Cole v. St. Louis-San Francisco Ry. Co.

Full title: WILLIAM G. COLE, Appellant, v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY

Court: Supreme Court of Missouri, Court en Banc

Date published: Jun 10, 1933

332 Mo. 999 (Mo. 1933)

61 S.W.2d 344

Opinion

June 10, 1933.

1. APPEAL AND ERROR: Admissions by Counsel. In an action by a brakeman for injuries caused by his slipping from a ladder on a tank car, where defendant's counsel in his opening statement to the jury admitted that oil or grease was on the bottom rung of the ladder from which the plaintiff slipped, the defendant cannot on appeal be heard to complain that there was no evidence that the ladder with grease on the bottom rung was the one from which plaintiff fell.

2. MASTER AND SERVANT: Circumstantial Evidence: Jury Question. In an action by a brakeman for injuries caused by his slipping from a ladder on a tank car, that grease was on the rung of the ladder from which plaintiff fell before it started on the trip could be shown by circumstantial evidence which need not exclude every other reasonable inference. Where the evidence tended to exclude every probability of oil or grease having been placed on the rung during the movement of the train from the start to the accident it was a question for the jury whether it was there before the start.

3. MASTER AND SERVANT: Evidence: Jury Question. In an action by a brakeman for injuries caused by his slipping from a greasy rung of a ladder on a tank car, whether the car was inspected before the start on the side containing the ladder was a question for the jury. Likewise, whether such inspection would have disclosed the grease on the rung was for the jury.

4. APPEAL AND ERROR: Motion for New Trial: Assignment of Error. Where the trial court sustained a motion for a new trial, on appeal therefrom all the assignments of error in the motion for a new trial are for review.

5. APPEAL AND ERROR: Motion for New Trial: Rulings of Trial Court. It is the duty of the trial court to consider all assignments of error in a motion for a new trial and, on appeal from an order sustaining such motion, it will be presumed that the trial court performed that duty.

6. APPEAL AND ERROR: Motion for New Trial: Rulings of Trial Court. The trial court having stated of record that a new trial was granted on a certain ground assigned in the motion it thereby overruled the motion as to other grounds assigned.

7. TRIALS: Instruction. An appellant cannot be heard to complain of an error in an instruction when it asked and was given an instruction containing the same error.

8. TRIALS: Excessive Verdict. Where a brakeman twenty-seven years of age, earning two hundred dollars a month, incurred no expense for hospital or medical services, under the evidence it is held that he should not recover in excess of ten thousand dollars.

9. APPEAL AND ERROR: Remittitur. Where plaintiff, in an action for damages, recovered a verdict for thirty thousand dollars, the trial court sustained a motion for a new trial and the Supreme Court, on appeal, finds no error was committed against the defendant in the course of the trial, the verdict being excessive by twenty thousand dollars it is proper to reverse with directions to set aside the order granting a new trial, reinstate the verdict and if a remittitur of twenty thousand dollars is not entered by plaintiff to grant a new trial on the ground that the verdict is excessive.

Appeal from Jasper Circuit Court. — Hon. R.H. Davis, Judge.

AFFIRMED AND REMANDED ( with directions).

Norman Norman for appellant.

