(1) Even though plaintiff alleged that he was employed in interstate commerce, the accident happening in Illinois, the defendant had the right to plead as a defense and to defend on the ground that plaintiff was not so employed, and was governed by the law of Illinois and could not maintain this action in this State. Sec. 1233, R.S. 1919. (a) The mere fact that plaintiff alleged he was employed in interstate commerce would not prevent his amendment by striking out such allegation and proceeding at common law, or the court or jury ignoring the allegation and a verdict being rendered under common law, and, unless the Compensation Act of Illinois had been pleaded it could not urge it as a defense. Wabash Railroad v. Hayes, 234 U.S. 86; M.K. T. Railroad v. Wulf, 226 U.S. 570; D.L. W. Railroad v. Yurkonis, 220 F. 429; Sullivan v. Railroad, 12 S.W.2d 735; Lopez v. Hines, 254 S.W. 57; Pipes v. Railroad, 267 Mo. 385; Hilderbrand v. Railroad, 298 S.W. 1069; Azar v. Railroad, 251 S.W. 453; C.R.I. P. Railroad v. Cosio, 182 S.W. 83; Vandalia Railroad Co. v. Stringer, 182 Ind. 676; St. Louis, I.M. S. Railroad v. Coke, 118 Ark. 49. (b) Indeed at the time this case was tried it was incumbent upon the defendant to plead and prove the foreign law. It could not have the benefit of it unless it did so. Crary v. Standard Inv. Co., 313 Mo. 448; Lee v. Ry. Co., 195 Mo. 400. (c) Plaintiff, being governed by the Workmen's Compensation Act of Illinois, was not entitled to maintain any action in this State. Sec. 1162, R.S. 1919; Ch. 48, Sec. 143, p. 1268, Smith Hurd, Ill. Stat. 1925; Moseley v. Gas Co., 313 Mo. 225; Osagera v. Schaff, 293 Mo. 333; Mitchell v. Smelting Co., 202 Mo. App. 251. (2) Plaintiff was not employed, at the time he was injured, in interstate commerce, and was for this reason governed by the Workmen's Compensation Act of Illinois, and not entitled to recover u

9; N.Y., etc., R. Co. v. Bezue, 284 U.S. 415, 52 Sup. Ct. 205; 15 C.J.S. 292; Hughes Bros. Timber Co. v. State of Minn., 272 U.S. 469, 47 Sup. Ct. 170; N.Y., etc., R. Co. v. Carr, 238 U.S. 260, 35 Sup. Ct. 780; Brier v. Chi., etc., Ry. Co., 168 N.W. 339; Brown's Admstr. v. N. W. Ry. Co., 12 F.2d 319, affirmed 20 F.2d 133, certiorari denied, 48 Sup. Ct. 36, 275 U.S. 540; Director General of R.R. v. Bennett, 268 F. 767; Shaffer v. Western Maryland Ry. Co., 116 S.E. 747, 93 W. Va. 300; Callahan v. Boston, etc., R. Co., 106 A. 37; St. L., etc., R. Co. v. Seale, 229 U.S. 156, 33 Sup. Ct. 651; Atlantic, etc., R. Co. v. Tomlinson, 94 S.E. 909; Nicholas v. Reading Co., 24 A. 63; Bountiful Brick Co. v. Giles, 276 U.S. 154, 48 Sup. Ct. 221; Lamphere v. Oregon, etc., R. Co., 196 F. 336; Grand Trunk, etc., R. Co. v. Knapp, 233 F. 950; Woosley v. Wabash, 274 S.W. 871; Odell v. St. L., etc., R. Co., 281 S.W. 456; La., etc., Ry. Co. v. Williams, 272 F. 439; Brewer v. Mo. Pac. Ry. Co., 259 S.W. 825; Lopez v. Hines, 254 S.W. 37; Yarde v. Hines, 238 S.W. 151, 209 Mo. App. 547; San Pedro, etc., R. Co. v. Davide, 210 F. 870; Wagner v. C. A.R. Co., 232 S.W. 771, certiorari quashed 291 Mo. 206, 236 S.W. 868; Hunt v. Chi., etc., R. Co., 259 S.W. 481, 303 Mo. 107. (2) There is no evidence of sufficient probative value to justify giving of Instruction W. Hughes v. Miss., etc., R. Co., 274 S.W. 703, 309 Mo. 560; Neal v. Curtis, 41 S.W.2d 543, 328 Mo. 389; Brosius v. Weber, 130 S.W. 134, 149 Mo. App. 181; Adelsberger v. Sheehy, 59 S.W.2d 644, 332 Mo. 954; State v. McCrackin, 162 S.W.2d 853; Stoll v. First Natl. Bank, 132 S.W.2d 676, 234 Mo. App. 364; Massey-Harris Co. v. Rich, 122 S.W.2d 858, 233 Mo. App. 509; Siegal v. Mo., etc., R. Co., 119 S.W.2d 376, 342 Mo. 1130; Roehl v. Ralph, 84 S.W.2d 405; Krause v. Pitcairn, 167 S.W.2d 74; Dixon v. Frazier-Davis Co., 298 S.W. 827, 318 Mo. 50; Masonic Home of Mo. v. Windsor, 92 S.W.2d 713, 338 Mo. 877.

