Barclay, J.
Plaintiff recovered a judgment for $3,650 on account of personal injuries sustained in a railway accident on defendant’s line near Clinton, Missouri, December 15, 1887.
The ■ petition charged defendant with liability therefor because of negligence in a variety of forms, which will be sufficiently indicated later.
[417]*417The answer denied the charges, and asserted contributory negligence on plaintiff’s part, which he in turn denied by his reply.
The cause was tried in January, 1891, with the result above stated.
' In due time defendant filed a motion for new trial, which was denied; and, after the necessary exceptions, it brought the case here by appeal.
Several errors in the proceedings at the trial are assigned. Before taking them up a few words concerning the general features of the litigation will facilitate an understanding of whát follows.
Plaintiff was the conductor of a freight train on defendant’s railroad, and, at the time of the accident,was riding in a caboose, the last of some eleven cars, composing the train in his charge. One of these cars marked “0., B. & Q.” was loaded with ties, and had been taken into the train at Clinton, Missouri. After leaving Clinton, and while passing over a curve in the road, some of the cars ran off the track, and plaintiff was injured in consequence.
The C., B. & Q. car was the third from the end of the train, one car separating it from the caboose. The latter and two other cars were “ditched.” The body of the C., B. & Q. car remained on the track, but the track had parted from it and no longer supported it.
Plaintiff claims that the disaster was occasioned by defendant’s omission of ordinary care in the respects indicated in the instruction number 1, given at plaintiff’s instance, and so the jury found.
The defendant’s contention is that plaintiff’s injuries are ascribable to his own negligence as conductor-in causing the train to be run at a reckless rate of speed, etc.
[418]*418It will be necessary later on to state some further details of the testimony with reference to special points relied upon for a reversal.
I. Defendant complains of one ruling on the admission of testimony.
It appeared from the evidence of both parties that, at the period of the accident, Mr. Green was the assistant general manager of defendant’s railway and in active charge of its operations. He testified on defendant’s behalf.
Afterwards defendant examined Mr. Kane as a witness. During his cross-examination by plaintiff’s counsel the ruling in question occurred. The following passage from the record shows it fully:
“Q. Did Frank M. Green know anything about railroading1? (Objected to by defendant’s counsel as incompetent and immaterial, which was overruled by the court, and excepted to by the defendant.) A. I would rather not answer the question as an expert.
“Q. I understood you to say that you had been, in the railroad business for twenty years? A. Yes, sir. But I don’t like to answer the question, not on account of its effects on the case, but because I don’t like to say anything that will reflect on Mr. Green.”
As the witness himself withheld a direct response to the first question, no prejudice could have resulted to defendant from the court’s action, irrespective of the correctness or incorrectness thereof.
To the second question quoted no objection was interposed; nor was any objection or exception taken to the remarks of the .witness by way of supposed answer thereto. '
Only such exceptions are available on appeal as have been expressly decided by the trial court (Revised Statutes, 1889, sec. 2302).
[419]*419II. The next point in defendant’s brief is that '“the court erred in giving instruction number 1 asked by the plaintiff,” because “there was no evidence before the jury that the road was not properly ballasted, or that the ties were rotten where the train .jumped the track, or that the train left the track at the curve, or that the alleged defective brakes or overloaded car caused the accident.”
Of course, instructions should be predicated on the ■evidence so that if defendant’s contention is correct ■as to the insufficiency of proof in the particulars indicated, the instruction should not have been given. We will hence glance at’the testimony in this connection.
George Spangler, as a witness for plaintiff, deposed that he lived near the road; came to the wreck immediately after it occurred, and saw that “the caboose and two or three cars were dumped off the side of the track.” “The ties were rotton at the place the cars got off; had been over the track before that; quite a number were rotton; the track was uneven; one side would be low, the other would be high; there would be sags up and down; there was a curve there. * * * The ground was level, but not much dirt between the ties.”
E. E. Harris, another of plaintiff’s witnesses, testified that he was at the place after the wreck, and “had been over the track that day; it was in' bad condition ; many of the ties were rotton, and the roadbed was very narrow at that point; the ties would reach over beyond the road bed. This was three or four weeks before the accident. * * * The spikes would not hold, so that the ties would slip in and out from “the rails.”
