JAMES T. BLAIR, J.
Statement
is an appeal from a judgment for damages for injuries respondent received by reason of having been struck by a freight ear which was being pushed by a switch engine along a main line track in Kansas City, Kansas. At the point where respondent was injured the main line runs east and west and is double tracked and the two tracks are joined by what is known as the Armourdale connection cross-over switch. Several hundred feet east of this cross-over what is called the southwest lead leaves the south track of the main line and runs in a southwesterly direction. From this lead switch tracks branch off and run westward parallel to the main line and on the south side of it. Three switching crews were working in this part of the yard&emdash;that of which respondent was a member, Milam’s crew and Williams’ crew. The injury to re- spondent occurred about 6:45 a. m., December 30, 1917. The cross-over led from the north main line track south- eastwardly about seventy feet to the south main line Statement line
track. The switch engine, of the crew of which respondent was a member, had moved westward along’ the north main line track, had passed the cross-over and had proceeded to a tank to take water. Its next movement required that it go east to the cross-over and then along that connection and out upon the south main line track. It was respondent’s duty to line the cross-over switches for that movement. This he proceeded to do and set the north cross-over switch so that his engine could
go
into the cross-over when it had completed taking water. Milam’s crew and engine were to the east on the north main line track. Williams’ crew and engine had gone down the southwest lead and into the second switch track leading therefrom and were then at no great distance from a point on the switch track directly south of the south cross-over switch which respondent was about to line for his engine. The evidence tends to show-that the weather was cold and that while it was not entirely dark the men were still using' their lanterns; that respondent attempted to line the south cross-over switch and found ice between the switch points and the- rails and was unable to remove this at once. He then returned to the north cross-over switch and lined it for the main line and went back to the south cross-over switch to get the ice out of the points. About this time Williams came across from his engine, and the evidence tends to show that respondent informed him the switch did not work; told him he would line it and get his engine through the cross-over first if he could before Williams ’ crew got out on the main line; but that if Williams got out first “let me know and I will stay in the clear and let you go and then we can go on out.” Williams’ engine was to go out of the switch track on which it was working, then out on the south main line track, and then move westward to a track entered from the south main line track by a switch west of the cross-over track. The evidence further tends to show that respondent then got a car bolt and undertook to remove the ice which prevented the switch from working; that he got upon his knees close beside the south
rail and set his lighted lantern on the rail near bnt east of him; that he then went to work with the car bolt to dig’ or break ont the ice from between the switch point and the rail; that respondent was in this position when Williams’ engine pushed two cars westward along the south main line track without warning of any kind; that it was a custom of long standing in such a movement, on this road and others, to place a switchman upon the end of the advancing string of cars for the purpose of warning any one who might be in a place of danger; that switch-man Rogers was upon the end of the car which struck respondent; that Rogers saw respondent when the cars were one hundred to one hundred and fifty feet away; that he gave respondent no warning of any kind and that no bell was rung or whistle sounded or other warning given; that the cars could have been stopped in less than the distance mentioned and, in fact, were stopped in less distance after the car struck respondent. Rogers testified that if respondent was kneeling near the rail, as he said, with a lighted lantern sitting beside him, as he testified, that he, Rogers, should have seen and warned him and that it would have been his duty to do so. There was other evidence to the same effect. Respondent says he had looked up the track and had seen no cars within two hundred feet, the distance he could see at that time in the morning, but that in a short time, about a.“minute,” he glanced up, saw the approaching cars and was almost immediately struck. He was seriously hurt.
There was evidence conflicting with what has been summarized, but the questions presented do not require that this conflicting evidence be set out here. Phases of it may be referred to hereinafter and the evidence concerning respondent’s injuries will be stated.
Demurrer to Evidence.
I. It is argued that the instruction in the nature of a demurrer to the evidence should have been sustained because (1) there was no evidence respondent was seen in a position of peril in time to have warned him and averted the injury, or (2) to have stopped the cars and prevented the injury; (3) that respondent’s testimony
shows he could not have heard a warning- if it had been given in time; (4) the risk was-assumed as a maYer of law; (5) because the properties of the Union Pacific were under the control of the United* States Government on December 30, 1917, and appellant was not liable for the injuries respondent suffered.
The case was submitted to the jury on the humanitarian doctrine.
Time to Warn.
