BILLINGS, Chief Justice.
Defendant Dresser Industries, Inc. (Dresser) appeals from a $3,000,000 jury verdict in this products liability action finding it 100% at fault for injuries suffered by plaintiff Terrence J. Fahy when he was run over by an asphalt roller. The jury found in favor of Dresser’s co-defendant, Machinery, Inc., an alleged seller of the roller. The Missouri Court of Appeals, Eastern District, concluded that Fahy had failed to prove that his injuries were caused by any defect in the roller and reversed and entered judgment for Dresser. This Court granted transfer, Mo. Const, art. V, sec. 10. Affirmed.
The asphalt roller at issue here was manufactured in 1950 by Gabon Iron Works and Manufacturing Co. Gabon was later acquired by Dresser and Dresser therefore now stands in the position of original manufacturer. The roller is known as a 3 to 5 ton Tandem Roller. It has two rolls which are hollow and can be filled with water to increase the weight, and therefore the compression capability, of the machine. The total weight of the roller unballasted, i.e., without water in the rolls, was in excess of 7000 pounds.
After the roller had passed through an indeterminate number of owners, County Asphalt and Paving Co. purchased it in 1964 or 1965. Hired to repave the drives of St. Trinity Cemetery in South St. Louis County, County Asphalt had the roller at the cemetery on August 23, 1979. The operator of the roller that day was plaintiff Fahy. Fahy, aged nineteen, had been a regular roller operator for County Asphalt for a year and a half. On this day, Fahy’s job was to compress previously spread gravel into hot oil with the Gabon roller. At about two in the afternoon, something went awry and Fahy was caught under and run over by the roller. Although several co-workers saw Fahy within a few minutes of the accident, no one witnessed it. Miraculously, Fahy survived, albeit with catastrophic injuries.
Fahy brought this products liability suit against Dresser, alleging that the roller had been designed defectively. There is some controversy as to exactly what design defect Fahy was attempting to prove at trial. Fahy states that he was trying to show that the roller was defective because it was designed so that it was able to operate even when no one was in the driver’s position. Dresser urges that Fahy tried to prove that the defect was that the roller should have been designed with a deadman switch. A deadman switch is a control which will shut off the motive force of a machine in the event that the operator leaves the driver’s position. The positions taken by Fahy and Dresser are simply alternative verbal formulations of the same defect. If the roller here had had a dead-man switch it could not have operated if no one was in the driver’s position. Any device that would have prevented the roller from operating when no one was in the driver’s position would have been, by definition, a deadman switch.
Dresser’s principal point on appeal is that Fahy failed to make a submissible case. In order for a plaintiff to recover under a products liability theory for an injury caused by an allegedly defective product, he must establish each of the following:
(1) defendant sold the product in the course of its business;
(2) the product was then in a defective condition unreasonably dangerous when put to a reasonably anticipated use;
(3) the product was used in a manner reasonably anticipated;
[638]*638(4) plaintiff was damaged as a direct result of such defective condition as existed when the product was sold.
MAI 3d 25.04. See also Nesselrode v. Executive Beechcraft, Inc., 707 S.W.2d 371, 375-76 (Mo. banc 1986); Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 366 (Mo.1969).
In reviewing a challenge to the submissi-bility of a case, the evidence is to be considered in the light most favorable to plaintiff, plaintiff is to receive the benefit of all inferences reasonably drawn from the evidence, and defendant’s evidence that does not support plaintiff’s case is to be disregarded. E.g., Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273, 274 (Mo. banc 1984).
Dresser argues Fahy failed to make a submissible case because Fahy introduced insufficient evidence to prove that the absence of a deadman switch was the proximate cause of Fahy’s injuries and thereby failed to prove the fourth element of a products liability case.
An expert witness for Fahy, Boulter Kelsey, testified that in his opinion the roller was defective because it lacked a deadman switch. He further testified that “the defect was the direct cause” of the accident because, “had the roll stopped when Mr. Fahy left the operating position, it would not have rolled over him.” An assumption underlying these opinions by Kelsey was that, immediately before the accident, Fahy had been in the driver’s position on the roller and had then fallen from this position into the path of the roller. Dresser asserts that these expert opinions do not constitute sufficient evidence to submit the case because Kelsey’s opinions were based on evidence insufficient to prove that Fahy had been in the driver’s position immediately before the accident and had then fallen from this position.
