Opinion
No. 39357.
July 2, 1945. Rehearing Denied, September 4, 1945.
1. NEGLIGENCE: Trial: Repetitious and Argumentative Instruction Not Reversible Error. Defendant's instruction is not fatally bad because it is somewhat repetitious and argumentative.
2. NEGLIGENCE: Railroads: Pedestrian Struck by Train: Antecedent Negligence Not Injected Into Humanitarian Instruction: Imminent Peril: Obliviousness of Plaintiff. Antecedent negligence in failing to keep a lookout is not injected into defendant's humanitarian instruction. And the term "imminent peril" does not require definition. And the obliviousness of plaintiff was submitted.
3. NEGLIGENCE: Words and Phrases: Humanitarian Instruction: "Could" Instead of "Would". The use of the word "could" instead of "would" in defendant's humanitarian instruction was not harmful.
4. NEGLIGENCE: Humanitarian Instruction: No Conflict With Sole Cause Instruction. Plaintiff's humanitarian instruction was not in conflict with defendant's sole cause instruction, but contained the converse of the latter instruction.
5. NEGLIGENCE: Plaintiff's Instruction on Sole Cause Negligence Not Erroneous. Plaintiff's instruction on the defense of sole cause negligence did not tell the jury that a sole cause defense is an affirmative defense. Nor did the instruction require more than ordinary care on the part of defendant's enginemen, or direct a verdict for plaintiff on the single finding that plaintiff's negligence was not the sole cause of his injury. Nor is it fatally repetitious or argumentative.
6. TRIAL: Voir Dire Examination: Failure of Juror to Answer Questions: Examination Too Limited. Where defendant limited his voir dire examination to questions as to personal injury suits he cannot complain because a juror failed to state that he had filed a damage suit based on malicious prosecution.
7. TRIAL: Improper Jury Argument Withdrawn: Error Cured. Where plaintiff's counsel withdrew an improper remark to the jury and apologized, and the court ordered the jury to disregard the remark, the error was cured.
8. DAMAGES: Verdict Not Excessive. A verdict of $25,000 for an amputated arm, impaired eyes, and other serious injuries was not excessive.
Appeal from Jackson Circuit Court. — Hon. Albert A. Ridge, Judge.
AFFIRMED.
Leslie A. Welsh, Richard H. Beeson and David P. Dabbs for appellant.
(1) Instruction 2 is erroneous because it is argumentative and repetitious. The meager facts referred to are smothered by repeating the terms "imminent peril" and "aforesubmitted peril" five times, repeating the word "timely," in connection with warning and failure to keep a lookout, six times, repeating the phrase "reasonably efficient warning" five times, and its equivalent "caused whistle to be timely sounded" and "no timely and reasonably sufficient blasts of said whistle" twice. Trower v. M.-K.-T. Railroad Co., 184 S.W.2d 428; 1 Raymond on Instructions, sec. 102; Roberts v. N.Y. Central Railroad Co., 122 S.W. 1. (2) Instruction 2 is erroneous because it injects antecedent negligence in failing to keep a lookout into the case which was submitted under the humanitarian doctrine. Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Trower v. M.-K.-T. Railroad Co., 184 S.W.2d 428; Wholf v. Kansas City, C.C. St. J. Ry. Co., 335 Mo. 520, 73 S.W.2d 195. (3) Instruction 2 erroneously fails to submit facts constituting a humanitarian case in that it erroneously submits the abstract phrase "imminent peril" leaving the jury to form its own legal conception of what facts it would have to find to constitute "imminent peril," and does not require the jury to find plaintiff was oblivious of the approach of the train, but submits the abstract legal conclusion "oblivious of danger," which, under the facts is not synonymous with oblivious of approach of the train. Gillioz v. State Highway Comm., 348 Mo. 211, 153 S.W.2d 18; Stanich v. Western Union Tel. Co., 348 Mo. 188, 153 S.W.2d 54; Winslow v. M., K. T. Ry. Co., 192 S.W. l.c. 