"To pay such compensation, you will assess against the city the amount of benefit to the city, and the public generally, if any, including the benefit, if any, to any property of the city within the limits of the benefit district as prescribed by said ordinance; and the balance of such compensation, you may assess against such of the several lots and parcels of private property, exclusive of the improvements thereon, which you may deem actually and specially benefited by the proposed improvement, and which is within the limits of the benefit district as prescribed by said ordinance, and shown on the plat introduced in evidence; each lot or parcel of ground to be assessed with an amount bearing the same ratio to such balance as its actual and special benefit, if any, bears to the whole benefit to all the private property so assessed. "You will assess no property with benefits which is not actually and specially benefited by the proposed improvement. * "If you find that the damages in this proceeding exceed the actual and special benefits, Kansas City v. Bacon, 157 Mo. 450, 57 S. W.` 1045. (4) Instruction A refused by the court would have required the jury to specify in their awards of damages that the city pay interest from the dates of such awards to the dates of payment respectively. If its purpose was to obligate the city to pay interest on the awards, it fell within the prohibition of section 10, art. 6, of the Charter. In any event, the question of interest was not for the jury. The record disclosing no reversible error, the judgment of the circuit court is affirmed. All concur. MEYERS v. WELLS. (No. 24636.) May 23, 1925.) if any, to all private property to be assessed, (Supreme Court of Missouri, Division No. 1. including the benefits, if any, to the city and its property within the limits of the benefit district you will so report and proceed no further." Appellants complain that this instruction would have directed the jury to assess benefits at a sum sufficient to cover the total damages regardless of whether benefits to that extent were actually received, if it were not for the portion italicized, and that part they say was not authorized by the charter. It may be true that the charter does not expressly limit the special benefit which may be assessed against private property for the expense of a local improvement to the amount actually received, but it must be construed in connection with the organic law which does impose such a limitation. When so construed appellants' theoretical difficulty disappears. I. Carriers 320 (18)-Whether there were persons on car steps preventing closing of door held for jury. In action for injuries to passenger falling through open door of moving street car, whether there were persons on steps, preventing closing of door, held for jury on conflicting testimony. 2. Carriers 298 (1)-Care required, and what constitutes violent or unusual jerk of car, depend on conditions. Care required of street railroad for safety of passengers, and what constitutes violent or unusual jerk of car, depends on existing conditions. 3. Carriers 320 (19)-Whether passenger was thrown through open door of car by unusual, sudden, or violent jerk held for jury. Whether passenger was thrown through open door of moving street car by unusual, sudden, or violent jerk held for jury. 4. Evidence 537-Chiropractor held qualified to testify as to condition of vertebræ found on physical examination, though not licensed medical practitioner. Chiropractor, who had made special study of human spine and had several years' experience in detecting and adjusting subluxation of vertebræ, held qualified to testify as to condition or relative position of vertebræ, found on direct physical examination, though he was practicing without license. [9-11] V. As to the miscellaneous matters grouped under this subdivision: (1) In view of the record recitals it does not lie in the mouths of appellants to say that there was no evidence of special benefits. (2) The award of damages to McTernan was one which under the evidence the jury could reasonably and properly have made. (3) The instructions with reference to the assessments of benefits afforded general directions only-they left the specific amounts to be assessed against the city and the owners of private property respectively to the unfettered discretion of the jury. It cannot be said therefore, that, in assessing against the city a nominal benefit only, the jury disregarded the court's instructions. In this connection it should be said that there is nothing in the facts of this case to distinguish it Testimony of nerve specialist that concusfrom many others in which similar verdicts sion of brain, caused by fall rendering patient have been upheld by this court. Kansas City unconscious for 10 or 12 days, could have v. Smart, 128 Mo. 272, 30 S. W. 773; Kan- caused conditions he testified to finding on physsas City v. Bacon, 147 Mo. 259, 48 S. W. 860;ical examination, held admissible. 