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Defendant introduced evidence which tended to show that the driver of defendant's truck was not guilty of negligence in regard to any of the matters charged in the petition or testified to by plaintiff's witnesses, and also tending to prove that plaintiff was guilty of contributory negligence.

The street car attracted his attention. That | witnesses were watching the truck as it apwas the car he was going to take. It was proached, but heard no signal or warning of going east and coming from the west. His any kind, nor did they see any given the mind was on getting across the street. plaintiff by the driver. The truck swerved attention was attracted to the car. Just both ways just before it hit the plaintiff. looked at it, yes. It was a Manchester car. No obstructions between the truck and the Did not know whether there was anything to plaintiff. The crossing was a busy crossing. prevent him from seeing 600 feet away to the east. "You might, I never looked that far. I don't know if the viaduct would stop you from looking that far or not." No buildings there except on each side of the street. He looked to the end of Kirk's building, whereever that is; probably could have seen further east than that. Did not think it neces- Evidence as to plaintiff's injuries: sary to look that far. "I just looked about Plaintiff testified: The night of his injury, to the end of the Kirk's store, and that gave September 2, 1920, he was taken in an unconme plenty of clearance, and there was noth-scious condition to the Barnes Hospital, ing in sight." Did not notice an automobile where he remained until September 20th. or sprinkling wagon at the curb. He saw The hospital doctors treated him. They put nothing coming from either direction in the him in a frame in a cot; it was an iron, obstreet except the street car from the west. long frame with canvas and ropes. He was There was not a thing coming in the street in this frame until a week before he was disfrom the east that he could see. After he charged. He was then put in a stiff plaster had taken 4 or 5 steps from the curb, he cast, which extended all around his body again looked east and west, and saw nothing from his hips to his neck. He was in bed in but the street car approaching from the west. this cast. While in this frame, he was not At that time, he first looked east again about permitted to move, even to go to the toilet; as far as Kirk's store, and then looked west to answer a call of nature they pulled him and saw the car coming from the west up and put a bedpan underneath the frame; slacking up. Kept looking at the car, and this was continued as long as he was in the where he was walking south. His eyes were frame. At the hospital, they sewed up his looking forward ahead, and on the ground, head, where it was cut in two places right too. He did not look east any more. Walk over his eye, and in two places on the back of ed about 10 or 15 steps when he was struck. his head. The doctors at the hospital also The east-bound car was then approaching gave him medicine for his bowels. He was him. He walked in an ordinary way to get in pain all the time he was there; pain conon the front end of the car. "You get on the tinued to bother him at the trial. They took front end and pay as you get off." He was him home from the Barnès Hospital. They intending to cross over and get on the front took X-rays photographs of his head and end of the car, but did not get that far. He spine at the hospital. Had other injuries bemight have heard a truck approach, but did sides cuts on head. "My back is broken." not remember it. He would not say he did. His right ear and left side and neck, nose, Does not remember hearing it. He passed arms, and hands were skinned. His left that corner every day that he worked (at hand, wrist, elbow, back, ankles and knees. Swift's). It was a nice clear day when the hips and heels, were also skinned and accident occurred; broad daylight about half bruised. When he got home they put him to past 3. bed. He was in bed every day a little bit. The hospital doctors told him to exercise and walk around. He tried to follow instruc tions. Was in the house the first few days; went out the third day to exercise in front of the house. Still had plaster cast on until the 20th of October. They took that off and put on a corset; it was made of canvas and had eight steel ribs inside of leather with a leather front that laces up; it extends from above the hip up around the chest clear around the body. After he went home, he attended the clinic at the hospital about once a week. He was taken over there in a machine. At these clinics, the doctors examined his back and cuts. He was nervous after injury; not before. Received treatment for nervousness. Suffered from dizziness and headaches. Did not rest at night. Still

The evidence of two witnesses for plaintiff tended to prove that when defendant's truck was 200 feet away east of Vandeventer avenue on Choteau avenue, it was near the north rail of the west-bound track going fast. It kept coming and hit plaintiff and ran over him. Plaintiff was right between the rails of the west track when struck on the street crossing. Defendant's truck did not, and the driver made no effort, to slow down or slacken his speed until after it struck the plaintiff. It then ran about 40 feet before it stopped, striking another machine that was driving west around the corner. The truck which struck the plaintiff had defendant's name on the side. It was going between 20 and 25 miles an hour, when it approached and struck the plaintiff. These