William Gilkeson, for plaintiff, testified that he was present at the wreck; that “the outside rail on the [420]*420curve was lower than the inside rail, and some ties were rotten.”
Isaac Leonard (who was on the wrecked train) testified that he was a blacksmith and general mechanic for defendant; that “the brakes on the caboose were out of order; the connecting rod was too long; it wouldn’t draw tight enough to hold the car. Mr. Green was the manager of the road. He knew the condition of the brakes. * * * The Chicago, Burlington & Quincy car was loaded with green oak ties, as full as could be got in; dont know the weight of it; in going* around the curve the car would turn on the bolster, and when it got to where. the track was straight it could not get back, and consequently it would spread the rails and pull the spikes out and go off. I told Mr. Green the caboose was not fit to go; he said there was no other car.”
John Morrow also testified briefly for plaintiff, as follows: “I helped to build the bridges on the road. There was hot one sound tie in ten on the road.”
On defendant’s side, among others, Mr. Green, the assistant general manager, testified to the effect that the track “had been laid down about a year previous to the accident; the ties were not first class, but some were sound when laid down; the rails, first class steel and the spiking well done. The track was not ballasted. The condition of the track between Clinton and Latour was about uniform, requiring new ties; but the road was not in an unsafe condition, and ties, while old, would hold the spikes well to the rail.”
All the foregoing testimony came in without objection. - To say that it would reasonably justify, the inferences of fact called for by plaintiff’s first instruction, would be to describe its probative force very mildly.
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Barclay, J.
Plaintiff recovered a judgment for $3,650 on account of personal injuries sustained in a railway accident on defendant’s line near Clinton, Missouri, December 15, 1887.
The ■ petition charged defendant with liability therefor because of negligence in a variety of forms, which will be sufficiently indicated later.
[417]*417The answer denied the charges, and asserted contributory negligence on plaintiff’s part, which he in turn denied by his reply.
The cause was tried in January, 1891, with the result above stated.
' In due time defendant filed a motion for new trial, which was denied; and, after the necessary exceptions, it brought the case here by appeal.
Several errors in the proceedings at the trial are assigned. Before taking them up a few words concerning the general features of the litigation will facilitate an understanding of whát follows.
Plaintiff was the conductor of a freight train on defendant’s railroad, and, at the time of the accident,was riding in a caboose, the last of some eleven cars, composing the train in his charge. One of these cars marked “0., B. & Q.” was loaded with ties, and had been taken into the train at Clinton, Missouri. After leaving Clinton, and while passing over a curve in the road, some of the cars ran off the track, and plaintiff was injured in consequence.
The C., B. & Q. car was the third from the end of the train, one car separating it from the caboose. The latter and two other cars were “ditched.” The body of the C., B. & Q. car remained on the track, but the track had parted from it and no longer supported it.
Plaintiff claims that the disaster was occasioned by defendant’s omission of ordinary care in the respects indicated in the instruction number 1, given at plaintiff’s instance, and so the jury found.
The defendant’s contention is that plaintiff’s injuries are ascribable to his own negligence as conductor-in causing the train to be run at a reckless rate of speed, etc.
[418]*418It will be necessary later on to state some further details of the testimony with reference to special points relied upon for a reversal.
I. Defendant complains of one ruling on the admission of testimony.
It appeared from the evidence of both parties that, at the period of the accident, Mr. Green was the assistant general manager of defendant’s railway and in active charge of its operations. He testified on defendant’s behalf.
Afterwards defendant examined Mr. Kane as a witness. During his cross-examination by plaintiff’s counsel the ruling in question occurred. The following passage from the record shows it fully:
“Q. Did Frank M. Green know anything about railroading1? (Objected to by defendant’s counsel as incompetent and immaterial, which was overruled by the court, and excepted to by the defendant.) A. I would rather not answer the question as an expert.
“Q. I understood you to say that you had been, in the railroad business for twenty years? A. Yes, sir. But I don’t like to answer the question, not on account of its effects on the case, but because I don’t like to say anything that will reflect on Mr. Green.”
