author: BURGESS, P. J.

text:
    HOLLWEG, Appellant, v. BELL TELEPHONE COMPANY.
    Division Two,
    March 29, 1906.
    1. NEGLIGENCE: Demurrer to Evidence. To authorize the court to sustain a demurrer to the evidence, because of its insufficiency to support a verdict, it must appear that, admitting all the evidence introduced by plaintiff to be absolutely true and giving him every reasonable inference to be deduced therefrom, he is not entitled to recover.
    2. -: -: Inference. And in applying this rule to a suit for negligence, it must be remembered that negligence is not a fact which is the subject of direct proof, but an inference from facts put in evidence. Hence, the demurrer admits every material fact proven, or which may be inferred from the testimony.
    3. -: Master and Servant: Foreman: Vice-Principal and Fellow-Servant. The foreman who had entire control of the workmen, and gave plaintiff an order to do certain work at a certain machine, was the vice-principal as to plaintiff while he was doing that work, although he himself at times worked -at the same machine, and had been so working for a few moments just prior to the accident, during -plaintiff’s absence therefrom, in obedience to his orders, in assisting other workmen.
    4. -: -: -: -: Demurrer Erroneously Sustained. Plaintiff had been ordered by the foreman to work at a certain cross-cut and rip-saw machine and to assist fellow workmen in adjusting their machines. He cleaned off the saw table and went to work, and when the other men were ready for his assistance went to them, and during his absence, about fifteen minutes, the foreman went to the machine, worked there for a few minutes, and went away. Plaintiff returned, looked about to see that the machine table was clean and that no obstructions were in the way, then moved the lever which put the machine in operation, and the saw, which usually made 3,600 revolutions a minute, struck a block of wood, which flew out and put out his eye. The evidence was that a small block left near the saw would be sucked in when the saw began to revolve and when struck by the saw would he thrown out, just as this block was, and that this fact was well known to like mechanics. There was no direct evidence that the foreman left the block there, hut it was shown that the saw table was clean and clear when plaintiff left it, that he looked for obstructions on his return, and that from the side of the table where he worked he could not have seen the block in the position this was in. Held, that the foreman was vice-principal of his master as to plaintiff, and that no inference can he drawn from the evidence other than that it was through his . negligence that the block which caused the injury to plaintiff was left on the table, and the court erred in sustaining a demurrer to the evidence at the close of plaintiff’s case. ■
    5. -: -: Duty of Master. It is the duty of the master to furnish his employee a reasonably safe place in which to work, and not to expose him to unknown risks not incident to his employment, and the master cannot relieve himself of such responsibility by delegating his duty to some other person; and if his vice-principal is guilty of negligence which causes an injury to an employee, the master is liable.
    Appeal from St. Louis City Circuit Court. — Eon. Daniel O. Taylor, Judge.
    Reversed and remanded.

      Rassieur, Schrmrmacher é Rassieur for appellant.
    (1) The duty to furnish the employee a safe place in which to work and not to expose him to unknown risks not incident to the employment is personal to the master, and the master cannot relieve himself from responsibility by delegating this duty to a servant. Day-harsh v. Railroad, 103 Mo. 570. (2) Where a foreman is guilty of negligence in failing to perform the duty which he owes as vice-principal towards an employee, the master is liable for the injuries sustained, even though the foreman is also engaged in the labors of a fellow-servant. Fogarty v. Transfer Co., 180 Mo. 490.

      Seddon & Holland for respondent.
    The court did not err in sustaining respondent’s demurrer to the evidence. This demurrer should have been sustained for several reasons: (a) Because appellant fails to make out the charge of negligence contained in his petition. Chitty v. Eailroad, 148 Mo. 54; McManamee v. Eailroad, 135 Mo. 440;Waldheir v.Railroad, 71 Mo. 314; McCarty v. Hotel Co., 144 Mo. 397; Feary v. Eailroad, 162 Mo. 75. (b) Because the evidence shows that if appellant was injured as the result of any negligence, it was negligence on his own part, (c) Because the evidence shows that if the injury complained of by appellant was due to any negligence on the part of foreman Loughman, said foreman, at said time, was acting in the capacity of co-worker or fellow-servant and not in the capacity of a vice-principal. Dayharsh v. Eailroad, 103 Mo. 570; Fogarty v. Transfer Co., 180 Mo. 490; Bane v. Irwin, 172 Mo. 306; Stephens v. Lumber Co., 86 S. W. 481; Garland v. Eailroad, 86 Mo. App. 581 Livengóod v. L. & Z. Co., 77 S. W. 1077; Gaul v. Beck-stein, 173 111. 183; Eeichl v. Flynn, 196 Pa. St. 263; Eeed v. Stockmeyer, 74 Fed. 186; Allen v. Goodwin, 92 Tenn. 315; Hussey v. Coger, 112 N. Y. 614; Klockinsky v. Lumber Co., 93 Wis. 417; Gain v. Eailroad, 101 Tenn. 380; Eailroad v. Manzy, 98 Ya. 629; Eailroad v. Torrey, 58 Ark. 217; McElligott v. Randolph, 61 Conn. 157; Holtz v. Eailroad, 69 Minn. 524; Lindvall v. Wood, 41 Minn. 217; Daves v. Eailroad, 98 Cal. 19; Eailroad v. Baugh, 194 U. S. 368; Eailroad v. Charless, 162 U. S. 360.
   BURGESS, P. J.

— This is an action for damages for personal injuries alleged to have been sustained by plaintiff through and by reason of the negligence of defendant’s servants and employees.

The petition alleges that defendant was at the time of the alleged injury a corporation engaged in the business of furnishing telephone service, and at the same time operating a manufacturing plant, and that plaintiff was, and for several years had been, in defendant’s employ, engaged in working on certain wood-working machinery in its said establishment. That on or about the third day of July, 1901, plaintiff had been working at one of the machines, and thereupon, on the day aforesaid, the plaintiff was directed by the foreman to leave said machine and to cut certain material at one of the circular saws in said establishment; that plaintiff thereupon, by means of a certain lever, put said saw in motion, when a small block of wood which had been lying on the saw table, in contact with said saw, was violently thrown off, and struck plaintiff in one of his eyes; that plaintiff did not see the block of wood until after it was thrown off by the saw as aforesaid; that said injury was due to the negligence of the defendant, in this, that the defendant’s foreman, who ordered the plaintiff to work at said saw, carelessly and negligently left the block of wood upon the table where it would he caught by the saw when put in motion by the plaintiff and in negligently leaving said saw and saw-table in such unsafe condition that the plaintiff could be injured thereby in the manner aforesaid, and in failing to give plaintiff any warning of its unsafe condition, although the defendant, through its foreman, had actual knowledge of such dangerous condition. That, in consequence of being struck by said block of wood as aforesaid, plaintiff’s eye was so badly injured that since said time it became totally blind and had to be removed. That plaintiff has, in consequence of such injury, suffered and still suffers and will continue to suffer, in the future, great pain and mental anguish; that his injury is permanent, and that in consequence thereof he has become permanently disabled from working at his trade aforesaid, and by reason of the premises plaintiff has been injured in the sum of ten thousand dollars.

