Sullivan v. St. L.-S.F. Railway Co.

Full title: ELIJAH SULLIVAN v. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Appellant

Court: Supreme Court of Missouri, Division Two

Date published: Dec 31, 1928

321 Mo. 697 (Mo. 1928)

12 S.W.2d 735

Opinion

December 31, 1928.

1. DEMURRER: Substantial Evidence: Unloading Ties: Dangerous Method: Dangerous Place. Six section men were unloading railroad ties from a box car. Three of them worked inside the car, and plaintiff and another and the foreman on the outside. A tie was laid on the floor of the car in front of the doorway and the three inside would bring a tie to the door, lay one end of it on this cross tie, and push it until it fell on the ground below, and the plaintiff and the other would place it in a near-by stack, but while doing so their backs would be towards the doorway. While, plaintiff was placing a tie in the stack, his back or side being towards the doorway, another tie was pushed or slipped through the door and struck his left leg, fracturing it in several places. He testified that about fifteen minutes before his injury he asked the foreman if the ties could not be unloaded in a different way, and stated that the method employed was dangerous, and that the foreman replied that he did not have time to handle them in any other way and that he would watch to see that there was no danger. Another witness corroborated this testimony, but the foreman testified that he remembered no such conversation. There was evidence that the foreman stood outside the car in a position to watch, and did watch the men who were inside and those who were outside; that the men inside could see those outside, but those at work outside could not see those inside; that plaintiff while placing ties in the stack could not watch the car door; and that no warning was given plaintiff by any one before the tie that struck his leg was pushed or thrown through the door. The petition charged negligence in failure to warn plaintiff, in failure to warn the men inside, in failure to exercise ordinary care to discover plaintiff's danger, in moving and throwing the tie from the car and in ordering and permitting it to be done, in ordering and requiring plaintiff to work at the place and in said manner, and in assuring plaintiff that he could work at the place and in the manner with reasonable safety. Held, that the evidence supported all said charges, and the court properly overruled a demurrer offered at the close of plaintiff's case, and properly refused a peremptory instruction to find for defendant offered at the close of all the evidence.

2. PLEADING: Amendment: Departure: Change from Law to Law: Employers' Liability Act: Recovery under State Law. An amendment by plaintiff of his petition, based on the Federal Employers' Liability Act, by striking therefrom the allegations relating to the interstate character of his employment, leaving a petition which states a cause of action under the State law, is not a change from law to law, or such a departure as requires the reversal of a judgment rendered in full accordance with the law of the State. Where the petition in the suit for damages for negligent personal injuries contained proper allegations of interstate employment, and others which, with these, stated a good cause of action under the Federal act, and, without these, a good cause of action under the State law, and the evidence developed in the course of the trial showed that defendant was, but that plaintiff was not, engaged in interstate commerce, it was not error to permit plaintiff thereupon, with defendant's consent, to strike out all the evidence pertaining to interstate commerce, and then, over defendant's objections, to strike out of his petition all averments relating to interstate commerce, and thenceforward to proceed under the remaining averments to a verdict.

3. ____: ____: ____: ____: ____: Defense: Assumption of Risk. Defendant is not by an amendment of the petition deprived of a defense to which he was never entitled. A defense of assumption of risk cannot arise under the Federal Employers' Liability Act unless it is first shown that the employee at the time of his injury was engaged in interstate commerce; and by an amendment to the petition striking out the allegations relating to the interstate character of plaintiff's employment, leaving a pleading which states a cause of action under the State law, defendant was not deprived of the defense of assumption of risk, where defendant joined in plaintiff's request for the withdrawal of all evidence pertaining to plaintiff's engagement in interstate commerce, and thereafter the petition was amended. Besides, regardless of plaintiff's pleading or proof, defendant was at all times free to offer proof that would entitle it to make the defense of assumption of risk.

4. INSTRUCTIONS: No Request. Plaintiff's failure to request any instructions submitting to the jury any theory or ground of negligence upon which recovery is sought, is not error. Besides, the point is not for consideration on appeal where appellant made no objection and saved no exception to such failure, and raised no such point in its motion for a new trial.

5. ____: Withdrawing Negligent Acts. Instructions asked by defendant separately withdrawing plaintiff's several assignments of negligence are properly refused, where each is supported by evidence.

6. ARGUMENT TO JURY: No Objection. If no objection is made at the time to a remark of respondent's counsel in his argument to the jury, the remark is not reviewable on appeal.

7. ____: Offer of Present to Jury: Provoked by Appellant. A statement by plaintiff's counsel, in his closing argument to the jury in a personal injury action, that he would make a present of one thousand dollars to the jury if they thought plaintiff's injuries were not worth more than that amount, is error, if it stands alone; but where it is provoked by the argument of counsel for defendant that the defendant "will pay any reasonable sum; and though there is not a shadow of liability, yet, nevertheless, if you gentlemen will bring in a verdict of a thousand dollars we will pay it," the error is not reversible.

