BLAND, P. J.,
(after stating the facts). — 1. At the close of plaintiff’s case the Chicago & Alton Railway Company offered an instruction in the nature of a demurrer to the evidence which the court refused to give.
Plaintiff’s injury was caused by the negligence of one or both of the railway companies, and his evidence tended to prove negligence on the part of both; on the part of the street car company in that the motorman proceeded to cross the tracks of the Chicago & Alton Railway Company without stopping to look and listen for an approaching train, provided he was not told or signalled to come ahead by an authorized agent of the Chicago & Alton Railway Company. If the evidence of Miss Smith is. to be given credit, then it appears that a switchman on the back end of the train gave the motorman a signal to cross the tracks and when he proceeded to do so the train collided with the car. The argument, made to break the force of her evidence, that she did not know what train it was or whether or not the man on the train was a switchman is fallacious, for the reason the train she saw the man on was the one that collided with the street car, and it is not denied that this was a Chicago & Alton train, and the man she saw was dressed like a switchman, was on this train and was acting as a switchman and looked like one. Railroad management is not so loose as to permit or suffer anyone, other than an authorized person, to be upon its freight trains acting as such, [243]*243especially in its yards, where the train is under the eyes of the yard superintendents and switch bosses. We think the instruction for a nonsuit was rightfully denied.
2. In respect to the negligent acts of the two defendants upon which the plaintiff might recover of both, the court instructed the jury as follows:
“And if you further find from the evidence that the defendant Granite City and St. Louis Railway Company by its servants in charge of its cars could have prevented said collision by the exercise of a very high degree of care and foresight of skillful, careful and practical railroad operatives under the same or similar circumstances, then the plaintiff is entitled to recover as against the defendant- Granite City and St. Louis Railway Company.-
- “And if the jury find from the evidence in the case that the servants of defendant Chicago.& Alton Railway Company acting within the scope of their authority as defined in another instruction' given for the-Chicago & Alton Railway Company, prior to the collision, signalled the motorman in charge of the Granite City company car tb come forward and in doing so acted negligently and thereby directly contributed to cause said collision and plaintiff’s said injuries, then plaintiff is also entitled to recover as against the Chicago & Alton Railway Company.”
The instruction referred to as given for the Chicago & Alton Railway Company reads as follows:
“The court instructs the jury that a principal is not bound by the acts of his agents and servants except when such acts are within the scope of the authority of such agents or servants. Therefore, even if the jury believe from the evidence that a person or persons in the employ of the Chicago & Alton Railway Company signalled the agents and servants of the Granite City & St. Louis Railway Company in charge of the car on which the plaintiff was a passenger, to pro[244]*244ceed across the track and crossing of the Chicago & Alton Railway, nevertheless, if the jury believe from the evidence that the act of snch person or persons in so signalling was not within the scope of the authority of such person or persons then the defendant Chicago & Alton Railway Company cannot be held liable in this action by reason of such acts of such person or persons.”
These instructions are predicated on the pleadings and on the evidence considered as a whole, and are, in our opinion, unobjectionable.
2. The evidence offered by the defendant shows that the motorman did not see the signal given (if one was given) by the switchmen, but that he was guided by a signal from Rechter and by Rechter’s assurance that it was safe for his car to cross the tracks. Rechter denied that he gave any such signal or assurance, but the motorman and four other witnesses testified that he did, and we think it was on their evidence that the jury found the issues for the defendant street car company, and held the Chicago & Alton Railway Company liable. Viewing the case from this phase of the evidence, the Chicago & Alton Railway Company contends that there is no evidence showing or tending to show that it was within the scope of Rechter’s authority as yard conductor to give signals to persons or vehicles to cross the railroad tracks over the street, and for this reason the Chicago & Alton Railway Company ought not to be held liable, even if Rechter did signal the motorman to cross the tracks. If this contention is supported by the evidence, that is, if there is no substantial evidence showing or tending to show that Rechter was acting within the scope of his authority when he gave the signal, then it ought to be ruled in favor of the Chicago & Alton Railway Company, for a master is not liable for the negligent acts of his servants, unless the act is within the scope of the servant’s employment. This is well settled law everywhere.
