroad, 141 Mo. 112; Markey v. Railroad, 185 Mo. 364; Dammann v. St. Louis, 152 Mo. 186; Minter v. Bradstreet, 174 Mo. 504. The jury saw the plaintiff, they witnessed her nervous condition, they heard the evidence and made an unanimous finding. The record betrays no word or act to excite the passions of the jury. Defendant makes no such claim. On the contrary, the record shows that the plaintiff’s deformities were not exhibited to the jury, nor even the character of shoe plaintiff was compelled to wear. (2) The court erred in sustaining defendant’s motion for new trial. The only reason assigned by the court was for giving instruction 1 for plaintiff. This instruction was properly given by the court and it was error to grant a new trial. Cassady v. Railroad (Mass.), 32 Am. and Eng. Ry. Cas. 666; Redmon v. Railroad, 185 Mo. 11; Wilbur v. Railroad, 110 Mo. App. 694; Clark v. Railroad, 127 Mo. 208; Lemon v. Cbanslor, 68 Mo. 355; Cboquette v. Railroad, 80 Mo. 520; Magrane v. Railroad, 183 Mo. 119; Hipsley v. Railroad, 88 Mo. 348; Allen v. Railroad, 183 Mo. 411 ;• Coudy v. Railroad, 85 Mo. 85; Ocbs v. Railroad, 130 ■ Mo. 51; Malloy v. Railroad, 173 Mo. 75; Robinson v. Railroad, 103 Mo. App. 115; Tateman v. Railroad, 96 Mo. App. 453; Rattan v. Railroad, 120 Mo. App. 270; Hamilton v. Railroad, 114 Mo. App. 509; Roscoe v. Railroad, 202 Mo. 576; Orcutt v. Century Building Co., 112 S. W. 532.

      Johyt H. Lucas, Frank G. Johnson and Ben F. White for respondent.
    (1) Tbe question is, will this court affirm or -reverse the action of the trial court in granting to the defendant one new trial? This is one of those cases where the trial court, sitting in review of its own action, takes up the question as to whether, on the whole case, the losing party has had a fair trial, in accordance with well-settled principles of law, and has decided that the defendant did not, and has granted it a new trial. This court, in two recent decisions, and through two different judges, has declared the law on this point in such few words and so clearly that nothing we can say will probably assist the court in any way. Rodan v. Railroad, 207 Mo. 406; Seeger v. Silver Co., 193 Mo. 407. Did the court in this case abuse its discretion in granting to this defendant a new trial? Or is it such a case that if the verdict had been for the defendant it could not have stood? We think clearly not. The action of the trial court in granting a new trial should be affirmed for at least three reasons: (a) The ground alleged by the court as its reason for granting the new trial is a good one, and fully justified its action, (b) A new trial should have been granted because on tbe whole case the verdict should have been for the defendant, unless the law be that a common carrier of passengers is an insurer of the lives and persons of those whom it conveys, and which it is not. (c) The action of the court in granting the new trial was neither arbitrary nor an abuse of discretion; and if the verdict had been for the defendant it would have been abundantly sustained by the evidence. (2) On thé hearing of the motion for a new trial the court was convinced that it had erred in the giving of plaintiff’s instruction IP. The words “and experienced” appear in the instruction as given by the court. This instruction as given imposes the duty on the defendant to employ none but “experienced” men in its business, which is a duty not imposed by law. What is an “experienced man?” How long must he have worked to be experienced? A week? A month? A year?' Ten years? But if a man is both prudent and skillful in the railway business, why should he also have had experience? Does the law impose the duty of employing none but “experienced” men by a railroad company? If it does, what is a railroad company to do when the present supply of experienced men is exhausted? One man may be prudent and skillful with but little experience, while another may be careless on account of the very fact that he has long been in the business. This is but an illustration of one of the traits of human conduct, the test is, was he skillful and prudent?
   IN BANC.

PER CURIAM.

