author: ELDER, J.

text:
    JULIUS PIETZUK v. KANSAS CITY RAILWAYS COMPANY, Appellant.
    Division One,
    July 11, 1921.
    1. RECORD ON APPEAL: Affidavit: Error of Stenographer. On an appeal the bill of exceptions imports verity; and an affidavit made by the attorney for appellant, to the effect that the word “satisfactory” was used by him in a question he propounded to a juror on his voir Aire examination, and not the word “unsatisfactory” as the bill of exceptions shows, availeth nothing, the trial court having made no order directing an amendment of the record.
    2. JUROR: Prejudice: No Challenge or Objection. Where the juror on his voir Aire examination was not challenged, and no objection was made to his competency or qualifications, an objection first appearing in the motion for a new trial that he was prejudiced against appellant cannot be considered on appeal. And in this case had the juror been timely challenged on the facts disclosed by the affidavits filed in support of the motion for a new trial, such challenge should have been overruled.
    3. NEGLIGENCE: Instruction: Inclusion of Specific Allegation. Where the petition alleges that the conductor of a street car, which had stopped at an elevated station to take on passengers, caused said car to start forward, “and before plaintiff was able to get into the vestibule of said car or on the platform of said car, and while yet standing on the steps of said car with one foot, the conductor closed the door of said car while same was moving, pushed plaintiff off the step and, as a result thereof, plaintiff was thrown violently from said car to' the street below,” an instruction requiring the jury to find that the “conductor negligently caused said car to start forward and negligently closed the door of said car while said car was moving, and as a direct result thereof the plaintiff was thrown from said car to the street below and injured” omits no specific allegation. In requiring the jury to. find that plaintiff was “thrown from” the car it used words of like significance as the allegation “pushed plaintiff off said car.”
    4. -: Physical Impossibility: Peremptory Instruction. The evidence in this case does not show that it was a physical impossibility for the plaintiff to have been injured in the manner claimed by him and ¿is witnesses, and therefore the trial court did not err in refusing to give to the jury a peremptory instruction to find for defendant.
    5. ARGUMENT TO JURY: Character of Defendant: Withdrawal. In his closing argument to the jury plaintiff’s counsel.said that no jury would live long enough to sit on a case against the defendant company in which that company would not come in without a defense of some kind. Defendant’s counsel objected that the remark was outside of the record, wholly incompetent and prejudicial, and asked that plaintiff’s counsel be reprimanded. The court directed counsel to proceed, to which action defendant’s counsel excepted. Thereupon plaintiff’s counsel withdrew the remark, and substituted another to the effect that the defendant company could not be expected to come into court and admit liability, to which no objection was made. Held, that the trial court was in a better position to determine the propriety and effect of the first statement made by plaintiff’s counsel than is the appellate court; that the fragmentary part of the counsel’s speech was not sufficient to have influenced- the jury in arriving at their verdict; and that if there was any transgression of proper argument it was cured by its withdrawal.
    6. VERDICT: Contrary to Greater Weight. Where the record is devoid of anything which could give rise to a logical conclusion that the jury were prejudiced, or corrupt, or grossly negligent, or that they disregarded the instructions of the court, their verdict cannot on appeal be set aside as contrary to the greater weight of the evidence, although only three witnesses testified to the same facts showing defendant was guilty of the negligence charged, and six for defendant testified to the contrary, only one of whom identified plaintiff as the man who was injured.
    7. EXCESSIVE VERDICT: $15,000. Plaintiff, in attempting to board a street car from an elevated platform, was thrown to the street, thirty feet below. He sustained a broken jaw, a broken chest, his legs were hurt, and five or six teeth were knocked out; there was a fracture at the base of the skull, which produces a dizziness in the head, and makes it dangerous for him to work about machinery or upon a scaffold; the hones of the jaw are not in perfect apposition, the teeth being out of line; there is an irritability •in the spinal cord, and his symptoms are nervous dizziness and occasional headaches; his physician’s bill was $185, and he was earning $572 a year prior to the accident, was then thirty-three years of age, and two years and a half afterwards went to work again, and his chances of complete recovery and of permanent impairment aré about equal. Hela, tnat a verdict for $15,000 is excessive by $4,000.
    Appeal from Jackson Circuit Court. — Ho». Clarence A. Burney, Judge. .
    Reversed and remanded.

      Chas. N. Sadler and Mont T. Prewitt for appellant.
    (1) The court erred in failing* *and refusing to grant defendant a new trial for the reason that venireman C. (Charles) G. Green did not fully, accurately, and truthfully answer all questions propounded to him on the voir dire examination, particularly concerning any present or previous feeling of bias or prejudice against defendant growing* out of litigation against ■ defendant, resulting in prejudice in that defendant was caused to exercise one of its peremptory challenges in removing said veniriman, when a truthful disclosure would have furnished cause for trial court to have excused him. Vessels v. Light Co., 219 S. W. 80; Theobald v. Transit Co., 191 Mo. 395; Carroll v. United Rys., 157 Mo. App. 247, 264; Gibney v. Transit Co., 204 Mo. 704; State v. Wyatt, 50 Mo. 309; Hughes v. Ry., 60 S. W. (Texas) 562. (2) The court erred in giving instruction numbered 1 requested by plaintiff. State ex rel. Coal Co. v. Ellison, 270 Mo. 645, 653; Degonia v. Ry., 224 Mo. 565, 589; Nortlmm v. Rys., 176 S. W. 227; Mc-Grath v. Ry., 197 Mo. 105; Davidson v. Transit Co., 211 Mo. 320, 361; State ex rel. Newspaper Assn. v. Ellison, 176 S. W. 11; Roscoe v. Ry., 202 Mo. 576, 588;'Bank v. Mnrdock, 62 Mo. 70; Hamilton v. Crowe, 175 Mo. 634. (3) The court erred in refusing to giye to the jury the peremptory instruction directing a verdict in favor of defendant, requested at the close of all the evidence, under the physical-facts doctrine. State v. Bryant, 102 Mo. 24, 32; State v. Turlington, 102 Mo. 642, 663; Daniels v. Ry., 177 Mo. App. 280; Scroggins v. Met., 138 Mo. App. 215, 219. (4) The court erred in refusing to sustain the motion for new trial because of the misconduct upon the part of plaintiff’s counsel in making incompetent, prejudicial and improper argument. Beck v. Rys., 129 Mo. App. 7, 23; Rice v. Sally, 176 Mo. 107, 14,6; Robertson v. Wabash, 152 Mo. 382; Brown v. Ry., 66 Mo. 588; Neff v. City of Cameron, 213 Mo. 350, 369; Williams v. Ry., 123 Mo. 573; Collier v. City of Shelbyville, 219 S. W. 713. (5) «The court erred in refusing to sustain the motion for new trial on the grounds that the verdict and judgment are contrary to the greater weight of the evidence and because the jury in arriving at their verdict wholly disregarded the instructions given by the court. Price v. Evans, 49 Mo. 396; Lehnick v. Met., 118 Mo. App. 611; Chitty v. Ry., 148 Mo. 64, 78; Spiro v. Transit Co., 102 Mo. App. 250, 264; Spohn v. Mo. Pac. Ry. Co., 87 Mo. 74; State v. Fannon, 158 Mo. 149; Payne v. Railroad, 136 Mo. 362; Hook v. Bailroad, 162 Mo. 569; Fugler v. Bothe, 117 Mo. 475, 501. (6) The verdict is excessive. Rigg v. C. B. & Q., 212 S. W. 878; Hulse v. St. Joseph Ry. Co., 214 S. W. 155; Dominick v. Mining Co., 255 Mo. 463; Campbell v. United Rys., 243 Mo. 141, 159; Stolze v. Transit Co., 188 Mo. 581; Norris v. Ry., 239 Mo. 695, 704; Lyons v. St. Ry., 253 Mo. 143, 163; Bragg v. Street Ry. Co., 192 Mo. 351; Willits v.. C. B. & Q., 221 S. W. 65.