5. Evidence 528(1)—Nerve specialist's testimony that concussion of brain caused by fall could have caused conditions found on physical examination held admissible. (273 S.W.) 6. Evidence 528 (1)-Physician's testimony LINDSAY, C. This is a suit to recover that conditions testified to could have been damages for injuries sustained by the plaincaused by blow on head held admissible. tiff, as a passenger on a street car operated Physician's testimony that fracture and dis-in the city of St. Louis by the defendant in location of vertebræ and rupture of ear drum, testified to by him, could have been caused by blow on head, held admissible as against objection that it gave jury roving commission and authority to render verdict on mere conjecture. 7. Appeal and error 232 (2)-Defendant cannot urge different objection to evidence on appeal than that made on trial. Defendant, objecting on trial to physician's testimony as to cause of plaintiff's condition as invading jury's province, cannot urge on appeal that it was too indefinite, and authorized verdict on mere conjecture. 8. Trial 296(11)-Instruction held not objectionable, as not requiring finding that loss of earnings was direct result of injuries complained of, in view of another instruction. Instruction to consider impairment of plaintiff's earning capacity in determining damages, and find for her in sum, not exceeding weekly wage, which would be fair and reasonable compensation for injuries sustained as direct result of defendant's negligence, held not objectionable, as not requiring finding that loss of earnings was direct result of injuries complained of, in view of another instruction. 9. Trial 296(9)-Instruction held not erroneous, as assuming negligence of defendant. Instruction to find for plaintiff in such sum as will be fair and reasonable compensation for injuries sustained, "if any," as direct result of defendant's negligence, held not erroneous, as assuming such negligence, in view of whole instruction, and other instructions defining negligence and requiring finding thereof as prerequisite to recovery. 10. Damages 132(3) - $12,500 for permanent injuries, loss of earnings, and impairment of earning capacity, held excessive by $3,500. $12,500 for injuries resulting in permanent partial paralysis of face, loss of from 17 to 22 pounds in weight, headaches, and extreme nervousness, pains in back, unsteadiness on feet, impaired hearing and memory, loss of earnings of $20 per week for six months, and employment at from only $10 per week to $75 per month at intervals thereafter, held excessive by $3,500. Woodson, J., dissenting in part. his capacity as receiver. After setting forth the relation of the parties as carrier and passenger, the petition described the manner of the occurrence and alleged negligence on the part of defendant as follows: "Plaintiff further states that, as said car approached what is known as about 4000 Olive street, the door of the rear platform on which plaintiff was standing was negligently allowed to remain open by the defendant's agent and servant, the conductor; that said rear platform was crowded, and plaintiff was unable to obtain a seat in said car, and was compelled to stand defendant negligently caused, suffered, and peron the rear platform and near said door, when mitted said car unexpectedly to give a sudden, violent, and unusual jerk; and that thereby and by reason of said negligence aforesaid the plaintiff was thrown from said street car to the street, whereby plaintiff was injured, as follows." Error is assigned in the overruling of defendant's demurrer to the evidence, offered at the close of the whole case, and it is urged that under the testimony plaintiff was not entitled to go to the jury under either of the charges of negligence pleaded in the petition. The evidence is to be considered in view of that contention. At the time of the injuries alleged the plaintiff was a young woman about 25 years old, and then, and for about a month before was employed by Francis Bros. Co., whose offices were on Fourth street, a little south of Olive street, and at the time, a little after 8 o'clock in the morning, she was on her way to her place of employment. She entered an east-bound "Delmar-Olive" car, at Walton and Delmar avenues, and paid her fare. The car was entered at the rear, Appeal from St. Louis Circuit Court; Vic- and was what is termed a "pay-as-you-enter" tor H. Falkenhainer, Judge. Action by Gertie Meyers against Rolla Wells, receiver of United Railways Company of St. Louis. Judgment for plaintiff, and defendant appeals. Affirmed conditionally. T. E. Francis, Charles W. Bates, and Ernest A. Green, all of St. Louis, for appellant. Wilbur C. Schwartz and Charles E. Morrow, both of St. Louis, for respondent. car. The box for receiving fares was placed back of the right-hand row of seats, and to the right of the aisle, and the conductor stood doors to his left and not far from his hand. facing the rear of the car, with the entrance There was a guard rail round the fare box. The entrance doors, each between one and two feet in width, and the steps, moved in conjunction; that is, when the doors were closed the steps folded up under or against the frame of the car, and when the doors For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes were opened the steps unfolded and extended downward, ready for use as such. The plaintiff testified that