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twelve inches of this shaft and not being able to see the setscrews and the position of the pulleys. He said he was bound to see them. The plaintiff had placed this belt upon the pulley at this place under the same conditions for at least six times prior to the accident. Under this testimony, therefore, we are compelled to say that the plaintiff must have seen the smaller pulley and set-screws upon the shaft and the condition of the machinery. He had been warned of the danger of putting the belt upon this pulley while the machinery was in motion, and himself testified that he appreciated the dangers arising therefrom. In fact, he had been ordered not to place the belt upon the pulleys while the machinery was in motion. While he contends that this order was abrogated by its violation, nevertheless it shows that he fully appreciated the danger of performing this duty in this way. If the injury was due to these defects of which he now complains, the testimony shows that they were open and obvious, and that he fully appreciated the dangers arising therefrom. The risk of the danger arising from putting the belt upon the pulley under these conditions, while the machinery was in motion, was one which he necessarily assumed.

The injury which plaintiff received is a very severe one, but under his own testimony it is one for which under the law the defendant is not liable.

The judgment is accordingly affirmed.

ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY v. BROGAN.

Opinion delivered October 28, 1912.

1. TRIAL OBJECTION TO EVIDENCE.-An objection, in an action for personal injuries, to testimony and conclusions arrived at "from an examination made by the witness of X-ray pictures, when the witness testified that he was no X-ray expert," was insufficient to assign error in the admission of testimony showing a controversy mong the physicians as to the nature of plaintiff's injuries and his present and future condition as a result therefrom. (Page 540.) 2. DAMAGES PERSONAL INJURIES-EXCESSIVENESS.-Where a locomotive fireman, twenty-seven years of age, in good health, earning from $125 to $150, with prospect of earning from $175 to $250, was perma

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nently injured and by loss of a limb incapacitated to perform the duties of his vocation, endured intense suffering for three years, and incurred a surgical bill of $500, a verdict of $25,000 was not excessive. (Page 540.)

DAMAGES EVIDENCE OF LIFE EXPECTANCY.-Where there was evi-
dence of plaintiff's age at the time of his injury, and that he was then
in good health, the jury may determine the probable duration of his
life, though mortuary tables were not in evidence. (Page 542.)
INSTRUCTION-ERROR CURED BY OTHER INSTRUCTIONS.-An instruc-
tion, in an action by a fireman for injuries received from his
engine colliding with a car on a side track, that the jury find for plain
tiff if he was injured, in the performance of his duties, from his engine
colliding with a car which defendant, in its failure to exercise reason-
able care,
had negligently placed and left standing, and which caused
the collision, was not objectionable as assuming that defendant was
negligent, when followed by other instructions submitting to the jury
the question whether defendant was negligent in placing the car on
the side switch. (Page 543.)

5. MASTER AND SERVANT-ASSUMED RISK.-Where a locomotive fireman is injured in a collision between his engine and a car on a side switch, resulting from the railroad company's failure to exercise due care to permit safe passage for the engine, the fireman is not chargeable with having assumed, as an incident of his employment, the risk of being hurt unless he realized the danger and then voluntarily exposed himself to it. (Page 544.)

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SAME-INSTRUCTIONS AS TO ASSUMED RISK.-Instructions correctly
announcing the doctrine of assumed risk are not open to objection
that they ignore the defense of contributory negligence; the latter
defense being presented in other instructions. (Page 545.)
SAME DEFENSES.-The defenses of "assumed risk" and "contributory
negligence" are separate and independent; the former arising out of
contract, while the latter does not. (Page 545.)

APPEAL AND ERROR-HARMLESS ERROR.-An instruction which sub-
mitted the issue of contributory negligence, if erroneous, was harmless
as to the defendant where there was no evidence tending to prove
that plaintiff was negligent. (Page 546.)

TRIAL ARGUMENT OF COUNSEL-ACTION OF COURT.-Statements of plaintiff's counsel in argument that defendant had time before suit was filed to offer settlement, and that none was offered, were not prejudicial where they were immediately withdrawn, and the court admonished the jury not to consider them. (Page 547.)

10. DAMAGES-PERSONAL INJURIES-INSTRUCTION.-Where, in an action for personal injuries, there was evidence limiting plaintiff's expenses to a certain sum, an instruction that, in arriving at the amount of plaintiff's damages, the jury should consider "the ex

pense to which he is subjected as a result of his injured condition" was not erroneous, as permitting the jury to speculate. (Page 548.)

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; affirmed.

STATEMENT BY THE COURT.