      W. W. McCaules and Hogsett & Boyle for respondent.
    (1) The court did not err in refusing a new trial because of the answers of venireman Chas. G. Green on voir dire examination, (a) The venireman, was not challenged by the defendant and there is no objection or exception in the record to any ruling of the trial court relating to the matter. Therefore defendant is in no position to complain. City of Tarldo v. Cook, 120 Mo. 1, 11. (b) The affidavits of its claim agents filed by defendant do not show any prejudice on Green’s part. McManama v. United Rys. Co., 175 Mo. App. 43; Kennelly v. K. C. Rys. Co., 214 S. W. 237; Albert v. Ry. Co., 192 Mo. App. 665; Tawney v. Rys. Co., 262 Mo. 602; Shore v. Dunham, 178 S. W. 900; State v. Green, 229 Mo. 642; Hudson v. Ry. Co., 53 Mo. 525; State v. Ivy, 192 S. W. 737; In re Bowman, 7 Mo. App. 568. (c) The question as to the competency of jurors is one addressing itself to the sound discretion of the trial court and that discretion will not be interfered with unless- palpably abused. State v. Rasco, 239 Mo. 535; Kennelly v. Rys. Co., 214 S. W. 237; McManama v. Railroad, 175 Mo. App. 50, 51. (2) The court did not err in giving Instruction Number 1 requested by plaintiff. The instruction is not broader than the petition but is strictly and literally limited to the percise negligence alleged, therein. Riley v. City of Independence, 258 M<x 682; Johnson v. Met. St. Ry. Co., 177 Mo. App. 300; Schwanenfeldt v. St. Ry. Co., 187 Mo. App. 592; Ottofy v. Trust Co., 196 S. W. 430; Green v. Standard Oil Co., 199 S. W. 749; Quinley v. Traction Co., 180 Mo. App. 300, 302; Little v. Railroad, 139 Mo. App. 55. (3) The court did not err in refusing the peremptory 'instruction requested by defendant, (a) . The rear end of the car stopped only twenty-five feet from the west edge of the platform, so that plaintiff’s estimate of the distance he was carried before he fell was absolutely accurate and in accordance with the physical facts. Costello v. Kansas City, 219 S. W. 391. (b) A court should not take a case from the jury on the “physical facts” theory merely because the varying estimates of witnesses as to distance, made in a moment of extreme excitement, are not mathematically exact. Swigart v. Lusk, 192 S. W. 141; Hays v. Ry., 182 Mo. App. 1. c. 402, 403; Clark v. Long, 196 S. W. 412. (c) The estimates as to the length of the station platform and the length of the car were given by defendant’s witnesses, and the court could not say as a matter of law that these estimates were correct, their credibility being for the jury. Haney v. Kansas City, 259 Mo. 660; Gardner v. Railroad, 223 Mo. 389. (d) It will hardly do to say that the evidence conclusively shows that plaintiff boarded a moving car, when three witnesses positively testified that it was standing still. (4) There was no improper or prejudicial argument on the part of plaintiff’s counsel. (a) The statement objected to was nothing more than a tribute to the resourcefulness and ability of defendant’s able counsel who tried the case. The statement .was made goodnaturedly and in no spirit of criticism of the defendant, and was evidently so understood by the trial court who heard all the argument. Bishop v. Inv. Co., 229 Mo. 733. (b) The trial court was in much better position to judge the meaning and effect of the statement complained of than this court, for the trial judge heard all of the argument, while only an isolated sentence thereof is presented to this court. The trial court evidently considered defendant’s objection to the statement as utterly trivial, as indeed it was. (c) But. even giving to the argument the strained construction which defendant strives to place upon it, the argument was not an improper one and did not transcend the limits of legitimate debate. Paul v. Dunham 214 S. W. 265; City of Kennett v. Const. Co., 273 Mo. 280; Huckshold v. Ry. Co., 90 Mo. 558; Ostertag v. Railroad, 261 Mo. 475, 479; Bradley v. City, 90 Mo. App. 424; Turnbow v. Kansas City Rys. Co., 211 S. W. 46; Pope v. Ry., 175 S. W. 955; Gidionsen v. Ry,. Co.-, 129 Mo. 403; Bank v. Camery, 176 S. W. 1077; Whelan v. Chemical Co., 188 Mo. App. 605; Cook v. Neely, 143 Mo. App. 639; Franklin v. Railroad, 188 Mo. 545; Lilly v. K. C. Rys. Co., 209 S. W. 972; Ins. Co. v. Railroad, 174 Mo. App. 549. (d) The defendant did not specifically except to the failure of the court to reprimand plaintiff’s counsel, nor did it move to dismiss the jury or to declare, a mistrial. So in no event is there anything preserved, for appellate review. McKinney v. Laundry Co., 200 S. W. 118; Harriman v. Dunham, 196 S. W. 443; Torreyson v. Ry., 246 Mo. 706; Ostertag v. Railroad, 261 Mo. 479; State v. Chenault, 212 Mo. 137; Peek v. Traction Co., 131 Mo. App. 143; Estes v. Railroad, 111 Mo. App. 5; Payne v. Ry., 129 Mo. 405; State v. Taylor, 134 Mo. 158. (e) When defendant objected to' the argument, plaintiff’s counsel immediately withdrew the remark objected to, and without objection substituted in place of it another argument to which the defendant made no objection. . This leaves no room for complaint on defendant’s part. Green v. Standard Oil Co., 199 S. W. 750; Hollenbeck v. Ry. Co., 141 Mo. 98; Grace v. Ry. Co., 212 S. W. 42; Almond v. Modern Woodmen, 133 Mo. App. 390; Cross v. Sedalia, 203 S. W. 648; Sinclair v. Tel. Co., 195 S. W. 558; Wellman v. St. Ry. Co., 219 Mo. 126; Collier v. Moving Co., 147 Mo. App. 700. (5) The verdict and judgment are not contrary to the greater weight of the evidence, (a) This court will not weigh the evidence in a law case. Linderman v. Carmin, 255 Mo. 62; Hutchinson v. Safety Gate Co., 247 Mo. 71; Howell v. Sherwood, 242 Mo. 513; Norris v. Ry. Co., 239 Mo. 695; Moore v. King, 178 S. W. 124. (b) The jury and the trial court have found that plaintiff’s case is sustained by the greater weight of the evidence. This concludes the defendant. Authorities supra. (6) The verdict is not excessive, (a) In passing on the size of the verdict this court will consider the decreased purchasing power of money. Hurst v. Railroad Co., 219 S. W. 568; Hulse v. Ry. Co., ,214 S. W. 156; Duffy v. Ry. Co., 217 S. W. 883; Hays v. Ry. Co., 183 Mo. App. 608. (b) In the light of tbe late cases a verdict of $15,000 is not excessive for the injuries which the plaintiff was shown by the undisputed evidence to have sustained. Smith v. Ry. Co., 213 S. W. 485, 486; Iiolzemer -v. St. Ry. Co., 261 Mo. 379; Hubbard v. Railroad Co., 193 S. W. 579; Shaw ,v. Kansas City, 196 S. W. 1094; Miller v. Harpster, 273 Mo. 605; Myers v. City of Independence, 189 S. W. 817.
   ELDER, J.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff in being thrown from a street car which he was undertaking to board, operated by defendant on an elevated structure at Armour Station, on the state line between Kansas City, Missouri, and Kansas City, Kansas.

On March 18, 1916, the defendant was operating a line of elevated street railway connecting Kansas City, Missouri, and Kansas City, Kansas, running across the state line between Missouri and Kansas. At the intersection of the state line and ,what was known as Central Avenue, it maintained an elevated station called Armour Station. The tracks at that point were about thirty feet above the street level. ' The station platform was about fifty to fifty-five feet in length, from east to west, and at the west end thereof was a railing or fence which extended out to within three feet and four inches of the north rail of the west-bound track.- On the north side of the platform, midway thereof, and about four or five feet north of the tracks, was a shelter house. About the center of the shelter house was a door leading out upon the station platform. Passengers intending to take a west-bound car ascended from the street by a stairway to the shelter house, passed through the shelter house and out upon the platform where cars customarily stopped to receive and discharge passengers.