As the witness himself withheld a direct response to the first question, no prejudice could have resulted to defendant from the court’s action, irrespective of the correctness or incorrectness thereof.
To the second question quoted no objection was interposed; nor was any objection or exception taken to the remarks of the .witness by way of supposed answer thereto. '
Only such exceptions are available on appeal as have been expressly decided by the trial court (Revised Statutes, 1889, sec. 2302).
[419]*419II. The next point in defendant’s brief is that '“the court erred in giving instruction number 1 asked by the plaintiff,” because “there was no evidence before the jury that the road was not properly ballasted, or that the ties were rotten where the train .jumped the track, or that the train left the track at the curve, or that the alleged defective brakes or overloaded car caused the accident.”
Of course, instructions should be predicated on the ■evidence so that if defendant’s contention is correct ■as to the insufficiency of proof in the particulars indicated, the instruction should not have been given. We will hence glance at’the testimony in this connection.
George Spangler, as a witness for plaintiff, deposed that he lived near the road; came to the wreck immediately after it occurred, and saw that “the caboose and two or three cars were dumped off the side of the track.” “The ties were rotton at the place the cars got off; had been over the track before that; quite a number were rotton; the track was uneven; one side would be low, the other would be high; there would be sags up and down; there was a curve there. * * * The ground was level, but not much dirt between the ties.”
E. E. Harris, another of plaintiff’s witnesses, testified that he was at the place after the wreck, and “had been over the track that day; it was in' bad condition ; many of the ties were rotton, and the roadbed was very narrow at that point; the ties would reach over beyond the road bed. This was three or four weeks before the accident. * * * The spikes would not hold, so that the ties would slip in and out from “the rails.”
William Gilkeson, for plaintiff, testified that he was present at the wreck; that “the outside rail on the [420]*420curve was lower than the inside rail, and some ties were rotten.”
Isaac Leonard (who was on the wrecked train) testified that he was a blacksmith and general mechanic for defendant; that “the brakes on the caboose were out of order; the connecting rod was too long; it wouldn’t draw tight enough to hold the car. Mr. Green was the manager of the road. He knew the condition of the brakes. * * * The Chicago, Burlington & Quincy car was loaded with green oak ties, as full as could be got in; dont know the weight of it; in going* around the curve the car would turn on the bolster, and when it got to where. the track was straight it could not get back, and consequently it would spread the rails and pull the spikes out and go off. I told Mr. Green the caboose was not fit to go; he said there was no other car.”
John Morrow also testified briefly for plaintiff, as follows: “I helped to build the bridges on the road. There was hot one sound tie in ten on the road.”
On defendant’s side, among others, Mr. Green, the assistant general manager, testified to the effect that the track “had been laid down about a year previous to the accident; the ties were not first class, but some were sound when laid down; the rails, first class steel and the spiking well done. The track was not ballasted. The condition of the track between Clinton and Latour was about uniform, requiring new ties; but the road was not in an unsafe condition, and ties, while old, would hold the spikes well to the rail.”
All the foregoing testimony came in without objection. - To say that it would reasonably justify, the inferences of fact called for by plaintiff’s first instruction, would be to describe its probative force very mildly.
It was defendant’s personal duty as master to use ordinary care to keep and maintain its road way, cars [421]*421and machinery in a condition of reasonable safety for use by those required by it to work on or about the same. In our opinion, a description of the accident and of its circumstances emphasizes the - statements of the witnesses to the effect that defendant was negligent in the particulars submitted to the jury.
III. Defendant next points out a supposed error in the second of plaintiff’s instructions, in that there was no evidence that plaintiff had paid out any sums of money for medical attendance. The criticism is true. There was no proof that he had paid anything for such attention; but there was proof that he had become liable for such payment. There was positive testimony by plaintiff’s physician (uncontradicted by defendant) touching the nature and amount of his services to plaintiff, and that their value was “about $50.” The instruction would have been more accurate had it called for a recovery of the reasonable value of the necessary medical aid rendered to plaintiff, instead of “such sums as he has paid out for medical attention on account of said injury, if any.” But we do not regard such an error as materially prejudicial to the substantial rights of the defendant upon the merits, and hence consider it no ground for a reversal of the judgment, in view of the positive terms of the statutes to that effect. (Revised Statutes, 1889, secs. 2100 and 2303.)
