author: BURGESS, P. J.

text:
    WELLMEYER v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    July 3, 1906.
    1. NEGLIGENCE: Contributory: Riding on Platform: Question for Jury. Riding upon a street car as a passenger by standing on tbe platform when there is room for such passenger to be seated, and when no special reason exists for his taking such position, is not as a matter of law contributory negligence, but whether or not it be is a question to be passed upon by the jury under the facts and circumstances detailed in evidence.
    2. - :-: -: -: Circumstances: Riding on Front Platform: Defective Track. It was customary for passengers to leave the platform at the place of the accident by way of the front platform, and plaintiff, when the car was about 300 feet from the place where he wished to get off, arose from his seat and went to the front platform for the purpose of getting off there, and when the car was 200 feet from the place, it made a violent lurch and threw him off or he fell off. Held,
      that he was not, in taking his position on the platform and remaining there for so short a time as was required for the car to reach the place where he intended to leave it, guilty of negligence per se, even though there were unoccupied seats in the car. Held,, also, that if the fall and injury were the direct and proximate result of the negligence of the defendant company in maintaining its track in a defective condition, he was entitled to recover, unless he was guilty of negligence contributing to his injury.
    3. -: Damages: Loss of Earnings: Evidence. It may be inferred that plaintiff’s loss of earnings was at least equal to what he had to pay to another to take his place in his store and perform the work he was engaged in at the time of the injury, and proof of such payment is evidence of his loss of earnings.
    4. -: Instructions: No Evidence. Where there is no evidence upon which to predicate an instruction, to-wit, that if plaintiff voluntarily extended his head or other portion of his body outside and beyond the side of the car while riding on the front platform, and while in that position his head or the. exposed part of his body came in contact with the near-by trolley pole, etc., the instruction should not be given.
    5. -: Known Danger: Voluntarily Assumed: Verdict Contrary to Instruction: Duty to Passenger: Knowledge of Defective Track. The fact that the passenger may have known the defective condition of the track at the time he took a position on the front platform while the car was still in motion, does not bar a recovery for his injuries by being thrown from the platform when the ear, owing to the defective track, made a violent lurch; for the defendant company’s implied contract with him as a passenger was to carry him safely, and he had the right to rely upon that contract. So that where the evidence shows that the passenger had on prior occasions felt the jerking motion of the car, but also shows that the shock or jerk which caused his injury was more violent than any he had ever felt before on that or any other line, it cannot be said that a verdict for him was against the instruction of the court which told the jury that if plaintiff voluntarily took a known dangerous position on the car, when there was no necessity therefor, he could not recover.
    Appeal from St. Louis City Circuit Court — Now. Walter B. Douglas, Judge.
    Affirmed.

      Boyle & Priest, J. W. Jamison and John T. Gose for appellant.
    (1) One who testifies as a witness in his own behalf is conclusively bound by his deliberate admissions from the witness stand. Cogan v. Railroad, 73 S. W. 738; Shirts v. Overjohn, 60 Mo. 305. Where the facts showing the contributory negligence are testified to or admitted by plaintiff himself, the question is not one for the jury. Davis v. Railroad, 159 Mo. 1. It is contributory negligence, as a matter of law, to ride standing on the platform of a street car when there is room for one to be seated, and where no special reason exists requiring one to ride upon the platform. Thayne v. Traction Co., 191 Pa. St. 249; Andrews v. Railroad, 2 Mackey 137; Mann v. Traction Co., 34 Atl. 572; Cassidy v. Railroad, 29 N. Y. Snpp. 918; Watson v. Railroad, 93 Maine 584; Burr v. Railroad, 64 N. J. L. 30. Where one voluntarily, and with any necessity therefor, takes a position of danger upon the front platform of a street car, when there is ample room for him to sit in the car, he is guilty of such contributory negligence as will bar a recovery. Ashbrook v. Railroad, 18 Mo. App. 290 ; Bradley v. Railroad, 90 Hun 419; Beal v. Lowell, 157 Mass. 444; Francisco v. Railroad, 60 N. Y. 797; Mann v. Traction Co., supra; Cassidy v. Railroad, supra; Clark v. Railroad, 36 N. Y. 137. Where one might by the exercise of ordinary care have avoided the injury there cannot be any recovery. Cooley on Torts (2Ed.), 812; Nellis on Street Railways, pp. 383, 384; 7 Am. and Eng. Ency. Law (2 Ed.), 385, 386; Ashbrook v. Railroad, 18 Mo. App. 290; Smith v. Railroad, 61 Mo. 588; Tanner v. Railroad, 161 Mo. 497; Moore v. Railroad, 176 Mo. 528; Murphy v. Railroad, 153 Mo. 261. (2) Loss of earnings is a special damage which must be proven. Vongter v. Mercantile Co., 86 S. W. 486; Slaughter v. Railroad, 116 Mo. 274; Mellor v. Railroad, 105 Mo. 462; O’Brien v.Loomis, 43 Mo. App.29; Mauerman v. Railroad, 41 Mo. App. 348. Where there is no evidence as to the earnings lost, it is error to give an instruction authorizing a recovery therefor. Mammerberg v. Railroad, 62 Mo. App. 563; O ’Brien v. Loomis, supra; Mauerman v. Railroad, supra; Center Creek v. Frankstein, 78 S. W. 781; Kimball v. Railroad, 82 S. W. 1099; Braykill v. Northern, 74 S. W. 1024; Culberson v. Railroad, 5 Mo. App. 556; Stephen v. Metzger, 95 Mo. App. 610. Where an injury occasions loss of time or business, the value of the plaintiff’s personal services alonefixesthe amount he should recover for loss of time or business. Paquin v. Railroad, 90 Mo. App. 129; Masterson v. Mt. Vernon, 58 N. Y. 391; Sedgwick on Damages, sec. 181. That plaintiff hired an additional clerk is no evidence of plaintiff’s loss of earnings. Paqxiin v. Railroad, 90 Mo. App. 129. (3) Where there is evidence to justify an inference, there is evidence to support an instruction. Flournoy v. Anderson, 1 Mo. 513; Bradford v. Pearson, 12 Mo. 71; Dowling v. Allen, 102 Mo. 213; Tyler v. Hall, 106 Mo. 513; Seligman v. Rogers, 113 Mo. 642; Bergeman v. Railroad, 104 Mo. 77; Chouteau v. Iron Works, 94 Mo. 388. It is not necessary that the evidence should establish conclusively the hypothesis stated in an instruction; if there be any evidence conducing to establish the assumption, it is sufficient to authorize the giving of the instruction. (4) Where the verdict is so opposed to the evidence as to lead to the conclusion that it was the result of passion or prejudice, or that the instructions of the court were disregarded, it is the duty of the appellate court to interfere. Spohn v. Railroad, 87 Mo. 74; Garrick v. Greenwall, 92 Mo. 120; Lane v. Railroad, 132 Mo. 27; Price v. Evans, 49 Mo. 396; Whitsett v. Ransom, 79 Mo. 258; Reed v. Ins. Co., 58 Mo. 429.

