author: ROT, C.

text:
    BENJAMIN F. KINNEY v. METROPOLITAN STREET RAILWAY COMPANY, Appellant.
    Division Two,
    July 14, 1914.
    1. NEGLIGENCE: Contributory: Collision: Danger Signals: Question for Jury. On a dark, drizzly night the interurban trolley ear on which plaintiff was motorman collided with a work car which stood between stations with no tail light burning. Another car was at the time from one to three car .lengths beyond the work car and coming up, with headlight burning, on a parallel track eight or ten feet from that on which plaintiff’s car was running. The window directly in front of plaintiff in the vestibule was closed, but that to his right was open. Held, that the question whether plaintiff was negligent in failing to see the work car was for the jury.

      2. -: -: -: -: Custom: Evidence: Pleading. Where the petition charges common-law negligence in an action by a motorman for injuries received in a rear-end collision, and alleges that the car with which his collided was without rear lights, evidence of a rule and custom of the company to keep a red signal light on the rear of cars at night is admissible, even though such rule and custom be not pleaded.
    3. VOIR DIRE: Attorney for Casualty Company: Not Record Party. Where an attorney for a casualty company was in court ostensibly as counsel for the defendant, and making a defense which was really in behalf of his company, not a record party to the suit, it was not improper for plaintiff’s counsel to ask jurors on their voir dire if they were connected in a business way with the casualty company.-
    4. NEGLIGENCE: Loss of Leg: Improper Remarks of Counsel: Verdict: Remittitur. The plaintiff, a motorman employed by defendant, lost a leg as a result of a rear-end collision with a car which he alleges burned no signal lights behind. His petition asked for $50,000 damages, and an instruction authorized the jury, if they should find for him, to assess the damages at “not to exceed” that sum. Defendant’s employees fully supported the plaintiff as to the facts of defendant’s negligence. Plaintiff’s counsel in his argument asked the jury to imagine as plaintiff a female passenger on the car, and when an objection was sustained to that he turned to picture plaintiff’s battle with defendant’s legal department and claim agents. An objection to that was overruled, and then counsel, until stopped by the court, argued about the objections, once stigmatizing them as “tricks of the trade.” The jury returned a verdict for $20,000, and judgment was entered for $15,000 after compulsory remittitur of $5000. Held, that, although the conduct of plaintiff’s counsel was most reprehensible, yet, since it seems plaintiff would have had a verdict in any event, it is not reversible error; but in view of the fact that the court has hitherto refused to affirm judgments for more than $10,000 for the loss of a leg, counsel’s misconduct affords ground for requiring a further remittitur for $5000.
    Appeal from Jackson Circuit. Court. — Hon. E. E. Porterfield, Judge.
    Appirmpd (conditionally).

      John H. Lucas, Boyle & Howell, Jos. S. BrooJcs, Chas. N. Sadler and M. I. Prewitt for appellant.

      (1) The court erred in overruling defendant’s instruction in the nature of a demurrer to the evidence at the close of the evidence. Williams v. Railroad, 149 Mo. App. 489; Koenig v. Railroad, 173 Mo. 698; Klockenbrink v. Railroad, 172 Mo. 678; Moore v. Railroad, 194 Mo. 1; Eppstein v. Railroad, 197 Mo. 720; Murrell v. Railroad, 105 Mo. App. 88; Abbott v. Railroad, 121 Mo. App. 582;- Brody v. Railroad, 206 Mo. 509; Moore v. Railroad, 146 Mo. 582; 1 Bailey on Personal Injuries, sec. 1121. (2) The court erred in admitting incompetent, irrelevant and immaterial evidence offered by plaintiff. Fechley v. Railroad, 119 Mo. App. 372; Mooney v. Kennett, 19 Mo. 555; Bailey v. Kansas City, 1891 Mo. 514; Tarkio v. Lloyd, 179 Mo. 605; St. Louis v. Roche, 128 Mo. 541;' Crone v. Mallinkrodt, 9 Mo. App. 316; Keane v. Klausman, 21 Mo. App. 489. (3) The verdict of the jury is excessive. Farrar v. Railroad, 155 S. W. 444; Brody v. Railroad,-206 Mo. '540; Newcomb v. Railroad, 182 Mo. 727; Scrivner v. Railroad, 260 Mo. 421. (4) The court erred in permitting attorney for plaintiff to improperly examine jurors on voir dire, and permitted said attorney to make improper remarks before the jury in the closing argument. (5) The court erred in overruling appellant’s motion for a new trial. ■ The verdict of the jury is excessive, and evidences passion and prejudice on the part of the triers of the fact. Lehnick v. Railroad, 118 Mo. App. 616; Spohn v. Railroad, 87 Mo. 84; Price v. Evans, 49 Mo. 336; Fugler v. Bothe, 117 Mo. 502; Waddell v. Railroad, 111 S. W. 542; Briscoe v. Railroad, 120 S. W. 1162; Wellman v. Railroad, 219 Mo. 126. (6) The court erred in giving instruction 2-p, on behalf of the plaintiff, in this: (a) The court refers the jury to the petition sued on for the injuries suffered by plaintiff, (b) It tells the jury that they may assess his damages at such an amount as they find will compensate him for his injuries so received, such injuries not being specitied in the instruction, (c) It tells the jury they may take into consideration physical and mental anguish “sued for in this case,” and then tells the jury that they may find for the plaintiff in such sum as will fairly compensate him for his injuries, it being alleged in the petition that plaintiff had been compelled to expend and became liable for seven hundred and fifty dollars for doctor’s bills, medicines, etc. Hawes v. Stockyards Co., 103 Mo. 66; McGowan v. Store Co., 109 Mo. 578; Pandjiris v. Hartman, 196 Mo. 547; State v. Scott, 109 Mo. 231; Shaw v. Dairy Co., 56 Mo. App. 521; Grant v. Railroad, 25 Mo. App. 227; Schaub v. Railroad, 106 Mo. 74.

      Brewster, Kelly, Brewster & Buchholz for respondent.
    (1) The court did not err in overruling defendant’s demurrer to the evidence. Theobold v. Transit Co., 191 Mo. 432; Trigg v. Water, Light & Transit Co., 215 Mo. 543; Petty v. Railroad, 1791 Mo. 674; Carter v. McDermott, 29 Mo. Ápp. Cas. (D. C.) 145; 10 Am. & Eng. Ann. Cas. 601. (2) The evidence offered was competent and proper, and in support of the allegations of the petition. Campbell v. Railroad, 175 Mo. 175; Lancaster v. Railroad, 143 Mo. App. 172; Bragg v. Railroad, 192 Mo. 350; Lee v. Railroad, 195 Mo.. 425; Ahlfeldt v. Mexico, 129 Mo. App. 199; Lewis v. Railroad, 142 Mo. App. 585; Canfield v. Railroad, 98 111. App. 1. (3) The verdict was not excessive, and the final judgment of $15,000 should not be further reduced. Oglesby v. Railroad, 150' Mo. 137; Corby v. Telephone Co., 231 Mo. 417; Yost v. Railroad, 245 Mo. 219; Thompson v. Lumber Co., 147 S. W. (Tex.) 296; Railroad v. Spurney, 197 111. 471; Railroad v. Dunn, 106 111. App. 194; Light Co. v. Rombold, 68 Neb. 54; Kalfur v. Railroad, 161 N. Y. 660; Williamson v. Railroad, 65 N. Y. Supp. 1054; Railroad v. Scott, 21 Tex. Civ. App. 24; Railroad v. Abbey, 29' Tex. App. 211; Railroad v. Tolliver, 37 Tex. Civ. App. 437; Hollenbeck v. Railroad, 141 Mo. 97; Shohoney v. Railroad, 231 Mo. 131. (4) Tbe court did not err in permitting tbe questions asked tbe jury on voir dire. Meyer v. Mfg. Co., 67 Mo. App. 389. (5) The court did not' err in overruling defendant’s motion for a new trial. Tbe verdict was not so large as to indicate passion or prejudice on tbe part of tbe jury. Cases under point 3; Cook v. Globe-Democrat, 227 Mo. 471. (6) Tbe court did not err in giving instruction 2 on behalf of plaintiff. Corrister v. Railroad, 25 Mo. App. 627; Kain v. Railroad, 29 Mo. App. 62; Britton v. St. Louis, 120 Mo. 444; Allen v. Springfield,. 61 Mo. App. 273; Sherwood v. Railroad, 132 Mo. 345; Taylor v. Iron Co., 133 Mo. 363; Hartpenee v. Rogers, 143 Mo. 633; Dwyer v. Transit Co., 108 Mo. App. 162; Lead Co. v. Railroad, 123 Mo. App. 408; Robertson v. Railroad,. 152 Mo. 389.
   ROT, C.

Action for damages for personal injuries. Verdict for $20,000. There was a compulsory remittitur of $500, and a judgment for $15,000, from which tbe defendant bas appealed. Plaintiff’s age is not shown. He bas a wife but no children. He testified that he bad lived in Kansas City twenty-five or thirty years, and bad been in tbe service of tbe defendant about five years as a motorman. He stated that be was experienced in thát work. He was acting as a motorman on defendant’s car No. 123 at tbe time of the’alleged injury at about 9:40 p. m., June 11, 1909. His car was going east on tbe defendant’s line from Kansas City to Independence. Tbe place of tbe accident was in tbe country, about one hundred feet west from Tullis station, and three or four hundred feet east of Smalley station. It is a double track; tbe south track was used for cars bound eastward, and tbe north track for westbound cars. Those tracks were eight or ten feet apart. They were straight from Smalley to Tnllis and then curved to the northward; there was a moderate upgrade. .Beaumont station was a distance of two short blocks eastward from Tullis. There was a cluster of ordinary incandescent lights on the trolley pole at Tullis. The evidence is conflicting as to whether they were burning. Plaintiff testified that they were not. One witness for defendant stated that they were. Plaintiff’s car No. 123 was an ordinary trolley car with the usual vestibule enclosed in front with sheet-iron waist high to the motorman as he sat on his stool. The windows of the vestibule had three sashes which opened by being dropped. The center and left sashes were up and closed. The right hand sash was down and opened. There was an ordinary incandescent light, and also an arc light called a “headlight,” attached to the front of the vestibule of plaintiff’s car. The arc light had a reflector to throw the light ahead along the track.