8. ____: Reprimand: Discharge of Jury: Discretion. In his argument to the jury counsel for plaintiff said in reference to the amount of damage: "I will put it up to your conscience what you would take under the same circumstances ____." When defendant's counsel attempted to object, counsel for plaintiff said: "Yes, that may be error which would let him reverse the case." Defendant thereupon asked that counsel be reprimanded, that a mistrial be declared and that the jury be discharged. Counsel for plaintiff then said: "I ask that the jury be instructed to disregard my remarks and that I be reprimanded." Thereupon the court said: "The jury are instructed to disregard the remarks. Counsel should have known better, but they were made in the heat of the trial, and I will overlook them. The motion for a mistrial will be overruled," and declined to further reprimand counsel. Held, that the situation called for an instruction to disregard and a reprimand, rather than for a declaration for a mistrial; and as the condemnation by the trial court was exercised in the light of knowledge not afforded by the record, it cannot be ruled that the court unwisely exercised his discretion in not administering a reprimand.

9. EXCESSIVE VERDICT: Section Hand: Ten Thousand Dollars. Plaintiff was over fifty years of age, was employed as a section hand, and was earning $3.04 per day. Both bones of his leg near the ankle and the heel bone were fractured. He was confined to the railroad hospital for some months, but was out nothing for medical or hospital fees. His damage for loss of time did not exceed $1250. At the trial, sixteen months after he received the injuries, he was walking about with a cane, and was working occasionally with a team hauling ore. He will be permanently lame, and the evidence indicated that motion in the ankle was destroyed from five to seventy per cent. Held, that a verdict for $10,000 is excessive, and the judgment is affirmed only on condition that he remit $2500 as of its date.

Corpus Juris-Cyc. References: Appeal and Error, 3 C.J., Section 754, p. 848, n. 13; Section 763, p. 862, n. 21. Damages, 17 C.J., Section 438, p. 1107, n. 63. Master and Servant, 39 C.J., Section 1184; p. 958, n. 57; Section 1345, p. 1160, n. 36; Section 1351, p. 1167, n. 72; Section 1352. p. 1168, n. 78; Section 1368, p. 1191, n. 22. Trial, 38 Cyc, p. 1501, n. 45; p. 1502, n. 57; p. 1691, n. 43.

Appeal from Circuit Court of City of St. Louis. — Hon. Edwin G. Ossing, Judge.

AFFIRMED ( upon condition).

E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.

(1) The demurrer to the evidence should have been sustained, and the peremptory instruction requested by defendant should have been given. (a) There was a failure of proof of interstate employment, the burden of proving which rested on plaintiff. Southern Ry. v. Lloyd, 239 U.S. 501; Lucchetti v. Railway, 233 F. 137; Poindexter v. Railway, 4 S.W.2d 1067. (b) The evidence was insufficient to show actionable negligence on defendant's part proximately resulting in plaintiff's injury. There was no substantial proof of any of the several acts of negligence pleaded in the petition. Salmon v. Railroad, 181 Mo. App. 417; Long v. Railway, 159 S.W. 779; Wyandotte Ry. v. Wilson, 168 S.W. 565. (2) It was error to permit plaintiff, during the progress of the trial, and over defendant's objection, to amend his petition by striking therefrom the averments respecting the interstate character of his employment. The effect of this amendment was to change plaintiff's alleged cause of action from one based on the Federal Employers' Liability Act to one based on the State law, and to deprive defendant of the defense of assumption of risk although growing out of defendant's negligence, which was available to it under the Federal act. Assumption of risk, previous to the amendment, clearly appeared from plaintiff's own testimony. Pryor v. Williams, 254 U.S. 43; Seaboard Air Line Ry. v. Horton, 233 U.S. 504; Boldt v. Railroad, 245 U.S. 441; Jacobs v. Railroad, 241 U.S. 229. The amendment constituted a departure. Union Pacific Ry. v. Wyler, 158 U.S. 285; Lucchetti v. Railway, 233 F. 137; Wabash Railway v. Hayes, 234 U.S. 86; Toledo Ry. v. Slavin, 236 U.S. 454. (3) Plaintiff requested no instruction submitting to the jury any theory or ground of negligence upon which recovery was sought or upon which the jury might find a verdict in favor of plaintiff. The only instruction requested by or given on behalf of plaintiff was one on the measure of damages. This practice has been repeatedly condemned by this court. Sutter v. Railway, 188 S.W. 68; Eversole v. Railroad, 249 Mo. 523; Highfill v. Independence, 189 S.W. 802; Powell v. Railroad, 255 Mo. 457; Wingfield v. Railroad, 257 Mo. 347; Denkman v. Fixture Co., 289 S.W. 596. (4) Defendant's requested Instructions E to J, inclusive, were specific demurrers or withdrawal instructions intended to withdraw from the consideration of the jury assignments of negligence in the petition which found no support in the evidence. Defendant was entitled to these instructions and it was error to refuse them. Chrismer v. Tel. Co., 194 Mo. 207. (5) The closing argument of counsel for plaintiff was highly improper, inflammatory and prejudicial. It was error to permit such argument, to overrule defendant's objections thereto, to fail to reprimand counsel, and to refuse to declare a mistrial on defendant's motion therefor. Such argument found its logical result in a swollen verdict. Neff v. Cameron, 213 Mo. 369; Chawkley v. Railway, 297 S.W. 30; Kull v. Ford Motor Co., 261 S.W. 736; Lessenden v. Railroad, 238 Mo. 247. (6) The verdict is grossly excessive, and is the result of prejudice and bias on the part of the jury, superinduced by the improper and inflammatory argument of counsel for plaintiff. Applegate v. Railroad, 252 Mo. 201; Corn v. Railway, 228 S.W. 78; Adams v. Railway, 100 Mo. 569; Nicholds v. Glass Co., 126 Mo. 67; Pauck v. Provision Co., 166 Mo. 639; Stolze v. Trans. Co., 188 Mo. 581.