The defenses were a general denial and plea of contributory negligence. The answer further alleges that all of the details of the surroundings amid which, and of the apparatus with which, plaintiff was working on the occasion mentioned in his petition were open and obvious, and were known to plaintiff, or by the exercise of ordinary care might have been known to plaintiff, and that whatever dangers, if any, existed in working amid said surroundings, and with said apparatus on said occasion, were open and obvious and were known to plaintiff, or by the exercise of ordinary care might have been known to plaintiff, and were incident to plaintiff’s employment, and that plaintiff assumed whatever risk, if any, there was in working amid said surroundings on said occasion.

Plaintiff, by reply to defendant’s answer, denied all new matter therein contained.

At the close of plaintiff’s evidence the defendant interposed a demurrer thereto, which was sustained; whereupon plaintiff took a nonsuit with leave to move to set the same aside. A motion for that purpose was then filed by plaintiff and overruled by the court; hence, this appeal.

The parties practically agree upon the facts disclosed by the record, which are substantially as follows :

Plaintiff was employed by the defendant as a cabinetmaker in its wood-working machinery department, or carpenter shop, in the city of St. Louis. The shop was in charge of a foreman named Loughman, who directed the men in-every respect, and who alone hired and discharged the employees of this department. The machinery in the shop consisted of a crosscut and rip saw, a universal boring machine, and several woodworking machines. The plaintiff was forty-years of age, and had been a machine hand since he was nineteen. He had been in the employ of the company for several years. He did work at all of the machines, but on July 3, 1901, the day of the injury, he was engaged, under the direction of the foreman, to cut out certain work at this crosscut and. rip saw. This was rigged in a saw table, about seven feet long from north to south, and five feet wide from east to west; the table was about thirty inches high; the saw revolving on a spindle fastened underneath, projected through the table at a distance of about eighteen inches from the front of the table, the south end, where the operator would have to stand. A cast-iron guage was fastened to the table, east of the saw and parallel with it, and placed at such distance from it as was from time to time required to saw the boards to the required width. This gauge was solid, so that one could not look through it when approaching from the side, and was about twenty-four inches long and about seven inches high standing upright. The saw was operated by means of a lever attached to the east side of the table.

On the morning of the injury the plaintiff had been directed to cut out certain material at this crosscut and rip saw. The order was a general one to get out ten P. B. X’s, and. was given when the plaintiff began work in the morning, about eight o’clock, and was the last order given him that day by the foreman. When plaintiff began work in the morning he was told by the foreman to help Mack and Marqua fix their machine. These were the only orders given the plaintiff prior to the accident. On the morning of the injury, after working for some time with the crosscut and rip saw, plaintiff, in obedience to the previous order received from the foreman, went over to what was termed the universal. machine to assist his co-workers, Mack and Marqua.

He remained at the universal machine about fifteen minutes and then returned to the saw table to resume his work. During that interval, however, the foreman, Loughman, had been at the saw table to cut out something, and having finished, stopped the saw and went away.

The testimony is that a block struck the plaintiff in the eye, but there is no testimony as to its position on the table, and no direct testimony whatever that it was left there by the foreman. The plaintiff stated that when he got back to the machine, he looked but saw nothing. lie could see all around on the saw table. As far as he could see, there was nothing wrong about the saw table. Thereupon he pulled the lever and set the saw in motion and proceeded to his position in front of the saw table. Just as he reached there, a block of wood was thrown violently against plaintiff’s face.

It struck him in the eye, with the result that, the sight of one eye was entirely destroyed and the sight of the other endangered.

The evidence showed that when the plaintiff left the saw to go over to the universal machine he left his. saw table clean and clear; that in the interval no one except the foreman had gone near the machine and that the block which hit the plaintiff had been cut out by the foreman and had been left on the table by him in close proximity to the saw. It also appears in evidence that it is well known to machine workers that when such a block is left close to the saw the motion of the saw will draw it in and will throw it off, just as happened in this case. The evidence also showed that no warning of any kind was given by the foreman to the plaintiff that he had left this block lying on the table. Nob was there any direct testimony that the foreman had left the block that struck plaintiff, on the table, and there is no evidence that the foreman had any actual knowledge that any block had been left on the table.

The testimony further showed that if there had been a block anywhere near the saw, it could have been seen by the plaintiff by making a casual glance from any position except one; that is, the plaintiff in making his examination, could have detected the block if there was one on the table, by looking from the north side of the table, from the west side or the south side. The only point of view which would be at all obstructed would be if he was looking from the east, and the plaintiff had to go to the south side of the machine to operate it.

It also appeared in evidence that the foreman personally worked at the various machines at times like any other mechanic, doing probably one-eighth as much work at machines as the plaintiff himself.

The only orders given by the foreman to the plaintiff that day were when he started work at eight o ’clock. He.then told him to get out some P. B. X’s, and also to help Mack and Marqua fix up their machine, and just before the accident, he was called over by Mack and again went over to help them at their machine. This latter commission, however, was done without any further orders from the foreman.

It is a rule of universal application that it is the duty of the master to furnish his employee a reasonably safe place to work, and not to expose him to unknown risks not incident to the employment, and that the master cannot relieve himself of such responsibility by delegating his duty to some other person. [Doyle v. Trust Co., 140 Mo. 1.] In the case at bar, however, the plaintiff’s right of recovery is not bottomed on that theory, but upon the ground that the foreman was guilty of negligence in failing to perform the duty which he, as vice-principal, owed to plaintiff as an employee ; and if the plaintiff was injured by reason of the foreman’s failure to discharge such duty, the master is liable for damages for the injury sustained, even though the foreman occasionally worked the machinery and acted in the capacity of a co-laborer or fellow-servant.

“A vice-principal, then, as the term is used in the law of fellow-servants, is a servant who represents the master in the discharge of those personal or absolute duties which every master owes to his servant.” [12 Am. and Eng. Ency. Law (2 Ed.), 948.] “As a general rule ‘fellow-servants may be said to be persons who are engaged in a common employment in the service of the same master.’ ” [12 Am. and Eng. Ency. Law (2 Ed.), 990.]

