source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    JAMES D. QUINN, Appellant, v. METROPOLITAN STREET RAILWAY COMPANY.
    Division One,
    March 31, 1909.
    1. NEGLIGENCE: Boarding Street Car: Passenger: Refusing Instruction. The instruction given told the jury in effect that if plaintiff had offered himself as a passenger on the street ear whilst the same was stopped for that purpose, and that defendant had not permitted the car to remain standing for a sufficient time to allow plaintiff to board the same, and further that whilst plaintiff was in the act of boarding the same said car was negligently and carelessly started, and plaintiff was thereby injured, then the finding should be for plaintiff. Held, that this instruction made it the imperative duty of the jury to find for plaintiff if they found (1) certain facts which in law made him a passenger and (2) if they found certain other facts which evidenced a failure of defendant to perform the high duty required of a carrier to its passenger; therefore, the court did not err in refusing an instruction for plaintiff which told the jury that “if you find and believe from the evidence that the cable car in question came to a standstill at the usual stopping place at the junction where passengers were let off and on, and that while said car was standing the plaintiff attempted to board the same with the intention of becoming a passenger thereon, then you are instructed that the defendant was bound to exercise towards him the utmost care and skill for his safety that prudent men would have exercised while engaged in the same business under the same or similar circumstances;” for, at most, this instruction was an abstract proposition of law, and submitted no issue not submitted by the one given.
    2. -: -: -: Stopping Reasonable Length of Time. Where the signal to start the street car was given prior to the .start, it was not error to instruct the jury “if the car which plaintiff attempted to board stopped at the usual stopping place where plaintiff claims to have been injured a reasonable length of time to enable plaintiff to board the same in safety, by the exercise of ordinary care on his part,” then he could not recover. It but goes to the contributory negligence of plaintiff in not using reasonable expedition in boarding the car after it had stopped for the reception of passengers.
    3. -: -:-: Invitation to Board. When a street car has been stopped for the reception of passengers for a reasonable length of time, the invitation to enter has closed when the signal is given to start.
    4. -": --: -: Releasing Handhold: Jerk. Plaintiff had both feet upon the steps of the car and both hands holding the guardrail, and rode in that position a short distance until a lady discovered her six-year-old son had not entered the car and began to scream. He thought she was going to jump off and told her not to jump, but about the same time released the hold on one guardrail, and by a jerk was thrown off. The alleged jerk is not shown to be out of the usual for the place and surroundings. Held, that the release of his hold was not occasioned by defendant, but by the acts of the woman, and the court did not err in telling the jury that “if plaintiff got upon the car before it started, or while it was in motion, and rode upon it for some distance with each hand holding to the guardrail, in a reasonably safe position and place upon said car, and thereafter he let go of one of said guardrails and fell from the car,” he could not recover.
    5. -: Instruction: Against Interest: As In a Criminal Case. An instruction telling the jury that plaintiff is a competent witness in his own behalf, that in determining the credibility of his testimony the jury should consider his interest in the result of the trial, that what he said against his interest the law presumes to be true, and what he said in his own behalf may be treated as true or false, etc., is erroneous and prejudicial. But, in spite of that error a verdict for defendant will not be disturbed, if the evidence is such that the court should have sustained a demurrer to plaintiff’s case.
    6. -: Reading Stenographer’s Notes to Jury: By Consent. Where both sides consented, upon the request of the jury, that the stenographer might go to their room, and read all his notes to them, and he went before them, the appellant is not chargeable with an interruption in the reading by the jury informing the stenographer that they had heard all they wished to hear. Besides, the report that the stenographer made of what occurred in the jury room is no proper part of the bill of exceptions.
    7. -: Boarding Street Car: Independent Cause: No Case. The car stopped at the usual place and the usual time, and plaintiff had notice of its starting before it started. He got on the steps and seized both handholds, and was in a place of reasonable safety, and rode in that place until another passenger began to scream that her six-year-old son had not boarded the, car, and thinking she was going to jump off he voluntarily released one handhold, and then fell off as the car was crossing other tracks. He says his fall was caused by a jerk -of the car, but his evidence shows there was nothing unusual in its movement when the place and circumstances are considered. Meld, that the accident was the result of his own, voluntary act, superinduced by an independent cause, and a demurrer to his case should have been sustained, and therefore' a verdict for defendant will not be reversed, though an erroneous instruction was given at defendant’s request.
    Appeal from Jackson Circuit Court. — Row. John G. Park, Judge.
    Affirmed.

      Bird S Pope and T. J. Madden for appellant.
    (1) The court erred in refusing instruction A requested by plaintiff. Orcutt v. Building Co., 201 Mo. 424; Barth v. Railroad, 142 Mo. 549; Devoy v. Railroad, 192 Mo. 197; Clark v. Railroad, 127 Mo. 208; Furnish v. Railroad, 102 Mo. 450; Sweeney v. Railroad, 150 Mo. 401; Redmon v. Railroad, 185 Mo. 9; O’Gara v. Railroad, 204 Mo. 724; Schloemer v. Railroad, 204 Mo. 99; Kirkpatrick v. Railroad, 109 S. "W. 687. (2) The court erred in giving instruction 9D on behalf of defendant. Behen v. Railroad, 186 Mo. 430; Hannon v. Railroad, 102 Mo. App. 216; 1 Fetter on Carriers, see. 72, p. 178; Clark’s Accident Law (2 Ed.), sec. 27, p. 54; Nelson v. Railroad, 113 Mo. App. 708; G-reen v. Railroad, 122 Mo. App. 647; Bell v. Railroad, 125 Mo. App. 660; Thompson v. Railroad, 111 Mo. App. 465; 3 Thomp. on Law of Neg. (2 Ed.), sec. 3520. (3) The court erred in giving instruction 11D on behalf of defendant. Zander v. Railroad, 206 Mo. 445; Brown v. Railroad, 106 S. W. 552; Stetzler v. Railroad, 109 S. "W. 668. (4) The court erred in giving instruction 8D for defendant. Shanahan v. Railroad, 109 Mo. App. 228; Stoddard v. Railroad, 105 Mo. App. 512; Spencer v. Railroad, 111 Mo. App. 653; Flaherty v. Railroad, 106 S. W. 15; Chitty v. Railroad, 148 Mo. 75 ; Dimmit v. Railroad, 40 Mo. App. 654; 1 Suth. on Damages, 79. (5) The court erred in giving of its own motion instruction 15, the instruction given in response to the request of the jury. Glenn v. Hunt, 120 Mo. 330; State v. Alexander, 66 Mo. 148. (6) The court erred in sending the stenographer into the jury room during the noon recess to read the testimony of plaintiff. Padgitt v. Moll, 159 Mo. 143; Welsh v. Railroad, 58 Mo. App. 528; Flem ing v. Shenandoah, 67 Iowa 505; Danes v. Pearson, 6 Ind. App. 465; Fish v. Smith, 12 Ind. 563; High v. Chick, 81 Hun 100, 30 N. Y. Supp, 652; Read v. City of Cambridge, 124 Mass. 567; Campbell v. Beckett, 8 Ohio St. 210.

