(252 S.W.) The calling of the station Edgebrook, and coincident stopping of the train where it did stop, was an invitation to plaintiff to alight at the place of stopping. Cossitt v. Railroad, supra. tance beyond, over the defendant's bridge across the River Des Peres, thence along the track, which there was on an embankment, and following a path or beaten way, near the ties on the north side of the track passed the switch, and walked into the sluiceway, or passageway, under defendant's tracks. This sluiceway was shown to be about 8 feet in width and about 15 feet deep. It was not guarded by a railing, nor was there a handrail along the bridge over it, nor was it lighted. There was considerable variance in the testimony describing the chat platform at Edgebrook. Defendant's employee having charge of maintenance of the tracks there testified that this platform was 290 feet in length, extending from east to west. Other witnesses gave 150 feet as its length, and others intermediate estimates. All who tes- [4] It is strenuously urged here by counsel tified on that subject agreed in saying that for defendant that it is unbelievable that the greater part of the chat or platform con- | plaintiff was not familiar with the surroundstruction was on the south side of the tracks, where the slope of the ground was toward the south, and much less on the north side of the tracks, where the ground opposite the station sign, and for some distance westward immediately next to the track, was comparatively level. All things considered, it seems quite clear that the chat platform did not extend to the point where plaintiff alighted from the train. ings at Edgebrook, and the place where he was injured; that he must have known, and did know, them; and that his injuries were solely due to his own negligence in going where he did. . At the time of the accident the plaintiff lacked about two months of being 17 years of age. His father had died some years previously, his mother had remarried, and plaintiff lived with his mother and stepfather, and, at the time of the accident, lived five or six blocks from Lake Junction Station. He had before that lived in Maplewood and Sullivan, suburban towns near by, and had attended school until he was in the seventh grade, and thereafter went to work to aid in the support of the family. He worked first about a machine shop in Maplewood, afterwards at a machine shop down town, then for the Post Dispatch, and finally, and up to the time of the accident, for the Curlee Clothing Company, in the city of St. Louis. He testified that in going between home and his place of employment he had always walked to and from Maplewood, and gone thence by the street railway, and had gone upon the railroad of defendant upon one occasion only, going then by train from Lake Junction. His testimony was that he worked "pretty steady." Under the evidence in the record it cannot be said that plaintiff was so far acquainted with Edgebrook Station and its surroundings as to be charged with familiar knowledge of it and its surroundings on the night in question. Rearden v. St. Louis-San Francisco R. Co., 215 Mo, 105, 114 S. W. 961. It is claimed by plaintiff in his petition, and his testimony is in substance, that, when he alighted from the train in the darkness, he did not realize where he was, that he was not familiar with the surroundings, and was confused, and therefore took the course he did take. The testimony was that the night was very dark, the weather foggy, and inclined to rain. After the train pulled by him he first walked east a short distance. He saw the building which was the tool house, but saw no light there, and did not recognize it at the time as one whose nature and location he was acquainted with. He turned and walked north. He came to where the right of way was inclosed with a fence of posts and wire. The testimony shows that this wire fence extends back eastward along the north line of the right of way, to a point almost north of the center of the station of Edgebrook. The open space north of the platform free from any fence begins at a point north of the east end of the platform and extends westwardly about 130 feet. At that point begins the une of fence extending westwardly along the right of way, and which was found by the plaintiff as mentioned above. There was testimony that there were one or more openings in this fence to the west of the station, made by persons in getting through to or from the station. The plaintiff's home was about one-third of a mile northwardly from Edgebrook Station. When he found the wire fence on the north of the right of way, he turned back to the tracks. In order to reach home in time to do this, He then saw a light westward. He found there was a beaten path along the side of the north track of the railroad near the ties, and walked west along that way. Walking thus westward he passed under the overhead street car bridge, then within a short dis On the night of the accident plaintiff went to defendant's train at Union Station in St. Louis in company with a foreman under whom he worked for the Curlee Clothing Company. At the request of this foreman, he had agreed to attend the services at a church in Brentwood, where the foreman lived. and upon the suggestion of the foreman, plaintiff accompanied the foreman, whose name was Taylor, on this train. Upon the train he learned that it did not stop at Lake