the injury, where plaintiff driver of a truck A. F. Evans and Francis M. Hayward, both of Kansas City, for appellant. Cowherd, Ingraham, Durham & Morse and Wil2. TRIAL 194-INSTRUCTION-CREDIBILITY kinson & Wilkinson, all of Kansas City, for respondent. OF WITNESSES. Where, in an action against a city for injuries received by a truck driver through the defective condition of a street, the testimony of witnesses on each side as to the depth of the crack in the roadbed into which the wheel of the truck sank was based on measurements, an instruction, in effect, that if the testimony of witnesses as to the depth of the hole was based on mere estimates, then the jury should accept the testimony of witnesses "on the other hand" who made actual measurements, being plainly based on the idea that the city's witnesses testified to actual measurements, while plaintiff's testified from mere estimates, was improper, as invading the province of the jury to determine TRIMBLE, J. The suit herein is to recover damages on account of personal injuries resulting from an alleged defective street. A verdict was returned against the city, and it has appealed. Plaintiff was driving a double-decked soda pop delivery wagon west on Twelfth street between Troost avenue and Harrison streets. A double-track street railway line lay in the center of Twelfth, and plaintiff was on the north or right-hand side of the street between the railway and the curb. A laundry wagon standing in plaintiff's path near the north curb caused him to turn out to the left and 260-INSTRUCTION-REPETITION. on to the tracks in order to pass it. While the weight of evidence. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 413, 436, 439-441, 446-454, 456-466; Dec. Dig. 194.] 3. TRIAL It is not error for the court to refuse a request covered and stated by other instructions given for the party. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 651-659; Dec. Dig. 260.] 4. MUNICIPAL CORPORATIONS -LIABILITY FOR DEFECTS. 767-STREETS A municipality is not required to keep its streets free from ruts, and the mere fact that an injured truck driver's wagon wheel went into a rut, he being thrown out thereby, did not render the city liable, unless the rut rendered the street not reasonably safe for travelers exercising ordinary care. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1623; Dec. Dig. 767.] he was yet on the tracks he heard a street car approaching rapidly from behind, and as soon as he had passed the laundry wagon he again turned into the space between the track and the north curb. His vehicle was longer than the ordinary wagon, and, in order to get the rear end of it far enough from the track to escape being struck by the car, he had to drive the front wheels close to the curb. Just as he was about getting his wagon parallel with and between the track and the curb, his right front wheel suddenly and unexpectedly dropped into a crack or opening in the pavement, which was filled with water and soft sediment, and the wheel instantly stuck fast, causing the wagon to give a sudden downward jolt and jerk, throwing. plaintiff out of the driver's seat to the pavement, breaking several ribs and otherwise bruising and injuring him. His helper, on the seat beside him, was also jerked off, but, as his hands were not engaged in holding the lines, he managed to catch and save him 6. DAMAGES 130- PERSONAL INJURIES- self. The break or crack in the pavement EXCESSIVE VERDICT. Where plaintiff truck driver sustained injuries when the wheel of his truck sank into a rut in the street, throwing him from his seat, so that he broke three or four ribs, was bruised, suffered injuries to the pleura, was confined to his bed for two weeks, and the house for five weeks, was treated for three weeks daily by a physician, every other day for the next two weeks, thereafter received treatment at the physician's office, required a nurse for twelve days, and five months after the accident still suffered and was unable to follow his usual employment or to do any work requiring lifting or the raising of his arms above a certain level, verdict for $2,000 in his action against the city was not excessive. [Ed. Note.