(1) While there is countervailing evidence there was ample evidence respondent was seen in a position of danger in time to have warned him and, in fact, to have stopped the train and saved him. This evidence is summarized in the statement. Rogers testifies he saw respondent at a distance greater than that necessary to stop the train before striking him. It is true Rogers says respondent was not in a place of peril when he saw him. But respondent’s testimony is to the effect that he was kneeling* beside the rail long before the cars reached the point from which Rogers says he saw him and continued in this position almost until the moment of impact, obviously oblivious of the approach of the cars. Whether respondent was in the position he testifies he was in was a question of fact the jury settled in favor of respondent. There was ample evidence, and Rogers so testifies, that if respondent was in the position he says he was in, it was the duty of Rogers to warn him or stop the train, and it is testified to by everybody that he did neither in time. The evidence showed the cars could have been stopped in less distance than that between respondent and Rogers when Rogéis says he first saw respondent, and it is a fact that they were stopped in less distance when the stop signal was given just as respondent was struck.
Custom Warn.
(2) The rule that switchmen are expecte'd to look out for themselves is modified by the custom to warn which was pleaded and proved and is not applicable to a case in which cars are propelled, after an agreement to
notify, such as the evidence tends to show 'Williams made, toward-a switchman down upon his knees beside the rail engaged in picking ice out of switch points, who is seen to be in a position of peril and oblivious of danger and no warning is‘given nor the cars checked nor stopped.
Ability to Hear Warning.
(3) It is contended that the evidence conclusively shows that respondent could not have heard a warning if one had been given by Rogers and, therefore, the failure to give a warning was not negligence. This argument proceeds upon the idea that respondents ’ head* was so. wrapt that he could not hear and that his testimony that no warning was given is of no probative force in the face of the testimony of others, that Rogers did “yell” at him just before the car struck him. These were questions of fact. Rogers testified he did not warn respondent until the cars were almost upon him. True, he says the reason was that respondent was not down by the rail but walking toward the track and he assumed he would not walk into the cars. But whether he was to be believed as-to this last in contradiction to respondent’s testimony was for the jury. The fact that he did not warn respondent in time, if he was disbelieved on this last point, is proved by his own testimony.
Assumption of Risk.
(4) It is insisted respondent assumed the risk, as a matter of law. Since this case proceeds under the Federal Employers’ Liability Act, the Federal rule as to assumption of risk applies. [Quigley v. Hines, 291 Mo. 23.] Upon this phase of the case appellant cites Sea Board Air Line v. Horton, 233 U. S. 503; Jacobs v. Southern Railroad, 241 U. S. 229; C., R. I. & P. Railroad v. Ward, 252 U. S. 18; Erie Ry. Co. v. Purucker, 244 U. S. 320; Chesapeake & Ohio Ry. Co. v. DeAtley, 241 U. S. l. c. 313, and Same v. Proffitt, 241 U. S. 462. These cases do not add anything to the rule that “the servant assumes extraordinary risks incident to his employment or risks caused by his master’s negligence'which are obvious or fully known and
appreciated by him.” [Boldt v. Penn. R. R. Co., 245 U. S. l. c. 445; Quigley v. Hines, supra.] No authority is cited for the.proposition that an employee assumes the risk of having ears driven upon him without warning after he is discovered in a position of peril and condition of obliviousness to his danger. The question of assumption of risk was submitted to the jury.
II. Objections are made to the instructions.
Instructions.
(1) Plaintiff’s instruction 1 was long but not so long as many which appear here. It is not unnecessarily long. The ease required the predication of 1Tamer0Ilg facts before a verdict for plaintiff would be authorized. These facts it was necessary to incorporate in the instruction. This explains its length. Pacts necessary to a verdict cannot be omitted for brevity’s sake. It is also suggested that a clause in this instruction might have given the jury the impression that there was a duty to warn respondent whether or not he was seen in a position of peril and seen to be oblivious thereof. The difficulty with this assignment is that the instruction, but a few lines before the criticized language appears, expressly requires the jury, before returning a verdict for respondent, to find the identical facts which counsel argue the jury may have thought it was not required to find. It is also suggested that the instruction did not submit the issue of proximate cause to the jury in that it “did not require the jury to find that defendant saw plaintiff in a position of peril in time thereafter to have avoided the injury.” The instruction expressly requires this very finding before a verdict for respondent is-returned. It is further contended that the jury should have been required to find, before verdict for respondent, that respondent could have heard a warning had one been given. The instruction did require the jury to find the duty to warn, the opportunity to warn, the failure to warn, and then that this was negligent and that respondent’s injury was a direct result of such neg
ligence, before finding for respondent. This covered the issue whether respondent could have heard, had a warning been given. The insistence that there was no evidence warranting ¿he submission of this case on the humanitarian doctrine has been considered in a preceding paragraph.