(252 S.W.)

wears the steel corset prescribed by the doc-around and do some little chores and odd tors. Dr. Kinder is treating him now for jobs. That injury to the spinal chord is pernervousness, bowels and stomach. Had no manent. There is a condition of abnormal trouble in that regard before the injury. stiffness in the muscles of the lower limbs, Now stomach is sour all the time and does such as occurs in partial paralysis of the not digest right. Has to take physic nearly limbs due to an injury of the motor tracks of every day; bowels won't move without tak- the nervous system. That sensation in the ing it; started taking it in the hospital and lower limbs is below normal. He cannot has taken it ever since. Still has pain all the walk in a straight line except by using great time in his back; gnawing pain. Cannot sit effort. If he closes his eyes and stands with still; has to change from one side to the other his feet together, he begins to sway and then while in bed. Wears the canvas corset with falls backwards. He was highly nervous steel ribs in bed at night. Dr. Kinder gave after injury and still is in same condition. him alcohol rubs. The corset protects the Has had constipation, indigestion, and nervspine on both sides. He had two corsets ousness. Had to be given medicine to reguor braces. One he got at the hospital, late his bowels, induce sleep, and relieve his which he paid $8.50 for, and the other was pain. The corsets mentioned by plaintiff are prescribed by Dr. Kinder and cost $50. necessary to raise the trunk off of the broken Never sleeps without these corsets. Has not part of the back, that is, to take the weight been able to work as steam fitter since in- of the head, shoulders, arms, and that porJury. On October 25, 1920, took job as tion of the body down to the fractured porwatchman at Swift's. Sat in shanty at tion of his spine, off, and place that weight back gate and just watched that nobody upon the hips, instead of the spine itself. came in. Did not have anything else to do. That injury to back is permanent. The disGave that job up in December, because he placement in the vertebræ is also permanent could not stand it, on acount of his back and will remain as it is now. He gets most hurting him and dizziness. Got $28.50 per relief from pain when he lies down and week as wages as watchman. Worked 10 stretches himself in order to pull these brohours per day. As steam fitter he got 78 ken bones apart as much as possible. When cents an hour. He always worked overtime, he sits down he shifts himself from side to and made about $40 to $45 a week. Is not side for the same purpose of relief. Where now able to do any work. Cannot put on his the cartilage has been crushed out between clothes. His mother puts on his trousers, two of the vertebræ, there has become a comshoes, and stockings on account of the brace plete stiffening of that portion of the back. which he still wears and sleeps in. Still has He never will again perform manual labor pain in left ankle. Gets pain in right wrist that a steam fitter has to perform, or any othif he grips tight. After he left the watch- er labor that requires him to lift heavy man's job, Swift & Co. kept him on the pay loads, or stand any long period of time on his roll and gave him $7 a week. feet. His disability will have a tendency to increase as he grows older, and eventually his limbs may become entirely paralyzed. He will need further medical and surgical attention. Reasonable bill for medical services up to time of trial, outside of hospital, $250.

Plaintiff's expert medical testimony tended to show: That there was a change in outline of the spine where there was a cracking of the body tissues; the width of the vertebræe being smaller and much narrower than it should be. The space between the first and second lumbar vertebræ is somewhat smaller than the normal space; the soft tissue between is somewhat crushed. The space between the second and third is more or less completely obliterated, and the vertebræ are practically together. The fractures and breaks in the vertebræ are comminuted fractures; that is, fractured in numerous places or fragments. There is a slight displacement of the second and third lumbar vertebræ towards the left side. There were also indications of an injury to his spinal chord, at about the juncture of the dorsal and lumbar portions of the spinal chord. Also indications of some kind of an injury to the brain, namely, a tendency to fall backwards whenever his eyes were closed, and that sometimes he would not respond to questions unless spoken to clearly and distinctly. That plaintiff is completely disabled from filling a position as steam fitter, but could probably putter

The American experience tables of mortality generally used by life insurance companies, introduced by plaintiff, showed that plaintiff's expectancy of life was 26 years.