Plummer v. Ford, 208 S.W. 489; Goggin v. Wells, 249 S.W. 702; Conley v. Mo. Pac. Ry. Co., 253 S.W. 424. (e) Plaintiff did not assume the risk arising from Essick's act in kicking the bar from the car. Dean v. Woodenware Works, 106 Mo. App. 180; Devitt v. Railroad Co., 50 Mo. 302; Lopez v. Hines, 254 S.W. 37; Preston v. Union Pac. Ry. Co., 292 Mo. 442, certiorari dismissed, 260 U.S. 753, 67 L.Ed. 496; Van Loon v. Ry. Co., 6 S.W.2d 587; Oregon, etc., Railroad Co. v. Tracy, 66 F. 931; So. Railroad Co. v. Miller, 267 F. 376, certiorari denied, 254 U.S. 646; Schlemmer v. Ry. Co., 205 U.S. 1, 51 L.Ed. 681; Seaboard Air Line v. Horton, 233 U.S. 492, 58 L.Ed. 1062; C. O. Railroad Co. v. De Atley, 241 U.S. 310, 60 L.Ed. 1016; Montgomery v. Railroad Co., 22 F.2d 359; Burgess v. Ore Co., 165 Mass. 71 Sumner v. Ann Arbor Ry. Co., 235 Mich. 293; 4 Thompson on Negligence (1 Ed.), pp. 623, 628, sec. 4608, 4610; Doyle v. Terminal Railroad Assn., 31 S.W.2d 1010, certiorari denied, 51 Sup. Ct. 345. (2) The court did not err in giving plaintiff's Instruction 1. (a) The finding required by the instruction, to the effect that the defendant was negligent in furnishing a motorcar without a tool box, is submitted in the conjunctive with the finding that plaintiff's fellow servant, Essick, negligently came in c

(1) The rules of pleading and practice of the state courts of Missouri are applicable to and govern the trial of this case. Federal Employers' Liability Act, 45 U.S.C.A., sec. 56; Norfolk So. Railroad Co. v. Ferebee, 238 U.S. 269, 35 Sup. Ct. 781; Ches. Ohio Ry. Co. v. Kelly, 241 U.S. 485, 36 Sup. Ct. 630; Lopez v. Hines, 254 S.W. 37; Pipes v. Railroad Co., 267 Mo. 385. (a) Federal decisions furnish the exclusive rules of substantive law applicable to cases of this kind. Mondou v. Railroad Co., 233 U.S. 55, 32 Sup. Ct. 169; M., K. T. Railroad Co. v. Wulff, 226 U.S. 576, 33 Sup. Ct. 135; N.C. Railroad Co. v. Zachary, 232 U.S. 256, 34 Sup. Ct. 305; Seaboard Air Line v. Horton, 233 U.S. 492, 34 Sup. Ct. 635; C.M. St. P. Ry. Co. v. Coogan, 271 U.S. 472; St. L.I.M. S. Ry. Co. v. McWhirter, 229 U.S. 265; St. L.-S.F. Ry. Co. v. Mills, 271 U.S. 344; Moran v. Ry. Co., 48 S.W.2d 881.

(2) Plaintiff alleged and proved prima facie that she had a good cause of action, and defendant treated the meritorious cause of action as properly pleaded throughout the trial, so that an affirmance of the judgment of the chancellor below would not be an idle action. Belcher v. Haddix, 44 S.W.2d 177; Whitehead v. Liberty, 56 S.W.2d 833; Stevens v. Westport, 25 S.W.2d 497; Mitchell v. Smith, 14 S.W.2d 47; Ford v. Ry. Co., 300 S.W. 774; Woods v. Moffett, 38 S.W.2d 528; Highway Comm. v. Cooper, 286 S.W. 736; Burrow v. Mo. Pac. Ry., 286 S.W. 438; Lorie v. Casualty Co., 8 S.W.2d 81; Garbee v. St. L.-S.F., 290 S.W. 656; Howard v. Scott, 225 Mo. 710; 21 C.J. 531; Swift v. Frisco, 15 S.W.2d 964; Lopez v. Hines, 254 S.W. 40; Griggs v. K.C. Rys. Co., 228 S.W. 508; Freeman v. K.C. Pub. Serv. Co., 30 S.W.2d 176; Whiteaker v. Mo. Pac., 28 S.W.2d 680; Riechers v. Meyer, 28 S.W.2d 405; Ayers v. Railroad, 190 Mo. 228; 34 C.J. 443; Greenard v. Isaacson, 220 S.W. 694; Hess v. Fox, 140 Mo. App. 437. (3) The representative of defendant was guilty of such words and actions as would and did mislead plaintiff, especially in view of her subnormal condition, both induced by nature and by the circumstances under which she was laboring.