Junction, but did stop at Edgebrook. Taylor, who testified, stated to plaintiff that he (Mo. could leave the train at Edgebrook and walk way of test or comparison, to consider what thence to Lake Junction, and Taylor's testi- he did before finally taking the course he mony, on cross-examination, was also that he took, upon an assumption that the platform suggested plaintiff could walk up the track was actually lighted, or that the train had from Edgebrook, and get to a road running been stopped directly opposite the station from just east of Lake Junction, north, to sign. His first movement was eastward tothe Manchester road. According to Taylor's ward the platform, and, if the platform had testimony, the plaintiff said nothing in reply been lighted in any way, this would have to this suggestion. According to Taylor, been sufficient to apprise him of his situation. when Edgebrook was called and the train But, although the platform was unlighted, if stopped, plaintiff went out of the rear door of the car, leaving Taylor, who remained and went on to another stop. There is no controversy here over the instructions given. The primary issue arises upon the peremptory instruction asked by the defendant and refused by the court. That issue was, and is, to be determined upon the effect given the evidence, in view of the duty which the defendant owed to the plaintiff, as that duty has been defined in the cases cited and in like cases. [5, 6] The evidence sufficiently establishes negligence of defendant in failing to light the platform, or its surroundings, in any way, in carrying plaintiff beyond the platform, and inviting him to alight there in the darkness, and then, when he did so, in failing to give him any warning or instruction whatever. This being so, there arises out of it the question whether the plaintiff, in the course he took, resulting in his injuries, was himself guilty of negligence which, as a matter of law, precludes his recovering damages from the defendant. the train had been stopped about the center of the platform, and thus discharged him near the center, or nearly opposite to the station sign, and he had thence walked a little eastward and thence, northward, to the line of defendant's right of way, as he did from the place he was actually discharged, he would have found the way unobstructed and open, because there was an opening there, with no fence in the way, for a distance of about 130 feet beginning at the east end of the north side of the platform, and extending west to or beyond the center of the platform. Since he took the steps that would have brought him naturally to a safe egress had he been discharged upon the platform, as con- . tended by defendant, or had the platform been lighted for his guidance; and since those steps, from where he actually alighted, failed to bring him on the platform, or to an outlet from defendant's premises, but, on the contrary brought him to a point where he was barred by the wire fence, and since on his return to the tracks, the only light visible was the one westward, on the line When the train drew by him he was alone of defendant's tracks, and a beaten path by and in the darkness. There was no station the side of the tracks seemed to lead that building nor light to mark the place where way, and he was not familiar with the suralighting passengers should go. He first roundings nor the particular danger that walked eastward a short distance. He saw lay that way, it cannot be said that he was no light in that direction. He saw to the east and south of the tracks the outline of the small tool house, which was unlighted, and which he testified was not a building whose character and relative location was known to him. He walked to the north side of the right of way of defendant, and found there a wire fence. He was, he says, confused by his situation. He went back to the track. Looking westward along the track he saw a light. This was the light near Lake Junction Station, distant a little more than one-fourth of a mile away, on defendant's line. He ascertained that near the ties and on the north side of the tracks, there was a beaten pathway. He walked along this westward toward the light and, in the darkness of the night, walked into the sluice or passageway under defendant's tracks, which was not guarded by railing, or lighted in any way, and received, from the fall therein, the injuries for which he sues. In arriving at the answer to the question here presented, it is necessary to consider wha: plaintiff did in the situation actually presented, what a person of ordinary prudence similarly situated would have done, and, it is also proper, by guilty of such negligence in attempting to extricate himself from the situation in which he was placed by the negligence of defendant, as to bar him from recovering damages. The course he took cannot be said to be otherwise than the one he was liable to take under the circumstances, or that others similarly situated might not have taken. Going the way he did, the fall into the sluiceway was, in the darkness, practically certain and inevitable, because there was no crossroad, or way out, between the place where plaintiff alighted and the place of the accident, and the country on either side of the right of way was broken, and of fields and woods. Under the facts in this case, the question whether plaintiff's injuries were due to his own negligence