September 20, 1949. Motion for Rehearing or to Transfer to Banc Overruled, October 10, 1949.
Action under Federal Employers' Liability Act. Plaintiff brakeman was injured when he stepped off a caboose at night and fell from a trestle. There was a submissible case of failure to furnish a safe place to work. Plaintiff's negligence was not the sole cause of his injuries. A consulting engineer was properly qualified as an expert. Admission and rejection of evidence was not prejudicial. There was no error as to instructions given or refused. The verdict of $50,000 was excessive by $7500.
1. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Federal Rule Governs. In an action under the Federal Employers' Liability Act the decisions of the Supreme Court of the United States as to when a case may be taken from the jury govern.
2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Fall From Trestle: Failure to Furnish Safe Place to Work: Submissible Case. Plaintiff brakeman stepped from a caboose at night and fell off a trestle that was not protected by a guardrail or catwalk. There was a submissible case of failure to furnish a reasonably safe place to work.
3. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Plaintiff's Negligence Not Sole Proximate Cause. It does not appear as a matter of law that plaintiff's negligence was the sole proximate cause of his injuries.
4. EVIDENCE: Witnesses: Expert Witness Not Disqualified. A consulting engineer who was not a railroad engineer was not disqualified as an expert witness on the feasibility of placing a guardrail or catwalk on a trestle.
5. NEGLIGENCE: Railroads: Evidence: Federal Employers' Liability Act: Insufficient Lantern Within Issues. Evidence as to the insufficiency of the lantern furnished plaintiff was within the issues of plaintiff's negligence raised by the answer.
6. EVIDENCE: Refusal of Offer Not Prejudical. A refusal of an offer of proof was not prejudicial where it appeared from cross-examination that the witness had no knowledge as to the matter.
7. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Stopping Caboose on Trestle: Withdrawal Instruction Properly Refused. Defendant's withdrawal instruction was properly refused on the issue of stopping a long freight train with the caboose on a short trestle.
8. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Instruction Properly Refused. An instruction that it was plaintiff's duty to use his judgment as to which side of the train he would alight from was contrary to the evidence and was properly refused.
9. TRIAL: Cautionary Instruction Refused: Discretion of Trial Court. The refusal of a cautionary instruction as to the issue of an insufficient lantern was within the discretion of the trial court.
10. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Instruction Not Erroneous. Reference to darkness in plaintiff's instruction was not erroneous.
11. DAMAGES: Verdict Excessive. The verdict of $50,000 for injuries to plaintiff's pelvis and spine was excessive by $7500.
Appeal from Circuit Court of City of St. Louis; Hon. David J. Murphy, Judge.
AFFIRMED ( subject to remittitur).
Wayne Ely, Robert C. Ely and Ernest D. Grinnell, Jr., for appellant; D.S. Wright of counsel.
(1) The court erred in overruling defendant's motion for a directed verdict. The evidence fails to show that defendant negligently or carelessly failed to provide plaintiff a reasonably safe place to work or failed to keep or maintain the trestle in a reasonably safe condition. Baltimore Ohio R. Co. v. Berry, 286 U.S. 272, 76 L.Ed. 1098, reversing Berry v. B. O.R. Co., 43 S.W.2d 782; Cawman v. Pennsylvania Reading Seashore Lines, 110 F.2d 832, certiorari denied, 85 L.Ed. 427; Bailey v. Central Vermont R. Co., 319 U.S. 350, 87 L.Ed. 1444; Patton v. Texas Pac. R. Co., 179 U.S. 658, 45 L.Ed. 361; Missouri Pac. R. Co. v. Hathcock, 139 S.W.2d 35; Pauly v. McCarthy, 330 U.S. 802, 91 L.Ed. 1261, reversing 166 P.2d 501; Ellis v. Union Pacific, 329 U.S. 649, 91 L.Ed. 572; Davis v. Shirer, 288 F. 293; Kenny v. Boston Maine R. Co., 92 N.H. 495, 33 A.2d 557; Bly v. Southern R. Co., 183 Va. 162, 31 S.E.2d 564, 32 S.E.2d 659, 172 A.L.R. 584; McGovern v. Northern Pac. Ry. Co., 132 F.2d 213; Satterlee v. St. Louis-S.F. Ry. Co., 82 S.W.2d 69. (2) The evidence shows that plaintiff's injuries resulted solely from his own negligence and carelessness in failing to properly appraise the situation with which he was faced. Baltimore Ohio v. Berry, 286 U.S. 272, 76 L.Ed. 1098; Missouri Pacific Ry. v. Hathcock, 139 S.W.2d 39. (3) The case was pleaded, tried, and submitted under the Federal Employers' Liability Act and there can be no recovery if plaintiff's own negligence was the sole cause of his injury. Plaintiff's evidence shows that his own negligence was the sole cause of his injuries. Therefore, the court should have directed a verdict for defendant. 45 711 U.S.C.A., Sec. 51 et seq.; Wolfe v. Henwood, 162 F.2d 998; certiorari denied 92 L.Ed. 24; Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42, 58 L.Ed. 838; Davis v. Kennedy, 266 U.S. 147, 69 L.Ed. 212; Atlantic Coast Line R. Co. v. Davis, 279 U.S. 34, 73 L.Ed. 601; Chicago, St. P.M. O.R. Co. v. Arnold, 160 F.2d 1002. (4) Witness Feuchter was not qualified to testify that from the standpoint of practical railroading there was nothing to prevent extending the trestle, or putting catwalks or guardrails along the side of the trestle and that it would not interfere with the operation of the railroad, and his answers in this regard were speculative and invaded the province of the jury. Grace v. Union Electric Co., 200 S.W.2d 364; Bebout v. Kurn, 348 Mo. 501, 154 S.W.2d 120; Ambruster v. Levitt Realty Inv. Co., 341 Mo. 364, 104 S.W.2d 74; Fuchs v. St. Louis, 167 Mo. 680, 67 S.W. 610; Sullivan v. Union Electric L. P. Co., 331 Mo. 1065, 56 S.W.2d 97; Clark v. Prue, 151 S.W.2d 487; Pioneer Lumber Co. v. Van Cleave, 279 S.W. 241; 32 C.J.S., secs. 456, 457, 445, 446. (5) There was no pleading to cover witness Feuchter's testimony that there was no artificial illumination, such as floodlights on the west side of the trestle, and that the lantern was "more like a match." Atchison v. Chicago, R.I. P. Ry. Co., 80 Mo. 213; Fuchs v. St. Louis, 167 Mo. 680, 67 S.W. 610; Garven v. Chicago, R.I. P. Ry. Co., 75 S.W. 193. (6) Defendant's offer to prove the custom regarding the construction of trestles in "open country" was probative evidence on the issue of negligence, and refusal of defendant's offer to prove this custom was prejudicial error. Cassin v. Lusk, 277 Mo. 663, 210 S.W. 902; Satterlee v. St. Louis-S.F. Ry Co., 336 Mo. 943, 82 S.W.2d 69. (7) Instruction 1 permitted the jury to find that the trestle was dangerous