text:
    ROBERT C. SPENCER and LAURA E. SPENCER v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    July 12, 1909.
    1. NEGLIGENCE: Dragging After Being Struck. The evidence tended to show that the five-year old child was struck hy the car and picked up by the fender, and that thereafter the car ran from forty to fifty feet on a slight upgrade; that during such time she fell from the fender and when found was under the fender and her head upon the rail, the wheel being up against her neck, hut not upon it. It Is not shown that her body was mutilated, but she was dead when removed immediately after the car stopped. Seld, that the jury may have well found that she was not actually killed by the impact of the first blow, but that she received the death-dealing wounds after she fell beneath the fender and was being dragged along under the car, or they might have as-readily found that the first blow was sufficient to produce death; and an instruction was not erroneous which authorized a verdict for plaintiff if after she was struck by the car she was dragged to her death by the motorman’s failure to quicker stop the car, there being evidence that he could have sooner stopped it.
    2. -: -: Sooner Stopping the Car. The motorman testified that the car was going seven or eight miles per hour, and that he saw the five-year-old child come from behind a wagon and run towards the track; that she was then fifteen or twenty feet from the track and running towards it; and that he then began to stop the car and stopped it within 25 feet, although other of defendant’s witnesses say it could not have been stopped in less than seventy or eighty feet. Plaintiff’s witnesses testify that it could have been stopped within ten or fifteen feet, running seven or eight miles an hour; that it was running fifteen miles an hour, and ran forty or fifty feet after the child was struck. Seld, that the evidence was conflicting, and it became a question for the jury to determine whether or not the car could have been stopped sooner than it was.
    3. -: Instruction: Vigilant Watch Ordinance: Question of Law. The Vigilant Watch Ordinance requiring motormen to keep a vigilant watch for persons on the track or approaching towards it, and especially children, and to stop the car on the first appearance of danger to them, is a reasonable exercise of the police power, and its violation is negligence per se; and an instruction which recites defendant’s duty thereunder and tells the jury that, if the child’s death resulted from defendant’s failure to perform that duty, plaintiffs are entitled to recover, unless they or their said child were themselves negligent,- does not submit a question of law to the jury, and is not faulty — except, perhaps, it should not have admitted that a five-year-old child could be guilty of contributory negligence.

      4. -: Mother’s Contributory Negligence: Humanitarian Doctrine. The court did not err in telling the jury that if the five-year-old child’s mother “took the same degree of care of the child as a reasonably prudent person ordinarily would under the same or similar circumstances, then she was not guilty of such contributory negligence as would defeat a recovery by the child’s parents;” nor, in further instructing them that, “even if the jury should believe she did not exercise reasonable care, in that the child escaped from her grasp and ran across the railroad track as shown in evidence, yet this would not defeat plaintiff’s recovery, if you believe the motorman, after seeing the child either on the track or moving towards it, failed to stop the car in the shortest time and space practicable, and that such failure occasioned the death of the child.” The last part of this instruction submits the well-recognized humanitarian doctrine.
    Appeal from St. Louis City Circuit Court. — Hon. Warwick Hough, Judge.
    Affirmed.

      Glendy B. Arnold for appellant; Boyle & Priest of counsel.
    (1) The court should have given the peremptory instruction asked by defendant at the close of the whole case, because there was no evidence tending .to show that the car, while running at a speed it was shown to be running at the time of the accident, to-wit, fifteen miles per hour, could have been stopped or checked in time to have avoided the death of deceased after her danger was apparent — the last-chance doctrine being’ the sole theory, under the pleadings and evidence, on which the case was submitted to the jury. Theobald v. Railroad, 191 Mo. 395; Reno v. Railroad, 180 Mo. 485; Zurfluh v. Railroad, 46 Mo. App. 636. (2) Plaintiffs’ first instruction is erroneous for two reasons: First. Because the jury were authorized to return a verdict for plaintiffs if they believed that after deceased was struck by the car she was dragged to her death by the motorman’s failure to stop the car quicker, while the evidence fails to show that the dragging contributed in any degree to her death. Masterson v. Railroad, 204 Mo. 520. Second. Because, even though she was dragged to death, yet there is no evidence that it could have been stopped any sooner than it was stopped. Theobald v. Railroad, 191 Mo. 395. It is error to submit an issue of fact to a jury not sustained by the evidence. Heinzel v. Railroad, 182 Mo. 559; Van Natta v. Railroad, 133 Mo. 21. (3) Plaintiff’s second instruction is erroneous because it submits a question of law to the jury, and is misleading*. Gebhardt v. Railroad, 97 Mo. App. 373; Stanley v. Railroad, 114 Mo. 606. The instructions should set out the facts constituting the negligence with the direction to the jury that if they find them to be true, then the plaintiff might recover. (4) Plaintiffs’ sixth instruction is erroneous, because it submits to the jury questions of law. Said instruction should have embodied the facts specifying the manner or way in which the motorman’s failure on the first appearance of danger to stop the car within the shortest time and space practicable could have contributed to the death of the deceased. This instruction is also misleading.

