Counts v. Thompson

Full title: PLESS COUNTS, Respondent, v. GUY A. THOMPSON, Trustee, MISSOURI PACIFIC…

Court: Supreme Court of Missouri, Division One

Date published: Jul 11, 1949

359 Mo. 485 (Mo. 1949)

222 S.W.2d 487

Opinion

No. 40944.

July 11, 1949.

SUMMARY OF DECISION

Plaintiff was injured in a switching movement when the engineer failed to observe his signals and ran over a lighted fusee. Plaintiff's instructions on these issues and on the burden of proof and the measure of damages are sustained. Rejection of evidence as to experience with artificial legs was within the discretion of the trial court. Sustaining an objection to an improper jury argument was sufficient action. The remittitur practice where there is an excessive verdict does not violate constitutional rights and may be applied in an action under the Federal Employers' Liability Act. A verdict of $165,000, reduced in the trial court to $140,000, was still excessive by $60,000.

HEADNOTES

1. NEGLIGENCE: Trial: Instructions Read Together: Finding of Negligence Required. When instructions I and II are read with other instructions, they do not authorize a verdict for plaintiff without a finding that the hypothesized facts constituted negligence.

2. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Injury During Switching Movement: Duty of Engineer to Plaintiff: Railroad Rules for Protection of Employees. Defendant's engineer engaged in a night switching movement owed a duty to plaintiff to observe and act upon plaintiff's signals. And defendant's rules against running over a lighted fusee were for the protection of employees as well as equipment.

3. NEGLIGENCE: Burden of Proof Instruction Not Erroneous. The burden of proof instruction, when read as a whole, was not erroneous with respect to the defense of contributory negligence.

4. DAMAGES: Federal Employers' Liability Act: Diminution Through Contributory Negligence: Future Hospital and Medical Services: Instruction Not Erroneous. Plaintiff's instruction on the measure of damages was not erroneous because it failed to mention diminution of damages on account of contributory negligence, as it sufficiently referred to another instruction on such issue. And the issue of future hospital and medical services was supported by evidence.

5. DAMAGES: Evidence: Experience with Artificial Legs: Rejection of Evidence: No Abuse of Discretion. The trial court did not abuse its discretion in rejecting the evidence of the experience of a particular individual with artificial legs.

6. TRIAL: Improper Jury Argument: Objection Sustained: Sufficient Action. Sustaining an objection to an improper jury argument was sufficient, a mistrial not being asked until after the jury had commenced its deliberations.

7. TRIAL: Oral Answer to Question by Juror: No Error Shown. It was not error for the trial judge to answer a question of a juror as to fees allowed to plaintiff's attorney. And the answer did not assume that plaintiff would get a verdict.

8. DAMAGES: Constitutional Law: Federal Employers' Liability Act: Verdict Subject to Remittitur. Constitutional rights of trial by jury and due process are not violated by the practice of making an excessive verdict subject to remittitur. And the Federal Employers' Liability Act does not prevent the application of such a rule of practice and procedure.

9. DAMAGES: Verdict Excessive. A verdict of $165,000 for loss of both legs and other injuries was reduced to $140,000 in the trial court, but is still excessive by $60,000.

Appeal from Circuit Court of City of St. Louis; Hon. William B. Flynn, Judge.

AFFIRMED ( subject to remittitur).

Thomas J. Cole, Oliver L. Salter, Ragland, Otto. Potter Embry and Leon P. Embry for appellant.