      John H. Lucas and Ben F. White for respondent.
    (1) Under the evidence what was the proximate cause of plaintiff’s fall? The premature start of the car? Certainly not. His fall was not caused by the car starting either before he was on or while he was getting on.- Our reason for making this declaration is that it is borne out by all the evidence in the case, that for plaintiff showing that he was safely on the car with both feet, aqd holding with both hands, before the car crossed Delaware street, and that he rode for at least a car length or further in this position. Plaintiff’s evidence, then, went to show that he was, not thrown while he was'in the act of boarding the car. It shows that he was not thrown at the junction, where he was boarding the car, but past the middle of the next street — Delaware—and after he had ridden more than a car length. Neither does it show that his fall was due to an insecure footing on the step, nor to an insecure hold with his hands, nor to a sudden start of the car, hut it does show that he had a firm hold with both his hands, and had both feet firmly on the step of the car, and that he was riding in that position. He explicitly says that no one interfered with him in any way during this time, and that he was doing nothing during that time except to ride along. Plaintiff’s testimony shows that while riding in that position he let go with one hand, for some reason,, and which is not quite clear from his testimony. But his purpose in letting go is not material, if it was voluntary, for it was the letting go that caused his fall. He said he thought the woman whose boy had been left was going to jump off the ear and he let go with his left hand and fell from the car. Logan v. Eailroad, 96 Mo. App. 461. It cannot be claimed that plaintiff, in attempting to save a 'woman from an apprehended danger, was acting in the line of a duty he owed to defendant or to the woman, although his act may have been a commendable one from humanitarian motives. Ins. Co. v. Tweed, 7 Wall. 44. It would perhaps serve no useful purpose to cite authorities to the effect that plaintiff can recover only, if at all, upon the specific acts of negligence charged, as this law is so well settled as to be without exception. One of the latest cases may be mentioned, where both the law and the reasons therefor are clearly set forth: Eoscoe v. Eailroad, 202 Mo. 576. And the proof must not only show that the specific acts of negligence charged were committed, or some of them, but must also show that such acts as were committed were the proximate cause of the accident. Logan v. Eailroad, 96 Mo. App. 461. (2) The evidence showing conclusively that plaintiff’s fall was due to an independent act on his part, and not to the acts complained of in the petition, a verdict for plaintiff would not have been permitted to stand. Where it is for the right party the judgment should be affirmed, error or no error appearing in the record. E. S. 1899, sec. 865; Basset v. Glover, 66 Mo. 381; Fairbanks v. Long, 91 Mo. 628; Bushey v. Glenn, 107 Mo. 331; Henry v. Railroad, 113 Mo. 526; Burns v. City, 131 Mo. 372; State v. Jennings, 134 Mo. 281; Carr v. Railroad, 195 Mo. 224.
   GRAVES, J.

Defendant, a street railway corporation, is sued by plaintiff for personal injuries. Trial in the circuit court, before a jury, resulted in a verdict for defendant, upon which judgment was entered. From this judgment, plaintiff in due form appealed. The negligence charged to the defendant is thus couched in the language of the petition:

“That on or about the 29th day of January, A. D. 1903, at about the hour of 8:00 o’clock p. m. of said day, plaintiff offered himself as a passenger on a westbound cable train of said defendant at the junction of Ninth, Main and Delaware streets, in Kansas City, Jackson county, Missouri. That said cable train was not permitted to remain standing a reasonably sufficient length of time to enable said plaintiff to board said train, but was carelessly and negligently started forward by said defendant and its conductor and grip-man in charge thereof (whose names are unknown to plaintiff), while plaintiff was in the act of boarding said train, and before said plaintiff had. had reasonably sufficient time to board said- train. That said cable train was also carelessly and negligently started forward without its said conductor and gripman giving plaintiff any warning of the starting of said train, although said defendant, its agents, servants and employees in charge .of said train knew, or by the exercise of ordinary care should have known, that plaintiff was in the act of boarding said train, and by reason of the said careless and negligent acts of said defendant as aforesaid plaintiff was thrown and dragged or caused to fall from said train with great force and violence to the street and pavement.”

' Severe injuries were alleged to have been received, including injuries to the nervous system, brain, back, spine, hip, right side, eyes, arms, shoulders “and internal injuries, the exact nature of which are unknown to plaintiff.” In other words, injuries, both unknown and known were charged, and in quantity evidently sufficient in number, and in quality, sufficient in seriousness, to justify the damages asked in the amount of $5,000.

• The answer was a general denial and a plea of contributory negligence.. Reply was in the conventional form for such an answer.

The plaintiff complains of the action of the trial court in refusing an instruction asked by him and in giving several asked by defendant, as well as some given by the court of its o“wn motion. He also urges as error the fact that the trial court erred in permitting the stenographer to read his notes to the jury.

Defendant contends that there was no error in these regards, but urges that even if there were errors thus committed, yet the evidence shows that plaintiff was not entitled to recover, and the verdict is for the right party and should not be disturbed.

I. Plaintiff’s instruction which was refused, and . of which complaint is made, is in this language:

“If . you find and believe from the evidence that the cable car in. question came to a standstill at the usual stopping place at the junction where passengers were let off and on, that while said car was standing the plaintiff attempted to board the same with the intention of becoming a passenger thereon, then you are instructed that the. defendant was bound to exercise towards him the utmost care and skill for his safety that prudent men would have exercised while engaged in the same business under the same and similar circumstances.”

As an abstract statement of tbe law this instruction may be correct, but We do not so say.' It uses the word “utmost” instead of the word “highest” as is usually used in instructions defining the measure of care required, but there may be but slight difference in the two words. The latter has the approval of the courts and should be used. Considering this act of the court alone, i. e., the refusal of this instruction, when considered with the instructions given, we would not denominate it further than error, but not necessarily reversible error. By the first instruction for plaintiff the learned trial court had told the jury in effect that if the plaintiff had offered himself as a passenger on the car in question whilst the same was stopped for that purpose, and that defendant had not permitted the car to remain standing for a sufficient time to allow plaintiff to board the same, and further that whilst he was in the act of boarding the same said car was negligently and carelessly started, and the plaintiff, was thereby injured, then the finding should be for the plaintiff. This instruction given for the plaintiff made it imperative to find for him under a given state of facts. It does not include the abstraction as to defendant’s duties to its passengers, but it does say that if the jury found certain things, it must find for the plaintiff. These certain things were (1) acts upon his part which in law made bim a passenger and (2) acts upon the part of the defendant, which if found, evidenced a failure to perform "the high duty required of a carrier to its passenger. With this instruction given, imperative and absolute as it is, the plaintiff lost nothing by the refusal of the abstract declaration contained in the one refused. The refusal of this instruction when considered with those given was not reversible error, to say the least. The case of Orcutt v. Century Building Company, 201 Mo. 424, is cited as authority. In that case we did discuss the duties of carriers to passengers, and we did announce that the highest degree of care was required, and we did reverse the ease because the court had refused to give an instruction upon the degree of care-required, and we think-properly so, in that case. But there the situation was different. In that case the defendant was claiming that the plaintiff was a mere-licensee, and therefore was only entitled to ordinary care, but the plaintiff was contending that he was a passenger and thereby entitled to the degree of care-required in cases where such relation of passenger and carrier exists. In that case the court adopted the defendant’s theory and instructed only on the use of ordinary care. In that we said the court was wrong. In that case the refusal of the plaintiff’s instruction' for the highest degree of care, and the giving of the defendant’s instruction for only ordinary care, evinced the fact that the court tried the case on the wrong theory, i. e., that plaintiff was a mere licensee and not. a passenger. No such condition appears in this case. Standing alone, the refusal of this instruction should not reverse the case.

II. Nor is there error in the giving of instruction 9D for the defendant. The instructions reads:

“The court instructs the jury that if you find and believe from the evidence that the car upon which the plaintiff boarded or attempted to board, stopped at the usual stopping place where plaintiff claims to have-been injured a reasonable length of time to enable plaintiff to board the same in safety, by the exercise of ordinary care on his part, then you will find your verdict for the defendant.”

Under all the evidence this was a usual stopping place. Under all the testimony the car stopped. Plaintiff says he was waiting for it before it came, but was talking to a friend in the meantime. One of the plaintiff’s witnesses says she boarded the car at the rear end and had walked through the car to the front end and was seating herself when the signal to start the car was given. If she could do that, why could not plaintiff? Nor is it disputed that the signal to start the car was given prior to the start. Plaintiff says he heard it and understood it. The cars were not crowded, according to all the evidence. By cars, we mean the grip car and the trailer which followed, for this was a cable train composed of the two' cars. This instruction, whilst not mentioning the term, but goes to the contributory negligence of the plaintiff in not using- reasonable care and expedition in boarding the train whilst it was there standing for the receipt of passengers. He says he was there before hand, and no express evidence shows that the car did not stop for the usual time. There is express evidence that it did stop the usual time for cars at that place, and this from plaintiff’s witnesses. Under the facts disclosed this instruction was proper. When a car has been stopped for the receipt of passengers for a reasonable time, and then the signal to start is given before a person attempts to enter, then the invitation to enter is closed. Without some kind of notice prior to the signal to start, street railways are not required to anticipate that parties at or near its stopping place are intending to become passengers. And if the signal to start is given prior to any attempt to enter the car, the party must heed the signal, and especially so if he knows the meaning, as did the plaintiff. The giving of the signal to start is evidence of the fact that the invitation to enter has been closed and an attempt to enter the car after such signal and after it started would be contributory negligence.

