author: BURGESS, J.

text:
    GIBNEY v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,”
    June 11, 1907.
    1. CHANGE OF VENUE: No Exception. Unless appellant saved an exception at the time the court granted a change of venue, the action of the court in awarding the change cannot be considered on appeal. It is likewise necessary that the motion for a new trial contain an assignment of error in this regard.
    2. JUROR: Prejudice: Strike. The juror on his voir dire examination testified that he had no relations of business or interests with defendant railroad company, and that he had no prejudice or bias against the parties or either of them. After the trial it was shown that he was the leader of a strike three years previously by defendant’s employees against defendant, which lasted several weeks, and that during the strike bitter feeling existed between the employees and the defendant, and that defendant’s tracks were demolished by dynamite, and crimes, some of them felonies, were committed by the strikers. On being confronted by these facts, the juror testified again that he did not have any prejudice either way in the case. There had been a change in the management of defendant company since the strike, and the trial was had and the juror resided in another county. Held, first, that the juror was prejudiced, and if he had revealed the facts in regard to the trial it is not reasonable to suppose he would have been retained as a juror; second, it cannot be assumed that a person who has become prejudiced against another, ceased to bear malice against him at any particular time, and a certain state of facts once known to exist is presumed to continue until the contrary is shown, and the contrary is not shown by the juror’s testimony alone; third, the juror’s prejudice was emphasized by by the exceedingly large and unjustifiable verdict; and fourth, the court should have granted a new trial on account of the juror’s prejudice, brought to the court’s attention in the motion therefor.

      3. NURSES: Members of Family: No Express Contract. For services rendered plaintiff by her daughters of legal age. while they were members of her family, plaintiff cannot recover in her suit against the railroad company for damages for her negligent injury, unless the services w;ere rendered under an express contract of employment. Unless there was such an express contract the services rendered by the daughters while members of her family, whether usual or extraordinary, or whether they were under or over legal age, are presumed in law to have been gratuitous, for which the mother was not legally liable, and in consequence the defendant who negligently inflicted the injuries on the mother out of which the services grew is not liable.
    4. EXCESSIVE VERDICT: $30,000: New Trial. The verdict for thirty thousand dollars in this case is so manifestly excessive,- and their probable effect it is held that the ends of justice will be facts in relation to plaintiff’s injuries, their nature and extent and, thei rprobable effect on her health in the future, and the expenses incurred, that it is held that the ends of justice will be best subserved by a new trial.
    Appeal from Montgomery Circuit Court. — Hon. E. M. Hughes, Judge.
    Reversed and remanded.

      Boyle & Priest and Edivard T. Miller for appellant.
    (1) The circuit court of St. Louis city improperly considered and granted plaintiff’s application for a change of venue, (a) The application was presented too late, the trial having begun. Fugate v. Carter, 6 Mo. 267; Junior v. Power Co., 127 Mo. 79; State v. Lehman, 182 Mo. 424. (b) No notice was given to defendant of the application. Sec. 822, R. S. 1899 ; Railroad v. Holliday, 131 Mo. 440'; State v. Lehman, 182 Mo. 424. (c) The affidavit for the change of venue does not state that affiant believed that plaintiff could not have a fair trial in the circuit court of the city of St. Louis, Sec. 821, R. S. 1899; Railroad v. Powell, 104 Mo. App. 362. (2) A new trial should have been granted because the juror Samuel A. Moore was not qualified to sit as a juror as shown by the affidavits in support of the motion for a new trial. The juror testifying at the hearing of the motion did not controvert the principal facts contained in the affidavits. Those facts conclusively established the juror’s unfitness-to serve. Theobald v. Railroad, 191 Mo. 395; Pool v. Railroad, 6 Fed. 844; Essex v. McPherson, 64 111. 349; Johnson v. Tyler (Ind.), 27 N. EL 643; Pearcy v. Ins. Co., Ill Ind. 59; Tenney v. Evans, 13 1ST. H. 462; Heasley v. Nichols, 80 Pac. 769. (3) The court erred in giving plaintiff’s instruction 5 with reference to the measure of damages. The third element therein submitted is erroneous for the following reasons: (a) Plaintiff was not entitled to recover for “expenses necessarily incurred for nursing” because it is undisputed that, the only services of this character were rendered by her daughters, members of her family, and no express agreement to pay for those services was shown. Erhardt v. Dietrich, 118 Mo. 418; Kostuba v. Miller, 337 Mo. 161; Goodhardt v. Railroad, 177 Pa. St. 191; Voorhies on Damages, p. 29, sec. 18. (b) It was not claimed that plaintiff’s daughters were trained nurses, yet the only testimony as to the value of a nurse’s services relates to the services of a trained nurse. There was, therefore, no testimony upon which to base the element of damage predicated of ‘ ‘ expenses necessarily incurred for nursing.” MacDonald v. Railroad, 108 Mo. App-. 374. (c) The petition alleged expenses incurred. The instruction permitted a recovery for expenses incurred. There was no evidence that plaintiff had incurred any expenses for nursing. If none were incurred plaintiff cannot say under the pleadings that defendant cannot avail itself of the generosity, charity or indulgence extended to plaintiff by a -third party. Morris v. Railroad, 144 Mo. 500. (d) Plaintiff was nursed by her daughters, the number of whom is not stated. There were at least three, as her daughter Marguerite testified that ‘ ‘my sisters and I nursed her.” If the jury so desired it could under this instruction allow at least $18 a day for nursing, and a greater amount if they surmised-, that plaintiff had more than three daughters. This element of uncertainty destroys the value of the testimony as a basis .of recovery. Duke v. Railroad, 99 Mo. 347. (4) The verdict is grossly excessive and unmistakably evidences the passion and prejudice of the jury against defendant. No portion of such verdict should be permitted to stand. Norris v. Whyte, 158 Mo. 20; Smoot v. Kansas City, 194 Mo. 513; Ice Co. v. Tamm, 90 Mo. App. 189.

      A. B. Taylor for respondent.
    (1) There can be no contention, and there is no contention, that under the evidence in this case, the jury were not justified in returning a verdict for plaintiff. (2) The statute in force when the application for change of venue was made is sections 821, 822, Revised Statutes 1899. This statute went into effect in 1895. As a conclusion of the section providing the mode of claimed that plaintiff’s daughters were trained nurvided, however, this act shall not apply to causes wherein a special venire shall have been issued, and in- such case the party not applying for such special venire shall be granted a change of venue, as of course upon proper affidavit.” We doubt if counsel for appellant had in mind this statute when citing the eases of Fugate v. Carter, 6 Mo. 267; Junior v. Electric Light Co., 127 Mo. 80; Railroad v. Holladay, 131 Mo. 451. All of these cases were ruled upon a different statute, and long before the present statute was enacted, and could have no possible relevancy here where the statute is radically different. (3) The trial court should not have granted a new trial on the ground that juror Moore was one of the twelve who tried the case. The affidavits and evidence on this issue were heard by the trial judge in passing on this question, and after weighing the evidence the trial court held he was qualified, and was right in so holding. (4) The next contention of appellant is that plaintiff was not entitled to recover for the nursing she received from her daughters, though they were of age and in law under no obligation to serve their mother without reward. Appellant’s authorities cited on this point, we think, and submit, do not fit the facts of this case, with the exception of Morris v. Railroad, 144 Mo., which as we think was finally decided rather on a question of pleading than on the merits. Here, upon appellant’s contention, this service must be presumed by the court to have been rendered by these daughters not for the mother, but for the defendant tortfeasor. For these daughters are and must be presumed to have known the law and that the law required the tortfeasor to compensate the injured plaintiff for every expense reasonably necessary for the relief of her from the injuries wrongfully inflicted. We respectfully ask the court if it can presume that these young women intended that their service to their mother to relieve her distress was a donation to the tortfeasor? Does it not require an entire departure from what the court knows is human nature, to presume such a gift? Such a presumption can only arise when human nature reaches the perfection of humility taught in Galilee. If the enemy smite thee on one cheek turn the other cheek to receive a like blow. Return good for evil. Such is not human law as administered and recognized by the courts in adjusting human rights. 1 Sutherland on Damages (3 Ed.), sec. 7; 1 Joyce on Damages, sec. 256; Murray v. Railroad, 101 Mo. 236; Bronson v. Sweetser, 127 Ind. 8.
   BURGESS, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff on the 13th day of June, 1902, by being thrown) from defendant’s ear, by reason of its premature start, whilst plaintiff was in the act of alighting therefrom at the corner of Taylor and Washington avenues in the city of St. Louis. The action was instituted in the circuit court of the city of St. Louis, and afterwards, on the 18th day of April, 1903, on application of plaintiff for a change of venue1, the cause was transferred to the circuit court of Montgomery county, where plaintiff, upon trial had, recovered a verdict and judgment for the sum of thirty thousand dollars. Defendant filed motion for new trial, and afterwards, and within four days after the rendition of the verdict, filed a supplemental motion for a new trial, also motion in arrest ,of judgment, which motions were by the court overruled, and defendant appealed.