(2) The objection to Instruction 2, given for respondent, is founded upon the view that respondent assumed the risk as a matter of law. This has been considered in a preceding paragraph.
(3) The trial court refused to instruct, in substance, that there was no evidence that respondent was seen in peril in time, by ordinary care, “to thereafter have stopped the cars and avoided the accident.” It is contended that when the cars were fifty feet from respondent there was no occasion to stop them and there was no evidence they could have been stopped in a less distance. This is without force unless it assumes' the truth of Rogers ’ testimony that respondent was not down by the track but was approaching it. Rogers saw respondent at a distance of much more than fifty feet. If respondent’s testimony is true he was then in a perilous position and discernibly oblivious of the approach of the cars. The trial court’s ruling was right.
(4) It is insisted the trial court erred in refusing to instruct that respondent was guilty of contributory negligence as a matter of law. It is argued that the issue should not have been left to the jury but that they should have been required to take contributory negligence as an established fact and required, as a matter of law, to make a proportionate reduction in the damages respondent suffered. Appellant reasons that it was negligence for respondent to place himself in a position in which he was likely to be struck by cars being moved in switching operations which he knew were impending and to fail to keep an effective lookout for such cars. [Gabal v. Railroad, 251 Mo. l. c. 268; Clark v. Railroad, 242 Mo. 606; Eppstein v. Railroad, 197 Mo. l. c. 729; Degonia v. Railroad, 224 Mo. l. c. 587;
State ex rel. v. Peters, 241 S. W. 121, and others.] These cases are not in point. Under the doctrine upon which this case was submitted the negligence of respondent, if any, in taking a position so near the rail that he might be struck by a passing car was not any part of the efficient cause of his injury if he was, as the jury found, seen in peril, of which it was apparent he was oblivious, in time for an effective warning to have been given or the train to have been stopped. Since respondent’s act was not a part of the efficient pause of the accident it could neither defeat his action under the state law nor entitle appellant, as a matter of law at least, to a reduction of damages under the Federal Employers’ Liability Act.
Weight of Evidence.
III. It is urged that respondent’s testimony is so highly improbable that
a-
new trial should have been granted. The trial court, who saw the witnesses, did not take this view and he alone can award a new trial on the weight of the evidence. Respondent’s testimony is not so in conflict with physical conditions or laws of nature that it must be rejected for that reason. The trial court’s ruling on the probability and credibility of respondent’s testimony is final so far as concerns the point now made.
Conduct of Counsel.
IV. Objections to conduct of counsel are made. One instance involves the action of the trial court in refusing" to reprimand respondent’s counsel for asking one of appellant’s witnesses a question said to be objectionable. The court sustained an objection to the question and, on the request to reprimand, said he believed the ruling sustaining the objection was enough. The question implied that the witness was attempting to shield appellant. It came after a series of evasive answers. It is not contended respondent’s counsel offended in like manner in any other question. The attitude of the witness laid him open to the inference the question drew. Such an inference drawn in the ars
gument would have been justifiable as the record appears here. In the circumstances there was no error. During the argument an exception was taken to a remark of counsel. The remark was withdrawn. Appellant’s counsel asked that the jury be discharged. This was refused. Appellant does not argue the point. No attempt is made to show the incident does not fall within the general rule. [Ostertag v. Railroad, 261 Mo. l. c. 457.] In two other instances in which appellant now complains of argument no objection or exception was made at the time, arid in the remaining one an exception to the ruling was taken by respondent but none by appellant. These are not reviewable.
Amount of Judgment.