Appellee was in the employ of the appellant as a locomotive fireman. On October 17, 1911, he was engaged in firing on a locomotive engine in the Argenta yards while switching freight cars. He had never before worked in that yard as a switch engine fireman, nor had he ever worked as a switch engine fireman on any other road. He was not familiar with the tracks in the Argenta yards. He had been firing on the main line of the Iron Mountain until he was called on the night of October 17 to fire on the switch engine in the Argenta yards. He went on duty that night about 9 o'clock. Had to keep firing right along all the time to keep steam and water in the engine. He had no time to look out. Had put a fire in the engine and got up in the seat, and his eyes were blinded from the fire and heat. Five cars were attached to the head of the engine. They were moving towards the north. He didn't know what kind of cars were coupled in front of the engine, other than that there was a box car next to the engine. That car was as high as the top of the headlight on the engine. The distance between the end of the box car and the headlight on the engine was about two feet. The box car, appellee says, caused the headlight to reflect back in his eyes. He could not have seen the car standing out at the side and ahead of the engine because of the light reflecting in his eyes. The signals for working purposes were given on the engineer's side. As his engine was propelling, at a slow speed, the cars ahead of it along the lead track, the cab of the engine collided with a car standing on the side track leading out from the lead track on appellee's side of the engine. The cars ahead of the engine on the lead track had passed the car standing on the side track, but the cab of the engine cornered it. When appellee heard the crash he endeavored to get out through the front window, but his leg was caught, and he sustained serious injuries, which will be hereinafter described.

Appellee did not know that the box car with which the engine collided was so close to the lead track on which the engine was moving. This car had been dropped into the side track from the lead track and left there by the engine on which the appellee was at work. After the box car had been dropped in on the side track from the lead track, the engine had pulled back onto the lead track with the remaining five cars of the string, and as these cars were pushed forward by the end of the side track the collision occurred by which the appellee was injured.

The foreman of the switch crew directed the movement of

the switch engine and the location of the cars. He had placed the car in the position where it was at the time it struck the engine. He states that the appellant company had rules covering the placing of cars in the clear on side tracks. The rule required that "conductors must see that brakes are set on cars they leave on sidings, and when the siding is on a grade they must, when practicable, couple all the cars together; and, in addition to setting the brakes, the wheels must be blocked and safety switches properly adjusted. When not in use safety switches must be left open. In switching, trainmen must know that brakes are in good order before cutting off cars."

The rule refers to conductors, and in switch yards the yard foreman is the same as the conductor. There was a down grade there to the east from the south end. The grade was such as to cause the cars to go away from the lead, and the engine was headed east when they kicked the car in on the track where it stood when the collision occurred. The foreman stated that, according to his judgment, the rules of the company were complied with in placing the cars there that night. The down grade would be to prevent the car coming out if moving. The brake would not have to be set on that car. If the brakes were set on the cars below, they would hold that car. He went down and got on top of the rail, which was the custom and the rule, and stood on top of the rail and held his hand out, and ordinarily if it cleared his fingers, holding his arm out straight as he did that night, it would clear a car or an engine. He adopted the usual method that they had adopted and been using for twenty-seven years

to see if it would pass, and in his judgment he thought it would. The brakes were not set on the box car that collided with the engine, nor was any block placed under the wheel on the end of the car towards the lead on which the engine was moving. He stated that it was not necessary. He kicked the car in on the track, which consisted in giving a cut of cars a start and then cutting the car loose from the rest and it rolls into the track. On that occasion he kicked the car in and walked up the lead and stood on the rail and held his hand out, taking the precaution above mentioned. The witness testified that the box car would "have no reflection on a person's eyes looking ahead. If you were looking directly at the light alone, it would; but where you are looking at the reflection, it does not."

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Appellee brought this suit on November 6, 1911, and in his complaint he alleged that "the cab in which he was working was struck by a car that had been negligently left standing on the side switch north of the one in which plaintiff's engine was running, and the left side of the cab was crushed in upon the plaintiff and seriously injured him;" that “said accident and injury was caused by the negligence of the defendant and its servants in placing and leaving on the side track, so near the lead switch, the car which struck the locomotive on which plaintiff was at work, and in negligently directing the train on which plaintiff was working to move into the side switch."

The defendant answered, denying the material allegations of the complaint, and setting up that the plaintiff was injured by his own negligence in failing to keep a lookout, which it was his duty to do; and also setting up that plaintiff "was as well informed of the dangers from cars being left too close as any of defendant's other servants, and assumed the risk of such injury as might occur thereby."

The above are substantially the facts on the issues of negligence, contributory negligence and assumed risk. The court granted and refused requests for instructions to which appellant duly excepted, and which we will comment upon in the opinion. The jury returned a verdict for $25,000, judgment was entered for that sum in favor of the appellee, and this appeal has been duly prosecuted. Other facts stated in opinion.

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