It is true that an expert’s opinion must have a substantial basis in facts actually established. E.g., Schears v. Missouri Pac. R.R. Co., 355 S.W.2d 314, 321 (Mo. banc 1962). However, the Court concludes the evidence, viewed most favorably to Fahy, was sufficient to prove Fahy was in the driver’s position immediately before the accident and he fell off and was run over by the roller. Scott Thoele, a co-worker of Fahy who was apparently the last person to see Fahy before the accident, testified that he saw Fahy off the roller cleaning tar and gravel from the roller wheels about five minutes before the accident. After that, within a minute or two of the accident, Scott saw Fahy back on the roller, operating it. This testimony that Fahy was operating the roller within a minute or two of the accident, coupled with the evidence that Fahy’s crushed body was discovered lying behind the still moving roller, gives rise to the reasonable inference that Fahy fell from the driver’s position to the ground and was crushed by the roller.
The testimony of Kent Thoele does not nullify this reasonable inference. Kent, also a co-worker of Fahy, testified that he saw Fahy off the roller cleaning its wheels “no more than a minute before the accident, I guess.” (Emphasis added.) Kent’s testimony that he guessed Fahy was cleaning the roller no more than a minute before the accident is not necessarily inconsistent with Scott’s testimony he saw Fahy operating the roller within a minute or two of the accident because both were only estimating the time. Making allowances for the sub-jectiveness of these time estimates, the jury could reasonably have believed Fahy finished cleaning the roller wheels about a minute before the accident and then climbed back on the roller only to soon fall off it.
Moreover, further evidence indicated that Fahy had finished cleaning the roller wheels before the accident. Kent testified Fahy was using gasoline and a rag and maybe a thin metal scraper to clean the tar and gravel from the roller wheels. Kent also testified Fahy normally kept the can of gasoline near him while he cleaned the wheels and would put the can to the side of the road when he finished cleaning and was ready to start to work again. The can of gasoline, the rag, and the scraper were all discovered after the accident sitting by a tree off to the side of the road. Lonnie Lucas, another co-worker of Fahy, testified [639]*639that he had talked with Fahy “a few minutes,” another subjective time estimate, before he became aware of the accident. Fahy told Lucas he was finished cleaning the roller wheels and ready to proceed with the paving job. The testimony as to Fahy’s normal cleaning procedure and the testimony from Lucas, when combined with Scott Thoele’s testimony, is substantial evidence that Fahy finished cleaning the roller wheels, got back on the roller, began to compress gravel into the hot oil, and then, for whatever reason, fell into the path of the roller.
Dresser also contends that Kelsey’s expert opinion that Fahy’s injuries were directly caused by the absence of a dead-man switch is not supported by sufficient evidence that, even had the roller been equipped with such a control, it would have stopped its motion before rolling over Fahy. This contention is without merit because Scott Thoele testified that he ran to the roller after it had run over Fahy to turn it off and that the roller rolled “a couple of feet” after he shut the engine off. There was also testimony from Kelsey that a deadman switch could be designed to apply the brakes at the same time it disengages the drive of a machine. Thus, if this roller had had a deadman switch which also applied the brakes, it seems that the roller would have stopped in much less than “a couple of feet” after Fahy left the driver’s position and thus activated the switch. Viewing this evidence most favorably to Fahy, a jury could reasonably infer that the roller would have stopped in the time it would have taken Fahy to fall from the roller.
Because there was substantial evidence that Fahy was in the driver’s position immediately before the accident and then fell and that the roller would have come to a stop before rolling over Fahy had it been equipped with a deadman switch, Kelsey’s expert opinion that the absence of a dead-man switch was the direct cause of Fahy’s injuries was based on substantial evidence presented at the trial. Thus, Kelsey’s opinion provided sufficient evidence to allow a jury to decide whether Fahy’s injuries were proximately caused by a defect in the roller.
