Busch v. L. N. Railroad Co.

Full title: GEORGE BUSCH v. LOUISVILLE NASHVILLE RAILROAD COMPANY, Appellant

Court: Supreme Court of Missouri, Division One

Date published: Mar 29, 1929

322 Mo. 469 (Mo. 1929)

17 S.W.2d 337

Opinion

March 29, 1929.

1. FOREIGN CORPORATION: Presence in State: Return of Sheriff. The presence of a foreign corporation in this State necessary to the service of process is shown when it appears that the corporation is here carrying on business in such sense as to manifest its presence in the State, although the business transacted may be entirely interstate in character. And the return of the sheriff, showing service upon the foreign corporation in this State, in the manner provided by law, is proof of its presence in this State.

2. ____: Outside Parties and Witnesses: Action in This State. The prosecution of an action in the courts of this State, in which neither the parties nor the witnesses reside, is not in violation of the interstate commerce clause of the Constitution of the United States. The acts of Congress permitting suits for injuries received in interstate commerce to be brought in the state courts, prescribe no such limitation upon the venue.

3. JURY: Discharge: Misconduct of Counsel: Prejudicial Questions. The practice of asking questions which are foreign to the issues and carry implications that are untrue in fact, and asked for the deliberate purpose of creating prejudice in the minds of the jury, and with the expectation that a protest by adversary counsel, followed by a ruling of the court, will prevent an answer which will dissipate the intended effect, is unethical and deserving of severe rebuke; but such practice will not always authorize the discharge of the jury, and in this case, where the court refused to permit the questions to be answered and instructed the jury to disregard them, the court did not abuse its sound discretion in refusing the request to discharge.

4. INTERSTATE COMMERCE: Incidental Interruption: Within Scope of Employment. Where the fireman, on a very hot day, in accordance with a long prevailing custom, left his engine, standing on a passing track, to rest and cool off, and while sitting on a rail held himself in readiness to resume his duties the moment an expected train on the main track had passed and he had received a signal that the engine was about to move, the temporary cessation of labor was incidental to his employment, and did not therefore take him without its scope or remove him from employment in interstate commerce.

5. NEGLIGENCE: Fireman: Leaving Cab: Sitting on Rail: Negligent as Matter of Law: Prevailing Custom. Where when the engine came to a stop on a siding to permit another train to pass, the fireman climbed down and sought a cool place in which to rest, and the only shade available was that cast by the tender, and he could have the benefit of that shade by sitting down on one of the rails in the rear of the engine, and it was customary for the company's employees to do that under the circumstances, and he knew that, according to a custom of long standing, the engine would not move, either forward or backward, until after the engine bell had been rung and he had resumed his place in the cab, and the engine, without a ringing of the bell, was backed up and over him, it cannot be ruled as a matter of law that, under the circumstances, he was negligent in sitting upon the rail.

6. ____: Assumption of Risk: Anticipation. Where the negligent acts of other employees who caused plaintiff's injury could not have been foreseen or anticipated by him, the doctrine of assumption of risk has no application.

7. INSTRUCTION: Interstate Commerce. An instruction which requires the jury to find that "the train upon which plaintiff was fireman contained loaded cars which were moving in interstate commerce and enroute from the State of Illinois to the State of Missouri and had not reached their destination" is sufficient, without any further definition of interstate commerce, to authorize the jury to find that plaintiff was engaged in interstate commerce; and particularly so, where, on the undisputed facts, the court could very properly have instructed that, as a matter of law, the plaintiff at the time of his injury was employed in interstate commerce.

8. ____: Measure of Damages: Correct in General Scope. An instruction on the measure of damages, correct in its general scope, will not be held erroneous, where defendant made no attempt to point out the proper elements of damages or to modify its general language.

9. EVIDENCE: Expert: Based on Plaintiff's Statements. The testimony of a physician who had examined plaintiff, not for the purpose of treatment, but for the purpose of giving testimony at the trial, and consisting of his conclusions as to plaintiff's pain and mental and spinal condition, could not have properly been stricken out on the ground that it was based on statements made by plaintiff, where the record fails to show that the testimony was based on any statement made by plaintiff or repeated to the witness by others.