Mark D. Eagleton and Hensley, Allen Marsalek, for respondent.

(1) The court did not err in permitting plaintiff to amend his petition to conform to the proof, by striking out the allegation that he was engaged in interstate commerce at the time of his injury (a) The amendment worked no substantial change in the cause of action. Sec. 1274. R.S. 1919; Montague v. Railroad, 289 Mo. 288; Rippee v. Railroad, 154 Mo. 358; White v. Railroad, 202 Mo. 539, Hudson v. Railroad, 173 Mo. App. 611; New York Cent. Railroad v. Kinney, 260 U.S. 340; Seaboard Air Line v. Koennecke, 239 U.S. 352, affirming Koennecke v. Air Line, 101 S.C. 86; Wabash Railroad v. Hayes, 234 U.S. 86; M.K. T. Railroad v. Wulff, 226 U.S. 570; O'Dell v. Southern Railroad, 248 F. 343; Nash v. Railroad 141 Minn. 148; Midland Valley Railroad v. Ennis, 159 S.W. 214. See, also. Baltimore Ohio Railroad v. Phillips, 274 U.S. 323, and Lanis v. Railroad, 140 La. 1. (b) The change in the petition did not alter or affect defendant's right to show that plaintiff was engaged in interstate commerce at the time of the injury, if such was the fact. The amendment deprived defendant of no right under the Federal Employers' Liability Act, because it was defendant's privilege to assert such right and to avail itself of any applicable defense under said act, exactly the same after the amendment as before St. Louis, I.M. S. Railroad v. Hesterly, 228 U.S. 702; North Carolina Railroad v. Zachary, 232 U.S. 248; Toledo Railroad Co. v. Slavin, 236 U.S. 454; Miller v. Schaff, 228 S.W. 490. (c) Defendant and its agents knew, of course, whether the ties being unloaded at the time of plaintiff's injury came from within or from without the State, and whether or not they were being unloaded for use in interstate commerce. Having entirely of their own volition withheld this information, when there was no restriction whatever against their offering proof on the subject, defendant cannot complain that the court deprived it of any right under the Federal act. Osborne v. Gray, 241 U.S. 16. (d) Having failed to present an affidavit of surprise, although opportunity was accorded by the court to do so, defendant cannot predicate error on the amendment. Sec. 1272, R.S. 1919; Chilton v. Cady, 298 Mo. 101; Bammert v. Kenefick, 261 S.W. 78; Koennecke v. Seaboard Air Line, 101 S.C. 86, 239 U.S. 352. (2) The demurrer to the evidence was properly overruled. (a) In ruling upon a demurrer, the court will accept, as true, all evidence in the entire record tending to uphold plaintiff's cause of action, and every inference favorable to plaintiff which can, with any degree of propriety, be drawn therefrom. Buesching v. Gas Co., 73 Mo. 219; Anderson v. Davis, 284 S.W. 450. (b) The evidence tended to support each of the various specifications of negligence in the petition. Callahan v. Ry. Co., 170 Mo. 496; Jordan v. Transit Co., 202 Mo. 418; Keegan v. Kavanaugh, 62 Mo. 233; Bequette v. Glass Co., 200 Mo. App. 506; Salmon v. Railroad, 181 Mo. App. 414; Cox v. Granite Co., 39 Mo. App. 424; Austin v. Railroad, 220 F. 85. (3) Failure of plaintiff in a civil case to submit instructions is not error. Our statute permits, but does not require, a party to offer such instructions. Sec. 1417, R.S. 1919; Keppler v. Wells, 238 S.W. 425. Furthermore, defendant at the time made no objection, and saved no exception, to the failure of the court to instruct the jury on the plaintiff's theory of negligence, nor was any complaint on that score made in the motion for a new trial. The matter therefore cannot be reviewed on appeal. Sec. 1459, R.S. 1919; State ex rel. v. Woods, 234 Mo. 26; Maplegreen Co. v. Trust Co., 237 Mo. 362. (4) Appellant's counsel, in his argument, told the jury that, although there was no liability, his client was willing to pay plaintiff for his injury, but would not pay an unreasonable amount, and if they would bring in a verdict for a reasonable amount ($1000) defendant would pay it — thereby necessarily implying that if the jury brought in a verdict for more than that, they would not pay it, but would appeal. Having injected this subject into the debate, defendant should not be heard to complain that plaintiff's counsel retaliated with the statement that he would be willing to give the jury a like sum if the jury thought the injuries were not worth more than the amount suggested; and that defendant would not pay even $1000 without "going to the end of their string." Huhn v. Ruprecht, 2 S.W.2d 764. (a) Rulings of trial courts with reference to alleged misconduct of counsel in argument, will not be interfered with on appeal, unless a clear abuse of discretion appears. Huckshold v. Railroad, 90 Mo. 558; Gidionsen v. Ry. Co., 129 Mo. 403; Hays v. Millers' Estate, 189 Mo. App. 81; Yost v. Railroad, 245 Mo. 251. (b) The alleged improper statement of counsel for plaintiff, implying that the court would not have submitted the case to the jury, unless there was evidence to support it, was not objected to, or called to the court's attention in any manner at the time, and therefore the statement cannot be made the basis of error on appeal. Massengale v. Rice, 94 Mo. App. 430; Preston v. Railroad, 292 Mo. 442. (5) The judgment is not excessive. (a) An appellate court will not interfere with the award of damages unless the amount is so glaringly unsupported by the evidence as to shock the judicial sense of right, or compel a conviction that the verdict was the result of prejudice, passion or bias. Manley v. Wells, 292 S.W. 67. (b) The judgment is a reasonable allowance for the plaintiff's injury, as compared with awards in similar cases. Spencer v. Railroad, 297 S.W. 357; Ernst v. Ry. Co. 256 S.W. 225; Jordan v. Railroad, 308 Mo. 47.