Plaintiff, who is a Russian, was examined through an interpreter. He testified that he was thirty-three years of age, had come to America in August, 1913, lived in Kansas City, Kansas, was employed at the time of the accident at Armours, and had previously been working steadily for that concern in the wool house, where wool was washed and dried, earning about $10 or $11 a week; that from about 4 p. m. to 6:40 or 7 p. m. on the aforesaid 18th day of March, he had visited his sister at St. Mary’s Hospital in Kansas City, Missouri, and had then taken a street ear and on his way home had stopped off at a saloon near the state line to cash his pay check, it being Saturday and pay day; that while in the saloon a friend, Dominick Grib, had bought him two glasses of beer, and plaintiff had purchased a half pint of whiskey, which he took with him; that at “fifteen or twenty minutes to nine” he and Grib (who at the time of the trial plaintiff testified was in France)’ left the saloon and ascended to the elevated platform at Armour Station, plaintiff intending to take passage upon a westbound Central Avenue car; that when he went out upon the platform no car was there, but many people were waiting; that after he had waited “maybe two or three minutes,” the Central Avenue car came and stopped to take on passengers, it being then full of people; that several of the persons waiting proceeded to get upon the car at the rear entrance, but that many more were left and “didn’t get in;” that plaintiff was in the rear of those who got on, and had progressed as far as to have his right foot on the vestibule platform of the car, his left foot on the step, and had taken hold of the handle bars with both hands; that when he got on the ear it was standing still, with the vestibule door open; that while in the position above mentioned the conductor rang the bell and the car started; that the car moved forward about twenty-four to thirty feet when the conductor shut the folding vestibule door, which struck plaintiff in the chest and pushed him off the ear; that the rear end of the car was then about six feet beyond tbe platform, and be fell to tbe street pavement about twenty-five feet . below, striking on bis bead and feet or legs; tbat be became unconscious, and when be came to be was in St. Mary’s Hospital.

On cross-examination plaintiff testified tbat while in tbe saloon before tbe accident, be bad nothing to drink but two glasses of beer; tbat be did not attempt to board tbe car while it was in motion, or run after it and get on while it was moving; tbat be knew be must not board a car while it was moving.

On re-direct examination be stated tbat be bad purchased tbe half pint of whiskey for one Alexander Car-dash at tbe latter’s request, and bad not opened tbe bottle.

Adam French testified on behalf of plaintiff, through an interpreter, tbat be bad known plaintiff a little in Russia; tbat be was standing on tbe platform at tbe station when plaintiff attempted to board tbe car in question, and tbat tbe car was then standing still; tbat the car was full, with many people in tbe rear vestibule, and tbat there were about twenty people waiting to take tbe car; tbat when plaintiff got on, tbe conductor rang tbe bell and tbe car started, with plaintiff standing on tbe steps; tbat when tbe rear end of tbe car was about twenty-four or twenty-five feet “off the platform” plaintiff fell to tbe street below, bis body striking “towards Kansas” (or west) “from tbe foot of tbe steps.” On cross-examination tbe witness stated tbat be bad been in tbe saloon with plaintiff and Grib, and tbat Grib bad bought them all two glasses -of beer; tbat be bad been standing-on tbe platform, among tbe people who were waiting, about two or three minutes before tbe car came up; and tbat be wanted to take the same car as plaintiff, but tbat there was no way of getting on, as it was too full.

Alexander Krivinia, a witness for plaintiff, testified that be was on tbe station platform tbe night in question waiting for a Central Avenue car; tbat be bad been waiting “about two or three minutes,” when the ear came and stopped; that it was full of people, with a number waiting to get on; that some got on, but that he could not get on, although he tried; that he saw plaintiff, whom he had often seen before, attempting to board the car at the rear; that plaintiff “was on the step with one foot, with another foot on the platform inside of the car;” that when plaintiff got on the step the conductor rang the bell and the car started, with the door open; that plaintiff tried to get in the car, but was unable to do so, as it was full; that the conductor shut the door, pushing plaintiff off the car, and he fell, being then “about thirty-feet” beyond the-platform. On cross-examination the witness stated that the accident happened “pretty near-nine o’clock.”

George Chess, ambulancé driver for the Police Department of Kansas City, Kansas, a witness for plaintiff, testified that when he arrived at the scene of the accident plaintiff’s body was lying on the street about thirty feet west of the station, or ten feet west of the foot of the stairway, between the curb and the surface car-tracks. On cross-examination witness stated that* Armour Station was elevated about twenty-five or thirty feet above the street surface; that the station platform was about fifty feet long; that when plaintiff was picked up he was unconscious, and witness did not examine his breath to see if he was intoxicated; and that neither the bottle of whiskey which was in plaintiff’s coat pocket, or the seal thereon, was broken.

William Lawson, police officer, a witness called by 'plaintiff, testified that he was standing across the street from where plaintiff fell; that he “heard a noise and looked over, and saw this man lying in the street and went over there. ’ ’

The evidence for defendant may be summarized as follows:

The deposition of L. C. Biederman, engaged in the bakery business at Keytesville, Missouri, was read in evidence. The witness testified that on March 18, 1916, he resided in Kansas City, Kansas, and that about 9:30 p. m. of that day he was going home in the back vestibule of a west-bound “pay-as-you-enter” street car; that as he got on the car at Armour Station, after a number of other people, the conductor closed the door; that “after the car had started, some one run out of the station and tried to get on the car. It was right close to the edge of the platform;” that the ear was then in motion and when “this man” grabbed the rear end of the car he was within about six or seven feet of the .west end of the platform, with the car going “probably three or four miles an hour.” On cross-examination witness said that when he saw “this man” first approach the car it was about forty feet from the east end of the platform; that he supposed the platform was “probably sixty feet” in length; that he first saw the man as he ran out of the station.

George Heinzman testified that he helped his father run a lunch wagon across the street from Armour Station; that on the night in question, at 9:35 p. m., he was standing at the east end of the station platform; that “I was going up there to go home and there was a Central Avenue car come up and it stopped and loaded on about — oh, I should say — ten or fifteen passengers, and just about the time it started I heard somebody holler and I seen a man running, and at that time the car had run about thirty feet and it seemed like he either tried to get hold the middle hand-hold or the last one, and just about that time he went down. It just seemed like-it happened in about a second.” On cross-examination the witness stated that after the man succeeded in getting hold of the handrail he rode on the step of the car, “on the platform,” for about ten feet; that immediately upon passing the railing at the end of .the platform he fell; that witness then went down to the street, and he lay about ten feet west of the west end of the platform.

C. M. Snow testified that he was employed by Swift’s Packing Company and prior to 1917 had been employed by defendant as a motorman, being so employed on March 18, 1916; that on the night of that day, about 9:30 p. m., he was standing on the platform at Armour Station, just to the west of the station door, waiting for a car on which to. go home, when a Central-Fairmount car came along. Describing the accident he said: “Well, as that wasn’t the car I wanted to take, I wanted either Chelsea or Quindaro car, I didn’t pay any* attention, and I didn’t attempt to get oh it, and there was several people got on the car . . . After they was all on that wanted that car, the conductor closed his door on the car and started the car, and after — when the car got to the even, or a little past of even, which would he a little west of that station door, there was some man come running out right fast and he came running out, he was going west, south, and he turned like this (indicating) and hoarded the car on. th outside, and he was on the car just a second, and when he went off he went off of the edge of the platform, down to th.e pavement below.” On cross-examination witness stated that the man who ran after the car was running twelve miles an hour, or A a third faster than the car; ’ ’ that there were three west-bound lines of cars' operating over the elevated tracks in question, all going to different places; that a man in the shelter house would not know what car had stopped there until he got outside, so as to see it; and that he would not know the man who ran after this particular car if he saw him.

W. T. Wilhite testified that he was in the rear vestibule of the car, about 9:35 p.m.; that “we stopped there at the Armour Station and took on a few passengers, about eight or ten, and got them in there and the conductor closed the door and gave the signal to go on, and as the car started up I saw some man start towards the door as the car got a little past the door of the station, and he grabbed for the railing and rode I’ should judge eight or ten feet and it looked like he jumped right off .again before the conductor could get out of the door to get Mm. He had given the signal to stop, and it looked like this man missed his footing or something and went down over the viaduct. That was at the west end.” Witness further said that the car had run about twenty-five or thirty feet from the east end of the viaduct when the man undertook to grab hold of it, and that the ear was running five or six miles an hour.