(1) The court granted defendant a new trial in this case on the sole ground that he should have sustained defendant's demurrer to all the evidence at the close of the entire case. (a) "In passing on demurrer to evidence, plaintiff must be allowed every favorable inference of fact to be drawn from his testimony." Baker v. Railroad Co., 39 S.W.2d 535. "In considering defendant's demurrer to the evidence, every reasonable inference should be indulged in plaintiff's favor." State ex rel. v. Haid, 28 S.W.2d 97. "On defendant's demurrer to evidence, inference unfavorable to plaintiff should not be drawn if others more favorable can be drawn with equal propriety." State ex rel. v. Haid, supra. "Where court heard no evidence except plaintiff's it and all reasonable inferences and deductions therefrom are taken as true on demurrer to evidence." Coble v. Railroad Co., 38 S.W.2d 1031. (b) There was no error in the trial of this case prejudicial to the defendant; the only errors committed by the court were errors prejudicial to the plaintiff, yet plaintiff substantially proved the essential averments of his petition and there is no error in the record about which the defendant can complain, and the cause should be reversed and remanded. "Where there is no error in a trial, wherein a case is submitted to the jury, an order granting a new trial will be reversed on appeal, where it cannot be said as a matter of law that the verdict of the jury was not sustained by the evidence." Berkshire v. Holcker, 216 S.W. 556. "Granting a new trial for overruling a demurrer to the evidence is erroneous where plaintiff substantially proves essential averments." Mooney v. Monark G. O. Co., 298 S.W. 69. "It is error to grant a new trial where the evidence is sufficient to warrant a finding for plaintiff." Schaefer Const. Co. v. Jones, 3 S.W.2d 286. (2) Since this action is brought under the Federal Employers' Liability Act and the Safety Appliance Act, the decisions of the Supreme Court of the United States, in determining defendant's negligence and the sufficiency of plaintiff's proof, should and must control. McAdow v. Ry. Co., 192 Mo. App. 540, affirmed 240 U.S. 51; Hamilton v. Railway Co., 300 S.W. 787. (3) The sill-step from which plaintiff fell in this case being covered with oil or grease, if any other employee of defendant was responsible for the grease being there, the defendant is liable, or if any of its employees whose duty it was to inspect the places of work to ascertain the safety of such places, failed to make such inspection or did not make a proper inspection, defendant is liable. Under the Federal Employers' Liability Act, the action lies for "injury or death resulting in whole or in part from the negligence of any of the officers, agents or employees of such carriers." Railroad Co. v. Kerse, 229 U.S. 576. (a) The object of the act was to abrogate the fellow-servant rule in case of injuries to employees, and the negligence of the "officers, agents or employees" is the negligence of the defendant common carrier. Railroad Co. v. Young, 200 F. 359; Chesapeake, etc., Railroad Co. v. DeAtley, 241 U.S. 310. (4) The sill-step being a place where defendant's employees would necessarily have to go in performing their duties, and it being necessary to use these steps when the train was in motion — an act necessarily fraught with dangers under the best conditions — furnishing employee with a sill-step covered with oil or grease that he would have to step on while catching a car traveling six or eight miles per hour, certainly did not comply with defendant's legal duty to furnish plaintiff a reasonably safe place to work. Under the above section it is actionable negligence for the employer to fail to furnish the employee a reasonably safe place in which to work, if the employee receives an injury resulting in whole or in part from such negligence. Atlantic Coast Line v. Davis, 279 U.S. 210; Mo. Valley B. I. Co. v. Walquist, 243 F. 120. Employer's duty to furnish employee safe working place is continuing and nondelegable. Reynolds v. Amusement Co., 300 S.W. 1062. Cases illustrative of the above principle, and as nearly similar to the facts in the case at bar, are as follows: Hilderbrand v. Ry. Co., 298 S.W. 1070; York, Admrx. v. Ry. Co., 198 N.W. 377; Castle v. Ry. Co., 166 N.W. 767. (5) Plaintiff did not have to offer direct or positive proof that the grease covered sill-step, was the result of some antecedent fault of commission or omission on the part of defendant, and that such negligence caused his injury. Halt v. Ry. Co., 279 S.W. 148. (a) "The manner and circumstances of the occurrence and all the accompanying surroundings, as proven, may be examined in order to ascertain and determine whether or not an inference that a negligent defect caused the injury was a reasonable one." Railroad Co. v. Stroup, 239 F. 75; Strother v. Railroad Co., 188 S.W. 1102. (b) "If the plaintiff shows facts and circumstances from which negligence of the defendant and the causation of the accident by negligence may be reasonably and legitimately inferred, the case should be submitted to the jury." Patton v. Ry. Co., 179 U.S. 658. (c) "Where plaintiff shows circumstances under which accidental injury occurred, and information as to the cause thereof is wholly within defendant's knowledge, burden shifts to defendant to establish its freedom from negligence." Stephens v. Kitchen Lumber Co., 2 S.W.2d 375.