In the ease of Fogarty v. Transfer Co., 180 Mo. 490, the plaintiff, who was a teamster in the employ of the defendant, was endeavoring to back Ms team into an alley, in accordance with tbe direction of tbe foreman of the company, bnt was unable to do so, wben tbe foreman bimself undertook it, but, through Ms carelessness or negligence, caused tbe wagon to back and injure tbe plaintiff. Tbe court beld tbat, under tbe circumstances, tbe jury bad tbe right to infer tbat tbe negligent act of tbe foreman was committed by him in Ms capacity as vice-principal, not as fellow-servant. Marshall, J., in speaking for tbe court, said: “Whenever tbe injury resulted from tbe act or order .of tbe vice-principal, whether acting by bimself or through another, while exercising bis power and discharging bis duty as a vice-principal, tbe master has been beld liable. . . . Tbe rule here announced can oMy mean tbat a foreman may act as a co-laborer at tbe same time, and tbat even if he is acting as a co-laborer at tbe time of tbe injury, nevertheless, if tbe injury was caused by bis act in his capacity as foreman, and not in bis capacity as a co-laborer, tbe master is liable. ’ ’

• There is no evidence to justify tbe conclusion tbat plaintiff Mmself was guilty of negligence contributing to bis injury. He testified tbat be is a wood-working machinist, aged forty years; tbat be was in tbe employ of tbe Bell Telephone Company for about three and one-balf or four years, and until about six or seven months prior to tbe trial. Tbat be was employed in tbe wood-working macMnery department or carpenter shop located on tbe third floor of premises at No. 1007 Lucas avenue, in tbe city of St. Louis. Tbat be was injured on July 3,1901, between tbe hours of nine and ten o’clock in tbe morning. Tbat be went to work at 8 o ’clock tbat morning. Tbat tbe machinery in tbe shop consisted of an improved crosscut and rip saw, a band saw, a umversal boring machine, a planer and a sandpapering machine; tbat be was put to work at all of them from time to time. Tbat on tbe morning wben be was injured, be was working at this crosscut and rip saw, and had been working at it from the time he started to work until he was suddenly called away. That the shop was in charge of Joseph Loughman, foreman, and that he had been foreman during all the time he (Hollweg) had worked in the shop-. That Lough-man was over the men in the shop- — the cabinet workers and machine hands; he gave orders to everybody in the shop, and all had to obey him; he also employed and discharged the help in this department. Hollwegfurther testified that he was working at this crosscut and rip saw, cutting out work which was called “P. B. X.” (private branch exchange) for exchange boards. That he was called away from this machine to another machine in the shop called a universal machine, by two employees named Marqua and Mack. That he was at this universal machine about fifteen minutes. That the improved crosscut and rip saw was a cabinet saw, the frame being made of iron and the saw of steel. That the top part, or the table of the machine, as it stood in the shop, with the extension, was about six and one-half or seven feet long from north to south, and about five feet wide from east to west. That the table was about thirty inches from the floor — a little higher than an ordinary table. That the saw came up through an opening in the table, about eighteen inches from the front where the operator stood. The saw was set to cut seven-eighths inch boards, and projected about one-half inch above the board and one-half inch above the table. The saw was fastened on a spindle underneath the table, and the spindle revolved with the saw; the lever was placed at the east side of the table; there was also a gauge on the table, used to set it to different widths of lumber which it was desired to rip; the gauge was of cast-iron, about half an inch thick, and stood about seven inches above the table; was twenty-four or twenty-six inches in length, and was fastened at the ends to the table. That there was no space between the gauge and the table itself; it lay flat on the table. That the gauge was made of cast-iron and could not he looked through; the gauge was placed alongside of the saw. That the lever which was placed on the east side of the table was used to operate the saw; it could not be operated in any other way; it was not on the table itself, but came through the floor, the belt running underneath the floor. That the operator, in operating the machine, stood in front of the saw, at the south end, facing north; the saw revolving south, towards the operator; the teeth went down under the table and came up in the back and went down in front. That when he was called away from the saw, he left it perfectly clear, as was his custom. That before leaving the machine he stopped it with the lever; the machine was stopped by pulling the lever towards the operator, and it was started by pushing the lever forward. That when he left the machine he went over to another machine called the universal machine, in the same room, about fifteen feet east; that he was at the universal machine about fifteen minutes, and while he was there he noticed that Joseph Loughman, the foreman, was working at the crosscut and rip saw machine; that there was nothing between the universal machine and the crosscut and rip saw machine to intercept his view, and that while he was at said universal machine no person except the foreman was at the crosscut and ripsaw machine; that no one else was allowed to work at that machine excepting himself and the foreman. That he saw Loughman quit, stop the saw and leave it; that he (Hollweg) then went back from the universal machine to the crosscut and ripsaw machine and started it up; that he still had work to do at this machine under the orders of the foreman. That he looked over the top and was able to. see around on the saw table, but saw nothing wrong with the table or machine. That he walked around to the side where the lever was, and when he turned it on he was in front of the table, and just as he faced the table a piece or block of wood was thrown out of the machine which struck him in the eye; that the saw ran at the rate of 3,600 revolutions per minute, and that he did not see the block coming towards him, as it came too fast; that after he was struck Pete Mack picked up the block, which was lying in front of him; that there were no other blocks on the floor.

That he was under the care of and received treatment from Dr. Saxl for about three and one-half or four months; that during the first month of that time he called to see the doctor every day, and during the second month about every other day. That since that time he had gone there, off and on, for a year and a half. That his eye was examined the day before the trial, and that he was under treatment then, and also was the month before; that the eye was totally blind and had been from the time he was injured.

That on July 5th word was sent to him by foreman Loughman that he had better go to work, or he might be docked for every hour he stayed at home. That he went back, and was told to do what he cotdd, and that what he could not do foreman Loughman would. That for about five or six weeks he was prevented from working at all. That he found it difficult to do a full day’s work; that it strains his other eye and is very weakening ; that he is able now to work eight hours a day by straining his right eye. That the light hurts him at night, and that he cannot see to read; that part of his work he could do without glasses, but other parts he could not do; that he would be afraid of cutting himself without the aid of glasses. That his right eye was affected, so that at a distance of two feet he could not judge distances correctly, that “it just flickers.” That the injury at the time was very painful and put him out of his mind for the rest of the day and night, and that he did not rest that day or night; that his brother led him to the doctor’s office, as he could not see the light. That the eye still pained him nearly all the time; that it pained him when the wind blew or the electric light flashed on the eye. That there had been no improvement since he was injured, but that the eye had grown worse.

Peter Mack, on behalf of plaintiff, testified that on July 3, 1901, he was working for the Bell Telephone Company in its wood-working machine shop. That on the morning when Hollweg was injured he was working •at a machine called the universal machine, in company with a fellow-employee named Marqua. That Hollweg was working on the crosscut and ripsaw machine, when witness called him over to the universal machine, at which latter machine he was engaged about fifteen minutes; that while Hollweg was at this machine witness saw foreman Loughman working at the crosscut and ripsaw machine, and that during the time Hollweg was at the universal machine no one else excepting the foreman worked at the said crosscut and ripsaw machine. 'That when Hollweg walked away from the universal machine to go back to the crosscut and ripsaw, he and Marqua went with Hollweg; that they were close to him, or about two feet to the rear. That he was directly behind Hollweg and saw him struck by a block, and just as Hollweg fell he (witness), picked up the block and said, “George, here is the block that hit you,” and Hollweg said, “I can’t see it.” That he (witness) saw the block fall on the floor; that there were no' other blocks around there. That he looked at the block as soon as he picked it up, and noticed that the teeth of the saw had cut into the block. That he turned the block over to Hollweg a few days later.