      E. W. Banister and A. B. Taylor for respondent.
    (1) There is no just reason for the contention of appellant that the trial court should have sustained a demurrer to the evidence. There was overwhelming evidence of negligence of the carrier. Counsel contends that it was contributory negligence, as a matter of law, for respondent to go to the front platform before the ear reached its destination. There is where he had to go in order to alight from the car, according to the usual conduct of appellant’s business. It is just what is usually and habitually done by street car passengers, and negligence can not be predicated upon such acts. Certainly, not negligence as a matter of law. Seymour v. Railroad, 114 Mo. 271; Burns v. Railroad, 50' Mo. 140; Railroad v. Walling, 97 Pa. St. 55. In this case respondent was injured directly and proximately by the negligence of defendant in maintaining a track in such defective condition as to endanger passengers. The evidence shows that passengers habitually left the car by the front platform, and it was necessary to go on the front platform to get off, and the riding thereon the short space from the time respondent got on the platform to the stopping place could not be declared negligence as a matter of law, without condemning the usual habit of passengers — and there was no objection from the servant in charge of said car to such acts. Sweeney v. Railroad, 150 Mo. 398; Parks v. Railroad, 178 Mo. 114. (2) If a man is disabled from labor and occupation, and is thereby eonmpelled to hire a man to do the work which he would have done but for his injury, there is no .reason in law or elsewhere why he should not be entitled to recover for this expense. (3) There was no evidence from any source that the respondent put his head voluntarily beyond the body of the ear. Chubbeck v. Railroad, 77 Mo. 596. (4) Respondent could not have expected such a shock as he had never experienced before unless he possessed that mystical lore by which “Coming events cast their shadows before. ’ ’
   BURGESS, P. J.

This is an action by plaintiff against the defendant to recover twenty-five thousand dollars damages for personal injuries alleged to have been sustained by him while a passenger for hire upon one of defendant’s cars, by reason of being thrown from said car against a post, owing to the rocking of the car caused by the defective condition of defendant’s track.

The trial by the court and jury resulted in a verdict and judgment in favor of plaintiff for the sum of five thousand dollars. Within four days after verdict defendant filed motion for a new trial which was overruled. From the verdict and judgment defendant appeals.

At the time of the injury plaintiff was a passenger on defendant’s car, enroute to Easton avenue, and as the car approached said avenue he went to the front platform to be ready to step off of the car when it stopped. Plaintiff had a transfer on defendant’s line west on Easton avenue. After taking his position on the platform he stood, with his back to the body of the car, holding with his right hand to the hand rail, and about eighteen inches from the step of the car. While he was in the position indicated, according to plaintiff’s evidence, the car gave a violent lurch by which he was thrown forward and sidewise, so that his head and shoulders were thrown beyond the body of the car and brought in violent contact with a post standing within a foot or eighteen inches of the track, causing a fracture of the skull, injury to and impairment of the sight of his right eye, a fracture of the shoulder blade and of two of his ribs.

The petition, after alleging that the defendant was a corporation engaged in the business of carrying passengers for hire, avers that “plaintiff was received as a passenger at Marcns avenne and Natural Bridge Road, on said car, on May 7, 1902, and that defendant, for valuable consideration paid by plaintiff to defendant, undertook and agreed with plaintiff to carry him safely as such passenger on said car to his destination on defendant’s line, to-wit, Marcus and Easton avenues. That in violation of its undertaking and of its duty in the premises, defendant did, by its servants in charge of said car, so negligently run, control and manage said car, to-wit, about 200 feet north' of Easton evenue, plaintiff’s destination, and before said car reached plaintiff’s destination, and while he was such passenger on said car, and did run said car at a high and negligent speed over defendant’s track, which was rough and uneven and the joints were not broken, so that the passage of said car sustained whilst running upon said track violent shocks directly tending to throw passengers from said car as to cause the plaintiff to be thrown from said car and to be greatly and permanently injured.

“And plaintiff avers that whilst such passenger on said car he was moving to the front platform of said car for the purpose of leaving said car at his destination, which was one mode of egress from said car, provided by defendant for passengers, and whilst he was on said front platform of said car for said purpose, owing to the negligent management of said car by the defendant’s servants, and owing to the negligent running of said car along and over said defective track at a high and negligent speed, and owing to said negligent and defective condition of said track and the rails and joints thereof, the plaintiff was caused to be thrown from said car and sustained permanent injuries upon his body, head, arms and shoulders, his skull was fractured, his eyes and the nerves thereof were injured, his sight impaired, his eyes disordered and crossed, his shoulder-blade was broken, his ribs were broken on the left side, his lungs were injured, the artery of his head was broken and his heart was injured, and plaintiff sustained other injuries upon his body and internal injuries.

£ £ That by Ms injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind. Has been permanently disabled from his labor and his avocation as merchant and druggist, and has lost and will lose the earnings of his labor and business. Has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, and his health and strength has been impaired and he is maimed and disfigured for life, to his damage in the sum of twenty-five thousand dollars, for which sum he prays judgment. ’ ’

The defenses were a general denial and a plea of contributory negligence. The answer further avers, “that plaintiff’s alleged injuries were caused by the negligence of plaintiff in riding upon the front platform of the car, when he might have taken a safe and secure position inside the car, and at the time of the taking of such position upon the platform of the car he had full knowledge of the condition of the car track, trolley pole and ear, and their relative positions to each other. ’ ’

The evidence on the part of the plaintiff tended to show that at the place of the accident the ties were worn out and rotten to such an extent that the car would frequently jump the track. That the joints of the rails were not in line, and at places the one rail was higher than the other, so that the car in running over the track would sustain violent shocks and jerks and would lurch sidewise, and that this condition existed at the time of the injury.

Henry N. Bar'kess, a witness who saw the accident, testified that at the time of the accident the car seemed to leap or surge several feet towards the east, and the next instant he saw plaintiff lying motionless on the ground: that he walked to the place where the accident occured, and saw that, at a point about six feet north of the post against which plaintiff struck, the south rail was about half an inch higher than the end of the north rail on the west side of the track.

Monte H. Beenken, who had formerly been a conductor in the employ of the defendant, and who passed over the track frequently, testified that the track was in a very had condition; that the rails and ties were old, and the foundation of the track had; that sometimes a rail would spring in two, and that at places the cars had to he run slow to keep from jumping the track.