The petition is in the usual form of an action by an injured passenger against a carrier, and charged in substance that the defendant at the times alleged was a corporation by virtue of the law of Missouri and used and operated the railway and car mentioned for the purpose of carrying passengers for hire from one point to another in the city of St. Louis as a street railway company. “That on the 13th day of June, 1902, the defendant, by its servants in charge of its car, received the plaintiff as a passenger thereon, and for a valuable consideration by the plaintiff paid to the defendant, undertook and agreed with the plaintiff to carry her safely as a passenger on said car to her point of destination on defendant’s line, and to then stop said car, to-wit, at Washington Boulevard (or avenue) and Taylor avenue, in the city of St. Louis, and allow plaintiff a reasonable time and opportunity to alight in safety; avers that the defendant, unmindful of its undertaking and of its duty in the premises, did, by its servants in charge of said car, whilst it was stopped at the plaintiff’s said point of destination to enable passengers, including the plaintiff, to alight from said car and whilst the plaintiff was in the act of alighting from said car, and before she had a reasonable time or opportunity to do so, negligently cause and suffer said car to be started in motion, whereby the plaintiff was thrown and caused to fall from said car to the street, and to be thereby permanently injured upon the spine, chest and body, and also to sustain a great and permanent injury to the nervous system and also to be injured internally.”

The petition then sets up an ordinance of the city of St. Louis prohibiting conductors from allowing women to enter or leave cars whilst in motion and in disregard of this ordinance, and claimed that such violation of this ordinance contributed to cause plaintiff’s injuries, and alleges her injuries as follows: “That by her injuries, caused as aforesaid, the plaintiff has suffered and will suffer great pain of body and mind; has been permanently crippled; has been permanently disabled from carrying on her business as a keeper of boarders, and carrying on business as a saleswoman and other business, and has been permanently disabled from labor; has been made an invalid for life; has incurred and will incur large expenses for medicines, medical and surgical attention and nursing, to her damage in the sum of fifty thousand dollars, for which sum she prays judgment.”

The answer was a general denial and a plea of contributory negligence on the part of the plaintiff in alighting from a moving car at a time and place when and where the same had not been stopped for the purpose of permitting passengers to alight therefrom.

The reply was a general denial.

Upon almost every salient fact in evidence in this case the testimony on behalf of the opposing parties is in direct conflict.

Plaintiff’s evidence tended to prove that she was fifty-two years of age, had lived in St. Louis about twelve years, and that her health had been perfect prior to the accident. She was connected with a medical firm, and traveled,' lectured, and sold a certain proprietary medicine, called G-ranagophone, for women only. Her earnings from' this employment averaged thirty or forty dollars per week. She also kept boarders, but there is no evidence as to the earnings or profits she derived from such business.

At about eight o-’clock on the evening of June 13th, 1902, at Spring and Olive streets in the city of St. Louis, plaintiff, accompanied by her daughter Marguerite, boarded one of defendant’s cars, whose course was west on Olive street, and north on Taylor avenue. The car had seats running crosswise from side to side, and a step or running hoard along the. sidé of the ear from end to end, for the use of' passengers in boarding the car or alighting therefrom.- At the end of each seat was an upright standard in which was an electric button by means of which passengers indicated to the conductor their desire to- have the car stopped. Plaintiff boarded the car at the right side and sat at the end of the third or fourth seat from the front, being thus close to the running board and on the east side of the car as it was going north on Taylor avenue. Just before reaching Washington Boulevard she rang the bell twice for the car to stop, whereupon her daughter asked her why she rang it the second time, and she replied, “The conductor is'doubly warned that we want to get off.” When the car stopped she- got up from the seat, stepped on the running board preparatory to alighting, and while in that position the car started, throwing her to the streét and into the gutter by the pavement. Plaintiff’s description of the accident was substantially corroborated by the- testimony of her daughter, Marguerite, who sat beside her on the car, and also by the testimony of witnesses Finnegan and Stone, passengers thereon. It further appears from their testimony that plaintiff fell about two feet from the curbing on the east side of the street, and remained there until she received assistance; that five or six passengers alighted from the car at that point, whilst plaintiff was leaving the car, two of which passengers were women; that while plaintiff was standing on the running board the signal for starting the car was given, and that the signal to- stop was given just after she fell, but that the car ran about a hundred feet before it came to- a standstill; that at the time plaintiff was standing on the running board she was facing north, the direction in which the car was going. Plaintiff was assisted to her home by her daughter and a Mr. Bartley, and she was immediately put in bed by her daughters. Her left hip was- bruised and very sore for a good while, and then trouble to her spine ensued. Dr. Brokaw, the defendant’s surgeon, called on plaintiff the morning after the accident and continued to treat her for about two weeks. After Dr. Brokaw ceased to -treat her, Dr. Witherspoon was called in, but he not being a specialist in spinal trouble he recommended Dr. Crandall, who was called in, and he continued to- treat the plaintiff up to the time of the trial. Plaintiff’s evidence further tended to show that since her injury she was unable to' do any work or even take care of herself; that she was unable to take a bath without assistance, and was as helpless as a child. She suffered a great deal of pain in her back, dizziness in her head, numbness in her limbs and severe pain in her hips and legs. She could get around a room by holding onto things for support and taking short steps, but since her injury she had not been out of the house except when carried out. Her expenses for medicines were estimated by ber daughter at from three to five dollars a week. Dr. Fry’s bill for ten dollars was paid by her. Mrs. Talbott, a masseuse, was paid thirty-five dollars for treatment, but neither Dr. Crandall nor Dr. Wither-spoon had yet presented his bill. Plaintiff was nursed through her suffering by her daughters, who she said were over eighteen years of age. Her daughter Marguerite testified, over defendant’s objection!, that the reasonable value of a nurse’s service in the city of St. Louis was three dollars a day and three dollars a night, although she had never nursed for hire herself, and1 had only seen bills presented by nurses.

When Dr. Witherspoon was called to treat plaintiff, two or three weeks after the accident, he found no broken bones and no marks of physical injury. She showed evidence of traumatic neurasthenia, such as sensitive points along the spine; she was subject to dizziness at times, and appeared to be losing strength. He diagnosed the case as traumatic or “railroad spine,” but as he was not a specialist in that line, he called in Dr. Crandall. The latter began treating plaintiff on July 10, 1902, about a month after the accident, and she was still under his care at the time of the trial. He found her condition was a nervous one, and on examination concluded that she had suffered concussion, of the spine. She complained of dizziness, headache and sleeplessness, and walked with great difficulty and pain, all of which were symptoms of concussion of the spine, which is caused by a severe jar of the spinal column. In his opinion plaintiff was an invalid and would never permanently recover, and there was a possibility of a more serious organic condition developing. The symptoms were characteristic of nervous prostrations of any kind. The witness testified that the value of a trained nurse’s service was three dollars; a day and three dollars a night. His own bill was about three hundred dollars.