III. Nor can we say there was error in giving instruction 8D for the defendant. This instruction reads: ‘ ‘ The court instructs the jury that if you find and believe from the evidence that plaintiff got upon the car in question before the car started, or while it was in motion, and rode npon said car some distance with each hand holding to the guardrail in a reasonably safe position and place upon said car, and that thereafter he let go of one of said guardrails and fell from the car, your verdict will be for the defendant. ’ ’

The plaintiff admits that he had both feet upon the steps of the car and both hands holding the guardrails on the car, in which position he rode a short distance, until a lady passenger discovered that her six-year-old son had not entered the car and began to scream. He says he thought she was going to jump off of the car and told her not to jump, but about the same time released the hold he had with one of his hands, and by a jerk was thrown off. Had he held to the position he occupied no trouble would have ensued. Such is the import of his testimony, although not in express language. The release of his hold upon the car was not occasioned by the defendant, for at the time the boy was safely upon the sidewalk of the street. It was occasioned by the acts of the woman, for which the evidence does not convict the defendant. The car was crossing other tracks in another street, and the alleged jerk is not shown to be out of the usual for the place and the surroundings, when the character of the train is considered. The giving of this instruction was not error.

IY. Instruction 11D given by the court for the defendant is urged as error, and in this we think there is force in the objection. The instruction reads:

' ‘ The court instructs the jury that while the plaintiff is a competent witness in this case, and you should consider his testimony in arriving at your verdict, yet in determining what weight and credibility you will give to his testimony you should consider his interest in the result of the trial and that he is the plaintiff testifying in his own behalf; whatever he may have said against his interest the law presumes to be true, because against his interest, but whatever he may have said in his own behalf you are not obliged to believe, but you may treat the same as true or false, just as you believe it true or false, when considered in connection 'with all the testimony in the case.”

This form of an instruction has been especially condemned by this court, and we think rightfully. [Zander v. Railroad, 206 Mo. 445, and cases cited.] Nor will it do to say that the giving of such an instruction does not work prejudice.

V. The other objection to an instruction given by the court does not seem to us at all tenable, and not one to which we should give space in an opinion. Nor is the objection as to the stenographer good, for it appears from the record thus:

“While the jury were deliberating upon the verdict, the jury sent word to the court that it desired to have read to it the testimony of plaintiff. Mr. Loomis, attorney for defendant, stated that he was willing to have the stenographic notes read to the jury. One of the counsel for plaintiff said he was willing to have that done, but wanted all of it read. During the noon recess of a case then on trial the court sent the official stenographer, Darius A. Brown, Esq., into the jury-room with instructions to read said stenographic notes. Sometime during the afternoon the jury returned a verdict and were discharged. Afterwards the official stenographer reported to the court that before he had finished reading his stenographic notes the jury stopped him, saying: ‘We have heard enough; that is all we want,’ and excluded him from the jury-room.”

Under this narration in the bill of exceptions it appears that both parties agreed to the stenographer reading all of his notes upon the testimony of the plaintiff. By this agreement the stenographer entered and read. His presence there was by consent. "What the jury did with him thereafter was not at the suggestion of the defendant, nor does it appear that the jury was apprised of the full agreement, so as to make it misconduct upon their part. We hardly think this unsolicited act upon the part of the jury should be held prejudicial error. But, further, the bill of exceptions goes beyond the limit. Such bills should only show what actually occurred in court, and not what may have been reported to the court. Such part should be excluded.

VI. This brings us to the critical question in this case. Defendant urges that upon the whole record the verdict is right. This requires both an inquiry as to the pleadings and the evidence. That the petition charges specific acts of negligence cannot be questioned. The extent and character of the charge is, however, for consideration. An analysis of these charges and an application of the evidence deduced by plaintiff’s witnesses will solve this question. We say this because the evidence introduced by defendant does not aid the plaintiff. In other words, if the case was wrongfully submitted to the jury, the demurrer to the testimony should have been sustained at the close of plaintiff’s case. [Matz v. Railroad, 217 Mo. 275.]

As to the evidence, the record shows that the plaintiff was waiting for this car, but talking to a friend, a young man from the stockyards. His witnesses say that the car slopped the usual length of time at that place. The car was a west-bound car on Ninth street, but went out on Summit street. The stopping place was the junction of Main and Delaware streets in Kansas City, too well known to the jurisprudence of this State and the reported cases to need further comment. Just how many got off of the car does not appear, but it does appear that the cars were not crowded, and that only four parties were taking passage, including the plaintiff. It does appear that one of those parties, who like plaintiff was there awaiting the car, did get on the coach from the rear end and walking clear through the car to the front was in the act of seating herself when the signal to start was given. It does appear that two of the prospective passengers were a woman and her six-year-old son, who had come in on a car from another direction. This lady had some baskets of groceries and she herself got on the car on the platform thereof. She was recognized by the other lady, who instead of seating herself started to open the front door of the coach for her when the car started. At that moment it was discovered that the little boy had not gotten on the car, and the mother evidently made some demonstrations. Plaintiff says that the little boy was trying to board the car after it started and he. pushed him back, fearing that he would fall under the wheels. Plaintiff finally admitted that he got both feet upon the steps of the ear and was holding with both hands, when the mother of the boy, as he thought, was going to attempt to get off of the moving car. He rode in this position from the junction sidewalk and stopping place, practically half across Delaware street, and 'was thrown down by an accelerated forward movement of the car, if such it could be called under the evidence. Plaintiff reiterates a description of the manner of his fall several times, but the following from his cross-examination fairly states his views of the matter:

"Q. Now, Mr. Quinn, I am trying to get at this fact — I understood you to say that you got on the car, and was standing on the step of the car with both feet on the lower step, with your right hand ahold of one railing, the front railing, and your left hand ahold of the other, that after the car started you got into that position. Now, can you understand me? A. It moved up onto Delaware street; the front end of the car was right up to the tracks on Delaware street.
“Q. Now, Mr. Quinn, the front end of which car had got up to the tracks, the rear car or the front car ? A. The rear car.
“Q. The rear car had got up to the tracks on Delaware street? A. Yes, sir.
“Q. Now, Mr. Quinn, what did you do then? A. Why, this lady was in front of me, and I thought she was going to get off, and the man rang the hell.
“Q. Who rang the hell?
“Mr. Bird: I submit, if the court please, he ought • not to interrupt this witness.
“The Court: He was not going to interrupt the witness; he just asked him who rang the hell.
‘ ‘ To which action and ruling of the court the plaintiff at the time duly excepted.
“Q. Who rang the hell? A. Some man that was standing in front on the platform, on the far side.
“Q. Rang the bell? A. Rang the hell.
“Q. Then what was done? A. And this lady came over.
“Q. From where? A. Over towards me, and I thought she was going to get off.
“Q. Well, what did she do? A. And she came over, and it seemed I let go of this hand to let her off, the left hand.
“Q. Let go of which hand? A. The left hand.
" Q. Let go of your left hand; yes, that is the hand you had hold of the railing of the body of the car? A. Yes, then the car, it seemed like it' fastened on to the rope, and jerked us right across the street; that is the time I fell.
“Q. Then you fell off? A. Yes, sir.
“Q. Did she try to get off? A. I don’t know.”
He also says that although this lady was standing in front of him yet no one touched him. His language is:
“Q. How far did you ride on the car? A. From —what do you mean?
Q. From the time you got on, until you fell off?
“The Court: How far did you fall off from the place where the car started? A. I fell off about half way across Delaware street.
‘ ‘ Q. You rode from the place where you got on to about half way across Delaware street? A. Yes, sir.
“Q. That is correct, is it? A. Yes, sir.
“Q. ‘Well, where were you riding during that time? A. I was on the step of the car.
“Q. Sir? A. I was on the step of the car.
“Q. You were standing on the step of the car? A. Yes, sir.
“Q. All that time? A. Yes.
“ Q. And had hold of the hand rail in front of you all that time? A. Yes, sir.
“Q. Well, clear up to the time that you fell off, Mr. Quinn, there was nobody touched you or interfered with you at all was there? A. No, this lady was in front of me?.
“Q. Well, I asked you, Mr. Quinn, if anybody touched you, or interfered with you at all? A. No, sir.
“Q. Did not? A. No, sir.”