The deposition of Richard A. Coon was read in evidence. His testimony, which was taken on August 27, 1918, was to the effect that-he was then a riveter for the Standard Ship Building Corporation at Shooters Island, New York, and expected to enter the military service within a few days; that on March 18, 1916, he was conductor of the car on which the accident occured; that “we stopped at Armour Station, state line on the elevated structure, and loaded possibly twenty to twenty-five passengers; the car having all on board that seemed to want to get on, I closed the door, gave the motorman the signal to go ahead. After the car had run about thirty to thirty-five feet, two or three men came out of the station door on the elevated, the first one tried to catch the car, and in jumping, as npar as I could make out, caught the upright rail with his hand and possibly had one foot on the step. I gave the motorman the emergency signal to stop and opened the door at the same time to try to grab the man, and before I could do so, the railing on the west end of the elevated platform brushed him off, and he fell in the street below. As soon as the car was stopped the motorman called an ambulance and practically done all we could to aid the man. We afterward got the names and addresses of all of the witnesses we could, made a report of the matter to barn headquarters, and boarded our car and went on to the end of the line.

“Q. What was the name of this man who was hurt? A. The name I got was Julius Pietzuk.

“Q. Was this car standing still or in motion at the time this man attempted to board it ? A. It was in motion.

“Q. Is it a fact that this man attempted to board this car when it was standing still on this elevated structure at Armour Station? A. No, sir, the man was not even in sight when the car was standing still. ’ ’ Witness further testified that the car was about forty feet long.

J. E. Shindler, auto mechanic, testified that he was sitting on the rear longitudinal seat of the car, facing south; that “the conductor closed the car and the motorman started the car, and there was á man on the platform there run out to get on; grabbed on the steps, and I presume that the railing that came out there knqcked him off — was the only thing I could see that did it.”

Frank M. Wisdom, connected with the claim department of defendant, testified that Dr. H. L. Regier, who had first attended plaintiff after the accident, and who testified for plaintiff, had told witness that “the man had the evidence of having been drinking; he could tell that very easily.”

None of the witnesses for defendant, except the conductor of the car, identified plaintiff as the man they saw running after the car. Witnesses Snow and Shindler, who wepe asked if they could identify him, said they could not.

■The foregoing outlines in general the case made. Further matters pertinent to the questions presented for review ydll be referred to in the course of the opinion.

The negligence charged in the petition is pleaded as follows: “The conductor without waiting for plaintiff to get safely within said car signaled the motorman in charge of said car to start said ear forward; that the motorman did, in obedience to said signal, start said car forward, and before the plaintiff was able to get into the vestibule of said car or on the platform of said car, and while yet standing on the step of said car with one foot the conductor closed the door of said car while same was moving, pushed plaintiff off the step and, as a result thereof, the plaintiff was thrown violently from said car to the street below, a distance of about thirty or thirty-five feet.”

The answer was a general denial, coupled wih a plea of negligence of the plaintiff in attempting to board a moving car.

The jury returned a verdict for plaintiff assessing his damages at $15,000, and the court rendered judgment accordingly. After an unsuccessful motion for a new trial and motion in arrest of judgment, defendant appeals.

The case has been well briefed in this court by counsel for both appellant and respondent.

I.'Defendant assigns as error that “the court erred in failing and refusing to grant defendant a new trial for the reason that venireman C. (Charles) G. Green did not fully, accurately, and truthfully answer all questions propounded to him on the voir dire examination, particularly concerning any present or previous feeling of bias or prejudice against defendant growing out of litigation against defendant, resulting in prejudice in that defendant was caused to exercise one of its peremptory challenges in removing said venireman, when a truthful disclosure would have furnished cause for the trial court to have excused him. ’ ’

With respect to the voir- dire examination of the juror Green, the record shows the following':

. Examination by Mb. Hogsbtt :

“Q. Have any of you gentlemen ever been sued for personal injuries? A suit brought against you by any one claiming to have been hurt as a result of any fault on your part? On the other hand, have any of you ever brought a suit for personal injuries which might create a prejudice in favor of such an action in your mind? Juror: I had a suit.

“Q. Your name, please? A. C. G. Green.

“Q. And against whom was your suit? A. Street Railway Company.

“Q. And in a general way what was the nature of it, Mr. Green? A. It was a personal injury.

. “Q. Were you a passenger on the car? A. Yes, sir..

“Q. (Continuing) — at the time? Was your case disposed of by trial or by settlement? A. By trial.

‘ ‘ Q. And was the outcome of it such that you would have any feeling at all growing out of the occurrence, either for or against the company? A. No, sir.

‘ ‘ Q. Could you sit on a case in which that company is involved and he a fair juror in the case? A. Yes,

. sir. . . .

Examination by Mr. Prewitt :

“Q. Now, Mr. Green, I believe you said you had a suit against the company? Did have a suit? A. I had one.

“Q. How long ago, Mr. Green? A. Well, it was tried a year ago this fall some time, about a year and a half.

“Q. Who represented you, Mr. Green? A. I can’t recall his name now. He is up in the Scarritt Building.

“Q. Who tried it for the street railway company? A. Conkling.

“Q. Who? A. Conkling.

“Q. Roscoe Conkling, the young man? A. Yes, sir.

“Q. Was that suit for personal injuries? A. Yes, sir.

Q. Do you have some feeling of prejudice against the company on account of the accident? A. No, sir.

“Q. (Continuing) — did you? Growing out of the suit? A. No.

“Q. Have you ever had any feeling of prejudice against the street car company? No, sir.

“Q. Do you think you could sit in this case, Mr. Green, without any feelings of bias or prejudice against the company growing out of this suit? A. Yes, sir.

“Q. Was the disposition of the suit unsatisfactory (satisfactory) to you? A. Yes, sir.”

Learned counsel for defendant contend, that the foregoing examination was not reported, by the official court reporter, but by a substitute who inaccurately reported this question occurring therein, to-wit: “Was the disposition of the suit unsatisfactory to yon?” Counsel maintain that the question as ashed was: “Was the disposition of the suit satisfactory to you?”

To this Mr. Prewitt, of counsel makes affidavit, stating that the error first came to his knowledge on June 16,1919, the trial having been held on May 1 and 2, 1919. The trial court having made no order directing an amendment of the record, this affidavit is unavailing, for it is the settled law that on appeal to this court the bill of exceptions imports verity. [White v. Mo. Pac. Ry. Co., 178 S. W. l. c. 84; Althoff v. Transit Co., 204 Mo. 166; State v. Johnson, 255 Mo. 281; Stegman v. Berryhill, 72 Mo. 307.]

Counsel further insist that venireman Creen had £ £ a feeling amounting to a prejudice against this defendant at the very time he was sitting on the panel in this case.” In support of this insistence counsel refer to affidavits made by Messrs. Roscoe P. Conkling and Dean Davis, attorneys for defendant, filed in connection with defendant’s motion for a new trial. The affidavit of Mr. Conkling, made May 9, 1919, is to the effect that about October, 1917, he represented the defendant company herein or its predecessors, in the trial of a suit brought against the Receivers of the Metropolitan Street Railway Company by Charles C. Creen; that the jury in said cause returned a verdict in favor of said Creen for $1000;, that affiant made several efforts to settle said judgment with Mr. Robert F. McKinstry, attorney for Creen, and, after some negotiation, Mr. McKinstry stated to affiant in September, 1918, that said judgment could be settled for $1000, which was its face value, minus interest; that some time in Décember, 1918, or January, 1919, affiant caused a check for $1000 to be paid to said McKinstry in settlement of said judgment; that shortly thereafter said McKinstry notified affiant that Creen was insisting that interest be paid on said judgment; that a number of times during January, February and March, 1919, said McKinstry stated to affiant that said Charles C. Creen was very angry about the failure of defendant to pay the interest on said judgment. The affidavit of Mr. Davis, made May 7,1919, is to the effect that on May 6, 1919, he interviewed Charles G. Green concerning a lawsuit which said Green had against defendant herein, or its predecessors, growing out of an accident on June 26, 1915, when said Green was injured-boarding a car of defendant, or its predecessors; that in said conversation said Green stated that about September, 1918, he agreed to settle the judgment obtained by him in said suit for $1000, provided said amount was paid him within a few days thereafter, but that he did not hear anything more of the settlement until about the latter part of December, 1918, when he received a check for $500 as his part of the settlement; that said Green stated that he took the check for $500 but protested the failure to have received interest on the $1000, which to May 1, 1919, amounted to $92.50, and that he was expecting that amount to be paid him by defendant, the Kansas City Railways Company; that said Charles G. Green was one of the jurymen on the panel in the case at bar.