The evidence showed that plaintiff became a passenger on the car at Marcus avenue and Natural Bridge Road, paying his fare and taking a seat on the left side of the car. That when within about 300 feet of his destination he went to the front platform to be ready to step off promptly, and that the usual way of getting off the car at this point was by way of the front platform. That, when within about 200 feet of Easton avenue, and while he was standing on said platform, holding to the hand rail, the car gave a violent lurch forward and sidewise which threw his head beyond the side of the car, his head striking against a post close to the track; that his skull was fractured, his eyes injured, his shoulder-blade fractured, and two ribs on his left side broken; that he was unconscious for a time, and suffered severely for months. That he was in business for himself as a druggist, and that because of his injuries and inability to work he had to hire a man at $50 a month to do the work he had been doing before his injury, and take his place while incapacitated— about six and a half months.

On the part of the defendant, Mrs. I. M. Smith, a passenger on the car, testified as follows:

‘ ‘ Q. How many other passengers were on the car besides yourself and children? A. I just saw one other passenger; he sat across the aisle. I was in the second seat from the hack, and the other passenger that I saw was across the aisle.
Q. Did you notice a police officer? A. I did not notice him.
“Q. The other passenger you speak of was the plaintiff? A. I think he was the plaintiff; I am sure he was the plaintiff.
“Q. What became of the plaintiff — where did he go ? A. He sat there, and presently I saw him start for the front end of the car and the next thing I knew the car had stopped, and I glanced out the window and saw the motorman going to the back of the car, and I started to get off myself with my children, and the conductor had left the car, he was just ready to step down, and I saw on the other side of the track, the east side of the track where the man had fallen off the car, and I stepped down with my two children there. I remember I was going down to the corner of Grand and Laclede avenues that day to see a show, Ringling Brothers’ show; I remember thinking to myself how slow this car was going, and that I will never get to the show.
“Q. You saw the plaintiff go out of the door of the car? A. I did.
Q. How long after he went out the door was it before the car stopped? A. "Well, it was a very short time; I cannot state in minutes and seconds; I cannot possibly.
“Q. State whether or not the car was going fast or slow at that time? A. Well, to the best of my recollection, the car was going slow; I wanted to get down there to get into the show, and I did not think I could make it, because I knew at Easton and Grand avenues the cars would be crowded, and I remember thinking how slow the car was going. I swear that car was going slow; I must swear to that.
“Q. State whether or not the movement of the car was smooth or rough? A. It was not very rough that I noticed. I had my little boy on the side beside me and had my baby on my lap, and when the car stopped it did not move the boy, even the sudden stopping of the car.
. “Q. State whether or not at any time from the time you got on until the car stopped you observed any swinging, violent swinging motion of the car at all ? A. I did not.
“Q. You had your baby in your lap all of the time? A. Yes, I did.
“Q. And the little boy by you? A. The little boy by me.”
Patrick McKenna, the other passenger on the car, said:
“Q. State whether or not you saw him go out to the front platform? A. I saw him get out of the seat very near Leduc street and walk out on the front platform.
“Q. I will get you to state whether or not the car ran fast or slow at that time? A. Slow.
“Q. About what rate of speed? A. Not over four or five miles an hour.
“Q. I will get you to state whether or not that car was rocking violently or running smoothly? A. Well, it was running smoothly.
“ Q. I will get you to state whether or not at any time from the time you saw the plaintiff first on the car to the time the car stopped, you noticed any unusual or violent motion or jerking of the car at all? A. No, sir; there was not.”

Burd Ivey, the motorman, did not see Mr. Wellmeyer on the platform of the car and did not know what position he assumed. He did not notice anything wrong until he heard the noise of the fall and stopped his car. As to the movement of the car and the rate of speed, he said:

“Q. State to the jury at what rate of speed that car was running at the time, whether fast or slow? A. The car was running slow; I would not judge it was running over four or five miles an hour.
“Q. How far was it from the end of the line? A. Well, something about two or three hundred feet; it was not very far, and we were slowing'up when getting near the end of the line.
“Q. I will get you to state whether the car was moving smoothly or roughly? A. The car was running along smoothly.
“Q. State whether or not you observed any unusual swaying or lurching of the car at the time the plaintiff fell? A. No, sir; I did not.
“Q. Or at any time before? A. No, sir; nothing unusual.”

The conductor, James Ingram, testfied that he was on the back platform and knew nothing of the man having fallen until the car was stopped. His testimony in regard to the motion and speed of the car, was as follows :

“Q. I will get you to state, while you were standing out there on the rear platform, whether you observed any unusual or violent swinging or lurching of the car? A. I did not.
“Q. I will get you to state how fast that car was running? A. Well, I would say about four miles an hour, not over five.”

At the close of all the evidence the court refused defendant’s peremptory instruction. To which action of the court defendant then and there at the time duly excepted.

Over the objection and exceptions of defendant the court at the instance of plaintiff instructed the jury as follows :

“1. If the jury find from the evidence in this case that on the 7th day of May, 1902, the defendant was operating the railway and street car mentioned in the evidence for the purpose of carrying passengers for hire:
“And if the jury find from the evidence in this case that on said day the defendant by its servants in charge of its south-bound car on Marcus avenue, received the plaintiff as a passenger thereon to be carried as such passenger to his destination on said ear at Easton and Marcus avenues;
“And if the jury find from the evidence that as said car approached said destination the plaintiff walked to the front platform of said car for the purpose of alighting from said ear when it reached said destination;
“And if the jury find from the evidence that whilst the plaintiff was on said front platform and before said car reached said destination said car sustained a violent and unusual shock by reason of the defendant’s servants negligently running said car at a high and negligent rate of speed on a track which was defective as hereinafter stated, whereby the plaintiff’s head was caused to be brought in contact with a pole near said track and that thereby the plaintiff was injured and fell from said car;
“And if the jury find from the evidence that defendant’s track at said place was rough and uneven and that the joints of the rails were worn and not broken or made even and that thereby said car was caused to sustain said violent and unusual shock and plaintiff to so come in contact with said post and sustain such injury;
“And if the jury find from the evidence that the defendant failed to exercise a very high degree of care in running its said car over said track in said condition, and if the plaintiff was exercising ordinary care at the time of his injury, then he is entitled to recover.
‘ ‘ 2. By the term ‘ ordinary care ’ as used in the instructions as applied to the plaintiff, is meant such care as an ordinarily prudent man would use under the same or similar circumstances.
“3. If the jury find for the plaintiff they should assess his damages at such a sum as they may believe from the evidence will be a fair compensation to him.
“1st. For any pain of body or mind which the jury may believe from the evidence the plaintiff has suffered or will suffer by reason of his injuries and directly caused thereby.
“2nd. For any loss of the earnings of his labor which the jury may believe from the evidence the plaintiff has sustained by reason of his injuries and directly caused thereby.
“3rd. For any expenses necessarily incurred for medical or surgical attention or nursing which the jury may believe from the evidence the plaintiff has incurred by reason, of his injuries and directly caused thereby. ’ ’

- At the request of defendant the court gave the jury the instructions in words and figures as follows:

