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    ANDREW J. RICHARDSON v. ST. LOUIS & HANNIBAL RAILWAY COMPANY, Appellant.
    Division Two,
    November 23, 1909.
    1. NEGLIGENCE: Choosing Dangerous Way: Question for Jury. The fact that the brakeman was injured in coupling cars does not of itself show that he was guilty of contributory negligence in choosing a dangerous way when a safe one was open to him. The result is not the true test. Where the object was to couple two cars, and their drawheads were separated only by a short link which became fastened between them crosswise, and it was the judgment of both brakemen that the link might be adjusted by “slacking back easy,” and then the coupling be effected, and that was considered a safe plan, it is a question for the jury to determine whether the brakeman who gave the signal and undertook to make the coupling, and was injured by the cars coming together, was guilty of contributory negligence in pursuing that way, there being another way that was safe.
    2. -: Comparative. There is no comparative negligence in this State. Courts do not undertake to sever, apportion and discriminate between two or more directly negligent acts so as to decide which act caused the injury. So that where the brakeman, before going between the cars to adjust a link between their drawheads, gave a signal to the engineer to “slack up easy,” and both the fireman who received the signal was negligent in transmitting it to the engineer, or if properly transmitted the engineer was negligent in not obeying it, but pushed the cars together, and the brakeman was negligent in going between the cars to adjust the defective automatic coupler and also in putting his hand in the three-inch space between the drawheads, he cannot recover for the injury to' his hand caused by the cars coming together. But where the evidence is that if the train had separated, or “slacked back easy,” there was no particular danger, the brakeman cannot, though the coupler was defective, be held to be negligent as a matter of law, but the question is one for the jury.
    3. -: Concurrent Acts. Where the charge is that the plaintiff brakeman, in attempting to adjust the link of a car coupler, was injured through the failure of the engineer and fireman to properly obey the plaintiff’s signal to “slack back easy,” it is not necessary to his case that both the engineer and fireman should have been guilty of the same act of negligence, or each of a distinct act. If either of them, in disobedience to the signal, either directly or indirectly, caused the cars to come together and thereby to injure the plaintiff, then the railroad company 'is liable, unless the plaintiff was guilty of contributory negligence; and an instruction requiring the jury to find both the engineer and the fireman were negligent required them to find more than was necessary, and of that the defendant cannot complain.
    4. -: Refusing Instructions: Matter Covered by Another. Where the subjects embraced in an instruction asked are fully covered by another given, it is not error to refuse it, though in some respects it is more elaborate than the one given.
    5. -: Pleading: Variance: Impossible Negligence of Both Engineer and Fireman: Fireman as Brakeman’s Agent. The petition charged that plaintiff brakeman, undertaking to couple cars, gave a signal to “slack back easy,” in order that he might adjust the coupler, and that through the negligence of the engineer and fireman in disobeying the signal, the cars were brought together and he was injured. The engineer could not, from his position, see the signal, and the fireman testified that he transmitted it correctly to the engineer and the engineer that he obeyed it as transmitted to him. It is contended that both engineer and fireman could not have been negligent; that the fireman was the agent of the brakeman to transmit the signal, and if he did it wrongfully and the engineer obeyed it as received, the company is not liable. Held, first, that any number of distinct acts of negligence which are of the same character and naturally lead up to and contribute to the same accident, may be charged in the same count of the petition, and proof of any one or all will he sufficient to support a general verdict; second, it is the duty of both the engineer and fireman to receive signals and plaintiff’s case does not require that each receive the signal directly from the brakeman before the duty to obey arises; and, third, the burden was not upon plaintiff to prove both the engineer and fireman were negligent, though both were alleged to be, but it was sufficient to show that the signal was to “slack hack easy,” and was received by the fireman, hut the movement was in the opposite direction.
    6. EXCESSIVE VERDICT: $5,000. The brakeman, as a result of an injury received in coupling cars, lost the thumb of the left hand, and the third finger to the second joint, the other fingers are stiff and he suffers from pain in them in cold weather. He had previously lost three fingers of the right hand in a planing mill, and testified that in his present condition he was unable to get employment. Held, under the circumstances, that a verdict for $5,000 is excessive by $1,000.

      Appeal from Pike Circuit Court. — Now. David H. Eby, Judge.
    Affirmed conditionally.

      W. O. Gray, Geo. A. Mahon and J. D. HosteMer for appellant.
    (1) All the evidence shows that plaintiff, with full knowledge of the defective coupler, and with full knowledge .that there was a dangerous and a safe way in which to move the car, adopted the dangerous mode, and thereby was guilty of contributory negligence and cannot recover. Defendant’s demurrer to the evidence should have been sustained. Hurst v. Railroad, 163 Mo. 322; Moor v. Railroad, 146 Mo. 572; 1 Bailey on Personal Injury, secs. 1121-23; Gilbert v. Railroad, 128 Fed. 534; Morris v. Railroad, 108 Fed. 749; George v. Railroad, 19 So. 784; Richmond & D. R. Co. v. Bevins, 15 So. 115; Montgomery v. Railroad, 109 Mo. App. 88. (2) Even conceding that defendant’s agents or servants were guilty of negligence in bringing the cars together instead of separating the same, still plaintiff cannot recover because he was guilty of negligence in going in between the cars for the purpose of using the defective coupler, and was also guilty of negligence in putting his hand in the three-inch space between the two draw-bars, which were only held apart by the link which had been fastened crosswise, and which was liable to slip in on the slightest jar and let the draw-bars come together. These acts of negligence directly contributed to the cause of plaintiff’s injury. Hogan v. Railroad, 150 Mo. 36, 55; O’Donnell v. Patton, 117 Mo. 20; Doerr v. St. Louis Brewing Ass’n, 176 Mo. 547; Moore v. Railroad, 146 Mo. 572. (3) Plaintiff’s own testimony shows that he never gave any signal to the engineer, but the only signal he gave was one to the fireman; this signal he expected to reach the engineer by being transmitted to him by the fireman. Hence there was no evidence to support the hypothesis that plaintiff gave a signal to the engineer. A party-will be limited in his right to recover, to the specific acts of negligence pleaded; and a recovery on unpleaded acts of negligence will not be permitted to stand. Waldhier v. Railroad, 71 Mo. 514; Schneider v. Railroad, 75 Mo. 296; Chitty v. Railroad, 148 Mo. 75; McManamee v. Railroad, 135 Mo. 440; McCarty v. Hotel Co., 144 Mo. 397; Tarnell v. Railroad, 113 Mo. 570; Melvin v. Railroad, 89 Mo. 106; Woods v. Campbell, 110 Mo. 572; Price v. Railroad, 72 Mo. 414; Standard Milling Co. v. Transit Co., 122 Mo. 277; Hite v. Railroad, 130 Mo. 136; Mason v. Railroad, 75 Mo. App. 10'; Bartley v. Railroad, 148 Mo. 124; Peary v. Railroad, 162 Mo. 75; Hamilton v. Railroad, 114 Mo. 509'; McGrath v. Railroad, 197 Mo. 97; Oreutt v. Cent. Co., 201 Mo. 424. There was a fatal variance between the allegations in plaintiff’s petition and the proof. The only charge of negligence leveled against both the fireman and engineer was a failure “to observe and obey” his signal, and plaintiff has signally failed to “ma.ke good” with his proof.