On cross-examination, witness Mack testified that he was then employed by the Jones Brothers’ Metal Foundry, and was no longer employed by the Bell Telephone Company. That at the time of the accident he had been working for the telephone company about a year and a. half. That he worked with Hollweg, but did not operate any machine himself,•with the exception of the universal machine. That there were four or five machines in the shop called the universal, the crosscut, the rip, the hand saw, the sand-paperer and another. That he had seen Hollweg work there previous days, every day in the week. That Hollweg worked on all machines in the shop'. „ That he frequently saw Hollweg work at the rip saw, and that he was working at it just before he called him. That he had never seen him adjusting the same; it was always working in good condition. That he oiled the machine every morning. That he saw him clean it off twice a week, and that he sharpened the saw about twice a week. That while he was working near the saw, he had frequently seen Hollweg’ thrust pieces of wood away from the gauge. That in the morning when he began to work, when he came there to oil up, he had seen him brushing foreign wood away and clean the machine off. That he had seen him, when about to start in the morning, oil the saw and brush away foreign material on the saw table, and during the time frequently saw him clean off the foreign material that gathered there.

That he did not see the piece of wood that struck Hollweg fly towards Iris eye, but that he did see it fall from his face to the floor. He did not see in what direction it went, or see it hit his eye. That the universal machine was east of the saw, and the gauge of the saw was on the east side of it; the surface of the table was of iron, and the only things that stuck up on the table were the saw, which came up> through a crevice in the table, and the gauge. That there was nothing to intercept the view but the gauge, and that any one standing south, north or west of the table had a full view of everything on the table, excepting behind the gauge; and from the east side a full view excepting he could not see west of the gauge; the gauge was about thirty inches long and about seven inches high.'

That Loughman was the foreman; that he had been there, giving orders, ever since he (witness) had been working in the shop. That besides giving orders,.bn had seen him running machinery once in a while, and. doing work around the shop. That he had seen him working on the crosscut and ripsaw machine, and all other machinery. That he saw him do such work two or three times a day, all through the period of time he was there. That in addition to hiring and discharging the men and directing the work, he himself worked on various machines, just like any other mechanic. That he was positive that he saw Loughman working at the crosscut and ripsaw machine that day. That as he walked over with Hollweg towards this machine, he did not look on the table to see if anything was on it.

On redirect examination, witness testified that he did not show the block which struck Hollweg to the foreman, but that he laid it in a cupboard where he kept tools. He subsequently saw the piece of wood out of which the block had been cut, in Loughman’s hands. That he was helper to Hollweg, and did not work all the time at the universal machine.

Witness further said, on recross-examination, that he sometimes cleaned and oiled the universal machine, and that Hollweg attended to the cleaning and oiling of the planer, and he or Hollweg attended to the cleaning and oiling of the other machines. That they cleaned the machines on Wednesday and Saturday mornings, and that it was either his or Hollweg’s duty to do this.; that Hollweg generally attended to the cleaning of the ripsaw.

On redirect examination, witness said that by “cleaning” was meant cleaning the blocks of wood and sawdust oft of the head of the table and underneath, and that this was done in the morning before the day’s work started. That the universal machine was the machine nearest the crosscut and ripsaw; that it was about ten or fifteen feet away. That when they left the universal machine to go over to tlxe crosscut and ripsawr machine, the universal was stopped, and it was not in operation when Hollweg was huid; that there was no other saw or ‘any other machine in operation at the time when Hollweg was hurt excepting the crosscut and ripsaw which he started.

The testimony of plaintiff tends to show that he kept his saw table clean, and that when, in obedience to the direction of the foreman, Joseph Loughman, he went over to the universal machine to assist one of the .other employees, he left his saw table in that condition; that during his absence of some fifteen minutes from the table, no one excejjt the foreman had gone near the machine, and that the block which hit plaintiff had been cut out by the foreman and had been left on the table; that while he was at the universal machine he noticed the foreman working at the crosscut and ripsaw machine; that there was nothing between the universal machine and the crosscut and ripsaw machine to intercept his view; that no one else except the foreman was at the crosscut and rip-saw machine while plaintiff was absent therefrom, and no one except the foreman and himself was allowed to work at that machine. Thafihe saw the foreman quit, stop the saw and leave it. That he (plaintiff) then went back from the universal machine to the crosscut and ripsaw machine, and started it up; that he still had work to do at this machine, under the order of the foreman; that he looked over the top of the machine and saw nothing wrong about the machine or the table. That when he started up the machine, and just as he got in face of it, a piece of block was thrown out of the machine which struck him in the eye and seriously injured him.

Peter Mack testified that he saw the foreman working at the crosscut and ripsaw machine just before the plaintiff was hurt, and during his temporary absence therefrom. That by “cleaning” was meant cleaning the blocks of wood and sawdust off of the head of the table and underneath, which was done before the day’s work started.

The evidence shows that at the time of the accident and injury, and for several years prior thereto, Joseph Loughman was foreman; that he was over the men in the shop, gave orders to everybody in the shop, and all had to obey him; that he also employed and discharged the help in this department; that he worked at all the machines, at times, and did about one-eighth as much work as plaintiff.

Under this state of facts, conceding them to be true, did the court err in sustaining the demurrer to the evidence? In Baird v. Railroad, 146 Mo. 265, it was held that before a court was authorized to sustain a demurrer to the evidence, because of insufficiency to authorize a verdict, it must appear that, admitting all the evidence introduced by plaintiff to be absolutely true, and giving him every reasonable inference to be deduced therefrom, he is not entitled to recover. And in applying this rule to a suit for negligence, it must be remembered that negligence is not a fact which is the subject of direct proof, but an inference from facts put in evidence. “A demurrer of this character admits every material fact proven, and which may be inferred from the testimony, to be true, and should never be sustained unless the evidence, when thus considered, fails to make proof of some essential fact.” [Young v. Webb City, 150 Mo. 333; Bender v. Railroad, 137 Mo. 240; Rine v. Railroad, 100 Mo. 228; Noeninger v. Vogt, 88 Mo. 589; Myers v. Kansas City, 108 Mo. 480; Baum v. Fryrear, 85 Mo. 151.]