Y. It is urged that the judgment is excessive. The verdict fixed the amount at $15,000. It was signed by nine jurors. The trial court required a
remittitur
of $5,000 and rendered judgment for $10,000. It is this sum which appellant now contends is too great. The evidence tends to show obligations for medical services of $200 and loss of earnings up to the time of the trial of $1,000. Respondent was in the early thirties. His injuries incapacitated him for further service in his occupation as a switchman. He was able to work part of the time at other things and was earning at the rate of ninety dollars per month for the time he was able to work, at the time of the trial. His earnings were materially less than a switchman’s pay. The evidence tended to show that the car struck him in the back and right side and knocked him about twenty-five feet; that he struck on his side and slid some distance in the cinders beside the track; that cinders were ground into his forehead, face, nose, right eyelid, lips and chin to a depth of one-fourth to three-eighths of an inch; that his lower lip was split through to his teeth and down to his chin; that his nose was broken in two places, and the septum was displaced so that one nostril was practically closed and useless and was subject to infection; that cinders were ground into the top of his head and part
of Ms hair torn off; that the blow had injured his back and that it pained him; that he continued to suffer from headaches, nervousness and inability to sleep normally; that his hip was injured and pained him and that his knees were torn and bruised and that the injury to one of these had resulted in synovitis and that the injuries to the hip and knee had resulted in a limp; that his taste had been affected; the rectus muscle of his right eye was partially paralyzed and the eye would “turn out” and he “saw double” and the eye could not be used, except for a short time, without rest; the hearing in one ear was materially affected; that the injuries to the face disfigured respondent greatly. The evidence also tended to show the disfigurement, The injury to the eye, the injury to the hip and knee and probably the back, and .the limp were permanent, and that the injuries to the nose and hearing were so unless a surgical operation was performed upon the nose. There was also evidence .that the kidneys had suffered to an extent that respondent was afflicted with irregularity and too great frequency in voiding urine. The testimony as to respondent’s disfigurement tends to show it was extreme. Respondent suffered considerable pain from his injuries and continued to suffer from them. If it be assumed respondent could work regularly at $90 per month his loss per month would amount to $22 without taking into consideration the increase of switchman’s wages after January 1,1918. Taking his expectancy into consideration and computing his probable loss of future earnings on that basis and then adding thereto his medical bill and actual loss of earnings up to the time of the trial, the aggregate would approach the total amount of the judgment. When this is considered and his serious and permanent injuries, disfigurement and pain and suffering are also taken into account, it cannot be' said the judgment is excessive.
Federal Control.
VI. The injury ‘ occurred on December 30, 1917. This action was begun February 5, 1918. The name given defendant sued was “Union Pacific Railroad Company.”
The Director General did not ask to be substituted and the railroad company did not ask that he be substituted. At the beginning of the trial in 1919 counsel objected,
ore tenus,
that the petition did not state a cause of action for specific reasons which did not include that now made, which is that this court should hold that no case was made “because the properties of the Union Pacific Railroad Company were, at "the time of the injury, December 30, 1917, under the exclusive control of the United States Government, and were being operated, on December 30, 1917, by the Director General of Railroads and. not by the Union Pacific Railroad Company.”
Under the Act of August 29, 1916, which authorized hifn so to do, the President, by proclamation, took charge of the railroads of the country-,-as of twelve o’clock noon, December 28, 1917. Of this and other proclamations of the. President the courts take judicial notice. [Givens v. Zerbst, 255 U. S. 11, and cases cited; Moon v. Hines, 205 Ala. 355, and cases cited; Railway Co. v. Nixon, 131 N. E. (Ind. App.) l. c. 534; West v. N. Y. Railroad Co., 233 Mass. 162; Spring v. Am. T.
&
T. Co., 86 W. Va. 192; Hettleman v. Frank, 136 Md. 351; Kersten v. Hines, 283 Mo. 623; Taylor v. W. U. Tel. Co., 231 S. W. 78.] The proclamation referred to contained the following:
“From and after twelve o’clock on the said twenty-eighth day of December, 1917, all transportation systems included in this order and proclamation shall conclusively be deemed within the possession and control of said Director without further act or notice. But for the purpose of accounting said possession and control shall date from twelve o’clock midnight on December 31, 1917.”
The power of the President under the Act of 1916 to take over the failroads cannot be denied, and the fact that they were taken over and went into the control and possession of the Director General at twelve o’clock noon, on December 28, 1917, is established by the explicit language of the proclamation by which they were taken over.