      Seneca N. <& S. G. Taylor for respondents.
    (1) The court did not err in refusing to give defendant’s peremptory instructions offered as demurrers to the evidence, (a) Where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact to be settled by the jury, and this whether the uncertainty is raised by conflict of testimony, or because of the facts being undisputed, fair-minded men may draw different cofielusions from them. Buesching v. Gas Light Co., 73 Mo. 219; Harris v. Railroad, 89 Mo. 233; Berry v. Railroad, 124 Mo. l. c. 244; Weller v.-Railroad, 164 Mo. 181; Erickson v. Railroad, 171 Mo. 647; Campbell v. Railroad, 175 Mo. 161; Powers v. Railroad, 203 Mo. 1. c. 280; Williamson v. Railroad, 202 Mo. 376; Railroad v. Landrigan, 191 U. S. 461; Warner v. Railroad, 168 U. S. 339; Railroad v. Gentry, 163 U. S. 353; Railroad v. Griffiths, 159 U. S. 603; Railroad v. Powers, 149 U. S. 43; Railroad v. Ives, 144 U. S. 408 ; Railroad v. Converse, 139 U. S. 469. (b) Contributory negligence is an affirmative defense, and the burden of proof rests on defendant to establish it. Koerner v. St. Louis Car Co., 209 Mo. 141; Moore v. Railroad, 194 Mo. 1; Campbell v. Railroad, 175 Mo. 161; Erickson v. Railroad, 171 Mo. 647; Weller v. Railroad, 164 Mo. 181; Hutchinson v. Railroad, 161 Mo. 246; Lamb v. Railroad, 147 Mo. 171; Yon Treba v. Gaslight Co., 209 Mo. 648. (2) The court did not err in giving plaintiff’s first instruction. This instruction correctly directed the jury upon the alleged ‘ ‘ common law negligence ’ ’ charged in the petition. It is doubtful if any fair-minded man can point to any technical error in this instruction, much less a reversible error, (a) An electric street railway operating dangerous machinery at a rapid speed in a populous city is bound to know that children have an equal right to the use of street crossings; therefore, it is the duty of the motorman to be on the lookout, and to take all reasonable measures to avoid injuring them while passing over the tracks at a street crossing, and failure to do so is negligence. Pope v. Railroad, 99 Mo. 405; Winters v. Railroad, 99 Mo. 517; Senn v. Railroad, 108 Mo. 142; Henry v. Railroad, 113 Mo. 525; Sweeny v. Railroad, 150 Mo. 385; Klockenbrink v. Railroad, 172 Mo. 678; Schafstette v. Railroad, 175 Mo. 152; Riska v. Railroad, 180 Mo. 168. (b) When a motorman discovers, or, by the exercise of reasonable care, might have discovered, a child about to cross a railroad track a short distance ahead of his car, upon a public street crossing, it is the duty of the motorman to have the power by which he propels the car under his control, so as to avoid a collision, if by reasonable care he can do so, and failure of this duty is negligence, making the railway liable. Murray v. Railroad, 108 Mo. App. 501; Degel v. Railroad, 101 Mo. App. 56; Sepetowski v. Railroad, 102 Mo. App. 110; Coates v. Railroad, 168 Mo. 544; Klockenbrink v. Railroad, 172 Mo. 678; Hutch" ison v. Eailroad, 88 Mo. App. 383. (e) Even if it was negligence on the part of Mrs. Spencer on the occasion in question to allow deceased to jerk loose from her hand and run across the street car tracks (and we deny that it was), still it was the duty of the motorman, after seeing the child in danger, or if by the exercise of ordinary care he could have seen her in danger, in time to avert Milling her, to do so, and failure to do so was negligence. Morrissey v. "Wiggins Ferry Co., 43 Mo. 384; Brown v. Eailroad, 50 Mo. 466; Meyers v. Eailroad, 59 Mo. 231; Matthews v. Grain Elevator Co., 59 Mo. 478; Harland v. Eailroad, 65 Mo. 25; Werner v. Eailroad, 81 Mo. 368; Bergman v. Eailroad, 88 Mo. 685; Dunkman v. Eailroad, 95 Mo. 244; Jennings v. Eailroad, 99 Mo. 394; Henry v. Eailroad, 113 Mo. 525; Morgan v. Eailroad, 159 Mo. 262. (3) The court did not err in giving to the jury plaintiff’s second instruction. This instruction related to the duty of the motorman under the Vigilant Watch Ordinance. Weller v. Eailroad, 164 Mo. 192. This court has also repeatedly held that where an instruction is given with reference to a particular statute or ordinance, it is sufficient that the instruction contain the language of the statute or ordinance. Indeed, this court has gone so far as to say that it is better that the instruction should contain the language of the statute. Jacobson v. McDonald, 8 Mo. 565; Beach v. Baldwin, 14 Mo. 597; State to use v. Schnake, 21 Mo. App. 349; Holliday v. Jackson, 21 Mo. App. 660; State v. Frank, 103 Mo. 120; State v. Miller, 93 Mo. 263. (4) Where the defendant requests and the court gives instructions setting forth the same theory of the case, and in harmony with those given at the request of plaintiff, defendant cannot complain on account of the giving of such instructions. Smart v. Kansas City, 208 Mo. 204; Phelps v. City of Salisbury, 161 Mo. 14; Christian v. Ins. Co., 143 Mo. 467; Whit-more v. K. & L. of Honor, 100 Mo. 47; Eeilly v. Eailroad, 94 Mo. 611; Kansas City v. Madsen, 93 Mo. App. 143; Miller v. Origler, 83 Mo. App. 399'; Haggard v. Ins. Co., 53 Mo. App. 106; Gates v. Railroad, 44 Mo. App. 495; Soldanels v. Railroad, .23 Mo. App. 522.
   GRAVES, J.

Plaintiffs, husband and wife, sne for the alleged negligent killing of their infant daughter, Olive L. Spencer, by defendant. Olive L. was five years of age, and met her death by being struck and dragged by one of defendant’s street cars near the junction of Sidney street, Gravois avenue and Jefferson avenue, in the city of St. Louis, on October 18, 1904. Jefferson avenue runs north and south; Sidney street runs east and west, and Gravois avenue crosses both Sidney street and Jefferson avenue in a diagonal course. On both Jefferson avenue and Gravois avenue defendant maintained double-street-car tracks. The car striking the child was one going in a northeasterly direction on the south one of the two tracks on Gravois avenue.

As acts of negligence, the petition charges: ‘ ‘ That the car which struck, knocked down and dragged said Olive L. Spencer was being operated as a street car by a motorman in the employ of the St. Louis Transit Company, -and that said motorman saw, or by the exercise of reasonable care might have seen said child approaching said track and in danger of being struck by said car, a sufficient length of time before the collision, as by the exercise of reasonable care and with the appliancés on hand to have so operated the car as to have xavoided striking said child, and to have so operated said car as to avoid after striking her of dragging her a distance of forty or fifty feet thereby causing her death; but, said motorman negligently failed to so operate said car after he saw or by the exercise of reasonable cafe might have seen her, so as to avoid said collision, but on the contrary, negligently allowed said car to collide with said child, and then negligently allowed said car to drag said child forty or fifty feet causing her death as aforesaid.”

In addition to the above the defendant was charged with having run its car at an excessive rate of speed, to-wit, fifteen miles per hour, in violation of a general ordinance which limited the speed to eight miles per hour. The Vigilant Watch Ordinance was also pleaded. It is also charged that a city ordinance relating to fenders on street cars had been violated, and further that the defendant failed to stop its car twenty feet to the west of the crossing on Jefferson avenue in violation of another ordinance.

Answer was a general denial, to which was coupled a plea that the negligence of the mother, Laura E. Spencer, caused the injury and death of the child.

Reply denied the new matter in the answer.

Judgment went for plaintiffs in the sum of five thousand dollars, from which after all necessary steps were taken, the defendant duly appealed.