E.T. Miller and Mann, Mann Miller for respondent.

(1) None of the assignments of error raised by appellant, other than the correctness of the trial court's ruling in granting the new trial on the ground that the defendant's demurrer to the evidence should have been sustained, are now before the court or subject to review on this appeal. State ex rel. Caruthers v. Little River Drainage District, 271 Mo. 437, 196 S.W. 1115; Ross v. First Presbyterian Church, 272 Mo. 96, 197 S.W. 563; Dunn v. Oil Development Co., 318 Mo. 139, 1 S.W.2d 128; Turner v. Hine, 297 Mo. 160; Schee v. Schee, 319 Mo. 542, 4 S.W.2d 760; Story v. August, 10 S.W.2d 966; Panagos v. General Cigar Co., 268 S.W. 644. (2) No actionable negligence of defendant was proven; the demurrer to the evidence should have been sustained and the order of the trial court sustaining the motion for new trial on that ground must be affirmed. Appellant asserts a case was made for the jury on either of two theories; first, the presence of oil on an otherwise safe and mechanically perfect safety appliance constituted a violation of the Safety Appliance Act; and, second, common-law negligence arising from the alleged presence of oil on the rung of the ladder, from which plaintiff's foot slipped, when the car left Pensacola and for a length of time prior thereto sufficient for defendant, by the exercise of ordinary care, to have discovered and removed it. No case for the jury was made upon either of these theories. (a) The evidence shows without contradiction, and appellant in his brief concedes, that the ladder and all parts thereof were in perfect mechanical condition and constructed and maintained in strict compliance with the provisions of the Safety Appliance Act. The mere presence of oil upon a rung of the ladder, otherwise constructed and then maintained in strict compliance with the act, does not constitute a violation of the act, or render the ladder unsafe or insecure, within the meaning of the Safety Appliance Act. Riley v. Railroad Co., 44 S.W.2d 141; Ford v. Railroad Co., 54 F.2d 342 (certiorari denied by Supreme Court of United States, March 21, 1932, not yet officially published); Erie Railroad Co. v. Lindquist, 27 F.2d 99; Frederick v. Erie Railroad Co., 36 F.2d 718; Reeves v. Railroad Co., 147 Minn. 114, 179 N.W. 690; Slater v. Railroad Co., 146 Minn. 390, 178 N.W. 814. (b) There is no evidence, either direct or circumstantial, from which a legitimate inference may be drawn, as to any one of the following facts necessary and indispensible to plaintiff's right to recover under the charge of common-law negligence, namely: (1) That there was oil on the rung of the particular ladder from which plaintiff fell, at the time he fell. (2) That there was oil on this rung of this ladder at the time the inspection was or should have been made before the car left Pensacola, Florida. (3) That a reasonably careful inspection before the car left Pensacola would have disclosed the presence of the oil. (4) That from such a discovery, if made, it would have appeared to a man of ordinary prudence that such condition would naturally and probably result in injury to one using the ladder. (5) That no such inspection was made. While direct proof of negligence is not required and it may be established by proof of circumstances from which its existence may be inferred, such inference must be a legitimate one and not mere speculation or conjecture. Each inference must rest upon its own fact; no one can be based upon another or preceding inference. Negligence cannot be established by building inference upon inference and in no other manner were the facts necessary to plaintiff's right of recovery established. Sabol v. St. Louis Cooperage Co., 313 Mo. 527, 282 S.W. 428; State ex rel. City of Macon v. Trimble, 12 S.W.2d 734; State ex rel. Public Utilities Co. v. Cox, 298 Mo. 433, 250 S.W. 552; Hamilton v. Railroad, 250 Mo. 714; Thompson v. Railroad Co., 274 S.W. 531; Layton v. Chinberg, 282 S.W. 436; Strother v. Railroad Co., 188 S.W. 1102; Webber v. Milling Co., 242 S.W. 989. The Supreme Court of the United States has consistently held in cases arising under the Federal Employers' Liability Act that the scintilla of evidence rule does not obtain and negligence may not be established by building inference upon