Dresser also argues that Fahy failed to provide sufficient evidence that the absence of a deadman switch was the proximate cause of his injuries in that, even if the roller had had such a switch, Fahy’s evidence is not sufficient to prove that it would not have been circumvented by modifications made to the roller subsequent to its manufacture. The Court declines to require a plaintiff to provide evidence that a safety device, which was not incorporated into a machine, would not have been circumvented had it been so incorporated.
Dresser’s last argument with respect to the sufficiency of the evidence on the issue of proximate cause is that the trial court violated its constitutional due process rights by submitting this case to the jury. This is because submission of this case “would allow a jury to decide the issue of liability without any legally fixed standards.” In order to preserve a constitutional question for review, however, it must be presented to and passed upon by a lower court. E.g., Atkins v. Department of Bldg. Regs., 596 S.W.2d 426, 433 (Mo.1980). Dresser first raised this constitutional argument in its brief before this Court and thereby failed to preserve it. Even had the argument been preserved, it would have been .meritless. Jury instructions, conforming to the law and approved by this Court, informed the jury of the standards it was required to apply.
Dresser next argues that Fahy failed to make a submissible case because there was no evidence that the roller was in substantially the same condition at the time of the accident as it was when sold by Dresser. Because the fourth element of a products liability case requires the plaintiff to prove that he was damaged as a direct result of a defective condition of a product which existed when the product was sold, see MAI 3d 25.04, Fahy did have the burden to prove that the roller was in substantially the same condition at the time of the accident as it was when sold by Dresser. See Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 364 (Mo.1969).
[640]*640The roller was modified in several respects after it was purchased by Fahy’s employer, County Paving. The question here, however, is whether any of these changes were substantial. Fahy’s theory at trial was that the roller was defective because it did not have a deadman switch. Fahy presented evidence that the roller could have been designed with a directional lever, called a neutral safety, which would automatically return to neutral when released. Given Fahy’s theory at trial, any modification of the roller which would not have altered such a deadman switch, had it been installed, would have been insubstantial. In other words, if the roller had had a neutral safety which had not been circumvented, Fahy’s accident would have been avoided despite the other modifications to the roller. Given that there is no indication that this roller’s directional lever was modified in any way, Fahy’s evidence that the roller could have been designed with a neutral safety gives rise to the reasonable inference that the modifications to the roller did not put it in a substantially changed condition.
Dresser’s final argument pertáining to the submissibility of Fahy’s case is that Fahy presented no evidence that the roller was being used in a manner reasonably anticipated at the time of the accident. There is no merit to this argument. As discussed above, Scott Thoele, apparently the last person to see Fahy before the accident, testified that he saw Fahy using the roller to compress gravel into hot oil within a minute or two of the accident. When the accident was discovered, Fahy’s mangled body was found lying in the middle of the driveway being paved. Immediately after the accident tar and bits of gravel were clinging to Fahy. This evidence, viewed most favorably to Fahy, gives rise to the reasonable inference that Fahy was still using the roller to compress gravel into hot oil at the time of the accident. This was the job for which the roller was designed. Use of the roller in a job for which it was designed is a reasonably anticipated use. Consequently, there was sufficient evidence to prove that the roller was being put to a reasonably anticipated use at the time of the accident.
Dresser seeks to avoid this simple conclusion by arguing that, as a matter of law, it could not have reasonably anticipated that the roller would be used in its modified condition. There is nothing unforeseeable, however, about an owner of a machine making modifications to it and then continuing to use it after doing so. See Love v. Deere and Co., 684 S.W.2d 70, 76 (Mo.App.1985).
Dresser’s second point relied on is that the trial court erred in refusing to declare a mistrial after striking the accident reconstruction testimony of Fahy’s expert witness, Boulter Kelsey. Kelsey was initially permitted to testify that in his opinion the accident occurred after Fahy had finished cleaning the roller wheels and had returned to the driver’s position of the roller. While in this position, Kelsey continued, Fahy leaned forward and over the right side of the roller, most likely to reach the engine control panel located on the right side of engine casing. Fahy then lost his balance, Kelsey concluded, probably because the roller jerked, and fell off the right side and into the path of the rear roller wheel. Kelsey stated that Fahy could have been run over by the roller after falling off the side of the roller because, if the steering wheel was turned, the rear of the roller would swing out to enable it to make the turn. Subsequent to the admission of this reconstruction testimony, the trial court determined that it should not have been admitted and instructed the jury, orally and by written instruction, to disregard this evidence. The court refused to grant a mistrial at Dresser’s request.