Prom the evidence of the plaintiff, Mrs. Spencer, it appears that the father of deceased was an employee of defendant; that the mother had read the hook of rules and was familiar with the rule of the company which reads, ‘ ‘ Motormen will bring their cars to a full stop twenty feet from all street railroad intersections; ” that plaintiffs lived on the east side of Jefferson street within less than a block of Sidney street and to the south of Sidney street; that on the afternoon in question which was a clear, bright afternoon, Mrs. Spencer took the child, Olive, to a store on the northwest-corner of Sidney and Jefferson streets to make some small purchases for birthday presents, little Olive being five years of age upon that day; that after the purchases were made, the mother and child went east across Jefferson avenue to the corner of Jefferson and Gravois avenues, being then north of the tracks on Gravois avenue; at this point there was a crossing on the east side of Jefferson avenue which lead down to their home; when Mrs. Spencer in coming east from the store reached this crossing at the point above named, she says she looked both to the east and the west and, seeing no ears, she took the little girl by the hand and started across, hut after taking a few steps the little girl jerked away from her and ran on ahead; that she looked up and saw a car approaching from the west on Gravois avenue, at about the intersection of the street car tracks on Jefferson and Gravois avenues; that she hollowed at the child and ran after her, and in trying to get to the child was herself struck by the car; that the last she saw of the child she was in the middle of the south tracks, and when the car was stopped she ran around the rear thereof to see if the child had gotten across, and started then to the front when some parties took her into a nearby drug store; she also testified that there were no wagons or other obstructions.

By other testimony it is shown that the child was struck whilst on the crossing on the east side of Jefferson avenue; that Jefferson avenue is about sixty-five feet in width, with double street-car tracks therein; that the car ran from one to two car-lengths after striking the child; that it was going about fifteen miles per hour at the time; that it had not stopped on the west side of Jefferson avenue before crossing the tracks therein; that there was no sound indicating the application of the reverse prior to striking the child; that the accident occurred about five o’clock in the afternoon, at a time when there was considerable travel at this junction; that had the car been running at eight miles an hour it could have been stopped by the use of all the appliances therein within ten to twelve feet as given by one witness, and within ten feet to fifteen feet as given by another witness; that the car was being operated by the defendant company. The best detailed description of the accident is thus given by one witness:

“Q. What did you see occur then? A. Why, by the time that I got across the tracks, about middleway between the curb and the car tracks, I heard Mrs. Spencer scream and I looked in the direction it came from and I see a little child about five or six feet in front of the car and Mrs. Spencer making an attempt to run in after it to catch it, and about the time the car struck the little child it also struck Mrs. Spencer and knocked her down and knocked the little girl down and picked her up on the hack fender, that is, when the hack fender struck her it picked her up on it, and the car run about, I should judge, thirty-five or forty feet, and the little girl rolled off of the hack fender down in front of the fender and it just rolled her along right in front of the fender for about eight or ten feet, and she rolled right in under the fender and the car ran about six feet while she was rolling in under the fender to where it stopped. When the car stopped the little girl was right in front of the front wheel.”

Plaintiff also introduced a part of section 1760, article 6, of the St. Louis Municipal Code, which reads: “No car shall he drawn at a greater speed than eight miles per hour.” They also introduced the Vigilant Watch Ordinance, so often quoted and mentioned in our cases.

The evidence of one witness for the defendant tended to show that there was a high wagon passing toward the southwest; that the little girl checked up until the wagon passed and then ran behind the wagon across to and upon the street car tracks where she was struck and killed. The motorman testified that he met such a wagon there and that the little girl came from behind it and ran as fast as she could upon the track whereon the car was running; that he used the appliances and stopped the car as soon as he could which was within eight or ten feet of the point where He struck the child; that he saw the child some fifteen or twenty feet before she reached the track; and saw that she was running toward the track, and at once began to stop the car; that his car was only running seven to eight miles per hour; that he stopped his car within the space of twenty-five feet, on that occasion, and had stopped it at that rate within that space on previous occasions; that the wheel of the car did not run over the child.

By two experts the defendant shows that such a ear going eight miles per hour couldn’t he stopped with due regal'd to the safety of passengers within less than seventy to eighty feet. All the evidence shows that the car was going on a slight upgrade.

Defendant’s evidence also tended to show that the fender was so constructed that if an object got onto it, it could not roll off; that the car was stopped west of Jefferson avenue to await the passage of a car on the Jefferson avenue line, and started up and ran across the Jefferson avenue track with the power off. Defendant also introduced an amended ordinance by which it was shown that the speed limit was ten miles an hour instead of eight miles, as by the old ordinance prescribed.

In rebuttal the plaintiffs showed that there was no wagon there at the time and nothing to obstruct the view of the motorman. That there was no stop west of Jefferson avenue. This sufficiently states the facts shown.

Points made will be noted in the course of the opinion.

I. Instruction No. 1 given for the plaintiff .reads:

“If the jury find from the evidence that on the 1.8th day of October, 1904, the defendant St. Louis Transit Company was a carrier of passengers by street railroads propelled by electricity and that it used the railway and car mentioned in the evidence for such purpose; and if the jury further find from the evidence that on that day Robert C. Spencer and Laura E. Spencer were the farther and mother of Olive L. Spencer, a minor, aged five years, and that the latter was born in lawful wedlock of plaintiffs; and if the jury find from the evidence that said Olive L. Spencer on the 18th day of October, 1904, while crossing the double street-car tracks of defendant, on Gravois avenue, was struck and knocked down by the electric street car mentioned in the evidence, at the eastern crossing of Jefferson avenue, in the city of St. Louis; and that after being so knocked.down, she was dragged by such car about fifty feet, thereby causing her death; and if the jury further find from the evidence that said Olive L. Spencer was unmarried and left no- child surviving her; and if the jury further find from the evidence that on said occasion a motorman in the employ of the St. Louis Transit Company was operating said car for said St. Louis Transit Company; and if the jury further find from the evidence that such motorman so operating said car saw, or by the exercise of reasonable care would have seen said child approaching the track, and in a dangerous situation, a sufficient length of time before she was struck by said car, as that, by the exercise of reasonable care, with the appliances at hand, and with due regard to the safety of passengers, he could and would have so operated said car, as that after she was struck he would have averted the dragging of her such distance as resulted in her death, if the jury find she was so dragged, and that such dragging caused her death, then the jury should find for the plaintiffs and against the defendant St. Louis Transit Company, unless they further find that there was negligence on the part of such child or of plaintiffs directly contributing to the death of said child.”

This instruction is challenged for two reasons, as speaks defendant’s brief:

“First. Because the jury was authorized to return a verdict for plaintiffs if they believed that after deceased was struck by the ear she was dragged to her death by the motorman’s failure to stop the car quicker, while the evidence fails' to show that the dragging contributed in any degree to her death.
“Second. Because, even though she was dragged to death, yet there is no evidence that it could have been stopped any sooner than it was stopped.”