125; Lewis v. Ill. Cent. R. Co., 50 S.W.2d 122; State ex rel. Grisham v. Allen, 344 Mo. 66, 124 S.W.2d 1080. (4) Instruction 2 erroneously authorizes a verdict for plaintiff on the mere finding that a warning could have (meaning "might have" or "possibility of") prevented plaintiff being injured. The instruction does not require the jury to find the indispensable fact that plaintiff would have heard and heeded the warning, but directs a verdict on the mere finding of the possibility that plaintiff would have heard and heeded the warning. "Could" merely denotes possibility while the proper word "would" denotes a fact. Trower v. M.-K.-T. Railroad Co., 184 S.W.2d 428; Gehrig v. Chicago Alton Railroad Co., 201 Ill. App. 287. (5) Instruction 2 erroneously conflicts with defendant's correct Instruction D. Defendant's Instruction D correctly directs a verdict for defendant if plaintiff was not standing between the rails of the southbound track, but plaintiff's Instruction 2 permits a verdict for plaintiff without a finding on that decisive fact. State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; State ex rel. Central Coal Coke Co. v. Ellison, 270 Mo. 645, 195 S.W. 722. (6) The concluding portion (tail) of plaintiff's Instruction 2 erroneously excludes the defense of sole negligence of plaintiff and it thereby erroneously conflicts with defendant's sole cause Instruction E. It excludes all acts and omissions of plaintiff both solely causing as well as contributing to cause his injury. Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47. (7) The court erred in giving plaintiff's reply Instruction 4 because the issue of sole negligence of plaintiff is not an affirmative defense and that issue was closed with defendant's sole cause instruction. It was error to give a reply instruction for plaintiff, because he was required to put all facts necessary for recovery in his main instruction. This additional instruction was necessarily repetitious and argumentative and placed undue emphasis on the tail of plaintiff's main instruction excluding plaintiff's negligence. Smith v. Kansas City Pub. Serv. Co., 328 Mo. 979, 43 S.W.2d 548; Long v. Mild, 149 S.W.2d 853; Daniel v. Pryor, 227 S.W. 102; Talbert v. Chicago, R.I. P. Ry. Co., 314 Mo. 352, 284 S.W. 499; Degonia v. St. Louis, I.M. S. Ry. Co., 224 Mo. 564, 123 S.W. 807. (8) Plaintiff's reply Instruction 4 erroneously exacts more than ordinary care of defendant's enginemen. The absence of "any negligence whatever" would require the highest possible degree of care, that is, perfection. Webster's New International Dictionary (Second Edition), for definitions of words, "without," "any," "whatever." Carpenter v. State, 39 Wis. 271; Borgstede v. Waldbauer, 337 Mo. 1205, 88 S.W.2d 373. (9) Plaintiff's reply Instruction 4 erroneously requires the jury to find defendant was "without any negligence whatever," "contributing in any degree" to plaintiff's injury. This abstract, argumentative phraseology authorizes a verdict on less than negligence proximately causing plaintiff's injury. Kane v. Mo. Pac. Ry. Co., 251 Mo. 13, 157 S.W. 644. (10) Instruction 4 erroneously directs a verdict on the single finding that plaintiff's negligence was not the sole cause of his injury. A jury of laymen would not understand that they were directed to make a mere abstract mental reservation in favor of plaintiff and against defendant on the issue of sole cause, but since defendant's sole cause instruction directs a verdict for defendant they would construe the direction here to be the converse, that is, to return a verdict for plaintiff. Harrington v. Dunham, 273 Mo. 414, 202 S.W. 1066. (11) Plaintiff's main Instruction 2 and reply Instruction 4, as a single charge, are erroneous because they abound in argumentative, persuasive and superlative phrases favorable to plaintiff and derogatory of defendant and its employees. Rice v. Jefferson City Bridge Transit Co., 216 S.W. 746; Trower v. M.-K.