Dr. Prank R. Fry examined plaintiff after consultation with Dr. Crandall, and' testified' that she was suffering from neurasthenia or nervous exhaustion. She had suffered a great deal of pain, but presented no evidence of any organic disease, nor did she have' any wounds of any kind upon her person. Witness was unable to say whether the condition was permanent or only temporary, but in his judgment she would never, recover from her neurasthenia.. He further testified that very often persons having troubles similar to the plaintiff’s become well by a settlement of the litigation growing out of their, injuries.

Plaintiff next offered in evidence section 1760' of' the 'ordinances of the city of St. Louis, the fifth paragraph, which was the paragraph defendant was charged with having violated, providing that “conductors shall not allow ladies and children to leave or enter cars while the same are in motion. ’ ’

Defendant’s evidence tended to prove that the conductor, who was standing on the rear platform, gave the motorman a signal to stop' the car in .obedience to plaintiff’s signal that she intended to alight. While the car was slowing down plaintiff stepped off the car to the street, which was wet and slippery, and fell, the car continuing to run about eight or ten feet thereafter. The conductor did not see her as she got up from her seat and stepped onto the running board, but saw her .afterward when she was attempting to arise from the ground.

The court permitted plaintiff, over repeated objections by defendant, to ask the conductor as to> alleged statements as to how the accident occurred, made by him to plaintiff and others in the presence- of various witnesses after plaintiff had gotten up from the street. To contradict the answers made by the conductor to these questions plaintiff in rebuttal, over -defendant’s objections, was permitted to introduce the testimony of plaintiff and witnesses Stone and Marguerite Gibney.

Dr.. Dinsbeer, a passenger on the ear sitting four or five seats behind plaintiff, saw her get up in the car and step to the ground before the oar had come to a stop at the crossing. In alighting, her back was towards, the front of the car and she fell backwards.

Charles S. Crawford, of Crawford & Newby, general paint manufacturers, who sat near the rear end of the car on the east side, testified that while the car was slowing up for the crossing he saw plaintiff deliberately step.off the car backward, keep.her equilibrium a second or two, and then fall over, the car run-: ning about ten or twelve feet before stopping.

J. D. Donnoway was sitting in the front seat (which was reversed), facing the rear of the car and near the running board. He saw plaintiff while the car was slowing down step off backward and fall to the street.

J. H. Brigham, sitting on the seat with Donnoway, testified that when the car was approaching Washington avenue, plaintiff got up to get off, and just before the car stopped'she stepped down to the running board and stepped off the car backward, the ear running six or eight feet further.

Dr. A. Y. L. Brokaw examined plaintiff the day after the accident and attended her about two weeks. A week or ten days after he ceased treating her he went to see her and when he reached the house she was sitting by the window. He waited a few minutes for someone to let him in and when he was admitted to the house he found that plaintiff had gone up stairs and gotten in bed with her clothes and shoes on. After that he did not go to see her any more.

Dr. Paul Y. Tupper was appointed by the St. Louis court to examine plaintiff. This he did ini the presence of plaintiff’s physician, Dr. Crandall, in April, 1903. He found plaintiff in bed, rather pale, nutrition fairly good. She was a little unsteady on her feet but the reflexes were normal. Her muscles were in fair condition; there was no lack of symmetry in the legs and thighs; there were no objective evidences of injury, and in his opinion she had no permanent injuries. Dr. Tupper further testified that neurosis is not his specialty, and a neurologist skilled in that subject who had attended plaintiff for a year or two would have opportunities superior to his for ascertaining her condition.

The first question presented for consideration upon this appeal is as to the action of the court in granting, upon the application of plaintiff, a change of venue from the circuit court of the city of St. Louis, where the action was first instituted.

It appears from the record that the case was called for trial on April 13, 1903, when the parties answered for trial, and, upon application of the defendant, a panel of special jurors was summoned for the trial of the cause. On the 17th day of April, 1903, the parties again answering ready for trial, the jurors composing the special venire were called into the jury box, and duly sworn by the clerk to true answers make to such questions as might be propounded to them touching their qualifications to sit as jurors in the trial of the cause; but being unable to finish the empaneling of the jury on said day, the court adjourned until the 18th day of April, 1903, when the panel was completed. Both parties then announced that they did not desire to examine the jurors further, but before the challenges were made and the panel of twelve selected to try the case, plaintiff filed an affidavit praying for a change of venue upon the ground that defendant had undue influence over the inhabitants of the city.of St. Louis; that she obtained information and knowledge of such influence on the 18th day of April, 1903, and that a special jury had been awarded by the court for the trial of the cause, on the application of the defendant.

Defendant objected to the consideration of the application for change of venue upon the ground that no notice had been given defendant or its attorney, and that the application was presented too late, which said objections the court overruled and awarded a change of venue, sending the cause to the circuit court of Montgomery county. It does not appear from the bill of exceptions that the defendant saved an exception at the time to the action of the court in awarding the change of venue, which defendant should have done in order to have the action of the court in that particular reviewed here. [Stearns v. Railroad, 94 Mo. 317; State ex rel. v. McKee, 150 Mo. 233.] Nor was any point made in this regard in the motion for a new trial, which was likewise necessary, and in the absence of which the action of the court will not be reviewed by the Supreme Court. [Klotz v. Perteet, 101 Mo. 213,]

One of the grounds for new trial assigned by defendant in its motion is that one of the jurors trying the cause was prejudiced and biased: The juror, Samuel A. Moore, upon his voir dire examination testified in effect that he had no business relations with or interest in the St. Louis Transit Company, and that he had no bias or prejudice against the parties, or either of them. Upon these statements he was accepted by both sides as a competent and qualified juror. After the case had been submitted to the jury it was learned that Moore was one of a large number of employees of the defendant company who went on a strike in the city of St. Louis in May, 1900, the strike continuing for several months, during which time feeling between the strikers and their employers ran high; defendant’s tracks were demolished by dynamite, and crimes, some amoimting to felonies, were committed by the strikers. As soon as defendant’s counsel learned that Moore took part in said strike, tbe court was, informed thereof. "When the motion for new trial was heard, Mo.ore was offered as a witness for plaintiff. He did not deny any of the charges made against him, his examination and evidence being confined solely to the questions asked on the voir dire.

. “ Q. On the hearing of the voir dire, that is to say, on the inquiry of the jury as to their qualifications, was there any question asked you by me or by counsel for defendant as to whether or not you had ever been in the service of the défendant St. Louis Transit Company? A. There was not.
“Q. Do you remember the question I put to you was this,: ‘Have you any relation .of business or interest with the St. Louis Transit Company?’ Do yon remember that question? A. Yes, sir.
“Q. Well, what other question, if any, was asked you with regard to your relation with the Transit Company? A. There was none that I have any recollection of.
“Q. What further question was asked you as a juror? A. I don’t remember what was, asked; I don’t remember.
“Q. Do you remember whether or not you were asked the question as to whether or not you had any bias or prejudice against the parties, or either of them? A. Yes, sir; I think I remember that.
“Q. What was your answer? A. My answer was I was not prejudiced in any way.
“ Q. I will ask you if you did, as a matter of fact, have any prejudice either way in that ease? A. No, sir.”

The juror, however, did not admit or deny that he was an employee of the defendant at the time of the strike, or that he was one of the strikers.