We cannot concur in defendant’s first assignment of error as to this instruction. The evidence tends to disclose that the child was struck and picked up by the fender and that the car ran a distance of forty to fifty feet on a slight upgrade.thereafter. That during such time the child fell from the fender and when found was under the car with her head upon the rail, with the wheel of the car up against her neck, but not upon it. It is not shown that she was mutilated, but was dead when removed, and from the evidence the jury might have well found that she was not actually killed by the impact of the first blow to her little body, but received the death-dealing wounds after she fell beneath the fender and was being dragged along thereunder, or they might have as readily found that the first blow was sufficient to produce death. There were sufficient circumstances in evidence upon which to submit this view to the jury. Nor do we think the language used in the Masterson case, 204 Mo. l. c. 520, 521, is fatal to this instruction under the facts of this case. What was there said was in the light of the facts of that case, and the discussion considers other matters not apparent in this record.

Nor do we think the second contention is tenable. The defendant’s motorman says his car was going only seven or eight miles per hour and he says that he saw this child fifteen or twenty feet from the track and running toward it, and that he then began to stop. He says he stopped within twenty-five feet, although other witnesses for defendant say the car could not be stopped in less than seventy or eighty feet. Plaintiff’s witnesses say that the car could have been stopped ydthin ten to fifteen feet. The question therefore became one for the jury to determine from this conflicting proof. It is evident that he had much more than fifteen feet within which to stop, if the child had to run even fifteen feet to the point of collision from the point where he first saw her. A little five-year old tot would not travel this fifteen feet within the time that a street car would go the same distance going at a rate of seven or eight miles per hour. Even grant it that by reason of the angle of the tracks at that point the child would he running, in going south, somewhat toward the car which was coming northeast, yet there are ample circumstances in the record tending to show that the motorman had much more than fifteen feet within which to stop his car after he says he saw the child running to the danger point. To our mind, the instruction was well enough under the facts of the case.

II. Instruction numbered 2 for the plaintiff, reads thus:

“The jury are instructed that at the time when and the place where said Olive L. Spencer was struck by the car and dragged and killed, the law imposed upon the motorman, while running said motor car, the duty to keep a vigilant watch for all persons on foot, and especially children, either on the track or moving toward it, and on the first appearance of danger to such child, to stop the car within the shortest time and space practicable, consistent with the safety of passengers. And if the jury find from the evidence that the motorman operating said car failed to perform such duty, then such failure was negligence on the part of the St. Louis Transit Company; and if the jury believe from the evidence that in consequence of such negligence above specified the death of said child was caused, your finding should he for the plaintiffs, unless you find from the evidence that plaintiffs, or one of them, or said child was guilty of negligence which directly contributed to the death of said child; and the burden of proving contributory negligence on the part of said child or plaintiffs rests on defendant, and unless defendant has proven such contributory negligence by a preponderance of evidence you cannot find for the defendant on that ground.”

It is urged that this instruction “is erroneous because it submits a question of law to the jury and is misleading. ’ ’

The instruction is not faulty. The first part recites the duty of defendant under the Vigilant "Watch Ordinance in evidence, and then declares any failure to perform that duty was negligence, and that if the child’s death was the result of such negligence the plaintiffs were entitled to recover if they themselves had not been guilty of negligence. The only questionable thing we see in this instruction is in that part which submits to the jury the contributory negligence of a five-year-old child.

An instruction of this character was approved in Weller v. Railroad, 164 Mo. l. c. 192 and 205. Neither is such an instruction misleading. The ordinance itself is a reasonable exercise of the police power, and its violation negligence per se. This contention is ruled against defendant.

III. Plaintiff’s instruction numbered 6 is criticised by the defendant. This instruction reads:

“If the jury find from the evidence that Mrs. Spencer took the same degree of care of the child on the occasion in question as a reasonably prudent person ordinarily would under the same or similar circumstances, then she was not guilty of such contributory negligence as would defeat this action. And even if the jury should believe that she did not exercise reasonable care, in that the child escaped from her grasp and ran across the railroad track as shown in the evidence, yet this would not defeat plaintiff’s recovery, if you believe that the motorman after seeing the child either on the track or moving toward it, and on the first appearance of danger to snch child failed to stop the car within the shortest time and space practicable, consistent with the safety of the passengers on hoard the car, and that such failure by said motorman occasioned the death of said child.”

We see no error in this instruction. It reiterates the well recognized humanitarian rule. Besides the defendant recognizes in the latter clause of its instructions numbered 2, given by the court, the same doctrine.

Nor was there error in refusing defendant’s demurrer to the evidence in this case. There was ample evidence upon which to submit the case to the jury. We have gone through the numerous instructions given and refused, and are of opinion that the case was fairly submitted, and well tried throughout. Further details will serve no good purpose. The judgment should be and is affirmed.

All concur.


source: Caselaw Access Project

author: LAMM, P. J. PER CURIAM.

license: Public Domain

text:
    SARAH J. WESTERVELT and PETER D. WESTERVELT v. ST. LOUIS TRANSIT COMPANY and UNITED RAILWAYS COMPANY, Appellants.
    Division One,
    July 12, 1909.
    1. NEGLIGENCE: Railway Companies: Lessor and Lessee. The agreement: between the United Railways Company and the St. Louis Transit Company, concerning the street railroads, was a lease, and the lessor is not liable for the negligence of the lessee in operating cars.
    2. EXCESSIVE VERDICT: $6,000. By the sudden start of the car, as plaintiff attempted to alight, she was given a violent twist, wrenching her back. The wrench affected the vertebral column in the small of her back, and left hip. She was fifty years old, and her health was broken by the wrench. She long suffered from convulsions and pain of body and mind. She became and continued an invalid, and was put under the care of physicians and nurses. The muscles of the left side are weakened and diminished in. size, producing an apparent curvature of the spine. Her left hip is atrophied. Her left leg is smaller and shorter than the other. She walks with a limp and carries a cane. Her sleep is broken, her spirits are broken, and she is afflicted with ner-vous disorders. There is no testimony that she was simulating. Her physicians attribute her ills to the wrench, and say they are permanent. Defendant’s experts stoutly testify that her ills are not attributable to the wrench, but to hallucinations resulting in mere hysteria, accentuated by worry and solicitude over her litigation. Held, that the jury could reasonably have believed her witnesses, and a verdict of $6,000 will not be held to be excessive.
    3. NEGLIGENCE: Alighting from Street Car: Reasonable Time. Where there was no evidence that plaintiff was given reasonable time in which to alight from the street car, there was no substantial error in the failure of plaintiff’s instructions 'to require the jury to find that she had not been given reasonable time in which to alight. Especially, where defendant’s instructions required the jury to find “that before she had reasonable opportunity to leave said car, it was suddenly started.”
    4. -: -: Conductor’s Knowledge. Where the car was stopped for the specific purpose of letting plaintiff off and the conductor stood at the exit, it is not necessary that her instructions require the jury to find that the operatives of the car actually knew she was alighting. Under the circumstances the conductor was bound to know she was in the act of alighting, and the court could assume as a matter of law that he did know.
    5. -: Double Damages. An instruction permitting the jury to assess damages “for any pain of body or mind,” and “for any. injury to her nervous system” and “for any permanent lameness or crippled physical condition” does not allow double damages for the same pain of body or mind and the same injury.
    6. -: Independent Cause. Where defendant asked the court to instruct the jury that “if plaintiff in attempting to leave the car staggered or was turned, and injured, as the result of a depression in the ground where she attempted to alight,” the court did not err in adding the words, “and without any such want • of care on the part of the operatives of the car, as defined in other instructions.” If other things or conditions contributed to the injury that does not relieve defendant.