The injury was caused by a collision between plaintiff’s car and a “work-car,” sometimes called the “mogul.” That car was an ordinary box car fitted with a motor, controller and vestibules similar to those on plaintiff’s car. There were doors in. each end and also in the middle of both sides. There were windows on both sides, one near each end, but none in the end. There were five sixteen-candle incandescent lights in a row in the center of the roof inside the car. It had an arc headlight.

Two witnesses for the defendant stated that the ear extended six inches above the end door, but plaintiff testified that it was about eighteen inches above the end door. There were two lanterns lighted and sitting inside of the car on the floor. That car was in charge of Wilbur F. King, who acted as motorman, and with him were Jennings and Walters. That car had preceded plaintiff’s car on the same track. There is no evidence showing that plaintiff was aware of :ts presence ahead of him. Plaintiff’s car was going at ten miles an hour, and he testified that the car could have been stopped in seventy or eighty feet. Defendant’s evidence was to the effect that it could have been stopped within thirty or forty feet. The work, car stopped at the place of accident for the purpose of unloading tools and material for. track repairs. There was no red light or light of any kind on the rear end of the work car. The rule and custom of defendant required a red light on the rear of all cars at night as a danger signal. The evidence as to such rule and custom was.objected to by defendant on the ground that such rule and custom were not pleaded. The objection was overruled.

King testified that he could give no excuse for the absence of that red light. At the trial it was a contested question as to whether the rear door of the work car was open at the time of the accident and as to whether the lights in that car were then visible to the plaintiff. The plaintiff testified that no lights of any kind were visible on the work car or in it either before or after the- collision.

Plaintiff’s witness Diamond, a passenger on plaintiff’s car, stated that from the inside of the car he could see nothing ahead on account of darkness. Mr. Roberts, another passenger, witness for plaintiff, testified that after the accident he went out of the car and forward so that he stood by the side of plaintiff’s car near the front end and saw what appeared to be reflected lights in the work car.

Jennings, one of the crew of the work car and witness for the defendant, said that after the car stopped he was standing leaning out of the door on the north side, looking back at plaintiff’s car, which at first was about two blocks away, and said thát he supposed it would stop and not run into the work car. That when it got fifty or seventy-five feet away he hallooed, “Look out, the car is going to hit us,” and jumped; that Walters was in the west end of the work oar, and ran out of the west door with a lantern and got off the car.

King testified that he heard Jennings cry out, and, looking forward, saw the headlight of plaintiff’s car through the door of the work car and that the collision immediately followed.

One Sproul, a passenger, testified for the defendant, stating that he was chewing tobacco and that between Smalley and the place of the accident he twice put his head out of the window to spit and saw the light in the work car a block ahead. The evidence shows that it was raining at the time of the collision; there was water upon the windows of the vestibule. The testimony for both sides was to the effect that rain on the windows and on the glass of the headlight served to obscure the vision and light.

King testified:

“Did you have your windows open or closed in front of you? A. I had it open. I started with it closed but I afterwards dropped it.

“Q. After you dropped it did you have any difficulty in running your car on account of the rain? A. No, sir.

“Q. Why did you drop it? A. Because the heavy mist that was falling gathered on the glass.

“Q. Could you have let down one on the side. Did you have a side window that you could let down next to the front window? A. Tes, sir, they were there but they were down when I had started.

“Q. They were down to start with ? A. Tes, sir.

“Q. Now, do you know whether or not the window in the front of No. 123 could be let down the same as yours? A. Tes, sir, that could be let down.”

Mr. Ward, the conductor of plaintiff’s car, testified for defendant: “Q. When there was water on the windows so that you could not see through them what was the proper thing to do under those circumstances? A. If you could not keep your glass clean in front of you so that you could see through' it, the proper way would be to put the window down to the side of you, or if you could not see that way, the one to the front of you. It has been the custom, most all the boys do that.”

The plaintiff did not testify as to whether he looked through the open window on the right hand side of the vestibule or through the closed window in front of him. He testified that he was looking constantly straight ahead of him, and that as he left Smalley he saw the headlight of a westbound car at Beaumont, and that such car was from one to four car lengths east of the work car when the collision occurred. The other evidence corroborated his statement as to the westbound car.

Plaintiff testified that he did not see the work car until he was within fifteen or twenty feet of it and that he then threw off the power and threw on the emergency brake, but the collision followed so quickly that his foot was caught and crushed, requiring amputation about five inches below the knee. He was seven weeks in the hospital. The leg heals at times and then breaks out again. The surgeon testified that another operation would be necessary to make the wound heal and prepare the leg for an artificial limb. He was out of employment for about a year. The week before the trial he began work as a night watchman for the city at a salary not shown. He was earning $70 or $75 a month when hurt.

The negligence of defendant and plaintiff’s injuries were alleged in the petition as follows:

“That on the eleventh day of June, 1909, at about 9:38 o’clock p. m. of said day, this plaintiff acting in his capacity as motorman as aforesaid, was running said car from Kansas City, Missouri, to Independence, Missouri.

“That at said time of night it was very dark and raining and by reason thereof it was impossible for this plaintiff to see any object on said track at any distance from his car unless said object was equipped with lights or illuminated in such manner as to give this plaintiff a warning and notice that said object was on the track.

“That at said time the defendant carelessly and negligently caused, suffered and permitted' its work car, commonly known and hereinafter designated as a mogul car, to remain on said track in front of the car which this plaintiff was operating, without having any lights or illuminations of any kind thereon to warn this plaintiff or give him notice of the danger to which he was subjected by reason of said mogul car being-on said track.

“That at said time on said day, this plaintiff was operating his car at the usual and ordinary rate of speed and when said car as operated by this plaintiff arrived at a point between Smalley avenue and Beaumont stations it collided violently with said mogul ear, as said mogul car was standing on said track as aforesaid.

• “That said collision was caused wholly by reason of the carelessness and negligence of the defendant in causing and allowing said mogul car to stand on said track at said place, without any lights or illuminations being placed on said mogul car and without warning this plaintiff in any manner of the existence of said mogul car on said track at said place.

‘ ‘ That when said car so operated by this plaintiff collided with said mogul car as aforesaid, the front vestibule of the car operated by this plaintiff was crushed and mashed in,.in such a manner that this plaintiff’s foot and limb were mashed, bruised, lacerated and injured to such an extent that it became necessary for plaintiff’s right foot and limb to be amputated at a point about four inches below the knee, and at said time and place by reason of negligence of the defendant as aforesaid, this plaintiff received a. cat over the eye and on his nose and this plaintiff’s body was bruised, crushed and injured, and by reason of the injuries which this plaintiff received at said time and place, and caused by negligence of defendant as aforesaid, this plaintiff has been rendered a cripple for life, and by reason of said injuries this plaintiff has suffered great bodily pain and mental anguish in the past and will continue to so suffer for the remainder of his life; and plaintiff says that before he received said injuries he was a stout and able-bodied man and able to work and earn five dollars per day as result of his labors, but since he received said injuries and by reason thereof, that plaintiff has not been able to and has not performed work or labor of any kind and this plaintiff says that by reason of the premises his capacity and ability to work and earn wages have been greatly diminished for the remainder of his life and so by reason of the carelessness and negligence of the defendant as aforesaid, this plaintiff has lost and will lose the wages which he would have been able to earn had he not been injured by the wrongful carelessness and negligent acts of the defendant as aforesaid.

“And this plaintiff says that by reason of the premises he has been compelled to expend and become liable for doctor’s bills, for medicine, for surgeons, for hospital bills and for nurse hire in the sum of seven hundred fifty dollars, and plaintiff says that by reason of the premises he has been damaged in the sum of fifty thousand dollars.”

The answer was a general denial and a plea of contributory negligence.

During the examination of the jurors on their. voir dire, plaintiff’s counsel asked if any one of the . panel was- connected in a business way with the American Fidelity & Accident Insurance Company. To which counsel for defendant objected and asked that the jury be discharged. The objection was overruled.

The supplemental motion for a new trial contains the following: “Because in examining the panel of jurymen preparatory to making the challenges and selecting the twelve jurymen to try the cause, the court over the objections of the defendant permitted Mr. Brewster, attorney for thé plaintiff, to ask the jurymen on their voir dire the following question: ‘Is any gentleman on the panel an officer or connected in a business way with the American Fidelity and Accident Insurance Company?’ To which ruling of the court the defendant then and there excepted and asked that the jury be discharged, which exception, objection and motion to discharge the jury was overruled; that said case was being defended by the American Fidelity and Accident Company, being then and there represented by Mr. Chas. M. Howell, the above question was asked for the purpose of informing the jury and calling attention of the jury to the fact that the case was being defended by an accident insurance company, which would be liable to pay any judgment obtained in the case, and was prejudicial to the defendant.”

Among the instructions the court gave the following for the plaintiff:

“2P. The court instructs the jury that if you find for the plaintiff you may in assessing his damages take into consideration the nature and extent of plaintiff’s .injuries, if any, sued for in this case, and the jury may further take into consideration whether or not said injuries, if any, are of a permanent character. The jury may also take into consideration such physical pain and mental anguish, if any, as you find and believe from the evidence plaintiff will suffer in the future on account of said injuries, if any, sued for in this case, and you may assess his damages at such an amount as you find and believe from the evidence will fairly compensate Mm for Ms injuries, if' any, so received, not to exceed the sum of fifty thousand dollars.”

During the argument of counsel for plaintiff to the jury the following occurred:

“I ask you, gentlemen of the jury, tMs question. Suppose that instead of Mr. Kinney being the plaintiff in tMs case, the woman who was a passenger on that car was the plaintiff here; and suppose that it was shown, as it has been shown here, that there were no lights on the back end of the mogul car, and that it stopped dead on that track and that it was a rainy, dark, drizzling night, and that the car .upon which Kinney was riding ran into that car and that woman’s limb was cut off, what would your verdict be in that case? And gentlemen of the jury, let me. ask you, if that was the case here, that Judge Johnson was defending, can’t you hear — can’t you hear the defendant’s witnesses coming on the stand and saying that you could not stop one of these cars within 250 feet?

“Mr. Howell: I object to that because under the law the measure of negligence is different and therefore that argument is improper.

‘ ‘ Mr. R. R. Brewster: I say it is different, and I will tell you where it is different. They were bound to exercise, as to a passenger—

“Mr. Howell (interrupting): I object to any argument along that line. My objection is that it is different, and improper to argue it.

“Mr. R. R. Brewster: I will withdraw it, but I want to say this—

“The Court (interrupting): The objection will be sustained.

“Mr. Johnson: I ask your Honor to censure the counsel for making that Mnd of argument to the jury.