It was shown by numerous affidavits filed by defendant in support of its motion for new trial that Moore was one of the leaders in said strike, and that during and on account of which a bitter feeling of hatred existed on the part of said strikers and others against the defendant, its officials, and those who refused to strike with them.

It is insisted by defendant, that aside from the issue of fact arising out of the juror’s examination, the questions that Moore admitted were asked him required that he advise defendant’s counsel of his disqualifications. Upon the other hand, plaintiff contends . that although Moore may have been prejudiced against the defendant at the time of the strike, some three years before the trial, there was no evidence that he still retained the prejudice at the time of the trial, there having been a change in the management of the company in the meantime, and especially in view of the fact that on the hearing of the jury on the voir dire the said juror swore that he had no prejudice, and again swore on the hearing of the motion for a new trial that he had1 no such prejudice.

Moore admitted that he was asked upon his voir dire examination if he had any bias or prejudice against the parties, or either of them, and that his answer was, “I was not prejudiced in any way.” Nevertheless, the evidence clearly shows that this juror was, at the time of the strike, biased and prejudiced against the defendant; and when asked upon his voir dire examination if he had any bias or prejudice against the defendant, he should, in justice to himself and in. fairness to the defendant, have disclosed the fact of his connection with the strike. Would any sane person whose property rights were involved in a lawsuit knowingly, and without objection, permit a man to serve as a juror thereon who had, within three years next preceding, assisted in the wanton destruction of his property, although such juror should answer upon his voir dire examination that he was not biased or prejudiced in any way? We think not. It is conceded by plaintiff’s counsel that at the time of the strike Moore had resentment, but it is claimed, without any evidence to that effect except the sworn statement of Moore himself, that it is probable that, after the lapse of three years, with conditions changed, his feeling of prejudice had subsided. Men differ so much in respect of their ability and disposition to bear malice, that it will not do to say or assume that any particular person, who has become prejudiced against another, ceased to bear malice against him at any particular time, if at all. Besides, the general rule is that a certain state of facts once shown to exist is presumed to continue until the contrary is shown. In Pearcy v. Insurance Co., 111 Ind. 59, a juror named Bowman was asked whether he or any member of his family held any life insurance policy issued by the defendant. Appellee’s affidavits showed that he was asked, “Did any of you hold a policy of life insurance issued by the defendant?” Bowman’s affidavit stated that he was asked, “Did you hold a policy of life insurance issued by the Michigan Mutual Life Insurance Company?” but he did not deny the admitted fact that he had taken out a policy for the benefit of his wife. He also stated in his affidavit that he was influenced solely by the law and the evidence in making his verdict. The court said: “We think that the question asked the juror required him to answer as to the policy taken out on his own life for the benefit of his wife. This is our conclusion upon the assumption that the question was that which appellee maintains it was. It was not incumbent upon appellee to minutely cover by a long series of specific questions all phases of the subject, but it was enough to ask such a question as would indicate to the mind of a fair and reasonable man what information the examining counsel sought to elicit. It seems dear that such a question as that asked Bowman ought to have drawn from him the fact that he had taken out a policy on his own life for the benefit of his wife, for the question certainly indicated that information as to his interest in the company, as well as his connection with it, was sought by the counsel conducting the examination. ’ ’

In the case of Heasley v. Nichols, 80 Pac. 769, similar in many respects to this case, it was said: “If the true condition of his [the juror’s] mind had been made known to the court before he was accepted ás a juror, he would have'been excluded at once. The parties had a right to rely upon his sworn statement, and waived nothing by accepting him as a juror. But when the attention of the court was called to’ the condition of the juror’s mind in a proper way, it was the duty of the court to rectify the mistake by granting a mew trial.”

In Theobald v. Railroad, 191 Mo. 1. c. 416, it is said: There is no feature of a trial- more important and more necessary to the pure and just administration of the law than that every litigant be accorded a fair trial before a jury, who enter upon the trial wholly disinterested and unprejudiced,” and “it is for the court, and not for the juror, to determine Ms qualification. The determination should not be made to depend upon the conclusion of the juror as to whether or not he could or would divest himself of a prejudice which the evidence shows existed.”

That the juror was prejudiced' against the defendant, and was not for that reason a competent juror, was shown by the affidavits filed in the court below,- and this fact was further emphasized by the exceedingly large and unjustifiable verdict rendered by the jury. That the defendant would not have permitted Moore to serve on the jury, without objection, had its counsel been in possession of the facts disclosed by the affidavits, no one will doubt, and when the attention of the court was called to these facts it should have rectified the mistake by granting a new trial.

Plaintiff’s instruction number 5 is criticised upon several grounds, only one of which, the third, will it be necessary to notice. By this instruction the plaintiff was allowed to recover, by way of damages, “any expenses necessarily incurred for nursing.” The only persons who attended plaintiff as nurses were her daughters, members of her family. There was no express contract to pay them for their services, and defendant contends that the services are presumed to have been rendered gratuitously.

As' a rule such services involve no legal liability upon the part of the person for whom rendered, and, therefore, afford no basis for a claim. In Voorheis. on .Damages for Personal Injuries, sec. 18, it is said: “The injured person cannot recover as expenses the value of the services of any one of his family in nursing him, unless there was an express agreement by him to pay therefor. Such nursing involves no legal liability on his part, and therefore affords no basis for a claim against the defendant, as for expenses paid. In the absence of an express contract, the law will not presume one, so long as the family relation continues. An injured person may hire an adult member of his family to nurse him, or to prescribe for him as a physician, in the same manner and with like effect that he may hire a stranger. ’ ’

The same rule is announced in Goodhart v. Railroad, 177 Pa. St. 1. c. 14, in which it is said: “The plaintiff cannot recover for the nursing and attendance of the members of his own household, unless they are hired servants. The care of his wife and minor children administering to his needs involves the performance of the ordinary offices of affection, which is their duty; but it involves no legal liability on Ms part, and therefore affords no basis for a claim against the defendant for expenses incurred. A man May hire Ms own adult children to work for Mm in the same manner and to the same effect that he may hire other persons, but in the absence of an express contract the law will not ■presume one, so long as the family relation continues.”

This cape was followed and approved by this court in Morris v. Railroad, 144 Mo. 500. That the authorities upon this subject are not entirely uniform may be conceded, but we think the rule announced in the Morris case and by the authorities which it follows is sustained by the better reason. It follows that said instruction is erroneous.

The verdict is so manifestly excessive and so out of reason when considered in connection with the facts in relation to plaintiff’s injuries, their nature and extent and their probable effect upon her health in the future, and the expenses'necessarily incurred for medical treatment, that the ends of justice will be best sub-served by reversing the judgment and remanding the cause for another trial.

The judgment is reversed and the cause remanded?

All concur.


source: Caselaw Access Project

author: GANTT, J.