10. ____: Earnings: Fireman: When Promoted to Engineer. In an action for personal injuries loss of earnings is an element of recoverable damages, but such earnings must be shown with reasonable certainty, and not be merely speculative in character; and under this rule, the testimony of the injured fireman that prior to his injury he had been promoted to the position of engineer and had worked as such for a year or more, and thereafter, owing to a falling off of defendant's business, had been reduced to the rank of fireman under the rules of seniority, and that when and if business revived he would under the rules be returned to the grade of engineer, and that he would earn more as an engineer than as fireman, and how much more, is admissible, as tending to show with reasonable certainty that, in accordance with the fixed rules of promotion, he would in the near future have been returned to the rank of engineer and would have received the pay earned by that class of railroad operatives; and the testimony should not be limited to a statement that as engineer he would have earned more than as fireman, but he should be permitted to state how much more he would have earned.

11. ARGUMENT TO JURY: No Objection. Complaint of the argument of respondent's counsel to the jury is not for consideration on appeal where no objection was made, and consequently no exception was saved, to the argument at the time it was made.

12. EXCESSIVE VERDICT: Thirty-Six Thousand Dollars. Plaintiff was a fireman, and for a year or more had been engineer, but reduced under the rules to fireman when the railroad's business became slack, but entitled to promotion to engineer when the business revived. He was twenty-nine years of age, and during the preceding year had earned $178.59 per month. His permanent physical injuries are loss of the left leg, loss of parts of the second and third fingers of the left hand, and a shortened collar bone causing a limitation in the movement of his arms; he suffered great pain and will continue to suffer pain to some extent during the remainder of his life, but the evidence does not show with reasonable certainty a permanent impairment of the nervous system. The jury returned a verdict for $81,000, and the court required a reduction to $36,000, and entered judgment for that amount. Held, that the judgment will be affirmed for $25,000, on condition that he remit $11,000.

Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 753, p. 848, n. 95; Section 763, p. 862, n. 21; 4 C.J., Section 2325, p. 534, n. 93; Section 2890, p. 918, n. 42. Commerce, 12 C.J., Section 56, p. 46, n. 26; Section 167, p. 119, n. 55. Corporations, 14a C.J., Section 4079, p. 1372, n. 9. Damages, 17 C.J., Section 334, p. 1037, n. 79; Section 408, p. 1095, n. 86. Master and Servant, 39 C.J., Section 929, p. 721, n. 54; Section 1398, p. 1213, n. 26. Trial, 38 Cyc., p. 1477, n. 56.

Appeal from Circuit Court of City of St. Louis. — Hon. Harry A. Rosskopf, Judge.

AFFIRMED ( upon condition).

A.M. Warren and H.R. Small for appellant.

