In determining whether court properly re-ent fused to direct verdict for defendant, plaintiff is entitled, not only to every reasonable inference arising from his own testimony, but may also be aided by any of defendant's evidence that helps to make out his case. 3. NEGLIGENCE

136(25)-PROXIMATE CAUSE

-QUESTIONS FOR JURY. The determination of proximate cause, whether it be the original negligence of one party or the intermediate negligence of another, is for the jury, unless the conclusion follows as a matter of law that no recovery can be had on any view of the evidence.

4. MASTER AND SERVANT

The action was brought under the federal statute (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657In an action under the federal Employers' 8665]) in the circuit court of Bates county Liability Act, where defendant did not attempt in February, 1914. The plaintiff was, at the to prove its allegation of contributory negli- time of the alleged injury, a head brakeman

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

on one of defendant's interstate trains. At drawn from the old ties. Immediately after about 3 o'clock a. m., October 6, 1913, the plaintiff's injury, the fireman of the train train upon which he was employed stopped on which the laintiff was employed, under to take water at a tank north of Stotesbury, the orders of the conductor, moved the keg a station on the defendant's line in this state. further away from the track. There is a Plaintiff, in the discharge of his duties, got conflict in the testimony of the witnesses of off of the train when it stopped and went the respective parties in this regard. As back along the side of it towards the rear end a result of the trial, a verdict was returned to adjust a hot box. After he had performed in favor of plaintiff for $10,772. this duty, he proceeded a short distance fur- Defendant's assignments of error are: (1) ther towards the rear end of the train, in The trial court's failure to direct a verdict the further discharge of his duties, when the for defendant at the close of plaintiff's testiengineer whistled off brakes. Plaintiff re-mony or at the close of the entire testimony; ceived a signal from the rear that the train (2) the giving, at plaintiff's request, of inwould proceed, which he communicated to struction numbered 4; (3) refusing to set the engineer. The train moved forward. He aside a grossly excessive verdict; and (4) did not, until a number of cars had passed the admission of improper evidence. him, attempt to get on the train. When he [1-5] I. The Direction of a Verdict.-It has did, it was moving at the rate of about 5 or become axiomatic in our procedure that we 7 miles per hour. He carried a lantern, the will not interfere with the action of a trial light of which extended at least 5 feet in court in refusing to direct a verdict, where front of him. While running along the side there is any substantial evidence to sustain of the train, he caught hold of an iron stir- the same. Twentieth Cent. Mach. Co. v. Exrup on the side of the car, preparatory to celsior, etc., Co., 200 S. W. 1079; Dunn v. swinging onto same, when his foot struck Railroad, 192 Mo. App. 260, 182 S. W. 109. an obstacle which broke his hold on the stir- The probative force of such evidence is not rup of the car, and he fell to the ground, to be tested by that adduced by plaintiff receiving the injuries of which he complains. alone, although every reasonable inference The train proceeded on its way for about arising therefrom is to be taken as true; 3 miles to a station called Amos, when he but it may also be aided by any of defendwas missed. The crew detached the engine, ant's evidence that helps to make out plainand, returning upon it, found him lying by tiff's case. Hall v. Mfg. C. & C. Co., 260 the side of the track near where the stop Mo. 365, 168 S. W. 927, Ann. Cas. 1916C, 375; had been made to take water. His respira- Stauffer v. Railroad, 243 Mo. loc. cit. 316, tion was almost imperceptible and his pulsa- 147 S. W. 1032. Plaintiff's testimony was tion faint. He regained consciousness when that, as he attempted to swing himself upon his head was bathed with water. His in- the car by grasping the stirrup, his feet or juries resulting from this fall we will dis- legs struck an obstacle making a sound as of cuss at length in the opinion. A keg about pieces of iron striking together; that the imone-third full of railroad spikes was found pact broke his hold on the car and he fell some 3 or 4 feet south of where he fell, and to the ground; that, when he recovered from from 3 to 4 feet from the rail. The keg the condition of unconsciousness caused by appeared to have been moved about 6 inches, the fall, he saw a keg of spikes near his from where it had originally stood, in the feet. These spikes had been pulled from old direction the train was going. The car upon ties in the track which had been removed and which plaintiff was attempting to climb was new ties and spikes substituted therefor. A about 8 feet in width, and the distance be- short time before the accident, the track had tween the rails over which it was moving at been repaired at that point. The proof of the time of the accident was 4 feet and 8 this betterment, as explanatory of the reainches. The body of the car therefore pro- son for the presence of the keg and its con. jected over and beyond the rails on each side tents, is aided by the physical fact that old of the track from 20 to 26 inches. In the ties that had been used were lying along the attempt to swing upon the moving car by track. The inference made by the jury was catching hold of the stirrup, plaintiff was that the keg had been left at the point where lifted off of the ground and his feet were in found, as testified to by plaintiff, and that it mid-air, at the time they struck the keg, at had been so left by defendant's trackmen. a distance of from 10 to 18 inches from a Having made this inference, they were not vertical line drawn from the outside of the required to indulge in speculation to detercar to the ground. A fact, indicative of the mine if it might not have been placed there reason for the location of the keg of spikes by some one other than the defendant. Mynear the track, was the presence the day ers v. Pittsburg Coal Co., 233 U. S. 193, before the injury of a pile of new ties which, 34 Sup. Ct. 559, 58 L. Ed. 911. Generally, on the day of the accident, had been replaced the determination of the proximate cause by a pile of old ties; the new ties having of an injury, whether it be the original neglibeen placed in the track at points near where gence of one party or the intermediate neglithe keg was standing. The spikes in the keg gence of another, is ordinarily one for the were inferably those not needed in replac- jury. Direct evidence to establish this negliing the ties, or those that had been with-gence is not required, but it may be sufficient