(1) The trial court erred in not granting appellant's requests that the jury be discharged on account of the inquiry, addressed to the court by the jury, viz., "What is the maximum fee or percentage basis allowed by Missouri law to plaintiff's counsel?" because the inquiry shows improper conduct on the jury's part in considering an element wholly improper and prejudicial to appellant, and the verdict should be regarded as tainted thereby. The size of the verdict in this case ($165,000) bespeaks anxious judicial scrutiny. Chlanda v. Transit Co., 213 Mo. 244, 112 S.W. 249. (2) The foregoing inquiry was sent by the jury to the court: it was in the words above quoted; and was admitted by the jury, in open court, to be its inquiry. No affirmative showing is required that the subject matter of the inquiry influenced the verdict. The very nature of the inquiry was such that the jury should have been discharged. Texas P. Ry. Co. v. Van Zandt, 44 S.W.2d 950; St. L.S.W. Ry. Co. v. Lewis, 5 S.W.2d 765; 64 C.J., p. 1021, sec. 811; Nocero v. Denitto, 208 N.Y.S. 601; McLeod v. Ry. Co., 71 Iowa 138, 32 N.W. 246; City of Gallatin ex rel. v. Murphy, 217 S.W.2d 400. The jury having inquired, after retiring to deliberate about the potential amount of respondent's attorney fees, the trial court erred in calling the jury in, and orally instructing it that there was no law regulating that matter and that it was a matter of contract, and in then and there calling the jury's attention only to Instructions XI and VI, because instructions must be in writing and it was, therefore, error to give the oral instructions. Sec. 105, Civil Code of Missouri; Fitzsimmons v. Commerce Trust Co., 200 S.W. 437; Boyd v. Pennewell, 78 S.W.2d 456. (3) Such oral instructions prejudicially emphasized the fact that there is no maximum for attorney fees and, since the only written instructions to which the court referred the jury, viz., Instructions XI and VI, were instructions dealing only with the amount of damages, if any, the court's reference thereto prejudicially emphasized them, presupposed a verdict for damages, and naturally tended to indicate to the jury that the court presupposed and assumed that respondent was entitled to, and would get, a verdict for damages. A trial judge should, at all times, maintain an impartial and neutral attitude in his rulings and his demeanor so as not to influence the jury. Kribs v. Jefferson City Light, H. P. Co., 215 S.W. 762; Clear v. Van Blarcum, 241 S.W. 81; Vaughn v. May, 9 S.W.2d 156; Hertzman v. Drazen, 253 S.W. 431. (4) The nature of the occurrence and of the oral instructions given by the court was such that it cannot be determined that no prejudice to appellant resulted therefrom. Therefore, the same constituted reversible error. Hartgrove v. Chicago, B. Q. Railroad Co., 358 Mo. 971, 218 S.W.2d 557. (5) The trial court erred in refusing to permit appellant to use one Raymond Ikemeyer as a witness, and in refusing to permit appellant to show by Raymond Ikemeyer what his experience with artificial limbs was. Testimony is not to be excluded, on the grounds of irrelevancy and immateriality, because it may be inflammatory but only if its tendency is to draw the jury's attention away from the issues to be resolved. Hungate v. Hudson, 353 Mo. 944, 185 S.W.2d 646; Luechtefeld v. Marglous, 151 S.W.2d 710. (6) This is not a situation wherein appellant undertook to produce another double amputee as an exhibit of a condition like respondent's and to show that the former's condition was the result of some other cause, as in — Moss v. May Dept. Stores Co., 31 S.W.2d 566. (7) The purport of respondent's evidence and of his counsel's examination of witnesses was obviously intended to build up the impression that no one — not just the respondent — with both legs off above the knees, could very successfully use artificial limbs, and that question thereby became and was a material one to be resolved by the jury, in evaluating respondent's injuries, in event of a plaintiff's verdict. Being material on that question, Mr. Ikemeyer's testimony could not properly be excluded even if it was, in fact, incompetent on some other ground or grounds. In re Jamison's Estate, 202 S.W.2d 879; Johnson v. Minihan, 355 Mo. 1208, 200 S.W.2d 334; Rentfrow v. Thompson, 348 Mo. 970, 156 S.W.2d 700. (8) Evidence of even doubtful competency should go to the jury for its evaluation. Luechtefeld v. Marglous, 151 S.W.2d 710; 20 Am. Jur., p. 244. (9) The trial court erred in not sustaining appellant's request to discharge the jury because of the argument of respondent's counsel to the jury. It is always improper for counsel to indicate to the jury that he knows something not revealed by the evidence. Mooney v. Terminal Railroad Assn., 353 Mo. 1080, 186 S.W.2d 450. (10) The argument was calculated to indicate to the jury that counsel knew that, no matter how small the verdict might be, the defendant would nevertheless appeal — all of which would tend to irritate the jury against appellant and arouse the jury's animosity toward appellant. Arguments, likely so to result, are reversible error. Walsh v. Terminal R. Assn., 353 Mo. 458, 182 S.W.2d 607; Dodd v. M., K. T.R. Co., 353 Mo. 799, 184 S.W.2d 454. (11) The matter of appeal or no appeal was not a proper matter for the jury's consideration. Stepp v. Texas P. Ry. Co., 20 S.W.2d 324. (12) The trial court erred in giving respondent's Instruction VII. Respondent's damages, if any, were subject to proportionate reduction because of any contributory negligence. 45 U.S.C.A., Sec. 53. (13) It was error for the court, by the phraseology of Instruction VII, to exclude the evidence offered by respondent from the jury's consideration, and to restrict the jury's consideration to appellant's evidence, on the issue of contributory negligence. Barr v. Mo. Pac. R. Co., 37 S.W.2d 927; Chaar v. McLoon, 304 Mo. 238, 263 S.W. 174; Trower v. M., K. T.R. Co., 347 Mo. 900, 149 S.W.2d 792; Carson v. Evans, 351 Mo. 376, 173 S.W.2d 30; Murray v. Mo. Pac. Ry. Co., 101 Mo. 236, 13 S.W. 817; Cook v. Mo. Pac. Ry. Co., 94 Mo. App. 417, 68 S.W. 230. (14) Said instruction, by use of the word "convinces", erroneously imposed upon appellant the burden of proving contributory negligence beyond a reasonable doubt. It is error for an instruction to convey the idea that sustaining the burden of proof means proving beyond a reasonable doubt. Seago v. N.Y. Central R. Co., 349 Mo. 1249, 164 S.W.2d 336. (15) The trial court erred in giving respondent's Instruction I because independent of appellant's rules 11 and 11 (a), there was no basis for hypothesizing, as said instruction did, a duty to stop and extinguish a burning fusee and proceed at restricted speed. If the instruction be said to predicate a right of recovery on a hypothesized violation of either or both of said rules, it was error to give it because said rules were obviously for the protection of appellant's equipment, and not for respondent's protection, and respondent, therefore, would have no right of recovery based on any hypothesized violation thereof. Chesapeake O.R. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 74 L.Ed. 207; Thompson v. Downey, 78 F.2d 487; Osment v. Pitcairn. 349 Mo. 137, 159 S.W.2d 666. (16) If the instruction did not predicate a right of recovery on hypothesized rule violations, and apparently it did not, it was for the jury to say whether or not the hypothesized acts, if found, were negligence. Ramsouer v. Midland Valley R. Co., 135 F.2d 101; Jackson County, S.D., v. Dufty, 147 F.2d 227; Mescall v. W.T. Grant Co., 133 F.2d 209; Swain v. Anders. 349 Mo. 963. 