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    ELIZABETH O ’GARA v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division Two,
    June 11, 1907.
    1. STREET CARS: Care Due Passengers. Street car companies as carriers of passengers are held to the highest care and skill which prudent men would use and exercise in a like business and under like circumstances.
    2. -: -: Prima-Facie Case. A passenger on a street car makes out a prima-facie case by evidence showing that, without fault on his part, he was injured by the ‘overturning or breaking down, or derailment of the car, and the burden is then cast upon the carrier of relieving itself of responsibility by showing that the injury was the result of an accident which the utmost skill, foresight and diligence could not have prevented.
    3. -: -: -: Demurrer to Evidence. The defendant . was the owner of and in complete control of the street railway track on which it propelled its electric cars; plaintiff was a passenger in one of the cars, and while sitting in her seat she was injured by the sudden derailment of the car and its collision with a telegraph post on the side of the street. Held, that plaintiff, by showing these things, made a prima-facie case of negligence against defendant, and the law then cast the burden on defendant of showing that the accident was not the result of a lack of the high care and vigilance which the law requires at its hand, and its demurrer to the evidence was properly overruled.
    4. -: -: -: Tortious Act of Another. Where plaintiff, a passenger on a street car, makes out a prima-facie case showing her injuries were caused by a derailment of the car, defendant may excuse itself by showing that plaintiff’s injury was caused solely by the tortious act of a boy who placed a brick on the track, but to do that it must show .that its own negligence, in not discovering the tortious act of the boy and in not stopping the car after discovering it, did not concur with that tortious act to cause the _ bailment or injury.
    5. -: -: -: -: Discovery: Stopping Car. Where the evidence authorizes the jury to find that a motorman saw a brick placed upon the track fifty feet in front of his car, he was guilty of negligence in not attempting to stop his car; and the burden is on defendant to show that, by the use of the appliances at hand, he could not have stopped it in that distance. And where it fails to make that showing, the case must go to the jury.

      6. -: —-: -: -: Children on Track: Exoneration. The fact that there were school children playing on the track and that the ordinance required the motorman to keep a vigilant watch for children on or approaching the track and to stop the ear in the shortest time possible, did not exonerate the motorman from keeping his eye on the track and seeing a boy place a brick thereon; and an instruction which seeks to relieve defendant if the motorman was endeavoring to obey that ordinance,- and for that reason did not see the boy, should be refused, as being argumentative and as stating no defense.
    7. EXCESSIVE VERDICT: $7,500. It is for tbe jury to decide the amount of the plaintiff’s injury, and unless their verdict is such that the appellate court can say that it smacks of bias and prejudice, or that it is so unreasonable, in view of all the evidence, that it ought not to .stand, it will not interfere. And where a very healthy woman, 35 years old, suffered a miscarriage as a result of her injuries, and her health has since been poor and she has undergone great pain and suffering, and there is some evidence that her injuries are permanent, the court will not declare a verdict for $7,500 excessive.
    Appeal from St. Louis City Circuit Court. — Row. Warwick Hough, Judge.
    AEEIEMEO.

      Boyle <& Priest, Edward T. Miller, F. 8. Whitelaw and T. E. Francis for appellant.
    (1) The court erred in refusing appellant’s instruction in the nature of a demurrer to plaintiff’s evidence, and also erred in refusing the peremptory instruction at the close of all the evidence. Hedrick v. Railroad, 195 Mo. 440; O’Malley v. Railroad, 113 Mo. 319 ; Hite v. Railroad, 130 Mo. 132; Sullivan v. Railroad, 133 Mo. 1; Chandler v. Gas Co., 174 Mo; 321; McGauley v. Railroad, 179 Mo. 583; Reno v. Railroad, 180 Mo. 469; Roenfeldt v. Railroad, 180 Mo. 554; Engleking v. Railroad, .187 Mo. 158; Theobald v. Railroad, 191 Mo. 396; Gillespie v. Railroad, 6 Mo. App. 554; Kennedy v. Railroad, 43 Mo. App. 1; Zurfluh v. Railroad, 46 Mo. App. 636; Krone v. Railroad, 97 Mo. App. 612; Elwood v. Railroad, 90 111. 397; Armstrong v. Railroad, 165 N. Y. 641; LaFond v. Railroad (Midi.), 92 N. W. 99; Frederick v. Railroad (Penn.), 27 Atl. 691; Deyo v. Railroad, 34 N. Y. 9; 1 Thompson on Negligence, 47 and 61; LeBaron v. Ferry Co1., 11 Allen 312; Booth’s Street Railway Law, sec. 361; Wharton on Negligence,, sec. 661; Railway v. Gibson, 11 Am. and Eng. R. R. Cases, 142; Nellis, Street Surface Railroads, sec. 32; 2 Wood’s Railway Law, sec. 302; Ja-. cobski v. Railroad, 64 N. W. 601; Potts v. Railroad, 33 Fed. 610; Logan v. Railroad, 183 Mo. 582. (2) The court erred in giving plaintiff’s instruction 1. It is not supported by the testimony, and casts on defendant the burden of proof on mere proof of a derailment, without regarding the testimony given by plaintiff and her witnesses in explanation of the derailment. Logan v. Railroad, 183 Mo-. 582; Feary v. Railroad, 162 Mo. 75; Kniche v. Whiteman, 86 Mo. App. '568. (3) The court erred in refusing to give defendant’s refused instructions 1 and 2. They present the issues tendered by defendant and the law applicable thereto. They present defendant’s theory, and are bottomed on the evidence. Allen v. Railroad, 183 Mo. 411. (4) The verdict is grossly excessive. The medical testimony establishes that plaintiff is practically well, and at most, is only entitled to nominal damages. No injury, except a miscarriage, is shown, and miscarriages are common and usually are followed by no' ill effects.

      A. B. Taylor for respondent.
    A carrier of passengers, whilst not an insurer of the safe carriage of the passenger, is liable for the slightest neglect of the carrier either in management of the carrier’s vehicle by its servants, or soundness of its vehicle or carriage. This seems to have been the rule laid down in the earliest period of American decisions. Stokes v. Sallonstall, 13 Peters 191; Lemon v. Chanslor, 68 Mo. 354; Gilson v. Railroad, 76 Mo. 535. And when the vehicle of the carrier breaks down, or leaves the track, sustains a collision or injures the passengers in any manner inconsistent with a sound carriage and the high care in its management, such as would be used by a very prudent carrier, then the burden is shifted to'the carrier to show that the accident and injury of the passenger occurred without the slightest neglect on its part. Lemon v. Chanslor, 68 Mo. 354 ,• Hipsley v. Railroad, 88 Mo. 353; Furnish v. Railroad, 102 Mo. 453; O’Connell v. Railroad, 106 Mo. 482; Smith v. Railroad, 108 Mo. .243; Jackson v. Railroad, 118 Mo. 224; Clark v. Railroad, 127 Mo. 208; Och v. Railroad, 130 Mo. 51; Heyde v. Railroad, 102 Mo. App. 541. What was there unavoidable about the derailment of this car and injury to this plaintiff? The motorman wouldn’t say he couldn’t have seen the little boy put the brick on the track fifty feet ahead of his car. He wouldn’t say he couldn’t have stopped his car in five or ten feet, though to have made even a show of extenuation or excuse for the derailment, defendant was bound to show this. It simply declines to furnish any excuse for the derailment. Mash saw the brick put on the track fifty feet ahead of the car.. Why didn’t the motorman see it? Gadden swears the day was bright and clear and the brick was visible a half a block. Why didn’t the motorman see and avoid it? Is it hot true and consistent with all the evidence that he did see it and instead of removing took the chance of running over it, as he told Cliff as Cliff testified. Appellant makes no show of an excuse for the injury to plaintiff, such as the law exacts of a passenger carrier.
   GANTT, J.

This is an action by the plaintiff, Mrs. O’Gara, a married woman of the age of thirty-five years, to recover damages for personal injuries sustained by her while a passenger on one of defendant’s street cars, south-bound on Fourteenth street, at the intersection of Fourteenth and Mallinckrodt streets, in the city of St. Louis, on the 23d day of September, 1903, by the derailment of the car and the collision of that car with a telegraph pole at or near the southwest corner of Fourteenth and Mallinckrodt streets. The action was originally brought against both the Transit Company and! the United Railways Company of St. Louis, and on the trial of the case, the United Railways Company obtained a dismissal under the ruling of the circuit court, and the cause proceeded to verdict and' judgment against the Transit Company alone.