and unsafe and not a reasonably safe place in which to work if they found that it was dark. There was no pleading of failure to illuminate the trestle. This instruction told the jury that a greater duty rested on defendant than the law imposes. Hogan v. Kansas City Pub. Serv. Co., 322 Mo. 1103, 65 A.L.R. 129, 19 S.W.2d 707; Isaacs v. Smith, 275 S.W. 555. (8) The court erred in refusing Instruction B. The instruction was designed to withdraw plaintiff's charges that defendant negligently caused and permitted the train to be stopped so that the caboose was on the trestle and that defendant negligently failed to stop the train so that the caboose would not be on the trestle. The stopping of a train so that the caboose is on a trestle does not constitute negligence. Berry v. Baltimore Ohio, 43 S.W.2d 782; Cawman v. Pennsylvania-Reading Seashore Lines, 110 F.2d 832, certiorari denied 85 L.Ed. 427. (9) The court erred in refusing Instruction C. The purpose of Instruction C was to present affirmatively to the jury the defense that plaintiff could have safely alighted from the east side of the caboose and that his negligence in alighting from the west side of the caboose was the sole cause of his injuries. Defendant was entitled to have its theory of the case presented affirmatively to the jury. State ex rel. and to the use of Dunklin County v. McKay, 325 Mo. 1075, 30 S.W.2d 83; Wilson v. Thompson, 345 Mo. 319, 133 S.W.2d 331; Gower v. Trumbo, 181 S.W.2d 653; Kimbrough v. Chervitz, 353 Mo. 1154, 186 S.W.2d 461; Baltimore Ohio v. Berry, 286 U.S. 272, 76 L.Ed. 1098. (10) The court erred in refusing Instruction D. The instruction would have informed the jury that plaintiff did not complain that defendant failed to furnish him with an adequate lantern and that they could not return a verdict for plaintiff on such ground. After the erroneous admission of testimony in regard to the adequacy of the lantern this instruction would have been proper. Gutzweiler's Admr. v. Lackmann, 39 Mo. 91. (11) The verdict was so excessive as to indicate that it resulted from prejudice. A verdict which results from prejudice, or disregard of the evidence, or both, cannot be cured by remittitur, and will not be permitted to stand. Chitty v. St. Louis, I.M. S. Ry. Co., 188 Mo. 64, 49 S.W. 868; Bente v. Finley, 83 S.W.2d 155; English v. Thrower, 146 S.W.2d 667. (12) The medical evidence is not sufficient to sustain a verdict of $50,000. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157; Span v. Jackson, Walker Coal Mining Co., 322 Mo. 158, 16 S.W.2d 190; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Mauck v. Atchison, T. S.F. Ry. Co., 154 S.W.2d 73; West v. Kurn, 148 S.W.2d 752.
Mark D. Eagleton and Wm. H. Allen for respondent.
(1) The question whether the defendant railroad company negligently violated the duty which it owed plaintiff to exercise ordinary care to furnish him a reasonably safe place to work was clearly one for the jury. Pauly v. McCarthy, 330 U.S. 802, 91 L.Ed. 1261, 67 S.Ct. 962, reversing, on certiorari, Pauly v. McCarthy, 166 P.2d 501; Cawman v. Pennsylvania-Reading Seashore Lines, 110 F.2d 832, certiorari denied, 311 U.S. 666, 85 L.Ed. 427, 61 S.Ct. 24; Bailey v. Central Vermont R. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444; Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 87 L.Ed. 610, 63 S.Ct. 444, 143 A.L.R. 967; Bly v. Southern R. Co., 183 Va. 162, 172 A.L.R. 584, 31 S.E.2d 564, 32 S.E.2d 659. (2) The rights which the Employers' Liability Act creates are federal rights protected by federal rather than local rules of law. Whether in this case plaintiff made a case for the jury is consequently one to be determined by the law as found in the decisions of the federal courts. Bailey v. Central Vermont R. Co., 319 U.S. 350, 87 L.Ed. 1444, 63 S.Ct. 1062; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 87 L.Ed. 610, 63 S.Ct. 444. (3) The common law duty of an employer to exercise reasonable care to furnish his employees a safe place to work is deeply engrained in the Federal Jurisprudence. It is a duty which becomes more imperative as the risk increases. Reasonable care becomes then a demand of highest supremacy. That is the rule that obtains under the Federal Employers' Liability Act. Bailey v. Central Vermont R. Co., 319 U.S. 350, 87 L.Ed. 1444, 63 S.Ct. 1062; Ellis v. Union Pac. R. Co., 329 U.S. 629, 91 L.Ed. 572, 67 S.Ct. 598; Northwestern P.R. Co. v. Fiedler, 52 F.2d 400. (4) That duty on the part of a carrier is a continuing one, from which it is not relieved by the fact that the employee's work at the place in question is fleeting or infrequent. Bailey v. Central Vermont R. Co., 319 U.S. 350, 87 L.Ed. 1444, 63 S.Ct. 1062; Ellis v. Union Pac. R. Co., 329 U.S. 629, 91 L.Ed. 572, 67 S.Ct. 598. (5) Appellant's contention that plaintiff was negligent and that his negligence constituted the sole cause of his injury is plainly without merit. Plaintiff was obviously not guilty of negligence as a matter of law. And since the evidence fully warranted the jury in finding that plaintiff's injuries resulted "in whole or in part" from the negligent failure of defendant to furnish him a reasonably safe place to work, under the Employers' Liability Act negligence, if any, on his part could not defeat a recovery. Title 45, U.S.C.A., Sec. 51, Act of April 22, 1908, c. 149, as amended August 11, 1939, c. 685; Title 45, U.S.C.A., Sec. 53; Rocco v. Lehigh Valley R. Co., 288 U.S. 275; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. 610; Godsby v. Thompson, 352 Mo. 681, 179 S.W.2d 44. (6) There was no error in admitting the testimony of Feuchter, as an expert, to the effect that there was nothing to prevent the extension of the trestle or the putting of a walkway, catwalk or guardrail along the side thereof. The test of admissibility of expert testimony is not the technical nature of the subject-matter with which the evidence deals, but rather whether the skill or experience of the witness will aid the jury in passing upon a matter with which jurors generally are not familiar, provided it does not involve a conclusion of law. Combs v. Roundtree Construction Co., 205 Mo. 367, 104 S.W. 77; Young v. Wheelock, 333 Mo. 992, 64 S.W.2d 950; Phares v. Century Electric Co., 336 Mo. 961, 82 S.W.2d 91; Fair Mercantile Co. v. St. Paul Fire Marine Ins. Co., 175 S.W.2d 930; Crocker v. Titanium Pigment Co., 47 F.2d 1038. (7) Furthermore, the question of the qualifications of a witness to testify as an expert and the admission and exclusion of expert tesimony are matters within the discretion of the trial court, the exercise of which will not be disturbed on appeal except for clear abuse of such discretion. And there was