All of the opinion of Craves, J., in division, is adopted as the views of the court, except the result and those views expressed in paragraph three thereof, wherein it is held that the verdict is so excessive as to authorize an affirmance of the judgment on that ground. The majority of the court is not

of opinion that the size of the verdict is snch as to authorize the affirmance of the judgment, nisi. The court is of the further opinion that there is no real conflict between this case and the Davidson case mentioned in the divisional opinion, and have this day expressed more fully their views upon this question in a per curiam opinion in the case of Price v. Metropolitan Street Ry. Co., reported at page 435 of this Report. A majority of the court, Graves, J., not assenting, is of the opinion that the amount of the verdict is not such as to authorize the action of the lower court in sustaining the motion for a new trial, and there being no other error in the record, the cause should be reversed and remanded with directions to reinstate plaintiff’s judgment of the date as originally entered. It is so ordered.

Graves,- J., adheres to the views of paragraph three as originally expressed; Valliant, C. J., absent.

IN DIVISION ONE.

GRAVES, J.

This is a companion case to the case of Elizabeth Price v. Metropolitan Street Railway Company, decided at this term and reported at page 435 of this Report. Both eases grew out of the same accident and both were tried before the same judge in the court nisi. As to the accident and the causes or want of cause, the evidence of the two cases is along the same lines, many of the same witnesses being used, and their testimony is substantially to the same effect in each case. This case should be read with the other for a detail of the facts.

Plaintiff was working for the firm of Emery, Bird & Thayer in Kansas City, Mo., although she lived in Kansas City, Kansas. She boarded a street car at Grandview in Kansas City, Kansas, and then transferred and got on the front end of the trailer or coach on the Twelfth Street train going east from Mulberry street, which train was wrecked as fully stated in the companion case. This plaintiff was standing up in the front end of the coach or trailer and was seriously injured.

The order of her testimony was such as we find in the other case, that is to say, the plaintiff was not content with showing the collision, the attendant circumstances and her consequent injuries, and the relationship of passenger and carrier, hut proceeded, in chief, to introduce other evidence.

She sued for $15,000, and the cause being submitted to the jury a verdict in her favor for the sum of $7,595' was returned by the jury.

The negligence charged in the petition is thus stated: “And at a point commonly known as the Twelfth Street incline, the defendant carelessly and negligently caused and permitted the train on which plaintiff was riding as a passenger, to come in violent collision with another train of defendant’s, such other train being on said Twelfth Street and on said incline as aforesaid. That said collision was occasioned without any fault on the part of plaintiff, but by reason of the negligence as aforesaid of the defendant. That said cars collided with great force and violence, wrecking both trains of defendant, in which collision and wreck plaintiff was injured as follows:” etc.

Defendant’s answer was a general denial. After verdict was returned the defendant filed its motions for new trial and in arrest of judgment, which motions were by the court sustained by an order of record in this language: “Now on this day it is ordered by the court that the motion for a new trial and motion in arrest of judgment he and the same are hereby sustained because the court erred in giving instruction ‘No. One P.’ to which the plaintiff excepts.”

Said instruction One P reads thus: “The court instructs the jury that if you believe from the evidence that the plaintiff was a passenger upon a train of defendant at the time she claims to have been injured, then the due obligation of the defendant to plaintiff was to use the highest practicable degree of care of very prudent, skillful and experienced men engaged in that kind of business, to carry her safely, and a failure of the defendant (if you believe there was a failure), to use such highest degree of care would constitute negligence on its part; and defendant would be responsible for all injuries resulting to plaintiff, if any, from such negligence, if any. And if you believe from the evidence that there was a collision between two trains of defendant on one of which plaintiff was a passenger (if you believe she was a passenger thereon) the burden of proof is cast upon the defendant to establish that there was no negligence on its part; and that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care could'not have avoided, and if defendant has not shown that there was no negligence on its part, or that the injury was occasioned by inevitable accident, or by a cause that said highest degree of care could not have avoided, you will find for plaintiff, provided she was injured in said collision.”

Much evidence, medical and lay, was introduced as to the character of plaintiff’s injuries, as also there was evidence, as to the condition of her health prior and subsequent to the accident. So, too, there was evidence of her earnings at date of injury. In this case-there was for the defendant the additional evidence of the train crew on the train going up the incline, which collided with the one coming backward down the incline. Their testimony was to the effect that the appliances, rope and other things were in proper condition, and that the trains ran two and one-half minutes apart at the time.