The medical testimony for the defendant was given by a physician appointed by the court to examine the plaintiff. He testified, in effect, that the plaintiff had no serious injury, except to his back; that the work plaintiff may be able to do would depend upon the amount of strain that would be put upon the back. If the back were kept perfectly rigid and supported, it is quite possible that he could do in the course of time work that could be done with the hands and feet, provided that there would be no weight bearing on the back. Found nothing to indicate plaintiff was malingering. The injury to the back was a compressed fracture, driving one vertebræ into the other. The cartilage or cushion that was between the second and

third lumbar vertebræ was gone. He showed, which he intended to take, and he had to a difficulty to keep his equilibrium or balance. There was a curvature in the small of the back. The injuries to his back stiffened it. The braces and corsets were the proper treatment. No doubt but that he suffered pain from his back. Has a permanently deformed back. Witness believed that in time plaintiff would be able to be a little more useful to himself than at present.

At the close of the testimony, the defendant asked a peremptory instruction for the jury to find for the defendant, which the court refused.

The plaintiff asked but one instruction, which the court gave. It was as to the measure of damages.

On behalf of the defendant, the court instructed the jury that they would find a verdict for the defendant, if they found plaintiff was guilty of contributory negligence causing or contributing to the injury. Also, that if they found defendant driver was not guilty of negligence in driving the car, to find for the defendant. Defendant's instruction concluded as follows:

"The court instructs the jury that the mere fact that plaintiff was struck by defendant's automobile is not alone sufficient to entitle him to recover in this case, nor is that fact one which even tends to establish any negligence on the part of the defendant, but, on the contrary, before the plaintiff can recover in this case, the burden is imposed upon him by law to establish by the greater weight of the evidence that his injury was the direct and proximate result of the negligence charged on the part of the defendant, and unless he has so proved said fact, he is not entitled to recover in this case, and your verdict must be for the defendant."

cross the tracks in front of said car in or-
der to take passage upon it. The entrance
to the car was in front on the south side.
He had to be on the alert, so as not to be
struck by the street car while passing in
front of it. He had looked twice to the east
and saw nothing and had no reason to ex-
pect defendant's truck to descend upon him
at the speed and so near the track of the
street car, as it did, as shown by plaintiff's
testimony. The whole street to the north
was unobstructed by other vehicles and of-
fered abundant room for defendant's truck
to pass without injuring plaintiff, according
to plaintiff's evidence. We think his con-
tributory negligence
the jury.
Brown v. Conser Laundry Co., 246 S. W.
166, (this court).

was

for

[2] III. Appellant also contends that it was erroneous for the court to permit the plaintiff's counsel to argue his case to the jury, and his theory of defendant's liability, over defendant's objection, because no instruction in the case was given for plaintiff indicating the theory of law under which plaintiff could recover; the only instruction, asked or given for the plaintiff, being on the measure of damages. It is not complained that plaintiff's counsel misstated the law. Appellant's position is untenable. Instructions are not required by the statute to be given in civil cases. The defendant could have asked instructions covering the law of the case, if the plaintiff failed to do so. Powell v. Railroad, 255 Mo. loc. cit. 454, 455, 456, 164 S. W. 628; Morgan v. Mulhall, 214 Mo. 451, 114 S. W. 4; Wingfield v. Railroad, 257 Mo. loc. cit. 359-362, 166 S. W. 1037; Clark v. Hammerle, 27 Mo. loc. cit. 70, 71.

But the law of the case was clearly discernible from the instructions given by the court for the defendant, which plainly told the jury that if plaintiff was guilty of negli

The court refused an instruction in six paragraphs, asked by the defendant, to the effect that there was no evidence of any of the charges of negligence against the defend-gence, which caused or contributed directly ant contained in the petition.

to his injury, plaintiff could not recover; [1] II. We do not agree with appellant's and that if defendant's servant was not guilcontention that plaintiff was guilty of con- ty of negligence in driving the truck, the vertributory negligence, as a matter of law. dict must be for the defendant. Also, that According to plaintiff's testimony, he looked the plaintiff's injury was not evidence of both ways while he was standing on the defendant's negligence, and before the plaincurb, and saw nothing except the street car tiff could recover the burden was upon him approaching from the west about 200 feet or to establish by the greater weight of the probably less away. He intended to board evidence that his injury was the direct and said car. After taking 4 or 5 steps from proximate result of the negligence charged the curb, he looked again to the east about upon the part of the defendant; otherwise, as far as Kirk's store 60 or more feet away, plaintiff could not recover. The defendant's and seeing nothing, again turned his atten- | instruction, it is true, does not specify what tion to the car coming from the west. It is the negligence charged against the defendtrue, he says he took 10 or 15 steps more ant was, but this was not the fault of the towards the street car, before he was struck court, as defendant could have easily speciby the defendant's truck. He did not look fied in its instruction what those charges east again, and it is probable, under the evi- were, had it desired to do so. We rule this. dence, that if he had looked again he might point against the defendant. Cases above have seen the defendant's.truck approaching cited and Hoover v. Railroad, 227 S. W. 79, and avoided it. But plaintiff's attention was and cases cited (this court). attracted to the street car that was coming,

[3] IV. As to the sustaining of the plain

(252 S.W.)

tiff's challenge to one of the jurors: We have set out the substance of the juror's examination on voir dire in our statement. We need not repeat it here. We think the court committed no error in sustaining said challenge.