here no such abuse. Arnold v. Alton R. Co., 348 Mo. 516, 154 S.W.2d 58; Ambruster v. Levitt Realty Inv. Co., 341 Mo. 364, 107 S.W.2d 74; Baker v. Kansas City Pub. Serv. Co., 353 Mo. 625, 183 S.W.2d 873; Stephens v. Kansas City Gas. Co., 354 Mo. 835, 191 S.W.2d 601; Wild v. Pitcairn, 347 Mo. 915, 149 S.W.2d 800; Fair Mercantile Co. v. St. Paul Fire Marine Ins. Co., 237 Mo. App. 511, 175 S.W.2d 930. (8) And there was no valid objection to Feuchter's testimony. Mere general objections were insufficient, and so was the complaint that the testimony "invades the province of the jury." Cole v. Uhlman Grain Co., 340 Mo. 277, 100 S.W.2d 311; Mann v. Grim-Smith Hospital Clinic, 347 Mo. 348, 147 S.W.2d 606; Fair Mercantile Co. v. St. Paul Fire Marine Ins. Co., 237 Mo. App. 511, 175 S.W.2d 930. (9) There was plainly no error in permitting Feuchter to state that there was no artificial illumination of the trestle, nor in permitting him to explain the character and efficiency of the lantern carried by plaintiff. Defendant pleaded that plaintiff's injuries were due to his own negligence in failing to take due precautions for his own safety. On that issue, which was submitted to the jury, testimony that the trestle was not illuminated, that the place was dark, and as to the efficiency or inefficiency of the lantern, was clearly admissible. Baldwin v. Hanley Kinsella Coffee Co., 202 Mo. App. 650, 216 S.W.2d 998. (10) The trial court committed no error in sustaining the objection to the question propounded by defendant's counsel to Feuchter on cross-examination in regard to the custom "as to building catwalks and guardrails on trestles in open country". The condition existing on the narrow ledge of this trestle was obviously one inherently dangerous to an employee whose duties might require him to alight thereon, particularly in the nighttime. No usage or custom can transform a place or practice that is inherently dangerous into one that is reasonably safe. A usage, even of masters, cannot make a place or practice that is inherently dangerous the standard of ordinary care. Schaum v. Southwestern Bell Tel. Co., 336 Mo. 228, 78 S.W.2d 439; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909, Zesch v. Abrasive Co. of Philadelphia, 183 S.W.2d 140; State ex rel. Elliott's Dept. Store Co. v. Haid, 330 Mo. 959, 51 S.W.2d 1015; Olds v. St. Louis Natl. Baseball Club, 119 S.W.2d 1000. (11) Furthermore, the question was not a proper one for the reason that thereby inquiry was made merely as to "custom," whereas if any evidence of custom or usage could have been lawfully adduced for the purpose of attempting to justify the maintenance of the dangerous condition shown by the evidence it would have been essential to show the existence of a general, universal custom among reasonably prudent operators of railroads. Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Fairfield v. Bichler, 195 Mo. App. 45, 190 S.W. 32; Murphy v. Electric Park Amusement Co., 209 Mo. App. 638, 241 S.W. 651. (12) And it is well settled that the extent to which cross-examination will be allowed is a matter resting in the sound discretion of the trial court. Orr v. Shell Oil Co., 352 Mo. 288, 117 S.W.2d 608; Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646, 157 A.L.R. 595; Lehnerts v. Otis Elevator Co., 256 S.W. 819. (13) While Feuchter was shown to have been qualified as a structural engineer, he testified that he had had no experience in railroading or as a railroad engineer; and defendant's counsel, on further cross-examination, developed from him the fact that he knew nothing about "good railroading practice" with reference to the construction of catwalks on trestles, with reference to illumination on trestles in open country, or with reference to the placing of guardrails on trestles in open country. In view of this further cross-examination there is no room to contend that the cross-examination of the witness was unduly restricted or curtailed. Marlow v. Nafziger Baking Co., 333 Mo. 790, 63 S.W.2d 115. (14) There is no merit in appellant's contention that Instruction 1 is erroneous in that it authorizes the jury to find that at the time and place of plaintiff's injury it was dark. For one thing, the fact so required to be found was pertinent on the issue of contributory negligence. (15) And in no event could reversible error be predicated upon the inclusion of those words in the instruction. The instruction required the finding, in the conjunctive, of all of the facts therein hypothesized. By the inclusion therein of the words quoted above, the instruction merely required the jury to find more than was necessary to the returning of a verdict for plaintiff. No prejudice to the defendant could possibly have resulted therefrom. Burneson v. Zumwalt Co., 349 Mo. 94, 159 S.W.2d 605; Wilday v. Missouri-Kansas-Texas R. Co., 347 Mo. 275, 147 S.W.2d 431; Tash v. St. Louis-S.F. Ry., 345 Mo. 1148, 76 S.W.2d 690. (16) Furthermore, testimony that at the time and place of plaintiff's injury it was "dark as pitch" came in without objection. It was consequently proper to instruct on it. Sec. 82, General Code for Civil Procedure, Laws 1943, p. 378. (17) Nor may error be predicated upon the action of the trial court in refusing defendant's withdrawal Instruction B, by which defendant sought to have the court withdraw from the consideration of the jury the charge in the petition that the defendant negligently caused and permitted the train to be so stopped that the caboose was immediately over the trestle, which charge was abandoned by the plaintiff in submitting the case to the jury. The giving and refusal of instructions withdrawing abandoned charges or assignments of negligence is a matter within the discretion of the trial court. Stephens v. Kansas City Gas Co., 354 Mo. 835, 191 S.W.2d 601; Atchison v. Weakley, 350 Mo. 1092, 169 S.W.2d 914; Kick v. Franklin, 345 Mo. 752, 137 S.W.2d 512; Davis v. Buck's Stove Range Co., 329 Mo. 1179, 49 S.W.2d 47; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66. (18) There was no evidence to warrant a finding that it was plaintiff's duty to exercise his own judgment as to which side of the caboose he was to alight from. On the contrary, his undisputed testimony and defendant's rules as well showed that it was his duty to alight from the right or west side of the caboose, the engineer's side of the train. Failure to give a requested instruction will not constitute error unless the instruction is correct in all respects. Berry v. K.C. Public Serv. Co., 343 Mo. 474, 121 S.W.2d 825; McCarthy v. Sheridan, 336 Mo. 1201, 83 S.W.2d 90; Hogan v. K.C. Public Serv. Co., 322 Mo. 1103, 19 S.W.2d 707, 65 A.L.R. 120. (19) Furthermore, the