as a condition of recovery that the jury find | street railway defendant maintains and opdefendant negligently operated the auto, thereby causing the injury.

9. Trial 192-Instruction may assume undisputed fact of injury.

It is not error for instruction on damages to assume the undisputed fact that plaintiff was injured; there being no assumption as to the extent thereof.

10. Husband and wife209 (3)-Wife, working in store, may recover for impairment of working ability.

A married woman, who, with her husband, conducts a meatshop, she being a meat cutter conducts a meatshop, she being a meat cutter therein, may recover for impairment of her ability to perform such work, caused by defendant's negligence.

11. Damages 159(3)-Petition held to authorize recovery for impairment of working ability.

Allegation of petition, that plaintiff, because of her injuries, will be crippled and helpless, and dependent on assistance of others, authorized recovery for impairment of her ability to work at her ordinary avocations.

12. Damages 132 (7)-$16,000, for broken and shortened leg and other injuries, reduced to $12,000.

Verdict for $16,000 for woman whose injuries sustained were a broken and shortened right leg, serious and painful injuries to her back and left leg and her nervous system, and who lost weight from 180 pounds to 130 pounds, held excessive, and reduced to $12,000. Woodson, P. J., dissenting in part.

erates certain automobile trucks or emergency repair vehicles, in and upon the public streets of said city of St. Louis, Missouri; that on and prior to August 15, 1917, Spring avenue, at and near North Market street, was an open and public street of the city of St. Louis, Missouri.

"For her cause of action plaintiff states that on the 15th day of August, 1917, she was walking on the east sidewalk of said Spring avenue, near its intersection with said North Market street; that while she was situated as aforesaid, one of the aforementioned automobile trucks or emergency repair vehicles, in charge of and operated by the servants and employés of the defendant was so carelessly and negligently operated that it was caused to

swerve from said street, and to run upon and over the sidewalk on said Spring avenue, and directly upon and against plaintiff; that the said swerving from the street and onto the sidewalk as aforesaid was sudden, rapid, and without warning; that the said striking upon and against plaintiff was with great force and violence, crushing and pushing plaintiff against and through a wooden fence on the east line of said Spring avenue, and causing the injuries to plaintiff as hereinafter set out.

"Plaintiff further states that her said injuries were caused wholly and directly through the carelessness and negligence of the defendant, through its servants and employés, in that said servants and employés failed to exercise the highest degree of care that a very careful person would use under like or similar circumstances while operating such vehicle on, upon, along, or acròss public streets or avenues, in order to prevent injury to persons on, or traveling over, upon, or across, such public

Appeal from St. Louis Circuit Court; Rob streets or avenues. ert W. Hall, Judge.

Action by Mary Rogles against the United Railways Company. Judgment for plaintiff, and defendant appeals. Affirmed, on condition of remittitur.

Charles W. Bates, T. E. Francis, and Albert D. Nortoni, all of St. Louis, for appellant.

Vincent McShane and Edw. H. Bolm, of St. Louis, for respondent.

both

"Plaintiff states that, as a direct result of the negligence aforesaid, her right leg was fractured above the knee; that both legs were severely mangled, bruised, and lacerated; that her back was bruised and sprained, and that the ligaments of both sacroiliac joints were separated and loosened.

"Plaintiff further states that as a result of her injuries, as set out above, she has suffered, suffers now, and will continue to suffer in the future, much pain of body and mind; that her nervous system has been wrecked and shattered; that her legs, feet, and body have been, are now, and will continue to be swollen, SMALL, C. I. Appeal from the circuit sore, and painful; that her right leg was made court of the city of St. Louis. The plaintiff permanently shorter than her left leg; that sued the defendant for personal injuries re- plaintiff has suffered permanent personal disceived on the 15th day of August, 1917, by figurement, in this, to wit, that because of the shortening of her right leg, as set out above, . being run over by an automobile truck, call- and because of the sprained condition of her ed a trouble wagon of defendant, which, back and the loosening of the ligaments of the while plaintiff was walking upon the side-sacroiliac joints, all as set out above, plaintiff walk in front of 2424 Spring street, in St. does now, and will in the future, be compelled Louis, suddenly left the street proper, and to walk in a stooped and bent-over manner, ran across said sidewalk and struck and in- and will permanently have to walk with a limp jured her. The petition, omitting the cap-in her right leg.

tion, was as follows:

~Plaintiff states that the defendant is now and at all times herein mentioned was a corporation, operating and conducting a system of street railway in the city of St. Louis, Missouri; that in connection with said system of

"Plaintiff further states that she will in the future be compelled by reason of the injuries so sustained to spend much money for medical advice, medical assistance, and medicines; that because of her injuries she will throughout life be crippled and helpless, and dependent on the assistance of others; that altogether plain

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

tiff has been damaged in the sum of twenty-five ting- The Court: Killing the engine? Mr. thousand ($25,000.00) dollars.

bodily pain and mental anguish endured and suffered, if any, and her inability by reason of said injuries to perform her ordinary avocations of life, but may also allow such damages ture and extent of her injuries, will reasonably as it appears from the evidence, as to the naresult to her therefrom in the future."