It is also insisted that the second instruction is erroneous in calling for a finding for “such damages, if any, as you may believe from the evidence he will sustain in the future- as the direct effect of such injury.”
Plaintiff testified that the physician who first attended him after the injury had removed to California. He was not a witness in the cause; but Dr. Menees saw the plaintiff about December 1, 1887, and testified at the trial (more than three years after the [422]*422accident) as follows, in regard to Ms injuries: “He' was suffering with a bad ankle and had a cut on his face, and complained of his head bothering him a good deal. I was of the opinion he would never recover entirely from the injury to his ankle. . I examined him every few days for a good while, and then about eight months ago, and again since he was here this time; his condition was just the same as it is to-day. The ankle is not fit for ordinary use. My opinion is that the bones were separated in the ankle' joint; the outside bone was separated from the bones below. It was loose when we examined it; the ligaments had been injured. It is permanent.”
Defendant’s medical witness admitted that “an injury to the ankle is more likely to be permanent than at any other point.”
This testimony, we think, sufficiently sustains the submission to the jury of the fact of a permanent injury as expressed in the instruction under review. Rosenkranz v. Railroad, 108 Mo. (1891), 9.
IY. Here, though slightly out of the order followed in the brief before us, it may be well to dispose of the objection to the amount of the verdict ($3,650).
In addition to the evidence just mentioned showing that plaintiff had been permanently disabled in the use of his ankle, it further appeared from disinterested parties, who were present at the wreck, that plaintiff’s head and cheek (near the eye) were cut when he was picked up by the witnesses and put in the wagon that, carried him to Clinton. He “seemed to be pretty badly hurt, was bleeding, seemed to be out of his head,, •didn’t seem to know me until we got to town,” as-witness Spangler said. His left thumb was dislocated.. Plaintiff himself testifies that in consequence of the-injury he suffered from dizziness whenever he arose-suddenly, and that he had a pain' in the eye when he [423]*423got a cold, neither of which symptoms he had before the accident. He also stated that his capacity to labor had been seriously impaired; that he was “laid up” for three weeks and had been able to work only about one half the time since this mishap.
The trial judge saw the plaintiff and had a far better .opportunity to form a reliable judgment of the truth of his representations than we have with only a record before us. He has approved the amount of the verdict, and we do not regard his action in that particular as requiring the interference of this court.
V. Defendant complains of the refusal of certain instructions requested by it. Those given and refused will be set forth in the statement accompanying this opinion. By reference thereto we may be able to shorten our comments on that part of the case.
First. The requests for instructions numbered 3, 4, 5 and 7, we think,' embody mistaken views of the purport of the evidence as will be seen by a perusal of the second paragraph of this opinion. They are probably subject to other criticisms; but that just stated is sufficient to justify the action of the trial court.
Second. The refused instruction numbered 8 is obscured. If by “rate of speed” is meant “an unusually rapid” or “reckless rate of speed,” then defendant had the full benefit of that declaration in the instructions given, numbers 20 and 21.
Plaintiff testified that at the time of the catastrophe the train was upon a down grade, running about “eighteen or twenty miles an hour, about as usual.” Some of defendant’s witnesses placed the speed of the train as high as forty or fifty miles an hour; others of them at twenty-five to thirty miles. If the train ran off the track because the plaintiff, as conductor, suffered it to go at an extraordinary or negligent rate of speed, he would, of course, have no right to [424]*424recover; but if be ran the train at the usual rate of speed his conduct would not necessarily be negligent on that account. The cars may have left the track, while being run at a proper rate of speed, in consequence of the defective condition of the roadway, etc. That was the theory of plaintiff, and the finding sustains it. The eighth refused instruction was liable to mislead. In so far as it pointed to a correct rulé it was otherwise given by the court as we have shown. We think no error was committed in refusing it.
We have examined each of the points advanced to sustain the appeal, but finding none of them well taken, we affirm the judgment.
Black, C. J., Brace and Macparlahe, JJ., concur.