      Elliott W. Major and Jesse B. Jones for respondent.
    Questions of negligence and contributory negligence must be determined by the particular facts and circumstances surounding each case, as there is no absolute rule by which we can be guided. Therefore, what is due care and caution on the part of plaintiff, is a question for the jury under all the facts and circumstances in proof to be determined in the light of the dangers to be reasonably apprehended. Each case depends upon its own merits and cannot be settled offhand on a mere general rule. Henry v. Railroad, 113 Mo. 536; Bowen v. Railroad, 95 Mo. 275; Van Natta, v. Railroad, 133 Mo. 19; Appel v. Eaton & Prince Co., 97 Mo. App. 435; Rogers v. Printing Co., 103 Mo. App. 688; Weller v. Railroad, 164 Mo. 199. Every reasonable inference of fact which the evidence will bear must be indulged in favor of plaintiff. Appel v. Eaton & Prince Co., 97 Mo. App. 439; G-raney v. St. Louis, 141 Mo. 185; Harney v. Railroad, 80 Mo. App. 667; Owens v. Railroad, 84 Mo. App. 148; Dunphy v. Stock Yards Co., 118 Mo. App. 512. (1) There is no such thing a,s a safe way and a dangerous way involved, as appellant seeks to apply same. The coupling itself could be made in two ways, one by coupling the cars as they came together, the other to couple the cars as they separated. The evidence shows conclusively that plaintiff adopted the safer of the two ways in which to make the coupling. That the safer way was to make same as the cars separated; and, in fact, that no injury could possibly happen in proceeding the way plaintiff adopted, if the fireman and engineer separated the cars as signaled. At the time plaintiff was called upon to exercise his judgment as to how he would remove the car of coal, there was no danger apparent to anyone. No one knew of any defects any place, as to couplings or otherwise. Plaintiff, therefore, having attempted to couple the cars as they were to separate, adopting a safe and prudent way, cannot be charged with negligence. He was authorized to believe that the train would be separated as ordered and the law does not require him to wait before acting to discover whether or not obedience would be given to his signal. The whole matter therefore became a question for the jury. Cambrón v. Railroad, 165 Mo. 560; Dunphy v. Stock Yards Co., 118 Mo. App. 518-521; Harney v. Railroad, 80 Mo. App. 667; Adams v. Harvesting Machine Co., 95 Mo. App. Ill; Hamilton v. Mining Co., 108 Mo. 364; Lawrence v. Ice Co., 119 Mo. App. 316. The fact that plaintiff was injured in the way he was performing his duty which he selected, when, if he had selected some other way the injury might or would not have happened to him does not pronounce him careless or make his acts negligent. Dunphy v. Stock Yards Co., 118 Mo. App. 520; 1 Bailey on Master and Servant, sec. 1122. (2) In attempting to make the coupling the way plaintiff did and in taking hold of the draw-bar the way he did, it was impossible for him to he injured and he pursued the safe course, if the fireman and engineer separated the train as directed. Had the fireman and engineer moved the train west as plaintiff signaled, then the cars would have separated slowly and plaintiff would not have been injured. When reasonable minds may fairly differ upon the question as to whether or not a party is guilty, of negligence contributing directly to his injury, the case is one for the consideration of the jury. Weller v. Railroad, 164 Mo. 205; Erickson v. Railroad, 171 Mo. 660'; Luckel v. Century Bldg. Co., 177 Mo. 630; Allen v. Railroad, 183 Mo. 426; Young v. Waters-Pierce Oil Co., 185 Mo. 668 ; Hollenbeck v. Railroad, 141 Mo. 110; Phippin v. Railroad, 196 Mo. 345; Barry v. Railroad, 98 Mo. 70 ; Lynch v. Railroad, 112 Mo. 442; Dunphy v. Stock Yards Co., 118 Mo. App. 518; Owens v. Railroad, 84 Mo. App. 143; Adams v. Harvesting Co., 95 Mo. App. Ill; Reed v. Railroad, 107 Mo. App. 246; Harris v. Cooperage Co., 107 Mo. App. 249; Meng v. Railroad, 108 Mo. App. 553. (3) The allegations in the petition must he liberally construed with a view to substantial justice' and they are sufficiently broad to admit of every proof in evidence and all reasonable inferences from the evidence and upon which the court instructed. See sec. 629', R. S. 1899; Young v. Hon Co., 103 Mo. 324; Bank v. Scalzo, 127 Mo. 164; Oglesby v. Railroad, 150 Mo. 155. Appellant complains of the use of the word “and” between fireman and engineer in plaintiff’s instruction numbered 1 and the word “or” in defendant’s seventh instruction as modified by the court. That the pleading stated “fireman and engineer” and that the seventh instruction on the part of defendant was “fireman or engineer,” under certain interpretations and inferences from the evidence. By using the word “and” between fireman and engineer in plaintiff’s instruction, and the word “or” in defendant’s seventh instruction, plaintiff’s instruction required the jury to find more than defendant’s instruction and the error, if any, was in favor of defendant and he should not complain and would be harmless. Harrington v. City of Sedalia, 98 Mo. 583; Sprague v. See, 152 Mo. 339; Summers v. Ins. Co., 90 Mo. App. 691; Knight v. Lead and Zinc Co., 91 Mo. App. 574; Goodson v. Embleton, 106 Mo. App. 77; McKinstry v. Railroad, 108 Mo'. App. 21.
   FOX, J.

This cause is pending in this court on appeal from a judgment rendered in the circuit court of Pike county, in favor of respondent Richardson, and against appellant.

The action is for damages for injuries received by respondent on the 25th day of September, 1903, at Gilmore, while an employee of appellant. The substance of the charge on which respondent recovered in the circuit court is that, while he, as one of appellant’s brakemen, was endeavoring to couple cars, he gave a certain signal to the engineer and fireman in charge of the engine pulling the train of which he and said engineer and fireman were a part of the crew running and operating same; that this signal, although observed and understood, was not heeded, but that the engineer, instead of backing and separating the cars, as the signal indicated, put his engine in a forward motion, suddenly shoved the cars together and injured the respondent. In other words, it was charged that his injuries were due to the negligence of the engineer and fireman in not heeding and obeying his signal to “slack back easy.” The answer was a general denial and a charge of contributory negligence and assumption of risk.

The facts upon the record are substantially that appellant’s railroad runs in a north and south direction, beginning at Hannibal and! terminating’ at Gilmore, a station about forty miles west of St. Louis on tbe line of the "Wabash Railway Company. The two roads interchange business at this point. Appellant maintains yards at Gilmore. Its main line runs just north of the depot and the main line of the Wabash runs just south of the depot. North of the depot and appellant’s main line are its yards, consisting of three main side tracks extending in a general east-and-west course, numbered 1, 2 and 3, and converging at a point curved to the northwest of a coal chute of appellant’s. A plat is hereto appended, marked “Exhibit 1,” which illustrates and makes clear the situation in the yard's.

On the day of the injury complained of, Smith as conductor, Collins as engineer, Durell as fireman, respondent as head brakeman and Lowry as hind brakeman, composed the crew which ran and operated a mixed train from Hannibal to Gilmore, over appellant’s line of railroad. The injury was received about 5 o’clock p. m., while this same crew was working in appellant’s yards at Gilmore, and while they were immediately engaged in the attempt to take a car of coal (No. 8 on plat) from side track No. 1 and place it at the coal chute, shown on plat.

The train having come in from Hannibal, the engine, when it got into the yards, was headed east. At the time there was standing on side track No. 1, beginning west and extending east, five freight cars, an engine tank (No. 6), a stock car and a loaded coal car (No. 8), the coal car being the extreme east car. Respondent, who as head brakeman had charge of switching in the yards, signalled or directed the engineer to head in on side track No. 1 for the purpose of taking out the coal car No. 8 and placing it at the coal chute indicated on the plat. The engine was coupled to car No. 1, and then the couplings were made between cars 1, 2, 3, 4 and 5, No. 5 being already coupled to engine tank No. 6. Then an effort was made by Lowry to couple the engine tank No. 6 to stock car No. 7, when it was found that the automatic coupler on the engine tank was out of order and had been supplied with link and pin. Lowry failed to make the coupling, when the stock car, by reason of the impetus given it by the impact, went some distance east, and as the grade sloped west at that point the coal car rolled back against the engine tank, when respondent undertook to make the coupling and failed. Then all the cars as well as the engine came to a standstill. The coal car was some little distance east and was not connected but was standing. All the cars from the engine tank. to the engine were conected by couplings. The links used to couple the stock ear and engine tank became crossed and held the drawheads apart several inches. Both respondent and Lowry were trying to make the coupling between cars 6 and 7, respondent being on the north side and Lowry on the south side of the track. From where they were looking toward the engine, side track No. 1 curved to the north, hence respondent was in sight of the fireman’s side of the engine, while Lowry could not see the engine. Then it was concluded by the two brakemen to try to make the coupling by having the engineer “slack back easy,” which would separate the cars slowly, and that signal was given by respondent, which was received and understood by the fireman. For the purpose of adjusting one of the drawheads when they separated, as respondent claimed, he had his left hand between the draw-heads. When the engine moved, instead of separating, the drawheads came together and injured respondent’s left hand. The signal as given and understood by the fireman, was intended to move the engine and cars coupled, west, while as a matter of fact the two uncoupled cars came together, which indicated an east movement of some kind. Respondent claims that the movement was east to the extent of about one step, which he had to take. Lowry says it was done so quickly that he did not notice which way the cars moved, but that the indications were that they moved slightly east. As soon as the accident happened, Lowry ran from the track some twenty or thirty feet and slacked the engine hack so that respondent’s hand could he extricated from between the dra.wheads. The fireman says he understood the signal, gave it correctly to the engineer, and both say that the engineer reversed his engine, which was then set for forward motion, and that he complied with the commands of the signals. No one knew of the defective coupler on the engine tank until it was discovered by Lowry. He gave the information to respondent. The witnesses agreed that if when the signal was given by respondent the cars had separated as was intended, there would have been very little danger, if any, of injury. It was shown that the coal car No. 8 could have been taken out by pulling out all the cars up to and including the engine tank, setting them on a side track and then going hack for the stock and coal cars. This mode was adopted after respondent was hurt. It was also shown that hut for cars on side tracks 2 and 3, the engine could have come in and picked up the coal car from the east and set it at the coal chute by a drop' switch, which was against the rules of the company.

This substantially indicates the nature and character of the testimony upon which this cause was submitted to the jury. At the close of the evidence numerous instructions were requested by the litigants in this controversy, some of which were given and others refused. We do not deem it necessary to here reproduce the instructions, but will give them proper attention during the course of the opinion. The cause being submitted to the jury upon the evidence and the instructions of the court, they returned their verdict finding the issues for the plaintiff, and assessed his damages at the sum of-five thousand dollars.

Timely motions for a new trial and in arrest of judgment were filled, and by tbe court taken up and overruled. Judgment was entered in accordance with the verdict, and from tbis judgment tbe defendant prosecuted its appeal and tbe record is now before us for consideration.

OPINION.

Tbe record in tbis cause presents numerous assignments of errors as a basis for tbe reversal of tbis judgment. We will give tbe complaints of tbe appellant such attention as tbeir importance merits and requires.

We have stated substantially tbe facts developed upon tbe trial, and in order to properly appreciate tbe important propositions presented to our consideration, it is well to indicate briefly tbe declarations of law given by tbe court in tbe submission of tbis cause to tbe jury.