Respondent’s injury, therefore, occurred during Federal control. The result of Federal control was absolute exclusion of the railroad companies, as owners, from the use and management of their property and the complete negation of the idea of any liability on their part, as owners and as corporations, for damages for injuries resulting from the negligence of employees operating the roads. [Northern Pacific Ry. Co. v. North Dakota, 250 U. S. l. c.
148;
Kersten v. Hines, 283 Mo. 623; Missouri Pacific Ry. Co. and Hines v. Ault, 256 H. S. 554, 41 Sup. Ct. Rep. 593.] The Union Pacific Railroad Company was not, therefore, in possession of its property on December 30, 1917, and in the circumstances could not be liable, as such, for damages for injuries to respondent on that day. The date taken as a basis for accounting purposes does not affect the date of taking possession. It is merely an exception to the general language of the proclamation on that head. Counsel have not called to our attention, nor have we been able to find anything to show, that the time fixed in the President’s proclamation was changed and the press carried notice of the actual taking over of the roads at the hour fixed thereby.
After providing that control should be exercised and operation conducted by a Director General, thereby designated, the proclamation of December 26,1917, contained the following:
‘ ‘ Said director may perform the duties imposed upon him, so long and to such extent as he shall determine through the Board of Directors, Receivers, officers and employees of said systems of transportation.. Until and except so far as said Director shall from time 'to time by general or special orders otherwise provide, the Board of Directors, Receivers, officers and employees of the various transportation systems shall continue the operation thereof in the usual and ordinary course of the business of common carriers in the names of their respective companies.
“Except with the prior written assent of said Director, no attachment by mesne process or on execution
shall he levied on or against any of the property used by any of said transportation systems in the conduct of their business as common carriers; but suits may be brought by and against said carriers and judgments rendered as hitherto until and except so far as said Director may, by general or special orders, otherwise determine.”
This last quoted language was apparently the only guide in act or proclamation upon which counsel could rely in bringing the instant case. In these circumstances they interpreted this to mean that the railroad company could be and should be named as defendant. “In the absence of explicit direction” this was the natural thing to do when it was “sought to hold the Government liable.” [Mo. Pac. Ry. Co. and Hines v. Ault, supra.] This was done in many cases and there are many and conflicting decisions upon the propriety and effect of instituting an action in that way. . Some courts held the action must be against the Company and some held it must be against the Director General. These usually involve a construction of the Act of March 21, 1918, which had not been passed when this action was begun. Its construction has since been settled in the case last cited. It is common knowledge, supplemented by a reasonable inference from Section 10 of the Act of Congress of March 21, 1918, and directly referred to in Order No. 50, subsequently issued, that actions for injuries occurring under- Federal control were brought in large numbers and that the defendant was given the name of the corporation which owned the railroad upon which the injury occurred. Such defendants were not liable and there was no thought that judgments could be' collected from them, but there was then no express provision for suing any other,, and the proclamation explicitly provided that ‘ ‘ suits may be brought by and against said carriers and judgments rendered
as hitherto
until and except” as the Director might otherwise subsequently determine. This language seems to authorize the use of the corporation’s name as a defendant in such action as that before us for the purpose of trying out the question of liability,
the corporation to be protected against the judgment by other parts of the proclamation. The language of the Act of March 21, 1918, is somewhat different from that of the proclamation of December 26, 1917, pertinent to this question. In the proclamation the Director and the carriers are named as different authorities or entities, and the suability of the carrier is continued as to ‘ ‘ such suits . . . as hitherto ” except as the Director shall by order otherwise determine. He had issued no such order when this action was begun. While the President might not fix a liability upon a railroad under Federal control by proclamation or other means (Railway and Hines v. Ault, supra), he mig*ht prescribe the manner in which the action should be brought to enforce liability for negligence of the employee of the Director, and might authorize this or that name to be used to represent him as a party in such actions, always provided no such use of any name should result in liability on the part of any one save the Government or the Director General, as its representative. In this situation respondent began his action. Under the proclamation of the President and orders of the Director General the former employees of the company had become the employees of the Director General, exclusively, and-service upon them, as formerly, was service upon him in an action of this hind. [Lanier v. Pullman Co., 180 N. C. 406.] This case was not tried for a year, and meantime, in October, 1918, Order No. 50 was issued by the Director General. That order of the Director. General provided that an action like this, if thereafter brought, should be brought against the Director General, and that “the pleadings in all such actions . . . now pending against any carrier company for a cause of action arising since December 31, 1917, based upon a cause of action arising from or out of the operation of any railroad . . . may on application be amended by substituting the Director General of Railroads for the carrier company as party defendant and dismissing the company therefrom.” It will be observed this order makes no provision for a cause of action aris-