defense predicated upon plaintiff's alleged negligence as constituting the sole cause of his injury was fully submitted by Instruction 3 given at defendant's request. It is not error to refuse an instruction when the subject-matter thereof is covered by the instructions given. Vrooman v. Hill, 347 Mo. 341, 147 S.W.2d 602; Arnold v. May Department Stores, 337 Mo. 727, 85 S.W.2d 748; Bolino v. Illinois Terminal R. Co., 200 S.W.2d 352; Cameron v. Electric Household Stores, 231 Mo. App. 889, 78 S.W.2d 548, certiorari quashed, State ex rel. Electric Household Stores v. Hostetter, 338 Mo. 78, 89 S.W.2d 28. (20) There was obviously no error in refusing defendant's Instruction D, which was designed to inform the jury that plaintiff did not complain that defendant failed to furnish him with a proper and adequate lantern, and to caution the jury not to return a verdict for plaintiff on that ground. The giving or refusing of cautionary instructions is discretionary with the trial court. Harrington v. National Outdoor Advertising Co., 196 S.W.2d 786; Lewis v. Zagata, 350 Mo. 446, 166 S.W.2d 541; Dave v. Atchison, Topeka Santa Fe Ry. Co., 349 Mo. 798, 163 S.W.2d 548; Williams v. Guyot, 344 Mo. 372, 126 S.W.2d 1137. (21) The giving of this instruction could have served no purpose other than to confuse the jury. Gorman v. St. Louis Bridge Material Ry. Co., 325 Mo. 326, 28 S.W.2d 1023. (22) There is no merit in any of defendant's contentions regarding the alleged excessiveness of this verdict. The amount thereof is not such as to even warrant a suggestion that the verdict was the result of passion or prejudice. Furthermore, it is the well settled rule of decision of this court that the amount of a verdict alone will not authorize the reversal of a judgment and the remanding of a cause for a new trial on the ground that the verdict on its face shows passion, prejudice or bias. Joice v. M.K. T.R. Co., 354 Mo. 439, 189 S.W.2d 568, 161 A.L.R. 383; Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126; Taylor v. Missouri Pacific, 311 Mo. 604, 279 S.W. 115; Jones v. Pennsylvania R. Co., 182 S.W.2d 157. (23) In view of the serious and permanent nature of the injuries shown to have been sustained by plaintiff by reason of defendant's negligence, the permanent distortion of the pelvis and the distortion and deformity of the spine whereby he is condemned to a life of pain and suffering, his past and future loss of earnings, and the fact that the evidence shows that by reason of his injuries he will always be incapable of earning anything through manual labor, his only means of livelihood, so that his earning power is utterly destroyed, the verdict of $50,000 is in no wise excessive. Joice v. M.K. T.R. Co., 354 Mo. 439, 189 S.W.2d 568, 161 A.L.R. 383; Span v. Jackson-Walker Coal Mining Co., 322 Mo. 158, 16 S.W.2d 190. (24) In considering the alleged excessiveness of a verdict, the evidence on that issue is to be viewed on appeal in the light most favorable to the plaintiff. It is within the peculiar province of the jury to determine from the evidence the character and extent of the injuries, the loss and suffering, and what compensation should be awarded therefor. And the trial court, in supervising the amount of the verdict, exercises a discretionary power, the exercise of which will not be disturbed on appeal except for obvious abuse thereof. Mooney v. Terminal Railroad Assn., 353 Mo. 1080, 186 S.W.2d 450; Hampton v. Wabash R. Co., 204 S.W.2d 708; Gieseking v. Litchfield Madison Ry. Co., 344 Mo. 672, 127 S.W.2d 700; Jones v. Pennsylvania R. Co., 182 S.W.2d 157. (25) On the question of the alleged excessiveness of a verdict at this time a very important consideration is the greatly reduced purchasing power of the dollar; a matter of which this court takes judicial notice. Hampton v. Wabash R. Co. 204 S.W.2d 708; Mooney v. Terminal Railroad Assn., 353 Mo. 1080, 186 S.W.2d 450. (26) And the court is thoroughly committed to the doctrine that appellate courts will not disturb a verdict for damages on the theory that it is excessive unless it is apparent from the record that the verdict is so grossly excessive as to be unmistakably beyond the bounds of all reason. Mooney v. Terminal Railroad Assn., 353 Mo. 1080, 186 S.W.2d 450; Hampton v. Wabash R. Co., 204 S.W.2d 708; McNatt v. Wabash Ry. Co., 341 Mo. 516, 108 S.W.2d 33; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721.
Action under the Federal Employers' Liability Act, 45 U.S.C.A., § 51 et seq., for personal injuries. Verdict for plaintiff for $50,000, and from the judgment thereon the railroad appeals. Plaintiff was injured while employed by defendant in interstate commerce as rear brakeman or flagman on a south-bound freight train being operated between Tamms, Illinois, and Jackson, Tennessee. He was injured when he alighted in the nighttime from the caboose which had been stopped on a bridge or trestle at Winford Junction, Kentucky, missed his footing, and fell 34 feet to the creek below.
The petition contained numerous charges of negligence, including that of failure to provide plaintiff with a reasonably safe place to work. The answer denied that plaintiff was injured as a result of any negligence or carelessness on defendant's part, and averred that whatever injuries he suffered resulted solely and alone from his own carelessness and negligence. The answer also pleaded contributory negligence on plaintiff's part. Other charges having been abandoned, submission was under plaintiff's charge that defendant failed to exercise ordinary care to furnish him a reasonably safe place to work in these particulars: Stopping the train with the caboose over the trestle, and failure to build a walking platform or to build a guardrail so as to afford a place to stand or walk. On this appeal defendant assigns error in the following: (1) Denial of its motion for a directed verdict; (2) Certain rulings respecting the testimony of plaintiff's witness Feuchter; (3) Giving of plaintiff's instruction No. 1; (4) Refusal of requested instructions B, C, and D; and (5) the amount of the verdict.
Winford Junction is the point at which defendant's line connects with the double-track main line of the Illinois Central whereon the accident occurred. The trestle from which plaintiff fell is a part of that double-track main line, and it lies generally in a north-south direction. Its total length is 824 feet. The switch tower is 2119 feet south of the south end of the trestle. It is the only building of any kind at Winford Junction, and is on the east side of defendant's main line something over 200 feet south of the switch. As defendant's track leaves the Illinois Central's, it curves off somewhat to the west.