was a question proper to be submitted to the jury. It cannot be said that in acting as he did he was guilty of negligence as a matter of law, Robison v. Floesch Construction Co., 291 Mo. 34, 236 S. W. 332, 20 A. L. R. 1239; Cooper v. Realty Co., 224 Mo. 709, 123 S. W. 848; Root v. K. C. S. Ry. Co., 195 Mo. 348, 92 S. W. 621, 6 L. R. A. (N. S.) 212; Ephland v. Mo. Pac. Ry. Co., 137 Mo. 187, 37 S. W. 820, 38 S. W. 926, (252 S.W.) The 35 L. R. A. 107, 59 Am. St. Rep. 498; Kleiber | plate fastened to the bones by screws. v. People's Ry. Co., 107 Mo. 240, 17 S. W. 946, union of the bones of the thigh did not result 14 L. R. A. 613; Siegrist v. Arnot, 86 Mo. 200, from the operation, and at the time of the 56 Am. Rep. 424; Adams v. Hannibal & St. trial they had not united. Joseph R. Co., 74 Mo. 553, 41 Am. Rep. 333. It is contended that the verdict is the result of partiality or prejudice, and, therefore, should not be permitted to stand. The case appears to have been well and fairly tried on both sides, and there is nothing shown in the record to justify a reversal and remanding upon the grounds here mentioned. At the time he could not use the right leg, was obliged to wear a metal brace and bandage during the day, and at night keep that leg between two bags of sand strapped to it so he would not move it in his sleep, and had to sleep on his back only. The medical testimony was that the injury to the thigh was permanent, that the right leg was about one inch shorter by reason of the injury, that this leg was merely hanging on, and that if union of the parts of fractured bone ever took place, which was said to be doubtful, it could only result from a repetition of the effort made in the former operation. He still had a lump above his forehead where his head was cut open in the fall. Without going further, enough has been said, based upon the evidence in the record, to show that plaintiff's injuries were numerous and severe, and will hereafter, in all probability, constitute a serious and permanent impairment of his appearance, health, and strength throughout life. In this view of the matter, a reversal should not be had on account of excessiveness of the verdict, nor the amount thereof reduced, and the judgment should be affirmed. SMALL and BROWN, CO., concur. [7] Lastly it is earnesly insisted that the verdict, if it be allowed to stand at all, is excessive by not less than $10,000, and that the magnitude of the sum awarded is in itself an indication of partiality or prejudice. This calls for a consideration of the extent and nature of the injuries sustained and sued for by plaintiff. At the time of the injury the plaintiff was past 17 years of age; was 5 feet 2 inches in height, weighed 130 pounds, was in good health, and was described as being capable in the service in which he was employed. The passage or sluiceway into which he fell was about 15 feet deep; the bottom of it composed of loose stones. His jaw was fractured on the left side in two places. One of these fractures was near the back corner of the jaw, the other near the front portion. Two teeth on each side of the front fracture were loosened. Both bones of the right wrist were broken; and there was a fracture of a smaller bone of his PER CURIAM. The foregoing opinion of left wrist, called the scaphoid bone, which gives shape and attachment of the bones of LINDSAY, C., is hereby adopted as the opinthe hand to the long bones of the forearm.ion of the court en banc. All concur except WOODSON, C. J., and GRAVES, J., who His right thigh bone was broken in a transconcur in all except the amount of judgment. verse fracture, directly across the bone. For this they agree to $15,000. When found, one end of this bone had perforated the flesh and skin of his leg. He had various bruises about his body, and received great shock from his injuries and loss of blood. He was taken to a hospital, where, TERNETZ v. ST. LOUIS LIME & CEMENT after having recovered sufficiently from the shock, surgical treatment was given him, and splints applied to the various fractures. He remained in the hospital for eight weeks. At the time of the trial, eight months after the injuries were received, the testimony was that, as a result of the fracture of the jawbone, there was misalignment of the jaws, an impairment of ability to masticate food, and a restriction of the opening of his mouth. This impairment and restriction were pronounced permanent. At the time of the trial the right wrist was crooked, somewhat restricted in movement, and incapable of much lifting power. The result as to the left hand was not good, leaving an impairment of motion both rotary and extensive in that matter. The pieces of his thigh bone failed to unite, and there was later performed an operation, whereby it was sought to bring the bones into apposition and union by a steel For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 252 S.W.-5 CO. (No. 23143.) (Supreme Court of Missouri, in Banc. May 22, 1923.) 1. Municipal corporations 706 (7) - Con. tributory negligence of pedestrian struck by truck while crossing street to board car held for jury. A pedestrian looking both ways while standing on the curb without seeing anything about 200 feet away, looking again 60 or more except a street car approaching from the west feet to the east after taking four or five steps from the curb, and again turning his attention to the car, held not contributorily negligent as a matter of law in not looking east again. 