This sufficiently states this case when it is taken and read with the Price case, supra. Points made will be noted in the opinion.

I. In this case as in the case of Price v. Metropolitan Street Railway Co., supra, the defendant attacks the propriety of giving instruction No. IP. The instruction is identical with the one given in the Price case, and what we have said therein is applicable here. The defendant goes one step further with the contention here, and charges that the use of the words “and experienced” renders the instruction bad. Defendant seems to have impressed the learned trial judge with the alleged error in this instruction, in this case, although unable to so impress him in the Price case.

The use of the words “and experienced” did not render this instruction faulty. [Magrane v. Railroad, 183 Mo. l. c. 128; Heyde v. Railroad, 102 Mo. App. l. c. 541.]

In the Magrane case, supra, Valliant, J., in speaking of the degree of care required of a carrier toward its passengers, says: “It is a very high, degree of care, but not the utmost care that human imagination can conceive. It is the highest degree of care that can reasonably be expected of prudent, skillful and experienced men engaged in that kind of business. The term as far as is capable by human care and foresight’ in this connection is liable to be misconstrued by a jury as meaning care to the utmost limit imaginable, that is, care without limit, whereas the highest degree of care practicable among prudent and skillful men in that business is all that can reasonably be expected of any men and it is all that the law demands.”

In the latter case, Goode, J., said: “The court gave an instruction that if the jury found the agents, servants and employees of the defendant in control of the car on which plaintiff was a passenger, or of the track on which said car was running, or at the switch at the pi,ace where the derailment occurred, and could have prevented said derailment and collision by the exercise of the very high degree of care and foresight of skillful, careful and practical railroad operatives under the same or similar circumstances; then the plaintiff was entitled to recover. That instruction states the law with reference to the care defendant was bound to exercise to prevent an injury to the plaintiff, and is couched in- approved language. [Furnish v. Railroad, 102 Mo. 438; O’Connell v. Railroad, 106 Mo. 482; Willmott v. Railroad, 106 Mo. 535; Jackson v. Railroad, 118 Mo. 199; Hite v. Railroad, 130 Mo. 132; Sullivan v. Railroad, 133 Mo. 1; Feary v. Railroad, 162 Mo. l. c. 100; Parker v. Railroad, 69 Mo. App. 54; Freeman v. Railroad, 95 Mo. App. l. c. 99.]”

There is no difference between “practical railroad operatives” and “skillful and experienced men.” A practical railroad operative must be one of experience in that line. The instruction complained of follows the verbiage of the opinion in the Magrane case, and is fully sustained by that and the Heyde case, as well as by other opinions of this court cited in the Heyde case. The trial court was in error in sustaining the motion for new trial on this ground.

II. The further contention is made that this court should not disturb the discretion exercised by the trial court in granting the new trial. In other words, that the granting of a new trial rests within the sound discretion of the trial court. In the broad sense, the granting of a new trial does rest within the sound discretion of the trial judge, and this discretion, like all judical discretions, should not be disturbed when properly exercised. We are cited to the recent cases of Rodan v. Railroad, 207 Mo. l. c. 406, and Seeger v. Silver Co., 193 Mo. l. c. 407, as stating correct rules upon the question.

In the latter case, Judge Marshall said: “The rule is now well settled in this State that this court will not reverse the action of a trial court in granting one new trial, unless the case is such that no verdict in favor of the party to whom the new trial is thus granted, could, under any circumstances, he permitted to stand.”

And in the former, Judge Lamm said: “In the first place, in limine, it must be assumed as a common - place of the law, arising to the level of an axiom, that the granting of a new trial rests within the sound discretion of the trial court; and its action in that behalf will not be disturbed on appeal unless it appears that its discretionary power was abused, i. e., exercised in an arbitrary or improvident manner. [R. S. 1899, sec. 800; and see first note under that section, Ann. Stat. 1906, 761, where the authorities are gathered.]”