As far as the record discloses the j^ror Green was not challenged by counsel for defendant on voir dire examination, nor was objection then offered in any manner to his competency or qualifications. The objection made first appears in the motion for new trial and cannot be considered on appeal. [City of Tarkio v. Cook, 120 Mo. l. c. 11; State v. Brewer, 109 Mo. l. c. 652; Easley v. Mo. Pac. Ry. Co., 113 Mo. l. c. 246; Grove v. City of Kansas, 75 Mo. 672.] Counsel argue, however, that defendant was caused to exercise one of its peremptory challenges in removing him from the panel, “when, if he had answered fully, accurately and truthfully all questions asked him on his voir dire examination, he would have been excused by the court for cause, or at least defendant would have had an opportunity to have raised an objection to him.” An examination of the authorities cited by defendant show that the facts in all thereof are dis-' tinguishable from the situation here present. There the juror was either challenged for cause, had expressed a prejudice, or had participated in the verdict. Here the court below was never requested to reject the juror; there was no showing of bias or prejudice, either on his voir dire examination or by the affidavits filed, but on the contrary on voir dire he unequivocally stated several times that he was not prejudiced; and, he did not sit as a juror in the trial of the case.

■ Defendant urges that it was “entitled to a panel of eighteen qualified men from which the jury is to be struck.” This without question is the law. But, in the instant case, there was no proof of disqualification on the part of juror Green. And moreover, while the question is'not before us, we are nevertheless of the opinion, based upon the adjudicated cases, that even though he had been challenged on the facts disclosed by the affidavits filed, such challenge should properly have been overruled. [McManama v. Railroad, 175 Mo. App. 43; Kennelly v. Kansas City Rys. Co., 214 S. W. 237; Hudson v. Railroad, 53 Mo. 525; Albert v. Terminal Railway Co., 192 Mo. App. 665; In re Bowman, 7 Mo. App. 569; Tawney v. United Railways, 262 Mo. 602; State v. Green, 229 Mo. 642.] We therefore rule the point against defendant.

II. Defendant next contends that the court erred in giving instruction numbered 1, requested by plaintiff. Said instruction is as follows:

“You are instructed by the court that under the law it was the duty of the defendant’s conductor in charge of the car in question, while said car was standing at Armour Station to receive passengers, exercise the highest degree of care to allow persons engaged in boarding said car as passengers, a reasonably sufficient length of time to safely board the same, that is, to reach a place of reasonable safety thereon, before starting said car forward, and a failure by the conductor to do this would constitute negligence on his part.

“Now, therefore, if you believe and find from the evidence that at the time in question the defendant’s street car in question was stopped at Armour Station to take on passengers, and that while said car was standing there (if you so find) plaintiff attempted to board said car at said station for the purpose of becoming a passenger thereon; and that before plaintiff was able to or did safely board said car (if you so find) defendant’s conductor negligently (if you so find) caused said car to start forward and negligently (if you so find) closed the door of said car while said car was moving, and that as a direct result thereof the plaintiff was thrown from said car to the street below and injured and if you further find that his said injuries (if any) were directly caused by negligence on the part of the defendant’s conductor as herein submitted (if you find said conductor was negligent as herein submitted) and that plaintiff was at all times in the exercise of ordinary care for his own safety, then you are instructed by the court, that your verdict must be in favor of the plaintiff and against the defendant.”

Defendant maintains that the gist of, or specific allegation of, negligence charged in the petition, vis., “pushed plaintiff off the step” is omitted from the instruction, thereby making the same broader than the pleadings. To this we cannot give assent. The allegation mentioned is not the sole act of negligence pleaded by the petition. It also contains the allegations that the car was prematurely started forward, that the door was closed while the car was moving, and that as a result thereof plaintiff was thrown violently from the car to the street below. All of these allegations are specifically, and almost literally, covered by the instruction, under which the jury were required to find that the “conductor negligently caused said car to start forward and negligently closed the door of said car while said car was moving, and that as a direct result thereof the plaintiff was thrown from said car to the street below and injured.” Under the state of the proof adduced, when the jury were required to find that the plaintiff was “thrown from” the car, that was fairly alike in significance to requiring them to find that he was ‘‘pushed off” the car, and we do not' believe they could have been misled. The criticism amounts to a distinction without a practical difference. We accordingly hold that the instruction is within the limits of the petition, and does not constitute reversible error. [Johnson v. Railway, 177 Mo. App. 298; Ottofy v. Trust Co., 196 S. W. 428; Riley v. Independence, 258 Mo. l. c. 682-684; Little v. Railroad, 139 Mo. App. l. c. 55; Quinley v. Traction Co., 180 Mo. App. l. c. 300-302; Schwanenfeldt v. Street Railway, 187 Mo. App. l. c. 592, 593.]

III. Defendant insists that the court erred in refusing to give to the jury the peremptory instruction, directing a verdict in favor of defendant, requested at the close of all the evidence, because the phys^ea-'- fac^s as testified to show that plaintiff could not have been injured as claimed. In support of this insistence defendant argues substantially thus: That the elevated platform was fifty to fifty-five feet long and the street car about forty feet in length; that plaintiff’s testimony was that while he was standing on the step of the car it started and ran twenty-four to thirty feet, when he fell; that witnesses for plaintiff testified that he fell when the car was from twenty-four to thirty feet beyond the platform; that the “back end of this car under the undisputed testimony was at least forty feet east of the west side of this elevated structure;” that if he had boarded the car when it was standing still and had ridden on it but twenty-four to thirty feet, he would have fallen at least ten feet east of the west edge of the platform; and that the only way that he could have ridden on the car while it moved twenty-four to thirty feet and then have fallen twenty-four to-thirty feet west of the platform, “was for him to have boarded the moving car at the west side of this elevated structure, as testified to by tbe six witnesses produced by tbe defendant.” In advancing this argument defendant evidently misinterprets tbe testimony of some of its own witnesses when it contends that it was “undisputed” that tbe back end of tbe car “was at least forty feet east of tbe west side” of tbe platform. Witness Heinzman testified that tbe man running to catch tbe car rode about ten feet “on tbe platform” before be fell, which would have placed tbe back end about ten feet east of tbe west edge of tbe platform. Witness Wilhite said that be rode about eight or ten feet, but further says that when be undertook tó grab bold of tbe car it bad run “about twenty-five or thirty feet from tbe e,ast end of tbe viaduct, ’ ’ which Avould have placed it about midway of the platform. Witness Shindler stated that when tbe car stopped to receive passengers tbe rear vestibule thereof was about even with tbe door of the shelter bouse, which other testimony shows Avas about tbe middle of tbe platform. Therefore, according to tbe testimony of witnesses Shindler and Wilhite, when plaintiff boarded tbe car tbe rear vestibule must have been twenty-five feet or more from tbe west edge of tbe platform; and, plaintiff having, testified that be rode twenty-four to thirty feet and fell when about six feet beyond tbe platform, which would be substantially accurate, it cannot be said at a matter of law that it was a physical impossibility for him to have fallen as claimed. Clearly tbe question was one for the jury, and tbe demurrer to tbe evidence was properly overruled. [Swigart v. Lusk, 192 S. W. l. c. 141; Hays v. Railway, 182 Mo. App. l. c. 403; Clark v. Long, 196 S. W. l. c. 412; Ganey v. Kansas City, 259 Mo. l. c. 660, 661.]

IV. Defendant urges that tbe court erred in refusing to sustain the motion for neAv trial because of misconduct upon the part of plaintiff’s counsel in making prejudicial and improper argument to the iUI7> an<^ that it further erred in failing to reprimand counsel therefor. With respect to this complaint the record shows that during the closing argument of counsel to the jury, the following occurred :

“Mr. Hogsett: The jury would never live long-enough to sit on a jury in a case against the Kansas City Railways Company when that company would come in without a defense of some kind.

“Mr. Prewitt: I object to that statement as outside of the record, wholly incompetent, prejudicial and improper argument, and ask that counsel be reprimanded for making such a remark.'

“The Court: Proceed.

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

“Mr. Hogsett: Let the remark be withdrawn, and I will substitute in place of it this, gentlemen, the same in effect, but in a different phraseology that may suit my brother: This company cannot be expected in this case to come into court and admit liability. They must make a defense, they must select from the eight witnesses to this accident, outside their train crew, the best that they can get, who will tell a story favorable to them.”