--For other cases, see Damages, Cent. Dig. §§ 357-367, 370; Dec. Dig. 130.1 (which was of cobble stones) was four inches. wide, and, for a distance of two and onehalf to three feet, was from six to seven inches in depth, though the crack extended, at a lesser depth, for a distance of about. eight feet. The iron felloe of the wheel caught in this crack as in a vise causing the wagon to stop with a jerk in conjunction with the jolt arising from the drop of the wheel into the cavity. There was ample evidencetending to show that the defect had existed in that condition for nearly a year prior to the injury, and that the street officials of the city knew it was there, and that it was get-ting worse all the time. [1] Plaintiff's injury occurred on the 16th | cases cited by defendant on the point now of August, 1913. His suit was filed 6 days later, to wit, on August 22, 1913, and on September 8, 1913, the city filed its answer to the petition. under consideration were where either no notice was given at all, although required, or were cases in which the statute provided that notice must be given before suit is brought, Point is made that the court erred in ad- such, for example, as Pardey v. Mechanicsmitting in evidence the notice plaintiff gave ville, 101 Iowa, 266, 70 N. W. 189; Reining the city of the occurrence and of his inten- v. City of Buffalo, 102 N. Y. 308, 6 N. E. 792; tion to claim damages therefor. No attack Curry v. City of Buffalo, 135 N. Y. 366, 32 was made on the sufficiency of the contents N. E. 80. Again, other cases cited are dealof the notice, nor was any assault made upon ing with statutes which require the claim to the petition. The grounds of the objection | be first presented to the council for allowance to the introduction of the notice in evidence or rejection and making their action thereon were that notice was not alleged in the petition, and that the notice was not served until after suit had been brought. The statute requiring notice to be given the city is the act approved March 21, 1913, found in Laws of Missouri, 1913, p. 545, and, so far as applicable to this case, is as follows: "No action shall be maintained against any city of this state * * * on account of any injuries growing out of any defect in the condition of any * * * street * * * in said city, until notice shall first have been given in writing to the mayor * * within 90 days of the occurrence for which such damage is claimed, stating the place where, the time when such injury was received, and the character and circumstances of such injury," etc. Plaintiff, therefore, had 90 days from the 16th of August, 1913, to give his notice. His petition was filed within 6 days, and the city filed answer thereto within 30 days of the oc currence. "The object of the statute is to give the city opportunity to investigate the case while conditions are fresh, and thus protect itself against actions which may be brought long after the occurrence." Jacobs v. City of St. Joseph, 127 Mo. App. 669, 106 S. W. 1072. an absolute bar to an action in any court on such claim, unless the council's order is appealed from or the council agrees that a suit may be filed. Such, for example, is the case of O'Donnell v. City of New London, 113 Wis. 292, loc. cit. 295, 89 N. W. 511. For a similar reason Minnesota cases are not in point, because their statute provides that "before the city shall be liable" the party injured must present his claim to the governing body of the city and allow it a certain time in which to decide whether it will pay or not and upon the course it will pursue. As said in the Meyer Case, supra, our statute is "an enactment of a different character." Other cases cited by defendant are where the statute under consideration created or gave a cause of action which did not theretofore exist and provided for the giving of notice as a necessary element of, or condition precedent to, such cause of action. In Mathieson v. St. Louis, etc., R. Co., 219 Mo. 542, 118 S. W. 9, the cause of action was on a Kansas statute which gave a right of action to a railroad employé injured by the negligence of another employé provided he gave notice. Of course, the notice was a nec In the case of Meyer v. Mayor, etc., of New York, 14 Daly (N. Y.) 395, the statute provid-essary element in his right of action, and was ed that: "No action * * shall be maintained unless notice of the intention to commence said action shall have been filed * * * within six months," etc. No notice was filed, but the suit itself was brought within the time. The court held that the statute was complied with where the suit was filed within the time notice is required to be given; "for the notice required for the protection of the city is given in the fullest manner by the action itself." It would seem that the wording of that statute affords more ground for the view that the notice must be given before the suit is filed than does ours; for it requires "notice of an intention to commence" an action. But the court held that the complaint "conveys all the information which the statutory notice is designed to give," and that the