-T. Railroad Co., 184 S.W.2d 428; 1 Raymond on Instructions, sec. 102. (12) The court erred in denying defendant's motion to discharge the jury because of misconduct of plaintiff's counsel in requesting the jury to make the verdict large enough to allow him to compromise and still get adequate compensation for plaintiff, and requesting the jurors to shirk their obligation as jurors by leaving the amount of compensation plaintiff would ultimately receive, to plaintiff's counsel. Buehler v. Festus Merc. Co., 343 Mo. 139, 119 S.W.2d 961; White v. Chicago N.W.R. Co., 145 Iowa 408, 124 N.W. 309; Cleveland, C., C. St. L. Ry. Co. v. Locke, 123 N.E. 814. (13) The court erred in denying defendant's motion for new trial, because of the prejudice and concealment of the foreman of the jury, Mr. A.F. Morlan, in not disclosing to defendant's counsel, on voir dire examination, that he had recently, before the trial, filed a damage suit for mental worry and suffering and other damages from being arrested and incarcerated in jail on a charge of embezzlement. Webb v. M.-K.-T. Railroad Co., 314 Mo. 394, 116 S.W.2d 27; Gibuey v. Transfer Co., 103 S.W. 43, 204 Mo. 704; Theobold v. Railroad, 90 S.W. 354, 191 Mo. 395; Shields v. Kansas City Pub. Serv. Co., 264 S.W. 890; State v. White, 34 S.W.2d 79. (14) The amount of the verdict ($25,000) is excessive. Vaughan v. St. Louis Merchants Bridge Term. Ry. Co., 322 Mo. 980, 18 S.W.2d 62; Wolfe v. Payne, 241 S.W. 915; Leighton v. Davis, 260 S.W. 986; Grange v. C. E.I.R. Co., 69 S.W.2d 955; Johnson v. C. E.I.R. Co., 64 S.W.2d 674; Mitchell v. Wabash R. Co., 69 S.W.2d 286; Evans v. Terminal R. Assn., 69 S.W.2d 929.
Frank C. Kenyon, Jr., Cowgill Popham, Sam Mandell, Harold W. Fehrenkamp and John J. Board for respondent.
(1) Instruction 2 was neither argumentative nor repetitious. It properly hypothesized facts necessary to a humanitarian submission. Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120; Banks v. Morris Co., 302 Mo. 254, 257 S.W. 482. (2) Instruction 2 does not inject any antecedent negligence. Hoelzel v. Chicago, R.I. P. Ry. Co., 337 Mo. 61, 85 S.W.2d 126. (3) The words "imminent peril" are ordinary English words which require no definition. Perkins v. Terminal Assn. of St. Louis, 340 Mo. 868, 102 S.W.2d 915; Bryant v. Kansas City Rys. Co., 286 Mo. 342, 228 S.W. 472. (4) The use of the word "could" (that by timely warning the casualty could have been averted) in Instruction 2 is proper. Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512; Eppstein v. Missouri Pac. R. Co., 197 Mo. 720, 94 S.W. 967. (5) There was no conflict between our Instruction 2 and appellant's Instruction D. (6) The "tail end" of Instruction 2 correctly declares the law. Kick v. Franklin, supra. (7) Plaintiff's reply Instruction 4 was properly given. Baker v. Kansas City Pub. Serv. Co., 183 S.W.2d 873; Hollister v. A.S. Aloe Co., 348 Mo. 1055, 156 S.W.2d 606. (8) Plaintiff's main Instruction 2 and reply Instruction 4, considered together, are not argumentative and were properly given. (9) The argument complained of was proper since it merely urged the jury to follow the instructions of the court with respect to the damages to be allowed. Whalen v. United Zinc and Chemical Co., 188 Mo. 592, 176 S.W. 704. (10) If the argument was improper, the action to be taken thereon was for the discretion of the trial court, and unless the trial court clearly abused that discretion, its ruling is not to be disturbed. Brunk v. Hamilton-Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903; Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115; Kamer v. M.-K.