The freight train in question was south bound, and, consequently, on the westernmost of the double tracks as it pulled into Winford Junction about 9 P.M., on February 21, 1947. The train consisted of two Diesel engines, 62 freight cars (averaging 48 feet in length) and a caboose. Plaintiff was riding in the caboose, engaged in making out a wheel report when "the brakes went into emergency," and this was his first knowledge that the train was about to stop, although he had previous notice that it would stop that night at Winford Junction "to pick up Mr. Hancock." Plaintiff remained seated until the train stopped. He then got up, got a fusee, two torpedoes, and his lantern, and went out the back door and onto the platform, preparatory to protecting the rear of the train by flagging, as was his duty under defendant's rule 99; however, before  plaintiff had actually gotten down, the engineer signalled to him "to go flag" — one long and three shorts, which meant "right now." There was nobody on the platform with him; he turned on his lantern and started to descend on the west or right side of the caboose; as he did so he carried the lantern in his left hand, and held onto the grab iron with his right; he did not know he was on the trestle; it was "dark as pitch" and "wasn't raining." Standing with both feet on the bottom step, facing west, he "shined the lantern at the steps and saw rock there. I shined it out further and saw more rock. I thought it was 3 or 4 feet wide." On cross-examination plaintiff stated that in swinging his lantern out to see what was below, he saw rock, and "they naturally looked kind of white," and he thought he saw the rock extending out 4 or 5 feet from the side of the caboose. The lantern did not disclose the fact he was on the trestle, and when he stepped off the bottom step after making the examination, he scraped the edge of the trestle, and fell to the creek 34 feet below.
"99. When a train stops under circumstances in which it may be overtaken by another train, the flagman must go back immediately with flagman's signals a sufficient distance to insure full protection, placing two torpedoes, and when necessary, in addition, displaying lighted fusees. When recalled, or relieved by another flagman, and safety to the train will permit, he may return."
The trestle is 824 feet in length, and is made up of three distinct sections. The center section is the bridge proper, 126 feet in length, having only ties beneath the rails, except an area about 6 feet wide between the north and south-bound tracks which is ballasted. The entire distance between the two sets of tracks is 11 feet, 3 inches. The north and south sections of the trestle are, respectively, 507 and 191 feet in length. Both of these sections are rock filled with the top ballasted with white crushed rock. The accident occurred about 100 feet north of the south end of the south section. At this point, as along the entire length of the rock-filled portions, the distance from the inside of the west rail of the south-bound track to the west edge or "drop off" of the trestle is 54 inches; from the outside edge of that rail to the same point, 51 inches; beyond the trestle, both north and south, there is an 84-inch shoulder outside of the western rail. The caboose has 3 steps, "about a foot apart." The bottom step is approximately 2 feet above the rail. According to plaintiff's evidence, the overhang is such as to leave only 2 to 2½ feet from the west edge of the bottom caboose step to the west edge of the trestle. (Defendant's assistant bridge foreman testified he measured that distance by the use of a plumb bob and rule, and found it to be 32 inches.) There was no catwalk, platform or guardrail on the trestle where plaintiff undertook to alight. The photographs show a ballasted platform (with guardrail) about 10 feet long and extending out from the trestle about 6 feet on the east side of the south section of the trestle. The plaintiff testified he descended on the west or right side because he had been taught to get off on the right side of a train so as to work on the engineer's side, and in order to give the engineer a chance to see him. On cross-examination he said that everybody taught him to get off on the right side from the time he started railroading; that flagmen work on the engineer's side; that he works on the engineer's side so as to get off where he can be seen by the engineer. In this connection he introduced rule 7 (a).
"7 (a). Signals must be given and acted upon strictly in accordance with the rules. Trainmen, yardmen, enginemen and others must keep a constant lookout for signals. Those giving signals must locate themselves so as to be plainly seen; signals must be given in such a manner that they can be definitely understood."
Did the evidence make it a jury question as to whether defendant negligently breached its duty to furnish plaintiff with a reasonably safe place to work? Defendant takes the position, and asks this court to declare as a matter of law, that it met its full duty in the respect mentioned by providing at the place in question a rock-ballasted trestle the deck of which extended 32 inches beyond the caboose steps on the west side, and something over 15 feet beyond the caboose steps on the other side, but which did not have a catwalk, platform or guardrail. The question is to be approached in the light of those recent decisions of the Supreme Court of the United  States in FELA cases as thus referred to in Louisville N.R. Co. v. Botts, 173 F.2d 164, 167: "The opinions of the Supreme Court have declared that it is `the clear Congressional intent that, to the maximum extent proper, questions in actions arising under the Act should be left to the jury,' Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 451, footnote 30, 87 L.Ed. 610, 143 A.L.R. 967; that such cases may not be taken from the jury merely because the question of liability is `close or doubtful,' Bailey v. Central Vermont Ry., 319 U.S. 350, 354, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444; that the jury has the right to make `all reasonably possible inferences' from such probative facts in the evidence as it chooses to accept, and `It is not the function of a court to search the record for conflicting circumstantial evidence in order to take the case away from the jury on a theory that the proof gives equal support to inconsistent and uncertain inferences,' Tennant v. Peoria P.U. Ry. Co., 321 U.S. 29, 32-35, 64 S.Ct. 409, 411, 412, 88 L.Ed. 520; that in any choice between possible inference `a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference,' but `Only when there is a complete absence of probative facts to support the conclusion reached does reversible error appear,' Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 744, 90 L.Ed. 916; and that the assumption that, on an issue of liability, `juries will invariably decide . . . against railroads' is `contrary to fact,' and courts may not act on the theory that `juries will fall short of a fair performance of their constitutional function,' but they must assume that a jury `finds facts only because they are proved.' Wilkerson v. McCarthy, 69 S.Ct. 413, 417, 418."
The three authorities cited first by defendant, and therefore, under rule 1.08, principally relied on by it, are: B. O.R.R. Co. v. Berry, 286 U.S. 272, 52 S.Ct. 510, 76 L.Ed. 1098, reversing Berry v. B. O.R.R. Co., (Mo.) 43 S.W.2d 782; Cawman v. Pennsylvania-Reading Seashore Lines, 110 F.2d 832, certiorari denied, 311 U.S. 666, 61 S.Ct. 24, 85 L.Ed. 427; and Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. Plaintiff, contending the question was clearly one for the jury, similarly relies on the same Cawman and Bailey cases, and Pauly v. McCarthy, 330 U.S. 802, 67 S.Ct. 962, 91 L.Ed. 1261, reversing, on certiorari, Pauly v. McCarthy, et al., Trustees, (Supreme Court of Utah), 166 P.2d 501.