statute was not intended to apply to suits brought within the time required for notice, and that the enactment in question is of a different character from those which require presentment of the claim to the city authorities a certain time before suit is brought, so that the city may have an opportunity to pay the claim therefore a condition precedent to his bringing suit. The same should be said of Madden v. Missouri Pacific R. Co., 167 Mo. App. 143, 151 S. W. 489. The case cited from Michigan is not in point; for there the general law of the state did not give a right of recovery for mere neglect to keep the streets in a reasonably safe condition for travel, and where a city charter provided that the city should never be liable for damages to persons for failure to keep streets safe, then, although a general law was afterwards passed giving such liability, yet it was held that the general law did not repeal the charter provision. However, certain charters did provide a cause of action where written notice of the defect was actually served upon the city, and it thereafter failed to repair. In other words, the only cause of action given was for failure to repair within a reasonable time after receiving written notice of the defect. As said in Forsythe v. City of Saginaw, 158 Mich. 201, loc. cit. 204, 122 N. W. 523, 524: "Under the charter, written notice of the defective condition of the highway must be given unreasonable delay in repairing must occur, or, The instruction plainly was based on the else there is no liability." Of course, the written notice to the city of the defect, not of the injury, was an es sential element of the cause of action, and both the notice and the failure to repair thereafter, coupled with an injury, were necessary to create a cause of action. In the case at bar the cause of action existed independently of the statute. It merely seeks to regulate the remedy-the right to maintain the action. As said in Jacobs v. St. Joseph, supra, 127 Mo. App. loc. cit. 672, 106 S. W. 1073: "Our statute does not say a notice must be given before bringing the suit. It reads that: No action shall be maintained against a city, unless notice shall first have been given,' etc. To bring an action and to maintain an action are not necessarily the same thing. One may bring an action, and yet, from reasons disconnected from his right to bring it, he may fail to maintain it." idea that the city's witnesses testified to actual measurements, while those of plaintiff gave their testimony from mere estimates, and the construction naturally to be placed on the instruction would be that the plaintiff's witnesses on the subject should be disregarded. All of plaintiff's witnesses, with possibly one exception, made measurements, and their testimony was that they measured through the mud and slush. The one witness who testified upon estimates did not differ very materially from the city's witness who testified upon measurements, and the city's witness made no attempt to clean the mud out to see how deep it would allow a wagon wheel to sink. The state of the evidence, therefore, did not present a situation where a mere guess was opposed to And, as intimated actual measurements. above, the effect of the instruction would have been to invade the province of the jury. [3-5] The refusal of instruction No. 9 was not error. The correct element therein was fully stated and covered in other instructions given in defendant's behalf. The rest of the In National Fertilizer v. Fall River, etc., Bank, 196 Mass. 458, loc. cit. 460, 82 N. E. 671, 672 (14 L. R. A. [N. S.] 561, 13 Ann. Cas. 510), the court, in speaking of the meaning of the word "maintain" in a statute, say: "Using the words in their ordinary signifi-instruction told the jury that, if they found cance 'maintain' carries a different meaning from 'institute' or 'begin,' and implies that an action must be begun before it can be main tained." Our Supreme Court in Carson-Rand v. Stern, 129 Mo. 381, loc. cit. 387, 388, 31 S. W. 772, 773, 32 L. R. A. 420, in dealing with a statute providing that no foreign corporation failing to comply with our laws concerning such could maintain a suit, say: * * "The statute does not, in express terms, forbid the bringing of an action by such a company. It declares that it cannot 'maintain' an action, not having complied with the law. Keeping the general purpose of the law in view, what are we to understand by the word 'maintain,' as used in the third section. As its structure suggests, it signifies, literally, 'to hold by the hand'; hence (in ordinary use) 'to uphold; to sustain; to keep up.' While in pleading it is defined