“1. If plaintiff’s sister or any other person rendered services to plaintiff without intending at the time to charge for such services, and he afterward voluntarily paid for said services, such payment was a purely gratuitous act on his part, and he had no right to include it among the necessary expenses of his illness.
‘ ‘ 2. The petition in this case alleges that plaintiff was thrown from the car and injured by reason of alleged imperfections in the track and by reason of an alleged high and negligent rate of speed at which the car was running at the time. If plaintiff recovers, it must be on these grounds and no other, and unless he has established these alleged facts by the evidence, your verdict must be for defendant.
“3. If at the time of plaintiff’s injury the car was running at slow speed and smoothly, then he cannot recover in this action, no matter how dangerous or defective the track may have been, and no matter how or by what means he was injured.
“4. Notwithstanding you may believe that defendant did not use that degree of care which the law required of said defendant as set forth in other instructions, still the court declares to you that such lack of care on defendant’s part could not and did not relieve plaintiff of the duty to use ordinary care for his own safety, and if he failed to do so, and such failure on his part directly contributed to his injury, he cannot recover, no mater how negligent defendant may have been.
“5. An adult passenger, possessed of ordinary mental capacity and intelligence, who knowingly and voluntarily takes an unsafe or dangerous position on a moving car, without any present necessity for so doing, and when by remaining elsewhere on or within the car until it stops he would be safe, does so at his own peril; and if by so doing he receives injury he alone is responsible therefor.
“If, therefore, you believe and find from the evidence that by reason of the condition of the track or rails it was dangerous or hazardous for a passenger to be upon the front platform of the car in question while the same was in motion, and that plaintiff was'then and there acquainted with the condition of said track, and knew of the danger or risk of riding upon said platform, and so knowing, voluntarily went there while the car was in motion, and by reason of his so placing himself upon said front platform he was hurt as shown by the evidence, when by waiting elsewhere on or within the car until the same had come to a stop he would not have been hurt, then the court declares to you as a matter of law that plaintiff cannot recover, and your verdict must be for the defendant; no matter whether plaintiff was injured by a lurch of the car, or not.
“6. If from the evidence you believe that plaintiff and defendant were both negligent, and that the negligence of each concurred with the negligence of the other in causing plaintiff’s injury, and that the injury would not have occurred from the negligence of either without such concurring negligence of the other, then your verdict must he for defendant. ’ ’

The court refused the instructions asked by defendant as follows:

“7. Even though you may find and believe that passengers usually left the car by way of the front platform, still the court instructs you that the evidence fails to disclose any necessity for plaintiff to go out on said platform before the car came to a stop.
“8. If plaintiff voluntarily extended his head or other portion of his body out side and beyond the side of the car while riding on the front platform, and while in that position his head or exposed part of his body came in contact with a trolley pole, whereby he was injured; he cannot recover in this action and your verdict must be for defendant.”

Defendant insists that the case should not, under the evidence, have been submitted to the jury, because, as contended, the evidence shows that plaintiff was guilty of contributory negligence in voluntarily, and without any present necessity for so doing, riding upon the front platform of the car under circumstances which he knew, or ought to have known, exposed him to danger.

While it is held in other jurisdictions that a passenger who rides standing upon the platform of a street car, when there is room for such passenger to be seated, and when no special reason exists for his taking such position, is guilty of contributory negligence as a matter of law, it is well settled in this State that it is not negligence as a matter of law, but a question to be passed upon by the jury under the facts and circumstances detailed in evidence. [Burns v. Railroad, 50 Mo. 139.]

In Seymour v. Railroad, 114 Mo. 266, it is said: “The law is now well settled that it is not negligence per se on the part of a passenger on a horse car to ride on the platform, and this is true whether there is or is not room in the car. The passenger being on. the platform when injured by the negligence of the driver or other servant of the defendant, the question of contributory negligence is one for the jury, and not for the court.”

While the plaintiff testified that the car swayed and jolted at or near the place of the accident, he also said that he had never felt such a lurch or shock as the one which caused him to fall from the car; and if the fall and injury were the direct and proximate result of the negligence of the defendant in maintaining its track in a defective condition, the plaintiff is entitled to recover, unless he was guilty of negligence contributing to his injury. It sems that it was the custom for passengers to leave the car at this place by way of the front platform, and as it appears from the evidence that plaintiff had only taken his position on said platform for the purpose of getting off the car at Easton avenue, he was not, in so doing and in remaining there for so short a time as was required for the car to reach the place where he intended to leave the car, guilty of negligence per se, even though there were unoccupied seats in the car. [Sweeney v. Railroad, 150 Mo. 385.] Nor is it negligence, as a matter of law, for a passenger on a street car to ride on the front step of the platform while cars pass by on the other track. [Parks v. Railroad, 178 Mo. 108.]

The court did not err in overruling the demurrer to the evidence.

Another contention is that loss of earnings is a special damage, and must be pleaded and proven in order to justify an instruction for a recovery. It is asserted that there was not a word of evidence as to what plaintiff’s earnings were while in the drug business or as to what his time was worth in that business. The case of Paquin v. Railroad, 90 Mo. App. 118, is chiefly relied upon as sustaining defendant’s contention. It is true that it is said in that case: “It is nowhere alleged in the petition that plaintiff was- a physician, or that he was eng’aged in professional business. His occupation is not stated, nor is it alleged that he suffered pecuniary damages on account of loss of time or earnings. Loss of earnings or of business is a kind of injury which is not regarded as a necessary consequence of personal injury, and must therefore be pleaded to entitle the plaintiff to give evidence of such loss. ’ ’ But while there was an entire absence from the petition in that case of any allegation with respect to loss of earnings, the petition in the case at bar alleged, ‘ ‘ That by his injuries so sustained the plaintiff has suffered and will suffer great pain of body and mind; has been permanently disabled .from his labor and his avocation as merchant and druggist, and has lost and will lose the earnings of his labor and business.”

While plaintiff did not testify directly as to the value of his earnings, the loss of which was directly caused by his injury, his testimony showed that he was necessarily compelled to employ a man to perform the work he was engaged in at the time of the injury, and he stated, without objection, that the value of the services of the person so hired by him did not exceed fifty dollars per month; from which it may reasonably be inferred that the loss of plaintiff’s earnings, during the time he was incapacitated for work by reason of his injuries, was at least equal to the amount he paid another to fill his place in the drug store during said time.

Another insistence is that the court committed error in refusing instruction numbered eight, asked by defendant. There was no evidence upon which to predicate this instruction. Besides, instruction number 1 given for the plaintiff, and instruction number 4 given for the defendant, declared that it was plaintiff’s duty to use ordinary care for his own safety, and if he failed to do so, and such failure contributed to his injury, he could not recover. These instructions fully and properly declared the law upon that question.