ly shown by inferences from the surrounding facts and circumstances. Proof of this nature, however, must do more than raise a conjecture as to the cause of the injury; it must show with reasonable certainty that the cause for which the defendant is sought to be held liable produced the injury. It is only when the evidence, with all of the inferences that the jury may reasonably make therefrom, are insufficient to support a finding for the plaintiff, that the court is authorized to direct a verdict for the defendant. A case should therefore be left to the jury under proper instructions, unless the conclusion follows as a matter of law that no recovery can be had on any view that may be taken of the facts which the evidence tends to establish. Hall v. Mfg. C. & C. Co., 260 Mo. loc. cit. 365, 168 S. W. 927, Ann. Cas. 1916C, 375; Wolfgram v. Mod. Wood. Am., 167 Mo. App. 220, 149 S. W. 1167; James v. Mut. Reserve, etc., Ass'n, 148 Mo. 1, 49 S. W. 978; Laclede Nat. Bank v. Richardson, 156 Mo. 270, 56 S. W. 1117, 79 Am. St. Rep. 528; Jno. Deere Plow Co. v. Sullivan, 158 Mo. 440,

59 S. W. 1005.

Under these general rules, the jury was authorized in making the inference under the facts proved and the circumstances shown that the plaintiff's fall was caused by his striking against the keg, and that the trackmen of the defendant left the keg and its contents at the place where it was found after plaintiff's injury. This accords with reason, and excludes the inference of an impact with another object, or that the keg may have been left, at the point where found, by others than defendant's agents. Numerous reasons support this conclusion: The absence of any other obstruction that could have caused the injury; the evident recent improvement of the track; that the spikes were used only in this character of work; and that the keg and its contents were owned by and in the possession of the defendant. The evidence to sustain the verdict having been found sufficient under the rules stated, the alleged conflict in the testimony, however sharp it may be, cannot be interposed here to affect the verdict. This, for the reason that, in demurring to the testimony, the defendant admitted the truth of plaintiff's proof not only as to the affirmative facts adduced, but of every inference in their favor that the law will warrant. Hanser v. Bieber, 271 Mo. loc. cit. 335, 197 S. W. 68; Meenach v. Crawford, 187 S. W. loc. cit. 882; Williams v. Railroad, 257 Mo. loc. cit. 112, 165 S. W. 788, 52 L. R. A. (N. S.) 443. We decline therefore to interfere with the verdict on the ground that the trial court did not sustain a demurrer to the evidence.