By instruction numbered 1 given for respondent, Richardson, tbe jury were told that if be, while in tbe exercise of ordinary care and prudence, was attempting to couple a tank and stock car and while attempting to do so be gave to tbe fireman, Durell, and tbe engineer, Collins, both of whom were at tbe time and place in tbe employment of appellant upon engine No. 6, a signal to open up tbe train, and said fireman and engineer negligently and carelessly failed to observe and obey said signal, so given by respondent, to open up said train, but, on tbe contrary, carelessly and negligently moved said train of cars in an opposite direction to tbe signal given, thereby injuring respondent, then be was entitled to recover.

It will be observed by an inspection of tbis instruction that tbe jury were required to find that both tbe fireman and engineer were negligent, and that tbeir negligence was tbe cause of tbe injury.

Instruction numbered 1 given for appellant directed tbe jury that if they found from tbe evidence that respondent voluntarily adopted a dangerous method of removing the car of coal, and that at the time he knew there was a safe method of removing said car, •then respondent could not recover.

Instruction numbered 3 given for appellant told the jury that if the fireman correctly communicated the signal, to the engineer and the engineer moved the engine about eighteen inches to the western direction and then stopped and by reason of the stopping the cars rebounded and caught respondent’s hand, then he could not recover.

Instruction numbered 5 given for appellant directed the jury that if respondent voluntarily placed his hand between the two drawbars and the act of doing so was a dangerous one and one that a person of ordinary care and prudence would not have done under the same circumstances, then respondent could not recover.

By instruction numbered 8 given at the request of appellant the jury were told that if they believed from the evidence that the fireman failed to correctly communicate to the engineer the signal given by respondent, he could not recover provided his injury resulted from the failure of the fireman to so correctly transmit such signal. And by instruction numbered 9, also given at the instance of the appellant, the jury were told that if the fireman incorrectly communicated such signal to the engineer and the engineer acted upon and obeyed such incorrectly communicated signal, and respondent’s injury resulted therefrom, he could not recover under the allegations of the petition.

By instruction numbered 2, asked by appellant and as modified by the court, the jury were charged that if respondent did not in point of fact give such signal to the engineer, either directly or with the help of the fireman, then there was a variance between the proof and the allegations of the petition. The court added after the word engineer, these words: ‘ ‘ Either directly or with the help of the fireman. ’ ’

By instruction numbered 7, requested by appellant, the court was asked"to tell the jury that the burden of proof was upon respondent to show that his injury was the result of the negligence of the fireman and engineer. The court modified this instruction by making it read “'fireman or engineer.”

Other instructions were given which it will not be necessary to notice as no objections to them have been raised. Instructions numbered 10, 11,. 12, 13, 14 and 15 will be referred to sufficiently to indicate our views concerning them.

At the close of respondent’s evidence, as well as at the close of all the testimony, appellant asked instructions in the nature of demurrers, which the court refused to give. The propriety of these rulings will be determined in the discussion of the points presented by appellant to this court.

I.

It is contended by appellant that all the evidence shows that respondent, with full knowledge of the defective coupler, and with full knowledge that there was a dangerous and a safe way in which to move the coal car, adopted the dangerous way, and thereby was guilty of contributory negligence, and should not have recovered.

“It is a familiar principle, which common sense as well as the rules of law ought to teach anyone, that where an employee of a railway knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence. [Hurst v. Railroad, 163 Mo. 309.] In the Hurst case the plaintiff, who was a brakeman, boarded a caboose at a dangerous place while it was moving-seven or eight miles an hour. He had the opportunity and power of stopping the caboose for the purpose of getting on, but instead of doing so, gave the signal to go on and attempted to board the caboose while it was .moving. It was correctly held that he was guilty of contributory negligence. The question in this case as to whether or not it would have been safer for respondent in the first instance to have adopted the plan of moving the coal car out without coupling the engine tank and stock car, was submitted to the jury under a proper instruction; and as we think, in this case, considering all the circumstances, it was a question for the jury to determine, they having determined it and there being evidence in the record upon which to base the finding of the jury, it should not be disturbed. It must not be overlooked that respondent did not know that this engine tank was among the cars on track No. 1 until an attempt was made to couple it. The automatic coupler on the engine tank was out of repair and would not work. The evidence shows that in such cases links and pins were used. Brakeman Lowry attempted to couple the engine tank and stock car by means of pin and link, but failed. Respondent also attempted to couple them on the rebound and failed. At this point the d'rawheads of the engine tank and stock car were separated only by a short link which became fastened between them crosswise. In other words, there was three or four inches between them on one side and seven or eight on the other. It was the judgment of both brakemen that a coupling might be effected by “slacking back ea.sy.” They both agree, in fact the evidence is undisputed on the point, that if the engine had moved back or separated these two cars there was no danger. At the time respondent was injured he and Lowry were attempting to couple the engine tank and stock car as they separated, and not by bringing them together. This was considered to be a safe plan whether it worked or not. The simple fact that respondent was hurt and that the coupler on the engine tank was out of order, does not conclusively show that he was guilty of contributory negligence. The result is not the true test, and the mere fact that a servant is injured because of the way of performing a duty which he selected, when if he had selected the other way injury would have been avoided, would not authorize the conclusion that he was careless. [1 Bailey on Master and Servant, sec. 1122.]

II.

It is nest insisted by appellant that respondent cannot recover, because he was guilty of negligence in going between the cars for the purpose of using the defective coupler, and was also guilty of negligence in putting his hand in the three-inch space between the two drawheads.

If it is true that both the engineer and the fireman, or either of them, and the respondent, were guilty of negligence which directly contributed to cause the injury, there can be no recovery, for the courts never undertake to sever, apportion and discriminate between two directly negligent acts -so as to decide which act caused the injury. There is no comparative negligence in this State. [Hogan v. Railroad, 150 Mo. 36.] But can it be said as a matter of law that respondent was guilty of negligence even though the coupler was defective and that he was liable to be injured? If, as the witnesses state, the train had separated, or had “slacked back easy,” in obedience to the signal given, there was no particular danger of injury to the respondent, even though he did have his hand between the couplers, then it occurs to us that the question of contributory negligence of respondent was properly submitted to the jury. The jury could very well find under the evidence that, even though respondent knew the coupler was defective, in obedience to the signal to “slack back easy” the cars would separate, and that an ordinarily prudent and careful man would have done as he did.

In the consideration of the subject of contributory negligence we have been unable to find any case which seems to be more pertinent to the facts of this case than Weller v. Railroad, 164 Mo. l. c. 205. This court in treating of the proposition in that case, speaking through Burgess, J., very clearly and correctly announced the rule. It was there said: “It is not sufficient that the evidence on behalf of the defendant tended to show that deceased was guilty of negligence con-' tributing directly to his injury, but before, this court can declare as a matter of law that deceased was guilty of such negligence, the evidence must be substantially all one way, and not such that reasonable minds might differ with respect thereto. This case, we think, belongs to the latter class, and was properly submitted to the jury.”

The mere fact that the coupler may have been defective and that risk was incurred by its use, would not as a matter of law defeat respondent’s action, where the danger was not such as to threaten immediate injury, or where, as is shown in this case, it was reasonable to suppose that the signals given would be obeyed, and that therefore the defective coupler and pin and link might be safely used by the exercise of care and caution as contemplated by respondent and Brakeman Lowry. [Hamilton v. Mining Co., 108 Mo. 364.]

III.

It is next contended that the court erred in giving instruction numbered 1. That instruction practically required the jury to find that both the engineer and fireman were negligent. In his petition it is alleged that respondent gave the signal to the fireman and engineer to open up the cars to be coupled, and that the servants of appellant in charge of the engine negligently and carelessly failed to observe and obey said signal, but, instead, negligently moved said engine and train of cars in tbe opposite direction to that indicated by tbe signal. Respondent then goes on to state that by reason of the negligence of tbe fireman and engineer and tbeir failure to observe and obey tbe said signal, be was injured.

Tbe rule applicable to separate acts of negligence, wbicb, concurring in operation, produce a joint result, is well stated in Dutro v. Railroad, 111 Mo. App. 258. On that subject in that case it was said: “A cause of action may be founded on two separate acts of negligence wbicb concurring in operation produce a joint result — the injury. Tbe fact of concurrence precludes tbe supposition of any repugnancy between them, for acts wbicb co-operate are necessarily in harmony, else they would not work together. This somewhat trite observation is called forth by tbe assumption of defendant that under tbe allegations of tbe petition proof of one of tbe negligent acts would tend to disprove tbe other. This is not true. ... No authority cited goes to tbe extent of bolding tbe plaintiff to proof of all tbe acts of negligence specified. If such rule prevailed it would be difficult, indeed, for any ease arising in tort to run tbe gauntlet of judicial scrutiny and survive.”

Tbe engineer and fireman were both fellow-servants of respondent. Tbe charge is that it was through tbeir negligence that be was injured. By reason of tbeir negligence and failure to properly obey tbe signal given by respondent to “slack back easy” be was injured. It is quite apparent that it was not necessary, even under tbe allegations of tbe petition, that both tbe engineer and fireman should have been guilty of tbe same act of negligence, or of two distinct acts. If either of them, in disobedience to tbe signal given by respondent, either directly or indirectly, caused tbe engine to move forward or east, and thereby caused tbe two ears, that is to say, tbe engine tank and tbe coal car, to come together and injure respondent, then the appellant is liable, unless respondent was guilty of contributory negligence, and of that guilt he was exonerated by the jury.