-T. Railroad Co., 326 Mo. 792, 32 S.W.2d 1075; Gann v. Chicago, R.I. P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39. (11) The court promptly withdrew our argument from the jury and twice told them not to consider it, and counsel apologized, and any error was thereby cured. Jones v. Kansas City, 76 S.W.2d 340; Donk v. Francis, 351 Mo. 1053, 174 S.W.2d 840; Warren v. Giudici, 330 Mo. 483, 50 S.W.2d 634; State ex rel. Donelson v. Deuser, 345 Mo. 628, 134 S.W. 132. (12) There was no unequivocal motion to discharge the jury, defendant's counsel asking that ". . . I ask that counsel be reprimanded for it, at least, telling the jury you would compromise," and the court exercised proper discretion in the action taken. Cases under (9), (10) and (11), supra. (13) The court properly refused defendant a new trial on the 13th ground of its motion for new trial wherein it complained of the prejudice and concealment of the foreman of the jury, Mr. A.F. Morlan, in not disclosing to defendant's counsel, on voir dire examination, that he had recently, before the trial, filed a damage suit for mental worry and suffering and other damages from being arrested and incarcerated in jail on a charge of embezzlement; such matters were not actually gone into on the voir dire. Lee v. Baltimore Hotel Co., 345 Mo. 458, 136 S.W.2d 695; Zimmerman v. Kansas City Pub. Serv. Co., 226 Mo. App. 369, 41 S.W.2d 579; Blair v. Paterson, 131 Mo. App. 122, 110 S.W. 615. (14) The verdict of $25,000 was not excessive, but was moderate when the many severe, permanent and disabling injuries sustained by Mr. Lankford are considered. Cases considering eye injuries: Cunningham v. Doe Run Lead Co., 26 S.W.2d 957; Howard v. Mobile O.R. Co., 336 Mo. 295, 73 S.W.2d 272; Harms v. Emerson Elec. Mfg. Co., 41 S.W.2d 375. Cases considering the loss of an arm: Gordon v. Muehling Packing Co., 328 Mo. 123 40 S.W.2d 693; Vaughan v. St. Louis Merchants Bridge Term. Ry. Co., 322 Mo. 980, 18 S.W. 62; Martin v. St. L.-S.F. Ry. Co., 329 Mo. 729, 46 S.W.2d 149. Generally: Cole v. Uhlmann Grain Co., 340 Mo. 277, 100 S.W.2d 311; Kelly v. Ill. Central R. Co., 177 S.W.2d 435.
Action for damages for personal injuries received at a crossing. Verdict and judgment went for plaintiff for $25,000 and defendant appealed.
Error is assigned (1) on plaintiff's instruction No. 2; (2) on alleged conflict between plaintiff's instruction No. 2 and defendant's instruction E; (3) on plaintiff's instruction No. 4; (4) on alleged misconduct of juror Morlan on voir dire examination; (5) on the court's refusal to discharge the jury for alleged improper argument; and (6) on an alleged excessive verdict.
Plaintiff, a pedestrian, was struck, and received the injuries complained of, by defendant's southbound freight train on June 10, 1943, at about 4:30 P.M., Defendant's northbound and southbound tracks crossed at about right angles, 15th street, an east and west street, in Kansas City. There was a Frisco track immediately west of defendant's west or southbound track. Plaintiff was walking east on the south side of 15th street. Defendant's northbound freight train, at the time, was passing over the crossing. Plaintiff stopped, he says, between the rails of defendant's southbound track to wait for the northbound freight train to clear the south pedestrian way over the crossing, and while so standing between the rails was struck by defendant's southbound freight train.
The cause was submitted, under the humanitarian doctrine, upon the alleged failure to warn plaintiff of the approach of the southbound train. There was the usual conflict in the evidence as to ringing the bell and sounding the whistle, but defendant does not claim that a submissible case was not made, hence it is not necessary to say more about the evidence as to negligence.
Defendant says that plaintiff's instruction No. 2 is bad in that it is argumentative, repetitious, injects antecedent negligence in failing to keep a lookout, fails to make plain the meaning of imminent peril, does not require a finding that plaintiff was oblivious of the approach of the southbound train, does not require a finding that plaintiff would have heard and heeded a warning of the approach of the southbound train.
In view of the rather numerous complaints on plaintiff's instruction No. 2, we set it out in full.