      Appeal from St. Louis City Circuit Court. — Hon. G. Orrick Bishop, Judge.
    Affirmed as to St. Louis Transit Company, appellant; REVERSED AS TO UNITED RAILWAYS COMPANY, APPELLANT.

      Boyle & Priest and T. E. Francis for appellants.
    (1) Plaintiff’s instruction 1, which directed the jury to return a verdict for plaintiff, if they believed the car was started with a sudden movement while plaintiff was alighting therefrom, is erroneous: (a) Because it did not require the jury to further find that the car was not stopped a sufficient length of time to permit plaintiff to alight. Clotworthy v. Railroad, 80 Mo. 220; Jackson v. Railroad, 118 Mo. 224. (b) cause there was no evidence that the car started with a “sudden movement.” Hines v. Marshall, 22 Mo. App. 214; Evans v. Railroad, 106 Mo. 594; McQuillan’s Mo. Instrs. sec. 95. (2) Plaintiff’s instruction 4, which defines the measure of damages, is erroneous, because it did not limit the recovery for pain of mind to such as may have been caused by bodily injuries. Trigg v. Railroad, 74 Mo. 147; Connell v. Railroad, 116 Mo. 34; Deming v. Railroad, 80 Mo. App. 152; Snyder v. Railroad, 85 Mo. App. 495. (3) Plaintiff’s instruction 5 is erroneous, because it allowed the jury to award damages for “mental suffering,” separate and apart and distinct from pain of body. Johnson v. Wells-Fargo & Co., 6 Nev. 224; Joch v. Dankwordt, 85 HI. 331; City of Salina v. Prosper, 27 Kan. 564. (4) The court erred in refusing to give, as requested, defendant’s instruction 4 and in modifying said instruction and in giving the same as modified of its own motion, in that, as amended, it permitted a recovery by plaintiff on a theory of negligence not counted on in the petition. Yall v. G-illham, 187 Mo. 393; Hesselbach v. St. Louis, 179 Mo. 505; Beave v. Railroad, 212 Mo. 331. (5) The verdict is excessive. Nelson v. Railroad, 113 Mo. App. 663; Morris v. Railroad, 144 Mo. 508.

      Richard F. Ralph, Thomas T. Fauntleroy and Shepard Barclay for respondents.
    (1) The first assignment of error is groundless because the ‘ ‘ sudden movement” of the car and the giving of “reasonable opportunity to alight” were facts both called for by instructions asked and given for defendants. A party is bound by his own instructions as by other theories of law on which he asks the trial court to act. Tomlinson v. Ellison, 104 Mo. 105; Min-ton v. Steele, 125 Mo. 181; Deschner v. Railroad, 200 Mo. 333; Nephler v. Woodward, 200 Mo. 180; Rogers v. Railroad, 117 Mo. App. 686. (2) The 4th instruction required the jury to find that plaintiff had been physically injured, as described in the 1st instruction, before any damages were to be awarded to her; and when physical injury directly causes pain, etc., the law-accords compensation. This is law familiar enough to be trite. As to the physical injury caused by the wrench of plaintiff’s body, the black and blue spot, indicating the seat of the injury, there was no conflict of evidence. Pain (physical and mental) is a proper subject for compensation on the facts here proven, as declared in the 4th instruction for plaintiffs. Haxton v. K. C., 190 Mo. 64; Covell v. Railroad, 82 Mo. App. 187; Eberly v. Railroad, 96 Mo. App. 361. (3) The injury to the spine and nervous system (neurasthenia) produced by the concussion of the physical injury, is a proper subject for compensation in damages, as declared in the •4th instruction for plaintiffs. Brown v. Railroad, 99 Mo. 310; Stevens v. Railroad, 10'5 S. W. 26; Railroad v. Ellerhorst, 110 S. W. 823; Lindsay v. Railroad, 195 Mo. 180. Compensation for mental and physical, pain, damage to the nervous system (neurasthenia) and lameness all caused by a physical injury, does not involve any double recovery. Railroad v. Middleton, 103 S. W. 203; Stewart v. Watson, 112 S. W. 762. (4) Tbe shortening of the leg and ensuing lameness are proper elements of damage. Fleddermann v. Railroad, 113 S. W. 1143. (5) The 5th instruction for plaintiffs explained what was included in “pain and suffering” (as mentioned in the 4th instruction) and was obviously correct. Railroad v. Barnes, 111 S. W. 447; Railroad v. Middleton, 103 S. W. 203; Saeger v. Railroad, 110 S. W. 686; Railroad v. Ellerhorst, 110 S. W. 823. (6) The damages were reasonable, and, after four trials, extremely moderate, in view of the facts in evidence. Smith v. Whittier, 95 Cal. 279; Sears v. Railroad, 6 Wash. 227; Tuthill v. Railroad, 30 N. Y. Supp. 959; Crozier v. Railroad, 118 N. W. 256; Berry v. Railroad, 114 S. W. 27; Chicago v. Didier, 131 111. App. 406. (7) The refusal of defendant’s 4th instruction as asked, and the giving thereof as modified, was correct. The reference therein to the “other instructions herein” precludes the possibility of any error of interpretation by the jury such as defendant’s learned counsel suggests. That modification could not possibly bring into view any other negligence (or phrase thereof) than that alleged, proved, and submitted by the “other instructions herein” on that subject, to which “other instructions” no objections are now urged.
   LAMM, P. J.

Plaintiffs, Sarah J. and Peter D., are husband and wife — defendants common carriers of passengers for hire in St. Louis as street railway corporations. On December 19, 1899, after dark, Sarah rode as a pay passenger on a south-bound car on Virginia avenue. Claiming injuries through negligence of defendants while she was alighting from her car at the intersection of Virginia with Bowen street, she (uniting her husband) sued both companies counting on negligence and laying her damages at $30,000. Her petition states that “defendants” operated a line of cars running on Virginia avenue; that she was a passenger on “one of defendants’ cars;” that “defendants agreed” to use care to carry her safely and to allow her to alight in safety at her destination. It is then alleged as follows:

“Plaintiffs further state that whilst the said Sarah was in the act of alighting from defendant’s said car, at or near the intersection of Virginia avenue aforesaid and Bowen streets in said city, where said car had stopped to permit said Sarah to alight, said defendants carelessly and negligently caused the said car to start forward with a sudden movement so that the said Sarah, while in the act of alighting from said car, was turned and jerked about and wrenched so as to produce the injuries to her to he mentioned presently. The direct effects of said negligence of defendants were,” etc. (Here a grevious list of resulting ills and hurts are charged.)