“Mr. Brewster: And I ask you to, if I am in the wrong.

“Mr. Johnson: The Court said you were in the wrong.

“The Court: The arguments will be withdrawn from the consideration of the jury and the jury will not consider them in arriving at their verdict. . . .

“Mr. Brewster: I don’t know how you feel about it, but here is the plaintiff, who is in the employ of the defendant, their trusted employee, who went about driving this great car, in whose charge they put the lives and limbs of your fellow-citizens, and here he is injured in the performance of his duty; here he is maimed and crippled as he stood at his post, and they are not saying to Kinney, ‘You were injured through the negligence of this company and we will gladly pay you for it,’ but they are saying, ‘Come into court and fight us; fight all our combined power which we have at our command; fight our claim agents, fight our legal department, fight us through the courts and then if you can recover for your crippled leg you can have the money. ’

“Mr. Howell: I object to that, because the argument 'is offered only for the purpose of prejudicing the jury and not the argument of any • facts in this case.

“The Court. Objection overruled.

‘ ‘ To which- ruling and action of the court the defendant then and there at the time duly excepted and still excepts.

“Mr. Brewster: I am not going to let these interruptions interfere with the argument in this case, and you are not going to let them interfere with your mind in following the argument in this case. You perhaps know something of the tricks of the trade—

“Mr. Howell (interrupting): I object to that. I am making proper and legal objections here, all but one of which have been sustained by the court, and I object to the attorney arguing against my objections.

“Mr., Brewster: I am talking about the last objection, which was overruled by the court, and which was not a proper objection and which I say was made—

“Mr. Howell: I object to the counsel arguing . about my making objections and criticising me for making objections, calling it tricks of the trade, etc. ' If the attorney will get within the record a little while we will get along better. I want to know what the ruling of the court is on this last objection.

“Mr. Brewster: I would like to know.

“Mr. A. W. Brewster: I would like to know what the objection is?

“The Court: The objection is overruled. I will ask you to be very careful to keep within the record.

“To which ruling and action of the court the defendant then and there at the time duly excepted and still excepts.

“Mr. R. R. Brewster: I will say there were two objections that at least were wrong or the court would not have overruled them, and I will say that I wouldn’t let them interfere—

“Mr. Howell (interrupting): I object to him arguing- about the rulings on objections either way, whether sustained or overruled. It is not a matter of argument to the jury, that is my point.

“The Court: Don’t argue any further about objections.”

I. Appellant has briefed this case on the theory that it was the duty of plaintiff to run his car slow enough so that it would be possible for him to see any obstruction on the track in time to stop before striking it, I.*****07 even though such obstruction had no light or danger signal on it. We leave that question undecided for the reason that the fact is conceded that there was the ordinary arc headlight on plaintiff’s car. We will take it for granted that had plaintiff been looking through the open window on his right, and had there been no headlight of a westbound car in front of him, he could have seen the work car in time to have stopped before striking it. In other words, he could have seen the work ear at the distance of eighty feet, that being the distance within which plaintiff testified that he could stop his car under the circumstances. Had there been no rain on the glass and no headlight of the westbound car in front of him, the plaintiff by looking through the glass in front of him, could have seen the work car at the distance of more than eighty feet. Under such circumstances it would have been contributory negligence in him to fail to see the work car. We do not undertake to decide whether, had there been no glare on the headlight coming toward him, the plaintiff would have been guilty of contributory negligence in failing to look through the open window on his right and thus avoid the obscuring effect of the rain on the glass in front of him. It is an unquestioned fact that the westbound car was, at the unlucky moment, coming westward from one to - four car lengths east of the work car. It needs no testimony of witnesses to establish in court the confusing effects of such a headlight on one just in front of it or nearly so. At times it utterly obscures all objects not in the direct line between the observer and the light. No one, however, would claim that two trains of cars with locomotives should, when passing on parallel tracks, slacken their speed because of the confusing effects of the headlights. Nor should street cars do so under ordinary circumstances. Plaintiff was not required to slacken his speed because of the ear coming in the opposite direction. We hold that it was a question for the jury whether, in the absence of the red light on the work car, and in the rain, with the glare of the headlight in his face, it was negligence in the plaintiff to fail to see the work car. “When different inferences may be drawn from undisputed facts, the question of negligence should be submitted to the jnry. [Paden v. Yan Blarcom, 181 Mo. l. c. 128; Powers v. Transit Co., 202 Mo. l. c. 280.]

II. It was not error to admit evidence of the rule and custom of defendant to keep a re¿ light as a danger signal on the rear en<^ Cars a^ though Such rule and custom were not pleaded. Thompson on Negligence, vol. 1, sec. 420', holds that evidence as to a custom is admitted on the question of ordinary care. It was said by this court in Bailey v. Kansas City, 189 Mo. l. c. 514: “If a cause of action is based directly on a violation of a duty imposed alone by a municipal ordinance, the pleading should set forth the specific ordinance in hand, because' courts will not take judicial notice of its existence. [City of Tarkio v. Loyd, 179 Mo. l. c. 605; Inhabitants of Butler v. Robinson, 75 Mo. 192.] But if an ordinance of a city is used as a mere matter of evidence, no good reason is perceived why it should be pleaded; for to plead evidential facts is bad, and, on principle, the rule applies to ordinances. [Robertson v. Railroad, 84 Mo. l. c. 121; Danker v. Goodwin Mfg. Co., 102 Mo. App. l. c. 731.] Now, the case under the fourth amended petition is not based on the violation of a municipal ordinance, but is based on the violation of a duty imposed by general law. Therefore the objection in the form made was properly overruled.”

The petition charges common-law negligence. The existence of the custom was merely an evidentiary fact tending to show lack of ordinary care on the part of defendant. It was not necessary to plead such evidentiary fact.

III. Complaint is made of the action of plaintiff’s counsel in asking the jurors on their voir dire whether they were connected in a business way with the American Fidelity & Casualty Insurance Company. Mr. Howell, the attorney for the company, was in court ostensibly as counsel for the defendant, making a defense- which was really in behalf of his company which was not a party to the suit on the record. It is claimed that it was an injustice to the accident insurance company to call the attention of the jury to the fact that it was making a defense and was liable to pay any judgment that might be rendered in the , case. It was held in Meyer v. Mfg. Co., 67 Mo. App. 389, that such an inquiry was proper.

IV. Exception is taken to the conduct of the plaintiff’s counsel in his argument to the jury. We' have carefully gone through the record in order to assemble all the facts bear-mg on that question, m order that ft may comprehensively decided. The employees of defendant fully supported the plaintiff as to the facts of defendant’s negligence. They testified that the rules and custom of the defendant required a red light as a danger signal on the rear end of all cars at night. They testified as to the absence of such danger signal. The one in charge of the work car testified that he could give no excuse for its absence. These employees testified that it was raining, and that rain on the window glass obscured the vision. Only one witness for defendant was criticised by plaintiff’s counsel, or subject to criticism That was Sproul, who was not an employee of defendant. His evidence as to seeing a light in the work car as he looked ahead about a block was to some extent corroborated by Roberts, plaintiff’s witness, who testified that after the accident, standing behind the work car and by the side of the front end of plaintiff’s car, he could see a reflected light in the work car. There is an utter absence of anything tending to show that defendant did anything in connection with the trial that was not clean and legitimate.

This court has repeatedly refused to sanction a judgment for more than $10,000 for the loss of a leg. [Farrar v. Railroad, 249 Mo. 210; Brady v. Railroad, 206 Mo. 509; Newcomb v. Railroad, 182 Mo. 701.] In the latter case $762 was allowed for the surgeon’s bill in addition to-the $10,000. We are not now holding that in no case could a judgment for more than $10,000 for the loss of a leg be upheld. In this case the plaintiff’s petition asks for $50,000. The plaintiff’s instruction to the jury was to assess the damages in accordance sñth that instruction at nol exceeding $50,000.

In Lessenden v. Railroad, 238 Mo. l. c. 265, Valliant, C. J., speaking of the Partello case, 217 Mo. 645, in which there was an instruction authorizing the recovery of not exceeding $50,000, said: “Yet the trial judge gave that instruction after he had heard the evidence in the case. He doubtless labored under the erroneous impression that it would have been error to have refused it. But whilst the long practice authorizes the giving of such an instruction, and therefore it is not reversible error to do so when counsel ask it, yet when the jury return their verdict and the question of excessive damages arises, the probable effect of the instruction with its particular wording will be taken into account.”

In Applegate v. Railroad, 252 Mo. l. c. 202, it was ■ said: “That form of instruction, whilst it has been held not reversible error, has been criticised as a judicial hint that the court would approve a verdict in the sum mentioned in the petition.”

With the petition calling for $50,000, and with an instruction authorizing it, in spite of the lower standard set by this court, plaintiff’s counsel in bis argument introduced into the case in place of plaintiff an imaginary woman passenger. When called to order on the objection of defendant, he proceeded to prejudice the jury against defendant’s “claim agents.” It is natural that juries are influenced by the sufferings and afflictions of the victims of such accidents. That is a fact in nature of which the plaintiff’s counsel has a right to take advantage in argument. The defendant must endure it, however severely it may affect its interests. But such fact in itself furnishes a special reason why false and unjust prejudice should not be stirred in the feelings of the jury against the defendant.

The conduct of counsel for the plaintiff in this case was most reprehensible. What can be said in defense of a lawyer who causes a party to be summoned into court and then proceeds to treat him as if he had no rights which a court of justice is bound to respect? After the worst is said' about the defendant, it still remains a fact that its conduct in the preparation and trial of this cause was a model of propriety and fairness as compared with the methods of plaintiff’s counsel. It is our duty, however, not to be swept away by our indignation at such conduct. We believe that, under the evidence in this cause, a verdict for the plaintiff would have resulted-in any event. Such being the case, the conduct of plaintiff’s counsel is not reversible error, as it would have been in a close case. This court has hitherto refused to affirm judgments for damages for more than $10,000 for the loss of a leg. [Farrar v. Railroad, 249 Mo. l. c. 227; Brady v. Railroad, 206 Mo. l. c. 540; Newcomb v. Railroad, 182 Mo. l. c. 727.] We do not hold that in no case should the judgment exceed that amount; but we do hold that a verdict following such misconduct of counsel for plaintiff will not be allowed to stand for more than that amount. If the plaintiff

will, within ten days, enter a remittitur of $5000 as of the date of the judgment in the trial court, the judgment will he affirmed for $10,000 and interest at six per cent from the date of the judgment; otherwise it will he reversed and the cause-remanded for a new trial.

