Yost v. Union Pacific Railroad

149 S.W. 577, 245 Mo. 219, 1912 Mo. LEXIS 229

• Court: Supreme Court of Missouri
• Decided: July 5, 1912
• Status: Published

Opinion

BLAIR, C.

— This is an action to recover damages for personal injuries sustained by respondent while employed as a brakeman. From a judgment for $25,000 this appeal was taken. The petition alleged that .respondent’s injury resulted from the defective, unsafe and dangerous condition of one of appellant’s switches, at Julesburg, Colorado, and the negligent omission of appellant to warn respondent thereof. The answer consisted of (1) a general denial and then pleaded (2) contributory negligence, under the laws of Colorado, (3) the violation of a rule of appellant, (4) assumption of risk under the laws of Nebraska, (5) assumption of risk, under the laws of Colorado, (6) the four-year Statute of Limitations of Nebraska and (7) a two-year Statute of Limitations of Colorado. A demurrer to the sixth and seventh pleas was sustained. To the remainder of the answer respondent filed a reply consisting of a general denial, allegations that at the time of the injury the common law was in force in both Colorado and Nebraska, and that the rule pleaded had been waived and abandoned.

The respondent was injured June 3, 1902, while disconnecting the air hose between two moving cars in the yards at Julesburg, Colorado. Having made the disconnection he started to step out from between the cars when his right foot went into the opening between a crosstie and one of the spread bars of a split switch through which the cars were passing, his foot became wedged or fastened, he was thrown to the ground and the engine and two cars passed over him, inflicting severe injuries.

In January, 1902, respondent, then a grocery clerk, twenty-seven years old, and without experience in railroading, applied to H. Cox, appellant’s chief train dispatcher at North Platte, Nebraska, for employment as a brakeman. Cox, who was empowered to hire and discharge employees as well as to perform other duties, gave respondent a time card containing, among other things, numerous rules and regulations, told him to “study up- on the hand and lantern signals, train signals, fixed signals and on how to flag trains in case of accident” (but gave no instructions as to the rules relating to the safety of employees), and sent respondent to one of defendant’s freight conductors for instructions. In pursuance of this direction, in the latter part of the same month, this conductor, Moses McFarland, took respondent on two trial or instruction trips and on these instructed him with regard to brakemen’s duties, among many other things showing respondent how to disconnect the air hose between two moving cars, performing the operation for respondent’s enlightenment, advising him as to the use of the handhold, telling him that in performing this duty he should always “give one hand to the company and one to himself” and also informing him that the work was done by the method thus exemplified; that it was the practical way of doing the work. Respondent made one trip as a brakeman in February, three in March, about twenty in April, two in May and was injured on his first trip in June. Five of these trips were made on local freight trains, five on passenger trains and the rest on through freights. There was little switching to be done except with the local freights.

On February 24, 1902, the appellant’s board*of ex-, aminers called respondent for examination but discovering that he did not have the book of rules, supplied him therewith and dismissed him temporarily. Respondent was recalled on February 27 and passed. The book mentioned contained 1880 rules, about 800 of which seem to have pertained directly or indirectly to brakemen and their duties. . Respondent testified he read the rules. Among these was one forbidding brakemen to go between moving cars to couple or uncouple them.