That plaintiff had notice of the starting of this car before it started, he concedes. This admission eliminates that charge of negligence. The evidence for plaintiff, as before stated, shows that the car stopped the usual time. The evidence also shows that plaintiff had gotten to a reasonable place of safety before he fell. He was upon the car with both feet upon the step and both hands holding to the rails, from which he could have easily reached the platform, but for his own act later, the voluntary release of his handhold, and this from a cause which is not chargeable to defendant.

Nor does the testimony show any such unusual lurch or jerk of the car as would be denominated negligence. We all know that as the grip becomes more firmly attached to the cable there will be an increase of the speed and that cable cars are not free from lurches thus produced. There should have been some evidence upon this point showing an unusual and negligent running of this ear, to say the least. It must also be borne in mind that the cable train was crossing these tracks in Delaware street, “which of itself would produce some disturbance. But after all, this evidence tends to show that the accident was the result of plaintiff’s own voluntary act, which act of his was superinduced by an independent cause. We do not think that plaintiff made a case on the evidence adduced by his witnesses. The defendant’s evidence tended to show that he was not on the car, but fell in an attempt to place the little boy on board the moving train. We mention this to show that the evidence of defendant did not aid plaintiff’s case. Our discussion has been confined to plaintiff’s evidence. The woman said she was not attempting to leave the car, but was trying to stop the car so that the child might get aboard. The signal was given and the car stopped about the time it crossed Delaware street. The plaintiff and the child both boarded the car and proceeded west. No complaint was made by plaintiff at the time as to any injury or as to the treatment of him by defendant’s employees. Upon the whole ye think the verdict found was the only one which could have been found by the jury, and we will not disturb it for the error above pointed out.

The judgment will be affirmed.

All concur.


author: LAMM, P. J.

text:
    JOHN C. HARTZLER v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division One,
    March 31, 1909.
    1. APPELLATE JURISDICTION: Constitutional Question: Not Timely Raised. If the constitutional question is not timely raised, it is not raised at all. If it could in due course of orderly procedure have been put into the case by the answer, or in the instructions, or in other timely ways, and was not, it cannot be raised by being injected into the motion for a new trial.
    2. -: -: -: Amendment to Damage Act. The defendant, after a verdict for $4,000, in its motion for a new trial, assigned that the amendment of 1905 to the Damage Act, allowing to the husband the right to recover as much as $10,000 for the wrongful death of the wife, was unconstitutional in certain respects specified, and that the trial court in giving certain instructions in harmony with said statute denied to defendant the protection afforded by certain specified sections and clauses of the Constitution. Held, that the unconstitutionality of the statute could have been raised sooner than by the motion for a new trial, and hence was not raised at all by that motion.
    3. -: -: -: Abandonment. -The point that an act of the Legislature is unconstitutional, assigned as a ground for a new trial and set out in the briefs, but not discussed nor reasoned, will be considered abandoned on appeal; but whilst an abandonment of a constitutional question once timely put into the case will not destroy the jurisdiction of the court over the case, yet its abandonment does help to soften the disposition of the case when it is apparent that the question was not timely lodged in it.
    Appeal from Jackson Circuit Court. — How. II. L. McCune, Judge.
    Transferred to Kansas City Court of Appeals.

      John H. Lucas and Charles L. Botsford for appellant.

      Charles M. Miller and Scarritt, Scarritt & Jones for respondent.
   LAMM, P. J.

Plaintiff sues for $10,000 for the wrongful death of his wife — his action obviously grounded on the amendment to section 2864 of the old Damage Act (Laws 1905, p. 135, el seq.) — and recovers $4,000. The answer is a plain general denial and an allegation of contributory negligence. Dp to the moment of verdict and judgment, no constitutional guarantee was invoked by defendant. In a motion for a new trial defendant, for the first time, raised a constitutional question below. Point eight of that motion runs:

“The court denied to this defendant in the giving of the instructions numbered 1 and 5 the guarantees afforded to it by the Constitution of the State of Missouri, vis.: Those afforded by sections 4, 20 and 30 of article 2 of said Constitution in this, that the said instructions denied to the defendant the natural right to the enjoyment of the gains of its own industry and take from the defendant its property for private use without any compensation therefor, and deprive the defendant of its property without due process of law, and deny to the defendant the protection afforded by section 53,' article 4, of the Constitution of the State of Missouri, in this, that they authorize the rendition of a judgment against this defendant based upon a special law purporting to have been passed by the said Legislature without any notice therefor, and without any authority for the passage of the same, and delegating to the jury in the assessment of damages, the affixing of a penalty, the power of which to affix is vested solely and alone in the Legislature, and by charging and declaring to the jury that the Act of the Legislature of' the State of Missouri entitled, ‘An act to amend section 2864 of chapter 17 of the Revised Statutes of the State of Missouri, 1899, entitled “Damages and Contributions in Actions of Tort,” approved April 13, 1905’ (Laws 1905, page 135), was and is a valid exercise of the legislative power of the State of Missouri, when the said act aforenamed is in truth and in fact and was averred and charged to he by this defendant violative of every provision of the Constitution hereinbefore referred to.”

The motion being overruled, defendant appeals here.

The amount involved is below our jurisdiction. If this court has any, it is by virtue of the fact that defendant waited until the judgment rendered was too small to give it and then sought to give it by the foregoing clause in that motion. It becomes apparent from an examination made of the record that the constitutional question, in due course of orderly procedure below, could have been put in the case by the answer, or in the instructions, or in other timely ways, so as to save it. The motion for a new trial was not the first door open for the question to enter, and in our later decisions we have ruled that a question of such gravity must be raised as soon as orderly procedure will allow. This, in order that the trial court may be treated fairly and the question g’et into the case under correct safeguards and ear-marked as of substance and not mere color.

In Suess v. Ins. Co., 193 Mo. l. c. 570, a constitutional question was held properly preserved — the court saying: “That point was well preserved in the trial court, in objection to the evidence, in an instruction asked and in the motion for a new trial. It could not have been made in this case any sooner than it “was.”

In Ash v. City of Independence, 169 Mo. 77, some stress was laid, arguendo, on the fact that the constitutional point was made timely. So in Barber Asphalt Co. v. Ridge, 169 Mo. l. c. 387, et seq.

In Shell v. Railroad, 202 Mo. 339, it was pointed out how a constitutional question in the answer might become lifeless through after proceedings.

In Lohmeyer v. St. Louis Cordage Co., 214 Mo. 685, the constitutional question was raised for the first time in the motion for a new trial, and it was held on review of many cases that under the circumstances there present, it could have been raised sooner, and therefore was not raised at all so as to give this court jurisdiction. That case is on all-fours with this and must control, if it be followed.

In State v. Gamma, 215 Mo. 100, the Lohmeyer case was followed and it was held that a constitutional question could not be raised for the first time in a motion in arrest, under the record presented there.