[6] II. Instructions.-The giving of instruction numbered 4, at the request of plaintiff, as modified by the trial court, is complained of. It is as follows:

"You are instructed that, before the plaintiff can be said to have been guilty of contributory

negligence, contributing directly to his own in-
jury, if any, it must be shown that he knew, or
dangerous condition, if any, of the roadbed of
had reasonable opportunity of knowing, of the
which he complains and appreciated, or under
the exercise of ordinary care and prudence
should have appreciated, the danger, if any, en-
countered, in time to have prevented injury, if
any, to his person."

To this was added by the court the follow-
ing:

burden of proving contributory negligence on the
"And you are further instructed that the
part of the plaintiff is upon the defendant."

The burden of defendant's complaint is di-
rected against the addition to the instruction.
This is urged as error, because it was not
supplemented by the following:
dence and the witnesses introduced by him that
"Unless the jury finds from plaintiff's own evi-
he was guilty of contributory negligence."

This case was tried under the federal Em-
The United States

ployers' Liability Act.
courts have uniformly held, in proceedings
under this act, that as a matter of general
law the burden of proving contributory neg-
ligence is on the defendant even in trials in
states where it is held that the burden is on
Central Vermont Ry. Co. v.
the plaintiff.
White, 238 U. S. 507, 35 Sup. Ct. 865, 59 L.
Ed. 1433, Ann. Cas. 1916B, 252; Seaboard
Air Line R. Co. v. Moore, 228 U. S. 434, 33
No testimony
Sup. Ct. 580, 57 L. Ed. 907.
was offered by defendant at the trial to sus- .
tain the contention here made, nor is it in-
timated in its brief as to the respect in which
the plaintiff was guilty of contributory neg-
ligence; nor did the defendant ask any in-
struction or request the modification of the
one given to cover the alleged error.
this state of facts, where, as here, the in-
struction did not state what the plaintiff did,
or knew, or was in a position to know, the
failure of the court to give the same as now
contended for is not error. If the defendant
desired an amplification or qualification of
the instruction in order to present its point
of view to the jury, an appropriate request
If asked,
therefor should have been made.
its propriety then would have depended pri-
marily upon whether there was testimony
upon which it could be predicated. Ill. Cent.
R. Co. v. Skaggs, 240 U. S. 66, 36 Sup. Ct.
249, 60 L. Ed. 528.

Under

The Court of Appeals of Kentucky has re-
cently considered the question here involved.
Its apposite reasoning merits repetition. It
is as follows:

the right thereunder to plead and rely on the
"But notwithstanding the federal statute and
defense of contributory negligence, we think it
is obvious that, when there is no evidence tend-
ing to show that the plaintiff was guilty of con-
tributory negligence, the jury should not be in-
structed on the subject, although that defense
may be set up in a pleading. It is just as essen-
tial that there should be proof of contributory
negligence as that there should be an allegation
relying on this defense. If the contributory neg-
ligence is not pleaded, of course, an instruction
should not be submitted, and so if it is pleaded,
and there is no evidence to support the plea,

1

933.

there should be no instruction." Chesapeake &, train. To accomplish this, it was necessary Ohio Ry. Co. v. Cooper, 168 Ky. 137, 181 S. W. for him to grasp a stirrup or handhold, on the side of a car, and mount the same while running alongside of the train. In so doing, he was authorized in assuming that the right of way was clear of obstructions. Clothed with this presumption, it was not necessary for him to make an inspection of the right of way before attempting to climb upon the car. If this had been attempted, at the time of the accident, which was three o'clock in the morning, with his lantern light limited to a radius of five feet, such attempted inspection would have been ineffectual. Fur