ATWOOD, P. J

This is an appeal from a verdict and judgment in favor of plaintiff for $10,000 on account of injuries alleged to have been sustained by him while in the employ of defendant. Plaintiff was one of six section men engaged in unloading ties from the north door of a box car standing on one of defendant's east-and-west side tracks in the city of St. Louis. The ties were of green oak, about eight feet long and weighed about one hundred and eighty pounds each. Three of plaintiff's crew worked inside the car and two, besides the foreman, were on the outside. In unloading the ties the three men inside would first bring a tie to the door, then one of their number would lay one end of this tie on top of another tie previously laid on the car floor next to the door, and his two companions would then push the tie from the other until it fell on the ground below. Plaintiff and another member of the crew alternated with each other in ending up the unloaded ties and placing them in a stack just north of the car door. While plaintiff was placing a tie in the stack, his back or side being turned toward the car door, another tie was pushed or slipped through the door to the ground and struck his left lower leg, fracturing it in several places.

Plaintiff went to trial on an amended petition based on the Employers' Liability Act and alleging several grounds of negligence. The answer consisted of a general denial and pleas of contributory negligence. The reply was a general denial. During the progress of the trial plaintiff was permitted to amend his petition by striking therefrom the averments respecting the interstate character of his employment. At the close of plaintiff's case defendant interposed a demurrer to the evidence which was overruled, and at the close of the whole case defendant requested a peremptory instruction which was refused.

Appellant's first assignment of error is that the court erred in overruling defendant's demurrer to the evidence and in refusing defendant's peremptory instruction. Appellant's first point under this head is that there was failure of proof of interstate employment, the burden of proving which rested on Demurrer. plaintiff. This point, however, avails appellant nothing unless the trial court erred in permitting plaintiff to amend by striking from his petition the averments as to interstate employment, a matter which we shall presently consider. Appellant next says that there was no substantial proof of any of the several allegations of negligence. We are not favored by appellant with any analysis or review of the evidence in support of this criticism. Plaintiff's six specifications of negligence may be summarized as follows:

(1) Failure to warn plaintiff that the tie was about to be, or was being, moved or thrown from the car.

(2) Failure to warn or advise the persons moving or pushing the tie from the car of plaintiff's situation and that he was likely to be injured.

(3) Failure to exercise ordinary care to discover that plaintiff was likely to be injured as alleged.

(4) That defendant negligently moved and threw said tie from said car, and caused, ordered and required and permitted it to be moved and thrown therefrom.

(5) That defendant negligently ordered, required, caused and permitted plaintiff to be and work at the place and in the manner alleged.

(6) That defendant negligently assured plaintiff that he could be and work at the place and in the manner alleged with reasonable safety to himself.

The evidence shows that the section crew began unloading this car immediately after noon on the day plaintiff was injured. Plaintiff testified that he was injured about 1:30 o'clock that afternoon and about fifteen minutes previous thereto he had asked his foreman if the ties could not be unloaded in a different way, that it was dangerous, and that the foreman replied that he did not have time to handle them any other way and he would watch to see that there was no danger. Another witness corroborated plaintiff's testimony in this respect, although the foreman testified that he remembered no such conversation. The evidence to be considered on demurrer further showed that the foreman stood outside the car in a position to watch and did watch the men who were inside and those who were outside the car; that the men inside the car could see those outside, but the men outside could not see those inside; that plaintiff relied on the foreman to keep watch; that at the time plaintiff was hurt he was pushing a tie over on the pile; that in piling up the ties, plaintiff's back and side would be to the car, so that he could not watch the car door while he was in the act of doing this work; that plaintiff was in the position described when a tie, thrown out of the car by the men, struck his leg; that before this tie was pushed out of the car one end of the tie was rested on the tie across the doorway while two men held the other end to push it out; that no warning was given plaintiff by any one before the tie was thrown out upon him. Respondent has cited a number of cases in support of his contention that the demurrer was properly denied and the peremptory instruction properly refused, but it is so obvious that under the frequent adjudications of this court there was ample evidence to support plaintiff's allegations of negligence that we shall not attempt to state or review the authorities. Appellant's contention to the contrary is overruled.