163 489 S.W.2d 1045; McCollum v. Winwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693; Lithegner v. St. Louis, 125 S.W.2d 925; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; Ducoulombier v. Baldwin, 101 S.W.2d 96. (17) And by telling the jury that "then you may find the defendant guilty of negligence," it erroneously commented on the evidence and invaded the province, and function, of the jury. Yerger v. Smith, supra; Swain v. Anders, supra; McCollum v. Winwood Amusement Co., supra; Lithegner v. St. Louis, supra; Ducoulombier v. Baldwin, supra; Ramsouer v. Midland Valley R. Co., supra; Jackson County, S.D., v. Dufty, supra; Mescall v. W.T. Grant Co., supra. (18) The trial court had no right to tell the jury that, upon making certain other findings, it might find that appellant was guilty of negligence. Chouquette v. Barada, 28 Mo. 491; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Counts v. Coca-Cola Bottling Co., 149 S.W.2d 418. (19) The instruction erroneously left the jury free to speculate concerning the facts necessary to impose the therein hypothesized "duty" and as to the extent thereof; and also erroneously failed to require a finding that the hypothesized "duty," if found, was a duty owing to respondent. An instruction giving the jury such a roving commission is reversibly erroneous. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541. (20) And it erroneously authorized a recovery on the basis of hypothesized violations of the hypothesized "duty" whether or not that "duty," if found, was a duty owing to respondent. Chesapeake and O.R. Co. v. Mihas, supra; Thompson v. Downey, supra; Osment v. Pitcairn, supra. (21) The trial court erred in giving respondent's Instruction II because it erroneously failed to require a finding by the jury that the hypothesized acts, if found, constituted negligence, and erroneously treated them as negligence per se. It was for the jury to say whether or not the hypothesized acts, if found, constituted negligence. Ramsouer v. Midland Valley R. Co., 135 F.2d 101; Jackson County, S.D., v. Dufty, 147 F.2d 227; Mescall v. W.T. Grant Co., 133 F.2d 209; Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045; McCollum v. Winwood Amusement Co., 332 Mo. 779, 59 S.W.2d 693; Yerger v. Smith, 338 Mo. 140, 89 S.W.2d 66; Lithegner v. St. Louis, 125 S.W.2d 925; Ducoulombier v. Baldwin, 101 S.W.2d 96 (22) By hypothesizing various matters and then saying "then you may find the defendant guilty of negligence," the instruction erroneously and improperly commented on the evidence and invaded the province, and usurped the function, of the jury. Yerger v. Smith, supra; Swain v. Anders, supra; McCollum v. Winwood Amusement Co., supra; Lithegner v. St. Louis, supra; Ducoulombier v. Baldwin, supra; Ramsouer v. Midland Valley R. Co., supra; Jackson County, S.D., v. Dufty, supra; Mescall v. W.T. Grant Co., supra. (23) The trial court had no right to tell the jury that, upon making certain other findings, it might find appellant was "guilty of negligence". Chouquette v. Barada, 28 Mo. 491; Kennedy v. Phillips, 319 Mo. 573, 5 S.W.2d 33; Counts v. Coca-Cola Bottling Co., 149 S.W.2d 418. (24) The instruction erroneously left the jury free to speculate concerning the facts necessary to impose the therein hypothesized "duty" and as to the extent thereof; and also erroneously failed to require a finding that the hypothesized "duty", if found, was a duty owing to respondent. Yates v. Manchester, 358 Mo. 894, 217 S.W.2d 541; Chesapeake and O.R. Co. v. Mihas, supra; Thompson v. Downey, supra; Osment v. Pitcairn, supra. (25) The trial court erred in giving respondent's Instruction XI because said instruction erroneously directed the jury, in event of a plaintiff's verdict, to return a verdict for respondent for the entire amount of his damages without diminution on account of contributory negligence on respondent's part, and excluded the idea of diminution on account of contributory negligence. 45 U.S.C.A., Sec. 53. (26) It was impossible for the jury to return a verdict for the whole amount of respondent's damages, as directed by said Instruction XI, and, at the same time, to return a verdict for the whole of his damages as proportionately diminished on account of any contributory negligence found. That made said Instruction XI a positive misdirection which could not be cured by other instructions. State ex rel. State Highway Comm. v. Sharp, 62 S.W.2d 928; State ex rel. St. Joseph Belt Ry. Co. v. Shain, 341 Mo. 733, 108 S.W.2d 351; Quirk v. St. L. United Elevator Co., 126 Mo. 279, 28 S.W. 1080; Oldham v. Standard Oil Co., 15 S.W.2d 899. (27) Said instruction was in irreconcilable conflict with appellant's Instructions IV and VI. (28) Said instruction erroneously submitted, as an element of damage, the cost of future hospital and medical services, which element was neither pleaded nor proved. This element not having been proved, it could not properly be submitted, even in view of the type of injuries here involved, since it was not pleaded, because such damages — even as to expenses already incurred — are special. Murphy v. S.S. Kresge Co., 205 S.W.2d 252. (29) And special damages must be pleaded. Sec. 52. Civil Code of Missouri. The amount of the verdict and judgment was excessive, and, even after the remittitur in the trial court, was and is excessive. In arriving at the amount properly allowable as damages for personal injuries, some consideration may be given to the present depreciated value of the dollar, but such an abnormal condition with reference to the value of money should not be given controlling consideration. Midway Bank Trust Co. v. Davis, 288 Mo. 563, 233 S.W. 406. (30) Respondent was a railroad brakeman. His occupation being a hazardous one, his life expectancy would not be so great as the average expectancy based on the lives of a group of persons collectively engaged in all occupations, non-hazardous as well as hazardous. That fact is judicially recognized. Pulliam v. Wheelock, 319 Mo. 139, 3 S.W.2d 374; Midway Bank Trust Co. v. Davis, 288 Mo. 563, 233 S.W. 406; Truesdale v. Wheelock, 335 Mo. 924. 74 S.W.2d 585. (31) The continuity of respondent's employment being dependent on the availability of work and seniority rights, it cannot be assumed that respondent would have continued to earn, throughout his expectancy, as much as he was earning at the time of his injury. Pulliam v. Wheelock, 319 Mo. 139, 3 S.W.2d 374. (32) But, regardless of the foregoing, while every case must rest upon the foundation of its own facts, in arriving at a conclusion as to the excessiveness of a judgment, consideration must be given to amounts which other cases have held to be fair and reasonable compensation for comparable injuries. Morris v. E.I. DuPont De Nemours Co., 346 Mo. 126, 139 S.W.2d 984. (33) And there should be a reasonable uniformity as to amounts of damages. Finley v. St. L. S.F. Ry. Co., 349 Mo. 330, 160 S.W.2d 735; Joslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Philibert v. Benj. Ansehl Co., 342 Mo. 1239, 119 S.W.2d 797. (34) Respondent's injuries considered, even the judgment for $140,000 entered after the remittitur was and is excessive. Aly v. Terminal Railroad Assn., 342 Mo. 1116, 119 S.W.2d 363; Joice v. M.K. T.R. Co., 354 Mo. 439, 189 S.W.2d 568; Bond v. St. L.S.F. Ry. Co., 315 Mo. 987, 288 S.W. 777; Pulliam v. Wheelock, 319 Mo. 139, 3 S.W.2d 374; Schleappe v. Terminal Railroad Assn., 339 Mo. 562, 98 S.W.2d 616; West v. Kurn, 148 S.W.2d 752; Rose v. Mo. Dist. Tel. Co., 328 Mo. 1009, 43 S.W.2d 562; Mickel v. Thompson, 348 Mo. 991, 156 S.W.2d 721; Jones v. Pa. R. Co., 353 Mo. 163, 182 S.W.2d 157; 15 Am. Jur. 640, sec. 218; 102 A.L.R., p. 1386; 46 A.L.R., p. 1341; 25 C.J.S., p. 962; 17 C.J., p. 1110, sec. 440; Midway Bank Trust Co. v. Davis, supra; Truesdale v. Wheelock, supra; Moore v. Railroad, 268 Mo. 31, 186 S.W. 1035; Virginian Ry. Co. v. Armentrout, 166 F.2d 400.