A final contention is that the verdict is against the instructions of the court, and especially instruction number 5, given at the request of the defendant. In support of this contention it is claimed that plaintiff testfied to the existence of facts which showed that he knowingly and voluntarily exposed himself to danger and contributed to the injury. On this question plaintiff testified as follows:

“Q. Had you experienced lurches during the time you had ridden on that car before? A. I felt the movement of the car — slight jerking. Q. Now, with reference to the shocks you formerly felt, how was this shocking or lurch? A. This was more severe at that time. Q. Had you ever experienced such a lurch as that before on that line¶ A. No, sir. Q. Or any other line? A. No, sir.”

While this evidence shows that plaintiff had felt the jerking motion of the car when riding on it on former occasions, it also shows that the shock or lurch of the car on the occasion of the accident was more severe than he had ever felt before upon that or any other line; and the fact that he may have known the condition of the road at the time of the accident was no obtacle to his recovery, under the circumstances, for defendant’s implied contract with him as a passenger was to carry him safely, and he had the right to rely upon its doing so.

The case seems to have been fairly tried and the verdict fully justified by the evidence. The judgment should, therefore, be affirmed.. It is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    LAWRENCE WISE, by next friend, v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    July 3, 1906.
    1. NEGLIGENCE: Perilous Position: Boy on Track: Vigilant Watch: Stopping Car: Warning. A boy, seven years old, approached from the north a street car track at a street crossing, and seeing an east-bound car coming, stopped on the westbound track for it to pass, and remained standing on the westbound track until the car had stopped, discharged and received passengers, and started, and just as it got by, a west-bound car struck him and threw him over on the east-bound track, where he was found 20 or 25 minutes later. There was a good light near by, and besides the time was about 6:30 of an October evening. Meld, first, that there was ample evidence that the boy was in a position of peril for sometime before he was struck, that defendant’s servants failed to keep a vigilant watch, and that the motorman either saw or by the exercise of ordinary care could have seen the boy on the track in time to have stopped the car, running eight or ten miles an hour, before striking him; second, the failure to ring the bell or give other warning was negligence and a lack of ordinary care; and, third, the court properly overruled a demurrer to the evidence.
    2. -: Contributory: Not Pleaded. Contributory negligence must be pleaded to be of any avail as a defense.
    3. -: : -: Instruction: Humanitarian Doctrine. If the facts upon which an instruction correctly embodying the humanitarian doctrine was based were found by the jury, contributory negligence was immaterial and no defense.
    4'. -: Instruction: Inapplicable. An instruction asked by defendant explaining the meaning of the Vigilant Watch ordinance, wholly inapplicable to facts of the case, should be refused.
    5. -: -: Accident: No Evidence. Where there was no evidence of mere accident or misadventure, but the whole case tendered by the pleadings and the evidence was whether or not the defendant was negligent, the court should refuse an instruction, asked by defendant, to the effect that if the jury believed that the plaintiff’s injuries were due to mere accident or misadventure, for which neither party was responsible, then they must find for the defendant. Instructions should be confined to the issues and the evidence.

      6. -: Loss of Earnings: Seven-Year-Old Child: No Evidence. The evidence shows that the plaintiff was a seven-year-old boy; that both bones of his right leg were broken; that his leg was permanently crooked as a result of the injuries; and that he had suffered concussion of the brain, which rendered him unconscious for nine days and affected his nervous system. Held, that there was evidence that his earning capacity had been impaired, and that it was for the jury to determine whether or not, under a carefully-drawn instruction which directed an award for loss of earnings after plaintiff should reach twenty-one years of age, plaintiff would be able to perform certain kinds of labor, and what his loss from that inability would be.
    Appeal from St. Louis City Circuit Court. — Hon. Warwick Hough, Judge.
    Affirmed.

      Sears Lehmann with Geo. W. Easley for appellant; Boyle & Priest of counsel.
    ' (1) There is no evidence of negligence in the record. Petty v. Railroad, 178 Mo. 125; Warner v. Railroad, 179 Mo. 666; Hanzelman v. Railroad, 88 Mo. App. 123; Molinaux v. Railroad, 81 Mo. App. 25. (2) There is no evidence that the motorman could have avoided the accident after the first appearance of danger to plaintiff. Petty v. Railroad, 179 Mo. 666; Campbell v. Railroad, 175 Mo. 161; Dunn v. Railroad, 98 Mo. 652; Cogan v. Railroad, 101 Mo. App. 179; Reno v. Railroad, 180 Mo. 469. (3) There is no evidence of a failure to give warning or establishing causal connection between such failure and plaintiff’s injuries. Heinz]e v. Railroad, 182 Mo. 559; Petty v. Railroad, 178 Mo. 125; Hanzelman v. Railroad, 88 Mo. App. 123. (4) Instructions without evidence to support them are erroneous. Pattison’s Instructions to Juries in Missouri Civil Cases (Ed. 1906), paragraph 95, and the fifty Missouri cases there cited. “A mere scintilla of evidence” is not sufficient. Commissioners v. Clark, 94 IT. S. 284; Reichenback v. Ellerbe, 115 Mo. 588; Powell v. Railroad, 76 Mdf 80; Bank v. Hamlin, 67 Mo. App. 487; ChampagixeV. Harney, 189 Mo. 709. (5) Defendant was liable in this case for ordinary care only. Sluder v. Railf'oad, 189 Mo. 137; Uebhart v. Railroad, 97 Mo. App/380. (6) Defendant’s asked instruction 13 correctly/ defined the phrases of the ordinance. Petty v. Railroad, 179 Mo. 676; Jett v. Railroad, 178 Mo. 672; Roenfeldt v. Bailroad, 180 Mo. 567. (7) Plaintiff was not entitled to recover for loss of earnings in the absence of proof of such loss. Slaughter v. Bailroad, 116 Mo. 269; Brake v. Kansas City, 100 Mo. App. 615; Stoetzele v. Swepkigen, 96 Mo. App. 592. (8) Under the circumstances of this case it was error to refuse instruction 11 to the effect that defendant was not liable if plaintiff’s injuries were the result of an unavoidable accident. Maxey v. Bailroad, 95 Mo. App. 309; Peary v. Railroad, 162 Mo. 99 ; Henry v. Bailroad, 113 Mo. 537.