It is clear to our minds, from the evidence in this case, that the foreman was the vice-principal of his master, the defendant, and that no inference can be drawn from the evidence other than that it was through his negligence that the block which caused the injury to plaintiff was left upon the saw> table. The evidence tends to show that the table was clean and clear when plaintiff left it, by the direction of the foreman, to assist some other co-laborer only a few feet away, and that no one except the foreman was at the table or operated the machine during the plaintiff’s temporary absence. When plaintiff returned to the machine to finish up the work which he had been ordered-to do in the morning, he discovered no foreign matter upon the table or in contact with the saw, hut when he started the saw a small block of wood which, according to the evidence, must have been left on the saw table by the foreman, was hurled by the saw into his face, seriously injuring one of his eyes.

Even if the foreman was a co-servant with plaintiff at the time he was operating the saw, and occasionally did work of a character similar to that done by plaintiff, he was at the 'same time a vice-principal (Fogarty v. Transfer Co., supra), and as such the defendant wa.s responsible for his negligence.

The judgment is reversed, and the cause remanded.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    LINDSAY v. KANSAS CITY, Appellant.
    Division Two,
    March 29, 1906.
    1. STREET EXCAVATION: Consent of City: Lights and Guards. A city is bound to keep its streets free from obstructions and dangerous boles and reasonably safe for travel in the ordinary modes; and where a hole was dug in the street, by the consent and authority of the city, for the purpose of connecting the water main with a house, and left unguarded by barricades, with no warning lights, the city is liable for injuries to persons, traveling in a carriage in the night, injured by the falling of the horses and carriage into the hole, if they were exercising ordinary care or were without contributory fault.

      2. -: Lights and Guards: Conflict in Testimony. Where there was positive testimony that there were no warning lights or barricades about the deep excavation in the street into which the carriage fell, and equally positive testimony that there was a light, it is for the jury to determine the issue, and their finding is binding on the court
    S. -: Contributory Negligence: Intoxication of Driver. It is for the jury to say, where the evidence ia conflicting, whether or not the driver of the carriage which fell into the excavated hole in the. street, was intoxicated, or was, under the circumstances, guilty of contributory negligence in driving into the hole of which he had no knowledge.
    4. DAMAGES: Limited by Petition. The petition alleged that, as a result of her injuries, plaintiff had lost her means of livelihood for the month preceding, amounting to $30, and will in the future be compelled to lose her means of livelihood, to her damage in the sum of $5,000. Seld, that the court did not err in not limiting her damages as separately stated in the petition but properly gave an instruction which limited her damages because of the loss of her means of livelihood, past and future, as well as for all other injuries, to $5,000.
    5. EVIDENCE: Pains: Representations. Complaints and representations of suffering made by the injured party to any one are not rejected as mere opinion or as non res gestae. So that it was not error to permit a witness to testify that plaintiff “complains of pains in her back.”
    ■6. -: Observation. Observation by a witness of how much work plaintiff has been able to do since the 'accident, is not to be rejected. It is not mere conclusion or opinion, even though stated thus: “Very little; she has not worked at all, I do not think, since the accident.”
    7. EXCESSIVE VERDICT: Jury’s Province: $5,000. In each case whether the verdict is the redult of passion or prejudice or mistake or is but a fair compensation for the injuries received, must depend largely upon the facts. The plaintiff, a young woman, in excellent health, dependent entirely upon her own labor, had been earning $12 a week as a linotype operator. By the fall her elbow was dislocated, and that injury, in the opinion of the experts, is permanent; she was knocked senseless and received many bruises and contusions on her head and body; she was compelled to give up another good position, because of her inability to work; she had lost from 30 to 40 pounds in flesh, and at the time of the trial, 18 months after the accident, still suffered great pain in her back and head, due to the fall. Held, that it was the province of the jury to assess her damages, and, under the circumstances, it cannot be said that a verdict of $5,000 should be set aside.
    Appeal from Lafayette Circuit Court. — Hon. Samuel Davis, Judge.
    Affirmed.

      Edwin G. Meservey and Francis M. Hayward for appellant.
    (1) The verdict of the jury is not only not supported by evidence, but is directly contrary to the evidence and cannot stand. Reman v. Boston Trading Co.. 87 Mo. App. 186; Kreis v. Railroad, 30 S. W. 310; Lawson v. Mills, 130 Mo. 170; (2) The damages assessed by the jury are excessive for the injury plaintiff sustained. Thomas v. Consolidated Traction Co., 62 N. J. L. 36; Ryder v. Mayor, 50 N. Y. Super. 220; Railroad v. Anderson, 80 111. App. 71. (3) The first instruction asked by plaintiff as to damages is clearly erroneous, as not limited by the allegations of the petition. 2 Thompson on Trials, sec. 2309; Brown v. Railroad, 78 Mo. 504; Duke v. Railroad, 99 Mo. 347; Waddingham v. Plulett, 92 Mo. 528 ; Lester v. Railroad, 60 Mo. 265. (4) The court erred in admitting incompetent evidence on the part of the plaintiff, same being only opinion evidence and hearsay, which was prejudicial error. Sparr v. Wellman, 11 Mo* 230; Wetherell v. Patterson, 31 Mo. 458.

      Ralph S. Latshaw and John S. Blachtoell é Son for respondent.
    (1) “Was the hole at the time of the accident guarded with lights or barricades'?” This is, indeed, a vital question; but a question where there was reliable, abundant, and indeed, overwhelming and indisputable testimony by eight disinterested witnesses, that' there were no danger signals, lights or barricades about the hole where plaintiff was injured shortly before and at the time that the carriage in which plaintiff was riding was thrown against and into said hole, thereby injuring plaintiff. (2) In appellant’s motion for a new trial no particular instruction given by the trial court at the instance of respondent, is complained of; said motion for á new trial says: “7. The court erred in giving the instruction to the jury at the instance of plaintiff.” However, the instruction set out in appellant’s argument is in nowise subject to the construction that appellant would place upon it. (3) In the case of Reynolds v. Railroad, 88 S. "W. 52, an instruction much broader as to measure of damages was approved by this court, citing: Rodney v. Railroad, 127 Mo. 676; O’Connell v. Railroad, 106 Mo. 484; Duerst v. Stamping Co., 163 Mo. 617.
   GANTT, J.

— On the 27th of September, 1901, the plaintiff, Miss Clara Lindsay, commenced action for damages for personal injuries against Kansas City. In her petition she alleges that Kansas City is a municipal corporation organized under a freeholders’ charter, and that Southwest boulevard is one of the streets in said city, used by the general public for the purpose of travel. It is then alleged that prior to and on the 13th day of July, 1901, the said city carelessly and negligently failed and neglected to place and maintain barriers, lights or other warnings at or near a hole in said Southwest boulevard to warn persons lawfully using said street, of said hole and said defects and dangers. It is then alleged that on the night of July 13, 1901, at about 10:30 o’clock, plaintiff was lawfully riding in a carriage in a southwesterly direction between Twenty-eighth and Twenty-ninth streets, and the carriage in which plaintiff was riding ran against and into said hole in said’street and was overturned, and plaintiff precipitated therefrom with great force and violence onto the pavement, and her right elbow dislocated and her shoulder bruised and sprained and her neck and back and spinal column wrenched and strained, and plaintiff was injured in her internal organs; that on account of her injuries, she has been compelled to obligate herself for large sums of money for doctors and surgeons and nurse hire, and will as long as she lives be compelled to obligate herself for • large sums of money, to-wit, $300; that on account of said injuries plaintiff has suffered, and will, so long as she lives, suffer great physical pain and mental anguish, and on account of said injuries was compelled to lose her means of livelihood for the month following said 13th day of July, 1901, to her damage in the sum of $30, and will in the future be compelled to lose her means of livelihood to her damage in the sum of five thousand dollars.