(1) The court erred in overruling plaintiff's plea in abatement, because (a) the cause of action having arisen in Illinois, the plaintiff being a citizen of Indiana, the defendant of Kentucky, and the witnesses residing in Illinois, and none of them in Missouri, and defendant being subject to suit in Illinois and in Indiana where plaintiff lived, it was an undue burden on interstate commerce to institute and maintain and proceed with this suit in the Circuit Court of the City of St. Louis, in violation of the Constitution of the United States; and because (b) subjecting defendant foreign corporation not engaged in business in Missouri, and only engaged therein in interstate commerce, to suit on a foreign cause of action by a citizen of Indiana, and making the sheriff's return conclusive in Missouri that defendant was doing business in Missouri and so subject to service without any right in defendant to question such return, was a denial of due process of law in violation of the Federal Constitution. U.S. Constitution, Art. 1, sec. 8, and Fourteenth Amendment; Simon v. Southern Ry., 236 U.S. 115; Davis v. Co-operative Co., 262 U.S. 312; Mechanical Appliance Co. v. Castleman, 215 U.S. 437; Union Pacific Co. v. Pub. Serv. Comm., 248 U.S. 67; Newcomb v. Railroad, 182 Mo. 687; Smoot v. Judd, 184 Mo. 508; State ex rel. v. Sale, 232 Mo. 166. (2) Plaintiff's deliberate and unjustifiable inflaming of the jury by stating three times that Engineer Schmidt was a man who had a bad record for injuring people and was incompetent, followed as it was by the closing speech of plaintiff's counsel to the jury to the effect that Schmidt, not content with crushing the plaintiff on July 12, 1924, when the engine ran over him, was at the trial trying to crush him again, was conduct on the part of counsel for plaintiff that in justice to defendant required the withdrawal of this case from the jury and required the sustaining of defendant's motion for new trial on the ground of the court's refusing to withdraw the case from the jury on account of such conduct. (3) The instruction in the nature of a demurrer to the evidence offered by defendant at the end of the whole case should have been given: (a) Because plaintiff was shown without contradiction not to be engaged in any duty in furtherance of his employer's business as he sat near the tender in the most dangerous place he could select when the other members of his crew were engaged in the operation of recoupling the engine to the cars, and while he admittedly gave no attention to his engine or his crew, but gave his whole attention to the passing train, which went by with great noise. (b) Because plaintiff was not only at the time and place not engaged in any duty for his employer, but was also not engaged in any interstate duty or employment for his employer. Pederson v. Railroad Co., 229 U.S. 146; Kinzell v. Railroad, 250 U.S. 130; Clarke v. Wheelock (Mo. App.), 293 S.W. 456; Bryce v. Lloyd, 2 K.B. 804; Berry v. Ry. Co., 98 Mo. 70; Elliott v. Payne (Mo.), 239 S.W. 851; Lyons v. Ryson Son, 148 Ill. App. 284; Bunida v. Armour Co., 150 Ill. App. 302; Horn v. Arnold S. Co., 150 Ill. App. 559; Ellsworth v. Matheny, 104 F. 119; Brock v. Railroad, 305 Mo. 502; Bruce v. Railroad, 271 S.W. (Mo.), 762; Wolf v. Terminal Railroad, 282 Mo. 563; McEntyre v. Railroad, 286 Mo. 234; Arnold v. Graham, 272 S.W. (Mo. App.) 90; Williams v. Schaff, 222 S.W. 412; Aerkfetz v. Humphreys, 145 U.S. 418; Sutton v. Wabash, 152 Ill. App. 140; Railroad v. Craven, 52 Ill. App. 415; Railroad v. Barnes, 132 Ky. 728; Railroad v. Harmon, 147 Ky. 805; Hobbs v. Great Western, 80 Wn. 678. (c) Because plaintiff assumed the risk of injury in voluntarily assuming the risk of the engine backing on him when he sat down on a rail close to the tender where he was not in duty required to be, and where it was not necessary or safe for him to be, and did so with full knowledge and appreciation of the peril such situation entailed. Williams v. Pryor, 254 U.S. 43; Aerkfetz v. Humphreys, 145 U.S. 418; Boldt v. Railroad, 245 U.S. 441; Conley v. Railroad, 201 F. 54; Davis v. Railroad, 276 F. 187; Elliott on Railroads (3 Ed.) sec. 1862; Osborn v. Railroad, 1 S.W.2d 181. (4) The court erred in giving plaintiff's instruction numbered 1. It asked the jury to find as a conclusion of law that plaintiff was employed in interstate commerce. It is to the effect that if there was no warning bell sounded before the engine as it stood moved backward toward plaintiff "and if you find and believe from the evidence that the movement of the engine, if any, was negligent" without any statement that the movement was negligent on account of not first ringing the bell. (5) The court erred in refusing to strike out the testimony of Dr. Hoge, a doctor employed by counsel for plaintiff to testify at the trial, which testimony so sought to be stricken out related to the statements made by plaintiff to Dr. Hoge. Railroad v. Townsend, 206 Ky. 329; Kinchlow v. Railroad, 264 S.W. 416. (6) The verdict of $81,000 was excessive and the result of bias and prejudice; it was induced by inflammatory tactics of counsel for plaintiff during the trial in the cross-examination of Conductor Dew, followed as it was by inflammatory argument to the jury, and was induced by the instructions, which failed to advise the jury that plaintiff was guilty of negligence. For the same reason judgment left by the court below of $36,000 is excessive. Johnson v. Coal Co., 276 Mo. 42; Newcomb v. Railroad, 182 Mo. 726; Kinney v. Railway, 261 Mo. 97; Foster v. Davis, 252 S.W. 437; Miller v. Schaff, 228 S.W. 491; Bryant v. Railways, 228 S.W. 476; Greenwell v. Railways, 224 S.W. 410; Market v. Railroad, 185 Mo. 348; Lessenden v. Railway, 238 Mo. 247; Yost v. Railroad, 245 Mo. 219; Kibble v. Railroad, 285 Mo. 603; Fitzsimmons v. Railroad, 294 Mo. 551; Thompson v. Smith, 253 S.W. 1029; Brock v. Railroad, 266 S.W. 691. (7) The court erred in permitting Busch to testify over objection by defendant, as to his prospects of promotion and increased wages. Railroad v. Elliott, 149 U.S. 266.

Charles P. Noell and Abbott, Fauntleroy, Cullen Edwards for respondent; Glen Mohler of counsel.