"The court instructs the jury if you believe from the evidence that plaintiff was in a position of imminent peril of being struck and injured by said southbound train and was oblivious thereof, and if you find that it would have been timely apparent to said southbound enginemen by the use of ordinary care that plaintiff would be struck and injured by said southbound train unless reasonably efficient [219] and timely warning was given him of his aforesubmitted peril from said southbound locomotive and if you find that said southbound enginemen by the use of ordinary care could have known of the above submitted peril and of the above facts, if you find them to be the facts, in time thereafter by using ordinary care and the means at hand to have caused the whistle of said locomotive to be timely sounded and thereby have given plaintiff reasonably efficient and timely warning, and if you find they could thereby have prevented him being injured, and if you find that after said enginemen, by the use of ordinary care could have known, if so, of his above submitted peril, they gave no timely and reasonably sufficient blasts of said whistle and no reasonably sufficient warning and thereby failed to use ordinary care by the means at hand to cause reasonably efficient and timely warning to be given plaintiff of his aforesubmitted peril, and if you find they were thereby negligent and if you find that as a direct result thereof he was struck and injured by said southbound train, then your verdict must be for plaintiff, Mr. Lankford, even though you may believe there were acts and omissions and contributory negligence on his part which did not solely cause his injuries, if you so find, but which may have directly contributed thereto."
The instruction uses the phrase timely warning three times, and also uses the phrases, timely apparent, timely sounded, and timely and reasonably sufficient blasts. It would seem that the instruction reflects overcaution and is somewhat repetitious, but it is unlikely, we think, that defendant was harmed by such. Defendant cites Trower v. Missouri-Kansas-Texas R. Co., 353 Mo. 757, 184 S.W.2d 428, l.c. 432; Robert v. New York Central R. Co. (Mo. App.), 122 S.W.2d 1, l.c. 5; and 1 Raymond on Instructions, Sec. 102. We do not think that the cases or the text cited support the contention that instruction No. 2 is fatally bad because argumentative and repetitious.
To support the contention that instruction No. 2 is bad because it injects antecedent negligence in failing to keep a lookout, defendant relies on the Trower case, supra; Mayfield v. Kansas City Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116, l.c. 123; and Wholf v. Kansas City, Clay County St. Joseph Ry. Co., 335 Mo. 520, 73 S.W.2d 195, l.c. 198. We do not deal in detail with the instructions held bad in these cases. It is sufficient, we think, to say that the present instruction is not subject to the charge that it injects primary negligence in failing to keep a lookout. See Hoelzel v. Chicago, R.I. P. Ry. Co. et al., 337 Mo. 61, 85 S.W.2d 126, l.c. 130. And instruction No. 2 is not bad for failure to make plain the meaning of imminent peril. Such term or expression does not require definition. Perkins v. Terminal R. Assn. of St. Louis, 340 Mo. 868, 102 S.W.2d 915, l.c. 921; Bryant v. Kansas City Rys. Co., 286 Mo. 342, 228 S.W. 472, l.c. 474. And as we read instruction No. 2, it submits that plaintiff was oblivious of the approach of the southbound train.
It will be noted that the instruction submits "and if you find they (enginemen) could (italics ours) thereby have prevented him (plaintiff) being injured", etc. The point made is that would should have been used instead of could. In Eppstein v. Mo. Pac. R. Co., 197 Mo. 720, l.c. 737, 94 S.W. 967, and Smithers v. Barker, 341 Mo. 1017, 111 S.W.2d 47, the word could was used, and no complaint made on its use. In Kick v. Franklin et al., 345 Mo. 752, 137 S.W.2d 512, l.c. 515, could and would were used, and no complaint was made on such use. In Taylor v. Metropolitan St. Ry. Co., 256 Mo. 191, l.c. 209, 165 S.W. 327, it is held that there was no material distinction between the words would and could as used in a question there under consideration. It would, in our opinion, be supertechnical and unreasonable to say that defendant was prejudiced by the use of the word could in the instruction.