when she boarded the car, so far as she could see, it was filled with passengers, all the seats being occupied and the aisles jammed with passengers, and that she, on that account remained on the platform, and stood near the door, and that there were other passengers on the platform. The car, proceeding eastward, crossed Taylor avenue, an intersecting street, at 4500 west, and Sarah street, at 4100 west. The latter was the last stopping place before reaching the place where plaintiff was injured. Before reaching Sarah street, some additional passengers had been taken on, and in going on from Sarah street the door of the car remained open. The plaintiff testified that she was standing about a foot from the open door; that there were persons between | her and the guard rail; that the platform was crowded; that there was no one between her and the door; that there was no one standing on the step. Going east from Sarah street there is a down grade. Her testimony was that she was facing somewhat toward the southeast, or, as she expressed it, was standing somewhat "ajar," toward the door, at which time she said: "The car gave a sudden, rather unusual, violent jerk, and I lost my balance and pitched out the door to the street." She otherwise described it: "Well, it just gave a violent jerk, enough to throw me off my feet-throw me off my balance." And also: "Well, it was an unusual, violent jerk, perhaps as though the car had suddenly decreased its speed, as though it might be going to stop." And again: "The car was running, and it seemed as though it slowed down in speed suddenly." from hitting her body. He testified there was nobody on the car step, and he said he did not see any part of her body come in contact with the car step. Lee Wyman, produced by the plaintiff, testified that he was waiting in front of the bakery at Westminster Way, to go down town; that he saw this street car approaching, and saw the plaintiff falling out. He testified: "Q. What was her position when she left the car platform? A. Both arms and both legs extended in this position (indicating). Q. And face outward? A. Facing east." He said she fell forward, but that he did not know what part of her body hit the street first. He said there was no one on the car step-"no one standing on there, hanging on there." Upon certain points there is no conflict in the testimony. According to all of the testimony, the car was crowded. The aisle was crowded, and also the vestibule or rear platform, and the doors were open from Sarah street to where the plaintiff fell out. No witness other than the plaintiff testified to an unusual jerk of the car. While the testimony of several witnesses for the plaintiff was that there was no one standing on the steps, the defendant introduced testimony to show that there were persons standing on the steps. It was a rule of defendant, and conductors were instructed, that the doors were to be closed while the car was in motion, if people were not standing on the steps. Defendant introduced the conductor of the car. He testified that there were two or three men on the steps, and that he could not for that reason close the door; that he noticed a young lady, after leaving Sarah street, who came out of the car proper, and told him to let her off at the next stop; that he "hesitated a few moments," and turned and pressed the buzzer; that when he turned back she was going out of the door; that he reached for her, but She fell from the car at a point west of she was so far out he could not grab her. Westminster Way, which was a stopping place for the car. The testimony as to the distance from the place where she fell to Westminster Way varied, but there was considerable evidence that it was at a point Way.. In falling or pitching out of the door of the car, the plaintiff did not, it seems, touch the step, but fell face forward, with about 150 to 200 feet west of Westminster arms and legs outspread, to the street, and rolled to the south curb of the street, 10 or 12 feet away from the car, and was found there unconscious by the persons who came to her assistance. Frank Waldman, produced by the plaintiff, testified that he was driving his machine eastward behind the car from which plaintiff fell; that he was 25 or 30 feet back of the street car when he saw her falling out of it, Miss Altrof, a passenger, a witness for defendant, testified that she boarded the car at Sarah street; that there were persons on the steps; that she had to push her way in; that she pushed her way to the fare box and paid her fare; that she was looking up the aisle, watching for an opportunity to move about the middle of the car rudely pushing up into the aisle; that she saw a young lady her way out; that she (witness) had to lean over the fare box to let the young lady push by her; that this young lady pushed her way through the crowd on the platform. The witness said after the young lady pushed by her: "I turned around to look at her, and the next thing I saw she was just stepping out into space." R. W. Kirkwood, a passenger produced by (273 S.W.) platform, right in front of the conductor, right alongside the door"; that the step was down, and he was standing just against