[4] As to the question asked another juror on his examination set out in the statement: We think appellant has no cause to complain, because the question was not answered, and there was nothing objectionable in the question.

This was simply another and emphatic way of saying that defendant had no defense, in plaintiff's opinion. We do not think this was beyond the bounds of legitimate argument. Besides, there was no reason given for defendant's objection. "I object to that," was the language in which the objection was couched. This was too general. We disallow this contention.

[10, 11] VII. One of defendant's witnesses, who saw the accident, was asked by defendant's counsel:

"The Court: Sustained."

[5] V. There was no error in refusing de"Are you able to testify how fast the truck fendant's instruction in six paragraphs, each was going? A. I should judge the truck was one of which told the jury there was no evi-going about Mr. Kelley: Well, wait a dence of defendant's negligence in respect to minute; he isn't quite qualified yet, and there matters set out in said paragraph. That is, is no evidence here that he has ever driven that there was no evidence that defendant's one or anything else or rode in one or anyautomobile was running more than 10 miles thing. an hour, or that defendant's driver failed to give warning of his approach to plaintiff, or was operating said automobile at an excessive rate of speed about 20 miles an hour, or failed to keep a watch-out for pedestrians, and especially for plaintiff, or failed to stop or slow down or divert the course of his truck or operate said truck at a greater rate of speed than was reasonable under the circumstances. We think the plaintiff's testimony shows evidence against the defendant with respect to all these charges of negli

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We think the objection was too general to predicate error on the action of the court in overruling it.

"An objection [to argument of counsel] is insufficient which does not point out the specific statement complained of and does not call the attention of the trial court to the specific grounds upon which it is based." Torreyson v. United Rys. Co., 246 Mo. 696, 152 S. W. 32; State v. Phillips, 233 Mo. 299, 135 S. W. 4: State v. Ruck, 194 Mo. 416, 92 S. W. 706, 5 Ann. Cas. 976; Milliken v. Larrabee, 192 S. W. 103, this court.

The qualification of a witness to give opinion evidence is largely in the discretion of the lower court. Adams v. Railroad, 229 S. W. 790 (this court). Furthermore, there was no offer to prove what the answer of the witness would be. Fowler, v. Sone (Mo. App.) 226 S. W. 995; Bank v. Bank, 283 Mo. 308, 222 S. W. 993. We rule this point against appellant.

[12, 13] VIII. The court also permitted the plaintiff to introduce City Ordinance No. 1301, regulating the rate of speed of motor vehicles at the time plaintiff introduced his testimony in rebuttal. Introducing testimony out of order is largely a matter of discretion in the trial court. The city ordinance in question had been expressly pleaded in the petition. It was a matter which could hardly have been unknown to the defendant, and the order of its introduction in evidence could in no manner have prejudiced the defendant's case. The court did not abuse its discretion. Shanahan v. City of St. Louis, 212 S. W. loc. cit. 852, and cases cited; Weller v. Railroad, 164 Mo. 180, 64 S. W. 141, 86 Am. St. Rep. 592; Buck v. Buck, 267 Mo. loc. cit. 663, 185 S, W. 208; Glasgow v. Railroad, 191 Mo. loc. cit. 355, 356, 89 S. W. 915. We rule this point against the appellant.

[14] IX. The defendant offered to prove that it carried only $5,000 insurance against liability from accidents in the operation of this truck, because the plaintiff's counsel on the voir dire examination interrogated the jury with reference to their connection with

insurance companies. The questions of plaintiff's counsel are not contained in the abstract. There is no presumption that such questions were improper. They may simply have been directed to ascertaining whether any of the jurors were employed by or had

[8, 9] Again, plaintiff's counsel said in clos- business relations with insurance companies ing argument to the jury:

"They have no more idea of winning this case, than you have of getting on top of this courthouse and jumping off."

which would have been proper. Wagner v. Gilsonite Construction Co., 220 S. W. 897899 (this court); Kinney v. Met. St. Ry. Co., 261 Mo. loc. cit. 114, 169 S. W. 23. The

amount of insurance carried by defendant [2. Street railroads 117(24)—Contributory negligence of passenger in automobile held was immaterial. There was no error in exfor jury. cluding the evidence offered.