Charles P. Noell, John H. Haley, Jr., and Frank Mattes for respondent.

(1) Appellant has failed to discharge its burden of affirmatively showing that the subject matter of the inquiry by the juror influenced the verdict. The law indulges in the presumption of the good conduct of the jury, in the absence of evidence to the contrary, and it is presumed that the jury did not disobey the verbal direction, ruling or instructions of the trial court. Shock v. Price, 207 S.W. 834; Evans v. Mo. Pac. R. Co., 116 S.W.2d 8, 392 Mo. 420; Cochran v. Wilson, 229 S.W. 1050, 287 Mo. 210; Weaver v. Mobile O.R. Co., 343 Mo. 223, 120 S.W.2d 1105; International-Great Northern Ry. Co. v. Hawthorne, 90 S.W.2d 894; Thomason v. Trentham, 154 S.W.2d 792; McComb v. Vaughn, 218 S.W.2d 548. (2) The court should not now consider appellant's belated assignment of error that the direction of the trial court, regarding attorneys' fees, was verbal rather than written because this assignment of error is not preserved for appellate review, since it was not presented to the trial court in the motion for new trial. Supreme Court Rule 3.23. (3) Verbal directions of similar import to that given in the instant case were held not to be oral instructions. Conway v. K.C. Public Service Co., 125 S.W.2d 935, 234 Mo. App. 596; Myers v. Dubinsky Realty Co., 133 S.W.2d 1106; Hoeffner v. Western Leather Clothing Co., 161 S.W.2d 722. (4) The statute, requiring instructions to be in writing, has no reference to rulings on evidence; and therefore does not prohibit the trial court from orally directing the jury to disregard a foreign matter. Nor does it prohibit him from orally directing the jury as to its ordinary duties. Lumatz v. American Car Foundry Co., 273 S.W. 1089, 217 Mo. App. 94; Baxter v. Magill, 127 Mo. App. 392, 105 S.W. 679. (5) It is generally held that verbally answering an interrogation of a juror is not within the prohibitory statute, and this is particularly true, where, as in the instant case, the substance of the court's reply was embraced in the written charges which the jury had in its possession. 44 C.J. 644, sec. 584; Farmers Natl. Bank v. Wallace, 263 S.W. 1105. (6) Appellant's counsel suggested to the trial court that he direct the jury orally. Hence, appellant cannot now complain that the procedural suggestion, made by its counsel, was error. Gilpin v. Aetna Life Ins. Co., 132 S.W.2d 686, 239 Mo. App. 566. (7) Appellant cannot be heard to complain that the verbal direction of the court was prejudicial because appellant's counsel suggested the substance of the verbal direction. Gilpin v. Aetna Life Ins. Co., 132 S.W.2d 686, 239 Mo. App. 566. (8) In view of the dissimilarity in the essential conditions between Ikemeyer and respondent, which are conceded by appellant the trial court did not abuse its discretion in excluding Ikemeyer as a witness. Green v. Terminal Railroad Assn., 135 S.W.2d 652; Graney v. St. L.I.M. Ry. Co., 140 Mo. 103, 41 S.W. 246; Osborne v. Eyster, 195 Mo. App. 520, 192 S.W. 143. (9) The appellant cannot complain of the trial court's refusal to declare a mistrial for alleged improper argument of counsel because no motion was made to discharge the jury until after submission and while the jury was deliberating the issues. The rule is well established that a motion to discharge at the close of the argument, comes too late. This is true regardless of the possible prejudicial effect of the argument. Adams v. Quincy, O. K.C.R. Co., 229 S.W. 790, 287 Mo. 535. (10) Procedural rules are and should be given full force and effect. This division upheld the conviction of a colored man, in the absence of proper complaint, although the record disclosed the State's attorney used the term "niggers" in his final summation. State v. Tolson, 215 S.W.2d 438. (11) The alleged improper argument is conclusively presumed to be non-prejudicial, since the trial court, upon counsel's request, immediately and emphatically admonished the jury to disregard such remarks, and appellant's counsel, by not then moving for a mistrial, acquiesced in the sufficiency of the rulings to cure any possible prejudice. The above rulings of the trial court are conclusively deemed to have destroyed all possible prejudice, when, at the time, counsel does not request a mistrial. Seested v. Post Printing Pub. Co., 31 S.W.2d 1045, 326 Mo. 559; Kelley v. Ill. Cent. R. Co., 177 S.W.2d 435, 352 Mo. 301; Bucks v. Hamill, 216 S.W.2d 423. (12) Declaring a mistrial for improper argument rests largely within the discretion of the trial court. Mooney v. Terminal Railroad Assn., 186 S.W.2d 450, 353 Mo. 1080; Wood v. Claussen, 107 S.W.2d 802. (13) The trial court did not err in giving respondent's Instruction 7 regarding the burden of proof of contributory negligence because the instructions told the jury that it was to consider "the" evidence favorable to defendant and to determine the issue by "the" evidence touching such claim of contributory negligence and thus did not limit the jury to a consideration of only that evidence offered by and favorable to defendant. Pulse v. Jones, 218 S.W.2d 553. (14) There was no evidence from respondent's side of the case which in any way tended to aid appellant on the issue of contributory negligence and if the instruction is erroneous, it is harmless error. Blankenship v. St. L. Pub. Service Co., 71 S.W.2d 723; State ex rel. C., R.I. P.R. Co. v. Shain, 338 Mo. 217, 89 S.W.2d 654. (15) The court did not err in giving respondent's Instruction 1 because if Instruction 1 directed a verdict upon a violation of appellant's Rule 11 (duty to stop, extinguish a burning fusee, and proceed at restricted speed), such direction was proper because the rules were promulgated for the protection of employees, such as the respondent. (16) If Instruction 1 directed a verdict upon a violation of appellant's common law duty, it was not erroneous, because the instruction directed a verdict only upon a finding that the negligence of the engineer directly caused the casualty. (17) Even if the instruction is construed as failing to require a finding of negligence, it did require a finding of facts which constitute negligence as a matter of law, hence it was unnecessary to require a finding that such facts constituted negligence. Maxie v. Gulf, M. O.R. Co., 356 Mo. 633, 202 S.W.2d 904; Cruce v. Gulf, Mobile Ohio R. Co., 216 S.W.2d 78; Page v. Wabash R. Co., 206 S.W.2d 691. (18) Regardless of whether Instruction 1 directed a verdict upon a rule violation, or a common law violation, it was proper because under the conceded facts, the engineer's duty to respondent, and the extent of that duty, appear as a matter of law. Maxie v. G.M. O.R. Co., supra; Page v. Wabash R. Co., supra. (19) Appellant offered Instruction 5, which was given, and thereby adopted respondent's Instruction 1, by reference. Hence appellant is in no position to complain of any alleged error assigned under its Point (6) Consolidated School Dist. v. West Missouri Power Co., 46 S.W.2d 174, 329 Mo. 690; Quinn v. Atchison, T. S.F. Ry. Co., 193 S.W. 933; Trusty, Pocket Part, pp. 33-34. (20) There was no error in grouping together a series of facts of which there was evidence, as in Instruction 1, and telling the jury that such facts, if found, will constitute negligence. Offutt v. Vattagala, 44 S.W.2d 202: 1 Raymond. Missouri Instructions, sec. 5, p. 13. (21) Violation of a railroad rule is negligence per se. Kidd v. C., R.I. P.R. Co., 310 Mo. 1, 274 S.W. 1079. (22) The court did not err in giving respondent's Instruction 2 because the instruction directed a verdict only upon a finding that the negligence of the engineer directly caused the casualty. Its verbiage precluded a verdict absent a finding that the casualty occurred as the direct result of the engineer's negligence; (23) even if the instruction failed to require a finding of negligence, it did require a finding of facts which constituted negligence as a matter of law, hence it was unnecessary to require a finding that such facts constituted negligence. Maxie v. G.M. O.R. Co., supra; Cruce v. Gulf, Mobile Ohio R. Co., supra; Page v. Wabash R. Co., supra. (24) Instruction 2 was proper because under the conceded facts, the engineer's duty to respondent, and the extent of that duty, arose and existed as a matter of law. (25) Appellant offered Instruction 5, which was given, and thereby adopted respondent's Instruction 2. by reference. Hence, appellant is in no position to complain of any alleged error assigned under its Point (7). Consolidated School Dist. v. West Missouri Power Co., supra: Quinn v. Atchison, T. S.F. Ry. Co., 193 S.W. 933, supra; Trusty, Pocket Part, pp. 33-34. (26) There was no error in grouping together a series of facts of which there was evidence, as in Instruction 2, and telling the jury that such facts, if found, will constitute negligence. Offutt v. Vattagala, 44 S.W.2d 202; 1 Raymond, Missouri Instructions, sec. 5. p. 13. (27) The trial court did not err in giving respondent's Instruction XI (measure of damages) and the same was not in conflict with appellant's Instructions IV and V because said instructions are a common sense method of instructing juries in this type of cases: McIntyre v. St. L.-S.F. Ry. Co., 286 Mo. 234, 227 S.W. 1047. (28) There was evidence admitted without objection to warrant an award for future hospital and medical services. (29) Assuming there was no such evidence, the error would be harmless since the instructions used the words "if any". Rodgers v. St. L. S.F. Ry. Co., 31 S.W.2d 546. (30) Appellant's assignment of error that the verdict and judgment was and is excessive may not be considered because there was evidence from which the jury and trial court could infer his damages to be in the amount of the verdict and judgment and this court has no jurisdiction to redetermine that fact in an action under the Federal Employers' Liability Act. Lavender v. Kurn, 337 U.S. 645. (31) And for this court to exercise such jurisdiction would deprive the respondent of substantial rights under the Federal Employers' Liability Act. Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 1016; C. O. Ry. Co. v. Kelly, 241 U.S. 485; Lavender v. Kurn, supra. (32) And for this court to exercise such jurisdiction would deprive the respondent of the right to trial by jury contrary to Section 22 of Article 1 of Constitution of the State of Missouri and would deprive the respondent of property without due process of law contrary to the Fourteenth Amendment of the Constitution of the United States and the Federal Employers' Liability Act. Lavender v. Kurn, supra; Brady v. So. Ry. Co., supra. (33) If it should be determined that this court does have jurisdiction to redetermine the amount of damages — which jurisdiction we do not concede — the question of whether the damages are excessive must be settled in accordance with the decisions of the Federal Courts. Brady v. Southern Railway Co., supra; C. O. Ry. Co. v. Kelly, supra. (34) And the verdict is not excessive under recent decisions of the Federal Courts. McKinney v. Pittsburgh L.E.R. Co., 57 F. Supp. 815; Affolder v. N.Y. Chi. St. L.R. Co., 79 F. Supp. 365; Stanfield v. Kurn, 111 F.2d 469; Southern R. Co. v. Montgomery, 46 F.2d 990; Searfoss v. Lehigh Valley R. Co., 76 F.2d 762. (35) Awards of damages for personal injuries cannot be standardized even for the same or similar injuries. Evans v. General Explosives Co., 293 Mo. 364, 239 S.W. 487; Cole v. Chicago, St. Paul, Minneapolis Omaha R.R. Co., 59 F. Supp. 443. (36) The damages awarded by the judgment of the trial court are not excessive. Bartlebaugh v. Pennsylvania Railroad Co., 79 N.E.2d 410, 150 Ohio St. 387, 82 N.E.2d 853; Affolder v. New York, C. St. L., 79 F. Supp. 365; McKinney v. Pittsburgh L.E.R. Co., 57 F. Supp. 815; Avance v. Thompson, 320 Ill. App. 406, 51 N.E.2d 334; Delaney v. N.Y.C.R. Co., 68 F. Supp. 70.