the railing and the door; that he saw the young lady come out of the aisle, like she was in a the car. Well, by the time she got down to about I would judge 4006 Olive, just west of Westminster Way, about 110 feet, why, she leaped forward and stepped-immediately stepped right off of the car; forced her way hurry; that he did not pay any attention to through this crowd and right off of the car. her, when she came back of him; that the first thing he "knowed" he heard somebody give a comment behind him, and he turned and looked and "seen" the girl out in the street, rolling in the street. On his crossexamination this witness reiterated the statement that he was on the platform. He also said he did not see the conductor grab for the girl, and that he did not see Miss Altrof on the platform. Later this witness said that he was down on the step, and that there was another man on the step, "down alongside of me." He said this other man was the only man he saw on the step. This witness further testified on cross-examina tion: "Q. And with the people all around you, and behind you, and holding onto this rail, you couldn't tell whether or not the car gave a jerk? A. Yes sir. Q. Sir? A. No; it never gave any jerk as I know of; it never jerked. I know it didn't jerk me. I was holding on account of the crowd, so I wouldn't be pushed off. A. There was such a big crowd there they might push you off? A. Yes, sir. Q. What would push you off, the crowd or the movement of the car? A. The crowd, I guess; the big crowd on the car. I generally always hold on that way. Q. And if you hadn't been holding you might have been thrown off? A. Oh, I don't know. Q. Sir? A. No; it wasn't that bad. Q. Well, that is why you were holding on, wasn't it? A. Yes; I was holding on. Q. You just said that? A. I always hold on, no matter where it is." She took a deliberate step herself and fell out- There was some other testimony that there was no sudden jerk of the car. I. In support of their contention that erdemurrer to the evidence, counsel have cited ror was committed in overruling defendant's and rely solely on Elliott v. Chicago, M. & St. P. R. Co. (Mo. Sup.) 236 S. W. 17. In that case the plaintiff was in the day coach of a "limited" fast train. She had stepped forward to get a drink of water and was returning to her seat, when, as she stated: "There was a sudden starting or moving of the train, an awful jolt and jar, and it threw me against the side of the seat very hard, and I was just ready to turn into the seat, and I grabbed something, or I would have fallen to Alfred C. Parent, a witness for defendant, the floor." testified on direct examination: She further testified that her traveling bag "Q. I wish you would tell these gentlemen was thrown to the floor by the jolt of the just what you saw-just what took place. A. train. The plaintiff was pregnant, and a few Well, I got on this car at Sarah and Olive. I hours after the occurrence mentioned she sufwas standing on the steps until I got to about the east curb of Sarah, and there were three fered a miscarriage. It was said that the other men, and a fourth man, I judge him to be affirmation that there was an unusual jerk about 70 years old, trying to get up on the plat- or movement of the train found its sole supform. I was lucky enough to get onto the plat-port in the testimony of the plaintiff, and form, and grabbed hold of this rear guard rail, that is a guard against the door swinging back to the car. I held to the door with my left hand, and I put my arm around this old man, and he had a grip in one hand and his coat over his other arm; he was falling backward, because he couldn't get up on the platform proper. I got my arm around his body and brought him to me, to keep him from falling backward off of this step. In addition to this man, there was three other gentlemen, and when we got past the Blue Grass Hotel, or at the Blue Grass Hotel, I noticed a girl coming out of the car. At that time, when I noticed her, she was about the rear seat on the right of the car, which is the division line of the conductor's little booth, where he stands in, and she was working her way through in a great hurry, like as if she was in a hurry to get off of 273 S.W.-8 that she was not corroborated by a single fact or circumstance, and that the miscarriage suffered by her afforded no proof that there was a violent and unusual movement of the train. It was further said that the plaintiff's description of the jolt conveyed no definite meaning, and that there was no evidence that any other person was conscious of a jolt or jar of the train, or that anything else in the car was disturbed or disarranged. But the testimony of the conductor of the train, that any jolting or jar of the train sufficient to throw a passenger down would be very unusual and extraordinary, in connection with the testimony of the plaintiff, that she was thrown against the seat and would have gone down to the floor had she not caught the seat, was held to be sufficient to take the case to the jury. "The term 'violent stop' must be given a relative meaning, an interpretation in keeping with the circumstances of the case." The crowded condition of the car