Appellant's next assignment is that the trial court erred in permitting plaintiff, in the progress of the trial, to strike out the averments of his interstate employment. Counsel Departure: for appellant say that by striking out these Change from averments and so stating a case under the state law, Law to Law. whereas, the petition originally stated a case under the Federal Employers' Liability Act, plaintiff changed from law to law and the petition as amended was a departure; citing Union Pacific Ry. v. Wyler, 158 U.S. 285, 296, and Lucchetti v. Railway, 233 F. 137, 138.

The Wyler case was an action for damages on account of personal injuries received in the State of Kansas. It was commenced in a Missouri court. By the Missouri law a servant could not recover from a common master for injuries suffered from the negligence of a fellow-servant, but where the master knowingly employed an incompetent servant, or where he kept a servant in his employ after he had acquired knowledge of his incompetency, he was liable for damages caused to a fellow-servant resulting from such incompetency. By the Kansas statute employers operating a railroad were made liable to one servant for the neglect of another without regard to the rule of incompetency as above stated. The original petition made no reference to the Kansas statute but proceeded exclusively on that part of the general rule of law which held the master liable who with knowledge employed or retained an incompetent servant. The first and second amended petitions set up a somewhat different state of facts, pleaded the Kansas statute and asserted a right to recover thereunder in derogation of the general law of master and servant, which was exclusively relied upon in the original petition, and it was held to be a departure from law to law. The same doctrine was stated in the Lucchetti case, but held not applicable to the case made.

The instant case is distinguishable from the foregoing in several respects. Looking first to the pleadings filed by the respective plaintiffs, we note that in the Wyler case plaintiff finally relied entirely on the Kansas statute which was specifically pleaded in the second amended petition. This law, which was in derogation of the law exclusively relied upon in the first pleading, was not referred to in the original petition and being a foreign statute of which judicial notice could not be taken in the state where the action was pending (Babcock v. Babcock, 46 Mo. 243), this ground of recovery could in no sense be looked upon as having been stated or even suggested in the first pleading. While the departure in that case said to arise from relying, first, upon the general or common law, and, in the second instance, on an exceptional statute, is a question of pleading, and is not controlled by the law in regard to judicial notice of statutes, which is a matter of evidence, yet the distinction just noted was by the writer of the opinion deemed worthy of mention (l.c. 295), and in the later case of Mo. Kan. Tex. Ry. v. Wulf, 226 U.S. 570, l.c. 577, it was held to be a proper ground of differentiation. In the Wulf case it was contended that plaintiff's original petition failed to state a cause of action, because she sued in her individual capacity and based her right of recovery upon the Kansas statute, whereas, her action could legally rest only upon the Federal Employers' Liability Act of 1908, which required the action to be brought in the name of the personal representative of the deceased, and that plaintiff's amended petition, in which for the first time she set up a right to sue as administratrix, alleged an entirely new and distinct cause of action; but the court held (l.c. 576) that the amendment introduced no new or different cause of action.

The case here presented in point of pleadings filed by plaintiff and in other respects is more like the case of Wabash Railroad v. Hayes, 234 U.S. 86, than the earlier case of Union Pacific Ry. v. Wyler, supra. We quote as follows from the opinion in the Hayes case (pp. 88, 89, 90), dismissing writ of error to the highest court of Illinois in which a decision of the case could be had:

"The plaintiff's declaration alleged that the injury occurred while the defendant was engaged, and while the plaintiff was employed by it, in interstate commerce. The other allegations were such that, with that one, they stated a good cause of action under the Federal Employers' Liability Act, April 22, 1908, 35 Stat. 65, c. 149, and, without it, they stated a good cause of action under the common law prevailing in the State. There was a plea of not guilty; and upon the trial, the proof failing to show that the injury occurred in interstate commerce, the court, at the defendant's request, instructed the jury that the Federal Employers' Liability Act had no application to the case. Then, over the defendant's objection, the court treated the allegation respecting interstate commerce as eliminated, and submitted the case to the jury as one controlled by the common law prevailing in the State. The plaintiff recovered under that law. In the appellate court the defendant contended that, even though the allegation that the injury occurred in interstate commerce proved unwarranted, the declaration could not be treated, consistently with the Federal act, as affording any basis for the recovery under the law of the State, common or statutory. But the court held otherwise and sustained the recovery under the state law. . . .