2. Trial 108-Permitting plaintiff's counsel to argue his theory of defendant's liability held not error, though plaintiff's only instruction was on measure of damages. In a personal injury suit, where the court plainly told the jury that plaintiff could not recover if contributorily negligent or if defendant was not negligent and that the burden was on plaintiff to show that his injury was the direct and approximate result of defendant's negligence, he did not err in permitting plaintiff's counsel to argue his theory of defendant's liability, though the only instruction asked or given for plaintiff was on the measure of damages and defendant's instruction did not specify the negligence charged against it, the statute not requiring that instructions be given in civil cases, while defendant could have asked an instruction covering the law of the case. 3. Jury 97(4)—Challenge to juror admitting prejudices requiring evidence to remove properly sustained, Where a juror on voir dire examination by plaintiff's counsel stated that he would have to be convinced beyond a reasonable doubt that defendant was negligent before he would return a verdict for plaintiff, and that he had some prejudices that would take evidence to remove, the court did not err in sustaining plaintiff's challenge. 4. Appeal and error 1045 (1)—Appellant cannot complain of unanswered question to juror. Defendant could not complain of an unanswered question asked a prospective juror by plaintiff's counsel. 5. Municipal corporations 706 (6)-Speed failure to warn, down, or divert In an action for injuries to a pedestrian struck by an automobile truck, evidence that it was running more than 10 miles an hour, that the driver failed to give warning to keep a lookout for pedestrians or to stop, slow down, or divert its course, and that he operated it at a greater rate of speed than was reasonable under the circumstances, held sufficient for the jury. 6. Appeal and error 231(1)-Objection to argument "as not being proper argument" too general. 9. Appeal and error 231 (1)—“I object to that" too general. "I object to that" is too general on which to predicate error in overruling the objection, 10. Evidence 4982-Witness' qualification to state opinion largely in lower court's discretion. A witness' qualification to give opinion evidence is largely in the lower court's discretion, 11. Appeal and error 205-Refusal to permit answer to question for opinion not reversible error, in absence of proof of what answer would be. Refusal to permit a witness to testify how fast a truck was going, on the ground there was no evidence that he had ever traveled or rode in one, held not reversible error, in the absence of an offer to prove what the witness' answer would be. 12. Trial 59(2)-Introducing testimony out of order largely matter of trial court's discretion. Introducing testimony out of order is largely a matter of discretion in the trial court. 13. Trial 63(2)-Introduction of speed ordinance by plaintiff in rebuttal held not abuse of discretion. In an action for injuries to a pedestrian struck by an automobile, the court did not abuse its discretion in permitting plaintiff, in rebuttal, to introduce a speed ordinance, pleaded in the petition, it being a matter which could hardly have been unknown to defendant. 14. Trial 127-Defendant's evidence as to amount of liability insurance on truck injuring plaintiff properly excluded as immaterial, though plaintiff's counsel questioned jury as to their connection with Insurance companies. In an action for injuries to a pedestrian struck by an automobile truck, defendant's evidence that it carried only $5,000 liability insurance thereon was properly excluded as immaterial, though plaintiff's counsel had interrogated the jury as to their connections with insurance companies, where his questions were not in the abstract; there being no presumption that such questions, which may have been directed simply to ascertaining whether any of the jurors were employed or had business 231(1)-Objection to relations with insurance companies, were im An objection to argument "as not being proper argument" held too general on which to predicate error in the court's action in overruling it. 7. Appeal and error argument of counsel must be specific. An objection to argument of counsel which does not point out the specific statement complained of, or call the court's attention to the specific grounds on which it is based, is insufficient. 8. Trial 14-Argument that defendant had no more idea of winning case than jurors had of jumping off top of courthouse held not beyond bounds of legitimate argu ment. Argument of plaintiff's counsel that, "They have no more idea of winning this case than you have of getting on top of this courthouse and jumping off," held not beyond the bounds of legitimate argument, being merely an emphatic way of saying that defendant had no defense in plaintiff's opinion. proper. 