Defendants answered separately by general denial.

The trial was to a jury. A verdict came in for $6, 000. Unsuccessful motions for a new trial and in arrest were filed and from a judgment rendered against both, they appeal. Sufficient of the facts will appear in connection with points ruled.

At the close of plaintiff’s evidence in chief, defendants interposed separate demurrers which, were overruled and exceptions saved. At the close of the whole case, defendants renewed their separate demurrers and saved exceptions to the second disallowance of them.

Contentions made by the United Railways Company are distinct from those of the Transit Company and separate briefs are filed by both sides in that regard. It will he convenient to preserve that line of cleavage in this opinion.

On behalf of the United Railways Company error is assigned in refusing to direct a verdict and in giving an instruction (No. 6) on behalf of plaintiff to the effect that under the lease, ordinance and other documentary evidence those operating the car in question “are to be considered as agents of both the defendant companies.”

On behalf of the Transit Company errors are assigned in giving instructions numbered 1, 4 and 5. Further, it is insisted that the verdict is excessive.

I. Of the United Railways’ appeal.

There was testimony showing that the Transit Company was in fact running the car on which Mrs. Westervelt was a passenger. There is no proof that the United Railways Company had lot, part or parcel in running it unless a certain agreement (introduced by plaintiffs) between that company and the Transit' Company, when judicially construed and interpreted, had the effect of making them joint operators of the car at that immediate time. But we have ruled on full argument and deliberation that the argeement could not be given that legal effect. [Moorshead v. Railroad, 203 Mo. 121; Chlanda v. Railroad, 213 Mo. 244.]

In neither of those cases were there allegations resting on equitable doctrines or relating to fraud in the concoction or purpose of the lease, and none such are here. In those cases we construed the agreement, whereby the Transit Company took possession of the tracks, cars, plant and former business of the United Railways Company, as a lease constituting the Transit Company the lessee and the United Railways Company the lessor; and we ruled that the relation of lessor and lessee relieved the lessor from liability for the negligence of the servants and employees of the lessee.

In the Chlanda case it was ruled that when plaintiff introduced the lease she vouched for the document as a live, valid, operative lease, if the court put that interpretation on the paper, and could not be heard to discredit it as á lease by contending (without proof one way or the other) that antecedent steps provided by law had not been affirmatively shown to have been taken. It was pointed out that if defendant had introduced the lease and plaintiff, absent proof of compliance with conditions precedent, had objected to its introduction, a different question might arise.

Learned counsel for plaintiffs in the case at bar did not have the benefit of our holding in the Moors-head and Chlanda cases at the time of the trial in this case. They do not now argue that the doctrines promulgated in those cases are unsound; but seek to differentiate and distinguish the case at bar by insisting that certain documentary evidence introduced by them, to-wit, a certificate of the incorporation of the Central Traction Company of St. Louis in 1898, a certificate of the change of name of “Central Traction Company” to “United Railways Company of St. Louis” in 1899, and a certificate of the incorporation of the St. Louis Transit Company in 1899, throws new and controlling light upon the legal propositions. They also insist that certain ordinances put in evidence by defendant, leading up to the lease, show that acceptance of and assent to the provisions of the ordinances were essential conditions precedent to the validity of the lease as a lease. But each and every of these positions was held in judgment in either the Moorshead or the Chlanda case, directly or by necessary inference. Here the assents and acceptances are created by ordinances. There they were created by the Constitution or statutes. Here, as well as there, there is no pretence that actual assent was not given and actual acceptance was not made. Here respondent argues, as there respondents argued, that it devolved upon appellant to show affirmatively that such conditions were complied with. We disallowed this argument because of the fact that plaintiff introduced the lease to establish the working arrangement between the Transit Company and the United Railways Company and upon which working agreement she predicated her right of recovery. If we had held that the agreement did not constitute a lease, but showed a present joint arrangement to run and operate the street railways as partners, or under some relation of principal and agent, then the liability of the United Railways would naturally flow from such construction; but this court took the other view of it and ruled that the relation of lessor and lessee was created. Prom that ruling the conclusion follows that the lessor was no more liable for the torts of the lessee than any other landlord would be for the torts of his tenant in the use of leased property.

We have been unable to bring ourselves to the belief that it would subserve any good purpose to restate, re-examine or redetermine the propositions discussed and doctrines announced in those cases. Let settled points be undisturbed, as the maxim saith.

Accordingly, we rule it was error to refuse to direct a verdict in favor of the United Railways Company.

But this ruling, in and of itself, does not require the reversal of the judgment as to the Transit Company. [Stotler v. Railroad, 209 Mo. l. c. 149, et seq.] Therefore, assignments of error singular to that defendant must be determined.

II. Of the appeal of the Transit Company.

(a) It is argued the verdict is excessive. We think otherwise. Plaintiffs’ testimony was delivered by unimpeached lay witnesses, neighbors and acquaintances, by physicians of learning and skillful experience attending her professionally and who testified from actual observations and as experts, and by physicians who examined her from time to time and who gave to the jury the results of their examination with their professional opinion. On defendant’s part the bulk of the testimony was from experts who had-examined her, supplemented by that of some lay witnesses who knew her or had observed her movements. At the last trial, the case had been pending several years. It was tried four times and the experience and observations of alert counsel on both sides were rounded out and enlightened by the incidents of this long, running legal fight. Appellant, Transit Company, does not pointedly contend there was no ease for the jury on the facts. Neither does it contend that Mrs. Westervelt is simulating. Absent such contentions, we need not give or analyze the testimony in detail. On her part it tended to show that at the time of her injury she was about fifty years of age; that while she had been ailing at spells, after the way of women, and had once, been frightened by a runaway accident some years before, and while a year or more before December 19, 1899, she had been in a hospital for some minor operation on her womb, yet that up to the time she was hurt on said date her nerves had been reasonably well strung and steady, her general health reasonably good, her ability to well do her duties'as a housewife unquestioned. She enjoyed society, attended church, worked her flower garden, raised a family and managed her household affairs — reasonably free from aches and pains and blessed with good spirits and sprightliness. There was some testimony on behalf of appellant that the picture drawn by her witnesses as to the soundness of her health before her hurts was false, or too rosy, or in too free outline. They testified she seemed full of ailments and often gave voice to misery from had health. But we will not meddle with that conflict in testimony. The genius of our law has wisely and quite relieved an appellate court from that burden, at least. We neither hunger nor thirst after, nor assume, power to disturb the finding of twelve men in the box sanctioned by one on the bench on a question of fact on which the testimony ran pro and con. Theirs (not ours) the duty was to sift and winnow out the true from the false, to believe or disbelieve.