Instruction numbered 1 given by the court, of which appellant complains, simply required the jury to find more than was necessary — that is to say, it required them to find that both the engineer and fireman were negligent. Manifestly appellant has no ground of complaint by reason of the court by instruction numbered 1 placing a greater burden upon the plaintiff than under the law he was required to carry.

Directing our attention to the instructions given at the request of the appellant, it is sufficient to say that they were extremely favorable, and it is very questionable as to whether or not they were not more favorable to the appellant than was authorized by the evidence. In our opinion the court did not err in modifying instructions numbered 2 and 7 asked by appellant.

Appellant urges no special reason why instructions numbered 10, 11, 12 and 14 were improperly refused, but earnestly insists that instruction numbered 13 should have been given and that the court erred in refusing it. That instruction told the jury that if they believed from the evidence that a method of removing said coal car without using the defective coupling on the engine tank would require more work and time than the method which was attempted to be used, and they further found that the first method was safe and the method used a dangerous one, that such extra work and time would not excuse respondent for voluntarily adopting the dangerous one. The subjects embraced in that instruction are fully covered and submitted to the jury by instruction numbered 1 given by the court for appellant, hence there was no error in the action of the court in refusing to give instruction numbered 13.

IY.

It is next insisted that there was a variance between the proof and the allegations of the petition. The petition alleges, and the circuit court so submitted by instruction numbered 1, that the injury to respondent was due to the neglect and failure of the fireman and engineer to observe and obey the signal given by respondent. It will be remembered that respondent was, at the time of giving the signal, on the inside of a, curve and that the engine was, headed toward him, and therefore only the fireman’s side of the engine was in his view. The evidence discloses that as a, matter of fact the engineer did not and could not observe respondent’s signal, but that the fireman did see the signal and correctly understood it. It is also undisputed that the fireman in response to respondent’s signal communica,ted some kind of signal to the engineer. The fireman testified that he communicated the correct signal or the one given by respondent. His having done so is contradicted only by the evidence tending to show that in response to the signal the train moved east instead of west, thus bringing the engine tank and the stock car suddenly together. The argument of appellant is that respondent failed to show that both the fireman and engineer were negligent, and that in the very nature of things they could not both be negligent; that if the fireman correctly communicated respondent’s signal to the engineer then the fireman was not guilty of negligence, and if the fireman incorrectly communicated the signal to the engineer and he followed the incorrect signal by moving the train east, then the engineer was not guilty of negligence. In other words, the argument results in making the fireman the agent of respondent, so that therefore the appellant would not be responsible for the acts of the fireman, even though they did result in the injury received by respondent.

We think the petition states two distinct acts of negligence, but of the same character and class and each tending to cause the same accident. While it is true that respondent’s petition does allege the negligence of the engineer and the fireman, connecting the two by the conjunction and, yet, it being proper to allege one or more acts of negligence, all contributing' to the same accident, in one count of the petition, we are of the opinion that, simply because the conjunction and was used in the allegation connecting the engineer and fireman in charging the commission of the acts of negligence, this would not require respondent to make proof that both the engineer and fireman jointly committed the acts of negligence. [McHugh v. Transit Co., 190 Mo. 85; Hill v. Railroad, 121 Mo. 477.]

It seems clear to us that either the fireman or the engineer could have been responsible for the accident. If the fireman wrongfully communicated the signal to the engineer and the engineer moved the train east, then the fireman’s carelessness was the cause of the. accident and a sufficient cause to justify submission of the question to the jury. If, on the other hand, the fireman correctly communicated respondent’s signal to the engineer and he failed to observe and obey same, we can not understand why the engineer’s default should not be regarded as a proximate cause of the accident; and such acts upon his part would come within the purview of the pleadings. It is undoubtedly the duty of both the fireman and engineer to receive signals, and it is not required that each receive the signal directly^ from the person giving same before the duty to obey arises.

As pointed out by the authorities above cited, two acts of negligence of a different class, that is to say, a common law ground of negligence and a statutory ground, cannot be united in the same count, but may be set up in different counts of the same petition. But where the acts of negligence charged are of the same character and naturally lead up to and contribute to the same accident, any number of distinct acts may be alleged in one count and upon proof of any one or all a general verdict will be sufficient.

The court further instructed the jury that if they found from the evidence that respondent gave a ‘ ‘ slack up easy” signal, and that in obedience thereto the engineer moved his engine approximately eighteen inches in a westerly direction and! then stopped same, and that the cars rebounded and caught respondent’s hand, then the verdict should be for defendant. This instruction embraces one of appellant’s principal theories as to the immediate cause of the accident. But there* being testimony to rebut this theory, and it having been resolved against appellant by the jury under a liberal instruction, it is no longer a question of law, and its further discussion by this court would avail nothing.

It may also be further said concerning the facts of this case that there was evidence tending to show that the plaintiff did not know of the defective coupling on the engine tank until the engine was in on side track No. 1. That there was a way which might be regarded as a safer one to move the coal car than to couple the engine tank and stock car, but that the mode adopted involved less time and work, and that it was reasonably safe, at least from the evidence in the case the danger was not so glaring and clearly apparent as would authorize the trial court in declaring as a matter of law that the plaintiff was guilty of contributory negligence in the adoption of the method of making the coupling that he did.

V.

It is next insisted by learned counsel for appellant that the verdict returned by the jury for five thousand dollars in favor of the plaintiff, is excessive; that it was the result of passion and prejudice.

The evidence upon this question, as disclosed by the record, shows that plaintiff lost the thumb and about one-half of the third finger on the left hand. The plaintiff testified that it cut across his hand, and indicating one of his fingers, he says it was cut to the joint wide open clear down to the bone; left his finger stiff and tender; that it gives him lots of trouble and that he suffers from the cold; that he is unable to grip or touch anything with it to amount to anything; that he was taken to the company hospital where he stayed a week when the thumb' and third finger to the secohd joint were taken off; that his fingers are stiff; has no strength or grip in them and cannot close them tight; that he cannot get work on any railroad; the index finger was saved but it is stiff; that the little finger and one next to it are uninjured. It further appears in evidence that when the plaintiff was fifteen years old he lost, in a planing mill, the index finger and the second and third from it on the right hand; that with his right hand injured as it was he was unable to get employment on a standard road; that his wages at the time of his injury were $50' a month. Plaintiff was twenty-seven years old at the time he testified. No other evidence was offered touching the character of plaintiff’s injuries.

While there is an entire absence of any disclosures in the record indicating any passion or prejudice on the part of .the jury, yet it may be that the condition of both hands of this plaintiff in the presence of the jury — the defendant not being at all responsible for the injuries to the right hand — might have aroused a feeling of compassion and sympathy for the plaintiff to such an extent as to influence their judgment in fixing the amount of damages. The plaintiff was before the jury, and having lost in the planing mill accident, years before, the index finger and the second and third fingers from it on the right hand, for which this defendant is in no way responsible, this, with the injuries received to the left hand hy the negligence of the defendant — that is, the loss of a thumb and a part of one of his other fingers — in our opinion, was calculated to unduly influence the jury in estimating the damages to the plaintiff by reason of the injuries to the left hand, for which the defendant was liable. Again, the plaintiff testified that he was unable, in his present condition, to get employment on any standard railroad. That, of course, had reference to the injuries to both hands.

After a most careful consideration of all the testimony regarding the injuries received by the plaintiff, we are of the opinion that the damages assessed by the jury were somewhat excessive, and! that the plaintiff should remit $1,000 of such damages; however, such remittitur will only be required as of the date of the judgment in the trial court. Upon this remittitur as indicated being entered within ten days, the judgment of the trial court will be affirmed for four thousand dollars and bear interest from date of judgment in circuit court; otherwise, it will be reversed and remanded.

All concur.


source: Caselaw Access Project

author: BURGESS, J.

license: Public Domain

text:
    SOUTHERN MISSOURI & ARKANSAS RAILROAD COMPANY and ST. LOUIS, MEMPHIS & SOUTHEASTERN RAILROAD COMPANY, Appellant, v. J. S. WYATT.
    Division Two,
    November 23, 1909.
    1. APPELLATE JURISDICTION: Condemnation. The appeal from a judgment awarding $800 damages to a landowner in a suit brought by a railroad to condemn a right of way through his land, is to the Supreme Court. Title to real estate is involved in such a case.
    2. APPEAL: Extending Time to File Bill: Shown Only by Bill. Where only the bill of exceptions shows an extension of time within which appellant might file his hill of exceptions, the appellate court cannot consider the bill. A hill of .exceptions does not prove itself. It becomes a part of the record only when the record proper shows it was filed within the time granted by the court; and if there is no recital in the record proper showing it was so filed, it will not be considered on appeal.
    3. -: No Bill: What Matters Considered on Appeal. Where there is no bill of exceptions, the judgment cannot be affirmed on appeal, if the abstract shows errors in the record proper, jurisdictional in character or otherwise.
    4. -: -: -: Condemnation: Jurisdictional Matter: Setting Aside Commissioners’ Report. Whether or not the trial court must first formally set aside the commissioners’ report before a jury may be called to assess the damages to the landowner for land taken by the railroad company, in a condemnation suit, and whether the record proper must so show, is a jurisdictional matter, and such point may be considered on appeal whether there was a bill of exceptions or not.
    5. CONDEMNATION: Setting Aside Commissioners’ Report: How Shown. A record recital that “the report of the commissioners in the above entitled cause be in all things confirmed except as to J. S. Wyatt,” who had filed written exceptions thereto, is a sufficient order setting aside the report of the commissioners as to J. S. Wyatt, and authorizing the court to call a jury to assess his damages.
    6. -: -: No Formal Order Needed. When the landowner in a condemnation case brought by a railroad company files exceptions to the commissioners’ report, and asks for a jury to assess his damages, he is entitled to such jury as a matter of course; and no formal order setting aside the commissioners’ report is required.
    7. -: General Verdict. A general verdict in a condemnation suit, assessing $800 as damages to two tracts of land more than a mile apart through which the railroad company has taken a strip one hundred feet wide for its right of way, may or may ' not be erroneous. If the two tracts were a part of one contiguous farm and used in connection with it as a part thereof, a general verdict is proper, for then the damage is to the whole farm; if the two tracts are segregated and not used together, there should be separate assessments to each tract.
    8. -: -: No Evidence: Assumed as Matter of Law. There being no bill of exceptions the court can consider, it will not, on plaintiff’s appeal in a condemnation case, be assumed, as a fact, without any evidence that can be considered, that, as the petition says its railroad runs through two tracts of defendant’s lands, those tracts are entirely segregated.