[490] HYDE, J.

This is an action for damages for personal injuries under the Federal Employers' Liability Act. (45 U.S.C.A. 51 et seq.) Plaintiff had verdict for $165,000.00, which was reduced by remittitur (in the trial court) to $140,000.00. Defendant has appealed from the judgment entered for that amount.

Defendant alleges error in instructions, improper argument, exclusion of evidence and excessive verdict. Plaintiff (a brakeman) lost both legs when defendant's engine and tender (on which plaintiff was riding) backed into standing cars during a night switching movement, at a speed of 25 miles per hour according to plaintiff's evidence, or at 10 to 15 miles per hour according to defendant's engineer. Anyhow, the force of collision was sufficient to derail three of the cars. Plaintiff was riding on the rear of the tender for the purpose of giving the signals for coupling the standing cars.

Plaintiff submitted two charges of negligence, namely, backing over a burning fusee (placed to indicate the position of the standing cars) without slackening speed; and failure to reduce speed upon signal from plaintiff. Both the engineer and plaintiff had thrown out fusees, one of which went out, and this may have confused the engineer as to the location of the cars. The charges of negligence were hypothesized in plaintiff's two main instructions, as follows:

"1. The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence it was the duty of defendant's engineer operating the locomotive and tender mentioned in evidence and upon which plaintiff was riding to stop said locomotive and tender upon reaching a burning fusee on the railroad track on which said locomotive and tender were being operated and to proceed only after such fusee had been extinguished and then at such a rate of speed as to be able to stop short of any obstruction that might be on such railroad track and that as defendant's said engineer was operating such locomotive and tender in a westerly direction along the railroad track and at the time and place mentioned in evidence there was a fusee burning on the railroad track on which such locomotive and tender were being operated and that such fusee was visible to said engineer for a sufficient length of time and distance to have permitted said engineer to stop said locomotive and tender before they reached such fusee and that defendant's said engineer failed to stop locomotive and tender before reaching said fusee and that defendant's said engineer operated said locomotive and tender over and past such burning fusee and at such a rate of speed that said locomotive and tender could not thereafter be stopped short of an obstruction on said railroad track, then you may find the defendant guilty of negligence."