But, if the instruction as modified by the court be subject to objection standing alone, its alleged omission is cured by the instructions taken as a whole. Those given for the plaintiff about which there is no question, and hence not set forth herein, instructed the jury fully as to the facts necessary to be proved to enable plaintiff's damages to be determined, taking into consideration the element of contributory negligence. In addition, defendant's instructions admonished the jury that, before the plaintiff could recover, it was necessary that it be shown that he had exercised the ordinary care and caution of a reasonably prudent man in boarding defendant's train. Defendant's concrete contentions in regard to the vice in instruction numbered 4 are that it did not enable the jury to determine whether the plaintiff intelligently employed the means at hand to ascertain whether his footing was secure, and that there were no pitfalls or obstacles in his way, and whether or not it was negligence on his part to mount a moving train when he could have mounted it while standing still. Let us see if these contentions are well founded. Under the issue made by the pleadings, it devolved upon the plaintiff to prove that his injury was due to the negligent leaving of the keg of spikes upon its right of way by the defendant. Absent the keg, there could have been no negligence on the part of the defendant, and, as a consequence, no injury to plaintiff for which damages might be assessed in his favor. The ground of negligence being thus limited, the plaintiff could not be held to have contributed to same, unless, in attempting to mount the train with knowledge of the keg's presence, he struck it and was thereby injured. Only upon this showing could the damages have been mitigated under the federal act, on account of plaintiff's contributory negligence. But defendant's plea of special contributory negligence on the part of the plaintiff was to the effect that, if the latter was injured at the time and place alleged, it was the result of his own negligence in attempting to climb on a moving train without properly using the stirrup. If this had been satisfactorily shown, it would have constituted a failure of such proof as is necessary to authorize a recovery, due to plaintiff's sole and not contributory negligence. There is therefore nothing in defendant's answer authorizing the modification of the instruction as now contended for. The duty of the jury upon a failure of proof due to plaintiff's sole negligence was fully presented by instructions given for the respective parties.

[7] A brief résumé of the facts demonstrates the applicatory propriety of these instructions. Plaintiff was injured, while in the discharge of his duties as a railroad brakeman, in attempting to mount a moving

ther than this, it would not have been possible for him to make such inspection, because when he grasped the stirrup to mount the car, his face was, of necessity, turned towards the train, and his vision thus directed. Such being the physical conditions, the existence of which were not affirmatively shown, may be deduced from uniform human experience under like circumstances, the question of the plaintiff not having used means to find out the condition of the surrounding circumstances, as urged by the defendant, is eliminated from consideration. not use his lantern as far as it would afford There was no evidence that the plaintiff did aid in determining his surroundings, or that he did not attempt to mount the train in a proper manner. No defense, however, is urged upon his failure in either of these respects. The instructions given were ample to cover all of these alternatives. We are therefore authorized in assuming that the

jury, in their deliberations, took into consideration these and all other questions sub

mitted to them.

We have carefully examined the cases of Williams v. Railroad, 257 Mo. 87, 165 S. W. 788, 52 L. R. A. (N. S.) 443, and Hurst v. Railroad, 163 Mo. 309, 63 S. W. 695, 85 Am. that the facts in each are so dissimilar from St. Rep. 539, cited by defendant, and find those in the case at bar that the conclusions reached therein cannot properly be urged in support of the contention here made. There is no merit therefore in the objections urged to instruction numbered 4, as given, and we so hold.

III. Excessive Verdict.-The contention is made that plaintiff's injuries were feigned, and that his physical condition subsequent to the accident was due to a prior condition of impaired health. We have reviewed the testimony with care in this regard. Except to illustrate the contrariety of conclusions that may be reached by learned members of the medical profession as to the pathological condition of a subject, a detailed statement of this testimony would serve no useful purpose. A summary of same, which we regard as sufficient for a determination of this contention, shows that plaintiff's injuries resulting from the accident were a bruise on his thigh and back; hydrocele of the right