This made a question for the jury. Railroad v. Cosio, 182 S.W. 83; Railroad v. Botkins, 45 Ind. App. 80; Railroad v. Turner, 138 S.W. 1126; Coil v. Payne, 220 P. 172; Lopez v. Hines, 254 S.W. 37; Railroad v. Davern, 177 P. 909; Soderland v. Railroad, 102 Minn. 240. (2) Plaintiff's Instruction 1 is based upon the facts stated in plaintiff's petition and does not omit any defense pleaded by the defendant as a defense to this action. But if it did omit such a defense it would not be error, as its alleged defense claimed to be omitted was presented to the jury in Instruction 8 given by the court.

The case was tried under, and is governed by the provisions of, the Federal Employers' Liability Act. Therefore, the questions whether appellant was negligent as charged, and whether respondent assumed the risk of injury under the facts established by the evidence, are to be determined by the law as declared by the Supreme Court of the United States. C. N.W. Railway Co. v. Bower, 241 U.S. 470; Second Employers' Liability Cases, 223 U.S. 1; Railroad v. Vreeland, 227 U.S. 59; Railway Co. v. Horton, 233 U.S. 492; Pryor v. Williams, 254 U.S. 43; Lopez v. Hines, 254 S.W. 37; McIntyre v. Railway Co., 286 Mo. 234. (3) Respondent assumed the risk of whatever injury, if any, was reasonably likely to occur as the result of using the claw bar in the condition in which he says it was at the time of the accident. He was experienced in its use, and thoroughly familiar with its construction and with its condition at the time and with such danger as might reasonably ensue from using it in that condition.

The company permitted the evidence of value of the attorney's fees to go in without objection or exception. In such case it is well settled that such alleged insufficiency of the petition is deemed cured after verdict, and the party will not be heard, for the first time, on appeal to attack the sufficiency of a general allegation upon which a recovery has been had. Geninazza v. Auction Co., 252 S.W. 417; Machinery Co. v. Bottling Co., 273 Mo. 142; Simpson v. Wells, 237 S.W. 526; Tebeau v. Ridge, 261 Mo. 547; Lopez v. Hines, 254 S.W. 37; Thomasson v. Mercantile Co., 217 Mo. 485; Wyler v. Ratican, 150 Mo. App. 474; Dieter v. Zbaren, 81 Mo. App. 612; McQuade v. Railroad, 200 Mo. 150; Hecfuss v. Am. Packing Co., 224 S.W. 99; Dickens v. Wells, 245 S.W. 563. The petition is in the very language of the statute, and the rule is well settled that it is proper to plead a liability under a statute in the language of the statute. 31 Cyc. 115; Patrick v. Haskell County, 105 Kan. 153; Rock Island Co. v. Printing Co., 71 Ill. App. 636; Jarvis v. Hamilton, 16 Wis. 574; Rosselle v. Klein, 59 N.Y.S. 94. The charge made by the petition that the company's refusal to pay was "vexatious" was a plea of the ultimate fact, and clearly apprised the defendant that it was called upon to defend the charge that its refusal was without just cause or excuse.

71; Benton v. St. Louis, 248 Mo. 109; Ward v. Dry Goods Co., 248 Mo. 348; Strode v. Box Co., 250 Mo. 695; Looney v. Railroad, 200 U.S. 480; Patton v. Railway Co., 179 U.S. 658. (e) It further appears from respondent's testimony that such condition was a changing and changeable one, and varied with the amount of rainfall, and it fails to establish that such condition was the proximate cause of respondent's injury. Warner v. Ry. Co., 178 Mo. 125; Trigg v. Lumber Co., 187 Mo. 227; Strother v. Railroad Co., 188 S.W. 1102; Cadwell v. Stove Co., 238 S.W. 415; Patton v. Railroad, 179 U.S. 658. (f) Respondent assumed the risk of injury resulting from the conditions prevailing at the time and place of this accident, whether those conditions were ordinarily incident to the duties which she was employed to perform or whether they existed as the result of appellant's negligence. 3 Labatt's Master Servant (2 Ed.) secs. 1182, 1186a; Pryor v. Williams, 254 U.S. 43; McIntyre v. Ry. Co., 286 Mo. 234; Lopez v. Hines, 254 S.W. 37; Railway Co. v. Horton, 233 U.S. 492; Jacobs v. Ry. Co., 241 U.S. 229. (g) Respondent's injury was due solely to her own negligence, both before and at the time of the accident. Forbes v. Dunnavant, 198 Mo. 193; Mathes v. Stock Yards Co., 185 Mo. 434; Trainer v. Mining Co., 243 Mo. 359; Railway Co. v. Wiles, 244 U.S. 444; Davis v. Kennedy, 266 U.S. 147. (2) The verdict is excessive.

(1) A petition is good after verdict, which cures all defects and irregularities except where the petition wholly fails to state a cause of action. Anderson v. Lusk, 202 S.W. 306; Laycock v. United Rys. Co., 290 Mo. 344; Lopez v. Hines, 254 S.W. 40. (2) The rule that in order to state a cause of action for the jerking of a freight train or a cable car incident to the stopping of same the petition must state that the jerk was an unusual one does not apply to an electric street car. Laycock v. United Rys. Co., 290 Mo. 344.