and of the platform was known to the agents of defendant, and also the fact that the door was open. Plaintiff and others on the platform were immediately under the eye of the 'conductor. Plaintiff's statement, and the evidence as to the manner, and the force with which her body pitched into the street, and the other circumstances, were enough to justify submitting the question to the jury. Allen v. Railway Co., 188 Mo. App. 193, 175 S. W. 135; Ilges v. St. Louis Transit Co., 102 Mo. App. 529, 77 S. W. 93; Choate v. Mo. Pac. R. Co., 67 Mo. App. 105. The trial court did not err in overruling defendant's demurrer to the evidence. [1-3] In the case at bar the grounds of negligence charged were that defendant allowed the door to remain open, and caused or permitted the car "unexpectedly to give a sudden, violent, and unusual jerk." It was not disputed that going on from Sarah street the door remained open, but there is conflict on the question whether there were persons on the steps, preventing the closing of the door. That question was one for the jury. The only statement that there was an unusual, sudden, or violent jerk of the car was that of the plaintiff herself. The physical circumstances are to be considered. There is positive testimony that plaintiff came or fell out, with both arms and legs extended, and that she rolled and came to rest with her head 10 or 12 feet away. There is no evidence that she touched the steps. There were passengers back of her, and one or more in front, between her and the guard rail around the fare box. She was not facing directly to the front, but somewhat toward the door. The petition did not charge negligence, in that the car was moving at a high or excessive rate of speed, and the statement that it was moving at rapid speed was stricken out by the court. But the testimony was that it was moving downgrade, and that it was approaching a stopping place for the tak-to the home of her mother in Moberly, and ing on of passengers. The plaintiff did not undertake to give absolutely what occurred, saying she could not, owing to the sudden or unexpected nature of the occurrence, but said: "The car was running, and it seemed as though it slowed down in speed suddenly; it was an unusual, violent jerk, perhaps as though the car had suddenly decreased its speed, as though it might be going to stop; a violent jerk, enough to throw me off my feet, throw me off my balance, and I lost my balance and pitched out the door to the street." We think these expressions are sufficiently descriptive and definite. In Elliott v. Chicago, M. & St. P. R. Co. (Mo. Sup.) 236 S. W. loc. cit. 21, it was said: "It is true that a carrier of passengers is not an insurer of their safety, nor is he required to exercise the utmost care of which the human mind is capable of imagining, or which men are capable of exercising. But he is required to exercise the highest degree of practicable care and diligence consistent with the mode of transportation he employs, and with the practical prosecution of his business." The actual care required bears relation to the circumstances existing. Similarly what may constitute a violent or an unusual jerk of a car is to be determined in the light of the conditions existing. In Allen v. Receivers of Metropolitan St. R. Co., 188 Mo. App. [4] II. The defendant has assigned error in that the witness William H. Dorn, a chiropractor, and not a licensed physician, was permitted to testify as an expert, and to give the result of his examination of the plaintiff and also to testify "as a layman," and to give opinion evidence involving her physical condition. After the accident, which occurred March 2, 1921, the plaintiff was taken to the City Hospital, where she remained four weeks. Thereafter she went there was treated by a chiropractor for several weeks, and then returned to St. Louis, and about June 14, 1921, she began taking treatments from the chiropractor, witness Dorn, and had continued to take treatments from him down to the time of the trial. The principal injuries alleged in the petition and referred to in the testimony were a fracture of the skull, concussion of the brain, and injury to the spine a wrenching of the spine and subluxation of the vertebræ with various nervous ailments and conditions resultant therefrom. The witness Dorn testified that he was a graduate of the Palmer School of Chiropractic of Davenport, Iowa, and had been practicing about four years. The defendant's objection to the witness testifying that he was a chiropractor, and not licensed to practice in his vocation in Missouri, was overruled. He then explained that the chiropractor dealt exclusively with the human spine; that by palpation with the fingers they determined whether there was a subluxation or displacement of the vertebrae, and adjusted a subluxated vertebra by hand; that a subluxated vertebra pressed upon the nerves as they emitted from the spinal cord; that he found in the plaintiff subluxation of the vertebra next to the skull, called the atlas; that this vertebra (subluxated) pressed upon the nerves which lead to the brain, the face, and the skull. He was not asked whether in his opinion the condition he found |