Is there conflict between plaintiff's instruction No. 2 and defendant's instruction E? It will be noted from plaintiff's instruction No. 2, set out, supra, the instruction, after submitting the facts under the humanitarian rule, told the jury, if these facts were found, to find for plaintiff "even though you may believe there were acts and omissions and contributory negligence on his (plaintiff's) part which did not solely cause his injuries, if you so find, but which may have directly contributed thereto." In the brief, defendant says: "The concluding part of plaintiff's instruction No. 2 (the part just quoted), erroneously excludes the defense that plaintiff's negligence was the sole cause of his injuries and in that respect conflicts with defendant's instruction E. . . . A jury, not possessed of technical knowledge of the fine distinctions between sole negligence and contributory negligence, would construe the above language (concluding part of No. 2) to exclude all negligence of plaintiff, both sole and contributory. A jury would construe the phrase `which was not the sole cause of his injuries' as being a definition of contributory [220] negligence." Defendant's instruction E, a sole cause instruction, is based on defendant's evidence and is as follows:
"The court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence plaintiff stopped and stood at a point west of the west rail of the southbound track mentioned in evidence and remained at said place until the locomotive of the southbound train was on or entering said 15th street, if you so find, and that plaintiff then walked upon said track, if so, and if you find that after plaintiff walked upon the track, said locomotive was in such close proximity to plaintiff that defendant's enginemen, from the position that they were then in on said locomotive, and by the exercise of ordinary care, and with the means at hand, could not prevent plaintiff's injuries, and that said negligence of plaintiff, if you so find, was the sole cause of plaintiff's injuries, and that said injuries were not due to any negligence of the defendant in any particulars set out in other instructions herein, then plaintiff is not entitled to recover, and your verdict shall be in favor of the defendant."
To support the claim of conflict defendant cites Smithers v. Barker, supra. The concluding part of the instruction in the Smithers case was [ 341 Mo. 1017, 111 S.W.2d l.c. 53]: "And, you are further instructed, this (hypotheses submitted) is so, even though you should find and believe from the evidence, that plaintiff did not exercise due care for his own safety, and was, or was not, then and there drunk and negligent, in getting himself into the aforesaid position of imminent peril, if any, at said time and place."
In disapproving the concluding part of the instruction in the Smithers case, the court said:
"We consider it to be proper in a humanitarian negligence case to inform the jury that contributory negligence of plaintiff is not a defense or that negligence of plaintiff which only contributed to or concurred in his injury does not defeat his recovery. Dilallo v. Lynch (Mo. Sup.), 101 S.W.2d 7. However, we cannot approve the language of this instruction in this case because, under defendant's evidence, the jury would have been warranted in finding that plaintiff's negligence was the sole cause of his injury. Accepting the facts that defendant's evidence would show, it would be difficult to conceive of a clearer sole cause case. The broad language above set out would be in conflict with a proper sole cause instruction."
It will be noted that the concluding part of instruction No. 2 in the present case, in effect, told the jury that plaintiff's negligence would not defeat recovery unless it were found that his negligence was the sole cause of his injury. In other words, instruction 2, on the point in hand, was no more than the converse of defendant's sole cause instruction, and was proper. Baker v. Kansas City Public Service Co., 353 Mo. 625, 183 S.W.2d 873, l.c. 875; Farmer v. Kansas City Public Service Co. (Mo. App.), 186 S.W.2d 766.
Defendant complains of plaintiff's instruction No. 4. The instruction is as follows:
"The court further instructs the jury with regard to (defendant's) instruction E that said instruction is known as a sole cause instruction, and by the term sole cause is meant acts or omissions of plaintiff which solely caused his injuries without any negligence whatever on the part of defendant as submitted in (plaintiff's) instruction 2 directly contributing to his injuries. Therefore, if you find there was any negligence on the part of defendant as submitted in instruction 2 which directly contributed in any degree to plaintiff's injuries, then you cannot find there were acts or omissions of plaintiff which solely caused his injuries, and your finding on the issues submitted in said instruction E, that is, the aforesaid issue of sole cause, should be in favor of plaintiff. Mr. Lankford, and against defendant."