(1) A railroad corporation of another state may be sued in this State by a non-resident plaintiff upon a cause of action arising outside of this State in all cases where the corporation operates a railroad line in this State and maintains agents with offices for the transaction of its usual and customary business. Hoffman v. Missouri ex rel. Foraker, 274 U.S. 21; Hoffman v. Company, 309 Mo. 625; Harris v. Express Co., 12 F.2d 487. (2) A railroad fireman may, in accordance with the long-established and prevailing custom, leave his engine after it is stopped on a siding in a switch yard and take a position nearby in a shady spot on the tracks and there remain and rest until notified that the engine is about to be moved, and by so doing he does not place himself outside of the scope of his employment, nor remove himself from employment in interstate commerce. Such conduct is not inconsistent with his duty to his employer, and the cessation from labor is incidental and from some natural and necessary purpose which falls within the contemplation of the parties. Railroad v. Zachary, 232 U.S. 248; Geneva Mill Co. v. Andrews, 11 F.2d 924; Harvey v. Ry. Co., 116 F. 398; Ry. Co. v. United States, 231 U.S. 112; United States v. Ry. Co., 220 U.S. 37; Carter v. Railroad, 307 Mo. 595; Carter v. Railroad, 305 Mo. 595; Brook v. Railway Co., 305 Mo. 502; Railroad v. Scott, 71 Tex. 703; Graber v. Ry. Co., 150 N.W. 491; Charron v. Fuel Co., 49 L.R.A. (N.S.), 165; Rogers v. Davis (Idaho), 228 P. 331; Wallace v. Standard Oil Co., 66 F. 263. (3) The action of the engineer in starting the engine from a stationary position was in violation of the written rules of the company, in violation of the established custom, and constitutes gross and inexcusable negligence. Montgomery v. Railroad, 22 F.2d 360; Louisiana Ry. v. McGlory, 20 F.2d 546; Lewis v. Railroad, 142 Mo. App. 585; Rutledge v. Railroad, 123 Mo. 121; 20 R.C.L., 119, 120, sec. 101. (4) The conduct of a fireman as outlined in Point 2 does not constitute contributory negligence as a matter of law and is not the sole cause of an injury inflicted upon him while in that position by the sudden and unexpected movement of the engine in violation of rules and custom and without notice. Lewis v. Railroad, 142 Mo. App. 585; 20 R.C.L., 117, sec. 101; Gornstein v. Priver (Cal.), 221 P. 396; Ruehl v. Tel. Co., L.R.A. 1918C, 1063; Brock v. Railway Co., 305 Mo. 525; Montgomery v. Railroad, 22 F.2d 360; Louisiana Ry. v. McGlory, 20 F.2d 546. (5) A fireman does not assume the risk of injury when he has no knowledge or notice that the engineer is about to reverse and start his engine, without giving signals and in violation of the written rules of the company and contrary to the prevailing custom, and by so doing commit an act of negligence by silently and suddenly putting a standing engine into motion and running it backward. Reed v. Director General, 258 U.S. 92; Boston Railroad Co. v. Benson, 205 F. 876; San Pedro Railroad Co. v. Brown, 258 F. 806; Shaw v. Railroad (Mo.), 282 S.W. 421. (6) It was competent to prove the earning capacity of plaintiff as a locomotive engineer, even though he was not then employed as an engineer, because he had already been promoted to that position and was a qualified engineer. Bryant v. Railroad, 98 Iowa 483; Railroad v. Ford (Tex. Civ. App.), 46 S.W. 77; Railroad v. John, 9 Tex. Civ. App. 342; Railroad v. Young, 19 Kan. 488; Walters v. Railroad, 41 Iowa 71; Howard Oil Co. v. Davis, 76 Tex. 630. (7) The testimony of Dr. Hoge was founded on what he found from his own observation or from the patient's statement of his symptoms and suffering at the time of such examination or both, and no objection was made to the testimony when offered and the motion to strike out was properly overruled. Kinchlow v. Ry. Co. (Mo.), 264 S.W. 421. (8) The remarks of counsel complained of in the brief were not erroneous in fact and this point is not properly preserved. (9) The instruction given on behalf of plaintiff correctly stated the law, and if defendant desired more specific or ample instructions it should have asked the court for them, and, failing to do so, there is no ground for complaint in this court. Browning v. Ry. Co., 124 Mo. 55. (10) The verdict is not excessive, considering the age, earning capacity and unparalleled injuries which plaintiff suffered. Meeker v. Union E.L. P. Co., 279 Mo. 605; Bond v. Ry. Co., 288 S.W. 777.

RAGLAND, J.