      9. -: -: Motion in Arrest: Office. The office of a motion in arrest is to direct the attention of the court to errors apparent on the face of the record proper; and where there is no motion in arrest that can he considered on appeal, because the purported motion was set out in a bill of exceptions which cannot be considered because not filed in time, and the record proper does not show any objection to the form of the verdict, the appellate court will not hold that a general verdict, in a condemnation case, assessing defendant’s damages for plaintiff’s right of way through two tracts of land separately described, at a lump sum, was erroneous.
    10. APPEALS: What Errors Will be Considered. The trial court must he given an opportunity, by specific assignments, to correct its own errors; and if not given that opportunity, they will not be considered on appeal.
    Appeal from Ripley Circuit Court. — lion. J. L. Fort, Judge.
    Aeeirmeu.

      E. H. Seneff, L. F. Parker, Jas. Orchard and W. F. Evans for appellant.
    (1) The motion in arrest of judgment should have been sustained. The verdict of the commissioners was never reviewed by the court; never set aside or affirmed. Under R. S. 1889; Sec. 1268, it is necessary for the court to review the report of the commissioners and to set the same aside on a proper showing. The finding of the commissioners appointed to appraise land to be condemned for railroad purposes, is not conclusive upon the circuit court, but, on written exceptions filed by either party, the court may examine the evidence and if the verdict of the commissioners was wrong may set it aside. Bridge Co. v. Schabacker, 49 Mo. 555. In the case at bar no such inquiry was made and no order of the court was made setting aside the verdict of the commissioners, so the finding of the commissioners is still in force. Upon the exceptions filed to the report of commissioners appointed to condemn land for railroad purposes the court should review, by evidence, the action of the commissioners and supervise their finding so as to do substantial justice. The court may approve or reject the report, but cannot alter it. Bridge Co. v. Ringe, 58 Mo. 491. But the court must either approve or reject. In this case it did neither. City of St. Louis v. Lannigan, 97 Mo. 175; Railroad v. Richardson, 46 Mo. 456; Railroad! v. McG-rew, 113 Mo. 390'. (2) The verdict, being a general verdict, cannot stand. The two tracts are located about two miles apart and are not contiguous. Besides, the petition describes the two tracts separately and asks for separate finding on each tract. The commissioners, in making their report, made a separate finding on each tract. Hence, the verdict of the jury should have been a separate finding on each tract, as each tract constituted a separate cause of action. Hence, plaintiffs’ motion for a new trial, also in arrest of judgment, should have been sustained. Silcox v. Martin, 64 Mo. App. 330'; Brick v. Railroad, 83 Mo. 391; State v. Harman, 106 Mo. 657.
   BURGESS, J.

Plaintiff, the Southern Missouri & Arkansas Railroad Company, instituted this suit in the circuit court of Ripley county to condemn a right of way for its railroad through the lands of a number of parties, among them the respondent, J. S. Wyatt. The latter owned two tracts of land through which said railroad company attempted to condemn a right of way, one of which, designated as parcel No. 7, is described in the petition as the south half of the northeast quarter of section 16, township 22, range 4, east; and the other, parcel No. 9, is described as the north half of the southeast quarter and lot 1 of the southwest quarter of section 19, township 22, range 4, east.

Upon the petition of the railroad company, commissioners were appointed by the circuit court to view and to assess the damages to the property through which the proposed road was to run. On the 16th day of October, 1901, the commissioners made their report, which was filed in the office of the clerk of said court, in which report they assessed the damages to tract No. 7 at $75, and assessed the damages to tract No. 9 at $49.

On October 31, 1901, Wyatt filed his exceptions to the report of the commissioners, and asked that said report be set aside and that a jury trial be awarded him, and that his damages be inquired into and assessed by a jury..

After the petition was filed, and before the cause was tried, the St. Louis, Memphis & Southeastern Railroad Company was, on its motion, made a party plaintiff, it having succeeded to all the rights of the plaintiff, the Southern Missouri & Arkansas Railroad Company.

Wyatt recovered a verdict and judgment for $800, from which judgment, after unsuccessful motions for a new trial and in arrest, plaintiff appealed.

The case for some reason found its way to the St. Louis Court of Appeals, and after argument and submission there, an opinion was handed down by Bland, P. J., affirming the judgment on the ground that the, printed abstract failed to show that the bill of exceptions had ever been made a part of the record. Thereafter a motion for a rehearing was filed, and the opinion was withdrawn, and the cause transferred to this count on the ground that the Court of Appeals had no jurisdiction of the appeal.

I. The cause was properly transferred to this court. It is a suit by a railroad company to condemn, land for its right of way, and in such cases it has many times been held that appellate jurisdiction is in the Supreme Court. Title to real estate is involved in such a ease. [City of Tarkio v. Clark, 186 Mo. l. c. 294; Kansas City v. Railroad, 187 Mo. l. c. 151; Baubie v. Ossman, 142 Mo. 499; State ex rel. v. Rombauer, 124 Mo. 598; State ex rel. v. McCutcban, 119 Mo. App. 75; Railroad v. Eubank, 55 Mo. App. 335; Railroad v. McGregor, 53 Mo. App. 366.]

II. We cannot consider the bill of' exceptions in this -case, for the reason that the printed abstract does not show that the bill was ever made a part of the record. The abstract shows that an appeal to this court was ordered on April 11, 1902, and that appellant was “given ninety days in which to perfect and file a bill of exceptions herein.” Immediately following this is another record entry which recites that on July 7, 1902, “for good cause shown, the time for filing bill of exceptions is hereby extended for a period of sixty days from the expiration of the first order.” Then follows immediately the evidence of witnesses, and after about sixty pages of testimony immediately follow in order the instructions, the verdict, motion for new trial, motion in arrest, the affidavit for an appeal, the order allowing ninety days to file a bill of exceptions, and then a recital that on July 7, 1902, a further time of sixty days was allowed, then a recital that appellant “presents his bill of exceptions and prays the same may be signed, sealed and made a part of the record, which is accordingly done on this 16th day of August, 1902.” Then follow the •signature and approval of the judge, and the certificate of the clerk that the bill was filed on that day. It will be observed that it is only the bill of exceptions that recites that it was filed within the sixty days allowed. The record proper does not so recite. A bill of exceptions does not prove itself. It becomes a part of the record only when the record proper shows it was filed in time. The last record entry proper in this case shows that appellant was, on July 7th, given an extension of sixty days in which to file his bill. Matters of record proper have no place in the bill of exceptions, and a recital thereof therein adds nothing to the validity of the bill. [Milling Co. v. St. Louis, 222 Mo. 306; Hogan v. Hinchey, 195 Mo. l. c. 533; Harding v. Bedoll, 202 Mo. 625; Groves v. Terry, 219 Mo. 595; Shemwell v. McKinney, 214 Mo. 692; Stark v. Zehnder, 204 Mo. 442; Walser v. Wear, 128 Mo. 652; Pennowfsky v. Coerver, 205 Mo. 135; Coleman v. Roberts, 214 Mo. 634.]

Bnt though there is no bill of exceptions, the judgment cannot be affirmed if the abstract shows errors in the record proper, jurisdictional in character or otherwise. [Thomasson v. Insurance Co., 114 Mo. App. 109.]

Appellant assigns error as to two matters of record proper.

III. Appellant contends that “the verdict of the commissioners was never reviewed by the court, and was never set aside or affirmed.”

Section 1268, Revised Statutes 1899, says that “the report of said commissioners may be reviewed by the court in which the proceedings are had, on written exceptions, filed by either party; . . . and the court shall make such order therein as right and justice may require, and may order a new appraisement, upon good cause shown. Such new appraisement shall, at the request of either party, be made by a jury, under the supervision of the court, as in ordinary eases of inquiry of damages. ’ ’

The record shows that respondent did file his exceptions to the commissioners ’ report, and asked therein that “said report as to him, may be set aside, and that a jury trial may be awarded him and his damages inquired into by a jury, and assessed to him by a jury.”

Appellant contends that before any jury trial can be had in such cáse, the record must show affirmatively that the court set aside the commissioners’ report, and that until set aside it is still in force, and that the record does not show in this case that the report was set aside. This assignment goes to a jurisdictional record matter, for, if appellant’s contention is correct, then until the report of the commissioners was set aside by a formal order, that report remained in full force and effect, and no jury could he called to assess defendant’s damages. The point, going to the jurisdiction of the court to order a jury trial, can, therefore, he considered, whether or not there was a motion in arrest.