"The plaintiff asserted only one right to recover for the injury, and in the nature of things he could have but one. Whether it arose under the Federal act or under the state law, it was equally cognizable in the state court; and had it been presented in an alternative way in separate counts, one containing and another omitting the allegation that the injury occurred in interstate commerce, the propriety of proceeding to a judgment under the latter count, after it appeared that the first could not be sustained, doubtless would have been freely conceded. Certainly, nothing in the Federal act would have been in the way.

"Instead of presenting his case in an alternative way, the plaintiff so stated it as to indicate that he was claiming only under the Federal act. And when the proofs demonstrated that the injury arose outside of interstate commerce and therefore that no recovery could be had under the Federal act, the court was confronted with the question whether the declaration could be amended, or regarded as amended, to conform to the proofs. Holding that this could be done, the court treated the mistaken allegation that the injury occurred in interstate commerce as eliminated. Therein the court merely gave effect to a rule of local practice, the application of which was not in anywise in contravention of the Federal act. [See Mondou v. New York, New Haven Hartford Railroad Co., supra, pp. 56-57.]"

The instant case is strikingly similar. Both the original and the amended petition contained proper averments of interstate employment which were denied in defendant's answer. The other allegations were such that, with these averments, they stated a good cause of action under the Federal Employers' Liability Act, and, without them they stated a good cause of action under the state law. In the course of the trial plaintiff introduced some evidence tending to support these averments. Counsel for defendant objected thereto and his objection was overruled. Thereafter on inquiry of plaintiff's counsel defendant's counsel admitted that defendant was engaged in interstate commerce, but declined to admit that plaintiff was so engaged, and upon further interrogation as to whether or not it was his "contention they were not engaged in interstate commerce at the time of the injury," he replied: "We make no contention one way or another." Thereupon counsel for plaintiff requested the court to withdraw from the consideration of the jury the evidence above referred to and tell the jury to disregard that evidence entirely as if the objection made thereto had been sustained. Counsel for defendant joined in this request and it was immediately complied with. Later during the trial plaintiff's counsel asked leave of court to amend his petition by striking out the averments that plaintiff was engaged in interstate commerce. Counsel for defendant objected on the ground that the effect of such amendment "would be to change the whole cause of action." Counsel further claimed surprise, but after being allowed time to consider declined to file any affidavit of surprise, stating that he would stand on the objection made.

In view of the similarity above indicated it would seem that the Hayes opinion should rule the point in the instant case as far as Federal decisions are controlling. See, also, New York Cent. Railroad v. Kinney, 260 U.S. 340, 345; Seaboard Air Line v. Koennecke, 239 U.S. 352, 354; O'Dell v. Southern Ry. Co., 248 F. 343, 344; Delaware L. W. Railroad Co. v. Yurkonis, 220 F. 429, 433; and Nash v. Minneapolis St. L. Railroad Co., 141 Minn. 148, 150. But as there indicated, whether plaintiff's right arose under the Federal act or the state law, it was equally cognizable in the state court, and in the matter of permitting or refusing the amendment it was proper for the court to follow the rule of local practice. Section 1274, Revised Statutes 1919, provides that an amendment may be allowed conforming the pleading or proceeding to the facts proved "when the amendment does not change substantially the claim or defense." In Montague v. Railroad Co., 289 Mo. 288, it was conceded that as a general rule where a suit is brought under the statute of one state an amendment basing the petition on the statute of another state will be construed as the statement of a new and different cause of action, but in holding that although an original petition stated a cause of action for negligent personal injuries resulting in death under Sections 4218 and 4219, Revised Statutes 1919, an amended petition setting up the statutes of Kansas under which plaintiff had a right to sue and recover damages for the death did not constitute a departure, a qualification of the rule was thus indicated (l.c. 295, 296):

"The rule thus announced is to be construed subject to the qualification that a well-defined change in the cause of action pleaded by the amendment, from that originally brought, must appear as in any other case . . . It is not whether a change from law to law changes the cause of action, but whether the facts essential to constitute the cause of action are the same or different in the two pleadings."

Also, in White v. Railroad, 202 Mo. 539, this court upheld the right of plaintiff to state in one count of a petition negligence at common law, negligence constituting a violation of an ordinance, and statutory negligence. In the light of Section 1221, Revised Statutes 1919, which provides that several causes of action may be united in the same petition provided each cause of action is separately stated, the effect of this ruling is that such pleas of negligence do not constitute separate and distinct causes of action. [See, also, Rippee v. Ry. Co., 154 Mo. 358, and Hudson v. Railroad, 173 Mo. App. 611, 633.]