Here, as in the Lohmeyer case, appellant makes the constitutional point in its brief and stops short with that — counsel contenting themselves there (as here) with making the point and leaving it wholly unreasoned. In this condition of things, it is pertinent to observe that a stout presumption runs that all statutes are prima facie constitutional. The burden lay, then, on appellant to specifically point out wherein, why and wherefore the law was unconstitutional. Appellant omits the why and ivherefore. A mere recitation is made in the brief of the* clauses of the Constitution, State and Federal,- alleged to be violated. But a mere bare schedule of the clauses of the Constitution alleged to be violated has no tendency to show wherein they are violated. The failure of counsel to reason the point (though well equipped to do so) is tantamount to an abandonment of it. By saying so much' as that, we do not mean to rule that if we, prima facie, had jurisdiction, we would lose it by the mere abandonment of the point; for jurisdiction is not given or lost by mere consent. What we mean to say is that we feel invited to broadly infer that, by their refusal to reason the point, counsel concede it no point to reason. This, since briefing a case necessarily involves the elemental idea of aiding an appellate court to determine controverted questions by presenting legal principles and citing authorities (Rule 15).

This court will neither grasp jurisdiction nor shirk the responsibility of assuming it and our disposition of this case is softened to us because of the construction we have put on counsel’s position.

We remain content with the reasoning of the Lohmeyer case and the conclusion there reached. Hence, as we ruled there, we rule here. Because the constitutional point was not timely invoked in accordance with the usual course of orderly procedure, we hold this court has no jurisdiction of this appeal.

The cause is transferred to the Kansas City Court of Appeals for its decision.

All concur.


author: VALLIANT, J.

text:
    WABASH RAILROAD COMPANY, Appellant, v. ALEXANDER FLANNIGAN and VIRGIL RULE.
    Division One,
    March 31, 1909.
    1. APPELLATE JURISDICTION: Constitutional Question: Pertinent to Issues. The raising t>f a constitutional question in due time and by proper specification is not the only requisite for giving the Supreme Court jurisdiction of the appeal on the idea that a constitutional question is lodged in the case. There must also be some rational connection between the facts of the case and the section of the Constitution invoked. A mere statement that the judgment is in violation of a particular section of the Constitution does not of itself raise a constitutional question.
    2. -: -: -: Injunction: Attorney’s Fees. Tour-ville was an employee of a railroad, which owed him $81.98, and Flannigan sued him before a justice of the peace in Illinois, and obtained judgment against him and also judgment against the railroad as garnishee. Afterwards Tourville sued the railroad in Missouri before a justice of the peace for the same debt, obtained judgment and assigned it to Rule. Then the railroad filed in the circuit court its bill of interpleader against Flannigan and Rule, praying to be allowed to pay the money into court and let these two interplead for it; praying also for an injunction against Rule to restrain him from levying the exetion. The suit was contested and after the injunction was dissolved, upon motion filed to assess damages on the injunction bond the court assessed $200 in favor of Rule as for attorney’s fees, and from that judgment the railroad appeals, assigning as one ground for its motion for a new trial that the judgment deprived it of its property without due process of law, in violation, etc. The case turned in the circuit court on the question of fact whether any attorney’s fees were paid or liability incurred, and on the question of law whether attorney’s fees could be assessed in such a case. Held, that the first question is one of fact, to be determined by the evidence in the case, and the other one of law, for a proper answer to which resort is to the common law or the statute law of the State, and both questions can be decided without going to the Constitution, either State or Federal, and there being no constitutional question in the vitals of the case the Supreme Court does not have jurisdiction over the appeal.
    Transferred from St. Louis Court of Appeals.
    Remanded to St. Louis Court of Appeals.

      Geo. 8. Grover and J. L. Minnis for appellant.

      John D. Johnson and W. II. Biggs for respondents ; Virgil Bule pro se.

   VALLIANT, J.

This cause was transferred to this court from the St. Louis Court of Appeals on the idea that a constitutional question is involved, hut after going through the record we are satisfied that there is really no such question in the case.

The controversy arose in a motion to assess damages on an injunction bond .after the injunction had been dissolved. The facts were as follows: One Tour-ville was an employee of the Wabash Railroad Company and the company owed him $81.98. Flannigan brought suit against Tourville before a justice of the peace in East St. Louis, St. Clair county, Illinois, and obtained judgment against him and also a judgment against the Wabash Railroad Company as garnishee of Tourville for $81.98, the amount the company owed him. Then Tourville sued the Wabash Railroad Company before a justice of the peace in the city of St. Louis for the same debt and obtained judgment for that amount and assigned the judgment .to Virgil Rule. Then the Wabash filed in the circuit court of the city of St. Louis a bill of interpleader against Flannigan and Rule praying to be allowed to pay the money into court and let those two interplead for it; praying also an injunction to restrain Rule from levying the execution which he had sued out. The preliminary injunction was issued, the Wabash Company giving an injunction bond for $1,000. That suit was contested and the end of it was that the injunction was dissolved and the bill dismissed. Then came the motion to assess damages on the injunction bond, on the hearing of which the court assessed in favor of Rule $200 as for his liability for attorney’s fees incurred in that litigation. The case seems to have turned in the circuit court on the question of fact whether any attorney’s fees were paid or liability for such incurred, and also the question of law whether attorney’s fees could be assessed in such case. The judgment was for the amount of the injunction bond, $1,000, to be satisfied on payment of the damages assessed, $200.

In its motions for a new trial and in arrest of judgment among other grounds the appellant said:

“7. Because in entering said judgment this honorable court denied the defendant [doubtless meaning plaintiff] the equal protection of the laws and deprived it of its property without due process of law in violation of the 14th Amendment to the Constitution of the .United States, and of section 30 of article 2 of the Constitution of the State'of Missouri.”

After those motions were overruled appellant applied for an appeal to the St. Louis Court of Appeals and it was granted, and the record was lodged in that court for review. In due time appellant filed in that court its abstract and brief; in the latter, under the caption “Points and Authorities,” were only two points, first: “The restraining order being merely incidental or ancillary to the principal object of the suit, and its dissolution being wholly contingent upon a denial of the principal relief demanded, counsel fees incurred in defending the suit were not proper items of damages to be assessed on the injunction bond;” second, “Respondent was not damaged. He incurred no liability to Mr. Johnson [the attorney mentioned in the evidence] for advice or services, and was not, therefore, entitled to an allowance on that account.”' Authorities were cited under each point. Not only were those the only points presented for consideration to the appellate court, but the whole proceedings at the trial show that they were the only points made in the circuit courfc.

We have held that where a point in litigation cannot be decided without construing a particulár clause in the Constitution, a constitutional question is in the very vitals of the case and whether raised or not in the trial court, the appeal must come to this court. [State ex rel. Smith v. Smith, 152 Mo. 444.] But whether, in a ease where the injunction is only an incident to the main subject of the litigation, the party enjoined is, on a motion to assess damages on the injunction bond, entitled to recover his attorney’s fees for defending the suit, or whether in this' case Mr. Rule did actually employ’Mr. Johnson as his attorney, are questions that can be decided without going to the Constitution, either State or Federal; for the proper answer to the one we go to the common law or the statute law of the State, and to the other we go to the evidence in the case.

We have also held that it was incumbent on the party desiring to raise. a constitutional question to raise it at the first opportunity for doing so, and not bring it in as an afterthought when the case has gone against him on the theories on which he tried it. But in the application of this rule we recognize that the opportunity to invoke the protection of a particular clause in the Constitution may not arise until the trial is under way, sometimes perhaps, as in the case of an instruction given, even when the trial is ended, and, in such case, the point is timely though not presented in the pleadings. In the case we are- now considering there were no pleadings required, it was on a motion in the case after final judgment, therefore the appellant could not have presented his constitutional point until it was developed, if developed it was, by his adversary’s evidence at the trial. In point of time therefore appellant was not too late when it presented this point in the motions for new trial and in arrest.

We have also held that in order to raise a constitutional question the party complaining must point to the particular section of the Constitution <Su which he relies; it will not do to say in general terms that the act complained of is in violation of the Constitution. [Ash v. City of Independence, 169 Mo. 77; Hardin v. Carthage, 171 Mo. 442; Shaw v. Goldman, 183 Mo. 461.] In this case the appellant has specified the particular section of the State Constitution which it asserts has been violated, and, by descriptive words, has indicated that it is the rights guaranteed to appellant under the first section of the 14th Amendment of the Federal Constitution that have been disregarded. Therefore, it cannot be said that appellant was either belated in the assertion of his constitutional rights or lacking in the matter of specification of section and article.