The petition, in substance, alleges that the defendant, at all the times stated, was a corporation by the virtue of the laws of Missouri, and owned, used and operated the railway and car mentioned, for the purpose of carrying passengers for hire from one point to another in the city of St. Louis. That on the 23d day of September, 1903, the defendant, by its servants in charge of this south-bound car on Florissant avenue ini the city of St. Louis, received the plaintiff as a passenger thereon, and for a valuable consideration, by the plaintiff paid to the defendant, defendant undertook and agreed with the plaintiff to carry her safely to her point of destination on defendant’s line, to-wit, Eighth and Olive streets, but that defendant, unmindful of its duty in the premises, did by its servants in charge of said car so negligently and carelessly manage -and control the same and by its, servants in charge of maintaining its tracks and cars in repair did so negligently manage said track and cars and machinery and appliances, that said car left said track at a point near Fourteenth and Mallinckrodt streets, and became derailed and ran across the street and collided with a telegraph pole and thereby plaintiff was thrown down, striking the seats and timbers of said car, and was greatly and permanently injured upon her body, abdomen, back and spine and chest, and sustaining permanent internal injuries, and her nervous system was permanently injured, and she being pregnant was, by said injuries, caused to suffer a miscarriage of a child about three months advanced towards birth, and plaintiff was otherwise injured and bruised upon, her body and head; that by her injuries so sustained, the plaintiff has suffered and will suffer great pain of body and mind, and her health and strength has been permanently destroyed, and her capacity to labor and earn money has been permanently impaired, to her damage in the sum of fifteen thousand dollars, for which she prays judgment.

The answer of the defendant was a general denial.

The trial of the cause resulted in a verdict for the plaintiff in the sum of seven thousand, five hundred dollars.

There is practically no conflict in the testimony. The evidence without dispute showed1 that the defendant was operating the ear and railway in question on the 23d day of September, 1903, and that plaintiff on that day was received by the defendant’s servants as a passenger on one of defendant’s cars south-bound, at College and Florissant avenues; that she paid her fare as such passenger; that while she was such passenger, on said1 car, at or near the north crossing of Fourteenth and Mallinckrodt streets, the car left the track and ran south across Mallinckrodt street and collided with a telegraph pole near the southwest comer of the two streets, and that thereby plaintiff was injured. The nature and extent of plaintiff’s injuries will be considered in the course of the opinion in the discussion of the contention by defendant that the damages awarded her by the jury were excessive.

As to the cause of the derailment, the plaintiff testified that she did not know what was the canse, she did not examine the track, she heard that there was a stone on it but she did not see it herself, as there was quite a crowd standing around there. There were a number of people standing around when she recovered her consciousness, and they said a brick was the cause of the derailment. On cross-examination she stated there was a school-house right near where this accident occurred.

Warner Cliff, a police officer, testified that he was on the car at the time of the accident and made an examination to ascertain the reason for the car leaving the track, and he saw a brick there just where the trucks left the track; the broken piece of the brick was still there on the track immediately after the derailment. The testimony showed that the accident occurred before noon of the day; that it was broad daylight at the time it happened, a bright, pleasant day.

Thomas Gadden, a passenger, at the time plaintiff was hurt, testified that he saw the motorman trying to stop the car after it left the track until it got within four or five feet of the telegraph pole. He judged that the car ran about thirty feet before it struck the pole after leaving the track. . He heard the bell ringing just before the car left the track. After the accident he saw’ a red brick on the track, the brick was right on the rail, and at a point where the wheel left the track; part of the brick was crushed and lying on the rail. The track at the point where the car left it, was straight, there was no curve and no other railroad crossing there. Asked how far he could see an ordinary-sized brick on the track in front of the car, he answered he could see it half a block, that his eyesight was ordinarily good.

On the part of the defendant, Mr. Edward J. Mash testified that he was a -passenger on the car in question, having boarded it at John and Florissant avenues; that he was sitting in the front seat of the car and saw a small boy run from the west side of Fourteenth street to the track and lay a vitrified paying brick on the track and then run away; that there was a school right near the track and a number of children were playing on the track and on both sides of it, and. the car was running at a moderate rate of speed and was only forty or fifty feet from the point on the track where the brick was laid when it was placed there. When the car struck the brick and left the track the motorman immediately wrapped, his brake and tried to stop the car, which was going down grade. The brick was eight inches long, two inches thick and four inches wide and hard as iron.

Malcomn R. Rosson, the- motorman in charge of the car, stated that the ear was running about five miles an hour. He did not see the brick placed on the track, but saw it on the track in a crushed condition after the derailment. The car and the track and the car machinery were in good condition. He testified) that there was a school near the place of the accident and a number- of children were playing around the track on both sides. He was ringing -his gong and looking out for the children and did not see the boy run out and place tbe brick, which derailed the car, on the track.. He was on the platform of the car trying to stop it when the car struck the telegraph pole. He wrapped the brake and reversed his car, but the trolley came off- when the ear left the track and so the reverse was of no effect.

' Kromer, the conductor, saw the crushed brick on the track after the accident and saw the children prior thereto playing around the track and heard the motor-. man ring the gong.

John- Wallace, defendant’s track foreman, testified that the track was in good condition at the time of the accident, and no car had been derailed there since.

Jacob G-ell, a car inspector and repairer for tbe defendant, examined the car before and after tbe accident and found it in good condition in all respects except that after tbe accident tbe dash board was damaged by coming in contact with tbe telegraph pole.

Officer Cliff recalled on part of tbe plaintiff testified that be beard tbe motorman say be saw tbe boy put tbe brick on tbe track.

I. Did tbe circuit court err in refusing to sustain tbe defendant’s demurrer to tbe plaintiff’s evidence, either at tbe close of tbe plaintiff’s ease or at tbe close of all of tbe evidence ¶ This question must be answered in tbe light of tbe law governing defendant’s liability as a carrier of passengers. It is tbe settled law of this State that street car companies as carriers of passengers are held to tbe same degree of care and vigilance in preventing injuries to their passengers as is required of other railroads carrying passengers for hire, that is to say, the highest care and skill which prudent men would use and exercise in a like business and under like circumstances. [Jackson v. Railroad, 118 Mo. 199; O’Connell v. Railroad, 106 Mo. 482; Redmon v. Railroad, 185 Mo. 1. c. 9; Allen v. Railroad, 183 Mo. 411, 1. c. 433.]

In Hipsley v. Railroad, 88 Mo. 1. c. 352, it was said: “In tbe case of Lemon v. Cbanslor, 68 Mo. 341, we bad occasion to consider tbe rights of a passenger and tbe duty under the law which that relation cast upon tbe common carrier, and it was there held that when the evidence shows that a passenger, without fault of his own, receives injury by tbe overturning or breaking down of tbe vehicle in which be is being carried, a prima-facie case is made out for him, and tbe onus is cast upon tbe carrier of relieving himself of tbe responsibility by showing that tbe injury was tbe result of an accident which tbe utmost skill, foresight and diligence could not have prevented. This rule was applied in a case where horse-power and a hack were used by the carrier for carrying passengers, and it applies with equal if not greater force when the more powerful instrumentality of steam is used as the motive power. While carriers are not insurers of the absolute safety of passengers, and are not responsible for inevitable and unavoidable accidents, regard for the safety of human limb and life has led to the adoption of the rule announced. It follows from this ruling that plaintiff, having offered evidence tending to prove that he was a passenger on the defendant’s train, and that he was injured without any fault on his part, by the derailing of the train, made out a prima-facie case entitling him to a verdict, unless it was rebutted and overthrown by the evidence of defendant showing that the accident was not the result of that want of care and vigilance which the law made it obligatory on defendant to bestow.”