Williams, C., concurs.

PER CURIAM. — The foregoing opinion of Roy, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: FARIS, J.

license: Public Domain

text:
    DANIEL ABRAMSKY v. PAULINE ABRAMSKY, Appellant.
    Division Two,
    July 14, 1914.
    1. APPEAL: Appointment of Receiver: Demurrer to Petition. No appeal lies in the middle of a case, for instance, from a bolding that a petition praying for the appointment of a receiver is good on demurrer, without final judgment; but an appeal from the overruling of a motion to revoke an order appointing a receiver, filed after a demurrer to the petition was overruled, asking that said order be revoked, for the reason, among others, that the petition did not state facts sufficient to constitute a cause of action, incidentally involves the sufficiency of the petition, since, if the petition states no cause of action, there was no basis for the court’s action in appointing the receiver, and appellant’s motion to vacate the order should have been sustained.
    2. RECEIVER: Fitness: Motion to Vacate: Supported by Affidavits. Where there is no competent proof of the bias or partiality or other unfitness of the person appointed a receiver, the defendant’s -motion to vacate the order appointing him on the ground that he is prejudiced and hostile to defendant, should be overruled, although the proof heard on the motion was in the form of affidavits, and whether or not that was the correct method of proof where both sides resorted to it.
    3. -: Appointment: Discretion of Court. Sec. 2018, R. S. 190.9, saying that a circuit court may appoint a receiver “whenever such appointment shall be deerfied necessary,” vests in the judge a discretion so broad as to be a matter of review on appeal only in case of palpable abuse thereof.
    4. HUSBAND AND WIFE: Suit by One Against Other. The. husband may sue the wife either at law or in equity, the same as if she were a feme sole; for instance, he may bring suit for the appointment of a receiver to take charge of and administer real estate conveyed to both as an estate by the entirety.
    5. -: Receiver: Appointment: Estate by the Entirety. Where lots were conveyed' to a husband and wife, thereby creating an estate by the entirety, and a mortgage was placed thereon by them, to secure the payment of money borrowed for the construction of a building thereon, and the wife has ousted the husband from all control of the property and has collected and appropriated the rents, and failed and refused to apply any of the rents to the payment of the debt, and proceedings for foreclosure of the mortgage have been begun, the. circuit court has power, upon the husband’s suit against the wife alone, to compel an accounting, and to appoint a receiver to take charge of the property and rent the same and collect the rents; and if there is nothing in the facts to indicate that the court has abused its sound discretion, a motion to revoke the order appointing the receiver will not be sustained on appeal.
    Appeal from St. Louis City Circuit Court. — Hon. , George C. Hitchcock, Judge.
    Affirmed.

      George B. Webtser and William J. Grodski for appellant.
    (1) • The second amended petition is wholly without equity, (a) It showed that the plaintiff had no right to the exclusive possession of the premises, or the exclusive use of the rents. 1 Tiffany, Real Prop., p. 381; 2 Jones, Real Prop., sec. 1791; 1 Washburn, Real Prop. (6 Ed.), sec. 915; 1 Pingree, Real Prop., p. 720; Hilles v. Fisher, 144 N. Y. 306; Branch v. Polk, 61 Ark. 393; Buttlar v. Rosenblath, 42 N. J. Eq. 651; Shinn v. Shinn, 42 Kan. 1; Corinth v. Emery, 63 Vt. 505; Chandler v. Cheney, 37 Ind. 391; McCurdy v. Cummings, 64 Pa. St. 41. (b) It showed that the plaintiff had adequate remedy by action at law. 0 ’Day v. Meadows, 194 Mo. 588; Grimes v. Reynolds, 184 Mo. 679; Rice-Stix & Co. v. Sally, 176 Mo. 107; Bank v. Hageluken, 165 Mo. 443; Montgomery v. Montgomery, 142 Mo. App. 481; Hurt v. Cook, 151 Mo. 416; Winn v. Riley, 151 Mo. 61; High, Receivers (4 Ed.), sec. 741. (c) It failed to state a case for accounting in equity. Sommerville v. Helman, 210 Mo. 567; Vogelsang v. Wood Fibre P. Co., 147 Mo. App. 578; Attilla M. Co. v. Winchester, 102 Ala. 184; Badger v. McNamara, 123 Mass. 117; MeCulla v. Beadleston, 17 R. I. 20; Lathan v. Harby, 50 S. C. 428; Padwick v. Hurst, 23 L. J. Ch. 657; Phillips v. Phillips, 9 Hare, 471; 3 Daniel, Chan. PI. & Pr. 19291, n. 1. (d) It stated no case for discovery in equity, that ground of jurisdiction having been disposed of by our statutes on depositions. Tyson v. Farm & Home Assn., 156 Mo. 594; Vogelsang v. Wood Fibre P. Co., 147 Mo. App. 578. (e) It stated no case in equity on the theory of a fiduciary relation between the parties, since in a case where the only substantial injury is financial loss, there is no ground for the interference of equity and the consequent denial of trial by jury.' Van Raalte v. Epstein, 202 Mo. 173; Baum v. Stephenson, 133 Mo. App. 187; Lee v. Conran, 213 Mo. 404; R. S. Mo., 1909, sec. 1968; State v. Aloe, 152 Mo. 479; High, Receivers (4 Ed.), sec. 608; 1 Pomeroy, Eq. Jr. (3 Ed.), see. 178. (2) The second amended petition states no ground for the appointment of a receiver. Vaughn v. Vincent, 88 N. C. 116; Heinze v. Kleinschmidt^ 25 Mont. 89; Cassety v. Capps, 3 Tenn. Ch. 524; Lemaster v. Eliott, 53 Neb. 424; Ketcham v. Provost, 132 N. Y. S. 120; High, Receivers (4 Ed.), secs. 554, 555; Alder-son, Receivers, pp. 568, 569. On the concrete case the appointment of a receiver was erroneous. McClure v. McGee, 32 Ky. L. R. 1318; Niehaus v. Niehaus, 125 N. Y. S. 1071. The sole object of this proceeding is the appointment of a receiver, which is only granted as ancillary to some other relief in circumstances of an equitable nature. An appointment should not be made where it is the sole purpose of the litigation and no independent ground for equitable relief is shown. State ex rel. v. Ross, 122 Mo. 435; In re French Bank, 53 Cal. 495; Nabon v. Ongley El. Co., 156 N. Y. 196; Slover v. Coal Creek Co., 113 Tenn. 421; Baltimore B. House v. St. Clair, 58 W. Ya. 565; Harwell v. Potts, 80 Ala. 70; Zuher v. Micmac G. M. Co., 180 Fed. 625.
    ■ David Goldsmith for respondent.
    (1) The amended petition states a cause of action of equitable cognizance, because the action is one between husband and wife. 10 Ency. PI. & P., p. 195, subject “Husband and Wife;” Porter v. Bank, 19 Yt. 410; Woodward v. Woodward, 148 Mo. 241; Manning v. Manning, 79 N. C. 293; Lane v. Lane, 76 Me. 527; Simmons v. Thomas, 43 Miss. 31. (2) The plaintiff is entitled to an accounting in equity from the defendant without regard to their marital relationship. Schulz v. Ziegler, 83 Atl. 968; Aubry v. Schneider, 69 N. J. Eq. 633; Maekotter v. Maekotter, 131 N. Y. Supp. 815; Bates v. Hamilton, 144 Mo. 14; Leach v. Beattie, 33 Yt. 195; Henson v. Moore, 105 111. 403; Clayton v. McKay, 143 Pa. St. 225; Trapnall v. Hill, 31 Ark. 345; Neil v. Morris, 73 Ga. 406; Fire Proofing Co. v. St. Louis, etc., Co., 177 Mo. 559; Beck v. Kallmeyer, 42 Mo. App. 571. (3) A proper case was presented for the appointment of a receiver, and consequently for the interposition of a court of equity, and this is true irrespective of the conflicting claims of the parties to the rents. Sanford v. Ballard, 33 Beav. 401; Goldberg v. Richards, 26 N. Y. Supp. 336; Ames v. Ames, 148 111. 340; Weise v. Welsh, 30 N. J. Eq. 434; 34 Cyc. 64; High on Receivers (4 Ed.), sec. 604, p. 756; Woodward v. Woodward, 148 Mo. 241; Manning v. Manning, 79 N. C. 293; Lane v. Lane, 76 Mo. 527; Revised Statutes 1909, see. 2018; Stark v. Grimes, 88 Mo. App. 41.3; Bird v. Lamphear, 36 N. Y. Supp. 1069; Drury v. Roberts, 2 Md. Ch. 159; March v. Smith, etc., Co., 47 N. J. Eq. 193; Trust Co. v. Mintzer, 65 Minn. 132; Darusmont v. Patton, 72 Tenn. 597; Schwabacher v. Kane, 13 Mo. App.' 131; Eddy v. Baldwin, 32 Mo. 369; Mitchell v. Bradstreet Co., 116 Mo. 240; Pelham v. Grocery Co., 156 Ala. 509; Federal Bankrupt Law, sec. 1, subd. 15; In re Schoesmith, 135 Fed. 684. (4) The respondent is entitled to the whole of the rents derived from the property in question during the joint lives of himself and his wife. Hall v. Stephens, 65 Mo. 670; Bank v. Fry, 168 Mo. 508; Frost v. Frost, 200 Mo. 474; Craig v. Bradley, 153 Mo. App. 591; Dickey v. Converse, 117 Mich. 453; Bynum v. Wicker, 141 N. C. 96; Revised Statutes 1909, sec. 2878.
   FARIS, J.

This is an appeal from an order of the circuit court of the city of St. Louis refusing to revoke and vacate an order for the appointment of a receiver. The only questions in issue are therefore whether the facts set out in the petition of plaintiff were such as to legally justify the action of the court in appointing a receiver. The facts of the case and the law to be applied to them necessarily involve the goodness, in a way, of the second amended petition of plaintiff.