The answer was a general denial and a plea of contributory negligence on the part of the plaintiff and on the part of the driver who was in charge of the carriage at the time plaintiff was hurt.

A change of venue was awarded to the Lafayette Circuit Court. In that court the cause was tried to the court and a jury, and resulted in a verdict of five thousand dollars. In due time motions for new trial and in arrest were filed, heard and overruled, and the defendant appealed to this court. On the trial the testimony tended to establish the following facts:

The plaintiff was a single lady about thirty years of age, and had for six years previous to the injuries of which she complains been working constantly at her trade of linotype operator, earning twelve dollars a week. On the night of July 13, 1901, she and her landlady, with whom she was boarding, and two gentlemen friends, started in an open hack about 8:35 o ’clock, to take a drive; they stopped at the corner of Fifth and Delaware streets in Kansas City and got two bottles of beer, and then drove to the corner of Ninth and Broadway, where they took in another gentleman, and then drove down Broadway and thence along the Southwest boulevard until they reached a point about half way between Twenty-eighth and Twenty-ninth streets where, as the evidence tends to show, there was an excavation dug in the street by a plumber to connect the building of a Mr. Hummer with the watermain in the street. The work was being done for Mr. Cotter, a plumber in the city. The plumber’s workmen,had been engaged for nearly a week in excavating the trench to make the water connection. Southwest boulevard was paved with asphalt, and this hole was cut across the driveway and was about six feet wide and between seven and eight or ten feet long and about six feet deep. The dirt from this hole was thrown on one side and the rock on the other. The great controversy in the case arose over the question whether this hole or excavation in the. street was lighted with lamps or lanterns that night so as to apprise the drivers of vehicles along the boulevard of the presence of this hole. The evidence on the part of the plaintiff was to the effect that there were neither danger signals nor lights or any kind of barricades or ropes to warn the traveling public of the danger.

Mr. C. O. Shepard testified that he was a clerk in the store of Emery, Bird & Thayer, and on the evening of the accident, about 8 o ’clock, he passed along Southwest boulevard in a street car, and by this excavation, and noticed the hole as he passed by, and he was sitting next to the window, and the window was open; there were no lights or barricades about the hole when he passed there.

Mrs. Furnkas who was in the carriage with plain-' tiff when the injury occurred, testified there were no lights or barricades about the hole into which the hack and horses fell. She testified that immediately after the hack fell into the hole, the parties there looked" around and there was no sign of lights or barricades; that she was there before the firemen came to take the horses out of the hole.

Mr. Woodcock, witness for the plaintiff, testified that he was in the barber shop about 150 feet from the hole in the ground, on the night of the accident, and some persons came into the shop and called for a light saying there had been an accident there at the hole; that he took one of the bracket lamps off of the wall of the barber shop-, and carried it over where the hole was, and there was a horse down in there. He described the hole as about five or six feet wide and ten and a half feet long and about ten feet deep; he supposed the hole had been there for possibly a week before the night of the accident. Asked if there were any lights or barricades there that evening, he said he could not say, he did not notice any, but there were none there when he went over with the light from his shop; “there was not any lights there is the reason they came over for a light at his shop.”

Obed Reeve testified that he passed this hole at about 7:30 o ’clock or a little later, that night, and there was no light there then.

Don E. Leland who was in the carriage at the time the plaintiff was injured, testified that it was very dark, there was nothing there to show that there was an excavation in the street, no lights, no barricades and no danger signals of any kind.

Harry Crowder, another of the passengers in the hack, testified there was no lamp or light or barricades about the hole, until some one after the accident brought a light from across the street.

The driver, Frank Costello, testified it was a very dark night, and that he did not notice any hole or any lights or barricades to warn him as he was driving along the boulevard, and when he got within a very few feet of it, it looked like water and mud in the street, and the first thing he knew, his team was up on the embankment and fell over in the ditch. He was driving along in what you would call a dog-trot; he saw neither lights nor danger signals about the hole, and there were none there.

On the part of the city, Mrs. Hummer, whose husband had employed Mr. Cotter, the plumber, to dig the trench, testified that she saw a lamp- lighted and on the place about six o’clock that evening; she lived at 2823 Southwest boulevard; she testified that the lantern used for a signal light was kept in her husband’s store building; that when she went to bed about 9:30 o’clock as near as she could remember, it was still burning.

Mr. Cotter testified that he was the contractor having this hole dug at that time; that he went to this excavation on the night of the accident about 10:30 o ’clock. He was asked to state just what the condition was. He answered, “Well, we are supposed to put a red light out.” Q. “Well, what was the condition at 10:30 o’clock that night?” A. “It was barricaded and lighted, the light was on top of the dirt and the lamp was attached to a pipe stuck down in the ground; I examined the lamp and there was plenty'of oil in it.” On cross-examination he stated “that if he left a hole unbarricaded in the street, he was responsible for any damage that occurred on account of its not being lighted or barricaded; that he was altogether interested. ’ ’

Leo Shay also testified in behalf of the defendant. He states that he Avas working for Mr. Cotter the plumber, and heard of this accident the next day after it occurred ; that he was out there about 10 o ’clock the night of the accident, and the hole was barricaded on all sides and a lantern on a piece of pipe in the dirt, and boards on the next side to the curbing. His description of the hole, however, is radically different from that of the other Avitnesses. He states also that he worked on that hole about two weeks before the accident.