inference. Railroad Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1045; Railroad Co. v. Wells, 285 U.S. 455, 72 L.Ed. 372; Railroad Co. v. Hughes, 278 U.S. 496, 73 L.Ed. 473; Railroad Co. v. Toops, 281 U.S. 351, 74 L.Ed. 896. (c) Before defendant may be found guilty of negligence in failing to make inspection, the evidence must show, without resort to conjecture, that a reasonable inspection would have disclosed the presence of the oil, otherwise failure to inspect is not negligence. Wilson v. Railroad Co., 5 S.W.2d 19; Near v. Railroad Co., 261 Mo. 91; Schneider v. Pevely Dairy Co., 40 S.W.2d 651; Gruidstaff v. Goldberg, 40 S.W.2d 702; Rowden v. Daniels, 151 Mo. App. 26; Hoffman v. Peerless White Lime Co., 317 Mo. 86, 296 S.W. 770; Beebe v. St. Louis Transit Co., 206 Mo. 437; Howard v. Railroad Co., 173 Mo. 531; Stone v. Railroad Co., 293 S.W. 371; Trigg v. Land Lbr. Co., 187 Mo. 237. (d) Appellant contends that from the fact, as he says, that oil was found on the rung of the ladder following the injury, a retrospective presumption arises that the oil was there before the car left Pensacola. He cites no Missouri case or any in point on the facts. No such presumption may be indulged. Swartz v. Frank, 183 Mo. 447; Caldwell v. Payne, 246 S.W. 316 (certiorari denied, 262 U.S. 743, 67 L.Ed. 1210). On the contrary, in the absence of proof to the contrary, the court is bound by the presumption that defendant, in preparing its cars and train before leaving Pensacola, exercised ordinary care. Haggard v. McGrew Coal Co., 200 S.W. 1072, 1074. (e) Not having charged that defendant, or its servants, put the oil on the ladder the burden rests upon plaintiff to prove notice to defendant of that condition before the train left Pensacola. Proof of this fact cannot rest upon inference where that inference is builded upon the further inference that after the accident oil was discovered on the ladder from which plaintiff fell. Wilson v. Railroad Co., 5 S.W.2d 22; Haggard v. McGrew Coal Co., 200 S.W. 1075; Railroad Co. v. Burton, 50 F.2d 730; Railroad Co. v. Payne, 8 F.2d 332; Hatton v. Railroad Co., 261 F. 667. Under such circumstances the evidence must show with reasonable certainty that the oil got upon the ladder at a time and under circumstances which would render the defendant liable because thereof and that it did not occur under circumstances which would relieve the defendant of any negligence in failing to discover it. Trigg v. Ozark L. L. Co., 187 Mo. 227; Coin v. Lounge Co., 222 Mo. 508; Warner v. Railroad, 178 Mo. 134; Harper v. Railroad, 187 Mo. 586; Odell v. National Lead Co., 253 S.W. 399; Byerly v. Light Co., 130 Mo. App. 603; Strother v. Railroad, 188 S.W. 1105; Kramer v. Lumber Co., 24 F.2d 316; Patton v. Railroad, 179 U.S. 663, 45 L.Ed. 361. First, the opening statement is not a matter of exception, it is not properly incorporated in the bill of exceptions and before any statement therein may be considered as evidence or admission of a fact it must be offered in evidence and thereby incorporated in the bill of exceptions, as is required of any other form of evidence. In re Condemnation of Property for Park, etc., 263 S.W. 99; Mercier v. Railroad Co., 119 N.E. 767; Kolas v. Larochelle, 169 N.W. 663. Statements as to what counsel expects the evidence to show are not statements or admissions of fact and are not binding on the party. Russ v. Railroad Co., 112 Mo. 50; In re Condemnation of Property for Park, etc., 263 S.W. 99; Morrison v. Montgomery, 184 P. 986. No duty arises to use a friendly witness until the other party has introduced evidence, which unexplained, makes a case against him. Until a case is made, there is nothing to rebut and no unfavorable inference can be drawn from the failure of defendant to produce any witness. Frohman v. Lowenstein, 303 Mo. 362; Bahl v. Miles, 6 S.W.2d 664; Guthrie v. Gillespie, 319 Mo. 1137, 6 S.W.2d 889; Grinstaff v. Goldbert Sons S. Co., 40 S.W.2d 705. (3) If the trial court erred in granting the new trial on the ground assigned, yet, if other grounds of the motion for new trial, although not assigned by the trial court, justify the court's action in granting the new trial, such action must be sustained. Macklin v. Fogel Const. Co., 31 S.W.2d 19; Mooney v. Monark G. O. Co., 317 Mo. 1255, 298 S.W. 81; Dietrich v. Cape B. I. Co., 315 Mo. 507, 286 S.W. 39.