This petition was unnecessarily voluminous, covering, as it does, some fourteen pages of the printed record. We do not think it necessary to cumber the books with the body of it, and to this end have adopted as a fair analysis the statement of its contents as they are set forth in respondent’s statement of the facts, with some emendations of our own. This petition shows in fair substance the following facts set out therein:

The plaintiff and defendant are husband and wife. In December, 1904; the plaintiff purchased a lot of land in the city of St. Louis, and caused the same to be conveyed to himself and the defendant, so that an estate by the entirety was created. Immediately after this purchase, namely, in 1905, the plaintiff and defendant caused to be erected on this lot an apartment building. The cost of the lot was $4125, and it was paid wholly by the plaintiff; but, in order to pay for the cost of the apartment building, which amounted to $17,500, the plaintiff and the defendant borrowed that amount from one Newberry, and executed their joint notes therefor and for the interest thereon, and executed a deed of trust on the property securing the payment of said notes. The plaintiff paid $3500 on the principal of this indebtedness, and paid the joint semiannual interest notes five years, the same consisting of ten semi-annual interest notes, aggregating $3915.

In 1909, when the balance of the principal of this indebtedness, namely, $14,000, matured, the plaintiff and defendant borrowed that amount from one Spratte on a new deed of trust on the property, giving therefor their three joint principal notes and their six joint semi-annual interest notes. The plaintiff paid $1500 on the three principal notes and paid all of the six joint interest notes, the latter amounting to $2227.60.

This left an unpaid indebtedness of $12,500, which was borrowed by the plaintiff and defendant from one Clara E. Hatifield, in April, 1912. For this new loan the plaintiff and defendant gave their joint principal note for $12,500, payable three years after date, and their joint six semi-annual interest notes for $312.50 each. The defendant paid one of these interest notes.

In addition to the payments already mentioned the plaintiff paid all general and special taxes assessed against the property for the years 1905’, 1906, 1907, 1908,1909,1910 and 1911, and also the costs of the fire and tornado insurance for those years, all of which payments were required to be made by the aforesaid deeds of trust.

The apartment building hereinbefore referred to contains four apartments, one of which was occupied by the plaintiff and defendant, and the other three of which were rented to tenants, two producing fifty dollars each per month and one producing seventy dollars per month. The defendant collected all the rents accruing from these apartments prior to May 1, 1912. Immediately prior to that date, the plaintiff notified the several tenants that he objected to any further payments of rent to the defendant. Notwithstanding this notification the defendant continued to collect the rents from the tenants to the time of the filing of the amended petition in May, 1913.

In December, 1912, one of the apartments was vacated and the plaintiff employed a real estate agent to rent it. The defendant, however, refused to permit the agent to rent the apartment and prevented him from doing so, and also “prevented the plaintiff from exercising any control or dominion whatsoever over said apartment, and arrogated to herself, assumed and exercised, to the entire exclusion of the plaintiff, all dominion and control over said apartment/’ and furthermore re-rented the apartment for $50 and has continued collecting the rent therefrom.

The plaintiff also requested the defendant to vacate the apartment occupied by them, but this she has refused to do.

The defendant has never paid to the plaintiff, or accounted to him for, any of the rents collected by her, as aforesaid, but on the contrary has refused so to do. At the time of the filing of the amended? petition, with which we are here alone concerned, there was overdue and unpaid one of the interest notes given by the plaintiff and defendant to said Clara E. Hatfield, and secured by the last mentioned deed of trust, and the trustee under the power therein was proceeding to sell the property hereinbefore mentioned under the provisions of the deed of trust.

“The defendant,” the petition further avers, “has secreted all of her property, other than her interest in the aforesaid parcel of land, so that the same cannot be reached by process of law. ’ ’ The defendant in November, 1912, instituted an action for divorce against the plaintiff and that action was at the time of the filing of the amended petition still pending and undetermined.

For relief plaintiff in his petition prayed the court for an accounting of the amounts paid by plaintiff; of the rents collected by defendant and of the amount for which she was alleged to be indebted to the plaintiff on account of her collection of rents and for jugdment therefor, and that defendant be restrained from interfering with the plaintiff’s rights of dominion, control and possession of the said premises and that a receiver, pending the action, be appointed by the court to take charge of the property and rent the same and collect the rents therefrom, and for all further proper relief.

To this petition, on May 23, 1913, defendant filed a demurrer, in substance for that the petition did not state facts sufficient to constitute a cause of action against defendant, nor any facts entitling plaintiff to the relief prayed for or any relief, and that the same stated no equities in favor of plaintiff. This demurrer was overruled by the court on June 16, 1913. Prior, however, to the overruling of this demurrer and on June 4th preceding, the court, upon motion of plaintiff, appointed one Joseph M. Levi receiver in accordance with the prayer of plaintiff’s petition. Two days thereafter and on the 6th of June, 1913, defendant filed her motion to revoke the order theretofore made by it appointing said Levi receiver, and for reasons for said motion to revoke averred in substance that said Levi was not an impartial person between plaintiff and defendant; that he was an intimate business and social acquaintance of plaintiff; a witness for him in other litigations and that he was hostile to and prejudiced against defendant, and further for that the petition did not state facts constituting a cause of action or any sufficient facts permitting the court to appoint a receiver. This motion being overruled, defendant thereupon took and perfected this appeal.

The only question involved herein goes to the correctness of the court’s action in appointing a receiver. While the appeal involves incidentally the goodness on demurrer of the plaintiff’s petition, demurrability is but adventitious, since no appeal lies in the middle of a case from the holding good of a petition on demurrer without final judgment. Of course if the petition states no cause of action there is no basis for the court’s action in appointing a receiver, and appellant’s motion to vacate the order should have been sustained.

So far as the question raised by appellant below of the fitness of Levi to act as receiver is concerned, we note that this was heard by the trial court on affidavits and ruled adversely to appellant’s contention. His finding was right on this point. Nor need we consider whether affidavits were the proper method of offering proof, since both sides resorted to it, nor do they here question it. So there was either proof enough of the right action of the court below or there was no competent proof whatever of any bias or partiality.

The power of a court of general jurisdiction, as is a circuit court, to appoint receivers, is vested by our statute (Section 2018, R. S. 1909), in the sound discretion of such courts. For the statute says:

“The court, or any judge thereof in vacation, shall have power to appoint a receiver, whenever such appointment shall be deemed necessary, whose duty it shall be ... to keep and preserve all property and protect any business or a business interest intrusted to him pending any legal or equitable proceeding concerning the same.”

If the statutory words “whenever such appointment shall he deemed necessary” do not vest in a circuit judge a discretion (Stark v. Grimes, 88 Mo. App. 409; Cantwell v. Lead Co., 199 Mo. 1) in such behalf so broad as only to be a matter of review by us in case of palpable abuse, we' fail to read it correctly. The statute so reading, we need not concern us to determine whether the power to appoint a' receiver be not also given to a court of general chancery jurisdiction by reason of the lex non scripta of the equity procedure.

The .plaintiff and the defendant, though spouses when this action was begun, had the right, not to say the privilege, of suing and maintaining suits in equity against each other. [Woodward v. Woodward, 148 Mo. 241; Porter v. Bank, 19 Vt. 410 ; Lane v. Lane, 76 Me. l. c. 527; Simmons v. Thomas, 43 Miss. 31.] At common law a married woman could not alone sue any one unless her husband were civilly dead, or an alien always residing abroad'; a fortiori, she could not sue her husband. In equity, however, from early times at least, she could sue her husband, though such action, till enabling statutes were passed, was maintained by her only through a next friend. [10 Ency. Pl. & Pr. 195; Simmons v. Thomas, supra.] Our statute (Sec. 8304, E. S. 1909) long since changed the old rule so that she may now sue and be sued just as if she were une femme sole. So it follows that if in equity as to her separate estate when her husband’s claims thereto were adverse and inimical to her own, she could always sue him by a next friend, and if the statute supra has emancipated her from the legal thraldom of a next friend, she may now sue her husband. Conversely, it follows her husband may now sue her, since as we have seen the disabilities forbidding such suits were practically all at common law, and in equity (the unity theory of the common law ex-cep ted) such as affected the wife only. The duality of the spouses so far as affected their reciprocal rights to sue each other in equity, was long ago settled. [See cases and authorities, supra.]

Since the husband may sue his wife either in law or in equity; since the matter of the appointment of a receiver rests in the sound discretion of the circuit court, and since there is no doubt that the condition of the property here in jeopardy presents a strong case for the custody of some person not a partisan of either side, we think the petition was sufficient; that the order of the court was proper and ought to be upheld.

We do not pass on the question of whether the plaintiff and the defendant are entitled to the joint custody and control of the property, or whether the husband alone is entitled to such control and to the rents and profits of the property in the lifetime of the spouses and while the marriage relation still subsists. That question is not now in the case and not now raised by the appellant upon this appeal. These are certainly not matters about which appellant may with right complain; for upon some of the views she would be left with no present rights, except mayhap, and on this we do not now pass however, such as may be bottomed on the fact that she paid one small note on the indebtedness hanging over this property.

This is á most flagrant example of a useless and dilatory appeal, calculated besides to work — as it may have worked — great loss to both parties. Let the judgment of the circuit court be affirmed.

Walker, P. Jand Brown, J., concur.


author: BROWN, J.