[15] X. As to the amount of the verdict: The verdict was for $20,000. The circuit court required a remittitur of $5,000, and entered judgment for $15,000 in favor of the plaintiff and against the defendant. While the amount is a rounded sum, the injury to the plaintiff was of such a serious nature as to wholly incapacitate him from pursuing his ordinary vocation, that of steam fitter at which he earned from $40 to $45 a week; and even to incapacitate him from such light work as watchman, or any work which required him to be on his feet or to remain seated a large part of the time. In effect, his earning power was nearly destroyed, as well as his health greatly impaired, to which must be added the pain and discomfiture he has endured and will endure in the future. We do not think we would be justified in further reducing the verdict.

Finding no error in the record, the judgment below is affirmed.

PER CURIAM. The foregoing opinion by SMALL, C., is adopted as the opinion of the court.

All the Judges concur; GRAVES, J., in separate opinion, in which WOODSON, C. J., concurs, but thinks it was reversible error.

GRAVES, J. I concur in the result and in all of the opinion, except the first portion of paragraph III of the opinion. We have ruled that it was not reversible error for the plaintiff to submit his case upon an instruction on the measure of damages alone, but such practice has also been condemned by some strong expressions from members of this court, the writer among that number. This paragraph seemingly lends full countenance to this practice, although in the latter part thereof it is said that the law is fully As I covered by defendants' instructions. have written before, I write now, that the practice is to be condemned; but, as we have said it is not reversible error, the case should not be reversed on that account.

CLOONEY v. WELLS. (No. 23465.)
(Supreme Court of Missouri, Division No. 1.
April 6, 1923. Rehearing Denied
June 8, 1923.)

1. Appeal and error 768-Negligence of de-
fendant, not controverted in briefs, deemed
admitted.

Where, in personal injury action, defendant's negligence is not controverted in defendant's brief, but the only matter relied on in the brief is contributory negligence, defendant's negligence is deemed conceded.

In action for injuries to passenger in automobile struck by street car in snowstorm at crossing, near a street railway station where the car was supposed to stop, plaintiff's contributory negligence held for jury. 3. Street railroads 113(7)-Testimony of passenger in automobile struck at crossing that driver was careful held competent.

In action for injuries to pagsenger in automobile struck by street car in snowstorm at crossing, testimony by plaintiff that the driver of the automobile was driving carefully was competent upon the issue of plaintiff's negligence in taking precautions for his own safety. 4. Evidence 506-Attending physician properly allowed to testify to cause of plaintiff's physical condition.

In personal injury action, a physician who had attended plaintiff from the time of the accident was properly allowed to testify that plaintiff was constipated, and that this condition was caused by injury to plaintiff's brain, as to which the witness had testified; such testimony not invading the jury's province. 5. Appeal and error 232 (2)-New objection to evidence may not be made on appeal.

Where, on the trial, the objection to a physician's testimony was that the question to him called for a conclusion, the objection to such testimony that it invaded the province of the jury could not be made on appeal. 6. Appeal and error 232 (2)-Objection that answer was uncertain could not be first made on appeal.

The objection to expert's answer to a question, "In all probability there is permanent damage to his nervous system," that the answer did not show mental certainty on the part of the physician, could not be first made on appeal.

7. Damages 208 (3)-Testimony that in all probability nervous trouble was permanent, sufficient to go to jury.

In personal injury action, testimony of a physician, who had thoroughly examined plaintiff, that "in all probability there is permanent damage to his nervous system," held sufficiently positive to warrant submission of issue of permanent injury to nervous system,

8. Trial 260(1)—Instructions already covered need not be given.

Refusal of instructions on an issue already covered by other instructions is proper.

9. Damages 132(3)-$13,500 for internal injuries and injuries to nervous system held not excessive.

A verdict of $13,500 for permanent internal injuries and injuries to nervous system held not

excessive.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

Action by Michael A. Clooney against RolJudgment for plaintiff, la Wells, receiver. and defendant appeals. Affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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