The decision as to whether to grant a mistrial rests in the sound discretion of the trial court and, absent a manifest abuse of that discretion, an appellate court should not interfere. E.g., Hoene v. Associated Dry Goods Cory., 487 S.W.2d 479, 485 (Mo.1972). Additionally “the withdrawal and exclusion of erroneously admitted evidence [ordinarily] leaves no ground for reversing the judgment on account of such admission because it is, in the absence of [641]*641exceptional circumstances, to be assumed that the jury obeyed the trial court’s direction and considered only legal evidence.” Pender v. Foeste, 329 S.W.2d 656, 662 (Mo.1959).
There are no exceptional circumstances here which lead to the conclusion that the jury ignored the withdrawal instruction. Kelsey’s testimony as to product defect and causation and his reconstruction testimony were discrete enough so that the jury would have had little difficulty in knowing which testimony it could consider and which testimony was withdrawn. Ample admissible evidence was available for the jury to reach the conclusion it did. Besides, Kelsey’s reconstruction testimony added nothing to Fahy’s case. As discussed above, in order for Fahy to make his case he needed to prove that he had finished cleaning the roller wheels and was back in the driver’s position immediately before the accident and then had fallen somehow and been run over by the roller. The evidence from Scott and Kent Thoele and Lonnie Lucas already gave rise to the reasonable inference that this was what happened. The only thing added by the reconstruction testimony was a hypothesis as to what caused Fahy’s fall. Proof of the cause of the fall, however, was unnecessary to Fahy’s case because, according to Kelsey’s unstricken opinion, Fahy’s injuries would have resulted from a fall from the roller regardless of the cause. The trial court did not abuse its discretion in denying Dresser’s motion for mistrial.
Dresser’s third assignment of error is that Fahy’s lawyer misstated the law during closing argument when he asserted that Dresser could have had Teledyne Wisconsin Motors and Allied Construction Company included on the verdict form so that the jury could assess a percentage of fault to them. Teledyne Wisconsin had manufactured the replacement engine which County Asphalt had placed in the roller. Allied Construction had sold the replacement engine to County Asphalt. These two companies had originally been defendants in this suit but they reached settlements with Fahy before trial and were dismissed from the suit with prejudice. Dresser argues that it could not legally have forced the inclusion of these settling entities on the verdict form.
Misstatements of law are impermissible during closing argument and a trial court has the duty, not discretion, to restrain and purge such arguments. E.g., White v. Gallion, 532 S.W.2d 769, 771 (Mo.App.1975). In Missouri, fault is only to be apportioned among those at trial. E.g., Jensen v. ARA Services, Inc., 736 S.W.2d 374, 377 (Mo. banc 1987). Therefore, Fahy’s lawyer’s comment that Dresser could have included the two settling entities on the verdict form for apportionment of fault is a misstatement of law. However, a party is not entitled to assign as error improper arguments or remarks made at the trial by adverse counsel, where they were called forth by equally improper arguments or remarks made by his own counsel. Bobos v. Krey Packing Co., 323 Mo. 224, 232, 19 S.W.2d 630, 633 (banc 1929); 5 C.J.S. Appeal and Error sec. 1508 (1958). See also Hesse v. Wagner, 475 S.W.2d 55, 59 (Mo.1971); Eddings v. Keller, 400 S.W.2d 164, 171-72 (Mo.1966).
Here, Fahy’s lawyer’s improper argument was called forth by improper argument made by Dresser’s lawyer. During Dresser’s portion of closing argument the trial court ruled that Teledyne Wisconsin and Allied Construction were not to be referred to as having previously been defendants in the case. Immediately thereafter, Dresser’s lawyer stated:
I submit that the evidence was that at one time Teledyne and Allied were party Defendants in this lawsuit. They’re not in the lawsuit today. I’m not at liberty to explain why, but again, I have no objection ... if [Fahy’s lawyer] wants to explain....