As to the propriety and effect of the statement made by counsel for plaintiff, the trial judge, who heard the remarks of opposing counsel, was in a better position to determine than are we, and he evidently did not consider the same prejudicial. Nor, from what is before us, are we of the opinion that he was guilty of an abuse of discretion in fáiling- to reprimand counsel. In our judgment, based upon the fragment of the speech quoted, the remark made was not sufficient to have influenced the jury in arriving at their verdict. Furthermore, when counsel for defendant objected to the argarment, the remark was 'at once withdrawn by counsel who made it, and, without objection, another statement was substituted in lieu thereof. If there was any transgression we are constrained to hold that it was cured by such withdrawal. [Grace v. Railway, 212 S. W. l. c. 42; Griggs v. K. C. Rys. Co., 228 S. W. l. c. 513; Sinclair v. Telephone Co., 195 S. W. (Mo. App.) 558; Hollenbeck v. Railway, 141 Mo. l. c. 107; Nance v. Sexton, 203 S. W. (Mo. App.) 649; 38 Cyc. 1502.]

V. Defendant next claims that the court erred “in refusing to sustain the motion for a new trial' on the grounds that the verdict and judgment are contrary to the greater weight of the evidence and because the jury in arriving at their verdict wholly disregarded the instructions given by £he court.” In support of ,the first half of this contention defendant argues that where the verdict is against the weight of testimony to such án extent that it raises “a presumption of prejudice, corruption, or gross negligence on the part of the jury, ’ ’ the appellate court has the right to interfere with the same. Aside possibly from the excessiveness of the verdict, which we will discuss infra, the record in this case is wholly devoid of anything which could give rise to a logical assumption, much less a presumption, that the jury was prejudiced, or corrupt, or grossly negligent. Defendant stresses the fact that the three eye-witnesses for plaintiff all testify to the same facts and that opposed to that testimony defendant has “the positive testimony of six witnesses.” The rule that the weight of testimony is not to be determined by the mere number of witnesses has been so firmly established in our system of jurisprudence that it is useless to cite authority in support thereof. And, as none of the witnesses for defendant, with die possible exception of the conductor, identified plaintiff as the man they saw running after the car, the probative'value of tbeir testimony is not necessarily greater than that of the witnesses for plaintiff.

The verdict for plaintiff was unanimous. The trial court overruled defendant’s motion for new trial, in which it was urged that the verdict was against the greater weight of the evidence. Thereafter defendant filed another motion to set aside the order overruling its motion for new trial, in which it was again urged that the verdict was contrary to the greater weight of the evidence, which motion was also overruled. The trial court has thus passed twice upon that question. And, there being substantial testimony to support the verdict, it is not for this court to weigh the evidence or usurp the power of the jury and substitute its judgment for that of the jury. [Linderman v. Carmin, 255 Mo. l. c. 71; Norris v. Railroad, 239 Mo. 695; Vincent v. Means, 207 Mo. 709.] The defendant having failed to point out any respect in which the jury “disregarded the instructions given by the court” we shall not discuss that question.

VI. Defendant’s final contention is that the verdict is excessive. ¡

With respect to the nature and extent of plaintiff’s injuries and loss of earning power, his testimony showed the following:,That he sustained a broken jaw, five or six teeth knocked out, a broken chest, and his legs were hurt; that as a result of his injuries he had keen unable to do any work for more than two years, that his chest pained him, his legs ached, and when “I bend over my head begins to roar and gets dizzy;” that one side of his jaw was higher than the other; that not until about August or September, 1918, was he again able to work and he then secured employment at Morris & Company, putting .sacks oh'beef, but could only work “a day or two and have to rest a day.”

Dr. H. L. Reg’ier, police surgeon of Kansas City,' Kansas, a' witness for plaintiff, testified' that he saw plaintiff the night of the accident at St. Margaret’s Hospital, Kansas City, Kansas; that he was nnconscions, bleeding from the ear, had a broken lower jaw, some teeth knocked out, and was bloody; that “I took for granted, while I wasn’t quite sure, on account of him bleeding from the ear, that he must have had a fracture of the base of the skull;’?-that the principal thing witness did was to wire his lower jaw; that he “didn’t entertain the idea” that plaintiff was under the influence of liquor. Witness stated that he did not remember having told Claim Agent Prank Wisdom that he found plaintiff under the influence of liquor.

Dr. C. E. Saunders, physician and surgeon, a witness called by plaintiff, testified that he first attended plaintiff 'at St. Mary’s Hospital, Kansas City, Missouri, three days after the accident; that plaintiff was then under his care “continously up until about the 4th or 5th day of May; I saw him every day, and then after that he came to the office about every second or third day until the middle of June, and then I have seen him up to the time I went into the service (July, 1918) on an average of about once a month;” that plaintiff had a compound fracture of the lower left jaw, a fracture at the base of the ákull, several teeth loosened, with three or four knocked out, and numerous bruises; that he had hemorrhage from the ears and from the nostrils, dilated or irregular pupils, a tooth driven into the hone of the lower jaw, and a little piece of hone broken off the upper jaw; that infection set in in the jaw; that the condition of the fracture' of the skull was “always very serious and the outcome questionable, and in Julius’s case I figured he had a 50-50 chance;” that they wired plaintiff’s lower jaw to the upper jaw and fed him through a tube, through an opening in the front teeth, for four or five weeks. ' The witness further stated that about a week before the trial he had examined • plaintiff and found that the union of the hone of the jaw was not in perfect apposition, “one fragment is a little higher than the other fragment, which throws his teeth out of line, ’ ’ one side being between an - eighth and a quarter of an inch below the other and fhe two not touching; that he “has a discharging abscess from the gum, . . . quite a little infection around a good many of his teeth, ... is extremely nervous, has exaggerated reflexes, the patella reflexes, which shows an extreme irritability of the cerebro-spinal canal, that is, the spinal cord; his symptoms are nervous complaints, or dizziness, headiness, and headache occasionally;” that “in stooping he seems to lose control of equilibrium to some extent.” Asked to explain this latter, the witness said: “When you get a fracture of the base of the skull, or the fracture of any bone, you get a union of the bone, you get a deposit of the bone or bony tissue at the line of union. Part of that could be explained by the increased pressure from this deposit, and then the fact that he had a hemorrhage at the ear would indicate that this fracture at the base of the skull extended into what is known as the semi-circular canals which are located near the middle ear, and in these canals are nerve substances that have to do with equilibrium.” Asked if this condition in plaintiff was permanent, the witness replied, “Yes, sir.” Over the objection of counsel for defendant, in response to a question as to whether or not plaintiff could do “manual labor requiring that he stoop over,” witness replied, “No; he can’t do that kind of work; it would be dangerous.” Being further examined, without objection by defendant, witness testified:

“Q. Explain why not, Doctor? A. Well, if he was working, he couldn’t do that kind of work, especially if he had to work off the ground or around machinery, for fear of falling into machinery or falling from any scaffold that he might be working upon.” Witness stated that the amount of his bill was $185.

Defendant offered no evidence with respect to the injuries sustained by plaintiff or relative to impairment of his-earning power.

Prom the evidence it may fairly be deduced that plaintiff suffered severe pain, that the usefulness of his teeth has been seriously impaired and that there is more or less permanent impairment of his capacity for manual labor. However, when measured by the standards applied by this court in numerous cases, the verdict seems to us to be excessive. Prior to the accident plaintiff was earning, at $11 per week, $572 per annum. During the two and one-half years subsequent to his injury when he claims to have been unable to work, he would have earned $1430. The charge which he sustained for surgical and medical attention was $185, making a total loss to him, independent of pain and suffering, of $1615 — $11,000, less the $1615 loss suffered, would leave $9385. This amount, invested at six per cent, would produce an annuity of $563, or within $9 of his total normal earning capacity.

Accordingly, if plaintiff will, within the next ten days, remit the sum of $4,000, so as to reduce the judgment to $11,000, the same will be affirmed as of the date thereof; otherwise, the judgment will be reversed and the cause remanded for a new trial.