text:
    FRANK W. RUTLEDGE v. E. W. SWINNEY et al., Receivers of SEDALIA LIGHT & TRACTION COMPANY.
    Division Two,
    July 14, 1914.
    1. NEGLIGENCE: Pleading: Defective Cross-Arm: Designed to Support Lineman. Although the petition does not categorically aver that the cross-arm upon which plaintiff was resting a part of his weight while attempting to remove a transformer from an electric light pole and to replace it with a larger one, was intended to support his weight while he was performing that work, yet if it alleges that fact with sufficient clearness to notify the defendant company that the rotten comdition of the cross-arm was the cause of his failing, defendant, having neglected to demur or to move to make the petition more definite, will not he heard to complain, after verdict, that the petition was insufficient in that respect.
    2. -: Defective Cross-Arm: Inspection: Facts of Case. Plaintiff was directed to assist defendant’s foreman and two other employees in removing from the cross-arm of an electric light pole a transformer and replacing it with a larger one. Some of the poles had become rotten at the ground, and many of the cross-arms used to support wires and transformers were defective and had to he replaced with new ones. After the old transformer was lowered to the ground and a new one raised and hung upon the cross-arm, plaintiff whose duty it was to connect and solder several wires and in doing which it was necessary for him to go both above and below the transformer, on account of the position of numerous wires was compelled to unfasten his belt from the pole and climb over the transformer, and in doing so was unable to secure a hold upon the pole with his hands, but was compelled to sustain himself by taking hold of the cross-arm from which the transformer was hanging. The cross-arm appeared sound, hut a short distance from the pole it was sound only at the exterior, the interior being rotten, so that when plaintiff placed a part of his weight upon.it it broke, and its decayed condition was the immediate cause of his fall. Plaintiff’s testimony ,is to the effect that it was not his duty to inspect poles or cross-arms; that the foreman had recently been going over the system and inspecting them, and required plaintiff and other employees to replace with new ones those found to he decayed; that a new cross-arm had recently been placed above the one that broke; that the work was a “rush job” and plaintiff was not furnished with tools for inspecting cross-arms, which could he properly done only with a hand ax or hammer and chisel; and 'that he looked and saw that the cross-arm which broke appeared to be sound. It was apparently necessary for him to remove his belt from the pole, and he is not charged with negligence in that respect: Held, that a reasonable degree of care would have led the foreman to have carefully inspected the cross-arm, or to have furnished plaintiff with suitable tools and instructed him to inspect it before installing the transformer, and the case was one for the jury.
    3. -: -: Disregarding Evidence. Unless the testimony on which the verdict rests is so utterly at variance with the admitted or known physical facts as to require it to be cast aside, it will not be disbelieved by the appellate court.
    4. -: -: Opportunity of Inspection. Where there was evidence that the work of replacing the transformer with a new one, on the decayed cross-arm, was a “rush job” and that the lineman was not furnished with tools for inspecting the cross-arm, it was not error for the instruction to include, as an element of his right to recover for injuries caused by the breaking of the cross-arm,^ that he -“did not have the opportunity, time and means to discover the condition of the cross-arm.”
    5. -: Instruction for Defendant: No Evidence. It is not error to refuse an instruction for defendant if there is no sufficient evidence upon which to base it. If the evidence does not tend to establish a custom among the defendant’s linemen of inspecting cross-arms before they went upon them, it is not error to refuse an instruction basing a defense upon such custom.
    6. —--: ■ >: Refused Covered by Those Given. It is harmless error to refuse an instruction for defendant whose theory of defense is covered by others given. Even though it be conceded there was slight evidence to support an instruction telling the jury that if it was the duty, under the system of employment adopted by defendant, for each lineman to inspect cross-arms before.going upon them, any error in refusing that instruction was cured by another given telling the jury that even though linemen frequently placed their weight upon cross-arms, it was plaintiff’s duty, before placing his weight upon the cross-arm in question, to exercise ordinary care to ascertain whether it was adequate to bear his weight, and if he failed to exercise such care he could not recover.

      7. EXCESSIVE VERDICT: $9000. Plaintiff, a strong man twenty-nine years old, with large experience in handling and repairing electrical appliances and in doing signal work on railroads, earning at the time of his injury $65 per month and prior thereto as much as $85, while engaged in substituting on a cross-arm of an electric light plant a transformer with a larger one, fell to the ground, breaking a bone at the elbow, which has never been removed, and so tearing loose the muscles from the bone as to render that arm useless. One of his ears was so injured internally that he has lost the power to hear through it; the muscles of one side of the body are withered and atrophied, which has given him a lop-sided appearance; his general health has declined, and his weight been reduced, from 152 to 121 pounds; the pains produced by the injuries were so great that within a few hours his reason was temporarily dethroned, and the pains continued for two weeks; and whether or not the loose bone in the arm can be so treated or operated upon that he can again use the arm, is left in doubt by the testimony of the physicians. Held, that a verdict for $9000 is not excessive.
    Appeal from Pettis Circuit Court. — Hon. Hopldns B. . Shain, Judge.
    Affirmed.

      George F. Longcm and, Seddon & Holland for appellants.
    (1) The court should have given the peremptory-instruction, asked hy appellants at the close of all the evidence, because the petition does not state a cause of action, in that it does not allege that the cross-arms and pins referred to in respondent’s petition were furnished for the purpose of bearing the weight of linemen, or that respondent, while using same, was acting in the discharge of his duties. Roberts v. Tel. Co., 166 Mo. 369; Telephone Co. v. Speicher, 117 Mo. 405; Sindlinger v. Kansas City, 126 Mo. 355; Kelly v. Lawrence, 195 Mo. 75; Flood v. Tel. Co., 131 N. T. 603. Because there was no testimony that the cross-arms and pins in question were furnished for the purpose of bearing the weight of linemen. Because it was the duty of respondent to make his own inspection. The evidence in this case shows that had he made a proper inspection, he would have discovered that the cross-arm and pins in question were weak on account of internal decay and would not sustain his weight. Smith v. Light & Power Co., 143 Mo. 572; Forbes v. Dunnavant, 198 Mo. 193; Mclsaacs v. Lighting Co., 172 Mo. 89. (2) The court erred in giving instruction number 11 at the instance of respondent, for the following reasons: (a) Because it provides for a recovery if the jury believe that the cross-arms on the pole in question and the pins thereon were in a defective and unsafe condition, without requiring any finding that they were designed or furnished to sustain tíre weight of linemen, or any finding that the respondent, in placing his weight on same, was acting in the discharge of the duties of his employment. Coyne v. Railroad, 133 U. S. 370. (b) Because it overlooks the direct testimony offered by appellants to the effect that it was ,the duty of each lineman to act as his own inspector. (c) Because, if respondent did not have the means at hand to make an inspection, he should have acquired them, (d) Because, in part, it is predicated on matters in regard to which there was no testimony, to-wit, that part in which a finding is required that plaintiff did not have opportunity, time or means to discover the condition of the cross-arm in question. (3) The court erred in refusing to give instruction 3 at the instance of appellants. Said instruction is amply supported by the evidence, correctly states the law and should have been given. (4) The court erred in refusing to give instruction number 5 at the instance of appellants. Said instruction correctly states the law and should have been given.

      Montgomery & Montgomery and Charles E. Yeater for respondent.
    (1) It was not necessary for a recovery by plaintiff to either plead or prove that the cross-arms and pins were furnished for the purpose of bearing the weight of linemen. The petition alleges that the cross-arm was a part of the place where the plaintiff had to work and that in order'to complete his work he had to put his hand thereon in changing his position and that by reason of its defective condition, due to internal rot, which defendant could have ascertained by proper inspection, but which was not obvious, or apparent to the senses, plaintiff fell and was precipitated to the brick sidewalk below, while engaged on a rush job with neither time nor tools to inspect with. The evidence is undisputed that it was impossible for plaintiff to ascend the pole without using the cross-arms and that putting his hand on the cross-arm while undoing his safety belt and starting to climb the pole was an act absolutely necessary in order to make the ascent; and the evidence is also undisputed that all linemen customarily every day use the cross-arms in their work and in climbing; and defendants proved, that linemen put their weight on the pins, and that the foreman, after plaintiff’s fall, put the entire weight of his body on the very cross-arm in question in finishing the work. It is also undisputed that this cross-arm was not used for carrying wires, but for the purpose of supporting the iron transformer. The' courts have held as a matter of law that cross-arms must be and always have been used by linemen as a means of support and that it is the duty of the master, aside from exceptional cases, to inspect them, so that they may be sufficient to meet the requirements of such use. Rutledge v. Swinney, 170 Mo. App. 251; McDonald v. Tel. Co., 22 R. I. 131; Clairain v. Tel. Co., 401 La. Ann. 178; Telegraph Co. v. Cloman, 97 Mo.,620. (2) The fact that plaintiff grabbed the pins in the act of falling is entirely immaterial as that had nothing to do with the defective condition of the cross-arms which had previously shelled off under the grasp of his left hand. Clutching in desperation the pins, like a drowning man grasping at straws, was merely the act of a person falling and in imminent danger of great bodily injury acting on the natural impulses of the instinct of self-preservation, and cannot be condemned. Plaintiff, however, could legally use the pins for a support by his hands in climbing. Rutledge v. Swinney, 170 Mo. App. 251; Chisholm v. Tel. & Tel. Co., 185 Mass. 83. (3) Conceding that cross-arms on a pole, and the pole itself are primarily intended only for carrying wires, they are suitable for the use of the linemen in steadying themselves in climbing and working on the poles and the undisputed evidence, including that of defendants, shows that they are so used, and it is self-evident that the master knows that they must be so used, and therefore, the contention of appellants in their brief, that plaintiff must be held negligent in law from the mere fact that he attempted to use the cross-arm in making his ascent, is unsound and erroneous, and defendants’ given instruction 9 was more favorable than they were entitled to. Rutledge v. Swinney, 170 Mo. App. 251; Brimer v. Railroad, 109 Mo. App. 493; Palmer v. Kinloeh Tel. Co., 91 Mo. App. 115; Winscott v. Railroad, 151 Mo. App. 378; Chisholm v. Telephone Co’., 185 Mass'. 83. (4) It was not the duty of the plaintiff to make a comprehensive inspection on his own motion, of the pole or its attachments for hidden or latent defects, and under the law of master and servant he was bound only to make such a casual inspection of obvious defects as were apparent upon the surface, and this duty the defendants could not impose upon the plaintiff by virtue of any rule, custom or understanding, or by refusing to assume the duty; and since the trial court instructed the jury by instruction B, given on the motion of the court, that unless the defendants had assumed the duty of inspection for hidden or latent defects, it was the duty of plaintiff to make his own inspection, in order that he might ascertain any and all defects that might make the cross-arms unsafe to Mm, whether said defects were obvious or hidden, it is therefore apparent that such instruction was unduly favorable to defendants and put an unfair burden upon the plaintiff. Corby v. Tel. Co., 231 Mo. 436; Knorpp v. Wagner, 195 Mo. 662; Nicholds v. Plate Glass Co., 126 Mo. 64; Hysell v. Swift & Co., 78 Mo. App. 43; Porter v. Railroad, 71 Mo. 78; Epperson v. Tel. Co., 155 Mo. 384; Lee v. Railroad, 112 Mo. App. 402; Doyle v. Trust Co., 140 Mo. 18; Rigsby v. Supply Co., 115 Mo. App. 308; Benton v. Railroad, 32 Mo. App. 458; Covey v. Railroad, 86 Mo. 641; Corey v. Railroad, 27 Mo. App. 179; Flynn v. Bridge Co., 42 Mo. 531; 26 Cyc. 1213.
   BROWN, J.

Plaintiff sues for injuries sustained while worMng for defendants as a lineman. Defendants are receivers of the Sedaba Light & Traction Company.

This is the second appeal in this case. On the first trial plaintiff obtained a judgment of $5000, which was reversed by the Kansas City Court of Appeals on account of erroneous instructions. [170 Mo. App. l. c. 265.] Upon a second trial plaintiff had judgment for $9000, from which defendants appeal to this court.