In Redmon v. Railroad, 185 Mo. 1. c. 9, the doctrine just cited was followed and approved. In Carpue v. Railroad, 5 Ad. & El. (N. S.) 747, where the injury was caused by a train running off the track and overturning the carriage in which the plaintiff was a passenger, Denman, C. J., told the jury that: “It having been shown that the exclusive management, both of the machinery and the railway, was in the hands of the defendants, it was presumable that the accident arose from their want of care, unless they gave some explanation of the cause.”

In the case at bar, the defendant was the owner of and in the exclusive control of the track on which it propelled its cars; plaintiff was a passenger in one of its cars and while sitting in her seat she was injured by the sudden derailment of the car and its collision with a telegraph post on the side of the street. In short, under the plaintiff’s case, it appeared that the injury arose from apparatus wholly and entirely under the control of the defendant and furnished and operated by it, and such being the case, we think the court committed no error in overruling the demurrer to the plaintiff’s evidence, because the plaintiff had made out a prima-facie case of negligence against the defendant and the burden was cast upon the defendant of showing that the accident was not the result of that want of care and vigilance which the law makes it obligatory on defendant to bestow. [Hipsley v. Railroad, supra; Redmon v. Railroad, supra.]

Defendant concedes that its duty is properly declared-in the foregoing cases, but it insists that upon all the evidence plaintiff ought not to recover because the plaintiff’s injuries were the resuit of the tortious act of a stranger over whom it hád no control, to-wit, the school boy who placed- the brick on the track.

The plaintiff having made a prima-facie case, the burden devolved upon the defendant of showing that the derailment of its ear was caused by the tortious act of the boy, and if.it could establish that plaintiff’s injury was caused solely by the act of the boy or some third person placing the brick upon the track then it must have shown the good legal excuse for the exemption from liability. The law makes each man liablé for the consequences of his own negligent and wrongful act, but it does not attempt to hold him for the misconduct of another over whose acts he has no- control, unless his negligence- concurs with that other in causing damage. [Wright v. Railroad, L. R. 8 Ex. 137; Bailey v. Railroad, 152 Mo. 449.] It is in view of this principle that the defendant insists that the court should have given a peremptory instruction upon the whole evidence in the case. The learned counsel for the defendant says: “What caused the derailment, there can. be but one answer, the brick placed on the track by a boy. The question then arises, can the appellant, under these esthblished facts, be liable to the plaintiff for injuries sustained in an accident so caused? And the answer must depend on how another question is answered, namely, did the motorman see or by the exercise of ordinary care could he have seen the brick on the track in time to avert the accident?” Counsel then proceeds to argue that the motorman testifies he did not see the boy place the brick on the track, but concedes that the witness for the plaintiff in rebuttal testified that the motorman said he saw the boy put the brick on the track, but counsel argues that whether the motorman saw or did not see the brick placed on the track, still there is no testimony to show that after the brick was placed on the track he could have stopped the car in time to avoid the accident. If we are to assume the absolute truthfulness of the witness for the defendant, Mr. Mash, the car was forty or fifty feet from the boy when he placed the brick on the track. It was a bright, clear day and the evidence on behalf of the plaintiff tended to show that the brick could be seen for a half block. The track was straight at this place with no curve, and the witness Mash was sitting in the ear and certainly did not have as good or at least' was not in a better position to see the brick placed on the track than the motorman who was standing on the front platform of the car. The motorman testifies that his car was moving at five and one-half miles an hour at the outside. He testified that he saw some children playing around there, and there was one boy on the left-hand side of the track and another came out on the right-hand side, and there were some little children, little girls, just the other side of them on the east side of the track playing, and he started to wind the brake to keep from running on them and did not think about what the boy was doing or whether he intended to do anything or not. On cross-examination, he said: “I saw a boy when I was about fifty feet of him, about to go out there. I did not see him put the brick oni the track. I saw him running out there on the track. I saw him out there and I, rang my gong and he wheeled and ran away. ” Asked if he could have seen the brick if he had looked, he answered, “Well, I did not see it.” On redirect examination he stated “that the boy was about fifty feet from me when I saw him run out to the track and then run back. At the time he stopped and put it on, I suppose I was thirty feet from him, from the time he started away.” Asked if he could not have stopped the car moving five miles an hour or five and a half miles an hour, on a good track with the light load that he had, within five feet, he answered he could not say, hut that he could not have stopped it on a dead still in the length of the car. On the other hand, the officer stated that Rosson, the motorman, stated to him and Mr. Gadden, that he saw the hoy put the brick on the track, hut that he thought that he would run over it. Unquestionably it is the law as declared by the court that it was the duty of the defendant to maintain its track in safe condition, and while it was not to blame in the first instance for the tortious act of the little hoy in placing the brick on the track, it was its duty, if by the exercise of ordinary care its servants could have seen the brick upon the track in time to have avoided running- over it and thereby derailing its car, to have done so, and this issue was submitted to the jury in the instruction given on behalf of the defendant. If it was impossible, with the means and appliances then at his command, for the motorman to have stopped the car in time to avoid the derailment, then the defendant was not liable. But the rule already stated which would exonerate the defendant on account of the little boy placing the brick upon the track only clothes the defendant with immunity when its own negligent act does not concur with the tortious act of the stranger in producing the damage. Keeping in mind always the obligation which the law places upon a common carrier of passengers to exercise that high degree of care in maintaining its tracks that a very prudent man would in like circumstances, it is obvious that it was the duty of the defendant not only to have a well-constructed track in the first instance, but to use á high degree of care in keeping it free of obstacles which might cause a derailment of its cars. This was pithly put by Baron Bramwell, in Wright v. Midland Ry. Co., L. R. 8 Ex. 1. c. 143, wherein he says: a Then Mr. Forbes puts this case. He says, supposing a carriage had been left by the North Western Company on the railway; that would be a nonfeasance, and there would be no liability upon the part of the defendant, because they did not put it there, and no liability upon the part of the North Western Company because they had no privity. I dissent from both propositions. If it had been left by the North Western Company upon the line it would have been the duty of the defendants to have got it out of the way, and if they had not done so- they would not have had the line in the condition in which it ought to have been. The case would then have been the same as Railroad v. Blake, 7 H. & N. 987, because the undertaking is that the line should be in fit condition for the passage of the plaintiff.” And so we say here, that while the defendant cannot be held for the tortious act of the little boy in placing the brick upon its track, if its motorman could not have discovered it by that high degree of diligence and care which every careful railroad employee would have exercised in the same or similar circumstances, still if by the exercise of such care its motorman could have discovered the brick upon the track in time to have averted a derailment of the ear, then the law holds the defendant liable for the failure of its servants to exercise such care. Does the defendant’s own testimony on this point exonerate it? If as the jury were authorized to find from the evidence, the motorman. saw the brick placed upon the track fifty feet in advance, of his car, obviously he was guilty of negligence in not attempting to stop his car and not avoiding a derailment by running over the brick. Counsel for defendant urge that there was no evidence- that he could have stopped the car in time to have averted the accident even if he had seen the brick, but on this point the burden was on the defendant and the only proof attempted to be made on that point was that brought out by the plaintiff, and the motorman testified that he did not know within what space he could have stopped his car under the circumstances, and so there is no affirmative proof on the part of the defendant that the car could not have been stopped within fifty feet, or at least brought to such a slow rate of speed that the car would not have been derailed by .striking it, and from the force with which the car was hurled from the track and against the telegraph pole and across the. street, it seems evident that no effort whatever was made to check the speed of the car, and thus we have a case in which the joint tort of the little boy and the negligence of the motorman combined to produce the damage and no authority is cited, or in our opinion can be cited, which under such circumstances, would exonerate the defendant for its negligent act in contributing to the injury of the plaintiff and the derailment of the ear.