[245]*245The preponderance of the evidence- shows that there was no brakesman or switchman on the end of ■the train to give warning of its movements or intended movements over the street; and that there were no gates at the street crossing, nor was there a flagman stationed there. It shows that the train had backed np to within five or six feet of the outer rail of the street, railway track. It shows that if the head end of the train had been struck by an engine backing up to couple on to it, the slack in the forty cars composing the train would have sent the rear car over the street railway track. It shows that Rechter was yard conductor and had charge of this train; that he was at the crossing when the street car approached and was the only employee of the Chicago & Alton Railway Company present Avho might speak or give signals in respect to the movements of the train toward the crossing, and it shows that he did give the motorman a signal to cross the tracks. It shows that Rechter had theretofore given signals or told people to stay back from the crossing. It shows that other employees of. the Chicago & Alton Railway Company, occupying the same position as Rechter, had given signals to travelers to cross these tracks at the street crossing, and it is in evidence .that it was the duty of Rechter and other yard conduch ors to protect the trains and property when making street crossings and, indeed, it would be- an unreasonable restriction of the authority of these yard conductors who superintend the making up of trains and have control of them while in their yards, if they were not authorized to say to people about to cross the tracks at a street crossing, that it was or was not safe to cross, and we think there is substantial evidence tending to show that Rechter was acting within the scope of his employment when he signalled the motorman (if he did signal him) to cross the tracks, and the court did not err in directing the jury, by an appropriate instruction, to find whether or not he was acting within the [246]*246scope of Ms employment at the time he gave the signal.
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BLAND, P. J.,
(after stating the facts). — 1. At the close of plaintiff’s case the Chicago & Alton Railway Company offered an instruction in the nature of a demurrer to the evidence which the court refused to give.
Plaintiff’s injury was caused by the negligence of one or both of the railway companies, and his evidence tended to prove negligence on the part of both; on the part of the street car company in that the motorman proceeded to cross the tracks of the Chicago & Alton Railway Company without stopping to look and listen for an approaching train, provided he was not told or signalled to come ahead by an authorized agent of the Chicago & Alton Railway Company. If the evidence of Miss Smith is. to be given credit, then it appears that a switchman on the back end of the train gave the motorman a signal to cross the tracks and when he proceeded to do so the train collided with the car. The argument, made to break the force of her evidence, that she did not know what train it was or whether or not the man on the train was a switchman is fallacious, for the reason the train she saw the man on was the one that collided with the street car, and it is not denied that this was a Chicago & Alton train, and the man she saw was dressed like a switchman, was on this train and was acting as a switchman and looked like one. Railroad management is not so loose as to permit or suffer anyone, other than an authorized person, to be upon its freight trains acting as such, [243]*243especially in its yards, where the train is under the eyes of the yard superintendents and switch bosses. We think the instruction for a nonsuit was rightfully denied.
2. In respect to the negligent acts of the two defendants upon which the plaintiff might recover of both, the court instructed the jury as follows:
“And if you further find from the evidence that the defendant Granite City and St. Louis Railway Company by its servants in charge of its cars could have prevented said collision by the exercise of a very high degree of care and foresight of skillful, careful and practical railroad operatives under the same or similar circumstances, then the plaintiff is entitled to recover as against the defendant- Granite City and St. Louis Railway Company.-
- “And if the jury find from the evidence in the case that the servants of defendant Chicago.& Alton Railway Company acting within the scope of their authority as defined in another instruction' given for the-Chicago & Alton Railway Company, prior to the collision, signalled the motorman in charge of the Granite City company car tb come forward and in doing so acted negligently and thereby directly contributed to cause said collision and plaintiff’s said injuries, then plaintiff is also entitled to recover as against the Chicago & Alton Railway Company.”
The instruction referred to as given for the Chicago & Alton Railway Company reads as follows:
“The court instructs the jury that a principal is not bound by the acts of his agents and servants except when such acts are within the scope of the authority of such agents or servants. Therefore, even if the jury believe from the evidence that a person or persons in the employ of the Chicago & Alton Railway Company signalled the agents and servants of the Granite City & St. Louis Railway Company in charge of the car on which the plaintiff was a passenger, to pro[244]*244ceed across the track and crossing of the Chicago & Alton Railway, nevertheless, if the jury believe from the evidence that the act of snch person or persons in so signalling was not within the scope of the authority of such person or persons then the defendant Chicago & Alton Railway Company cannot be held liable in this action by reason of such acts of such person or persons.”
These instructions are predicated on the pleadings and on the evidence considered as a whole, and are, in our opinion, unobjectionable.
2. The evidence offered by the defendant shows that the motorman did not see the signal given (if one was given) by the switchmen, but that he was guided by a signal from Rechter and by Rechter’s assurance that it was safe for his car to cross the tracks. Rechter denied that he gave any such signal or assurance, but the motorman and four other witnesses testified that he did, and we think it was on their evidence that the jury found the issues for the defendant street car company, and held the Chicago & Alton Railway Company liable. Viewing the case from this phase of the evidence, the Chicago & Alton Railway Company contends that there is no evidence showing or tending to show that it was within the scope of Rechter’s authority as yard conductor to give signals to persons or vehicles to cross the railroad tracks over the street, and for this reason the Chicago & Alton Railway Company ought not to be held liable, even if Rechter did signal the motorman to cross the tracks. If this contention is supported by the evidence, that is, if there is no substantial evidence showing or tending to show that Rechter was acting within the scope of his authority when he gave the signal, then it ought to be ruled in favor of the Chicago & Alton Railway Company, for a master is not liable for the negligent acts of his servants, unless the act is within the scope of the servant’s employment. This is well settled law everywhere.