The court also gave the following instructions for the defendant:

"No. 3. The court instructs the jury that, if you find and believe from the evidence that the plaintiff was injured by reason of an unforeseen and unavoidable accident, which could not have been anticipated by the defendant in the exercise of ordinary care, then plaintiff cannot recover, and your verdict must be for the defendant.

parts of the left leg were crushed, and there, tion, not only the physical injury inflicted, the was a marked depression therein, 22 or 3 inches wide. It was black and blue, and continued so a couple of months. Plaintiff's back was also bruised and discolored, and there was considerable swelling just below the small of the back, like there possibly was a blood clot under there. This was in the lumbar region. This was her condition, when he examined her the day of the accident. He sent her to the hospital, and treated her there until August 21, 1919, and had seen her two or three times since then, and was still treating her. Her inability to sleep he would attribute to her injury, and also the pain in her back. She was also nervous, and complains of inability to sleep and pains in her legs and back. The broken leg is shorter than formerly, about 14 inches. It is permanent. This produces a limp, and she does not stand erect. In some cases a shoe with a thicker sole or heel will correct the shortage in the leg, so she could get around better than without it. The leg, too, could be restored by an operation, by putting her under an anæsthetic and separating the fragments, take the bone splint from further up or further down the leg, as the case might be, and unite it to each fragment and close it up.

Dr. E. F. Randall, appointed by the court to examine the plaintiff, at the time of the trial, testified: That he could find no nervous condition from which plaintiff was suffering, or swelling of the legs, and no injury to her back, but that her right leg had been broken, and was shorter than her left leg, as testified by plaintiff and her physician. The court gave the following instructions for the plaintiff:

"No. 1. The court instructs the jury that, if you find and believe from the evidence that on the 15th day of August, 1917, Spring avenue, at or near its intersection with North Market street, was an open and public street in the city of St. Louis, Missouri, and if you further find that the defendant was on said date the owner of and in charge of an automobile truck or emergency repair vehicle, and that said defendant, through its agents and servants, negligently operated and controlled said automobile truck, or emergency repair vehicle, and that said automobile truck, or emergency repair vehicle, was caused to swerve from said street on and upon the east sidewalk thereof, suddenly, rapidly, without warning, and caused to strike upon and against plaintiff while she was on said sidewalk on Spring avenue at or near its intersection with said North Market street, and that plaintiff directly thereby received the injuries complained of, and if you further find and believe that plaintiff was at said time and place exercising ordinary care for her own safety, then the defendant is liable in this case, and your verdict should be for the plaintiff."

"No. 2. If the jury find for the plaintiff, you will assess her damages at such sum as you believe from the evidence will compensate her for the injuries sustained, and in estimating such damages the jury will take into considera

"No. 4. The court instructs the jury that, if you find and believe from the evidence that the plaintiff was injured by reason of an accident, and not through any negligence of the defendant, then the plaintiff cannot recover, and your verdict must be for the defendant.

"No. 5. The court instructs the jury that the charges of negligence made by plaintiff against mitted for your consideration in other instrucdefendant in this action, and which are subtions given you, must be proved to your satisfaction by the preponderance or greater weight of the evidence. You have no right to presume negligence, and if the evidence as to such negligence, if any, does not preponderate in favor of plaintiff, or if you are unable, because of conflicting testimony, to determine conscientiously upon which side preponderance of the of such events your verdict should be for deevidence as to said issues lies, then in either fendant."

Defendant also asked a demurrer to the evidence, which was refused. There was a verdict and judgment for plaintiff for $16,000, from which defendant appealed to this court.

[1-3] II. Learned counsel of appellant earnestly contends that its demurrer to the evidence should have been given; that there was no evidence that the driver of the truck was guilty of negligence in swerving the truck and causing it to run over the curb and upon the sidewalk and over the plaintiff, as alleged in the petition. We cannot agree to this contention, because there was abundant evidence showing such negligence. (a) There was evidence that he was going at too great a rate of speed to stop before he went over the sidewalk; (b) that he gave no warning to plaintiff of his inability to stop; (c) that he failed to shut off his gas until after he went over such sidewalk. (d) Defendant's own evidence shows that the truck was in perfect condition, and it must have been the driver's fault, therefore, that it was not stopped before leaving the roadway of the street. (f) Indeed, the fact that the driver permitted the truck to swerve from the street and to run upon the sidewalk, where it had no right to be, and over the plaintiff upon such sidewalk, where she had a right