GANTT, C.J.

Action under the Federal Employers' Liability Act and Safety Appliance Act for damages for personal injuries. At the time plaintiff and defendant were engaged in interstate commerce. Defendant offered no evidence. Verdict for plaintiff for $30,000. The motion for a new trial was sustained. The court stated of record that it should have given the instruction, in the nature of a demurrer, and directed a verdict for defendant. Plaintiff appealed from the order granting a new trial.

Plaintiff was head brakeman on a freight train of defendant which left Pensacola, Florida, the southern terminus of the railroad, at five P.M. As such, he rode in the engine. The train moved northward and at one A.M. stopped at Kimbrough, Alabama.

On arrival plaintiff alighted from the engine, uncoupled the train at the south end of a tank car containing gasoline and signaled the engineer to move northward. The engineer did so. Plaintiff boarded the tank car, riding on the ladder at the southeast corner of the car. The engine and cars moved past a switch stand on the west side of the track. On signal from plaintiff the engine and cars were stopped. Plaintiff then alighted, crossed the track, threw the switch and gave the fireman a back-up signal. Thereupon the engine and cars were moved southward to switch the cars to a switch track. As the southwest corner of the tank car was moving by plaintiff, he attempted to climb the ladder at that corner. In doing so he took hold of the rungs of the ladder with his hands and placed his foot on the bottom rung or stirrup of the ladder. He testified that when he did so his foot slipped from the stirrup, which caused him to fall and his left foot and ankle to be crushed by a wheel of the car.

The court refused to submit the case to the jury on the theory of a violation of the Safety Appliance Act, but submitted it on the theory of defendant's negligence under the Federal Employers' Liability Act. Under the last named act it was charged that oil or grease was negligently on the rung of the ladder before the car left Pensacola and had been there for a sufficient length of time for defendant, by the exercise of ordinary care, to have discovered and removed it. The answer was a general denial.

I. Plaintiff contends that there was evidence tending to show that oil or grease was on the rung of the ladder from which he slipped. The evidence on the question follows:

"Stipulation.

"It is stipulated and agreed by and between the plaintiff and defendant in the above entitled cause:

"That J.C. Mynatt, if present, would testify as follows: My name is J.C. Mynatt. I am a car inspector for the Frisco Railroad (defendant) at Kimbrough, Alabama. On the early morning of June 2, 1929, I was standing on the station platform at Kimbrough, Alabama, and heard William G. Cole (plaintiff), brakeman on a train then at Kimbrough, calling for help and went to where he was lying on the ground near the Frisco tracks. I did not witness the accident. I went to the car which he pointed out as the one from which he fell and found it to be a tank car number POX 5187 and made a thorough examination and inspection of the car. I found the bottom rung of the ladder at the `A' end of the car, which ladder serves as a sill-step or stirrup, covered with oil or grease. Mr. Odom, the conductor of the train, and Mr. Arnould, the rear brakeman, also examined the bottom rung of the ladder to which I refer. There were no mechanical defects in the ladder or the bottom rung thereof. The only thing I found was the oil or grease on the bottom rung of this ladder, which also serves as a sill-step or stirrup. I found the car to be equipped with all safety appliances required by law and all of these safety appliances were found by me to be in perfect mechanical condition and so far as construction and mechanical condition is concerned, in compliance with the Safety Appliance Act and regulations of the Interstate Commerce Commission.