The plaintiff sustained his alleged injuries by falling twenty-one feet from an electric light pole upon a brick sidewalk. The nature of his injuries will be noted in connection with our conclusions.

The plaintiff, on the afternoon of February 8, 1912, was directed to assist/defendants’ foreman Gus Bergfelder and two other employees in removing a Horneberger transformer from a pole and replacing same with a larger transformer known as a General Electric.

The lighting plant for which defendants were receivers had been constructed several years. Some of their poles had become rotten at the ground, and many of the cross-arms on their poles used to support wires and transformers were also defective and had to he replaced with new cross-arms. Defendants had ordered all of their “Horneberger” transformers replaced with “General Electrics.” The latter is described as being a larger transformer than the Horneberger. The- sizes and weights of these transformers are not stated in the evidence or pleadings, and, while some originals and models were introduced, and the trial court and jury may have obtained a correct knowledge of their respective sizes, it is somewhat difficult for us to do so from the printed record.

The immediate cause of plaintiff’s fall was the decayed condition of part of a cross-arm upon which he was installing a new transformer. He testifies that after the old transformer had been lowered to the ground and the new transformer raised and hung upon the cross-arm, it was his duty to connect, paint and solder several wires; in which work it was necessary for him to go both below and above the transformer. That, on account of the position of numerous wires, he was compelled to unfasten his belt from the pole and climb over the transformer; in doing so he could not secure a hold upon the pole with his hands, but was compelled to sustain himself by taking hold of the cross-arm to which the transformer was hanging. There is no dispute about the fact that the cross-arm appeared sound, and may have been sound where it was fastened to the pole, but a short distance from the pole it was only sound about a fourth of an inch deep, and the interior was so rotten that it crumbled or sloughed off under plaintiff’s weight, or such of his weight as he placed upon it with his hand.

Plaintiff testified that he was performing a “rush job,” commenced about three p. m. That he was instructed by the foreman to complete the job so as not to interrupt the service to some nine customers who obtained lights through this particular transformer. According to plaintiff’s evidence it required about three hours to take clown an old transformer and replace it with a new one, many wires having to he connected, soldered and painted and other appliances changed. That after arriving at the pole they had less than two hours to complete the job, the lights being needed about 4:30 on that short February day. Plaintiff further testified that this pole stood in a leaning position, but that it was not his duty to inspect poles or cross-arms, and that Mr. B'ergfelder, defendants’ foreman, had recently been going over defendants’ lighting system inspecting the cross-arms with a hammer and chisel; that by this method he detected many cross-arms which were decayed, and caused plaintiff and other employees to replace such defective cross-arms with new ones. That he was told not to inspect, and was not furnished with tools suitable for that purpose. That the only proper tools for inspecting' cross-arms were a hand axe or hammer and chisel; that, while the foreman kept a hammer and chisels locked in a box at defendants’ office with which he inspected cross-arms, in directing what tools and appliances should be taken to the place where plaintiff was injured, said foreman omitted the hammer and chisel.

Plaintiff further testified that in the morning of the day he was injured he assisted defendants’ foreman in taking down a Plorneberger transformer and hanging a larger one in its place in another part of the city; that before making that change defendants ’ foreman climbed the pole and inspected with hammer and chisel the cross-arm upon which the new transformer was to be hung. Plaintiff also testified that because he had been told not to inspect, because no tools suitable for that purpose were furnished or taken to the place of the accident, and because the pole where he undertook to hang the transformer contained a new cross-arm near the top thereof, he supposed defendants’ foreman had recently inspected that pole and the cross-arms thereon, and, consequently, did not undertake any inspection except with his eyes. That he looked and saw that the cross-arm upon which the new transformer was to be hnng appeared to be sound. There were four cross-arms on the pole; the transformer was hung on the second one from the bottom.

Plaintiff further testified that when he suggested how a certain kind of work should be done to secure the safety of employees, defendants’ foreman said: “When you fellows are authorized to inspect or authorized to direct work, then we will do the way you want it done . . .; until then you will do what you are told to do.”

George Green, a witness for plaintiff, stated that he worked for defendants under Mr. Bergfelder, the foreman, for several months, quitting the job December 23, 1911, prior to plaintiff’s injury on February 8, 1912. Mr. Green stated that foreman Bergfelder went about over defendants’ electric light system almost every day inspecting cross-arms with hammer and chisel, and inspecting poles at the ground with a steel bar; that he ordered poles and cross-arms removed whenever he found by such inspections they were defective or rotten. That when suggestions were made by the linemen about how they thought work ought to be done, the foreman would inform them that they must “do what they were told to do.” Witness stated that it was customary for the foreman to inspect poles and cross-arms before sending linemen to repair them. The defendants’ attorneys did not cross-examine this witness.

C. G. Green also testified for plaintiff that he frequently saw defendants’ foreman Bergfelder going over town inspecting poles, wires and cross-arms, and making notes in a small book.

David F. Webster, defendants’ superintendent,testified that he never gave any orders to his linemen about inspecting, but it was the custom for each lineman to do his own inspecting of cross-arms, which could readily be done with a pair of plyers, connectors and a screw-driver, which tools every lineman was required to furnish and carry with him. Witness said that he had never climbed any poles, and seldom knew when cross-arms were defective, except when the linemen reported them to him; and never instructed any of the employees to climb poles to inspect cross-arms, and only supposed cross-arms were repaired when they became so badly out of order that the defects could be seen from the ground. Witness gave it as his opinion that the new cross-arm near the top of the pole where plaintiff received his injuries was placed there about two weeks before the injury occurred. -Mr. Webster also stated that he appointed Mr. Bergfelder foreman of defendants’ lighting plant, but could not remember if this was before or after plaintiff was injured.

Gus Bergfelder, testifying for defendants, stated that he was not foreman for defendants at the time plaintiff was injured; was simply a lineman, the same as plaintiff, but, being the oldest in the employ of defendants, the orders were given to him by superintendent Webster, and he (Bergfelder) looked after seeing that the work was performed. Mr. Bergfelder further testified that he had never climbed any poles for the purpose of inspecting cross-arms with hammer and chisel. That it was the custom for each lineman to inspect cross-arms as he needed to use them, which could readily be done by tapping them with plyers, connectors or a screw-driver, which tools each lineman carried. Witness further stated that the new cross-arm near the top of the pole where plaintiff was injured was placed there in September, 1911. That after plaintiff’s injury witness climbed the pole and, with- ■ in a few minutes, completed the installation of the new transformer, standing on the transformer while he did that work. That he thought an hour was sufficient time to take down a' Horneberger and install a new transformer.

There is not n^uch conflict in the evidence as to what tools a lineman was required to supply and carry with him- — a pair of plyers, connectors and a screwdriver, or a knife with a stub or broken blade, the knife being used in stripping wires and unscrewing fixtures on transformers.

Lucian Brewington, who had worked for defendants, and who was introduced by them as a witness, testified that he knew of no custom of inspection on defendants,’ plant. Said witness further testified that striking a cross-arm with a pair of plyers or connéctors would not ordinarily afford much information as to whether it was sound. He usually inspected cross-, arms either by shaking them or by driving his screwdriver into them with a hammer, if he had the hammer. When a cross-arm looked sound he ordinarily went ahead and used it without inspection. •

Prank Leach, an electrician and lineman of large experience, stated that cross-arms could not be satisfactorily inspected with plyers or connectors. If a cross-arm was dry and hollow that fact might be detected by tapping it with plyers, but if the inside of the cross-arms was simply rotten and full of moisture, and wires were strung upon it, its unsoundness could not be detected by tapping it with a light instrument. In such cases the proper inspection could only be made with a hand axe or with a hammer and chisel.

Such additional facts as may be necessary to a full understanding of the case will be given with our conclusions.

OPINION.

I. The first point relied upon by defendants for reversal is that the plaintiff’s petition is insufficient, in that it does not charge that the cross-arm which crumbled or sloughed off under plaintiff’s hand cansing his fall and consequent injuries was designed or intended to support the weight of a lineman. The petition contains the following averments.

“And plaintiff avers that it was the duty of the defendants, through their officers, agents, and foremen, to exercise ordinary care in inspecting their poles, cross-arms, pins and wires, and other places where their workmen would have occasion to work, so as to ascertain whether such places were ordinarily safe for said workmen thereat engaged in their said work, hut that 'the defendants wholly failed to discharge such duty of inspection so incumbent upon them with reference to the said pole- situate as aforesaid at the intersection of said Vermont avenue and Second street in the city of Sedalia.

“And plaintiff says that the cross-arms upon said pole and the pins sunk therein were defective, unsafe and dangerous,' and that the defendants, knew, or, in the exercise of ordinary care and diligence, should have known of such defective, unsafe and dangerous condition, and should have remedied the same by the necessary repairs so as to make the same safe for workmen engaged in the work of defendants thereon; and plaintiff also says that the plaintiff had no knowledge whatever of the defective, unsafe and dangerous condition of said pole, cross-arms and pins.”.

While this petition does not categorically aver that the cross-arm in question was intended to support plaintiff’s weight while he was hanging the transformer, it alleges that fact with sufficient clearness to notify defendants that the rotten condition of the cross-arm was the cause of plaintiff’s injury. It recites that it was the duty of defendants to inspect their cross-arms and make the same safe for employees to work thereon. This recital is equivalent to averring that it was necessary and intended that linemen should go upon the cross-arms in performing their work. The defendants having neglected to either demur or move to make the petition more definite cannot, under the facts in this case, be heard to complain after verdict. [Sexton v. Metropolitan Street Ry., 245 Mo. 254, l. c. 262-263; Parker v. United Railways, 154 Mo. App. 126.]

The answer of defendants is a general denial and a general plea of contributory negligence.

There is a recital in the petition that the pins in the cross-arms were defective, but that part of the petition should be treated as surplusage. The evidence shows that plaintiff did not touch the pins until the cross-arm itself crumbled and gave way. He then-caught hold of two of the pins in the cross-arm to avoid falling, but those pins broke or pulled out. It was the decayed condition of the cross-arm, not the pins, which caused plaintiff to fall.