1. The appellant’s abstract shows this record entry: “Now at this day it is ordered by the court that the report of the commissioners in the above entitled cause be in all things confirmed except as to defendants, J. S. Wyatt and O. E. McKinney.” This was a sufficient order setting aside the report of the commissioners as to J. S. Wyatt, the respondent. . It is a formal record order refusing to confirm that report as to him. So appellant is mistaken as to the fact, and its abstract shows the mistake.

2. But there was no need of any order formally setting aside the report. When respondent filed his exceptions to the commissioners’ report and asked for a jury to assess his damages, he was entitled to a jury as a matter of right. In another branch of this same case, Railroad v. Woodard, 193 Mo. l. c. 661, upon this appellant’s appeal from the judgment awarding damages to C. E. McKinney, it was said by Brace, C. J., for. the Court in Banc: “On filing his exceptions the respondent had the constitutional right to have his damages assessed by a jury, and the court had ho discretion in the matter. The calling a jury to assess his damages was such order as right and justice required. ’ [Art. 12, sec. 4, Const. 1875; Railroad v. McGrew, 113 Mo. 390; Railroad v. Story, 96 Mo. 611.]” That decision is conclusive of this assignment in this case.

IV. The next assignment is that the verdict is general, and that “there should have been a verdict assessing the amount of damages to each tract.”

The railroad passes through land in the south half of the northeast quarter of section 16, and in the north half of the southeast quarter and the southwest quarter of section 19, both in township 22. It will be seen that the land in section 16 is something over a. mile from the nearest land in section 19. It will also be seen that land in two quarter sections of section 19 is described. The petition states that appellant “needs and seeks to acquire, for public use and purposes aforesaid, the several tracts of land, . . . described as follows:

“Parcel Seven. — One hundred feet in width in a general northeasterly and southwesterly direction,... through and upon the south half of the northeast quarter of section 16, township. 22, which is owned or claimed by J. S. Wyatt. . . .
“Parcel Nine. — One hundred feet in width in a general northeasterly and southwesterly direction, . . . through and upon the north half of the southeast quarter of section 19, and lot one of the southwest quarter of section 19, township 22, which is owned or claimed by J. S. Wyatt.”

The petition nowhere asks for an assessment of damages to each tract separately, nor do respondent’s exceptions.

The jury returned this verdict, as shown by the record proper: “We the jury, find the issues for the defendant, J. S. Wyatt, and assess his damagns at the sum of eight hundred dollars. J. J. Bradshaw, foreman. ’ ’

As a general rule, where there are several counts in a petition, each stating a different cause of action, there should be a separate finding on each. [Cramer v. Barmon, 193 Mo. 327; Brownwell v. Railroad, 47 Mo. 239; Clark v. Railroad, 36 Mo. l. c. 212; Russell v. Railroad, 154 Mo. 428.] But that is not the rule where the several counts relate to the same transaction. [State v. Pitts, 58 Mo. 556; State v. Jennings, 81 Mo. 185; State v. Bean, 21 Mo. 267; State v. McCue, 39 Mo. 112.] If the two tracts described in the petition are segregated and are separate and distinct tracts, then there should have been a separate finding of the damages done to each. But if they were parts of one farm, then a general verdict was not improper, though the two tracts described in the petition are, as described, over a mile apart. Suppose the land in section 16 and that in section 19 are parts of one contiguous .farm owned by respondent, and are used by him in connection therewith; and suppose there is a perennial spring of great value in the northeast quarter of section 16, which, before this railroad was constructed, was used in connection with this farm extending southwesterly to section 19; and suppose that the railroad, as constructed, cuts off this perennial spring from all the rest of the farm: would that be a damage simply to the eighty-acre tract in section 16 through which the railroad runs, or would it he a damage to the whole farm of which that eighty is a part? In such a case a general verdict would not be amiss. If it be said that we have no right to make such a supposition, by what course of reasoning can appellant have us assume that these tracts are not a part of one farm and used in connection with it? Appellant would have us assume, as a fact, without any evidence we can consider, on appeal, that, as the petition says its railroad runs through two tracts of land belonging to defendant, those tracts are entirely segregated and are not used as a part of one farm, and that, therefore, a judgment founded on a general verdict cannot stand. We cannot so assume. We do not know whether or not these tracts are a part of one farm and used in connection with it, and cannot know that fact, and thereifore we cannot assume that the verdict is wrong. We must consider that the form of the verdict is objected to for the first time on appeal. So much of the record as we can consider does not show any objection was-made to it at the trial. The record shows a motion in arrest was timely filed, but that motion is incorporated in what purports to be a bill of exceptions alone, and that bill we have already ruled we cannot consider,, and hence we cannot look at the motion in arrest. As tins record is presented for oúr consideration we are asked to convict the trial court of error on a point that court was given no opportunity to correct. i It has been the uniform ruling of this court that the trial court must be given an opportunity, by specific assignment,, to correct its own errors, and if not given that opportunity any assignment of alleged error will not be considered on appeal. [Singer Co. v. Stephens, 169 Mo. 1; Coffey v. City of Carthage, 200 Mo. l. c. 629; Woody v. Railroad, 104 Mo. App. 678; State v. Lynn, 169 Mo. 664.] In such case every presumption will be indulged in favor of the proceedings in the trial court.

In Wells v. Adams, 88 Mo. App. l. c. 228, it is said: “When a petition contains several causes of action stated in as many counts, and there is a verdict of the jury or a finding of the court sitting as a jury, for plaintiff, every consideration of propriety requires that there should be a verdict or finding on each cause of action or count. ... A general judgment in such case will, on a proper motion for that purpose, be arrested. . . . But in the present case the record does not show that the defendants filed any motion in arrest of judgment, but it does show that they filed a motion for a new trial. An imperfect verdict or finding, or a neglect to find on all the issues, can be taken advantage of only by a motion in arrest.” To the same effect are Grier v. Strother, 111 Mo. App. 386; and Railroad v. Iron Works Co., 117 Mo. App. 153.

The office of a motion in arrest is to direct the attention of the court to errors apparent on the face of the record proper (State v. Goehler, 193 Mo. l. c. 181); and no defect in the verdict can he considered on appeal unless there was a motion in arrest assigning such defect as error. [Finney v. State, 9 Mo. 225; Stout v. Calver, 6 Mo. 254; Davidson v. Peck, 4 Mo. 438; Griffin v. Samuel, 6 Mo. 50; State v. DeWitt, 186 Mo. l. c. 68.]

Without any knowledge of the facts except such as appear from the petition, verdict and judgment, we cannot say that the verdict in this case is erroneous on its face. If it were erroneous, under the facts as developed by the evidence, objection should have been made to it upon its return by the jury, and if that had been done the trial court had ample power to require the jury to make a finding of damages as to each tract, and if it had refused to have the verdict corrected, and objection and exception had been made to its ruling, and that ruling made a ground of the motion in arrest, we could consider the ruling on this appeal; but the trial court having been given no opportunity to correct the error, if any there was, we cannot convict it of error.

The judgment is affirmed.

All concur.


author: GRAVES, J.

text:
    JULIA A. BERRY v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY and ST. LOUIS, MEMPHIS and SOUTHEASTERN RAILROAD COMPANY, Appellants.
    Division One,
    November 27, 1909.
    1. FRAUD: Settlement: Sufficient Pleading. Where plaintiff sued the railroad company for damages to her crops, and defendant pleaded a prior settlement, plaintiff’s reply, alleging that said settlement was obtained through 'fraud, coercion and deception used by defendant’s agents, that they told her her lawyer had gone back on her, that her neighbors and friends were all going to testify against her, that defendant would pay her lawyer, that all said statements were untrue, that she was old and poor and was scared and persuaded hy "said agents into said settlement, and was led to believe that the paper signed hy her contained stipulations to the effect that defendant would pay her lawyer, which it did not contain, and that said settlement is not in fact the one she thought she was making, and tendering back the money paid her, states a defense to such settlement, and is not demurrable, whether the issue he one at law or in equity.
    2. TRIAL BY JURY: Fraud: Constitutional Right. The meaning of the Constitution in saying “the right of trial hy jury, as heretofore enjoyed, shall remain inviolate,” is to deprive the Legislature of the right to deprive a party of the right to a jury trial wherever prior to the adoption of the Constitution he had that right. It did not prevent the Legislature from extending the right of trial by jury. It did not prevent it from making matters theretofore tried in equity, triable hy a jury, where the cause of action in the first instance was one of law.
    3. -: -: -: Release. Where the cause of action in the first instance was one of law, and the equity arises only hy reason of fraud of some kind being pleaded to obviate a release pleaded in the answer, the Constitution does not prohibit the Legislature from making such issue of fraud triable hy a jury, along with the cause of action stated in the petition. Such a release could have been properly tried hy a jury prior to the statute, and could have been pleaded in the reply. Sec. 654, R. S. 1899, is not unconstitutional.
    Appeal from New Madrid Circuit Court. — No». Henry G. Riley, Judge.
    Affirmed.