[245]*245The preponderance of the evidence- shows that there was no brakesman or switchman on the end of ■the train to give warning of its movements or intended movements over the street; and that there were no gates at the street crossing, nor was there a flagman stationed there. It shows that the train had backed np to within five or six feet of the outer rail of the street, railway track. It shows that if the head end of the train had been struck by an engine backing up to couple on to it, the slack in the forty cars composing the train would have sent the rear car over the street railway track. It shows that Rechter was yard conductor and had charge of this train; that he was at the crossing when the street car approached and was the only employee of the Chicago & Alton Railway Company present Avho might speak or give signals in respect to the movements of the train toward the crossing, and it shows that he did give the motorman a signal to cross the tracks. It shows that Rechter had theretofore given signals or told people to stay back from the crossing. It shows that other employees of. the Chicago & Alton Railway Company, occupying the same position as Rechter, had given signals to travelers to cross these tracks at the street crossing, and it is in evidence .that it was the duty of Rechter and other yard conduch ors to protect the trains and property when making street crossings and, indeed, it would be- an unreasonable restriction of the authority of these yard conductors who superintend the making up of trains and have control of them while in their yards, if they were not authorized to say to people about to cross the tracks at a street crossing, that it was or was not safe to cross, and we think there is substantial evidence tending to show that Rechter was acting within the scope of his employment when he signalled the motorman (if he did signal him) to cross the tracks, and the court did not err in directing the jury, by an appropriate instruction, to find whether or not he was acting within the [246]*246scope of Ms employment at the time he gave the signal.
3. One of the grbunds assigned in the motion for new trial is that the damages assessed are excessive, and it is contended here that, if for no other reason, the judgment should be reversed for the reason that the damages assessed are largely in excess of a full and adequate compensation for the injury received.
The plaintiff testified that he was twenty-eight years old and was an electrician. He sustained a shock to his nervous system and his right hand and fingers thereof were injured. He was under the doctor’s care for three months, being treated for his nervous trouble and injury to his fingers. That one of the fingers was now all right, but that the middle finger of his right hand is still stiff. He is totally disabled from following his trade as an electrician, having done no work as such since his injuries, and now earns nine dollars per week as a bookkeeper, but before the accident he earned from eighty-five to one hundred dollars per month.
“Q. How much did you earn as an electrician? A. I earned as an electrician fifty cents an hour.
‘ ‘ Q. What were your average earnings before you were hurt, monthly ? A. It amounted • from $85 to $100.
“ Q. How much do you earn now ? A. $9 a week; that is, $36 a month.
‘ ‘ Q. State whether or not you have done any practical work since this injury ? ■ A. No, sir; not an hour’s work in practical business.
“Q. Did you attempt to work? A. Yes, sir.
“Q. Well, why didn’t you do it? A. I could not, the pain in the right hand was so hard I couldn’t do it; whenever I was called in places I didn’t trust myself. I had to be cool and collected; my nervous system is not that way any more.
‘ ‘ Q. How have these injuries been with reference to pain and suffering? A. Well, the first couple of [247]*247weeks it was only seldom that I conld sleep in the night; I was wallring the floor of the room almost every night from three to four hours.
“Q. Does your hand pain you now? A. When I put it in motion, yes, sir.
“ Q. What was your physical condition before you were hurt? A. I was always healthy and I could work. ’ ’
Dr. Fries, who treated the plaintiff for his injury, testified that plaintiff suffered from shock as well as from a severe contusion of the middle finger of the right hand and a slighter contusion of the ring finger. That his services were reasonably worth from fifty to seventy-five dollars. That he examined plaintiff’s hand a day before the day of the trial on the twenty-fifth day of February, 1904, and found the middle finger to be anchylosed. That the stiffness of plaintiff’s middle finger had been lessened since he treated him and he. did not think the lifting power of his right hand had been impaired, though he had not regained his full strength in it at the time of the trial; that he could not bend the middle finger over quite as far as he did before it was injured, and that it would always remain in that condition; that the injury was very painful for the reason the nerves of the fingers were injured.
The court properly instructed the jury as to the measure of damages. Their assessment was exclusively for the jury and its verdict has been approved by the trial court, therefore, unless it is manifest that the jury was carried away by passion or prejudice, its verdict should not be disturbed by an appellate court. Seemingly the damages assessed are more than adequate to compensate the plaintiff for his injuries, but they only appear so to one who did not witness the trial, did not see plaintiff in his injured condition, or hear the witnesses testify in respect thereto. The learned trial judge having approved the verdict, we will [248]*248not convict Mm of error by pronouncing a different judgment upon it and therefore affirm the judgment against the CMcago & Alton Railway Company.
4. Under the evidence we do not see how the jury could have done otherwise than find a verdict in favor of the Granite City & St. Louis Railway Company, and .the judgment in its favor is affirmed.
All concur.