There is substantial evidence that on the evening of December 19, 1899, she was riding on one of defendant’s cars. The platform and way out of this car were narrow and old-fashioned. She rang the bell to signal a stop at the intersection of Virginia and Bowen. In obedience to that signal the car, running by the usual stopping place for eight or ten feet, stopped to let her off. The conductor was standing on the rear platform nearby the exit. She went there to alight. The step down was made longer than usual by a small depression or slope in the ground and was a long step. As she was alighting a woman undertook to enter. A bit of confusion arose from her offer to get up and in as Mrs. Westervelt offered to get down and out. As one of her feet was on the last step and she was about to put her other on the ground, the car signal was given and the car suddenly started giving her a violent twist, as- she instinctively sought to recover herself, wrenching her back. She was saved from falling prone by the woman, an acquaintance. The evidence tends to show that the wrench or strain affected her vertebral column in the small of her back, and left hip. It tended to show that her health was broken by that wrench; that from a woman in fair health she became and continued a miserable one, long suffering from convulsions and pain of body and distress of mind. She became and continued an invalid and unable to perform her household duties and was put in the care of nurses and physicians. The muscles on the left side of her back below the belt line are weakened and diminished in size, producing an apparent curvature of the spine. Her left hip is atrophied. Her left leg is smaller and shorter than the other. She walks with a limp and carries a cane. Her sleep is broken, her spirits are broken and she is afflicted with nervous disorders of a serious character, described in medical terminology in words of length and sound. All this train of attendant ills, permanent if her physicians are believed, was attributed by them to the wrench, shock and sprain she received by the sudden movement of the car. There appeared physical discoloration on her back the next day after the injury and a black-and-blue spot upon her hip. The learned and wise men, defendant’s experts, stoutly testified that her trouble could not be attributed to a sprain or wrench of the back and that she was the victim of psychological phenomena having no visible or physical basis, in the nature of hallucinations, etc., resulting in mere hysteria accentuated by worry and solicitude over her litigation.

The jury had the help of most scholarly disquisitions on subtle phases of nervous disorders, peculiar to women, whether resulting from fright, or shock in a nerve center, through some injury or the “change in life.” They saw, listened, heard, weighed — and then decided to believe the testimony of plaintiff: and her witnesses. Why not? They had their choice, under the law, and took it.

There is no such large verdict as would invoke anxious judicial solicitude, or cause judicial fear that the jury were hurried beyond justice and reason into an unseemly verdict through passion, prejudice or overwrought sympathy for a suffering woman.

The point is ruled against defendant.

(b) Defendant excepted to the giving of all plaintiff’s instructions. That complaint is confined here to the giving of three of them, vis.:

“(1) The court instructs the jury that if they believe from the evidence that plaintiffs were husband and wife at the time of Mrs. Westervelt’s alleged injury, and that plaintiffs are now husband and wife, and that on December 19, 1899, Mrs. Westervelt, one of said plaintiffs, was being carried as a passenger on a street car, and that said car was then and there being operated by tbe St. Lonis Transit Company on Virginia avenue in the city of St. Louis, Missouri, for tbe transportation of passengers, and tbat she bad paid to tbe conductor of said car ber fare as a passenger; and tbat thereafter, on said date, December 19, 1899, said car stopped to permit said Mrs. Westervelt to aligbt, at or near tbe intersection of Virginia avenue and Bowen street; and tbat while plaintiff, Mrs. Westervelt, was attempting to aligbt, and was in tbe act of alighting from said car, then and there, tbe agents and servants managing and controlling tbe movements of said car at tbe time caused tbe said car to start forward with a sudden movement, and tbat tbe said plaintiff was thereby turned, jerked about and wrenched, and tbat as a direct consequence of said starting of said car, said plaintiff sustained any of the injuries mentioned in tbe instructions numbered 4 and 5 (touching plaintiff’s damages) and that during all of said events, plaintiff was exercising ordinary care on ber part, in tbe circumstances; and if you further find from tbe evidence tbat in so starting said car, tbe agents and operatives in charge of said car neglected and failed to observe tbe degree of care defined in tbe second instruction as tbe care devolving upon a carrier of passengers, and tbat as a direct consequence of said failure or omission to exercise such care, said plaintiff, Mrs. Westervelt, was injured, then your verdict should be for tbe plaintiffs.
“(4) Tbe court instructs tbe jury tbat if, under tbe evidence and tbe law as declared in tbe other instructions of tbe court, you decide to find a verdict in favor of plaintiffs, you should assess tbe damages in your verdict at sucb a sum as you believe from tbe evidence to be a reasonable compensation for any one or more of tbe following items of damage, if any, which you find and believe from tbe evidence Mrs. Westervelt had already sustained (or is reasonably certain to sustain in the future) as a direct result of the acts of defendant complained of in this action, namely:
“1. Por any pain of body or mind;
“2. Por any injury to her nervous system;
“3. Por any permanent lameness or crippled physical condition if you find from the evidence that any such injury directly resulted to her.
“But the total award of damages in your verdict is limited to the amount claimed in the petition, namely, to $30,000.
“(5) The court further instructs the jury that if, under the evidence and the law as declared in the other instructions of the court, you decide to find a verdict in favor of plaintiffs, and if you further find from the evidence that, Mrs. Westervelt sustained an injury to her nervous system as a direct consequence of the facts recited in the first instruction of the court (if you find from the evidence the facts to be as therein recited) and that there has been thereby directly caused to Mrs. Westervelt a hysterical condition which produces sensations and impressions of pain and suffering to her, then she is entitled to recover, as part of the damages for her pain of mind, reasonable compensation for the kind of pain and suffering last above described (if any) which you may find she has already endured as a direct result of said injury, as well as for such pain and suffering of that nature, if any, as you may find from the evidence she is reasonably certain to endure hereafter.”

One of defendant’s instructions was modified and one was refused. Complaint was made of this modification and refusal, but it is abandoned.

The court gave for defendant the following instructions, pertinent to criticisms now made by it against plaintiff’s instructions hereinbefore set forth, viz.:

“2. If from all the evidence in the case the jury are unable to determine whether the injury of which plaintiff complains is due to the negligence of the servants of the defendant St. Louis Transit Company in suddenly starting its car while plaintiff was in the act of alighting therefrom or from some other cause, then plaintiff cannot recover and your verdict will be for defendant.
“3. The jury are instructed that you cannot infer negligence against the defendant in this case from the mere fact, if yon find it from the evidence to be a fact, that plaintiff was injured while attempting to alight from defendant’s car. The burden is upon the plaintiff to prove to the jury .by the greater weight of all the credible evidence in the case that the car on which she was riding came to a stop in order to discharge her, and that while she was in the act of alighting, but before she had reasonable opportunity to leave said car, it was suddenly started with a jerk thereby turning plaintiff around and causing her bodily injury.
“4. If the jury believe from the evidence that the car had passed the usual station or stopping place for the discharge of passengers and stopped at a place where there was a depression in the ground, and that by reason of such depression it was a long step from the platform or step of the car to the ground; and that plaintiff in attempting to leave said car at said point staggered, or was turned, and injured as the result of the condition of the ground where she attempted to alight [and without any such want of care on the part of the operative of the car (as defined in other instructions herein)] then the plaintiff cannot recover in this action, and your verdict will be for the defendants.”