      W. F. Evans and Moses Whybarh for appellants.
    (1) The court erred in not sustaining the demurrer to the replication of the plaintiff. The facts set up in the replication stated no reason why the settlement should be avoided. Layson v. Cooper, 174 Mo. 220; Paris Mfg. Co. v. Carle, 116 Mo. App. 501; Crim v. Crim, 162 Mo. 552; Shirts v. Over John, 60 Mo. 305. (2) Under the issues raised by the reply to the new matter set up in the answer, the defendant was entitled! to have those issues tried separately. The settlement which plaintiff sought to set aside, constituted a complete defense and could he annulled for equitable causes only. Grayson v. Weddle, 80 Mo. 42; Allen v. Logan, 96 Mo. 597; Boulin v. Pippin, 192 Mo. 474; Clyburn v. McLauglin, 106 Mo. 521; Fisher v. Stevens, 143 Mo. 181; Althoff v. Transit Co., 204 Mo. 171; Och v. Railroad, 130 Mo. 27; McForlad v. Railroad, 125 Mo. 253. The trial court may direct issues of fact in chancery cases to be tried by a jury, but is not bound by their finding. The court may reject the finding by the jury and render judgment on the issues, contrary to the verdict of the jury.. This rule is well settled. Snell v. Harrison, 83 Mo. 656; Hickey v. Drake, 47 Mo. 369; Benten v. Pippin, 192 Mo. 474; Gay v. Ihrn, 69 Mo. 586; Brounsen v. Wanzer, 86 Mo. 408; Burt v. Rynex, 48 Mo. 309. Then in the Supreme Court the equitable issue is practically tried de novo. The Supreme Court will defer somewhat to the findings of the trial court, but is not bound by such finding. Blount v. Spratt, 113 Mo. 54; Benne v. Schnecko, 100 Mo. 257. And that court may discard such parts of the evidence as may have been erroneously admitted without the necessity of directing a. new trial. Barrett v. Davis, 104 Mo. 563; Hanna v. South St. Joseph Land Co., 126 Mo. 16. And-when the evidence is depositions, so that the lower court is denied the advantage of observing the demeanor of the witness when testifying, and equal opportunity is afforded the Supreme Court to determine the probative force of the witness, in that case it will not defer to the trial court. Allen v. Logan, 96 Mo. 598. The replication sought affirmative relief, and was equitable, and the defendant was entitled to have that issue separately tried, and thus be able.to have the evidence on that issue reviewed in the appellate courts. Allen v. Logan, 96 Mo. 598; Lincoln Trust Co. v. Nathan, 175 Mo. 42. (3) Section 654 of Revised Statutes of 1899, insofar as it permits the plaintiff in h-is reply, in all cases, whether the fraud alleged be cognizable in equity, or at law, to allege any facts showing or tending to show the settlement set up in the answer was fraudulently or wrongfully procured; and requiring the issues thus raised to be submitted, with the other issues in the case, to the jury and a general verdict or finding upon all the issues including the issue of fraud so raised, shall be sufficient, violates the Constitution, which provides that the right of trial by jury, as heretofore engaged, shall remain inviolate. Constitution, art. 2, sec. 28; R. S. 1899, sec. 654; Yaugh v. Schade, 30 Mo. 604; Creve Coeur Lake Ice Co. v. Tamm, 138 Mo. 386; State ex rel. v. Town, 153 Mo. 105; Eckrich v. Transit Co., 176 Mo. 648; Tinsley v. Kemery, 170 Mo. 316; Mound City Land & Stock Co. v. Davis, 170 Mo. 259; State ex rel. v. Shepard, 177 Mo. 238. A trial by jury in an equity case is not within the meaning of the Constitution, and under it the Legislature cannot add to or detract from the right, because that right as heretofore enjoyed must remain inviolate. Ellis & Cavender v. Krentzinger, 31 Mo. 432; Wendover v. Baker, 121 Mo. 289. (4) The practice act has not changed the primary rights of the parties. The distinction between legal and equitable rights has not been abolished, but only the distinction between legal and equitable remedies. Richardson v. Means, 22 Mo. 498; Meyers v. Fields, 37 Mo. 441; Fithian v. Monks, 43 Mo. 517; Maguire v. Taylor, 47 Mo. 128-9; Tucker v. St. Louis Life Ins. Co., 63 Mo. 594; State ex rel. v. Johnson, 132 Mo. 108; Holloway v. Holloway, 97 Mo. 639; Lockland v. G-arasche, 56 Mo. 270. The Legislature had no power to completely blend equitable and legal rights in the code .procedure, and make all cases triable by a jury. That law abolished the forms of action and substituted the civil action as the only form. Reubens v. Joel, 13 N. Y. 488; Yoorhis v. Child’s Executors, 17 N. Y. 354. (5) Prior to the enactment of section 654, the settlement had to be set aside by a court of equity in a separate proceeding on the ground of fraud, before commencing proceedings on the original cause of action. Althoff v. Transit Co., 204 Mo. 171; Och v. Railroad, 130 Mo. 27.
   GRAVES, J.

The plaintiff originally brought her suit against the St. Louis, Memphis and Southeastern Railroad Company. Petition filed to the March term, 1905, of the New Madrid Circuit Court was in two counts. By the first she sought to recover damages to crops growing on certain lands belonging to her, by reason of defects in the right-of-way fences belonging to defendant. Damages were alleged in the sum of six hundred dollars and judgment asked in double that sum.

By the second count damages were sought in the sum of $50, to be doubled under the statute, for injury to a, horse, alleged to have been occasioned by the negligent construction of a farm crossing. Upon this count verdict went for the defendant and further notice need not be taken.

Later, and at the March term of said court, the St. Louis and San Francisco Railroad Company was on motion of plaintiff made a paa’ty defendant. At the September term following, defendants answered, by the terms of which answer they denied the charges in both counts contained, and further answering averred that the suit had been fully settled for $130 and the money paid to plaintiff by the last named defendant, specifically pleading a stipulation signed by the plaintiff acknowledging the payment of the $130 and agreeing that the suit abate and be dismissed at the costs of defendant. Then follow averments to the effect that the first named defendant was the owner of the road but that the latter defendant had operated the same since June 1st, 1904; that said settlement was in satisfaction of plaintiff’s claims as to both defendants, but that she thereafter sued the latter defendant for the same causes of action which had been thus settled.

To this answer, the plaintiff filed the following reply:

‘ ‘ Comes now the plaintiff, and first tenders to the defendant the amount received in the alleged settlement, and says that said settlement was obtained by coercion, fraud and deception used by the defendants, by and through J. O. Livesay, claim agent, and "W. E. Eobertson; that they told her her lawyer had gone back on her; that her neighbors and friends were all going to testify against her; that they would pay her lawyer; all of which statements as made were untrue; and that she, being old and poor, was finally scared and persuaded by said parties into said settlement; and that she was lead to believe that the paper signed by her contained stipulations to the effect defendants were to pay her lawyer, which it does not contain; and that said alleged settlement is not in fact the one that she understood she was making. That her actual damages in said matters were in excess of said amount in said settlement; and having made reply, again asks for judgment. ’ ’

To this replication, defendants demurred, and when the same was overruled, duly excepted.

At the September adjourned term of said court for the year 1905, the plaintiff dismissed as to the first defendant and the trial proceeded as to the remaining defendant, the appellant here.

Verdict, upon a trial before a jury, was returned for plaintiff on the first count for $350. Upon the second count the verdict was for defendant. On motion of plaintiff the damages were doubled and judgment accordingly entered for $700'. Later and at the same term and whilst the motion for new trial was pending the plaintiff remitted the sum of $135.90 and a new judgment for $564.10 was entered, and the motion for new trial overruled. Defendant excepted to both acts of the court, i. e., that of permitting the remittitur and the act of overruling the motion for new trial. Within proper time, motion in arrest of judgment was filed and overruled, defendant excepting.

When the case was called for trial the defendant requested that the matter of settlement set up in the answer and the issues thereon made in the reply, he tried by the court without the intervention of a jury, and in such request it is charged that section 654, Revised Statutes 1899, in so far as it undertakes to make such an issue triable by a jury, violates section 28, art. 2, of the Missouri Constitution. This was overruled and the whole case submitted to the jury.

This and kindred questions are the only questions urged in the elaborate and excellent brief filed by the defendant. Plaintiff has not favored us with a brief. The questions urged therefore are purely questions of law.

I. To what has been said in the statement, it should be added that to the reply a demurrer was filed and the court overruled the same. This demurrer charged that the replication failed to state sufficient facts to constitute a defense to the new matter set up in the answer. This, to our mind, is only one way of stating the real issue between these parties. Defendant claims that section 654, Revised Statutes 1899, is invalid, and for that reason the question of fraud, as pleaded in this reply, could only be heard in a court of equity, and not in a court of law and before a jury. If, however, it is meant that the replication does not state a proper defense in either branch of the court, equity or law, we cannot give our assent to the insistence. The replication pleads facts, properly raising the issue of fraud in the procurement of the settlement and release. To this end, we have purposely set it out. The replication charges certain representations which induced the settlement. It then charges the falsity of these representations and the reliance of the plaintiff thereon. Not only so, but there is a tender of the sum so paid in settlement. The reply was at least a proper defense to the new matter (the settlement) pleaded in the answer. Whether such matter should have been tried before a chancellor or a jury, remains to be seen. Suffice it to say for the present that the reply was sufficient to raise the issue of fraud in the procurement of the settlement, and the question of the forum for the trial of the issue we will consider in due order.

Cases cited by appellant are not opposed to the idea that this reply properly presented an issue of fraud, which is cognizable in some court.