These announcements must be taken in the light of the facts of the cases. In the Seeger case the trial court had sustained a demurrer to plaintiff’s testimony and thereby forced a nonsuit. Motion was made to set aside the nonsuit and that motion sustained by the court nisi, from which order the defendant appealed. Upon such an appeal Judge Marshall used the language above quoted. It must be noted that the sole question before the trial court and this court was the sufficiency of the evidence to make a case for plaintiff. At first blush, the trial court thought not, but upon considering the motion to set aside the nonsuit reached a different conclusion. The discretion exercised then was one as to the facts, and not one purely and simply of law. So, too, in the Rodan case. The trial court concluded, upon motion for new trial filed by defendant, that it had erred in giving a certain instruction, which instruction should not have been given in view of certain facts shown in the trial. In other words, the court had instructed the jury that in the absence of evidence that the deceased did not look and listen for an approaching car, then the jury were at liberty to presume that he did look and listen. A witness for plaintiff, and the only eye-witness, had testified in effect that he saw deceased leave the sidewalk and go on across to the railroad track, paying no attention to the approaching car. Judge Lamm’s remarks were induced by this state of affairs. The question before the trial court, and upon which the judicial discretion was exercised, was a mixed question of law and fact. The trial court concluded that in view of the facts testified to by this witness there was positive testimony that deceased did not look or listen before going upon the railroad track, and therefore there was no place for an instruction upon the ground of presumption. So that in this case the discretion was really exercised as to the facts of the case. Both of those cases announce the proper rule in cases where judicial discretion has been exercised as to the facts and the weighing of the evidence as to the facts. In such cases we will not disturb such discretion in a case wherein there is sufficient evidence to sustain a verdict in favor of the party for whom such discretion has been exercised. But these cases are not this case. Upon the facts of the ease at bar a verdict for either party could be sustained, but the discretion of the trial judge was not directed to the facts, so far as the question now before us is concerned. He was passing judgment upon a clear question of law, and we have concluded that his judgment on that question was erroneous. When the judicial act is directed solely to a question of law and the act is erroneous, it does not fall within the rule of the exercise of sound judicial discretion. There is no discretion as to the law of a case. Nor can there be an exercise of a sound discretion as to the law of a case. So that when we speak of the granting of a new trial being within the sound discretion of the trial judge, we have no reference to a case where the new trial is granted solely upon the ground that the law has been erroneously given, when in fact it has been properly given.

III. Whilst we cannot say that the trial court properly sustained the motion for new trial upon the ground stated by the court, yet we have always held that if the motion for new trial could be properly sustained upon other grounds, we will not disturb the action of the trial court. In this case the motion for new trial attacks the verdict as being excessive. Plaintiff was earning $5.50 per week at date of accident. In the.accident she received the following injuries, viz.: the large bone of the left leg between the knee and ankle was broken, an oblique fracture; she had a sprain and bruises in her back; her right side and hip were bruised; the right foot and leg were bruised, principally between the knee and ankle. Such were the injuries described by Dr. Leonard. After the injury she appeared to be troubled with nervousness which is ‘ ‘ apt to be permanent. ’ ’ The left leg was shortened about an inch, although it is not fully explained just how that could be with one solid bone left therein. The injury to the hip is not classed as permanent, nor are the sundry bruises mentioned. She was eleven weeks in the hospital and used crutches until the June following the accident on November 4th. The testimony of the two medical experts is not such as to justify a verdict for the sum obtained in our judgment. So that whilst we think there is ample evidence to support a verdict for the plaintiff, and the law was properly declared in the case, so far as she was concerned, yet the motion for a new trial was properly sustained on the ground of an excessive verdict and the action of the trial court should be and is affirmed.

IV. In this case, as in the Price case, it is strenuously urged that the petition pleads specific negligence and not general negligence. Of course, if this be true, the instruction given for plaintiff on the theory of res ipsa loquitur would be erroneous. We are cited to Davidson v. Railroad, 211 Mo. 320, as sustaining this contention, and as pointed ont in the price case, there is a conflict between the views we entertain and those expressed.upon that point in the Davidson case, supra. For that reason we will affirm the judgment, hut transfer the cause to the court In Bane for further consideration. Cause is transferred to Court In Banc.

Valliant, Jhowever, is not of the opinion that this case conflicts with the Davidson case.