[491] "II. The Court instructs the jury that if you find and believe from the evidence that on the occasion mentioned in evidence it was the duty of defendant's engineer operating the locomotive and tender mentioned in evidence and upon which plaintiff was riding to reduce the speed of said locomotive and tender upon a signal by plaintiff to do so and that as defendant's said engineer was operating such locomotive and tender in a westerly direction along the railroad track and at the time and place mentioned in evidence, plaintiff signalled to defendant's said engineer to reduce the speed of said locomotive and tender and that defendant's said engineer saw, or by the exercise of ordinary care could have seen, plaintiff's said signal in time thereafter by the exercise of ordinary care to have reduced the speed of said locomotive and tender before colliding with a railroad car then standing on the railroad track on which said locomotive and tender were being operated and that defendant's said engineer failed to reduce the speed of said locomotive and tender, then you may find the defendant guilty of negligence."

Each of these instructions, after authorizing a finding of negligence as above set out, concluded as follows: "And if you further find and believe from the evidence that as a direct result thereof said locomotive and tender collided with a railroad car then standing on the railroad track on which said locomotive and tender were being operated, and that as a direct result thereof plaintiff was injured, then your verdict should be for the plaintiff and against the defendant." Plaintiff had sufficient evidence to support a finding of the above hypothesized facts. Defendant's rules 11 and 11a prohibited moving over a burning fusee and required stopping, extinguishing the fusee, and proceeding at restricted speed. Instruction I, although not mentioning these rules, is obviously based on them.

Defendant contends that these instructions erroneously failed to require a finding that the hypothesized acts constituted negligence but treated these acts as negligence per se, improperly commented on the evidence, and usurped the function of the jury. Defendant also contends that the rules, which were the basis of Instruction I, were for the protection of its equipment and not for plaintiff's protection, and that both instructions "left the jury free to speculate concerning the facts necessary to impose the therein hypothesized `duty' and as to the extent thereof; and also erroneously failed to require a finding that the hypothesized `duty', if found, was a duty owing to respondent." On the first point, defendant cites Yerger v. Smith, 338 Mo. 140, 153, 89 S.W.2d 66, 74 as follows: "Whether or not negligence can be inferred from a given state of facts is a question of law for the court, and whether or not negligence ought to be inferred from the given state of facts, if the court holds it can be, is a question for the jury." However, we think the facts hypothesized were sufficient to authorize a finding of negligence and, by using the term "may find the defendant guilty of negligence," they do not require but only authorize such a finding. These instructions would be clearer if between that clause and the last clause, commencing "and if you further find and believe from the evidence as a direct result thereof, etc.," a requirement had been made to the following effect: "and if you find that defendant was guilty of negligence." Nevertheless, we think this requirement was supplied and the meaning of the submission made clear by Instruction V which told the jury "that the burden of proof is on the plaintiff to prove to your satisfaction, by the preponderance or greater weight of the credible evidence that the defendant was guilty of negligence as submitted to you in the Court's instructions . . . and, unless you believe and find from the evidence in the case that plaintiff has proven by a preponderance of the credible evidence that the defendant was guilty of negligence as defined and submitted to you in the instructions of the Court, . . . your verdict must be for the defendant." As we said, in McDonald v. Kansas City Gas Co., 332 Mo. 356, 59 S.W.2d 37: "If the plaintiff's instruction, covering the whole case and authorizing a verdict, does require the finding of all essential elements of the plaintiff's case, but states some of these indefinitely or ambiguously [492] or in language which might be misleading, then an instruction on the part of the defendants which clearly and specifically requires the finding of essential elements does not conflict with the plaintiff's instruction, but instead makes it clear and definite. When all of the instructions thus harmonize and when read together correctly state the law, any such indefinite, ambiguous or misleading language in the plaintiff's instruction is cured by the other instruction." [See also Griffith v. Gardner, 358 Mo. 859, 217 S.W.2d 519; Hines v. Western Union Telegraph Co., 358 Mo. 782, 217 S.W.2d 482.]

We also think that the facts submitted were sufficient to show a duty on the part of defendant's engineer to plaintiff, because the admitted facts were that plaintiff was defendant's employee engaged in the switching movement, as a brakeman, under the direction of the engineer. Plaintiff was responsible for informing the engineer by signals how to proceed and the engineer undoubtedly owed him a duty of exercising reasonable care to observe and act on his signals. A duty which is the basis of tort liability, "arises from the relations in which the parties placed, toward each other, by the circumstances of the case." [Lowery v. Kansas City, 337 Mo. 47, 85 S.W.2d 104.] We further think it would be unreasonable to say that the defendant's rules as to observing fusees and operating in a prescribed manner where they were found were only for the protection of its equipment. Surely there is more reason to have such safety rules for protection of employees, on the basis of efficiency, financial and humanitarian considerations which are apparent from the facts in evidence. We, therefore, hold that there was no prejudicial error in giving Instructions I and II.

Defendant also contends that Instruction VII was erroneous. Defendant claimed that plaintiff was guilty of contributory negligence in failing to put a light on the end of the standing cars as required by one of its rules (which plaintiff contended did not apply) and in riding on the end sill of the tender (which plaintiff denied) in violation of another rule. Instruction VI told the jury if they found plaintiff's injury was caused in part by his own negligence they should deduct from the total damages sustained by him, the proportion which his negligence bore to the negligence of both. Instruction VII told them that the burden of proof as to plaintiff's negligence was on defendant and must be established "by the preponderance or greater weight of the credible evidence." It then contained the following definition of these terms which defendant says was erroneous: "By `preponderance' or `greater weight of the credible evidence', as those terms are here used, means evidence which convinces you it is more worthy of belief than that offered by plaintiff, and if, therefore, you find the evidence touching such claim does not preponderate in favor of the defendant; that is, the evidence favorable to defendant is not more convincing or is not more worthy of belief than that favorable to plaintiff, then you shall not diminish plaintiff's damages, if any, by reason of such claim by defendant."

Defendant says that the italicised portion of this definition excluded from consideration evidence offered by plaintiff which tended to show his negligence; and that the word "convinces" imposed the burden of proving contributory negligence beyond a reasonable doubt. This clause by itself might be susceptible of this criticism. (It would be better to say "evidence which you find more worthy of belief than that which tends to contradict it.") However, this is fully explained by the remainder of the sentence so clearly that we do not think the meaning of the whole could be misunderstood. We, therefore, hold that there was no prejudicial error in giving Instruction VII.