Defendant says that plaintiff's instruction No. 4 is erroneous in that it, in effect, makes defendant's defense of plaintiff's sole negligence an affirmative defense, requires more than ordinary care of defendant's enginemen, directs a verdict for plaintiff "on the single finding that plaintiff's negligence was not the sole cause of his injury", is repetitious and with instruction No. 2, is argumentative. It is true that a sole cause defense is not an affirmative defense, Smith v. Kansas City Public Service Co., 328 Mo. 979, 43 S.W.2d 548, l.c. 555; Long v. Mild et al., 347 Mo. 1002, 149 S.W.2d 853, l.c. 858, but there is nothing in the instruction that can be fairly construed to mean that it tells the jury that the sole cause defense is an affirmative defense. And neither can the instruction be fairly construed to require [221] more than ordinary care on the part of defendant's enginemen, Baker v. Kansas City Public Service Co., supra [ 353 Mo. 625, 183 S.W.2d l.c. 875] or that the instruction directs a verdict for plaintiff on the single finding that plaintiff's negligence was not the sole cause of his injury. Instruction No. 4 is repetitious in that it, in effect, repeats the concluding direction in instruction No. 2. Repetition in instructions is subject to criticism for emphasizing a given issue, but such is not ordinarily a ground for reversal. Mendenhall v. Neyer et al., 347 Mo. 881, 149 S.W.2d 366, l.c. 371, and cases there cited. We do not think the repetition here is such as to justify reversal. Also, we rule that there is no substantial merit in the point that instruction No. 4 considered with instruction No. 2 is so argumentative as to justify reversal. See Woods v. Southern Ry. Co. (Mo. Sup.), 73 S.W.2d 374, l.c. 377.
On voir dire defendant's counsel asked: "Gentlemen, are there any of you who have ever had a claim for damages for personal injury where you were hurt, where you either filed a law suit or made a claim without filing a law suit for personal injuries, where you were hurt and you made a claim against someone because of your injuries? Any of you ever had a claim for personal injuries, either where there was a suit filed or no suit filed?" There was no response by any member of the panel. After the trial defendant ascertained and alleged in verified ground 13 of the motion for a new trial that juror Morlan (foreman of the jury), in 1942, filed a suit in Jackson County, Missouri, to recover $15,000 damages for malicious prosecution for embezzlement. Plaintiff filed, as for a counter affidavit, the affidavit of juror Morlan, but it will not be necessary to set it out. Juror Morland, in his affidavit, denied any prejudice. Clearly, defendant's inquiry on voir dire was limited to damage suits for personal injury, physical hurt. Such was the case on trial. In view of the limited scope of inquiry made by defendant on the voir dire examination there is no room to complain. Zimmerman v. Kansas City Public Service Co., 226 Mo. App. 369, 41 S.W.2d 579, l.c. 582.
On argument. Argument both for plaintiff and defendant appears in full in the record. In the closing argument for plaintiff, counsel told the jury that 9, 10, or 11 could return a verdict as effective as 12, and then said, "If one, two, or three want to cut him down (on amount), or one, two, or three men should say. `Let's make it smaller so there won't be any hereafter', do not listen to that kind of argument . . . because you weren't brought in here to compromise this case. You were brought in here to fix the damages as the court has outlined them in these instructions, and if you try to compromise the case now, then maybe I have got to compromise your compromise hereafter, and that isn't fair. You fix the damages and if there is any compromising to do hereafter, gentlemen, I will do it in my humble way as best I can for this man whose fate I now place upon your shoulders and upon your consciences."
Objection was made to the argument "about him (counsel) compromising in the hereafter", and then the following occurred: "The Court: Yes, the jury will disregard that statement." Then counsel moved to discharge the jury, and reprimand plaintiff's counsel. Thereupon plaintiff's counsel withdrew the statement and apologized "for saying it." The court then said: "Gentlemen, there is nothing with reference to a compromise in this case. It was improper argument to make, so disregard that statement. The motion to discharge the jury is overruled." Exception was taken to the failure to discharge the jury.
The statement complained of was improper, but we think that the withdrawal, the apology, the trial court's ruling that the statement was improper, and for the jury to disregard it, cured the error. See Jones v. Kansas City (Mo. Sup.), 76 S.W.2d 340; Donk v. Frances et al., 351 Mo. 1053, 174 S.W.2d 840; Warren v. Giudici, 330 Mo. 483, 50 S.W.2d 634.