Mr. E. Y. Starr testified that he was the foreman of the Armour Packing Company. He remembered the Incident of the carriage falling into the hole on Southwest boulevard on the 13th of July, 1901'. He had seen the excavation that evening. When the accident happened he was sitting in a barber shop about 150 feet from tbe hole. He testified that he saw a light before the accident; he went down to the hole after the accident occurred, and found one of the horses in the hole. A lot of city firemen came down to get the horses out of the hole; he testified that the hackman was intoxicated; he could not recognize the plaintiff as the lady who was in the hack at the time. On cross-examination he stated that he did not think anyone came over from the barber shop. Asked if he saw the hack driver there, he answered, “Yes, sir.” Q. “Did he have the appearance of having drunk anything?” he answered, “No, sir, I could not see. ’ ’

Mr. N. P. Miller also testified in behalf of the city. He lived at 2827 Southwest boulevard. He heard of the accident shortly after it happened. He was about eight lots further southwest from the place. He testified that he had seen a red light at this excavation every night for a week or ten days; he could not say positively that on the night the accident happened he saw the red light, he was too busy; he went over after the accident, and thinks he saw the harness and lantern lying in the dirt and that one of the horses was down in the hole. On cross-examination he stated he was not sure he saw the lantern, but thinks he saw a red lantern lying there. He thinks the hole was about five feet square, may be five to six feet deep1; the hole ran about four feet of the ear track over to the sidewalk. The hole ran up within a foot and a half of the car track; no one could drive a wagon between the end of the hole and the car track and there was not room enough for a vehicle to pass between the curbstone and the hole. He could not say that he saw any light there that night.

Mr. Sullivan, a member of the police department, testified that he was on duty the night of the accident on Southwest boulevard; he was three or four blocks away when it happened; he had passed the place where the accident occurred about twenty minutes before it happened; there was a light there, a lamp on a stick sitting’ on the side of the bank of dirt that had been thrown out of the hole on the north side; when he came back the firemen were trying to get the horses out of the hole and he dug up a frame of a lantern that had been run over; he gave the lantern to the foreman of No. 9'Fire Company; the dirt was about three and a quarter to four feet high on the side of the excavation. I judge it was about that. He saw the plaintiff at the doctor’s office and had a conversation with her after the accident; he asked her name and she refused to tell him; she said, “You need not be afraid of a suit against the city, we do not want our names in the paper.” He knew the driver, Frank Costello, and he was drunk, drunk enough to stagger around. There were no boards on the sides of the excavation.

Mr. McYay, another witness for the city, testified that he was at the place of the accident a few minutes after it happened; his place of business was about one hundred feet north, ¿cross the street; he could not state that there were lights at the place before the accident happened. There was no light there at seven o’clock that evening; he thought the driver was very indifferent 'in getting his horses out of the hole, he acted as though “he had a little.”

Edward Cassidy testified that he was a fireman, a foreman at the Southwest boulevard, No. 9 Company; he was called out on the night of the accident to get a horse out of a hole in the street; the hole was about six feet deep; he saw a broken lantern there, one of the officers pitched it in and it was put on a shelf at the engine house; he did not know the driver, Frank Costello, he knew Mr. Crowder by sight; he could not say whether Costello was drinking” or not; the lantern he saw was just a common lantern. There was a plank lying on it when he got out there.

Mr: McGrath, another of the firemen, testified that he went with the fire company to get the horses ont of the hole. He found the horse in the hole and got a shovel and got some dirt in there so they could get him out; there were no lights there when the company got there; it was a pretty dark night; he did not see the broken lantern at the hole; one was handed to him at the engine house by a man by the name of Sullivan; he thinks Sullivan brought the lantern to the engine -house the next day, and told witness to keep it.

Dr. Baraclaw testified that he lived at 2849 Southwest boulevard, and remembered the accident and recognized the plaintiff as the lady he waited on on that occasion. Asked as to plaintiff’s condition as to being-intoxicated or drinking, he said he could not tell whether she had been or not; the other lady showed some evidence of hilarity, and one of the young men in the party was drunk; he could not tell his name, had not seen him since, could not identify him. The driver, Costello, and the witness, Crowder, were brought into court at the request of the defendant’s attorneys, and the doctor recognized Crowder as one of the party he saw on the night of the accident, but could not remember Costello, could not remember that Costello was intoxicated.

Mr. G. A. Baraclaw testified that he thought the driver was intoxicated some, but when confronted with Mr. Costello said he could not recognize him at all as the party he saw that night; that the man he saw, referred to as intoxicated, was another man.

Ben Williams, another witness, testified for the defendant that he was a hackdriver, and was driving-on Southwest boulevard that night, and met or passed Costello on the boulevard between Summit and Broadway; Costello was driving along in a pretty good gait; there was a light on the excavation when witness went out and when he came back; -he could not remember whether it was light or dark that night; had no trouble whatever in seeing Costello and recognizing; him did not remember seeing anybody in Costello’s hack.

This 'is about the substance of the evidence as to the lights. It also comprises the testimony substantially on the question as to whether Costello, the hack-driver, was intoxicated that evening.

As to the nature of the plaintiff’s injuries, the plaintiff herself testified that after her injuries she had not been able to work half the time; that she got a good position at Burd & Fletcher’s, but was sick so much of the time she had to give it up; she suffered with terrible headaches; sometimes she could work about three days in a week.

Dr. S. H, Ragan testified that he was called to see the plaintiff the next day after her accident and found a great many bruises on her person; he found the right elbow dislocated, he found the upper end of the radius turned around (indicated to the jury the way); the muscle called the biceps, when violence is brought to bear on it, pulls the head of the bone and ruptures the ligaments and pulls the bone around. She was bruised all over; she had had a fall of some kind; her head was bruised, quite a number of blue marks there. The injury to the elbow, in his opinion as a medical man, would be permanent. Injuries to the elbow joint are very slow to heal, they do not repair as other places because they are looser and a fall would make injury to a joint much easier. She had a number of bruises on her back, she complained of injuries in that region. There was also testimony that the plaintiff had lost some thirty or forty pounds in flesh since receiving her injuries, but the physician did not attribute the loss of the flesh to the injury of the-elbow, but said it might be, and in his opinion, was the result of the shock to the nervous system.

I. We are asked by the defendant to say that the verdict of the jury is SO' palpably contrary to the evidence, so arbitrary and capricious, as to shock the conscience of the court in so far as they found that the hole in the boulevard was not guarded with lights or; barriers at the time the horses and carriage were precipitated into it and plaintiff injured. This is a vital question in the case; upon its solution depends the liability of the city. The defendant city is bound to keep its streets free from obstructions and dangerous holes and reasonably safe for travel in the ordinary modes and is liable for an injury resulting from a neglect of' its duty. [Russell v. Columbia, 74 Mo. 480.] The evidence very clearly shows that the ditch or hole into which the horses fell, which were drawing the carriage in which plaintiff was riding at the time she was hurt, had been dug by the consent and authority of defendant, and when the street was thus rendered unsafe, no question can be made as to the liability of the defendant for the injuries thus produced when the person suffering is without contributory fault or was exercising ordinary care. [Benjamin v. Railroad, 133 Mo. l. c. 285; Haniford v. Kansas City, 103 Mo. l. c. 181.] In view of the evidence already abstracted in the accompanying statement, it is obvious that there was an irreconcilable conflict between the witnesses for the plaintiff and some of those for the defendant. It was the province of the jury, who saw and heard these witnesses testify, to determine which they would believe. If they believed those for the plaintiff, it is perfectly clear that there were neither lights nor barricades to warn the driver of the carriage that there was a dangerous hole in the street, and the night was very dark. On the other hand, had they seen fit to have accepted the testimony of' some of the witnesses for the defendant, they must-have found that there was at least one lantern on the pile of dirt thrown out of the excavation on the side from which plaintiff approached the obstruction in the-street. It is not for this court to pass upon the credibility of the witnesses; that was the duty of the jury, and they believed the witnesses for the plaintiff, and did not credit those for the defendant. There is no such overwhelming preponderance of evidence in favor of the defendant, and nothing so unreasonable in the testimony of the witnesses for the plaintiff as would justify this court to substitute its judgment for that' of the jury and make a finding for the defendant. The first proposition, therefore, advanced by the defendant, must be ruled adversely to the contention of its counsel. On this point of the ease, the court gave the jury two instructions requested by the defendant which were as favorable as it could ask.