All concur.


source: Caselaw Access Project

author: RAGLAND, C.

license: Public Domain

text:
    ELIZABETH (GOODRICH) VAN ZANT v. KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant.
    Division One,
    July 11, 1921.
    1. NEGLIGENCE: Injury to Interstate Passenger: Free Pass: Stipulated Exemption. The United States courts, in the trial in them of causes governed solely by the common law, follow their understanding of the common law, regardless of the decisions of the courts of the State in which the cause of action arose; and they have uniformly held that under the common law, irrespective of any act of Congress regulating interstate commerce, stipulations in an interstate free pass exempting a carrier from liability for personal injury to the passenger negligently inflicted, are enforceable. But under the law of this State an attempt by a common carrier, by a, stipulation annexed to a free pass, to relieve itself of the consequences of its negligence, is ineffective; and where the passenger was riding on a free pass containing such a stipulation, in an interstate journey, her case, if instituted in this State, is to be determined according to the applicable local state law, unless that law has been superseded by some act of Congress regulating interstate commerce, and it has not been so superseded.
    2. -:-:-- — :-: Hepburn Act: Anti-Pass Regulation: Member of Family. The Hepburn Act, fixing a penalty against a common carrier which issues an interstate free pass, “except to employees and their families,” and a like penalty against any person who uses such pass, did not attempt to cover the field of damages for personal injuries negligently inflicted by the carrier upon a person riding on said pass, but the sole purpose of that part of the act was to prohibit the issuance of free transportation by interstate carriers.' It did not prohibit the issuance of an interstate free pass obtained by a railroad employee for his mother, a member of his family, nor prevent her from recovering damages for personal injuries received by her, in this State, while riding, in an interstate journey, on said pass.
    3. -: -: -: -: -: Carmack Amendment. Neither Jthe Hepburn Act nor the Carmack Amendment thereto superseded the law of this State that a stipulation attached to an interstate free pass will not relieve the carrier from damages for personal injuries, negligently inflicted in this State, upon the person using such free pass, in a suit brought in the courts of this State. The Carmack Amendment dealt with the carriage of property only.
    Appeal from Jasper Circuit Court. — lion. Grant Emerson, Judge.
    Affirmed.

      Gyrus Grane and Ray Rond for appellant.
    (1) The question for decision is whether or not the stipulations on a free interstate pass are binding and en-forcible and relieve defendant from liability. Such stipulations are controlled by Federal and not State law. Donovan v. Wells-Fargo, 265 Mo. 229; Bilby v. Ry. Co., 199 S. W. 1004; Holloway v. Railroad, 276 Mo. 500. (2) In the particular instance the Federal legislation is sufficient to put the matter under the operation of Federal law to the exclusion of State law. Leftridge v. Tel. Co., 277 Mo. 90, 97; Tel. Co. v. Lumber Co., 251 U. S. 27; Tel. Co. v. Boegli, 251 U. S. 315; Pryor v. Williams (recently decided by U. S. Supreme Court). (3) Under the decisions of the Supreme Court of the United States, the non-liability stipulations of the pass are binding and enforcible and constitute a complete defense. Charleston Ry. Co. v. Thompson, 234 U. S. 576; N. Pac. Ry. Co. v. Adams, 192 U. S. 440; Boering v. Chesapeake Ry. Co., 193 U. S. 442. Federal cases distinguished are: Norfolk Railroad Co. v. Chatman, 244 U. S. 276; Pac. Ry. Co. v. Schuyler, 227 U. S. 601.

      F. H. Lee, Kenney & Kenney, Norman Cox and Hugh Babbs for respondent.
    (1) It is conceded by appellant, for the purposes of this appeal, that the stipulation on the back of the pass in this case, as to the assumption of risk, is void under the laws of Missouri, where the injury occurred, and under the laws of Kansas, where the pass was issued. (2) The question of the validity of such a contract exempting from liability, and of the liability of a carrier for negligent injury to a person riding on a free pass, is not covered by nor within the matters regulated by the Hepburn Act relating to free passes and the issuing and using thereof. These questions constitute no part of the field covered by that act, nor was the regulation, control or enforcement of such liability taken over or dealt with by Congress by such, enactment. In passing on such a question, even where the case is tried in the Federal court, that court does not determine the question of liability or non-liability by any provisions of the Hepburn Act, but by its own interpretation of the common law. Southern Pac. Co. v. Schuyler, 227 U. S. 610, 612; Weir v. Roundtree, 173 Fed. 779; Smith v. Ry. Co., 194 Fed. 81; Martin v. Pittsburgh Ry. Co., 203 U. S. 284; U. S. Comp. Sts. 1916 Anno., sec. 8563 (5), p. 9069; Wiley v. Grand Trunk Railroad, 227 Fed. 129; Beutler v. Grand Trunk Railroad, 224 U. S. 85; Clark v. Southern Ry. Co., 119 N. E. 539. Cases cited by ¿nalogy: Telegraph cases cited by appellant; Adams Exp. Co. v. Croninger, 226 U. S. 488, 504; Southern Pac. Ry. v. Jensen, 244 U. S. 244. (3) As to the instant case, under the decisions, federal legislation as to the carriers of passengers on a pass has not occupied the field of liability for injury to such a passenger. No attempt has been made to regulate or control this liabilty, and no mention made thereof. The same is true of contracts designed to exempt the carrier from such liability. The State court, or local forum is therefore left free to apply its local laws as to such liability. Southern Pac. Ry. Co. v. Schuyler, 227 U. S. 610-612; Clark v. Southern Ry. Co., 119 N. E. 539; Weir v. Round-tree, 173 Fed. 779; Smith v. A. T. ■& S. F. Co., 194 Fed. 81; Southern Pac. Ry. v. Jensen, 244 U. S. 244; Wiley v. Grand Trunk Ry., 227 Fed. 129. For illustration of the point by analogy and distinction of cases, see other cases cited under Point 2, and Fowler v. Railroad, 229 Fed. 375. The cases cited by appellant under its corresponding point are all cases dealing with the question of rates charged by telegraph companies, a subject which has been wholly taken over by Congress by express enactment. (4) Under the decisions of the United States supreme court and the Federal courts a distinction is made as to what law is applicable in determining the question of the validity of a contract of assumption of risk in connection with a free pass, depending on the forum in which the case was tried. The courts uniformly hold that where, as here, the stipulation on the back of the pass is void under the local law where the in- • jury occurred, and where the case is tried in the State court and comes to the Federal court on writ of error, the State or local law as to liability will prevail, and be enforced by the Federal court on the review, whereas, if the case be tried in the Federal court, either by being brought there originally or transferred thereto by the process of removal, the Federal court will apply its own interpretation of the common law as to the liability. Williams, Jurisdiction & Practice in Federal Courts, p. 193, par. 4; Southern Pac. Ry. v. Schuyler, 227 U. S. 610; Weir v. Roundtree, 173 Fed. 779; Smith v. A. T. & S. F. Ry., 194 Fed. 81; Fowler v. Railroad, 229 Fed. 374; Tweeten v. Railroad, 210 Fed. 830; Charleston Ry. Co. v. Thompson, 234 Ú. S. 576.
   RAGLAND, C.

Action for personal injury. Plaintiff was a member of the family of her son, John Goodrich, who resided at Pittsburg, Kansas. The latter was an employee of the deféndant, and bn August 4, 1917, he obtained from his employer for his mother a free pass over defendant’s railroad from Pittsburg, to Howe, Oklahoma. On August 9,1917, while riding on this pass, on one of defendant’s- passenger trains, enroute from Pittsburg, Kansas, to Howe, Oklahoma, and while passing through Newton County, Missouri, plaintiff was seriously injured through the negligent management and handling of the train by defendant’s employees. On the back of the pass this condition was printed: “This pass is not transferable, must be signed in ink by the holder thereof, and the person accepting and using it thereby assumes all risk of accident and damage to person and baggage.”

The case was tried without a-jury. The defendant asked the court to declare as a matter of law that the stipulation on the back of the pass was valid and binding, and that by reason thereof plaintiff was not entitled to recover. This declaration was refused; the court found for the plaintiff and assessed her damages at $8,000, the sum that had been stipulated in advance to be so assessed, in the event the finding was for the plaintiff. Prom the judgment rendered in accordance with the finding and assessment of damages defendant appeals.