"That if M.M. Odom were present, he would testify: That he was conductor of the train in question and that in other respects, his testimony would be the same as that of J.C. Mynatt. That he would further testify that until he made an inspection of the ladder after Cole was injured, he had no knowledge of the presence of the oil on the rung of the ladder.

"That I.L. Arnould, if present, would testify: That he was rear brakeman on the train in question; that in other respects his testimony would be the same as that of J.C. Mynatt; that he would further testify that prior to his examination of the ladder, after Cole was injured, he had no knowledge of the presence of oil on the bottom rung of the ladder."

On the question, plaintiff testified that he did not know whether the ladder from which he slipped was at the "A" or "B" end of the car; that he made no inspection of the ladder and knew nothing about its condition as to oil or grease; that he only knew that his foot slipped from the rung; that he told car inspector Mynatt, conductor Odom and brakeman Arnould that he attempted to board the tank car at the south end of the string of cars, and that his foot slipped from the bottom rung of the ladder.

Defendant insists that this evidence did not tend to show that there was oil or grease on the ladder from which plaintiff slipped, for the reason there was a ladder at each corner of the "A" end of the car, and for the reason there was no evidence tending to show whether the "A" end was the south or north end of the car. In other words, it insists that the evidence did not identify the ladder from which plaintiff slipped as the ladder on which the oil or grease was found.

It is clear that at the trial the parties construed the testimony of these witnesses as locating the oil or grease on the rung of the ladder from which plaintiff slipped. In the opening statement to the jury defendant's attorney said: "He (plaintiff) doesn't claim that the car was in any way defective or that the defendant was negligent in any way in not furnishing a car with a good ladder. The only complaint that he does make here is that there was oil on the bottom rung of the ladder that he attempted to get onto. Now, there will be no evidence, so far as I know, as to when that oil got on there, whether it was carried on there by his own shoes as he got on there, or whether it had been on there before, nobody seems to know. All that the evidence in this case is going to be able to show is that there was oil on that iron, and some witness who will testify here, possibly by agreement as to what they would say if they were present, that after Mr. Cole was hurt they went over and looked at the ladder that he said he fell from, and he said he saw the rung of the bottom of the ladder. . . . There isn't going to be any dispute about there being oil on the bottom rung of that ladder. There isn't going to be any dispute about the ladder being in perfect mechanical condition. It was just a question of whether or not the mere presence of oil on the bottom rung of this ladder, without any further proof at all of the defendant's responsibility for its being there or accounting for it, would make the defendant liable in this case."

Thus it appears that at the beginning of the trial it was admitted that oil or grease was on the bottom rung of the ladder from which plaintiff slipped. It was so announced to the court and jury and the cause was tried on that theory. It is not a question of defendant's attorney incorrectly stating the facts in his opening statement. Indeed, it is not claimed that he did so. It is a question of the right of defendant to here raise the question in view of its admissions during the course of the trial. We hold that it should not be permitted to do so and that said admitted fact may be taken as a basis from which other facts may be inferred.

II. Plaintiff next contends that there was evidence tending to show that the oil or grease was on the ladder at or before the time the train left Pensacola. There was no direct evidence on the question, but such fact may be shown by circumstantial evidence. In determining the question, the jury may draw any reasonable inference justified by the facts, and it is not necessary that the circumstances exclude every other reasonable inference. It is sufficient if the inference is a reasonable and legitimate one. [Baker v. Railroad, 327 Mo. 986, 39 S.W.2d 535, 543; Farber v. Insurance Co., 215 Mo. App. 564, 571, 256 S.W. 1079.]