Defendant also contends that it was error to give Instruction XI. This was plaintiff's main instruction on the elements to be considered in determining damages. Defendant says this instruction excluded the idea of diminution of damages on account of contributory negligence and was in conflict with instructions IV and VI authorizing such diminution. Defendant also says that it submitted future [493] hospital and medical services which were neither pleaded nor proved. This Court held in McIntyre v. St. Louis S.F.R. Co., 286 Mo. 234, 260, 227 S.W. 1047, 1055, that the failure of the main instruction to mention such diminution of damages on account of contributory negligence, was cured by other instructions specifically so stating. Defendant argues that this decision is unsound. However, we think it should be followed where as here plaintiff's instruction authorizing full damages was qualified by the requirement, "if you find the issues in favor of the plaintiff under the evidence and other instructions given you." This clearly required a finding for plaintiff on the issue of contributory negligence before this instruction could be applicable. As to future hospital and medical services we find there was evidence brought out on defendant's cross-examination that plaintiff needed an operation to remove and prevent bony spurs on the ends of the stumps of his legs, for which the surgeon's fee would be $250.00. We hold that there was no prejudicial error in giving Instruction XI.

Defendant also contends the Court erred in refusing to permit defendant to show by witness Ikemeyer what his experience was with artificial limbs. The trial court excluded this on the ground that it would "be entirely collateral and would have no bearing on what the plaintiff in this case can or cannot do with artificial limbs." Ikemeyer's legs were amputated when he was seven years old. There was also evidence that bony spurs on the stumps of plaintiff's legs interfered with the use of artificial limbs and that he had other injuries (fractured vertebra and injury to nerves of his neck and shoulder) which weakened his arms and back so as to impair his ability to use artificial limbs. The Court's view was that expert testimony as to the utility of artificial limbs would be proper by a medical man or by one who dealt with fitting, manipulation and handling of them but that the experience of a particular individual whose condition and circumstances were very different was an immaterial collateral issue. Defendant contends that some of plaintiff's medical testimony gave the impression that no man with both legs off above the knees could walk with artificial limbs and that Ikemeyer's testimony as to his own experience was relevant and material to contradict it. However, we do not find that plaintiff's experts actually made such a contention but meant instead to emphasize the need of additional support such as canes or crutches and the necessity for strong arms, shoulders and back, as well as a long period of training, to use them successfully. We think the admission or exclusion of such evidence as this, under the circumstances of this case, was a matter which rested largely in the sound discretion of the trial court; and unless there was an abuse of discretion on the part of the trial court, its action will not be the basis for a reversal on appeal. [See Green v. Terminal R. Assn., (Mo. App.) 135 S.W.2d 652; Lake Superior Loader Co. v. Huttig Lead Zinc Co., 305 Mo. 130, 264 S.W. 396 and authorities cited; 32 C.J.S. 433-453, §§ 579-597; 20 Am. Jur. 278-287, §§ 302-308.] We do not find an abuse of discretion as to this matter in this case and hold that there was no prejudicial error in the Court's action.

Defendant also contends that the Court erred in refusing to discharge the jury because of the following statements made by plaintiff's counsel in his closing argument, as follows: "Another thing I want to tell you: don't let some jurors come out and tell me, `Mr. Noell, we thought we would give him a little bit less because the Company would pay it; wouldn't take any appeal.' I assure you I'll say. `You are all wrong.' . . . Anyhow, you leave us worry about collecting the judgment." The Court sustained the objections of defendant's counsel that these statements were improper and then instructed the jury to disregard them. Defendant's counsel made no further objection or request at that time, but after the jury had left and had been deliberating for about a half-hour, he asked that they be discharged. While this argument was improper, the Court promptly and emphatically did everything requested at the time. We think this action was reasonable [494] and hold that there was no prejudicial error in this matter.

Defendant also claims error in the refusal to discharge the jury on account of an inquiry addressed to the Court by the jury, as follows: "What is the maximum fee or percentage basis allowed by Missouri law to plaintiff's counsel.'" Defendant also says that the court erred in orally instructing the jury in answer to this inquiry and says the oral instructions given them prejudicially emphasized that there was no maximum for attorney fees and indicated to the jury that the Court assumed plaintiff was entitled to and would get a verdict.

When this request was brought in the Court asked defendant's counsel what he wanted him to do and he asked that they be discharged. However, when the Court indicated that would not be done, plaintiff's counsel said: "You should say to them that the attorney's fees is handled in an entirely separate matter; that you are to consider only the things that this Federal Employers' Liability Act provides, only the things that are referred to in that instruction and nothing else, that's the law, and even then it won't be safe to send them back, unless you should tell them they should add nothing to their verdict for attorney's fees, not a penny. . . . I think you have to go further and say, `You shall not return anything for attorney's fees.'" The Court called the jury in, read their request and stated to them: "Members of the Jury, there is no such law. That is a matter of contract between plaintiff's counsel and plaintiff. However, you are not to consider that in determining the amount of damages in this case. I again refer you to Instructions Nos. XI and VI on the question of damages in this case. Bearing that in mind, you will retire to your jury room, gentlemen." Defendant's counsel renewed his request to discharge the jury and objected to the statement made to them as error because it did not mention Instruction IV and because "under the Judge's oral instruction they can do nothing but return a verdict for the plaintiff. They can no longer return a verdict for the defendant."

We do not think it was improper for the judge to orally answer this inquiry of the jury. It does not seem to have been considered by defendant's counsel at the time that he should answer it any other way. In answer to the judge's inquiry as to what he should do, he did not suggest further written instructions. The jury obviously needed further information and it was the duty of the judge to furnish it. Certainly our system of written instructions does not go so far as to require a trial judge to stand mute before the jury when they make such a request for information. [Brunk v. Hamilton Brown Shoe Co., 334 Mo. 517, 66 S.W.2d 903, l.c. 908; Hoeffner v. Western Leather Clothing Co., (Mo. App.) 161 S.W.2d 722, l.c. 731; Meyer v. Dubinsky Realty Co., (Mo. App.) 133 S.W.2d 1106; Conway v. Kansas City Public Service Co., 234 Mo. App. 596, 125 S.W.2d 935.] There was nothing incorrect in what the judge said to the jury, and if defendant considered that more specific directions were necessary, it should have offered an additional instruction. [See Schonwald v. F. Burkart Mfg. Co., 356 Mo. 435, 202 502 S.W.2d 7, l.c. 17.] We also agree that it was not necessary to discharge the jury because they asked the question. [See McComb v. Vaughn, 358 Mo. 951, 218 S.W.2d 548.] They should have done so when they were thus in doubt and did not know whether or not this was a matter they could properly consider. The Court did tell them that they were not to consider attorney's fees in determining the amount of damages and we cannot assume that they deliberately violated his admonition. Defendant relies on Fitzsimmons v. Commerce Trust Co., (Mo. App.) 200 S.W. 437, but it does not appear from that opinion what the judge said or what objections were made. Defendant also cites Boyd v. Pennewell. (Mo. App.) 78 S.W.2d 456 and Hartgrove v. Chicago, B. Q.R. Co., 358 Mo. 971, 218 S.W.2d 557, but in these cases the judge gave information to the foreman of the jury only out of the presence of counsel.