      Haversticlt and A. It. Taylor for respondent.
    (1) Appellant in his first point and, as he states, his principal claim for reversal, says that his demurrer to the evidence should have been sustained. This plea is like that of the divine right of kings: “The king can do no wrong. ’ ’ Plere, on this evidence, is a boy of seven years, standing on a crossing in the plain view of the motorman if he is doing his duty, directly in the way of the car standing still on the track, waiting for another of appellant’s cars to pass east, so that he may'proceed on his way. The boy, it is fairly inferable from the undisputed evidence, was visible as he stood there while one car came up and stopped, and then started again, for a half minute or more, in which time a car at the average gait would run about 600 feet. Is there any excuse, under this evidence, for the motorman not to have seen and warned the child? Is there any excuse, under this evidence, for the motorman not to have had his car under control, and either slowed down and given time for the hoy to step ont of the way of the car, or stopped the car? It is, we submit, unreasonable to contend that a car cannot be stopped, or slowed up, in 500 or 600 feet. They are bound to stop for passengers at every stopping place where passengers wish to get on or off cars. (2) Appellant’s second contention is that plaintiff’s instruction 2 is erroneous in ignoring the child’s contributory negligence. Contributory negligence was not pleaded, appellant says so. This is unconsciously a complete answer to this contention. Instruction 2 given at plaintiff’s request, submitted the humane doctrine to the jury, where, of course, if the facts predicated were found, contributory negligence was immaterial, and no defense. This has become the settled law in this jurisdiction. Reardon v. Railroad, 114 Mo. 406; Klockenbrink v. Railroad, 172 Mo. 687; Scullin v. Railroad, 184 Mo. 707. (3) Instruction 13 is vicious in more ways than found by the trial court, as- admitted by appellant. The instruction was essentially bad because it told the jury that the ordinance provisions about keeping a vigilant watch for persons, especially children, either on the track or moving towards it, and upon the first appearance of danger stop the car, etc., “mean that the plaintiff was then in a position of danger of being struck from which he could not extricate himself by the use of ordinary care.” That the motorman should wait for this situation. This is error, because it repeals that portion of the ordinance which contemplates danger to the person when moving towards the track. Here is another view: “And if the plaintiff had not then reached the track or a point so near the same as to come in collision with the ear, then the .motorman had the lawful right to assume that the plaintiff would not go on or so near the track as to come in collision with the car.” Here, under this predicate, the motorman sees the child moving directly towards the track, unconscious of danger. He need do nothing to prepare for the emergency, but may serenely rest in the assurance that the child will stop before he gets in the way of the car. These are startling propositions of law, in the face of this ordinance, or, for that matter, at the common law. At the common law, if a motorman sees a man moving towards the track, and about to go into danger, it is his duty to take measures to meet the danger. Bunyan v. Railroad, 127 Mo. 22; Eckhard v. Railroad, 190 Mo. 618; Livingston v. Railroad, 170 Mo. 471. (4) The court gave, at the instance of the defendant, its instruction numbered six, declaring that unless the negligence of defendant was proven by a preponderance of the evidence, plaintiff could not recover. Counsel now complains because the court did not give his instruction about accident or misadventure. There was no evidence in this case of accident or misadventure. It was simply a case where defendant was negligent or not negligent.
   GANTT, J.

This is an action by Lawrence Wise, a minor, by his next friend, against the St. Louis Transit Company, to recover damages on account of personal injuries sustained on the evening of October 30, 1902, whilst he was on a public crossing leading across Laclede avenue from the north to the south side thereof in the city of St. Louis, by being struck by one of the defendant’s west-bound cars on Laclede avenue.

The crossing on which plaintiff was when he was struck was a raised brick crossing between two cross streets in a long block, and used by the public as a foot crossing, and a place where the defendant’s cars stopped to receive and discharge passengers. The plaintiff at the time of his injury was a few months past the age of seven years, and lived with his parents at number 4213 on the north side of Laclede avenue near said crossing. He was sent across the street to order milk for the house at or near half past six on the evening of October 30, 1902. It was just getting dark. The boy was proceeding across Laclede avenue on the said crossing from the north side to the south side of the street. When he reached the middle of the west-bound track one of the defendant’s cars eastbound came to this crossing and stopped, and he was compelled to stop to wait for this car to pass on, which he did, and just as this east-bound car started up he was struck by one of defendant’s west-bound cars and knocked across the east-bound track, where he was found unconscious fifteen to twenty-five minutes after he left home. There was evidence that there was no signal by bell as the car that struck the plaintiff approached the crossing and struck him. There was a city lamp on this crossing at its northeast end, and there was plenty of light on the crossing at the time the plaintiff was struck and injured. The injuries sustained were severe, both bones of the right leg below the knee were broken, and a number of pieces of bones were removed from the leg and pieces of the bones were split, and the bones protruded through the flesh, and he had concussion of the brain from which he was unconscious nine days.

The petition in substance alleges that Laclede avenue, at the places mentioned, was at the time the injuries are alleged to have been received, an open public street within the city of St. Louis; that on the 30th of October, 1902, plaintiff was passing southward across Laclede avenue upon a crossing between Sarah and Boyle avenues, when defendant’s west-bound car in charge of its motorman and conductor was caused and suffered by said motorman and conductor to strike and greatly injure the plaintiff, causing a concussion of the brain of the plaintiff, a permanent injury to his nervous system, breaking the bones of his right leg and causing other injuries and bruises on his body, and permanent internal injuries. That the defendant and its motorman and conductor were negligent in causing said car to strike and injure the plaintiff, in this; that at the time of the plaintiff’s injury they were causing said car to run at a high and reckless rate of speed and failed to keep any watch or to use any care to look out for persons on defendant’s tracks, or approaching them, and failed to give any warning by bell or otherwise of the approach of the said car to said crossing, which negligence directly caused and contributed to cause said car to strike and injure the plaintiff. It is also averred that at the time of said injuries there was in force within the city .of St. Louis an ordinance of said city by which it was provided that motormen and conductors on street cars should keep a vigilant watch for persons on the track, especially children, either on the track or moving towards it, and upon the first appearance of danger to said person or child the car should be stopped within the shortest time and space possible, but that the defendant’s motorman and conductor failed to keep such vigilant watch and failed to stop said car on the first appearance of danger to plaintiff, which violation of said ordinance directly contributed to plaintiff’s injuries; that by his injuries so sustained, plaintiff has suffered and will suffer great pain of body and mind, has been permanently crippled and disabled from labor, has lost and will lose the earnings of his labor, and his leg is deformed permanently, to his damage in the sum of five thousand dollars, for which sum he prays judgment.

The answer was a general denial.

The plaintiff testified that it was not yet dark, but was getting dark; that he had started south over the crossing from the north to the south side of Laclede avenue; that he saw a car coming from the west going east, there was plenty of light, he could see the car plainly. There was light on the street where he was standing. He stopped to let the east-bound car pass bim before attempting to cross the track. He stepped in the middle of the west-bound track waiting for the other car to pass east, that car came to a stop at the crossing, and just as it began to start east a car going west on the track on which he was standing came np and struck him. He testified that he heard no bell on,the car that hit him. He' testified that he saw the car that struck him, just before it hit him and after that he did. not know anything. The evidence further shows tilth Laclede avenue going west at this point is upgrade. The testimony further showed that the boy was so struck by the car that he was thrown and fell across the east-bound track on the east side thereof with his foot within about a foot of the south rail of the eastbound track, and that he was found at this point by Ms sister in an unconscious condition about twenty-five minutes after he left the house, she having been notified by a man that the boy was lying on the street.

The Vigilant Watch ordinance was read in evidence.