This case comes to the writer on reassignment. The action is for personal injuries alleged to have been suffered by plaintiff while employed in interstate commerce, through the negligence of the defendant, his employer. As a number of the questions urged here relate to the sufficiency of the evidence to support the several assignments of negligence relied on by plaintiff, the facts will be stated from the standpoint of his evidence. Conflicting evidence on the part of the defendant, where material, will be noted.

On July 12, 1924, plaintiff was in the employ of defendant as fireman: on that day he was firing an engine which was pulling a local freight train from Mt. Vernon to East St. Louis, in the State of Illinois. When the train reached Belleville, it took a siding to await the passing of a fast freight known as No. 79. Defendant's main track and its passing track at that point run approximately east and west: the passing track is north of the main track, parallels it and is just a sufficient distance from it to enable cars moving on one of the tracks to clear cars on the other. The local freight was going west: No. 79 was coming east. The local entered the passing track at a switch just east of the depot at Belleville. When it came to a stop the crossing of a north-and-south street just west of the station was obstructed; the train was cut at that point and the front moved up so as to clear the crossing; the engine then came to a stop on the crossing of the street next west; it was then uncoupled from the train and moved a short distance west clearing the crossing. With the train in that condition and so standing, the crew awaited the coming of No. 79. It was then about 5:30 P.M.; the day was intensely hot; the crew had been on the road ten hours. Plaintiff climbed down from the cab, walked east and sat down on the north rail of the passing track, on which the engine was standing — from fifteen to eighteen feet from the rear of the tender, but in the shade made by it. There were no other structures in the immediate vicinity which afforded a shade, and there were no trees. As plaintiff sat he faced the south: his feet were between the rails. At the same time that plaintiff left the cab, the engineer, Schmidt, climbed down and proceeded to make an inspection of his engine and oil it. The head brakeman, Porter, also got down and walked back to confer with the rear brakeman with reference to the work of setting out some cars after No. 79 had passed. Presently Porter came back to where plaintiff was sitting and they engaged in conversation; at this juncture the engineer came around the tender, oil can in hand, paused an instant, and then passed on for the purpose apparently of oiling bearings on the other side of the engine. Shortly thereafter No. 79 was heard coming: Porter walked away, but plaintiff continued to sit on the rail; as the engine of No. 79 passed he waved to the fireman. In the meantime the engineer had gotten back into the cab; Porter, from somewhere along the side or in front of the engine, gave him a signal to back for the purpose of coupling up; the engine was at once started moving backward — before all of train No. 79 had passed. Plaintiff received no notice or warning, by bell or otherwise, of the intended movement of the engine. The bell was not rung before it moved. Plaintiff was subsequently pulled out from under the engine.

A rule of the defendant provided: "The engine bell must be rung when the engine is about to move." And there was a long-established practice and custom, well known to defendant and to its employees, not to move an engine, under the circumstances existing at the time in question, until after (1) the bell had been rung and (2) the fireman had taken his position in the cab. It was a like practice and custom for members of a crew, engineer, fireman and brakeman, under like circumstances, to sit on the rail of the track, while waiting to move, if no more convenient place was available.

There was countervailing evidence on the part of the defendant with respect to the alleged custom not to move an engine until the fireman was in his place; there was also evidence that the bell was rung; and that No. 79 while passing made a great deal of noise. The engineer testified that he did not walk around the tender; that he did not know that plaintiff went back and sat on the rail; and that he in fact did not know that plaintiff had left the cab. Porter testified that he had forgotten that plaintiff was sitting on the rail just in the rear of the tender when he gave the engineer the signal to back up.

That defendant, in operating the train, was engaged in interstate commerce is not questioned; it is contended that plaintiff, while sitting on the rail, was not employed in such commerce.

The petition predicates negligence as follows: (1) The engineer, knowing, actually or constructively, that plaintiff was sitting on the rail immediately back of the tender, started the engine back without giving him any notice or warning of the intention so to do; (2) the engineer, in violation of the custom and practice, put the engine in motion without first having sounded the engine bell; (3) the engineer, in violation of the custom and practice, started the locomotive engine while plaintiff, the fireman, was off and away from the inside of the cab; and (4) the brakeman, knowing that plaintiff was seated on the rail immediately back of the tender, signaled the engineer to move the engine and tender back toward plaintiff. In the principal instruction given for plaintiff the jury were directed to return a verdict for him if they found the defendant negligent in any of those particulars.

The answer consisted of a plea in abatement, a plea of assumption of risk and a general denial.