~We, therefore, pass to the real question urged in this case.

II. As indicated above, the real issue urged by the defendant in this case is the unconstitutionality of section 654, Revised Statutes 1899, which section reads:

“Whenever a release, composition, settlement or other discharge of the cause of action sued on shall be set up or pleaded in the answer in bar to plaintiff’s cause of action sued on, it shall be permissible in the reply to allege any facts showing or tending to show that said release, composition, settlement or other discharge was fraudulently or wrongfully procured from plaintiff, and the issue or issues thus raised shall be submitted with all the other.issues in the case to the jury, and a general verdict or finding upon all the issues, including the issue or issues of fraud so raised, shall be sufficient.”

This section appears as a new section in the revision of 1899. It will serve no good purpose to rehearse at length the diverse opinions of this court prior to the enactment of this section. The section evidently had its origin in the opposing views of the judges of this court prior to its enactment. [Girard v. St. Louis Car Wheel Co., 123 Mo. 358; McFarland v. Railroad, 125 Mo. 253; Ocla v. Railroad, 130 Mo. 27; Homuth. v. Railroad, 129 Mo. 629.]

These various cases and others which might he cited evinced varying views among the members of this court, as to what matters of fraud were cognizable before the law side of the trial court and what matters should be heard in equity. Releases of different character were submitted by the trial courts to juries and thus the division of opinion. These varying views run up to the date, or practically so, of this statute, and the statute was no doubt passed to meet the emergency. But be that as it may, this statute is challenged on the ground that it is violative of section 28, article 2, of the Missouri Constitution. This section of the Constitution reads: “The right of trial by jury, as heretofore enjoyed, shall remain inviolate; but a jury for the trial of criminal or civil cases, in courts not of record!, may consist of less than twelve men, as may be prescribed by law. Hereafter, a grand jury shall consist of twelve men, any nine of whom concurring may find an indictment or a true bill.”

The defendant after invoking this section of the Constitution, says that it is entitled to a trial by a chancellor where there has been executed a release, which is pleaded in bar of an action, and fraud in the execution thereof is alleged by the plaintiff, and that this statute violates its constitutional right, in that it forces the trial of that issue to be before a jury.

The Constitution says, “The right of trial by jury, as heretofore enjoyed, shall remain inviolate.” In discussing that right we have held it to mean that such matters as were triable by jury prior to the Constitution of 1875, could not be shifted to the equity side of the court. In other words, the status of what must be tried by a jury was fixed by the conditions existing at the time of the adoption of the Constitution.

In State v. Bockstruck, 136 Mo. l. c. 358, Division Two of this court through Sherwood, J., used this language: “This being the ease, it cannot be said that defendant has been denied ‘the right of trial by jury as heretofore enjoyed,’ since whatever was the status of that right at the time of the adoption of the Constitution of 1875, was the status referred to in that instrument. [1 Bishop, Crim. Proc. (3 Ed.), sec. 892; 3 Am. and Eng. Ency. Law, 720, and eases cited!.] ”

Again in the recent case of Lee v. Conran, 213 Mo. l. c. 412, Woodson, J., for this division, says:

“Section 28 of article 2 of the Constitution of 1875 provides that ‘ The right of trial by jury, as heretofore enjoyed, shall remain inviolate.’ This court, in the case of State v. Boekstruck, 136 Mo. l. c. 358, held that the constitutional guaranty of ‘the right of trial by jury as heretofore enjoyed’ has reference to the status of that right as it existed at the time of the adoption of the Constitution. And this court, in the ease of State ex rel. v. Withrow, 133 Mo. l. c. 519, held that said section 28 ‘means that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach of hostile legislation, and are preserved in their ancient substantial extent as existed at common law.’
“In order to determine whether the case at bar comes within the meaning of that section of the Constitution as interpreted by those adjudications, we must first determine what the issue tendered by the pleadings is, and, after doing so, we must then ascertain how that issue was triable before the adoption of that constitutional provision; if by jury, then either party is entitled to a trial of that issue by a jury regardless of any statutory provision; but if it was not triable by jury prior to that time, then the Constitution does not govern, and we would then look to the statutes and the common law for a rule by which to solve the question.”

Now viewing these contentions of the defendant in this light, what do we find!? Has it been deprived of any right under the Constitution by reason of this statute? In our judgment,-the Constitution means that if theretofore (that is, prior to the adoption of the Constitution) the defendant by law or practice was entitled to a jury, then such right must remain inviolate. Prior to that time some questions of fraud were triable by a jury in a court of law and some by the chancellor in a court of equity. The only inhibition on the Legislature fixed by the Constitution was to prevent the Legislature from depriving a party of a trial by a jury where he had theretofore enjoyed that right. No inhibition is found in the Constitution preventing the Legislature from extending the right of trial by jury. Not a word is said to the effect that the Legislature can not make matters theretofore tried in equity, triable by a jury, where the cause of action in the first instance was one at law, and the equity only arises by reason of fraud of some kind being pleaded to obviate a release pleaded in the answer. In our judgment, the matters pleaded in this reply could have properly been tried at law prior to the Constitution of 1875. Fraud vitiates all contracts, and whether the contract is absolutely void by reason of the fraud, as held in Girard v. St. Louis Car Wheel Co., supra, or whether it be merely voidable, as suggested in some of the cases, yet if in the latter class of cases the party tenders back the consideration and disclaims the contract thus induced by fraud, then the question of whether or not the release is void or valid may be properly tried before a jury. And we think it was so triable even before the statute in question.

The foundation of the present defense is a receipt for so much money in settlement of a claim. Of course, collateral thereto, is an agreement to dismiss the suit on that claim at the cost of the defendant. Even under the Och case, supra, we believe this question was triable by a jury without this statute. It was certainly so under the statute. But if it was not allowable under tbe ruling in tbe Ocb ease, it was made so by tbe more recent ruling in Courtney v. Blackwell, 150 Mo. l. c. 278, whereat Marshall, J., in concurring in an opinion by Brace, J., gave special reasons for bis concurrence in this language:

“I concur in tbe foregoing opinion, and believe it is tbe only proper conclusion under tbe circumstances' disclosed by this record, especially in view of tbe opinion in this case on former appeal, but in my judgment that opinion was erroneous in bolding that tbe issue of fraud in tbe procurement of tbe release could not be raised in a reply to tbe answer setting up tbe release. In my opinion, release is an affirmative defense, and when pleaded by a defendant tbe plaintiff can meet it in tbe reply by a plea of fraud in its procurement and this is the rule prescribed by sections 2042 and 2052, Revised Statutes 1889. Tbe plaintiff may anticipate an affirmative defense of release by a count in bis petition setting out tbe fraud in its procurement, and asking its cancellation, but should not be required to do so, nor should a plaintiff be reverted to 'a separate bill in equity for such purpose, for tbe whole question can, logically, be determined, when tbe release is pleaded by tbe defendant, if it is pleaded, by an issue of fraud raised by tbe reply, and tried by tbe chancellor, before tbe action at law is tried. For these reasons I think tbe opinion on former appeal was incorrect in not so bolding, and in requiring tbe plaintiff to resort to a proceeding in equity or to amend her petition. G-antt, C. J., Sherwood and Brace, JJ., concur herein.”

Tbe case bad formerly been tried in which tbe fraud in tbe procurement of the release bad been raised by reply. [Hancock v. Blackwell, 139 Mo. 455.] At that time tbe whole court concurred-that tbe release should be set aside in equity, although several members thereof bad persistently opposed that rule in tbe Och case, supra, and by the majority vote opposed the doctrine in the Girard case. In the Girard case, written by Barclay, J., and concurred in by a majority of the judges, it was held proper to plead the fraud in the procurement of a release in a reply, but in a later case, the Och case, Burgess, J., who had dissented in the Girard case, distinguished his case from the Girard case and held that the release pleaded in his case should have been set aside in equity. To this opinion, Barclay and Brace, JJ., filed a vigorous dissenting opinion. Then came the case of Hancock v. Blackwell, supra, in which Burgess, J., again followed the Och case, and it would appear that the dissenting judges yielded to the majority in the Och case. But when the Hancock case, supra, again reached this court, under the name of Courtney v. Blackwell 150 Mo. l. c. 278, it appears that- Marshall, Brace and Sherwood, JJ., and Gantt, O. J., concurred in the doctrine that when a release was pleaded, the fraud in the procurement thereof could be pleaded in a reply and tried before a jury. And be it said that the fraud in that case covers just as broad a, ground as in this case. I am of opinion that even under the Och case, as ruled by Burgess, J., the fraud in procuring the receipt in this case at bar could be pleaded by way of, reply, but all doubt is removed by the latter case just mentioned. This latter case, Courtney v. Hancock, supra, was passed upon at the April Term, 1899, and as section 654 first appeared as a new section in the revision of 1899, it must have been passed about that time. However, the case is not bottomed upon the statute, so that prior to this statute, and without considering the statute, this court has held that fraud in the procurement of a release was properly pleaded in a reply and properly triable before a jury. The statute therefore does not go further than this court had done about the time of the passage thereof. The statute does not undertake to abolish all equitable jurisdiction, and has never been so considered by bench or bar. If it did, another question might be here. We are of opinion that the Legislature violated no portion of the Constitution in the enactment of the statute. The other cases from this State relied upon by defendant are not out of line with these views.

Thus believing, and this being the only real question in this case, the judgment, nisi, is affirmed.

All concur.