Is the verdict excessive? At the time plaintiff was struck (4:30 P.M.) he was rendered unconscious and so remained until the next day. Part of his right arm was cut off by the train and two other amputations on this arm were performed at the hospital which left the stub of the arm about 5 or 6 inches below the shoulder. He had a cut across the forehead which required 23 stitches and this wound left a scar at the hair line. He had a cut over and under the right eye and many cuts on the back of his head. Three stitches were required to close the wound over the [222] eye and 2 were required under the eye. He had many other bruises of a less serious nature.
Prior to injury his eyes were good, but since the injury his right eye has been failing. Before the injury he did not wear glasses. When he tries to read his right eye waters and he can't read at all without glasses and not well with them. His right hip causes trouble, gets stiff and he is not able to use it well, especially in cold damp weather. He has a dull throbbing headache nearly all the time. This bothers him at night and affects his sleep. He has become nervous, but was not so before the injury. He has developed a tendency to grab and hold the injured arm stub or shoulder. Since the injury he has developed a kidney trouble; sometimes has to get up 5 or 6 times at night; his back hurts all the time. Before the injury he did not have such troubles.
Dr. Luther M. Callaway, an eye specialist and a witness for plaintiff, examined plaintiff's eyes and testified that plaintiff had a retinal degeneration in the right eye nerve head; that the nerve head is where the optic nerve comes into the eye ball; that the retina had a dark blue appearance on the infield. It was the opinion of Dr. Callaway that the degeneration of the retina and the degeneration and impairment of the nerve head of the right eye could have been caused by a blow on the head. Also, it was Dr. Callaway's opinion that the injury to the right eye was permanent and progressive. He said that he tried a corrective lens on the right eye, but that such did not improve the vision.
Dr. H. Louis Hess, an orthopedist, examined plaintiff several times; found a back strain which he attributed to low back ligament injury and he said the back injury might be permanent. He testified on a hypothetical question, detailing plaintiff's injuries, nervousness, kidney trouble, etc., that such nervousness, kidney trouble, etc., could have been caused by being struck by the train.
As stated, plaintiff was injured June 10th, and was taken immediately to the hospital. He left the hospital June 18th, to be married, but returned in 3 days. He remained in the hospital until July 7th. Later, he and his wife moved to an Oklahoma farm (rented) where they resided at the time of the trial (April 10, 1944). Plaintiff testified that since he was injured he has not been able "to earn any money or hold any job or do any work"; that he tried to get a job as a guard at the plant where he was working when injured, but was refused; that he tried at the United States labor bureau in Oklahoma and was turned down there. "Q. What have you done down at the farm? A. Well, I just get around there and do what I can, help my wife and the children feed chickens, cows, stuff like that."
At the time of injury plaintiff was 46 years old, and his expectancy was 23.81 years. He was a machine operator in a war plant and his earnings were $200 per month. Over the period of expectancy his earnings at $200 per month would amount to $57,144.00. Plaintiff's injuries are serious; such is conceded. The total loss of the right arm, and an injury to the right eye which is permanent and progressive and may and probably will result in total loss. In addition to these injuries plaintiff, according to the record, which is not disputed, suffers much physical pain and other physical troubles, kidney, nerves, etc. In view of plaintiff's injuries, age, expectancy, earnings, and the value of the dollar, we do not think that a verdict for $25,000 is excessive. See Howard v. Mobile Ohio R. Co., 335 Mo. 295, 73 S.W.2d 272; Harms v. Emerson Electric Mfg. Co. (Mo. Sup.), 41 S.W.2d 375; Gordon v. Muehling Packing Co., 328 Mo. 123, 40 S.W.2d 693; Cunningham v. Doe Run Lead Co. (Mo. Sup.), 26 S.W.2d 957; Vaughan v. St. Louis Merchants Bridge Terminal Ry. Co., 322 Mo. 980, 18 S.W.2d 62; Martin v. St. Louis-S.F. Ry. Co., 329 Mo. 729, 46 S.W.2d 149; Kelley v. Illinois Central R. Co., 352 Mo. 301, 177 S.W.2d 435.
The judgment should be affirmed, and it is so ordered. Dalton and Van Osdol, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.