The case of Roberts v. Missouri & Kansas Telephone Co., 166 Mo. 370, is not “on all-fours” with the case at bar, as defendants assert. In the Roberts case the plaintiff was not relying upon someone else to inspect. He. seems to have had the time, tools and opportunity to inspect, but neglected to do so. It further appears that Roberts had actual knowledge that the cross-arm upon which he stepped was defective, because he saw that one of the pins 'was decayed and had broken. Yet, notwithstanding that knowledge, without fastening his belt to the pole, he stepped out on the cross-arm two feet from the pole. In the case at bar there was nothing in the outside appearance of either the cross-arm or pins to indicate decay or hidden defects. It is true that Roberts, like the plaintiff here, released his belt from the pole, but plaintiff states that he had to do so in order to shift his position and climb over the. transformer and numerous wires. The defendants do not assert that plaintiff was guilty of any negligence in removing his belt from the pole. It was apparently necessary to do so. The case of Corby v. Mo. & Kan. Tel. Co., 231 Mo. 417, while not “on all-fours” with this case, furnishes strong support for respondent’s contention.

The size of the particular cross-arm which crumbled under plaintiff ’s hand is not given, except through a model which is not before us, but it does appear that said cross-arm was strong enough at the pole to hold up the old transformer and also the new one, and if it appeared to be sound it was perfectly natural for plaintiff to suppose that it would sustain his weight a few inches from the pole where he took hold of it.

The putting up of a larger transformer caused greater pressure upon the cross-arm than it had theretofore borne, and only a reasonable degree of prudence on the part of Mr. Bergfelder, the foreman, would have caused him to inspect the cross-arm carefully, or to have furnished plaintiff with suitable tools and instructed him to inspect it before installing the larger transformer.

Cases may arise where a lineman would be guilty of contributory negligence in placing his weight upon a cross-arm without first fastening his belt to the pole, but this is not one of them.

II. Counsel for defendants make a strenuous effort to convince us that the jury should have believed their witnesses and disbelieved those who testified for plaintiff, including the plaintiff himself. There are cases where the testimony of witnesses is so utterly at variance with the admitted or known physical facts as to justify casting such evidence aside (Stafford v. Adams, 113 Mo. App. 717); but this is not a case of that kind. James Green, who corroborates plaintiff most fully as to defendants ’ custom in regard to inspections, and consequently contradicted the evidence of defendants’ witnesses Bergfelder and Webster, made a very straightforward statement, and was not even cross-examined by defenchants’ attorneys. So far as the evidence is concerned, we will say that defendants’ demurrer thereto was wholly frivolous, and if there was no point in the case except the alleged insufficiency of the evidence we would feel it our duty to affirm the judgment with ten per cent damages, as provided by section 2084, Revised Statutes 1909.

m. We will next consider the issues arising on the giving and refusal of instructions, A most earnest complaint is made against plaintiff’s instruction number 2, which reads as follows:

“The court instructs the jury that if they believe from the evidence that on the 8th day of February, 1912, the plaintiff, Frank W. Rutledge, was engaged in the line of his duty as a lineman for the defendants and in the performance of such duty was engaged in the work of replacing a small transformer with' a larger transformer to meet increased service on defendants’ pole at the northwest comer of Second and Vermont streets in the city of Sedalia, and was engaged in said work with other workmen under the supervision and control of defendants’ foreman and subject to his orders and control, and if you believe from the evidence that, the second bottom cross-arm on said pole and the pins on the north end thereof were in a defective and unsafe condition for linemen working thereon, -and that at said time such condition of the same was known, or by the exercise of ordinary care could have been known by the defendants, and if you believe that from the nature and character of the work, the plaintiff did not have the opportunity, time or means to discover the condition of said cross-arm, then your verdict must be for the plaintiff, provided you further find and believe from the evidence that the plaintiff was in the exercise of ordinary care at that time and received damages as the result thereof.”

Plaintiff testified that fie was required to perform • a rush job and not furnished tools with which he could have detected the decayed and unsafe condition of the cross-arm. Consequently there was substantial evidence that he did not have “the opportunity, time and means” to discover the condition of said cross-arm as recited in the instruction under consideration. The weight to he given plaintiff’s evidence is an issue which was foreclosed by the verdict of the jury. [Dutcher v. Railroad, 241 Mo. 137, l. c. 168.] . The giving of this instruction did not constitute error.

The ninth instruction given at the request of plaintiff is much like instruction number 2, and reads as follows:

“The court instructs the jury that if they believe from the evidence that the plaintiff was sent up the pole in question by defendants ’ foreman under circumstances that deprived him of the means and opportunity of inspecting the cross-arm for latent defects and if they believe that the foreman in ordering him to the top to do a rush job knew that plaintiff had neither the means or time for a comprehensive inspection, and that plaintiff’s fall was due to a latent or hidden defect in the second cross-arm from the bottom, then the plaintiff had á right to presume from such orders and action of the foreman that the pole and its attachments had been recently inspected and found to be in good condition, and that the cross-arm was reasonably safe for the use the foreman must have anticipated he would make of it.”

The two instructions above quoted furnish a fair outline of plaintiff’s theory of the case.

IV. The court refused the following instruction requested by defendant:

“The court instructs the jury that if you believe and find from the evidence that on February 8, 1912, and for some time prior thereto plaintiff was in the employ of defendant as a lineman and that under the system of work adopted by defendant for linemen it was the duty of plaintiff, before he climbed a pole or rested his weight upon a cross-arm, to make a careful inspection to ascertain whether such pole or cross-arm was sufficient to sustain his weight before placing his weight thereon, then and in that case the plaintiff is not entitled to recover and you will find yonr verdict for the defendant. ’ ’

It is very doubtful if there was sufficient evidence upon which to báse this instruction. The defendants ’ superintendent, Mr. Webtser, stated the he gave no orders to his linemen about inspecting. From Mr. Webster’s evidence it seems that he thought it unnecessary to inspect or take down cross-arms until their unsafe condition became so obvious that it could be observed from the ground. He seems to have regarded inspections as a matter of little moment. Mr. Bergfelder, the foreman, testified that it was the custom among defendants ’ employees for each lineman to inspect cross-arms before going upon them, yet Mr. Bergfelder gave no instance of this custom being observed, and admitted that, without an inspection, he himself stood upon the transformer while it was hanging on the very cross-arm, a part of which had crumbled in plaintiff’s hand, causing him to fall. Notwithstanding Mr. Bergfelder knew this cross-arm Avas badly decayed he seems to have depended upon it to hold up both himself and the transformer.

Lucian Brewington, another Avitness introduced by defendants, stated that when a cross-arm looked sound he ordinarily went upon it without further inspection. It is difficult to see how a system or custom of inspection could come into existence or be adopted which was not prescribed by any rule of defendants, and seldom, if ever, practiced by any of its employees. From the evidence it is certain that the decayed condition of the cross-arm which caused plaintiff’s fall could not have been discovered from the ground, and a strong preponderance of the evidence tends to prove that its defects could not have been ascertained without the aid of a hammer and chisel or hand axe.

Y. .Yet if it be conceded that instruction number 3 requested by defendants should have been given, we think its refusal was harmless, because defendants’ theory of the case was properly presented to the jury by other instructions. Instruction number 7 given at the request of defendants, reads as follows:

“The court instructs the jury that even though you believe and find from the evidence that linemen frequently placed their weight on cross-arms, yet it was the duty of plaintiff, before placing his weight, or part thereof, on the cross-arm in question, to exercise ordinary care to ascertain whether it was adequate to bear such weight. And the court instructs the jury if you believe and find from the evidence that plaintiff failed to exercise such care, and that had he done so he would have discovered that the cross-arm in question was too weak to sustain his weight, or part of it, then and in that case the plaintiff is not entitled to recover and you will find your verdict for the defendant. ”

This instruction was supplemented by one given by the court of its own motion, which reads as follows :

“The court instructs the jury that if they find and believe from the evidence under all the instructions, that it was the duty of plaintiff, when working upon and about cross-arms upon poles, to make his own inspection, in order that he might ascertain any and all defects that might render the cross-arms unsafe to Mm.) whether said defects were obvious or hidden, then the court instructs the jury that the term ‘ordinary care’ as having application to this duty of inspection, means such care and caution, considering all the facts and circumstances in evidence, including the elements of means and time for making a comprehensive inspection, as an ordinarily prudent person, upon whom this duty of inspection devolved, would use under the same or similar circumstances.

“On the other hand, if the jury find and believe from the evidence that the duty of inspection for hidden or latent defects in the cross-arms upon poles upon which plaintiff worked, was not the duty of plaintiff, •but that said duty was assumed by defendants, then the court instructs the jury that the term ‘ordinary care,’ as used in these instructions and as applied to plaintiff’s duty of inspection, is meant, such care and caution, taking into consideration all the facts and circumstances in evidence, including the elements of means and time for making such inspection, as an ordinarily prudent person would use under the same or similar circumstances in ascertaining obvious defects.”

After a careful review of the instructions given and refused, we find that the law was correctly presented to the jury, and that defendants have no just cause of complaint on that score. [Richardson v. Railroad, 223 Mo. 325; Cytron v. Transit Co., 205 Mo. l. c. 718.]

YI. There is not much conflict in the evidence regarding the extent of plaintiff’s injuries. Prior to his fall he was a strong man ’twenty-nine years of age, with large experience in handling and repairing electrical appliances, and doing signal work on railroads. He was earning $65 per month, and had earned as high as $85 per month. By his fall a bone was broken in one of his elbows, which bone has never been removed. The muscles in his arm were tom loose from the boné so as to render that arm useless. One of his ears was so injured internally that he lost the power to hear through same. The' muscles of the left side of his body are withered and atrophied, giving him a lopsided appearance. His general health has declined, and his weight reduced from 152 to 121 pounds. The pains which his injuries produced were so great that, within a few hours after his fall, his reason was temporarily dethroned. His pains continued for two weeks.

Two physicians testified for defendants that they believed the loose bone in plaintiff’s elbow could be so treated by an operation that plaintiff could again use the arm, but they admitted that an operation upon a' joint was more difficult than upon other parts of the body, and their evidence was not reassuring. Plaintiff’s physician testified that nothing could be done for his arm, and that his days of pole-climbing were over. The loss of hearing in one of his ears renders him unfit for signahwork on railroads. Upon this evidence we hold 'that the judgment is not excessive.

VII. The evidence of defendants’ witness Bergfelder tends to prove that he was not foreman for defendants at the time plaintiff was injured. Bergfelder says that he gave orders and superintended defendants’ work, “but was not duly appointed foreman.” Defendants seem to have abandoned their theory that plaintiff’s injury was caused through the negligence of a fellow-servant.

After a most careful review of all the evidence and authorities cited by defendants’ counsel, we are convinced that the judgment should be affirmed, and it is so ordered.

All concur.