It seems apparent that under the Missouri rule the amendment allowed in the case submitted did not "change substantially the claim." Did it change the "defense?" Appellant insists Defense. that its effect was "to deprive defendant of the defense of assumption of risk although growing out of defendant's negligence, which was available to it under the Federal act." It seems obvious that defendant could not be deprived of a defense to which on the record before us he was never entitled. No such defense could ever arise except it be first shown that at the time he was injured plaintiff was engaged in interstate commerce. Plaintiff alleged that he was so engaged. Defendant denied it. Plaintiff introduced some supporting testimony which was afterward withdrawn from the jury at his request. Defendant joined in this request. The case went to the jury without any proof whatever that plaintiff was engaged in interstate commerce at the time he was injured. On this state of the evidence defendant was not entitled to interpose the defense that would have been available to it under the Federal act had plaintiff's engagement in interstate commerce been shown. Hence, he was not deprived of this defense by the amendment of the pleadings but by failure of this proof, and such failure was in line with defendant's own pleading and attitude throughout the trial. No one was in better position than defendant to know whether or not plaintiff was so engaged, and regardless of plaintiff's pleading or proof defendant was at all times free to make the objection that the case fell within the provisions of the Federal act, and offer proof, if such was available, that would entitle it to make the defense of which counsel now says it was deprived. [See Osborne v. Gray, 241 U.S. 16, 19; Toledo, St. L. West Railroad Co. v. Slavin, 236 U.S. 454, 457; St. Louis San Francisco Ry. v. Seale, 229 U.S. 156, 161.] The amendment was properly allowed.

Appellant also complains of plaintiff's failure to request any instruction submitting to the jury any theory or ground of negligence upon which recovery was sought. Cases Instructions: are cited wherein this practice has been sharply No Request. criticised, but none of them hold that mere failure to so instruct is a sufficient ground for reversal. The statute permits but does not require plaintiff to offer such instructions. [Sec. 1417, R.S. 1919; Keppler v. Well (Mo. Sup.), 238 S.W. 425.] Furthermore, it does not appear that defendant at the time made any objection or saved any exception thereto, or raised the point in its motion for a new trial. In this state of the record the matter cannot now be considered on appeal. [Sec. 1459, R.S. 1919; State ex rel. v. Woods, 234 Mo. 16, 26; Maplegreen Realty Co. v. Trust Co., 237 Mo. 350, 362.]

Appellant assigns error in the refusal of defendant's requested instructions marked E and J, both inclusive. These six instructions were in the nature of specific demurrers to plaintiff's six assignments of negligence and were Withdrawal intended to withdraw them from the consideration Instructions. of the jury. We have already enumerated these specifications of negligence and reviewed the evidence relating thereto. Each of the six specifications was supported by evidence and the trial court properly refused these instructions.

Appellant insists that the court erred in overruling defendant's objections to the jury argument of plaintiff's counsel, in failing to reprimand counsel sufficiently, and in refusing to declare a mistrial therefor. Particular Argument attention is directed to several parts of the closing to Jury. argument by counsel for plaintiff, as follows:

"If there wasn't any evidence to go to the jury, the court wouldn't let it go to the jury. He (referring to defendant's counsel) is a good gambler. He has made a munificent offer. I will be as good. If you think that a man with these three fractures and the disability resulting to this man is not worth more than one thousand dollars, I will make you a present of a thousand dollars, and pay it myself."

Counsel for defendant thereupon said: "I object to that. Mr. Eagleton knows he has no right to make a present to the jury or the Frisco . . ." The objection was overruled.

Again, plaintiff's counsel said to the jury: "Gentlemen, I am not going to tell you what you ought not to bring in. I will put it up to your conscience what you would take under the same circumstances. . . ." When defendant's counsel attempted to interpose an objection to this argument, plaintiff's counsel said: "Yes; that may be error which would let him reverse the case — . . ." Defendant's counsel then said: "In view of the last two remarks, first, in appealing to the individual juror as to what he would take under the same circumstances, and in view of his last remark, that may be error that would let me reverse the case, I ask that the jury be instructed to disregard those remarks, and that Mr. Eagleton be reprimanded, and I move that a mistrial be declared and the jury discharged because of the improper argument made by Mr. Eagleton, which, by his own argument, he has admitted to be improper." Mr. Eagleton then said: "I ask that the jury be instructed to disregard my remarks and that I be reprimanded." Thereupon the court said: "The jury is instructed to disregard the remarks referred to by Judge Green. Mr. Eagleton should have known better, but it was made in the heat of the trial, and I will overlook that. The motion for a mistrial will be overruled." The court declined to further reprimand Mr. Eagleton.

It is now argued that the statement, "If there wasn't any evidence to go to the jury, the court wouldn't let it go to the jury," was reversible error, citing Kull v. Ford Motor Co., 261 S.W. l.c. 736. The record does not show that any objection was made to this statement at the time. Hence, the matter is not now reviewable. [Preston v. Railroad Co., 292 Mo. 442, 458; Mahaney v. Ry. Co., 108 Mo. 191, 200; Sidekum v. Railroad, 93 Mo. 400, 407.]

It is also urged that counsel's statement that he would make the jury a present of one thousand dollars if they thought that plaintiff's injuries were not worth more than that amount, was error and that defendant's objection thereto Error should have been sustained. Such a statement Provoked unprovoked and standing alone would clearly be by Appellant. improper. However, it has a different, though still unpleasant ring, when read with its context and the text of the argument of opposing counsel who had just finished addressing the jury. In this argument counsel for defendant said: "I submit this to you, that the Frisco Railroad is willing to pay a man who is hurt within the scope of his employment even though there be no liability, but they will not pay any unreasonable amount. In this case there was not a shadow of liability, but nevertheless if you gentlemen will bring in a verdict of a thousand dollars we will pay it, although there is no liability, and under the court's instructions the plaintiff is not entitled to a verdict." The trial court was doubtless of the opinion that this line of argument provoked and in a sense justified the reply statement to which defendant's counsel objected. We find no fault with this ruling as it falls within the doctrine announced in Huckshold v. Ry. Co., 90 Mo. 548, 559.