The jury, finding for plaintiff, assessed his damages at $81,000: the trial court required the entry of a remittitur of $45,000 as the condition upon which the motion for a new trial would be overruled. The remittitur was entered and judgment rendered for plaintiff in the sum of $36,000; this appeal on the part of defendant followed in due course.

Other record facts will be noted in connection with the questions considered. The assignments of error will be taken up and passed on in the order in which they are briefed.

I. In the plea in abatement it was alleged that plaintiff was not, and never had been, a resident of the State of Missouri; that defendant was a Kentucky corporation; that in Missouri it was engaged in interstate commerce only — Presence in between St. Louis and points in Illinois and State: Outside Indiana and south and southeast thereof; and that Parties and all of the witnesses who would be called to Witnesses. testify in the case resided out of Missouri. Following those allegations the plea concluded thus: "the requiring of defendant to submit to suit in the city of St. Louis, Missouri, on the cause of action alleged in plaintiff's amended petition, is an undue burdening of interstate commerce and of the regulations of interstate commerce, in violation of Section 8 of Article I of the Constitution of the United States, and defendant states that defendant is denied due process of law as guaranteed to it under the Fourteenth Amendment of the Constitution of the United States by the practice and holding in Missouri in this case and, in other cases that the return of the sheriff herein is conclusive and that the return in this case is a return that defendant is engaged in business in Missouri."

The circuit court overruled the plea in abatement and its action in that respect is assigned as error.

Whether the practice and holding in Missouri, that the return of the sheriff to an original writ of summons is conclusive, is a denial of due process of law as guaranteed by the Fourteenth Amendment does not seem to be involved in the case. Defendant admits that it was engaged in interstate commerce within the State, and "the presence of a corporation within a state necessary to the service of process is shown when it appears that the corporation is there carrying on business in such sense as to manifest its presence within the state, although the business transacted may be entirely interstate in character." [International Harvester Co. v. Kentucky, 234 U.S. 589.]

As to the further contention that the prosecution of the suit in a state where neither parties nor witnesses reside is in violation of the commerce clause of the Constitution, we cannot do better than adopt the reasoning of the Court of Appeals of the District of Columbia, in Harris v. American Railway Express Co., 12 F.2d 487:

"If Congress had deemed it proper to limit and prescribe the venue of such actions for the better regulation of interstate commerce, suitable legislation would have been enacted for that purpose. Such legislation might permit such actions to be brought only in the state or district where the shipment originated, or where it terminated, or where the goods were injured while in transit, or where the claimant resided. Other considerations also might apply. But in the absence of legislation upon the subject it would produce confusion and injustice for the courts to assume authority to prescribe such rules."

This case is clearly distinguishable from Davis v. Farmers Co-operative Company, 262 U.S. 312. A foreign corporation must submit, if there is jurisdiction, to the requirements of orderly, effective administration of justice, although thereby interstate commerce is incidentally burdened. [Hoffman, J., v. Missouri ex rel. Foraker, 274 U.S. 21.]

II. Appellant next assigns as error the refusal of the trial court to discharge the jury following misconduct on the part of plaintiff's counsel. The conduct so characterized is portrayed in the following excerpt from the bill of exceptions:

"MR. NOELL: This is not the first time Mr. Schmidt injured people out there at Belleville, is it?

"MR. SMALL: I didn't hear that.

"MR. NOELL: You are familiar with Mr. Schmidt's career in the last few years in accidents similar to this, aren't you?

"MR. SMALL: I object to that and ask that the jury be discharged.

"THE COURT: I will sustain the objection.

"MR. SMALL: Made for the pure purpose of prejudicing the jury.

"MR. NOELL: I want to show Mr. Schmidt is not a competent man.

"THE COURT: You haven't pleaded it.

"MR. SMALL: I object to this further statement.

"THE COURT: There is no allegation of incompetence or unskillfulness.

"MR. SMALL: I ask that the jury be discharged, if the Court please, after that.

"THE COURT: No. I will permit the case to go on and ask the jury to disregard any reference to the question asked of the witness just now about Mr. Schmidt."

We have observed that in the trial of cases it not infrequently happens that questions are asked which are not only foreign to the issues, but which carry implications that are untrue in fact: such questions are asked for the deliberate purpose of creating prejudice in the minds of the jury, and with the expectation that a protest by adversary counsel, followed by a ruling of the court, will prevent an answer which would in many instances dissipate the intended effect. The practice is unethical and deserving of the severest censure. The incident complained of in the instant case, however, was not thought by the trial court to be sufficiently prejudicial as to require the discharge of the jury. We cannot say that its discretion in that respect was not soundly exercised: appellant's contention under this head is disallowed.