Rut due time and specification in the points above mentioned are not the only requisites for giving this court jurisdiction on the idea that a constitutional question is involved; there must also be some rational connection between the facts of the ease and the section of the Constitution invoked. When a judgment is rendered against a man which he is thoroughly convinced is absolutely wrong and the sheriff comes and takes his property to satisfy it, he is apt to feel that all law and constitutional guarantees have been violated.

A man may say in any case, if he will, that the judgment against him is in violation of this or that clause” of the Constitution; the first section of the 14th Amendment in particular is so broad in its terms that it has been frequently invoked in cases where it had no application. If in this case the appellant had said that the judgment was in violation of the 4th section of the Bill of Rights of the State Constitution and the first section of the 15th Amendment of the Federal Constitution, the specification would have been specific enough, and would not have been less applicable to the facts of the case than the sections mentioned in the motions for a new trial and in arrest of judgment. If a party can bring his case within the jurisdiction of this court by merely saying, in due form and due time, that the judgment complained of is in violation of a particular section or clause of the Constitution, when the. facts of the case show no connection with the provisions of the Constitution named, and he makes no rational showing of such connection, then any party at his own will may give this court jurisdiction of any case.

. We do not mean of course to imply that the party must show that his constitutional point is sound, before he can be heard on it, but we do mean to say that he must show that under the facts of the case, as he contends they are, a question under the particular clause of the Constitution is raised and calls for judgment.

Why the attorney for the appellant inserted this point in his motions for a new trial and in arrest we of course do not know, but we are entirely satisfied that if he ever thought that such a point was in his case he soon changed his mind, because he asked for and took his appeal to the St. Louis Court of Appeals and filed his brief in that court asking a reversal of the judgment on the two grounds alone hereinabove mentioned and never once alluded to his constitutional rights. It does not appear that it was on his motion that the cause was transferred here, hut so far as the record shows he was invoking only the judgment of the St. Louis Court of Appeals. There is no constitutional question in the case. The cause is returned to the St. Louis Court of Appeals.

All. concur.


author: WOODSON, J.

text:
    MACK S. PHELPS v. CONQUEROR ZINC COMPANY, Appellant.
    Division One,
    March 31, 1909.
    1. NEGLIGENCE: Instruction: Assumption of Fact. An instruction is not erroneous in that it assumes the existence of a fact, if all the evidence in the case shows it did actually exist.
    2. -: -: No Evidence of Defect: Not Preserved in Record. It will not be held on appeal that there was no evidence which tended to prove that the hole or flaw in the piece of machinery so weakened it as to render it unsafe and dangerous to persons working about it or to justify an instruction submitting that issue to the jury, where the piece of machinery itself was introduced in evidence and the testimony shows there was a hole or flaw in it, but that piece of machinery is not preserved in the record for examination by the court. In such condition appellant is in no position to. insist that the hole or flaw did not so weaken the machinery as to render it unsafe.
    3. -: Flaw In Machinery: Knowledge. Where there was substantial evidence that a part of the flaw or defect in the machinery was not concealed from view and could have been discovered by the company by the exercise of ordinary care in observing it, and that it broke right through the flaw, and the court in a proper instruction submitted to the jury the issue of defendant’s negligence in furnishing its servant with a defective or dangerous appliance, their finding for plaintiff is binding upon defendant and the court on that issue.
    4. -: -: Usual Construction. It is competent to permit plaintiff to show that the piece of machinery which caused the injury was invariably fastened in another way, as a circumstance going to show that the defect complained of was dangerous. But under the circumstances of this case it was wholly immaterial as 'to what was the usual and safest way of fastening the wheel to the axle.

      5. -: Damages: Instruction: Elements: “Facts and Circumstances in Case.” The instruction on the measure of damages correctly directed the jury to take into consideration the various elements of the injury, “together with all the facts and circumstances in the case, and assess the damages at such, sum as from the evidence you may deem proper,” not exceeding, etc. Held, that the quoted words did not give the jury a roving commission to allow plaintiff additional damages for matters not contributing to just compensation, but limited the damages to “the evidence.”
    6. -: Excessive Verdict: $7,500. Plaintiff’s skull was badly fractured, the wound being six or seven inches in length and about two in width; several pieces of the skull had to be removed at different times; a portion of the brain was crushed and had-to be removed; his head is disfigured, and his injuries permanent. Held, a verdict for $7,500 is not excessive.
    Appeal from Jasper Circuit Court.— Hon. Howard Gray, Judge.
    Affirmed.

      Perkins & Blair and A. E. Spencer for appellant.
    (1) The court committed error prejudicial to defendant in giving instruction 2 at the request of plaintiff and over the objection of defendant. Plaintiff’s evidence tended to prove that after the accident the pieces of the shaft disclosed a hole therein without any showing of what caused the hole — whether the fall down the shaft or something else. From this plaintiff deduced that the hole existed before the accident. Also that the broken parts did not disclose any key. The evidence for defendant tended to prove that the shaft was made and purchased keyed to the hub, and had no defect or hole. All the evidence was that the key-seat was cut to the usual and proper depth and size. Plaintiff’s witness, King, so testified on examination by counsel for plaintiff, and there is no evidence to the contrary. Hence, there is no evidence whatever upon which the jury could find that the hole in the shaft was cut for a key-seat, but was cut too large and too deep. in proportion to the size of the shaft. This instruction is erroneous, (a) Because it assumes the existence of a hole in the shaft, while the evidence on that question was conflicting, and (b) because it submits to the jury the question whether the hole was made or cut for a key-seat and was cut too large and too deep, when there is no evidence Whatever on which to base such an instruction. Wojtylak v. Railroad, 188 Mo. 260; Chambers v. Railroad, 111 Mo. App. 609; Fisher v. Railroad, 198 Mo. 562; American Storage & Moving Co. v. Railroad, 120 Mo. App. 410; Harrison v. Lakeman, 189 Mo. 581. This instruction is also error because it submits to the jury the question whether the hole, cut for a key-seat, was cut too large and too deep, and also whether defendant, by the exercise of reasonable care, could have discovered this. The evidence is all one way, that if the shaft was delivered keyed in, there was no way for defendant to ascertain the depth of the key-seat, except to take the sheave wheel off the shaft, and then return it to the manufacturer to be replaced. It is not disputed that the dealer from whom the wheel and axle were purchased was a reputable dealer in such articles, and that the wheel and axle were standard in size. Hence, the defendant was not bound to search for hidden, latent defects, but was justified in assuming that in the manufacture proper care had been taken, and that as delivered they were in fair and reasonable condition for use. Carlson v. Phoenix Bridge Co., 132 N. Y. 273; Clyde v. Railroad, 65 Fed. 482; Railroad v. Elliott, 149 U. S. 266; Roughan v. Co., 161 Mass. 24; Doyle v. White, 9 App. Div. 521; Kaye v. Hosiery Co., 51 Hun 519; Carlson v. Bridge Co., 55 Hun 485; Prentice v. Village, 21 N. Y. Supp. 820; Ballard v. Co., 51 Hun 188; Deane v. Co., 5 Col. App. 521; Reynolds v. Merchants Woolen Co., 168 Mass. 501; Fuller v. Railroad, 175 Mass. 424; Shea v. Wellington, 163 Mass. 364; G-anagan v. Co., 158 Mass. 596; Allison Mfg. Co. v. McCormick, 118 Pa. St. 519. (2) The court erred in giving for plaintiff instruction 4 on the measure of damages. This instruction directs the attention and consideration of the jury to all the possible elements to be considered, but fails to advise' them of the ultimate object to be attained by considering the evidence as to such elements. They were not told that, after'considering the evidence on the several elements of the damage, they should award such sum as they believed would reasonably compensate plaintiff therefor, but were improperly told to assess the damage at such sum as they might deem proper. The court first directed them to every possible element of damage, and then told them to consider all the facts and circumstances in the case. This necessarily meant to them that, in measuring the damages, they were to consider the evidence as to the exhaustive list of elements thereof, and also all the other evidence. Hawes v. Stock Yards Co., 103 Mo. 66; Camp v. Railroad, 94 Mo. App. 272; McGowan v. Ore & Steel Co., 109 Mo. 518; Browning v. Railroad, 124 Mo. 55; Barth v. Railroad, 142 Mo. 555; Smith v. Fordyce, 190 Mo. 30.