The jury were also fully justified in finding that the driver of the hack was not intoxicated, and under the circumstances was not guilty of negligence in driving into the ditch, of the existence of which he had no knowledge.

II. Complaint is made of the first instruction given for the plaintiff. That instruction is as follows:

“The court instructs the jury that if you find for the plaintiff, then in estimating the amount of damages to be awarded her you may take into consideration the physical pain, if any, or mental anguish, if any, that you may find and believe from the evidence plaintiff has suffered because or on account of such injuries, if any, and allow her such an amount therefor as under the evidence will reasonably compensate her for such physical pain, if any, or mental anguish, if any; and if you further find and believe from the evidence that plaintiff on account of such injuries, if any, was compelled to lose her means of livelihood, or will in the future he compelled to lose her means of livelihood, you may take this into consideration and allow her such an amount as you may find and believe from the evidence she is entitled to; and if you further find and believe from the evidence that plaintiff will in the fntnre suffer either physical pain or mental anguish on account of such injuries, if any, you may also take that fact into consideration and allow her therefor such an amount as you may believe from the evidence will reasonably compensate her for such future physical pain, 'if any, or mental anguish, if any, not to exceed, however, in all the sum of five thousand dollars.”

It is insisted that this instruction is erroneous in that the damages therein allowed are not limited by the allegations of the petition. This criticism is based upon the fact that the plaintiff in stating her damages alleged that at the time of the bringing of the suit she had already lost one month’s time, amounting to thirty dollars, and it is complained that the court in the said instruction permitted her to recover not only for future damages that she might suffer by the loss of her means of livelihood, but permitted the jury to find damages in addition to the thirty dollars which she had already suffered because of the loss of her means of livelihood up to the time of the trial. When it is home in mind that the action was commenced on the 27th of September, 1901, and the allegations of the petition referred to the loss of her means of livelihood from the time of bringing the action, in addition to that which she had already lost, we think there is no merit in the objection to the instruction. The court properly submitted to the jury the damages she had suffered up to the time of the trial as well as those which she would suffer on account of her injuries in the future. We do not think the instruction broadens the recovery beyond that which was prayed for in the petition.

III. It is urged that error was committed in allowing the following question to, and answer by, the witness Mrs. Duffey: Q. ‘£ State whether or not, from your observation since she has been living at your house, she suffers any pain?” Ans. “Why, yes, she complains of pains in her hack,” because it is said this is mere opinion, is not responsive and not res gestae. 1 Green-leaf on Ev., section 102, announces the rule: ‘ ‘ Representations, by a sick person, of the nature, symptoms and. effects of the malady, under which he is laboring at the¡ time, are received as original evidence. If made to a medical attendant, they are of greater weight as evidence; but, if made to any other person, they are not on that account rejected,” and the doctrine thus announced was approved by this court in McHugh v. Railroad, 190 Mo. l. c. 95. But besides this it is clear that no harm resulted to the defendant from permitting the witness to answer this question, because both Dr. Ragan and the witness Biles had testified that, the plaintiff complained of pains in her back, without any objection whatever on the part of the defendant. [See 20 Century Digest, Evidence, secs. 377 to 379; inclusive; Estes v. Railroad, 110 Mo. App. l. c. 731.]

The other objection to evidence was that Mrs. Furnkas, in answer to the question, “How much of the time has she been able to work since the injury?” said, “Very little; she has not worked steady at all, I do not think, since the accident.” The point made on this answer is that the last sentence of it is mere conclusion or opinion. "VVe think there is very little merit in this objection; it is simply a statement of the witness’s own observation of the plaintiff and her work after she was hurt, and she was perfectly competent to state what her observation had been.

IV. Finally it is insisted that the damages allowed by the jury are excessive. We are often confronted with the contention that the damages allowed by juries aré excessive, and in personal injury cases it is sometimes apparent that juries are carried away by their sympathies and award amounts out of proportion to the real damages suffered. Each case presents its own merits or demerits, and little assistance can be derived from what has been done in other eases. In each case whether the verdict is the result of passion or prejudice or mistake or is but a fair compensation for the injuries received, must depend largely upon the facts of the case. In this case tbe plaintiff is a young woman dependent upon her own labor for her livelihood, by which, it appears that, for a number of years, she had been earning twelve dollars a week by operating a linotype. She was in splendid health prior to the injuries she received. By her fall, her right elbow was dislocated and in the opinion of the medical witness this injury is likely to be permanent. In addition to this, when she was thrown from the carriage that night, she was knocked senseless and received many bruises and contusions on her head and body. The trial occurred some eighteen months after she had received her injuries, and at that time she was unable to work more than a day or two or perhaps three days at a time; she was compelled to give up a good position after working a month, because of her inability to endure the work. It further appears that she has lost from thirty to forty pounds of flesh and is a great sufferer from pains in her back and head, which the physician testified was a natural result of the fall from the carriage. It was the province of the jury to take into consideration the previous health and age of the plaintiff and her industrious habits and capacity to earn a livelihood for herself, and the loss of time and the suffering she had endured as well as the permanent injury to her right elbow and the probability that she would never be able to pursue her profession or trade as she had previous to her injuries. To determine the amount of her damages was one of the facts which, under our system of jurisprudence, is committed to a jury in the first instance, and unless we can say the verdict is obviously the result of passion or prejudice and should be set aside entirely, or is so disproportioned to the evidence in the cause that a remittitur ought to be required, the appellate courts are 'not justified in interfering with the verdict. The ver■dict in this case met the approval of a trial judge, who had exceptional opportunities to see the plaintiff and Rear Rer testimony, and that of the physician and the female friends with whom she had lived before and after she received her injuries. In view of the serious nature of the injuries, we are of the opinion that we would not be justified in reversing the verdict and judgment on account of passion or prejudice, nor do' we "think it is a ease in which remittitur should he entered as a condition of affirmance of the judgment. The case is evidently a meritorious one and the judgment is affirmed.

Burgess, P. J., and Fox, J., concur.