There was evidence tending to show the following. The roadbed between Pensacola and Kimbrough, a distance of 143 miles, was sand and gravel. There was no oil or grease on the floor of the engine cab, and the axle boxes were not oiled between those stations. The engine burned coal. The train stopped four times at water tanks between said stations, and at three of the stops plaintiff and the rear brakeman inspected the train for trespassers and inspected the brakes and running gear of the cars. In doing so plaintiff walked from the engine toward the caboose, and the rear brakeman from the caboose toward the engine along the east side of the train. On meeting they crossed to the west side and made said inspection from that point to the engine and the caboose, they found no trespassers on or about the train. The inspection could not be made at the other stop for the train was on a bridge. For three years plaintiff had been a brakeman on trains passing over said track both day and night and had never seen oil on or about the tracks. On the night in question there was no oil on his shoes before he slipped from the ladder.

We think this evidence excludes, as far as possible, every probability of oil or grease having been placed on the bottom rung of the ladder during the movement of the train from Pensacola to Kimbrough.

III. Plaintiff next contends that there was evidence tending to show that the west side of the train was not inspected before it left Pensacola. There was evidence tending to show the following: On reporting for duty at Pensacola plaintiff walked along the west side of the train from the caboose to the north end of the train. He saw no one inspecting the train. He then went to the roundhouse for the engine, piloted it to the train, coupled it thereto and connected the air hose. He then noticed the regular inspector approaching the engine from the east side of the yards. On arrival the inspector, whose duty it was to inspect the air brakes and oil the axle boxes, placed a blue flag on the front of the engine. It was his duty to do so before making an inspection. The flag was a warning that the engine must not be moved during the inspection of the train. The inspector then inspected the east side of the train from the engine to the caboose. After doing so he did not inspect the west side of the train but returned to the engine on the east side of the train.

Defendant argues that the regular inspector might have inspected the west side of the train before plaintiff came to the yards. It is not suggested why he would do so. Furthermore, it is not reasonable that he would inspect the west side and later inspect the east side of the train. Defendant further argues that another inspector might have inspected the west side of the train. It could have been possible, but plaintiff saw no inspector on that side of the train and there was no blue flag to prevent the coupling of the engine to the train. The jury could well find that the west side of the train was not inspected at Pensacola. In this connection defendant contends that there was no evidence tending to show that a reasonable inspection would have disclosed the oil or grease on the ladder. The other members of the train crew and the inspector who examined the ladder immediately after the injury had no difficulty in discovering the oil or grease on the ladder. It follows that the jury could find that on a reasonable inspection the oil or grease on the ladder could have been discovered at Pensacola. We think the evidence was sufficient to authorize a submission of the case to the jury.

IV. Even so, defendant contends that other assignments of error in the motion justified the granting of a new trial.

It is suggested that the trial court in ruling that a verdict should have been directed for defendant, disposed of the case and thereby prevented a ruling on the other assignments. In other words, that it was not necessary to, and the court did not rule said assignments. If so, said assignments are not here for review and the cause should be remanded with directions to set aside the order granting a new trial, reinstate the verdict and rule the other assignments. We do not agree to the suggestion. The motion for a new trial was submitted as a whole to the court. Its ruling did not finally determine the question or questions presented by the motion, for said ruling was subject to review. It might rule correctly but assign a wrong reason for doing so. The appellate court might, as in the instant case, hold that a new trial should not have been granted for the reason stated. In this situation defendant is entitled to have the other assignments considered and ruled by the appellate court. [5] If so, it was the duty of the trial court to rule all the assignments so that its ruling on the motion might be reviewed. It must be presumed that the trial court performed its duty. [6] Indeed, the court having stated of record that a new trial was granted on a certain ground assigned in the motion thereby overruled the motion as to the other grounds assigned therein. The appeal was not from the ruling on an assignment of error in the motion but from the ruling of the court on the motion for a new trial. "It is the correctness of that ruling, and not the reason for it, that the appellate court is called upon to review." [State ex rel. v. Thomas, 245 Mo. 65, l.c. 75, 149 S.W. 318.] It follows that we should review the ruling of the trial court on the other assignments of error.

V. Defendant challenges an instruction as submitting the question of whether plaintiff fell from the ladder at the "A" end of the car, whereas, there was no evidence tending to show that the ladder from which plaintiff fell was at said end of the car. As stated, this question was eliminated by defendant's opening statement in which it admitted that oil or grease was on the ladder from which plaintiff slipped.