As to the claim that the Court assumed that plaintiff would get a verdict, it should be noted that Instruction XII, [495] climinating taxes as an element of damages, closed thus: "should you find for the plaintiff you should only consider the elements mentioned by the court in the other instructions in the case." We think what the Court said, in answer to the jury's request for information, had the same meaning. We hold that there was no prejudicial error in this matter.

As to the contention of excessive verdict, plaintiff claims that we have no jurisdiction to determine the matter of to what extent the verdict is excessive and that to do so would deprive plaintiff of the right of trial by jury and deprive him of property without due process of law. Plaintiff also contends that the question of whether the damages are excessive must be decided in accordance with the decisions of the Federal Courts; that our rule of uniformity of maximum damages should be abandoned; and that the damages awarded are not excessive in fact. Originally attorneys for injured plaintiffs sought to have a remittitur practice established so that a judgment for a proper amount could be affirmed and the expense and delay of a new trial avoided. [See Burdict v. The Missouri Pacific R. Co., 123 Mo. 221, l.c. 238, 27 S.W. 453.] It is now well established throughout the country that affirmance on remittitur may be ordered without the consent of the defendant. [3 Am. Jur. 687, §§ 1177-1179; 5 C.J.S. 1345, § 1859.] The history of the development of this practice in Missouri is discussed in Cook v. Globe Publishing Co., 227 Mo. 471, l.c. 546, 127 S.W. 332. The principle upon which this practice is based, as shown by these authorities, is that, when there is no substantial evidence to support a verdict for more than a certain maximum amount, the result may be due to error or mistake of the jury and not passion or prejudice. When that is the situation, the Court, in determining the maximum amount authorized by the evidence, does not award or fix the damages but only says that if the jury had given such maximum amount then its verdict could have properly been permitted to stand. It is, therefore, proper to permit the plaintiff to elect between accepting a judgment for such amount, by remitting the excess, or having a new trial. [See Kennon v. Gilmer, 131 U.S. 22. 9 S.Ct. 696; 33 L.Ed. 110.]

This remittitur practice has long been established as a matter of procedure in our courts. [See Smiley v. St. Louis-S.F.R. Co., No. 40988, 359 Mo. 474, 222 S.W.2d 481, decided concurrently herewith.] The Federal Employers' Liability Act only authorizes actions to be brought in our courts and does not regulate their rules of practice and procedure. In this case, plaintiff did not obtain a unanimous verdict which would have been required had he brought his action in the United States District Court, but the defendant is not entitled to a new trial on that ground. The question raised "is a procedural one governed by the law of the forum." [Joice v. M-K-T R. Co., 354 Mo. 439, 189 S.W.2d 568.] Our conclusion is that an action under the Federal Employers' Liability Act in our courts is subject to the same rules of practice and procedure as any other action, including our remittitur practice.

We think the verdict was excessive even after remittitur of $25,000.00. Plaintiff was 36 years old at the time of the trial. He was working on the "extra board" which meant that he had work when it was available but, except for one month, it had been available during his employment. He estimated his earnings from $300.00 to $350.00 per month but defendant's pay roll records showed the average during his period of employment to be $228.00 per month. Plaintiff had evidence that a brakeman eligible for work at all times could make about $400.00 per month and perhaps $40.00 to $50.00 per month more after November 1, 1947 because of a raise in pay.

Both of plaintiff's legs were amputated above the knees, removing the lower third of the thigh bones. There were bony spurs on the stumps of his legs which would interfere with the use of artificial limbs and which would require an operation to remove. He has pains and [496] swelling in his legs. He also had pains in his hip, back, neck and head and right shoulder. The use of his right arm was impaired so that he had only about one-third of the normal movement from the shoulder. He had a compression fracture of the sixth cervical vertebra and damage to the cartilaginous disc between the sixth and seventh vertebra which affected the nerves in his neck and right shoulder. He also had a sprain of the right hip and in the lumbar region of the back. Defendant's evidence tended to show that plaintiff's injuries, other than the loss of his legs, are not very serious but we must consider only the evidence favorable to plaintiff on this issue. This evidence indicates that plaintiff's arms, shoulders and back have been permanently weakened so that he could not use artificial limbs. He has had an attendant at ten dollars per day from two or three days to a week at a time and could get around only in a wheel chair. It was also shown that plaintiff was below average in mental ability so that it would not be possible to train him for such an occupation as a clerk or bookkeeper.

We do not find that a judgment for personal injuries has ever been permitted to stand in this state for more than $50,000.00. [Joice v. M-K-T.R. Co., 354 Mo. 439, 189 S.W.2d 568; Span v. Jackson-Walker Coal Mining Co., 322 Mo. 158, 16 S.W.2d 190.] The injuries in this case are comparable with those in Aly v. Terminal R. Assn. of St. Louis, 342 Mo. 1116, 119 S.W.2d 363 in which a verdict for $85,000.00 was reduced to $40,000.00. Plaintiff cites cases from other states such as Avance v. Thompson, 320 Ill. App. 406, 51 N.E.2d 334 ($100.000.00 affirmed, but later reversed on other grounds, 387 Ill. 77, 55 N.E.2d 57) and Bartlebaugh v. Pennsylvania R. Co., 150 Ohio St. 387, 78 N.E.2d 410, 82 N.E.2d 853 ($150,000.00 affirmed); and also cases in United States District Courts such as McKinney v. Pittsburgh L.E.R. Co., 57 F. Supp. 813 ($100,000.00), Delaney v. New York Central R. Co., 68 F. Supp. 70 and Affolder v. N.Y.C. St. L.R. Co., 79 F. Supp. 365 ($80,000.00). Of course, as we have said, no normal person would voluntarily be afflicted with such injuries as plaintiff has received for any amount of money; but that cannot be the measure of damages in a court of law. [Morris v. E.I. DuPont de Nemours Co., 346 Mo. 126, 132, 139 S.W.2d 984, 988.] If it were, then in many cases all of a defendant's assets would have to be transferred to a plaintiff so seriously and permanently injured; but that would not be a just or workable rule in negligence cases. However, we do think that because of the difference in costs, wage scales and money value, a higher level of maximum damages is now warranted; and this has been recognized in our recent decisions in cases involving less serious injuries. [See Liles v. Associated Transports, 359 Mo. 87, 220 S.W.2d 36; Hill v. Terminal R. Assn., 358 Mo. 597, 216 S.W.2d 487.] Nevertheless, we think this verdict is still excessive by $60,000.00.

If plaintiff will remit $60,000.00 within fifteen days, the judgment will be affirmed as of the date of its rendition for $80,000.00; otherwise the judgment will be reversed and the cause remanded for a new trial. All concur.