15. Damages 132 (3)-$15,000 for permanent injuries to spine totally incapacitating plaintiff from pursuing ordinary vocation held not excessive. spine, wholly incapacitating one having a life $15,000 damages for a permanently injured expectancy of 26 years from pursuing his ordinary vocation, at which he earned from $40 to $45 a week, or any work requiring him to stand or sit much of the time, held not excessive. Graves, J., and Woodson, C. J,, dissenting in part. Appeal from St. Louis Circuit Court; Benjamin J. Klene, Judge. · For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and indexes (252 S.W.) Action by Frank Ternetz against the St. | dict for the plaintiff which will fairly and adeLouis Lime & Cement Company. Judgment quately compensate him for those injuries?" for plaintiff, and defendant appeals. Affirmed. Defendant's counsel objected as follows: asking from the juror in advance a decision in "I object to those questions, because it is this case on a matter that is to be tried by him later and without the juror having the opportunity of hearing the instructions and asking the juror to commit himself to what he is SMALL, C. I. Appeal from the circuit going to do in this case." Overruled and excourt of the city of St. Louis. cepted to. The petition charged negligence in several respects in operating said automobile by the No answer from the juror. Personal injury case. Plaintiff was run over, September 2, 1920, by defendant's automobile truck at the intersection of Vandeventer avenue with Choteau and Manchester Plaintiff himself testified, in substance: avenues in said city. Vandeventer avenue That there were double street car tracks on runs north and south, and Choteau and Man- both Vandeventer and Manchester-Choteau chester avenues run northeasterly and south-avenues, which crossed each other at the inwesterly and are continuations of the same tersection of these streets. That plaintiff, street; Choteau avenue running northeaster- who was a steam fitter about 40 years of age ly and Manchester avenue running south- and 18 years' experience at his trade, left Swift & Co.'s Vandeventer avenue plant, westerly from Vandeventer avenue. where he was employed, about half past 3 in the afternoon of September 2, 1920. He had finished his day's work and was going home. He walked south on the east side of Vandeventer avenue, intending to take the on Choteau avenue. east-bound street car He crossed over to the west side of Vandeventer to a news stand to buy a newspaper. This stand was on the west side of Vandeventer about 25 feet north of the north line of After buying a newspaper, he went south along the west side of Vandeventer until he reached the curb at the north side of Manchester, or the northwest corner of Vandeventer and Manchester. driver. The answer, besides a general denial, contained a plea of contributory negligence. The plaintiff obtained a verdict for $20,000. The court required a remittitur of $5,000. Judgment was rendered for $15,000 in favor of the plaintiff and against the defendant, from which defendant duly appealed to this court. The following colloquy took place between plaintiff's counsel and one of the jurors on voir dire examination: Manchester avenue. He then looked east and west, while he was still on the curb, to see if anything was com "Q. Now, the court will tell you in its instructions that the burden of proof is on the plaintiff to prove his case by a preponderance or the greater weight of the credible or believing. able testimony. Will you require the plaintiff to go any further than that? A. I hardly think so." Would not hesitate to give plaintiff a verdict, if evidence showed it happened through the fault and negligence of the defendant. "I would have to know that it wasn't the man's fault, that is, that it was the company's fault, and that the man was not at fault. Q. In other words, the evidence would have to, if I understand you correctly, convince you beyond a reasonable doubt that the defendant was guilty of negligence, before you would return a verdict? A. Yes, sir. Q. Now, Mr. Juror, you have some prejudice, haven't you, against these cases, that would take evidence to remove, haven't you? A. Yes, sir." It would have to be shown clearly. "Q. Beyond a reasonable doubt, is that right? A. I would have to see it." "Mr. Kelley: Now, your honor, I renew that challenge. The Court (addressing Mr. Griffin, defendant's counsel): If you want to ask him any questions, proceed." Mr. Griffin said he did not. Thereupon, the court sustained the challenge. Plaintiff's counsel asked another juror: "Q. If it is shown that the plaintiff was seriously and permanently injured by the defendant, will you hesitate about bringing in a ver He then stepped off the curb 4 or 5 steps, and again looked east and west. He saw no automobile or truck at either time he looked. He was walking south in the regular path for pedestrians across Manchester-Choteau avenues on the west side of VandeventHe looked to see if any car was er avenue. coming, or if there was anything coming in the opposite direction to interfere with his crossing. He saw a street car coming about 200 feet or less away. The east-bound Manchester-Choteau avenue car, which he intended to take, ran on the south track. After he had walked 10 or 15 steps, after looking the second time, and was just stepping over the north rail of the west-bound track, he was struck by something, knocked unconscious, and remembered nothing after that, until he woke up late that night at the Barnes Hospital. On cross-examination, he stated: That when he first looked east and west, while standing on the curb, he did not see anything. He looked east 50 or 60 feet or more, just back of Kirk's store building on the corner there. He looked west to see the street car about 200 feet or probably less. |