      Thomas Dolan ' and L. P. Citnningham for respondent.
    (1) There was evidence that the hole in the shaft was a flaw that caused the shaft to break and the sheave wheel to fall and injure plaintiff. The preponderance of the evidence was that it Was a flaw in the shaft that caused it to break, and whether or not there was a flaw or hole in the shaft that weakened it and caused it to break and fall, injuring the plaintiff, was appropriately submitted in instruction 1 for plaintiff, to the giving of which appellant does not complain. The broken pieces themselves, as they appeared at the time of the accident, with part of a hole in that part of the shaft that remained in the hub, and part in the piece that broke off from it, shows such a state of physical facts that preclude such a theory that the fall down the shaft should have caused the hole. The jury had before them these pieces, as well as the testimony of the witnesses, as to their appearance after the accident. This was sufficient. Bartley v. Trorlicht, 49 Mo. App. 225; Root v. Railroad, 195 Mo. 364. (2) (a) If a key-seat had been cut in the shaft too wide and too deep, so as to render it defective, whether or not defendant could, by the exercise of reasonable care, have discovered this, was a proper issue to submit to the jury; and (b) even if improper, defendant, having caused trial court to submit same issue in instructions given at its instance, cannot complain. (3) (a) Instruction 4 for plaintiff on measure of damage is not improper, (b) Even if it was, defendant, not having pointed out the proper elements of damages, nor asked any instruction modifying said instruction, cannot now complain. Browning v. Railroad, 124 Mo. 55.
   WOODSON, J.

The plaintiff instituted this suit in the circuit court of Jasper county to recover the sum of $20,000 damages for personal injuries sustained by him through the alleged negligence of defendant in furnishing him with defective and dangerous pieces with which to work. A trial was had before the court and a jury which resulted in a verdict and judgment for plaintiff for the sum of $7,500. From that judgment -.the defendant duly appealed to this court.

The material portions of the petition are as follows :

“That the rock and earth from said mine was raised in tubs and lowered back into the mine, through said shaft, by means of a cable drawn over an iron pulley by a hoisting apparatus which was propelled by steam power applied and controlled by levers and brakes, manipulated by hand. That it was the duty of the plaintiff, as hoisterman, to manipulate said levers and brakes, thus hoisting and lowering said tubs. That the iron pulley, before mentioned, was fixed in a derrick directly over the center of said shaft, and overhead the plaintiff when at his post as hoisterman, and revolved with an iron or steel axle or shaft to which it was fastened.
' “But plaintiff states that the defendant negligently furnished him with an unsafe appliance with which to do hoisting, in this, that the iron or steel axle or shaft to which said pulley was- fastened, and with which it revolved overhead the plaintiff, was dangerous and unsafe for said work in this: That said axle or shaft was weak and defective, and among other defects contained a hole or flaw which rendered it liable to break and fall from its place, thus endangering the life of the plaintiff. And said hole if it was a hole and not a flaw was so cut and placed in shaft or axle as to render said axle or shaft, on account of its small size compared with the size of said hole, weak and defective and not reasonably safe for the purpose for which it was used. That defendant, its agents and officers knew of said hole or flaw in said axle or shaft, and of its weak and defective condition, on account thereof, or, by the exercise of reasonable care might have known the same, in time to have same replaced, before the happening of the accident hereinafter mentioned.
“That on the 24th day of September, 1904, the plaintiff while in the performance of his duty as hoisterman for defendant, and while in the exercise of ordinary care, was lowering a tub by means of the hoisting apparatus aforesaid, when the said iron or steel axle or shaft, by reason of its defective condition and of the hole or flaw in the same, broke and fell with the pulley, striking the plaintiff on the head, breaking and crushing his skull so that much brain matter escaped from plaintiff’s head, by reason of which the plaintiff has suffered much hodily pain and mental anguish and has been confined for seven weeks to his room and has since said injury been unable to perform any labor; and that his head, by reason of said injury, has been permanently injured so that he suffers pain in his head, and his eye-sight is impaired, and his head scarred and disfigured, by reason of which he has been damaged in the sum of nineteen thousand five hundred dollars, and that on account of said injuries the plaintiff has been compelled to become liable to pay, and has paid to physicians and surgeons for professional attention to him, and for nursing and drugs and medicines, the sum of five hundred dollars.”

The answer is a general denial and a plea of contributory negligence. The reply denies the charge of contributory negligence.

The evidence in this ease is voluminous, covering one hundred and fifty printed pages, and no useful purpose would be served by attempting to set out even the substance of it; but when necessary for a proper understanding of the legal propositions presented, we will state so much thereof as bears upon those questions.

The plaintiff introduced testimony tending to prove all of the allegations of the petition, while that of defendant tended to show that the shaft or axle complained of was reasonably safe for the' purposes for which it wás being used; that the defect therein complained of was latent and unknown to it; and that plaintiff was guilty of contributory negligence.

The court gave instructions for each party, submitting their respective theories of the case to the jury. The defendant objected and saved its exceptions to the action of the court in giving for plaintiff instructions numbered two and four, which read as follows:

“2. Even though the jury may believe from the evidence that the hole in question in the shaft of the sheave wheel was made or cut for a key-seat, yet if the jury further believe that said hole was cut too large and too deep compared with the size of said shaft and that said shaft or axle was thereby rendered weak and defective and insufficient and not reasonably safe for the purpose for which it was used; and if the jury further believe that defendant, its agents and servants knew, or by the exercise of reasonable care might have known of said hole in said axle or shaft and of the weak and defective condition of said shaft on account of the same (if you believe said hole rendered said shaft weak and defective) or by the exercise of reasonable care might have known the same in time to have prevented the injury to plaintiff; and if the jury further believe from the evidence that by reason of the weak and' defective condition of said shaft on account of said hole so made and cut (if you believe the same was made and cut in said axle) that said axle broke and said sheave wheel fell from its place and struck and injured plaintiff, your verdict should be for the plaintiff.
“4. The court instructs the jury that if you find for the plaintiff, you will in assessing his damages take into consideration his age, his condition in life, the injury sustained by him, if any, the physical pain and mental anguish suffered and endured by him on account of said injury, if any; his loss of time, if any; such damages, if any, as you may believe from the evidence he may sustain in the future as the direct effect of such injury; together with all the facts and circumstances in the case and assess the damage at such sum as from the evidence you may deem proper, not exceeding nineteen thousand five hundred dollars, the amount sued for.”

Defendant also objected and excepted to certain rulings of the court in the admission of testimony, which will receive consideration in the opinion.

I. Appellant challenges the correctness of instruction numbered two given on'behalf of respondent for the following reasons assigned:.

First. “Because it assumed the existence of a hole in the shaft, while the evidence on that question was conflicting. ’ ’

Second. “Because it submits to the jury the question whether the hole was made or cut for a key-seat and was cut too large and too deep, when there is no evidence whatever on which to base such an instruction.”

We will consider those objections in the order stated.