III. The failure of the court to sustain a demurrer to the evidence is assigned as error. In support of this contention it is urged: (1) that plaintiff at the time he received his injury was not employed in interstate commerce; (2) that his injury was due to his own negligence as a matter of law; and (3) that under conceded facts he assumed as a matter of law the risk of the injury which subsequently befell him.

(1) In accordance with a long prevailing custom plaintiff left his engine to rest and cool off: during all the time he was sitting on the rail he held himself in readiness to resume his duties the moment No. 79 had passed and he Interstate received a signal that the engine was about to Commerce: move. This temporary cessation of labor was Incidental incidental to his employment, one clearly falling Interruption. within the contemplation of the parties to the contract of employment. It did not therefore take him without the scope of his employment or remove him from employment in interstate commerce. [Carter v. Railroad, 307 Mo. 595, 604, 271 S.W. 358; North Carolina Railroad Co. v. Zachary, 232 U.S. 248.]

(2) When the engine came to a stop on the siding, plaintiff climbed down and sought a cool place in which to rest. The only shade available was that cast by the tender attached to the engine. He could have the benefit of that shade by Negligent sitting down on one of the rails: it was customary for as Matter appellant's employee's to do that under such of Law. circumstances. He knew that, according to an invariable custom of long standing, the engine would not move, either forward or backward, until after the bell on the engine had been rung and he had gotten into his place in the cab. Under such circumstances it cannot be said as a conclusion of law that he was negligent in sitting on the rail as he did.

(3) The negligent acts of the engineer and brakeman alleged to have caused plaintiff's injury could not have been foreseen or expected by him. The doctrine of assumption of risk Assumption is therefore without application. [Shaw v. Railroad of Risk. Co., 282 S.W. 416, 421; Reed v. Director General, etc., 258 U.S. 92.]

IV. Plaintiff's principal instruction, which hypothesized the facts which would authorize a verdict for him, is criticized on a number of grounds. The first is that it required the jury to find that plaintiff was employed in interstate commerce without telling them what was necessary to constitute such employment. On the undisputed facts the court could very properly Instruction: have instructed that as a matter of law plaintiff Interstate was at the time of his injury employed in Commerce. interstate commerce. But the instruction required the jury to find that "the train upon which the plaintiff was fireman contained loaded cars which were moving in interstate commerce and enroute from the State of Illinois to the State of Missouri and had not reached their final destination." This in connection with conceded facts was clearly sufficient to authorize as a conclusion of law that plaintiff was employed in interstate commerce.

Other criticisms of the instruction, as for example, that it failed to negative the defense of assumption of risk and that it failed to require the jury to find that plaintiff's injury was not proximately caused by his own negligence, are as devoid of substance as the one considered. An attentive reading of the instruction as a whole shows that it was carefully drawn and fairly submitted the issues.

V. The next assignment is this: "The damage, Instruction No. 3, requested by plaintiff, is erroneous because this instruction does not fix the proper measure of damages, namely, the present cash value, but leaves the jury to roam at large as Measure of to the amount they should fix for damages for the Damages. injuries shown by the evidence."

The instruction was correct in its general scope. The defendant made no attempt to point out the proper elements of damages in such cases or to modify the general language of the instruction: it will not be heard to complain now. [Browning v. Railroad, 124 Mo. 55, 71, 27 S.W. 644.]

VI. 1. Appellant complains of the refusal of the court to strike out a portion of the testimony of Dr. Hoge, a medical witness, who had examined plaintiff, not for the purpose of treating him, but for the purpose of giving testimony at the trial. The testimony which appellant sought to have stricken out it describes as follows: "Each part of Dr. Expert Testimony: Hoge's testimony repeating and predicating Based on Statements on the statements made to him by the of Plaintiff. plaintiff, Busch, and particularly his testimony as to pain; also his testimony that, from what plaintiff advised him, he formed certain conclusions of mental and spinal conditions of plaintiff." A careful reading of the testimony from the record fails to disclose that any expert opinion given by the witness as to plaintiff's condition was based on statements made by plaintiff; nor does it disclose anywhere a repetition of statements made by plaintiff as to pain or otherwise. The point is without substance.