ing on December 30,1917, as did that of respondent. The courts soon began taking conflicting views concerning the validity of Order No. 50 in so far as concerned the language just quoted. At the time this case came to'trial this question was yet undecided by the Supreme Court of the United States. Counsel appeared in this case and, as stated, asked no substitution or dismissal of the company, so far as the record shows. Their answers to the amended petition, filed February 5, 1919, consisted of a general denial and pleas of contributory negligence and assumption of risk. No suggestion seems theretofore to have been made that the action was improperly brought. A jury was subsequently empaneled and sworn, and as the taking of testimony was about to begin objections to the reception of testimony were made
ore terms,
but no reference appears to any claim that the wrong defendant was named in the petition or that the defendant was wrongly named. The objections made were overruled and the taking of testimony proceeded for the better part of the day. At that juncture the question whether the Union Pacific or the Director General was in charge of the Union Pacific at the time respondent was injured was broached, and it appeared from the colloquy which ensued that on the forenoon of that day one of the counsel appearing for defendant had suggested that he would like to have the Director General substituted as defendant, and his co-counsel intervened with “wait a minute,” and the suggestion was not repeated or pressed further. During this colloquy counsel for respondent asked appellant’s counsel what position they took upon the question as to who was'in charge of the property and'liable. Counsel on both sides clearly were in doubt whether the road went into the possession of the Director General before midnight of December 31, 1917. As a matter of law, under the Proclamation of the President,- it went into his hands at mid-day December 28, 1917. Counsel for defendant refused, during this colloquy, to take either position upon -this question. Respondent’s counsel offered to substitute the Director General if defendant’s counsel would agree
that the Director General was in charge when respondent was hurt. Opposing counsel refused this offer on the ground that they had no authority on behalf of either .the company or the Director General to attempt “to fix liability, if any, as between the plaintiff and either of said parties. ’ ’ The agreement suggested was as to a matter of law, and the court might well have ordered the substitution but did not do so. Defendant’s counsel refused to consent to it. From the colloquy it is reasonable to infer that counsel appearing for defendant were counsel both for the company and the Director - General. As much is implied in what is said. They were taken into his service as were other officers and employees. The implication that they represented the Director is very much strengthened by the fact that they were then appearing in a case in which his liability alone was shown by the petition, and in which service had been had upon employees who represented him for the purposes of service. Served in this way, the Director General did not set up that he was sued under a wrong name. The effect of the attitude of counsel was a refusal to have the Director General substituted when the offer to substitute him was made by respondent’s attorneys. The trial then proceeded and was contested fully upon every issue, as it has been here.
Whether or not the fact that Order No. 50 authorized suit and substitution only in cases based upon causes of action arising after midnight of December 31, 1917, prevents the application of that order to this case makes no difference in view of the broad language of the Trans-' portation Act of 1920. Paragraph (d) of Section 206 of that Act (41 Stat. L. 462) provides: “Actions, suits, proceedings and reparation claims, of the character above described, pending at the termination of Federal control shall not abate by reason of such termination, but may be prosecuted to final judgment, substituting the agent designated by the President under subdivision (a).” The “actions” referred to (subd. a, sec. 206) include all actions based upon causes of action arising out
of the operation of railroads -under Federal control. The term includes the instant case.
In the circumstances the provisional motion of respondent should be sustained and the present Federal agent, appointed by the President under Section 206 of the Act of 1920, substituted as defendant and appellant. [Adams v. Ry., 229 S. W. 790; Kersten v. Hines, 283 Mo. 623; Robinson v. Ry., 150 Ga. 41; Gundlach v. Ry. Co., 172 Wis. 438; Peacock v. Ry., 208 Mich. 403.]
It results that the Federal agent is hereby substituted as indicated and ordered to be substituted on motion in the circuit court judgment, and the judgment is affirmed' as against him.
All concur.