In the Cawman case, plaintiff's decedent, an experienced railroad brakeman, was killed when he stepped from the steps of his caboose which projected into space when the caboose was stopped at night on a trestle. The trial court, upon the authority of B. O.R.R. Co. v. Berry, supra, directed a verdict for defendant. Judgment reversed and new trial granted on appeal to the Circuit Court of Appeals, Third Circuit, where it was held that whether the failure of the railroad to place a light, guardrail or catwalk on the trestle was a breach of its obligation to provide plaintiff a safe place to work was for the jury. ( 110 F.2d 832.) B. O.R.R. Co. v. Berry, supra, was distinguished, the court saying [l.c. 834]: "The theory of the Berry case is negligence of personnel. There is no mention in either opinion of failure of materiel. In the case at bar, there is such mention and in, so to speak, full bodied terms. The trestle from which the plaintiff's intestate fell was that and nothing more. There was no light, guardrail, or catwalk for the protection of those whose duties might require their physical presence on the non-existent flooring. We think this omission may constitute a breach of the conceded obligation to provide a safe place to work. The cases are collected in 45 U.S.C.A. § 51, note 289, p. 185, (1939 Supp.) p. 49. That obligation assumes as many forms as there are places to work. The citation of authority, except by way of analogy, is not, therefore, profitable." Even if the authority of the Berry case has not been destroyed by the later decisions of the Supreme Court to which we have referred, we think the ground on which it was distinguished in  the Cawman case is valid, and that, for the same reason, it is not controlling here.
In Bailey v. Central Vermont Ry., supra, plaintiff's decedent was a section hand whose death resulted from injuries sustained when he fell 18 feet from a dry bridge to a crossing below while opening the hopper of a car loaded with cinders (spotted on the bridge) to be dumped through the railroad ties onto the roadway below. The available footing extended about 12 inches beyond the outside of the car. Judgment for plaintiff was reversed by the Supreme Court of Vermont ( 113 Vt. 8, 28 A.2d 639), the court holding a directed verdict should have been granted because negligence on the part of the railroad was not shown. On certiorari, the Supreme Court of the United States reversed, holding that there was sufficient evidence to go to the jury on the question of whether the railroad was negligent in failing to use reasonable care in furnishing Bailey with a safe place to work. In so doing, the court said: "Sec. 1 of the Act makes the carrier liable in damages for any injury or death `resulting in whole or in part from the negligence' of any of its `officers, agents, or employees'. The rights which the Act creates are federal rights protected by federal rather than local rules of law. (Citing cases.) And those federal rules have been largely fashioned from the common law . . . except as Congress has written into the Act different standards. Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 63 S.Ct. 444, 87 L.Ed. . At common law the duty of the employer to use reasonable care in furnishing his employees with a safe place to work was plain. 3 Labatt, Master Servant (2d ed.) § 917. That rule is deeply engrained in federal jurisprudence. Patton v. Texas P. Ry Co., 179 U.S. 658, 664, 21 S.Ct. 275, 277, 45 L.Ed. 361, and cases cited; Kreigh v. Westinghouse, C., K. Co., 214 U.S. 249, 256, 257, 29 S.Ct. 619, 621, 622, 53 L.Ed. 984; Kenmont Coal Co. v. Patton, 6 Cir., 268 F. 334, 336. As stated by this Court in the Patton case it is a duty which becomes `more imperative' as the risk increases. `Reasonable care becomes, then, a demand of higher supremacy, and yet, in all cases it is a question of the reasonableness of the care, reasonableness depending upon the danger attending the place or the machinery.' 179 U.S. page 664, 21 S.Ct. page 278, 45 L.Ed. 361. It is that rule which obtains under the Employers' Liability Act. See Coal Coke Ry. Co. v. Deal, 4 Cir., 231 F. 604; Northwestern Pac. R. Co. v. Fielder, 9 Cir., 52 F.2d 400; Thomson v. Boles, 8 Cir., 123 F.2d 487; 2 Roberts, Federal Liabilities of Carriers (2d ed.) § 807. That duty of the carrier is a `continuing one' (Kreigh v. Westinghouse, C., K. Co., supra, 214 U.S. page 256, 29 S.Ct. page 622, 53 L.Ed. 984) from which the carrier is not relieved by the fact that the employee's work at the place in question is fleeting or infrequent." See, also, Bly v. Southern Ry. Co., 183 Va. 162, 172 A.L.R. 584; Ellis v. Union Pac. R.R. Co., 329 U.S. 629, 67 S.Ct. 598, 91 L.Ed. 572.
We hold that, under the evidence and the authorities above cited, the question of whether the railroad was negligent in failing to furnish plaintiff with a reasonably safe place to work was for the jury.
Defendant also contends that a verdict should have been directed for it because the evidence shows that plaintiff's injuries resulted solely from his own negligence and carelessness in failing to properly appraise the situation with which he was faced. It is true that plaintiff testified that the reason he fell was because it looked like, or he thought, there was about 3 or 4 feet of gravel; and that if he had known he was on a trestle, he could have held on until he got back behind the caboose. Obviously, it does not appear as a matter of law that the sole proximate cause of plaintiff's injuries was his own negligence, and so the question was one for the jury.
Plaintiff's witness Feuchter had examined the trestle, and made photographs of it which were in evidence. He was permitted to testify as an expert that from the standpoint of practical engineering  there was nothing to prevent extending the trestle, or putting catwalks or guardrails along its sides, and that to do so would not interfere with the operation of the railroad. The witness, a consulting engineer since 1924, was a graduate of Cooper Institute of Technology of New York City; he had been employed in an engineering capacity for several years by a firm of St. Louis consulting engineers; he had been Traffic Engineer for the City of St. Louis for seven years before going into military service in 1942; he served as an engineer overseas. The witness testified he was experienced as a structural engineer; that he was not a railroad engineer; that his only experience in railroading was "in structural construction of railroad coal hoppers for unloading coal, and switch tracks" in yards of plants designed in part by him, but that he had had nothing to do with the construction of trestles or bridges for railroads. Defendant contends that these admissions so completely disqualified the witness that allowing him to testify amounted to an abuse of the trial court's discretion, and, therefore, reversible error. We do not agree. We think the matter of the feasibility of extending the trestle by the construction of catwalks or guardrails was not exclusively within the knowledge of an engineer experienced in railroad construction, and in view of the admitted training and experience of this witness as a structural engineer, we hold the court did not err in overruling defendant's objections to his qualifications as an expert.
It is next urged that it was error to permit Feuchter to testify to the effect that there was no artificial illumination — "flood lights or any type of light — that would illuminate the west side of the trestle." The question eliciting this reply was objected to because "it assumed there should be illumination" and because there was no allegation in the petition that would justify the question. Defendant also complains, on substantially the same grounds, that the court refused to strike that portion of Feuchter's testimony describing the switchman's lantern (which had been introduced in evidence) wherein he stated it had no "optical unit, no reflector, or no lens," and that, as compared with the ordinary flashlight, this one was "more like a match . . . it can be seen in the distance, but there is no reflector behind it." It is true the petition did not charge negligence in failing to illuminate the trestle, but defendant's answer did set up that plaintiff's injuries resulted solely from his own negligence, and also a plea of contributory negligence. It is manifest that on these issues it was competent to show the circumstances under which plaintiff's duties required him to alight from the caboose on the trestle, which included the fact of darkness. Nor do we think, as defendant contends, that the "disparaging remarks regarding the lantern injected into the case and into the minds of the jury a duty which had not been pleaded."