As regards the first objection, even though it be conceded that the instruction assumes that the hole mentioned did exist in the shaft, yet that assumption would not render the instruction erroneous, for the reason that all of the evidence in the case shows that it did actually exist. The testimony of respondent tended to prove that the hole was a flaw in the shaft, or a defect in its construction, and that of appellant tended to show that the hole was cut therein by the manufacturer as a key-seat into which a key had been driven for the purpose of fastening the sheave wheel to the shaft. In passing upon this same question in the case of Davidson v. Railroad, 211 Mo. l. c. 357, this court said: “Where the testimony is absolutely .uncontradicted, and not a word of testimony offered to disprove the facts testified to by the witnesses, and during the progress of the trial it is made manifest to the judge presiding at the trial by the manner of the examination of the witnesses by counsel engaged in the cause that such facts are not to be treated as a real disputed question in the controversy, then, and in that case, the court would be authorized, without the commission of any error, in giving its instructions to the jury to assume the existence of such facts, which, during the progress of the trial, counsel by their conduct and manner had indicated were not seriously in dispute.” So hold all of the cases. [Sotebier v. Railroad, 203 Mo. 702; Pratt v. Conway, 148 Mo. 291-299; Taylor v. Iron Co., 133 Mo. l. c. 365.]

The .second objection to the instruction is based upon the contention that there was no evidence introduced which tended to prove that the hole or flaw in the shaft so weakened it as to render.it unsafe and dangerous for persons working about it. The evidence showed that the shaft was made of iron or steel and was something less than one and a half inches in diameter, which passed through the hub of a sheave wheel twenty-four inches in diameter, and was designed to carry a load weighing from one thousand to two thousand pounds.

The respondent’s evidence tended to prove that there was a flaw or hole in the shaft which was so large that a man’s little finger could have been inserted into it. While the record does not show the exact depth of the hole, yet counsel for respondent in oral argument of the case stated that it was about one-half inch in depth, and that if the court would examine the axle, which was introduced in evidence, it would substantiate his statement in that regard. While the record shows the shaft was introduced in evidence, yet it was not preserved therein and cannot, therefore, be inspected by the court. Upon this state of the record counsel for respondent contends that appellant is in no position to insist that there was no evidence introduced tending to prove, that the hole in the shaft was so deep and broad as to so weaken it as to render it unsafe and dangerous for persons working about it. In our opinion that contention is well taken. The law is well settled that before the defendant can successfully maintain that there was no evidence introduced at the trial to support the verdict of the jury, or upon which to base an instruction given by the court, it is incumbent upon him to bring, by the record, to this court all of the testimony introduced at the trial in order that we may view and determine what it does tend to prove or establish. The circuit court is a court of general jurisdiction, and, in the absence of a showing to the contrary, every presumption must be indulged in favor of the regularity and correctness of its acts and rulings. [State v. Brown, 75 Mo. 317; State v. Sivils, 105 Mo. 530.] "We must, therefore, hold that instruction numbered two is not vulnerable to the-assaults made upon it.

II. Appellant’s next insistence is that the defect or flaw complained of in the shaft was latent, and that it had no knowledge of its existence, nor by the exercise of ordinary care upon its part could it have discovered the same; and having purchased the axle from a reliable manufacturer, it had a perfect right to presume that the shaft was free from all defects and was reasonably safe for the purpose for which it was being used.

As an abstract legal proposition that contention cannot be questioned, but it is .unavailing to appellant on this appeal, for the reason that while there was testimony tending to support that contention, yet there was also substantial evidence introduced tending to show that the shaft broke just at the end of the hub of the sheave wheel and right through the center of the flaw or hole, and that while one-half of the hole was covered and concealed from view by the hub, the other half extended' beyond the hub and could have .been readily discovered by defendant, had it exercised ordinary care in observing the shaft. Under proper instructions the court submitted that issue to the jury, and they found for the respondent and against-the contention of appellant. That finding is binding upon the appellant and is-controlling upon this court. We must, therefore, hold that appellant was negligent in furnishing respondent with the defective and dangerous appliances with which to work and that his injury was the result of that negligence. And especially is that true since the jury under proper instructions found respondent was free of contributory negligence.

III. It is contended by counsel for appellant that the trial court erred in admitting over his objection testimony tending to prove that key-seats were not ordinarily cut in shafts of the size of the one involved in this case, and that it was not considered necessary to do so; also evidence tending to show that where a set-screw is used a key is not used.

In order to correctly understand this contention, it will be necessary to state the respective positions of counsel for appellant and respondent regarding the defect complained of in the petition. Appellant contends that the so-called defect was in fact a key-seat or groove cut by the manufacturer lengthwise of the shaft with a corresponding groove cut into the hub of the sheave wheel, into which an- iron wedge or key was to be driven for the purpose of fastening the wheel to the shaft, and that such was the usual mode by which such fastenings were made, and that such mode was reasonably safe. Upon the other hand,-, counsel for respondent contended that the defect complained of was a flaw in the shaft and in order to support that contention introduced the testimony objected to for the purpose of showing the wheels upon shafts of that size were not secured by that means but were invariably fastened by means of set-screws, and that such was the proper and safe mode of securing them thereto. In the light of those contentions we are clearly of the opinion that the testimony was properly omitted, for the reason that if such wheels and shafts were never constructed so as to be fastened together by means of a key or wedge, then that fact would be a circumstance tending to show that the defect complained of was a flaw in the shaft and not a key-seat cut for the purpose of keying the shaft to the hub.

But conceding’ for the sake of the argument that the admission of that testimony was erroneous, yet ■we are unable to see in what possible manner it could have prejudiced the rights of the appellant, for the reason the petition alleges that the defect complained of was either a flaw in the axle or a hole cut therein for the purpose of keying the wheel to the shaft, and that whichever it was the shaft was so weakened thereby that it was rendered unsafe and dangerous to persons employed to operate the hoist; and this record abounds in evidence tending to prove those allegations. The important question was not as to what caused the defect in the axle, but the question was, did the defect, which all the evidence showed did exist, render it unsafe and dangerous? This question we have answered in the affirmative in paragraph two of this opinion.

Under that state of the pleadings and evidence it was wholly immaterial as to what was the usual and safest way of fastening the wheel to the axle.

IY. The next error assigned by counsel for appellant is lodged against instruction numbered four given on behalf of respondent.

That instruction related to the measure of damages; and, after correctly calling the jury’s attention to the various elements of the injury to be considered in. fixing the amount of their verdict, it used this additional language: “Together with all the facts and circumstances in the case, and assess the damages at such sum as from the evidence you may deem proper.” The contention of respondent is, that the instruction without the quoted words embraced all of the elements of the injury which the jury should have considered in fixing just compensation for the injury, and that by the use of the quoted clause the instruction gave the jury a roving commission to allow him additional damages for matters not contributing to just compensation, and thereby increased the amount of the verdict beyond actual compensation for the injuries sustained.

The instruction may technically be open to that criticism, but when we consider that the criticised clause limits the amount of the verdict to “such damage as from the evidence they deem proper,” as shown by all the “facts and circumstances in evidence,” then we are unable'to see in what manner any substantial injury was thereby done to appellant, for evidently the jury must have considered the general clause following the specific elements of damage mentioned referred to like elements, and if the evidence failed to disclose such additional elements, then clearly the jury under that instruction could not have allowed any sum therefor, and, consequently, it could not have worked prejudicially to the rights of appellant. This is the view this court has taken of several instructions given in similar cases, notably in the case of Harmon v. Donohoe, 153 Mo. 263, l. c. 275, where the identical language was used.

We must, therefore, rule this contention against appellant.

V. It is finally insisted by counsel for appellant that the amount of the verdict is excessive. The undisputed testimony showed that respondent’s skull was badly fractured, the wound being six or seven inches in length and about two inches in width, that several pieces of the skull had to be removed at different times, that a portion of his brain was crushed out and had to be removed, that his head is disfigured,- and that his injuries are permanent. For those injuries the jury awarded him the sum of $7,500.

In the case of Beave v. Railroad, 212 Mo. 331, the injuries sustained by the plaintiff were almost identical with those received by the respondent in the case at bar,, greater, if any difference, to respondent. In that case this court said that “a verdict of $7,500 is very reasonable.” We must, therefore, hold that the verdict in this case is not excessive.

Finding no substantial error in the record, the judgment, in our opinion, should be affirmed. It is so ordered.

All concur.