to mean to support what has already been brought into existence.' derson's Law Dict. * * We are bound to assume that the word 'maintain' was chosen to express the exact shade of meaning intended by the lawmakers. It does not, with its present context, seem to us to include also the word 'begin.' Philpott v. Jones (1834) 2 Ad. & El. 41." An In view of all that is hereinbefore said, we are of the opinion that the Legislature chose the right word to express the exact shade of meaning it intended when it used the word "maintain," and, as said in the case last cited, the statute "should not be enlarged beyond its natural meaning to accomplish the forfeiture of a right of action." [2] The refusal of defendant's instruction No. 7 was not error. It sought to tell the jury that, if the testimony of the witnesses as to the depth of the hole were based on mere estimates, then the jury should accept the testimony of witnesses "on the other hand" who made actual measurements, if the rut did not exceed four inches in depth, they should return a verdict for defendant. This, however, was only one feature of the defect. The evidence shows it was filled with mud and slush, and was of such a nature as to allow a wheel to drop therein and instantly catch as in a vise, thus making a trap which could, and did, catch and injure plaintiff. The defendant was entitled to an instruction that the city was not required to keep its streets free from ruts, and that the mere fact that plaintiff's wagon went into a rut would not authorize the jury to find for plaintiff. This the court gave. The plaintiff's instruction told the jury, before he could recover, he must prove that the rut rendered the street not reasonably safe for travelers exercising ordinary care and caution. Instruction No. 9, if given, would have invaded the province of the jury, and, under all the evidence, was improper. Heberling v. City of Warrensburg, 133 Mo. App. 544, 113 S. W. 673; Blair v. Mound City R. Co., 31 Mo. App. 224. [6] It is lastly claimed that the verdict is excessive, but clearly this point is without merit. Plaintiff had three or four ribs broken. There were bruises and injuries to the pleura. He was confined to his bed for two weeks, and to the house for five weeks. For the first three weeks he was treated every day by the physician, then every other day for the next two weeks, and after that he received treatment at the physician's office. He required a nurse for twelve days, and at the time of the trial, five months after the accident, was still suffering and unable to follow his usual employment or do any work requiring lifting or the raising of his arms above a certain level. In view of all this, cessive. Feddick v. St. Louis Car Co., 125 Mo. App. 24, 102 S. W. 675; Jones v. Mo. Pac. Ry. Co., 31 Mo. App. 614; Dawson v. St. Louis Transit Co., 102 Mo. App. 277, 76 S. W. 689; Black v. Missouri Pac. R. Co., 172 Mo. 177, loc. cit. 190, 72 S. W. 559. Finding no error in the record, the judgment is affirmed. The other Judges concur. HELLRIEGEL v. DUNHAM et al. (No. 11625.) (Kansas City Court of Appeals. Missouri. Oct. 4, 1915. Rehearing Denied 1. MASTER AND SERVANT 202 - MASTER'S LIABILITY FOR ACTS OF SERVANT. Where M., one of several employés of a railroad company operating a rail-bending machine, was ordered by the foreman to turn a rail, which had to be turned so it could be put on the bender, and M., being angry and actuated by malice toward the foreman, turned the rail in a reckless manner, injuring another employé, the employer was liable, though the rail was intentionally thrown or swung around by M. for the purpose of striking the foreman, as his act was in the prosecution of the employer's work and his personal motive did not exempt the employer from liability. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 535–537; Dec. Dig. 202.] 2. MASTER AND SERVANT 177-MASTER'S LIABILITY FOR ACTS OF SERVANT. To make a master liable for the act of his servant, it must be done, not only while the servant is employed in the master's business, but in the course of the employment and in furtherance of the master's business. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. .-177.] MASTER'S 4. MASTER AND SERVANT 305 LIABILITY FOR ACTS OF SERVANT. If the act of a servant is within the scope of his employment, the master will be liable, though the servant does not obey his orders as to the manner of its performance. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1223, 1224; Dec. Dig. *mm 305.] 5. MASTER AND SERVANT 302-MASTER's LIABILITY FOR ACTS OF SERVANT. A master is liable for the willful or malicious acts of his servant, where they are done in the course of the employment and within its scope. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. 302.] 6. APPEAL AND ERROR 1001 - REVIEW QUESTIONS OF FACT. this question of fact was submitted to the jury, and there was ample evidence from which they could find that the rail was turned in the service of the employer, thereby striking plaintiff, their finding must be respected. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. 1001.] 7. APPEAL AND ERROR 1002 QUESTIONS FOR JURY - INCONSISTENT TESTIMONY OF WITNESS. Plaintiff's affirmative answers to the carefully worded questions of a skillful cross-examiner, requiring careful discrimination to answer them strictly, could not conclusively overturn his clear, plain, and unequivocal statement of the facts whenever asked to give his version of them, and, notwithstanding such answers, it was for the jury to look at the whole evidence and determine the effect thereof. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.1 8. MASTER AND SERVANT 264 FOR INJURIES-VARIANCE. ACTIONS Where an employé in swinging a railroad rail around in a reckless manner was actuated by a wrongful, intentional motive toward the foreman, his act was nevertheless negligent in so far as another employé, struck by the rail, was concerned, and in his action for injuries, where the petition alleged the character of the act in relation to him, there was no variance. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 861-876; Dec. Dig. 264.] 9. MASTER AND SERVANT 198-LIABILITY FOR INJURIES NEGLIGENCE OF FELLOW SERVANTS-STATUTORY PROVISIONS-"RAIL Rev. St. 1909, § 5434, makes every railroad corporation owning or operating a railroad in the state liable for all damages sustained by any agent or servant while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant, and section 5439 defines "railroad" as used in that article as including street railways and electric railroads. In an action for injuries to an employé in the shops of a street railway company, who at the time of the injury was working on a rail-bending machine, defendant's operation of the railroad system and its maintenance of shops for the purpose of repairing the tracks was admitted, and the evidence showed that the rails being bent had been in use and were being bent for use at a particular place. Held, that it sufficiently appeared that the rails were intended for use in connection with a railroad already in operation, and not for one being constructed, and the fact that plaintiff and the person whose negligence caused the injury were fellow servants was not a defense, as they did not have to be actually engaged in running a car to come within the statutory phrase "operating a railroad," and it was sufficient that they were doing work for the railroad which was directly necessary for the operation thereof. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 493-514; Dec. Dig. 198.] For other definitions, see_Words and Phrases, First and Second Series, Railroad.] Appeal from Circuit Court, Jackson County; Jos. A. Guthrie, Judge. "Not to be officially published." Action by Charles Hellriegel against Robert In an action for injuries to an employé struck by a railroad rail which M., another employé, was directed by the foreman to turn, where, though defendant claimed that M. threw J. Dunham and another, receivers, and the the rail at the foreman intending to assault him, Metropolitan Street Railway Company. Judgment for plaintiff, and defendants ap- of each case. To make the master liable for peal. Affirmed. John H. Lucas and Bruce Barnett, both of Kansas City, Mo., for appellants. Griffin & Orr, of Kansas City, Mo., for respondent. an act of the servant, under circumstances such as we are here considering, the act must be done, not only while the servant is employed in the master's business, but it must be done in the course of that employment, and be one that is in furtherance of the employer's business. McPeak v. Missouri Pacific R. Co., 128 Mo. 617, 30 S. W. 170. If the servant is doing the work for which he is employed, the master is liable to a third person for an injury caused by either the manner or the mode of performance. Collette v. Rebori, 107 Mo. App. 711, 82 S. W. 552. If the act of the servant is within the scope of his employment, the master will be liable, although the servant does not obey his orders as to the manner of its performance. Sherman v. Hannibal, etc., R. Co., 72 Mo. 62, loc. cit. 66, 37 Am. Rep. 423. It was formerfor willful or malicious acts of his servants, as distinguished from his neglect, unless the act was done pursuant to the master's exit was done in the line of the servant's dupress orders or with his consent, even though ties. 26 Cyc. 1527. But it is now well settled that the master is liable for the willful or malicious acts of his servant where they are done in the course of his employment and within its scope. 