It seems to be conceded by appellant that under the law of this State, as declared by its courts, a person travelling on a free pass granted him by the carrier is a passenger and not a trespasser or mere licensee; that such person is entitled to the same degree of care as any other passenger, and may hold the carrier liable for injuries resulting from its negligence or that of its servants; and that a condition annexed to his pass attempting to relieve the carrier of the consequences of its negligence is ineffective because against public policy. [Bryan v. Railway, 32 Mo. App. 228; Huckstep v. Railway, 166 Mo. App. 330; Young v. Railway, 93 Mo. App. 267; Lemon v. Chanslor, 68 Mo. 340; Sherman v. Railroad, 72 Mo. 62; Padgitt v. Moll, 159 Mo. 143; Powell v. Railroad, 255 Mo. 420.]

Appellant contends, however, that, as plaintiff was travelling from one State to another on an interstate free pass, issued, as it alleges, in accordance with the provisions of the Hepburn Act (U. S. Comp. Stats. 1916, p. 9069, s'ec. 8653, sub-div. 5), the rule of decision,, with respect to the validity of stipulations in such passes exonerating the carrier from liability for negligence, followed by the United States Courts, and not that followed by the courts of this State, should be applied in determining the question of defendant’s liability.

In the trial of causes governed solely by common law in the United States courts, those courts follow their own understanding of the common law, regardless of the decisions of the courts of the State in which the cause of action arose. [Beutler v. Railroad, 224 U. S. 85; Fowler v. Railroad, 229 Fed. 374.] And the former courts have always held that under the common law, irrespective .of any act of Congress .regulating interstate commerce, stipulations in a free pass exempting a carrier from liability for negligence are valid and enforceable. [Northern Pacific Railroad Co. v. Adams, 192 U. S. 440; Boering v. Railroad, 193 U. S. 442; Wiley v. Railroad, 227 Fed. 129.] The instant case, however, having been instituted in a state court of this State, on a cause of action which accrued in this State, and having been tried in such state court, is to be determined in accordance with our applicable local state law, unless that law has. been superseded by some act of Congress in the regulation of interstate commerce. [Adams Express Co. v. Croninger, 226 U. S. 491.]

“Railroad corporations, like all other corporations and persons, doing business within the territorial jurisdiction of a State, are subject to its law. It is in the law of the State, that provisions are to be found concerning the rights and duties of common carriers of persons or of goods, and the measures by which injuries resulting from their failure to perform their obligations may be prevented or redressed. Persons travelling on interstate trains are as much entitled, while within a State, to the protection of that State, as those who travel on domestic trains. A carrier exercising his calling within a particular State, although engaged in the business of interstate commerce, is answerable, according to the law of the State, for acts of non-feasance or of misfeasance committed within its limits. If he fails to deliver goods to the proper consignee at the right time and place, or if by negligence in transportation he inflicts injury upon the person of a passenger brought from another State, the right of action for the consequent damage is given by the local law. ” [Chicago, Milwaukee & St. Paul Railway Co. v. Solan, 169 U. S. 133, 137, 138.]

It is claimed by appellant that all state laws on the subject of interstate free passes, including those relating to personal injuries negligently inflicted by the carrier upon persons while being carried on such passes, were superseded, or annulled, by the Act of Congress of June 29, 1906, known as the Hepburn Act. That act provides: “No common carrier subject to the provisions of this act, shall, after January first, nineteen hundred and seven, directly or indirectly, issue or give any interstate free ticket, free pass, or free transportation for passengers, except to its employees and their families. . . . Any common carrier violating this provision shall be deemed guilty of a misdemeanor and for each offense, on conviction, shall pay to the United States a penalty of not less than one hundred dollars nor more than two thousand dollars, and any person, other than the persons excepted in this provision, who uses any such interstate free ticket, free pass, or free transportation shall be subject to a like penalty.”

Whether the provisions just quoted of the Hepburn Act have the effect contended for must be determined in accordance with the rule announced from time to time by the Supreme Court, in slightly varying phraseology, to this effect:

“When the question is whether a Federal act overrides a State law, the entire scheme of the statute must of course be considered and that which needs must be implied is of no less force than that which is expressed. If the purpose of the act cannot otherwise be accomplished — if its operation within its chosen field else must be frustrated and its provisions be refused their natural effect — the State law must yield to the regulation of Congress within the sphere of its delegated power. But the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation is not to be inferred from the mere fact that Congress has seen fit to circumscribe its regulation and to occupy a limited field. In other words, such intent is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State. ’ ’ [Savage v. Jones, 225 U. S. 501, 533.]

The rule has been more tersely stated in this language:. “To have the effect of superseding a State law, it is not sufficient that a Congressional regulation of commerce invades the same field; it must expressly cover the precise subject-matter, or show a purpose to take legislative possession of the whole field.” [12 C. J. 18.] .

The plain and obvious import of that part of the Hepburn Act under consideration is to prohibit the issuance by an interstate carrier of interstate free passes to any persons, except those of certain designated classes, and to subject both the carrier issuing such a pass and the person using it, in violation of its prohibition, to certain penalties. With respect to the issuance of passes to persons coming within the exception, nothing is said; there is no reference whatever to the form or provisions of any such pass, or to the undertaking thereby assumed by the carrier issuing it; or to the liability, if any, that may be incurred in the transportation thereunder, for a failure on the part of the carrier to exercise care, or otherwise. As evidenced by the language, the sole purpose of the enactment of these provisions was to prohibit the issuance of free transportation by interstate carriers. However, the issuance to certain classes of persons was excepted from the ■ operation of the act. So far as the cases coming within the exception were concerned the law remained unchanged. After the passage of the act, as to the persons named in the exception, the carrier could issue free interstate passes, on such conditions, and under such stipulations, as it saw fit; or it could refuse to issue them at all, just as it could, and did do, prior thereto. The only regulation of interstate free passes undertaken by the act was to prohibit their issuance and use — except with respect to the persons specifically excluded from its operation.

It is obvious, that if Congress, by the Hepburn Act, has assumed the regulation of the duties (and the liability arising from their breach) pertaining to the transportation of persons under interstate free passes, in cases which are in terms excluded from the operation of the anti-pass provision of the act, it must be because the act as a whole, in its general scope and purpose, indicates that Congress has chosen to occupy the entire field of liability incident to the carriage of- interstate passengers. What duty, if any, a carrier owes a gratuitous passenger is but a phase of the larger question of what duty it owes to passengers generally.

The objects sought to be attained by the original Interstate Commerce Act of 1887 (24 U. S. Statutes at Large, p. 279, c. 104) was to secure continuous carriage, and just and uniform rates, and to compel the furnishing of, equal facilities. It contained no provision touching lability for- negligence on the part of the carrier in carrying either persons or property. . [Pennsylvania Railroad Co. v. Hughes, 191 U. S. 477, 487, 488.] The- first legislation by Congress with respect to such liability was the Carmack Amendment to the Hepburn Act (34 U. S. Stats, at Large, 584, 585, c. 3591), and that dealt with the carriage of property only. [Adams Exp. Co. v. Croninger, supra.] The act will be searched in vain for a correlative provision relating to the carriage of persons. The anti-pass provision of- the act was merely in furtherance of the purpose of the original Interstate Commerce Act to secure equality and prevent unjust discrimination.

Whether responsibility for personal injuries sustained by interstate passengers is still subject to the regulations of the several States does not seem to have even been directly passed upon by the Supreme Court, but in Southern Pacific Co. v. Schuyler, 227 U. S. 601, 612, it held that the anti-pass provision of the Hepburn Act does not deprive a party who accepts gratuitous carriage in interstate commerce, in actual but unintentional violation of the prohibition of the act, of the benefit and protection of the law of the State imposing upon the carrier a duty to care for his safety.

The Supreme Court of Indiana, in passing upon the precise question under consideration here, held that the Hepburn Act and the Carmack Amendment thereto do not attempt to regulate liabilities of carriers of persons on valid free passes, and that such liabilities continue subject to state statutes. [Clark v. Railway, 119 N. E. 539.]

Our own conclusion is that Congress has not legislated on the subject of the rights and liabilities of the parties in cases of the interstate carriage of passengers under free passes, not coming within the prohibition of the Hepburn Act, or respecting the validity of stipulations or conditions annexed to such passes exempting the carrier from liability and that, therefore, these matters remain the subject of regulation by the several States.

In accordance with the views herein expressed, the judgment nisi should be affirmed. It is so ordered.

Small, C., concurs; Brown, G., absent.

PEE CUEIAM: — The foregoing opinion of Eaglañd, C., is adopted as the opinion of the court.

All of the judges concur.