Dr.' Haverstick was called immediately after the boy was removed to his home, and testified that the boy was perfectly unconscious and had a concussion of the brain, an injury to his right arm, a bruise and a compound complicated fracture of his right leg. Both bones in the foreleg were broken, the bones had run out through the flesh at least four inches, and they were broken in more than one place. There were pieces of bone broken off of the large bone of the leg. He exhibited some of the pieces of bone that came- out of the limb, some of them four weeks after the injury and some three months afterwards. The boy was perfectly unconscious for eight or nine days after the injury, and had that peculiar breathing and was in that serious condition that you always have after a profound nervous shock. He treated the boy until the next July. He testified that he was assisted by Dr. Lutz in setting the limb, and that fairly good results had followed. The bones ha¡d united. He testified that the boy was more nervous and more excitable from the concussion of his brain. He testified to the suffering of the boy from his injuries; that it was impossible to keep him quiet or have him sleep, although he had administered all the sedative medicines that were safe to give him.

Miss Minnie Wright, a trained nurse, attended the hoy from the next evening after he was hurt for twenty-one days. She testified that he was in an unconscious condition for nine and a half days; that he suffered intensely; that he was kept under the influence of opiates all the time as nearly as could be.

Miss Rosa Wise testified that she was a sister of the plaintiff; that the family resided at 4213 Laclede avenue and had lived there about two years and a half before the injury. There was a crossing made of brick on Laclede avenue between Sarah street and Boyle avenue, and the street cars stopped at this crossing. She was at home on the evening of October 30th, and the plaintiff left the house to go across the street to order milk to be sent the next day. He started about half past six. When she next saw him he was lying in the street near the defendant’s track with his foot near the track and on the south side of the east-bound track. His head was lying near the curb. When she reached him, plaintiff was unconscious. A gentleman helped her carry him home. She had been told that a little boy was lying there and she went to see and found it was her brother. This was about twenty minutes after he left the house to go for the milk. He was confined to his bed three months or more. Prior to his injuries he was a strong and healthy boy. After he got up his limb was still in plaster of paris. It was about four months before he could use his leg to step upon it. Asked as to whether there were any indications of pain, she testified that he screamed all the time while he was unconscious, and after he regained consciousness he complained constantly of suffering. A man came to their house and notified her that there was a boy lying down there. Their house was the only one that was right near there, and he told her that there was a boy injured there. When she reached her brother, there was a man there who helped her bring the child in and left, she did not know his name, and did not ask him. She testified that one of the city gas lamps is exactly at the crossing on the north side of the street.

Mr. E. H. Wise, the father of the plaintiff, testified that he was ont of the city on the evening that plaintiff was hurt, and reached home the next day and remained with him daring the period of his serious illness. When he came home the boy did not recognize him. He was unconscious until the ninth day. Prior to his injury he was a strong and healthy child.

At the close of the plaintiff’s evidence, the defendant prayed the court to instruct the jury plaintiff could not recover, which instruction the court refused and defendant excepted.

On the part of the defendant Charles Medlock testified that he was a driver for the Trinidad Asphalt Company on the 30th of October, 1902; that he was the man that came and told plaintiff’s sister that there was a boy out there hurt. He thought it was about 7:30, or about that time. It was dark. When he first saw the plaintiff he was lying south of the east-bound track with his head towards the track. He did not pay any particular attention to the time but thought it was near 7:30. He drove by and notified a man.

A. W. Davis testified that he was the conductor on the car on the evening of the 30th of October that passed this location about 6:36 and knew nothing of the accident.

Edward McKinzie was a motorman on the car bound west about 6:40 p. m. that day and knew nothing of the accident. He first heard of it that night about 8 or 9 o’clock. His car did not strike the little boy. Their usual speed was about eight or ten miles an hour. About that time of day it was getting dusk, could not remember whether it was real dark or not, but they would have a headlight on their car at that hour.

Various other employees, motormen and conductors on the defendant’s cars, testified to the effect that their cars did not strike the boy to their knowledge.

This was all the testimony in the case. The other facts and the instructions that are complained of will be noted in the discussion of the case.

I. The first insistence is that the demurrer to the evidence should have been sustained. The case was not submitted to the jury on the theory of excessive speed. The charges as to the violation of the Vigilant Watch ordinance, and as to the failure to give warning of the approach of the car, were submitted to the jury in the two instructions given for the plaintiff.

As to the failure to keep a vigilant watch and to stop the car on the first appearance of danger to the plaintiff, the defendant urges that there was no evidence as to where the car which struck plaintiff was, when plaintiff first approached the track, and no evidence as to the distance in which the car could be stopped, and no evidence as to the speed of the car, and as it was dark there was nothing to sustain this charge. We cannot agree to this contention. The evidence discloses that the plaintiff was a boy of about seven years of age; that he was standing on a crossing, or in the middle of the west-bound track. The testimony is that the boy had reached the crossing before the east-bound car came to that crossing, and stopped to wait for that car to pass before attempting to cross the south track; that there was plenty of light where he stood; he was then in plain view of the motorman going west on that west-bound track if the motorman was attending to his duty of keeping a vigilant watch as required by the ordinance for persons on the track, especially children. The east-bound car came to a full stop at this crossing and the boy stood still between the rails of the westbound track during the stop of this east-bound car and until it started east.

The testimony was that these cars were running from eight to ten miles an hour going west that night. Considering the length of the time that the boy stood immediately between the rails directly in front of the west-moving car, waiting for the east-bound car to approach, stop, and then move, before he was struck, we think there was ample evidence for the jury to have found that had the motorman been observing ordinary care in looking for people that might be on his track, he either saw, or by the exercise of ordinary care could have seen, the boy standing there in ample time to have stopped his car as he approached from the east, and have avoided striking him, and there was no error in overruling the demurrer to the testimony on this ground. The assumption that it was dark is rebutted by the evidence in the case, which tended to show that there was both artificial and natural light enough to have enabled the motorman to have seen the child standing in the full light between the rails of the track on which his car was moving. In the circumstances it needed no expert testimony to demonstrate that a car traveling west at eight or ten miles an hour could not have been stopped in the time the west-bound car was traveling towards the boy while he was standing still waiting for the approach of the east-bound car and during the time that it stopped and until it began to move east. It was a question of fact upon which the jury was competent to pass without the aid of expert testimony.

Nor can we accept the predicate of the defendant that there was no evidence that the plaintiff was in a position of peril for any length of time. Counsel concede that if there was light, it might be inferred that a position of peril should have been discovered. The evidence shows that there was plenty of light. Moreover, the evidence tends to show that no bell or other signal was given the boy of the approach of the car which struck him. Human instinct exists in a boy of the age of seven or eight years, and if he had heard a bell, that instinct would have urged him to escape the danger. Had the warning been given as ordinary care on the part of the motorman required, all the probabilities are that the injury would have been averted. And it was negligence not to have given the warning by ringing the bell or sounding the gong.