This appears to have been a deliberate attempt by Dresser to improperly inject the settlement that Fahy had reached with Tel-edyne Wisconsin and Allied Construction into the jury’s deliberations, despite clear direction from the trial court that it not do so. It was in retaliation to the improper argument by Dresser’s lawyer that Fahy’s [642]*642lawyer made his improper argument that Dresser could have had Teledyne Wisconsin and Allied Construction included on the verdict form, but did not because Dresser knew it was at fault. Dresser cannot now assign error to this argument because it was invited by its own lawyer’s improper argument.
Dresser’s fourth point on appeal is that it should have been permitted to read into evidence allegations from petitions by Fahy which had been superseded. In the portions of the pleadings which Dresser desired to read Fahy alleged that Teledyne Wisconsin and Allied Construction directly caused his injuries because they manufactured and sold a replacement engine for the roller which was defective and unreasonably dangerous in that it was not equipped with a deadman switch. Dresser asserts that these allegations were admissions against interest by Fahy because they are admissions that some entity other than Dresser was liable for his injuries.
A superseded pleading is admissible against the party in whose behalf it was originally filed if it contains admissions or statements of fact against the interest of such party. E.g., Carter v. Matthey Laundry & Dry Cleaning Co., 350 S.W.2d 786, 791 (Mo.1961). General allegations that simply state that plaintiff’s damages were caused by some conduct on the part of defendant, however, are legal conclusions, not admissions of fact and, as such, are not admissible as admissions against interest. Wors v. Glasgow Village Supermarket, Inc., 460 S.W.2d 583, 590 (Mo.1970). The allegations Dresser sought to read into evidence were general allegations of the type discussed in Wors. Thus, they are not admissible as admissions against interest.
Dresser’s fifth point on appeal is that Fahy’s lawyer should not have been permitted to read into evidence the deposition testimony of Fahy’s expert witness, Dr. Frank Arnold, that it was his opinion that the roller was defective because it was capable of moving when no one was on it. Dresser contends that this opinion is inadmissible because it lacked foundation in that the question eliciting the opinion omitted facts showing similarity in the roller’s condition at the time of manufacture and at the time of the accident and showing that Fahy was using the roller in a reasonably anticipated manner at the time of the accident.
Any objection to deposition testimony is waived if the ground of the objection is one which might have been obviated if presented at the time the testimony is elicited. Rule 57.07(d)(3). Dresser did not object to the question at issue here at the deposition. Had Dresser objected then, the ground for the objection could have been obviated by reformulation of the question to provide the proper foundation for Dr. Arnold’s opinion. Dresser’s failure to object at the deposition resulted in a waiver of the objection. See Schiles v. Schaefer, 710 S.W.2d 254, 262 (Mo.App.1986). In any event, admission of Dr. Arnold’s opinion did not prejudice Dresser because it was cumulative of the testimony of Boulter Kelsey who had also stated that the roller was defective in that it could operate without anyone on it. See Mercantile Trust Co. v. Harper, 622 S.W.2d 345, 352 (Mo.App.1981).
Dresser’s sixth point on appeal is that the trial court abused its discretion in not granting a new trial on the basis of newly discovered evidence. At the trial, Dennis Collins, an employee of the City of St. Louis, testified that he operated an eight to twelve ton Ferguson asphalt roller for the city which had a directional lever, called a neutral safety, which automatically returned to neutral and stopped the roller when it was released by the operator’s hand. Seventy days after the entry of judgment in this case, Dresser submitted a supplemental motion for new trial accompanied by an affidavit and a sworn statement attesting that the city operated an eight to twelve ton Ferguson asphalt roller which did not have a neutral safety. Dresser asserts that this new evidence contradicts Fahy’s evidence that the city operates a Ferguson roller with a neutral safety and generally refutes the notion that a neutral safety is a practical feature on a roller.
[643]*643The grant of a new trial on the basis of newly discovered evidence is not favored and rests largely in the sound discretion of the trial court. E.g., Desloge v. County of St. Louis, 431 S.W.2d 126, 135 (Mo.1968). Questions as to the diligence of Dresser in procuring this evidence and the timeliness of the motion for new trial aside, the trial court did not abuse its discretion here in denying a new trial because the “new” evidence here is not material. The party seeking a new trial on the basis of newly discovered evidence must show that the new evidence is so material that it would probably produce a different result if a new trial were granted. E.g., Young v. St. Louis Public Service Co., 326 S.W.2d 107, 111 (Mo.1959).