The two subsequent statements above quoted and against which objections were timely made were not provoked by the remarks of other counsel, and hence rest on a different footing. The first of these two statements was, "I will put it up to your conscience what you would take under the same circumstances —", but the sentence was never completed because opposing counsel interrupted with an objection. In answer to this objection counsel for plaintiff made the second of the two remarks here objected to, as follows: "Yes; that may be error that would let him reverse the case —," and this sentence was never completed because interrupted by a further statement of objections by plaintiff's counsel to the effect that the jury should be instructed to disregard the remarks, that counsel for plaintiff be reprimanded, and that a mistrial be declared and the jury discharged. Counsel for plaintiff himself thereupon requested that the jury be requested to disregard his remarks and that he be reprimanded. The court instructed the jury to disregard the remarks, said that counsel for plaintiff should have known better, but that "it was made in the heat of trial" and he would overlook it, and overruled the motion for a mistrial. The argument thus made was concededly improper and the only question presented here is whether or not its prejudicial effect was removed by the action of the trial court.

In C. A. Railroad Co. v. Vipond, 212 Ill. 199, 205, counsel for plaintiff in his argument to the jury commenced a statement that the income from $5000, especially when something was deducted for the expenses of litigation, would not be a fair substitute — when the statement was objected to by counsel for defendant. Counsel making the argument expressed a willingness to have it struck out if not proper, and the court said he thought it proper to discuss the question of damages. The sentence was never completed and the appellate court held that while the expenses of litigation could not be taken into consideration in awarding damages, yet as there was no further argument on this basis, the judgment should not be reversed on account of what was contained in the incomplete statement. Also, in Crockett v. K.C. Rys. Co., 243 S.W. (Mo. Sup.) 902, 908, plaintiff's counsel in the course of his argument to the jury as to plaintiff's condition, said: "She has never known a day without pain, since this injury. Why, gentlemen, I would not be in that condition and you would not be in that condition for twice what I have sued for in this case." In reviewing the action of the trial court on objection and motion to discharge the jury, this court said: "The trial judge was in the best position to know the effect upon the jury of the argument in question. He held that it was unnecessary to discharge the jury. He had stated that the improper remarks made by plaintiff's counsel were not made intentionally. The argument was not proper. When challenged the remark was withdrawn. The jury thus saw its impropriety. We will not interfere with the action of the trial judge under the circumstances."

In view of the prompt admission made by counsel for plaintiff in the presence of the jury of the impropriety of these remarks and his request that they be withdrawn from the jury and that he be reprimanded, we think the situation in the instant case was one that called for an instruction to disregard and a reprimand rather than the declaration of a mistrial. In Sinclair v. Columbia Telephone Co., 195 S.W. (K.C. Ct. App.) 558, counsel for plaintiff in the course of his argument asked the jury, "What would you take for your right leg?" The trial court on objection agreed with defendant's counsel that it was not a question "what the jury would take," and that the jury should be governed by the evidence. Plaintiff's counsel then withdrew the statement and apologized. On appeal it was held that "the withdrawal, the apology, and the statement of the court, left the indiscretion of plaintiff's counsel harmless." As to whether or not the court's condemnation of the remarks and the reprimand administered to counsel in the case now before us were sufficiently severe to accomplish their purpose, we feel constrained to defer to the trial court's discretion which was exercised in the light of knowledge not afforded us by the printed record, and conclude that defendant's objections and motion were properly ruled. [Gidionsen v. Union Depot Ry Co., 129 Mo. 392, 403.]

Appellant finally urges that the judgment for $10,000 is excessive. At the time plaintiff was injured he was past fifty years of age, was employed as a section hand, and was earning $3.04 a day. His injury consisted of three fractures of his left leg, both bones of the shaft of the leg near the ankle being fractured, and the heel bone sustaining a similar injury. He was confined in the Frisco Hospital for some months, was out nothing for medical or hospital fees, and his damage on account of loss of time did not exceed $1250. At the time of the trial, some sixteen months after the injuries were received, he was walking about with the aid of a cane and had worked occasionally with his team hauling ore. It appeared that he would be permanently lame and the evidence indicated that motion in his left ankle was destroyed to the extent of five to seventy per cent. There was testimony of an adnormal condition in plaintiff's back and pains in his upper left leg and knee, but the evidence quite plainly indicated that these troubles resulted from some cause or causes other than the injuries caused by the falling tie. After a careful study of this case and other similar cases decided we are of the opinion that the judgment is excessive by $2500. If within ten days from the filing of this opinion plaintiff will enter a remittitur for $2500 the judgment of the circuit court will stand affirmed for $7500 with interest from the date rendered, but in event such remittitur be not entered the judgment will stand reversed and the cause remanded as of the date of the filing of this opinion.

All concur.