II. The second proposition advanced is, that the plaintiff’s second instruction was erroneous in that it ignored the plaintiff’s contributory negligence. In the first place, contributory negligence was not pleaded. The rule has ever been in this State that contributory negligence must be pleaded to be of any avail as a defence. A child is only to be held responsible for such care as children of his age, experience and discretion ordinarily use, under the same and similar circumstances. This was submitted to the jury under the first instruction given for the plaintiff. The second instruction submitted the humane doctrine to the jury, where, of course, if the facts predicated were found, contributory negligeuce was immaterial, and no defense. [Reardon v. Railroad, 114 Mo. 1. c. 406; Klockenbrink v. Railroad, 172 Mo. 1. c. 687; Scullin v. Railroad, 184 Mo. 1. c. 707.]

There was no error in the second instruction. There was no issue of contributory negligence tendered by the pleadings, and if there had been, it would have been immaterial if the jury found the facts required by the second instruction.

III. The defendant prayed the court in effect to instruct the jury that the Vigilant Watch ordinance was invalid. It is now conceded by the counsel for the defendants that in the light of Sluder v. Railroad, 189 Mo. 1. c. 136, this instruction was not the law.

IV. Defendant prayed an instruction as follows: “The phrases ‘first appearance of danger’ and ‘becoming aware of the danger’ or other like expressions, used in the ordinance read in evidence and these instructions, do nót mean that plaintiff was seen approaching the track by the motorman, bnt mean that the plaintiff was then in a position of danger of being struck, from which he could not extricate himself by the use of ordinary care; and if the plaintiff had not then reached the track, or a point so near the same as to come in collision with the cár, then the motorman had the lawful right to assume that the plaintiff would not go on or so near tbe track as to come in collision with the car, and the fact that plaintiff was moving towards the track does not constitute the appearance of danger meant by the ordinance, nor that the motorman thereby became aware of the plaintiff’s danger so as to make it the duty of said motorman to stop or check the speed of his car, until it became apparent to him that the plaintiff would not stop, but would go on the track in front of the car.”

This instruction, it is perfectly clear, was utterly inapplicable to the facts developed in this case, and the court very properly refused to give it; independently of the fact that it was wholly foreign to the situation developed by the testimony, it was bad in various other parts. It is in conflict with the law declared in Bunyan v. Railroad, 127 Mo. 1. c. 22; Eckhard v. Railroad, 190 Mo. 618; Livingston v. Railroad, 170 Mo. 1. c. 471.

V. The defendant requested the court to instruct that unless the jury found from the evidence that plaintiff was injured by one of defendant’s west-bound cars, and his injuries were directly due to the negligence of defendant’s servant, plaintiff could not recover. The court had already given two instructions for the plaintiff and one for the defendant incorporating this requirement of proof of negligence on the part of the defendant, but this instruction went further, and the court was asked to instruct the jury, that if the jury believed that plaintiff’s injuries were due to mere accident or misadventure, for which neither party was responsible, then they must find for the defendant. There was no evidence in the case of any accident or misadventure. The issue tendered by the pleadings and by the evidence was simply whether defendant was negligent or not, and the court was right in not inviting the jury into a field of conjecture and speculation. Instructions are always to be confined to the issue and the evidence in the case. There was no error in refusing it.

VI. The fourth instruction given on behalf of the plaintiff was as follows:

“If the jury find for the plaintiff they should assess his damages at such sum as they may believe from the evidence will he a fair compensation to him:
, “1st. For any pain of body or mind which the jury may believe from the evidence he has suffered or will suffer by reason of said injuries and directly caused thereby.
“2nd. For any loss of the earnings of his labor after he shall have arrived at the age of twenty-one years which the jury may believe, from the evidence, the plaintiff has sustained by reason of said injuries and directly caused thereby.
“But you will not allow any sum for any earnings of his labor you may believe he may lose up to the time he becomes twenty-one years of age, and you will not allow any sum for loss of earnings of his labor thereafter unless you believe and find, from the evidence, that he will be disabled from labor and lose the. earnings of his labor after he arrives at the age of twenty-one years as a direct result of his alleged injuries.”

The sole objection to this instruction is that there was no evidence that his earning capacity had been in any way impaired. The evidence showed that both bones of the right leg of plaintiff were broken, and that his leg was crooked hy the injury. This broken leg was exhibited to the jury, and in addition to this the evidence showed that plaintiff had sustained a concussion of the brain, which had rendered him unconscious for nine days and which affected his nervous system. It was for the jury under these facts under this carefully guarded instruction, to determine whether or not plaintiff would be disabled to perform certain kinds of labor with such a leg. It was for the jury to determine whether or not the impairment of his nervous system would affect his earning capacity. The evidence was that before he was injured he was a strong, healthy child.

In Rosenkranz v. Railroad, 108 Mo. 1. c. 15-17, the jury were instructed among other things, that “they could take into consideration loss of earnings after he shall have attained the age of twenty-one years,” and that instruction was assailed on the ground that there was no evidence from which the jury could infer what physical capacity for labor plaintiff would have possessed if he had not been injured, but this court said: “It is well settled that prospective damage to adults, on account of impairment of earning capacity in the future, is a proper element of damages in cases of personal injuries. [Whalen v. Railroad, 60 Mo. 323; Pry v. Railroad, 73 Mo. 124; 2 Sedg. Dam. (8 Ed.), sec. 485.] Ordinarily, damages will not be awarded to compensate for losses not yet experienced on mere conjectural possibility that such loss will occur. In the case of an adult proof should be made of ‘previous physical condition and ability to labor, or follow his usual avocation, as well as his condition since the injury, to enable the jury to properly find the pecuniary damage.’ [5 Am. and Eng. Ency. Law, 41, and authorities cited.] What may or may not be done by anyone in the future depends upon so many contingencies that prospective loss of earnings cannot be susceptible of direct and conclusive proof even in case of adults. Nevertheless such damages are uniformly allowed. The impairment of the earning capacity of one in his infancy is as great a damage to him as though he had not been injured until the day he reached his majority. That he would have an equal right to compensation logically follows. This plaintiff had never earned anything, and what his ability to labor or his capacity for earning money in business pursuits will be in the future, no one can tell with any certainty. It is properly held in such case, in the absence of the existence of direct evidence, that much must be left to the judgment, common experience, and ‘enlightened conscience of the jurors, guided by the facts and circumstances in the case.’ ” [Grogan v. Foundry Co., 87 Mo. 326; Nagel v. Railroad, 75 Mo. 658; Davis v. Railroad, 60 Ga. 329; Fisher v. Jansen, 128 Ill. 551; Railroad v. Miller, 51 Tex. 275; Brunke v. Telephone Co., 112 Mo. App. 623.]

We think the instruction is not obnoxious to any just criticism in view of the well-settled law of this State.

We have been unable to find any reversible error, and the judgment is therefore affirmed.

Burgess, P. Jand Fox, J., concur.