26 Cyc. 1528. As said in Whiteaker v. Chicago, etc., R. Co., 252 Mo. 438, loc. cit. 458, 160 S. W. 1009, 1014: TRIMBLE, J. [1] Plaintiff was employed in the shops maintained by defendants in connection with the operation of their street railway system in Kansas City for the repair of the rolling stock, tracks, etc., of said railway. He, in company with two others, Bronstein and Manlove, was operating a railbending machine under the direction of Sunner, a foreman or straw boss. Rails were being bent in a somewhat circular form for use in a curve on the tracks of the system at a street intersection. The rail-bending machine was on wheels set upon a track, and the rails to be bent were lying in a pile along-ly considered that the master was not liable side the machine. In order to place one of these rails upon the machine, it was necessary that the rail be turned end for end. Sunner, the foreman, ordered Manlove to "take the top rail and put it around so they can put it on the rail bender." Manlove seized hold of the top rail which, owing to its position or shape, rested as on a pivot in the middle, and swung it violently around, causing the flange of the rail to strike and injure plaintiff's knee. This suit for damages followed. Plaintiff obtained judgment for $762, and defendants have appealed. It seems that Manlove was frequently late in coming to work, or slow in getting at it after he arrived, and on this morning he either did not commence work as soon as boss Sunner thought he should, or else did not enter into it with the spirit or zest the boss thought necessary. At any rate, as the four men were about the rail-bending machine in the performance of their work, Sunner scolded Manlove for his remissness and gave him the above-mentioned order to turn the rail around. Manlove, angered by the reprimand, seized the rail and threw it around with violence, and plaintiff was struck on the knee as above stated. Plaintiff exclaimed "Manlove, what are you trying to do, break my leg?" Manlove replied "No, not yours, but this referring to Sunner. "At bottom, the doctrine of all well-reasoned cases is that, under the maxim respondeat superior, the master must answer in certain circumstances for the wrongful act of his servant precisely as the principal must answer for those of his agent. The general rule is that the maxim respondeat applies when the servant, in the line of his employment about his master's business, seeks to accomplish his master's purposes and in doing so acts negligently, or will fully and maliciously, or even contrary to his orders or criminally, in some instances. That general rule is hornbook doctrine and beyond dispute." Or, as stated in Grattan v. Suedmeyer, 144 Mo. App. 719, loc. cit. 723, 129 S. W. 1038, 1040: "If the servant, in performing the work of the master, injures a person, either through malice or negligence, the master is liable, but if the servant is not doing the work of the master at the time of the injury, but is, at that particular time, following his own inclinations aside from his master's work, the master is not liable, and this is the rule by which to test the master's liability." See, also, Garretzen v. Duenckel, 50 Mo. 104, 11 Am. Rep. 405; Canfield v. Chicago, etc., R. Co., 59 Mo. App. 354; Landers v. Quincy, Omaha, etc., R. Co., 134 Mo. App. 80, 114 S. W. 543. In Stranahan Bros., etc., Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634, 4 L. R. A. (N. S.) 506, it is held that a master is liable for the malicious acts of his serv [2-5] It is defendant's contention that under these circumstances there is no liability on the part of the master. It is insisted that Manlove, in angrily turning the rail around, was not within the scope of his employment nor acting in the line of his duty, but was attempting to commit an assault upon the foreman, an act of his own, for which the defendant should not be held liable. The difficulty in determining whether a master is liable for injuries inflicted by a servant, un-ant, whereby others are injured, if the acts der circumstances similar to these, arises, not on account of vagueness or uncertainty in the rules of law on the point, but in the application of the law to the particular facts are done within the scope of the employment, and in the execution of the service for which he was engaged by the master. In 2 Mechem on Agency (2d Ed.) § 1929, it is said: |