We are cited by the learned counsel for the defendant to a large number of eases, among others Theobald v. Railroad, 191 Mo. 395, and McGauley v. Railroad, 179 Mo. 583, but in each of those cases, it will be observed, the plaintiff was not a passenger and no such high degree of care was required on the part of the defendant in .those cases as the law exacts when a passenger is injured by the derailment of a car, and in each of those cases the evidence disclosed that the accident occurred at night when it was very dark and the motorman did not discover the wagons upon the track until it was too late for him, by the.exercise of ordinary care, to have avoided striking the wagon. And the facts in each clearly distinguish them from the case at bar, in which all the evidence shows that the accident happened on a clear, bright day, on a perfectly straight track, and when the circumstances of the children being about the track of themselves call for the exercise of care and diligence at the. point, and when the evidence shows that a passenger in the ear saw the boy place the brick upon the track fifty feet in advance of the car, and the motorman standing on the front platform had the same or better opportunity to observe the tortious act. Neither are the cases of Sullivan v. Railroad, 133 Mo. 1, and Woas v. Railroad, 198 Mo. 664, in both of which the company was entirely guiltless of any negligence whatever, and the acts which caused the injuries in those cases were the sole wrongful acts of a third party, at all like the case at bar. Accordingly we think the circuit court committed no error in refusing the peremptory instruction requested by the defendant at the close of all the testimony.

II. The defendant assails the instruction given for the plaintiff because it told the jury that if they find and believe from the evidence that while the plaintiff was a passenger upon said car, and before she reached her destination, to-wit, at or near Fourteenth and Mallinckrodt streets, said car left the track and became derailed and struck a post and that thereby plaintiff was caused to be thrown from her seat in said car and to sustain the injuries mentioned in the evidence, she was entitled to recover unless the defendant showed by a greater weight of evidence that it could, not have prevented such derailment by the exercise of the high degree of care that a very careful railroad would employ under the same or similar circumstances in maintaining its tracks in safe condition and in the management and control of said1 car, and if the defendant has not so shown, the verdict should be for the plaintiff. For the reasons already given we think there was no error in this instruction, but that it announces a well-settled principle of law, and the duty due from a common carrier of passengers to a passenger on its cars.

III. It is next insisted that the court erred in refusing to give instructions one and two requested by the defendant. To properly understand this assignment it should be noted that the court at the request of the defendant gave the following instructions: 3d. “If the jury find from the evidence that defendant’s car was caused to leave the track by a brick and to collide with the pole, thereby causing plaintiff to be shocked and injured, and if you further find from the evidence that the boy suddenly ran from or near the sidewalk with said brick and placed the same on the track so near to defendant’s car that it was impossible for defendant’s motorman with the means and appliances then at his command to stop' the car in time to avoid the derailment of said car then plaintiff cannot recover and your verdict will be for the defendant.” 5th. “You are instructed that there is no evidence in this case that the defendant’s car or its aptplianees were unsafe nor is there any evidence in this case that the rails of the defendant’s track were defective, and the court instructs you that you cannot find in favor of the plaintiff and against defendant upon the ground that the car or its appliances were unsafe or the rails of the track were defective.” The defendant also asked the following instruction: 4th. “If the jury find from the evidence that defendant’s car was caused to leave the track by the brick mentioned in the evidence, then plaintiff cannot recover in this action, nnless you further find from the evidence that said motorman either saw said brick being placed on the track or saw it after it was placed thereon for a sufficient length of time to permit him with the means and appliances at his. command to stop the car in time to avoid collision with it.” The court declined to give it in this form, but amended it so that it read as follows: “If the jury find from the evidence that defendant’s ear was caused to leave the track by the brick mentioned in the evidence- then plaintiff cannot recover in this action, unless you further find from the evidence that said motorman either saw or by the exercise of reasonable diligence could have seen said brick being placed on the track, or saw or by the exercise of reasonable diligence could have seen it after it was placed thereon for a sufficient length of time to permit him, with the means and appliances at his command, to stop the car in time to avoid collision with it.” The instruction number one refused by the court and asked by the defendant, instructed the jury that while it was the duty of defendant’s motorman to exercise that degree of care that a very careful motorman would be expected to use under the same or similar circumstances to avoid injury to plaintiff and other passengers, it was also his duty to keep a vigilant watch for persons upon or approaching defendant’s track, especially children, and if they find from the evidence that immediately before the accident complained of, children were running and playing upon or near defendant’s track so as to be in danger of being struck by defendant’s car, and defendant’s motorman seeing said children, was putting his car under control and sounding the gong in order to give the children warning of his approach, and while so engaged and employed, failed to see the brick on said track, or its being placed thereon, and that he did not know that a brick had been placed upon the track until after the derailment of the car and that thereafter he did all that he was able with his appliances to stop the car, then, plaintiff conld not recover. And the second instruction was along the same line, to-wit, that it was the duty of the motorman to sound the bell or gong on .his car and to keep the same under control such as would enable him to avoid injury to children, and that if he had seen the children and was in the performance of his. said duties and did .not expect or anticipate that an obstacle would be placed upon the track and while he was so engaged a small boy ran suddenly from the sidewalk to the track and placed the brick upon the same and the motorman did not see the brick or know of its being on the track until after the derailment of the car, and thereafter he used all the means and appliances at his command to stop the car, then plaintiff could not recover. We think the court committed no error in refusing these two instructions. The instructions given hy the court for the plaintiff and the defendant fully covered all the issues in the case and the vigilant watch ordinance in no manner affected it. The instructions amounted to no more than an argument why the motorman did not see the boy place the brick upon the track, and there was nothing in his duty under that ordinance which exonerated him from his duty tó keep his eye upon the track and see if there were any obstructions thereon. Besides, all these matters were in evidence, and under the instructions given by the court it was for the jury to determine whether the motorman by the exercise of reasonable diligence could have seen the brick placed on the track, or have seen it after it was placed thereon for a sufficient length of time to. permit him with the means and appliances at his command to stop the car. The instructions given fully covered the case and it was not error to give others which were calculated to excuse a non-performance of his duty to his passengers. •

IV. Finally, it is insisted that the verdict of the jury is grossly excessive. As to this, the evidence for the plaintiff tended to prove that she was a married woman, thirty-five years of age. At the time of her injury she was in perfect health and strength, had never had any occasion to have a family physician. The evidence tended to prove that by the shock of the collision she was violently thrown from her seat in the car against the seats and timbers of the car, striking upon her abdomen and right chest, and was rendered unconscious for a few minutes; that she was three months advanced in pregnancy; that she went immediately home after her injury and sent for a doctor and had a miscarriage the evening after the injury; that she was confined to her bed for six weeks; that since she has been able to be up out of bed her health has been poor, and she has been unable to do anything, and has suffered great pain. Her physician, a graduated physician and surgeon who had practiced his profession eleven or twelve years, testified that she had had a miscarriage, and that he curetted the womb, and that he had continued to treat her up to the time of • the trial, that her trouble requires, continued treatment, and that she could never get entirely well without an operation, which would necessarily be a dangerous one. On the other hand, the defendant produced the testimony .of two expert witnesses who examined the plaintiff under the order of the court, and testified that she did not have a retroverted womb. The jury heard the evidence of these physicians on both sides, as also' the testimony of the plaintiff herself, and made their estimate of her damages. Under our Constitution and laws; it was the duty of the jury to determine this question and unless their verdict is such that this court can say that it smacks of bias or prejudice or that it is> so unreasonable that it ought not to stand, in view of all the evidence, we would not be justified in- interfering with it and substituting our judgment for that of the triers of the fact. That the plaintiff has suffered a serious injury and been compelled to undergo much pain and suffering, we think is, incontrovertible. This verdict received the approval of the judge who presided Pn the trial and in our opinion we would not be justified in declaring it excessive.

The judgment of the circuit court should be and is affirmed.

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