Note: The part in brackets was inserted by the court and is the modification complained of and which complaint is abandoned, as stated.

“5. The jury are instructed that before plaintiff is entitled to recover in this case, she must have proved to the satisfaction of the jury and by the greater weight of the evidence:
“First. That she was a passenger on one of defendant’s cars; that the car stopped in obedience to her signal to permit her to alight, and that while in the act of alighting and before she had reasonable opportunity to fully alight, the car was suddenly started with a jerk, thereby precipitating plaintiff onto the ground, and
“Second. That the injuries for which she seeks to recover damages are the direct result of her being so thrown or precipitated from said car.
“And if plaintiff has failed to make such proof to the reasonable satisfaction of the jury, then she cannot recover in this action and your verdict will be for defendant.
“6. If the jury find and believe from the evidence that plaintiff’s alleged injuries were not due to any negligence on the part of defendant but were the result of a mere accident or misadventure, then plaintiff cannot recover and your verdict must be for defendant.
“7. The jury are instructed that you are the sole judges of the credibility of the witnesses and of the weight and value to be given to their 'testimony, and in determining such credibility, weight and value, you will take into consideration the witness’s manner on the stand, his or her interest, if any, in the result of the trial, the probability or improbability of his or her statements, and if from all the facts and circumstances detailed in evidence you believe that any witness has willfully, that is, intentionally sworn falsely to any material fact in issue, then you are at liberty to disregard the whole or any part of such witness’s testimony.”

(w) Counsel argue that plaintiff’s instruction numbered one was erroneous in that it did not require the jury to find that plaintiff had not been given reasonable time in which to alight. But that is an invalid criticism because there was no evidence tending to show the time was reasonable, nor did any witnesses testify-as to the time of the stop. The transaction was simple, single, prompt and under the eye of the conductor, or at least in his presence. The car was stopped to permit her to alight and started when she was in the act of alighting. The operatives of the car did not testify and the facts in that regard are undisputed. Reasonable time under such circumstances was time enough to alight and nothing less would do. That time, under the undisputed proof, she did not have.

Furthermore, the general language of the instruction was sufficient in the first instance. It states: “and if you further find from the evidence that in so starting said car, the agents and operatives in charge of said car neglected and failed to observe the degree of care defined in the second instruction as the care devolving upon a carrier of passengers,” etc. The second instruction is not complained of as an improper definition of a carrier’s care. In this condition of things, if defendant wanted more explicit instructions it should have asked them. It did ask them and they were allowed to it. In its third instruction the jury were told that the burden was upon plaintiff to show that while she was in the act of alighting “but before she had reasonable opportunity to leave said car, it was suddenly started,” etc. The same proposition is put to the jury in defendant’s fifth instruction given.

There is no substantial merit in the point.

(x) The instruction is criticised from another side, viz., that it did not put it to the jury to find that “the operatives of the car actually knew she was alighting.” There might he circumstances under which that element should be -injected into an instruction. If she had undertaken to get off the car at an unusual place or under unusual or confused circumstances there would be good sense in requiring the jury to find actual knowledge on the part of the conductor, but this car stopped for the specific purpose of letting her off. She arose and went to the exit. The conductor stood at the exit. He was bound to know she was in the act of alighting. That was what the stop was for and it was his business and duty to know. The Clotworthy Case, 80 Mo. 220, is not in point. The instruction there criticised related to a steam railway train, stopping according to schedule at a station. The facts are not fully disclosed. The court ruled that the defendant was not liable unless the conductor had reason to suspect that plaintiff was in the act of alighting. We think the right doctrine relating to street cars is that when the uncontradicted testimony shows the car stopped in obedience to a signal to let a passenger off and such passenger, in the immediate presence of the conductor, is proceeding to alight, then the court may assume as a matter of law that the conductor (being presumably a man of reason) “had reason to suspect” that plaintiff is in the act of alighting. In the absence of any unreasonable delay, as here, it is his duty to see her clear of the car.

(y) It is next argued that the instruction is erroneous because there was no evidence supporting that clause of it which put it to the jury to find that the car started with a “sudden movement.” We do not read the record that way. One witness testified the cars on that line always started suddenly. This car started so suddenly and with such force as to wrench plaintiff’s back — so suddenly that plaintiff could not safely alight and the passenger to get on was left standing alone in the dark. We have no call to require a great amount of suddenness upon which to predicate liability in starting a car with a woman passenger poised or resting on one foot on the step and the other in the air about to reach the ground. The point is disallowed.

(z) Instructions four and five are criticised on the ground that they allow double damages for the same pain of body or mind and the same injury, and because they allow damages for mental distress disconnected from any injury. The point need not be developed. Learned counsel inadvertently argue illy in that behalf. The instructions speak for themselves and the criticisms spring, we think, somewhat from exuberance of versatility in over-refinement, calculated to please and divert, but not instruct or persuade, the judicial mind. We find no fault with either of them.

The premises considered, the judgment is reversed as to the United Railways Company and is affirmed as to the St. Louis Transit Company.

All concur.

ON MOTION FOR REHEARING.

PER CURIAM.

We construed appellant’s brief to abandon the contention that the court improperly modified its instruction numbered 4. The language of the brief seemed to be directed to submitting a theory of negligence not counted on by the petition. As we did not see how the modification had that effect we construed the point as abandoned. Counsel say we erred in that construction, and, assuming so much, how does the interpolation submit a theory of negligence not pleaded? All of the instruction but the interpolation was appellant’s own language. The interpolation in substance referred the jury to the other instructions (which set forth the very acts of negligence complained of) and told the jury that if appellant was not guilty of the negligence there defined and which led up to Mrs. Westervelt’s injury, but if she was injured solely by reason of the condition of the ground, then she could not recover. The modification was proper; because if A does a negligent act which contributed to the injury of B, A is responsible so long as B does no negligent act contributing to his own injury. If other things or conditions contribute to the injury, that does not relieve A. So that the mere depression in the ground was no defense unless the Transit Company was free from negligence contributing to the injury of the woman in alighting from the ear. The interpolation gave voice to that principle. The motion for a rehearing is overruled.