Here, there is no indication that the Ferguson roller uncovered by Dresser is the same Ferguson roller which is operated by Dennis Collins. It is quite possible that the City of St. Louis operates two eight to twelve ton Ferguson asphalt rollers. Without any indication that the two Ferguson rollers are, in reality, the same machine, the evidence that the Ferguson roller uncovered by Dresser has no neutral safety in no way contradicts the testimony of Dennis Collins or refutes the practicality of a neutral safety. Therefore, this evidence would have little effect on a jury.
Dresser’s final assignment of error is that the trial court should have ordered a new trial because the $3,000,000 verdict was so excessive as to be obviously the result of passion and prejudice on the part of the jury. Alternatively, Dresser argues that the judgment against it should have been reduced by the amount of the settlement between Fahy and Teledyne Wisconsin and Allied Construction.
Fahy suffered grave injuries from a seven thousand pound asphalt roller running over the full length of his body. Fahy’s skull was fractured into multiple pieces. Brain tissue and spinal fluid came out of his nose. His brain swelled, causing extremely high brain pressure. Fahy’s facial bones were essentially separated from his skull. His nose and jaw were broken and some teeth were knocked out. He suffered a severely fractured pelvis and a fracture of the lumbar spine. His urethra was severed and blocked.
Fahy received extensive medical treatment for these and other injuries. A hole was drilled in his skull so that the pressure on his brain could be measured. He was given drugs to reduce this brain pressure. His facial bones were wired back to his skull. Doctors performed a tracheostomy, to help Fahy breath more easily, and exploratory abdominal surgery. Pins were placed in Fahy’s pelvis, which was itself placed in a sling, to stabilize it so that it could heal. He was in traction for months. Three times doctors performed surgery to repair Fahy’s urethra. A prosthesis was implanted in his penis to alleviate impotency caused by the accident. For months, Fahy underwent extensive physical therapy to learn to walk again.
Fahy has permanent brain damage. He is unemployable. He suffers from irritability, depression, confusion, dizziness, headaches, backaches, pain and stiffening in his hips, insomnia, and incontinence. He has no sense of smell, little appetite, a constant ringing in his ears, double vision, and blurred vision. He fatigues easily. He limps because his left leg is now about one inch shorter than his right leg due to a tilted pelvis. His face is now somewhat asymmetrical. He may have future problems with his urethra. Fahy used to lead an active life which included such things as working as much as he could and playing on softball and soccer teams. He now cannot undertake any strenuous activity and does little besides watch television and help his mother around the house.
The size of a verdict in and of itself does not indicate that a verdict is a result of passion and prejudice, without some additional showing that there was some trial incident or error which would have engendered the passion or prejudice. E.g., Blevins v. Cushman Motors, 551 S.W.2d 602, 615 (Mo. banc 1977). Because Dresser makes no attempt to argue that some incident at trial caused the jury to act out of passion or prejudice, there is nothing to indicate that the $3,000,000 verdict here [644]*644was the result of such improper considerations. Given Fahy’s grave injuries, the extensive medical procedures and therapy he has had to undergo, and the effect the injuries have had on his life, a $3,000,000 verdict is not excessive.
This Court also rejects Dresser’s alternative argument that the judgment should have been reduced by the amount of the settlement between Fahy and Teledyne Wisconsin and Allied Construction. This allegation of error was not preserved for appellate review because it was not presented to the trial court in a motion for new trial. See Rule 78.07; McConnell v. Pic-Walsh Freight Co., 432 S.W.2d 292, 301 (Mo.1968).
The judgment is affirmed.
RENDLEN and HIGGINS, JJ., ' concur.
ROBERTSON, J., concurs in result.
BLACKMAR, J., concurs in part and dissents in part in separate opinion filed.
DONNELLY, J., dissents in separate opinion filed.
WELLIVER, J., dissents in separate opinion filed.