Defendant complains that the court erred in excluding its offer of proof (as to the witness Feuchter) in regard to the custom of building catwalks and guardrails on trestles in "open country." The offer arose on cross-examination of the witness, and the matter covers several pages of the transcript. It is difficult to piece together the running fire of exchanges between counsel and to determine the precise offer finally made, in view of tentative offers to accept several suggested amendments. As nearly as we are able to determine the matter, the offer was that the witness would testify that "where there is no working conditions for the man these are not found. In other words, if the man is not required to do work around there then guardrails and walks would not be necessary on trestles." The offer was denied, which was bound to have been harmless, even if error, because of these questions and answers thereafter developed on cross-examination of this witness by defendant's counsel:
"Q Do you know anything about good railroading practice with reference to the constructing of catwalks on trestles?
* * * * * * * *
Q Do you know anything about good railroading practice with reference to the  placing of guardrails on trestles in open country, such as this trestle was in?
A No, sir.
* * * * * * * *
Q Have you ever seen any guardrails on any trestle in open country where no work was to be performed by railroad men?
A No, sir.
Q Have you ever seen a catwalk on a trestle in open country where no work was to be regularly performed by the railroad men?
A No, sir."
Defendant's refused instruction B sought to withdraw plaintiff's charges that the defendant negligently caused and permitted the train to be stopped so that the caboose was immediately over a trestle or bridge spanning a creek, and that defendant negligently failed to stop the train at a place where the caboose would not be immediately over said bridge. In support of its position that it was error to refuse the instruction, we are cited to Berry v. B. O.R.R. Co., 43 S.W.2d 782. Plaintiff says these charges were abandoned by him in submitting the case to the jury, so that the refusal of an instruction withdrawing abandoned charges in the petition was a matter within the discretion of the trial court. However, we do not so understand the record, because plaintiff's instruction No. 1 submitted the hypothesis, among others, that "defendant stopped its train so that the caboose in which plaintiff was riding was immediately over a trestle spanning a creek, the bottom of which was some thirty-four feet below," and required a finding that by reason of that fact, among others, "said place on said trestle was dangerous and unsafe and not a reasonably safe place in which to work, . . . and that in thus furnishing said place for plaintiff to work . . . the defendant did fail to exercise ordinary care and was guilty of negligence, etc." Defendant makes no attack on this portion of instruction No. 1. The answer to defendant's contention is this: Unlike the case at bar, the negligence charged in the Berry case was not that the bridge was not a reasonably safe place to work, but that the railroad was negligent in stopping the caboose of a 42-car train on a trestle only 40 feet long, and in that the conductor directed or permitted the plaintiff to alight there. This distinction was pointed out in Pauly v. McCarthy, 166 P.2d 501, where the Supreme Court of Utah declined to rest the decision in that case on the authority of the Berry case.
We find no evidence that it was plaintiff's duty to exercise his own judgment as to which side of the caboose he would alight from. His undisputed testimony was to the effect that it was his duty to alight from the right or west side of the caboose. Consequently, defendant was not entitled to instruction C, which told the jury that if plaintiff could have alighted from the east side of the caboose with safety, and without any danger of falling from the trestle, and if it was his duty to exercise his own judgment as to which side he would alight from, and that he negligently alighted from the west side, and that such negligence was the sole cause of his injuries, the verdict should be for the defendant.
In this connection we treat the assignment that it was error to refuse defendant's instruction D, which told the jury: "The Court instructs the jury that there has been some testimony in the case with reference to the amount of light that was given by the lantern which plaintiff had at the time of the occurrence complained of. In this connection you are instructed that plaintiff does not complain that defendant failed to furnish him with a proper and adequate lantern, and you cannot return a verdict for plaintiff on such ground." We agree with plaintiff that the jury did not need to be told that they could not return a verdict for plaintiff on a ground not mentioned in the instructions given them. The giving or refusal of cautionary instructions is a matter resting in the discretion of the trial court. Harrington v. National Outdoor Advertising Co., 355 Mo. 524, 196 S.W.2d 786.
Instruction No. 1 is assailed as permitting the jury to find that the trestle was "dangerous and unsafe and not a reasonably safe place to work" if, among other things, the jury should "further  find and believe that at said time and place it was dark and in the night time." Defendant contends that "dark" refers to the testimony regarding lack of floodlights, and, therefore, that the instruction assumes there was a duty to illuminate, and authorizes the jury to find that the failure to illuminate was a breach of defendant's duty when no such charge of negligence had been made. What was said respecting the admission of the testimony of the witness Fcuchter touching artificial illumination fully answers the question here presented.
A more troublesome question is presented with reference to the amount of the verdict. Plaintiff was injured February 21, 1947; his age, 52; earnings, $300 per month (15-½% increase to men in his type of service effective January 1, 1948.) His fall rendered him unconscious for 30 or 40 minutes, and then he was taken from Winford Junction to a hospital in Cairo, Illinois, before being transferred to the Missouri Pacific Hospital in St. Louis. He was hospitalized one month and twenty-seven days. From a notation on his hospital chart it appears that he returned there as an outpatient on May 20, 1947, and was directed to return in one month; however, there is nothing in the record to indicate he ever returned.
Plaintiff testified that his pelvis was broken "in four or five places," and his spine bent or fractured. Previously he had had no difficulty with his spine or pelvis, but that in October, 1945, he suffered an injury to his left knee, necessitating absence from work for six months; that he returned to work in April, 1946, and worked steadily down to the date of the accident. He further testified with reference to his condition at the time of the trial that his pelvis, spine and back hurt him all the time, and he could not "get around to do any good." He used crutches for about six months, and at the time of the trial he was using a cane which he had tried four or five times to discard, but was unable to do so because "it hurts me so I can't walk without it." He was wearing a Taylor brace strapped about his body with steel supports. He testified that in order to get relief from his constant pain, he lies down about half of the time, and also massages his back about twice a day; if he walks too much the pain increases, and aside from walking, when standing still or sitting, he has pain. He has not done any work of any kind since the accident, nor earned any money or wages.
Three doctors testified concerning plaintiff's injuries — Drs. Levey and Pernoud, who were plaintiff's witnesses, and Dr. Lembeck (defendant's witness), who had charge of plaintiff's case at the Missouri Pacific Hospital. Of these, only Dr. Pernoud thought plaintiff to be permanently disabled. Dr. Levey did not examine or treat plaintiff, and he was unable to express an opinion on the question.