It also challenges the instruction for the reason it authorized a verdict if oil was on the ladder "before the train left Pensacola." It argues that the oil may have been placed on the ladder after it was inspected but before the car left said station. If it was error to so instruct the jury, defendant is in no position to complain. Instructions given at its request also required a finding that oil was on the ladder "before the train left Pensacola."

VI. Defendant next challenges an instruction on circumstantial evidence. It argues that the instruction gave the jury a roving commission to find for plaintiff upon proof of facts in general. We do not so find. The instruction required the jury to find the facts as hypothesized in the principal instruction given at the request of plaintiff. Furthermore, we do not find that the instruction assumed any controverted fact.

VII. There is nothing in the record tending to show passion and prejudice on the part of the jury. Even so, defendant contends that the verdict is excessive. We so find and for that reason affirm the order granting a new trial.

Plaintiff alleged an injury to his kidneys and the loss of the lower part of his left limb from a point seven inches below the knee. He was injured on June 2, 1929, confined in the hospital for eighteen days and remained in Pensacola until about the first of August, 1929. He then went to Winslow, Arkansas, where he remained until the trial, seven months after the injury. Up to the time of the trial he was under the care of several physicians of defendant. He testified that on slipping from the ladder he fell on his hips and back and at times thereafter experienced severe pain on his left side, hip and back. He further testified that he experienced no such pain prior to the injury. He admitted that he did not tell the physicians "about his other trouble" (kidneys) and admitted that he had never been treated by a doctor for said trouble. The only medical evidence in the case was as to the condition of his kidneys. A physician examined him on the eve of the trial for the purpose of testifying as a witness. He testified that plaintiff was suffering from a displaced kidney but he did not testify that it was or could have been caused by the injury. The evidence as to the cause or extent of this alleged injury is not satisfactory. At the time plaintiff was twenty-seven years of age and earning $200 per month. Of course, he cannot follow the vocation of brakeman and is entitled to pecuniary damages. He was at no expense for hospital services and physicians. On the record we think his recovery should not exceed $10,000.

VIII. It is suggested that the order granting a new trial should be affirmed and the cause remanded for retrial. It is argued that this court is without authority to order a remittitur for the reason there is no final judgment. It was so held in Gaty v. United Rys. Co., 286 Mo. 503, l.c. 522, 227 S.W. 1041.

In Haven v. Missouri Ry. Co., 155 Mo. 216, l.c. 228, 55 S.W. 1035, and Scott v. Cowen, 274 Mo. 398, l.c. 412, 195 S.W. 732, we said: "The only difference in an appeal from an order granting a motion for a new trial, and one from a final judgment, is that the errors charged in the motion for a new trial are to be heard here before final judgment rather than afterward. . . . No other change in procedure is expressed or contemplated by those acts (Sec. 1018, R.S. 1929, authorizing an appeal from an order granting a new trial). The case is here on appeal, and the usual and immemorial appellate practice must obtain." Furthermore, we are directed by statute to "give such judgment as such court (trial court) ought to have given." [Sec. 1063, R.S. 1929.]

On appeal from a final judgment we may, under the usual appellate procedure, determine that a verdict is excessive. If we so find we may authorize a plaintiff to enter a remittitur. We do so to lessen expense and end litigation. If the instant case is for review the same as if here after final judgment, and we so hold, clearly under the statute and the usual appellate procedure, we should, to lessen expense and end litigation, remand the cause and direct the trial court as to a disposition of the case. We so hold because the record discloses no prejudicial error against defendant committed in the course of the trial. On the record it is only a question of the amount that plaintiff is entitled to recover. On review we have determined that amount. The rulings in the Gaty case contrary to the views herein expressed are overruled.

It follows that the order of the trial court sustaining the motion for a new trial is affirmed and the cause remanded with directions to set aside the order granting a new trial, reinstate the verdict, and unless plaintiff within a time fixed by the trial court enters a remittitur in the sum of $20,000 as of the date of the original judgment, the trial court will grant a new trial on the ground that the verdict is excessive. All concur.