2. Plaintiff testified over the objections of defendant that he had prior to his injury been promoted to the position of engineer and had worked as such for a year or more; that thereafter, owing to a falling off in defendant's business, he was again Earnings. reduced to the rank of fireman under the rules of seniority; that if, and when, business picked up he would again be returned to the grade of engineer under the rules; and that he would earn more money as engineer than as fireman. Owing to an objection interposed by defendant, he was not permitted to state how much more he would earn as engineer. The loss of future earnings is of course an element of damages recoverable in cases of this kind. Such earnings must, however, be shown with reasonable certainty, and be not merely speculative in character. Under the rule all the evidence received, and that tendered and excluded, was admissible: it tended to show with reasonable certainty that, in accordance with a fixed rule of promotion, plaintiff would in the near future be returned to the rank of engineer and receive the increased pay earned by that class of railroad operatives. [Galveston H. S.A. Ry. Co. v. Ford, 46 S.W. 77, 79; Richmond Danville Railroad Co. v. Elliott, 149 U.S. 267, 268.]

3. Complaint is made of the closing argument to the jury made by plaintiff's counsel. Defendant offered no objection Argument at the time and consequently saved no exception. The to Jury. matter is not subject to review.

VII. Appellant insists that, notwithstanding the remittitur entered in the trial court, the damages awarded plaintiff are still grossly excessive. This calls for a statement with some particularity of the facts relating to the nature and extent of plaintiff's injuries. As to the manner in which they Excessive were received he testified: Verdict.

"Just as I was glancing at it [passing No. 79] the engine struck me in the side of the head and I got under the engine. When it struck me at the side of the head I tried to get up and my head hit that coupler right behind the engine and knocked me back down so I got underneath the engine and the rods caught my clothes, and finally throwed my leg out between the tank trucks and I tried to get them out and I got these fingers caught and mashed, and just then this leg was cut off, and I managed some way to get this leg out; how I done it I can't say. Just a little bit after that something busted me in the head, busted a big hole in my head, just like a fellow putting a blow torch in front on my head, and that is about all I know. I woke up in the hospital some time after that."

Plaintiff was examined by Dr. Hoge, who testified in his behalf, in December, 1924, and again a few days before the trial, in October, 1925. These examinations disclosed to the witness that the left leg had been amputated above the knee; that portions of the second and third fingers of the left hand were off; that the left collar bone had been broken, with a bad union resulting — the ends of the fragments overlapping from one-half to three-fourths of an inch; that there were scars on the head: one on each side in the mastoid region and one in the left occipital region; and that plaintiff was suffering from a "disorder of the nervous system of an organic nature." The nervous condition, aside from reactions to technical tests, manifested itself by abnormally large pupils which did not react well to the light, and an irritable state of mind. The witness said that this condition could be permanent, but he ventured no opinion as to whether it would. The wounds on the head were apparently mere scalp wounds; there was no fracture or concussion. The result of the imperfect union of the parts of the clavicle was to limit somewhat the movements of the left arm.

Plaintiff testified that he suffered greatly from pain while in the hospital and continued to suffer pain in his back and in the stump of his left leg. He further said:

"I can't sleep; I can't rest; I am restless; I always want to go away, not to stay at the same place. When I read I kind of fix my eyes and always get off the column where I am on and get onto something else. It is a heavy line. I really can't read very much. . . . I have constant headaches, not so severe at times, but very severe at other times, headaches. Can't sleep at night."

Plaintiff was twenty-nine years of age; in good health — normal in every respect; and had earned during the year preceding his injury an average of $178.59 a month.

The pain and suffering, the loss of earnings — past and prospective, and the mutilated body: how much money will be a fair and just compensation for these? The caprice and whim of juries seem to have made it necessary for this court to apply as far as may be some standard of uniformity to the amounts of damages recoverable in personal injury cases: the task assumed is difficult and unrelished. Under the proof plaintiff's permanent physical injuries are three: loss of the left leg; loss of parts of the second and third fingers on the left hand; and a shortened collar bone, causing a limitation of the movement of the arm; the evidence does not show with reasonable certainty a permanent impairment of the nervous system. He has suffered great pain and will doubtlessly suffer pain to some extent during the remainder of his life; he is young, and had a considerable earning power just coming into fruition. Whether his injury was in any degree attributable to his own negligence was, under the evidence, for the jury to say: from the size of their award against defendant they evidently held that it was not. Without making a more specific analysis of the elements of his damages, we are disposed to permit a recovery of $25,000.

Other points are raised in appellant's brief but they are fully covered by what has been written.

If the respondent will within ten days enter a remittitur of $11,000 as of the date of the original judgment, the judgment will be affirmed; otherwise, it will be reversed and the cause remanded. All concur, except Frank, J., not sitting.