Dr. Levey, an X-ray expert, found from his X-rays that plaintiff has a deformity due to fracture of the right ischium (pelvis) with a little of the fracture extending through the bone at the lower border of the hip joint; also at the lower part of the right side of the pelvis was another area of deformity due to fracture extending through the pubic bone; "the right anterior part of the pelvis is depressed, pushed downward, as compared with the opposite side. There is a squeezing in, or deformity of the entire right half of the pelvis, affecting particularly the front part of this pelvis. The pubic bone . . . is depressed and pulled away from the opposite bone, with which it is normally in alignment. This section should be in line with the left pubic bone and should fall directly downward at the same angle and same level as the left pubic bone. We have the right pubic bone on this side depressed downward." Across the middle of the left pubic bone, he found an irregular density that might have been the result of a previous incomplete fracture that had healed prior to the taking of the picture; that the crack had healed with density and with no change of contour of the bone. He further testified that the opening shown between the right side of the pelvis and the left, the symphysis pubis, is a cartilaginous joint, a space containing cartilage and ligaments that bind the two front parts of the pelvis together. And, referring to the pelvis,  he said that that part of plaintiff's body was very definitely deformed or distorted; that the deformity was due to fragments there, displacement of part of the bone structure of the pelvis due to fractures.
Dr. Levey, testifying from an anterior-posterior X-ray view of the lumbar region of plaintiff's spine from the pelvis up to the chest, found that it showed a compression of the second lumbar vertebra on the left side thereof, and a compression of the fourth lumbar vertebra on the right side, resulting in an S shaped curve of the spine, called scoliosis; that in that connection compression is synonymous with the word fracture; that a compression fracture is where the bone has been jammed down and pressed into itself.
Dr. Levey also referred to an X-ray of plaintiff taken by him two weeks before the trial, which he said showed that the depression of the right pubic bone was still present, as well as the deformity of the right side of the pelvis; that the "distortion and deformity and depression and displacement on the right side of the pelvis" were still shown; that there was "no appreciable difference in this and the one taken ten months before," which would indicate a "fixed displacement and deformity."
Dr. Pernoud first examined plaintiff on May 19, 1947, at which time plaintiff was walking with two crutches. He testified that plaintiff walked with a definite limp, with his pelvis and lower spine more or less fixed; that his pelvis was tilted down on his right side, and he had a curvature of the spine in the lumbar region, an S shaped curve of his spine; that the top of the sacral bone — "the keystone bone" — opposite the point where Dr. Levey showed the symphysis pubis, is tilted to the left; that plaintiff had sustained compression fractures of the second and fourth lumbar vertebrae, and the witness prescribed a strong lumbar belt. He further testified: "Both ramus, limbs or branches of the right pubic bone were broken, with deformity and malposition. And symphysis pubis, where the pubis joins in the front, it's separated in the front and the right side is pushed down. The right superior ramus is broken and extends into the socket which forms the hip joint."
Dr. Pernoud further testified that the displacement, distortion and deformity of the right side of the pelvis is "a fixed condition that will remain in that condition from here on out, it will stay in a permanent condition." In answer to the question as to plaintiff's ability to work under conditions present at the time of the trial, the witness said: "I would say he is wholly incapacitated from doing any kind of manual work that would entail working and walking and being on his feet, not only at the present time but in the future." He further testified that the pain which plaintiff said he suffered would continue in the future.
Dr. Lembeck, who had charge of the treatment of plaintiff at Missouri Pacific Hospital, found when plaintiff was admitted to the hospital that he had a "fracture of the pelvis, superior ramus, on the right, a fracture of the inferior ramus, just below that on the right; and a separation of the symphysis pubic." The separation at the symphysis pubic was a downward displacement of 3/8 inch on the right. An X-ray taken April 1, 1947, showed these fractures and a fracture of the pubic bone in midline on the left. No other fractures were indicated. From an X-ray taken by Dr. Levey, Dr. Lembeck found that the fractures on the right side of the pelvis were "healing in good position"; and from another of Dr. Levey's X-rays it appeared that "the weight is borne in the hip joint in the left and in the hip joint in the right. That's normal alignment. The hip socket is not disturbed in the right or left." This X-ray showed that the fractures to the right side of the pelvis had healed in good position and that the displacement of the symphysis pubis still existed in the same amount. The effects would be:
"Q How long does that healing take?
A Ordinarily a fracture of the pelvis disables a patient six months to a year.
Q After a year's time do you see anything in the pictures you have seen here, or any of your observations of the plaintiff while he was your patient, to indicate any incapacity or inabilities, as result of injury.  that would exist at this time?
A No, I don't. The fracture of the superior ramus has healed. The fracture of the inferior ramus has healed, and that separation would be held by the normal capsule and fascia in that region.
Q Would that separation be enough to incapacitate a man from working at this time?
A That separation? I don't think it would. . . . I last examined him at the time he was discharged from the Hospital, April 18, 1947. I haven't seen him since. At that time it was my opinion he would be able to resume his regular work and perform hard, manual labor."
The hospital record shows this notation when plaintiff returned as an outpatient: "May 20, 1947, fracture of pelvis with separation of symphysis pubis. Continued with crutches. Return in one month. Doing well. No pain in pelvis. Weight bearing, motions of hip are good. Dr. C.C. Drace."
The question with which we are here dealing is one so frequently before the court that it would serve no useful purpose to restate the considerations affecting it, such as the size of awards permitted to stand in comparable cases, economic conditions, the fact there is no mathematical formula or accurate scale for determining whether and how much a verdict is excessive, etc. See Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157; Joice v. Missouri-Kansas-Texas R. Co., 354 Mo. 439, 189 S.W.2d 568, where the cases are reviewed, and the injuries and amounts awarded are set out at some length. Joice's $65,000 award was reduced on appeal to $50,000. His injuries were more extensive than in the case at bar, and his case was decided in 1945. The largest award this court has permitted to stand is $80,000. Counts v. Thompson, 359 Mo. 484, 222 S.W.2d 487. There the verdict was for $165,000, which the trial court reduced to $140,000, and this court on appeal to $80,000, for loss of both legs and injuries to arms, shoulders and back so as to prevent use of artificial limbs. In a somewhat similar case arising before the postwar inflation period, a verdict of $85,000 was reduced to $40,000 where both of plaintiff's legs had been amputated in such manner that he could not use artificial legs. (Aly v. Terminal R. Assn., 342 Mo. 1116, 119 S.W.2d 363.) In Smiley v. St. Louis-San Franciso Ry. Co., (decided July 11, 1949, 359 Mo. 474, 222 S.W.2d 481), verdict for switchman for $50,000, reduced on appeal to $27,500 — loss of leg and nervous condition.
Plaintiff's injuries are much less severe than those in the Counts case, and probably more disabling than those in the Smiley case. In any event, we are of the opinion that the award is excessive, and that the judgment should not be permitted to stand for more than $42,500. Therefore, if plaintiff will, within 10 days from the date of filing this opinion, enter here a remittitur of $7,500, the judgment will be affirmed for $42,500; otherwise, it will be reversed and the cause remanded. All concur.