(232 S.W.)

tion is predicated on the idea that defendant negligently "operated and controlled" said truck. We do not see any merit in this criticism. "Operated and controlled" mean substantially the same thing as "operated."

to be, was in itself evidence of negligence, if erated" said truck; whereas, said instrucnot gross negligence, in the operation of such truck, sufficient to submit the case to the jury. Huddy on Automobiles (5th Ed.) § 430; Jacob v. Ivins, 250 Fed. 431, 162 C. C. A. 501; Brown v. Des Moines Bottling Works, 174 Iowa, loc. cit. 719, 721, 156 N. W. 829, 1 A. L. R. 835. Whereas, our statute required the driver to exercise the highest degree of care, of a very careful person, in operating said truck, and made the owner of the truck liable for all injuries to persons or property, caused by his failure to exercise such highest degree of care. Laws 1911, par. 9, § 12, p. 330. This act of 1911 was repealed by the act of 1917. But the repeal did not take effect until after midnight of January 31, 1918, Laws 1917, p. 418. The plaintiff was injured August 15, 1917, while said act of 1911 was still in force, and defendant's duty must therefore be measured thereby. We must therefore rule this point against appellant.

[8] VI. It is also urged that said instruction No. 1 was erroneous, because it fails to require the jury to find the specific acts of omission or commission of the driver in operating the truck, which constituted the negligence in operating or controlling the same; that is, if we understood counsel, the jury should have been instructed to find whether the driver ran the truck too fast to stop it in time to avoid injuring plaintiff, or carelessly steered it so as to run over her, or omitted the timely and proper use of the brakes, or failed to shut off the spark or the gas, or to warn her in time, or did or failed to do other particular acts which might have constituted the negligence in operating or controlling said truck, which caused plain[4] III. But learned counsel insists that tiff's injury. We do not think this was necesthe driver purposely "swerved" or turned the sary. While, in a sense, the charge in the truck east in order to back it into defend-petition was specific, in that it charged the ant's garage across the street. Therefore injury was caused by the negligent operation the allegation of the petition, that he “negli- of the truck, it was general in its charge of gently" swerved said truck, is not proven. The gist of the allegation of negligence in the petition is that the driver negligently swerved the truck onto the sidewalk and struck and injured the plaintiff. What his intention was, and whether he was negligent in swerving or turning the truck, in the first place, is immaterial, and would have been harmless, had he not negligently failed to stop the truck, before going over the sidewalk and striking the plaintiff. We must disallow this point.

[5, 6] IV. It is also urged that plaintiff's instruction No. 1 is faulty, in that it does not require the jury to find that defendant's negligence in running the truck caused it to swerve from the street and run over the sidewalk upon the plaintiff. It is true that the instruction does not use the words "was thereby caused," but simply the words "was caused," to swerve from the street and upon the sidewalk and injure plaintiff. But it is clear enough, reading the whole instruction, that the jury were required to find that such swerving onto the sidewalk and running over the plaintiff was caused by the negligence of defendant in operating said truck. If there could be any doubt on that subject, which

we do not perceive, it was removed by defendant's instructions Nos. 1 and 2, which in express terms stated, in effect, that there could be no verdict for plaintiff, if she was injured by an accident "and not through the negligence of the defendant."

[7] V. It is also argued that the said instruction No. 1, given for the plaintiff, is broader than the petition, in that the petition alleges the defendant negligently "op232 S.W.-7

negligence in such operation. There being abundant evidence of negligent acts, both of commission and omission, on the part of defendant in operating such truck, the plaintiff's said instruction was not objectionable in following the language of the charge of negligence in the petition. It was specific enough, if it was confined to negligence in operating and controlling the truck. It was so confined. It was not required to point out or to specify more particularly which act or acts of negligence in operating said truck shown by the evidence caused the injury to plaintiff.

If the defendant desired a more specific or detailed finding by the jury as to such specific acts, it should have asked for instructions calling therefor. It failed to do so. We rule against appellant on this assignment.

[9] VII. Appellant's learned counsel also object to instruction No. 2, given for respondent, on the measure of damages, because it assumes she was injured. This objection is untenable, because that she was injured was an undisputed fact in the evidence. The defendant's driver was a witness for defendant, and testified as follows:

couldn't stop, and this lady was walking down "I done all in my power to stop it, and I couldn't stop, and this lady was walking down the street, and [I] got upon the sidewalk and hit this lady and caught her against the fence and knocked her down and hurt her."

There was nothing as to the extent of plaintiff's injuries. assumed in said instruction. Torreyson v. United Rys., 246 Mo. loc. cit. 707-710, 152 S. W. 32.

[10, 11] VIII. It is also urged: That said