On the day respondent was injured the train on which he was working as head brakeman (an extra freight) reached Julesburg about 7 or 7:30 a. m. The yards at Julesburg were of considerable extent. Appellant’s main line ran about east and west through the yards. The easternmost switch in the yards led into the east end of the passing track which was north of the main line. This switch is designated as switch No. 1. A switch leading from the passing track into a sidetrack north thereof is designated as switch No. 2. Switch No. 3 was some distance west of No. 1 and led from the appellant’s main line into what was called a “lead track” which ran in a southwesterly direction and from which successive switches led into numerous tracks, near each other, running west from such switches and parallel with appellant’s main line. Switch No. 4, the first switch on this lead track, called the incline switch, led into what is called the coal chute’s track. It was at this switch respondent was injured. Switches Nos. 5 and- 6 were next in order and led, respectively, from the lead track into the Colorado Central main line and the old Colorado Central main line. The switching orders, J une 3, required the entraining of several cars, two of them being local cars which it was necessary to place next to two other local cars which were next the engine. The two cars were on the old Colorado Central main line and a number of other cars stood between them and the switch. The conductor brought his train down east of switch No. 3, backed in over switch 4 and through switch 5 and left the caboose and a car or two on the Colorado Central main line. The engine and the two other cars then backed down through switch 6 and “picked up” all the cars on the old Colorado Central main line except the two local cars mentioned, these being at the west end of the string on this track, and pulled out until the last ear cleared switch 5. The purpose of the movements was to place all the cars taken off of track 6, and all but two in the original train, on the track with the caboose and then to back down to track 6 on which the two desired local cars had been left, couple to them and bring them up to track 5 and couple to the cars placed on that track.'

Backing in on track 5 the cars brought from track 6 were coupled to the cars left on this track with the caboose. At the time this coupling was made the engine was on the main line and the train extended through switches 3, 4 and 5. Respondent was the head brakeman and it was his duty to uncouple cars near the engine when necessary. From switch 3 to switch 5 the cars moved in a southwesterly direction but as they passed through switch 5 and upon track 5 they turned somewhat and thence ran directly west. Respondent was standing some distance south of switch 4 in order that he might see along the train to the caboose on which the conductor was riding. The conductor had given the rear brakeman, Mitchell, the switching orders and Mitchell,, as was customary, in the conductor’s presence and view gave respondent the signal to “cut off” the two cars next the engine, i. e., to uncouple the second from the third car in the train. Respondent testified in substance that this signal meant and was understood to mean that he was immediately to go between the cars, disconnect the air hose and then uncouple the cars and that its meaning had been taught him by McFarland, who instructed him, and he had also observed its use by other brakemen. When the signal was given respondent ran up the bank to the opening between the second and third cars from the engine and about thirty-two or thirty-four feet from switch 4, went between those cars to disconnect the air hose, preparatory to drawing out the coupling pin. He took hold of the handhold and walked between the cars as they moved slowly along, disconnected the air hose and started to step out from between the cars when his right foot went down between a cross-tie and the second spread bar in switch 4, his foot becoming wedged in the space beneath the spread bar. In his struggles he pulled his foot out of his shoe, tearing the shoe in so doing. He fell between the cars and the engine and the two cars passed over him.

Respondent testified that at the time he was injured the spaces between the spread bar and the ties on each side of it were four or five inches and that the space beneath the spread bar was three or four inches. The spread bar was of the kind called vertical (turned on edge), was about one and one-half inches wide and its top was half an inch below the level of the top of the ties. The distance from the top of the ties to the bottom of the space in which respondent’s foot was caught was therefore, according to respondent’s testimony, five or six inches. Respondent had never operated this particular switch before though he had passed over it on top of the car. At the time he stood south or southwest of it awaiting the signal he received, he was down below the switch and cars were passing over it all the time. He testified he had operated other switches on the road, that he had never particularly noticed the spread bar spaces, that he could have seen them on these other switches had he observed them, that he knew there were spaces between the spread bars of the switches he had operated and the ties on either side of them, spaces in which the spread bars moved, but' was not familiar with the measurements and distances in these spaces, that he would have had to take special notice to discover those, had taken no ■ special notice of them, but paid particular attention to the movements of the switch points to see that they “came over” to the rail, to the end that derailment might not result from an imperfectly closed switch. Respondent on further cross-examination said he did not know at the time whether the switch at which he was injured was different from others over which he had worked, that his mind was on the business in hand and he did not stop to consider the switch particularly, that he was not familiar with its construction, that he obeyed the signal given him but would not have attempted it at that place had he “known there was a six-inch hole there.” Respondent had done but little switching and the duty he had performed was to throw the lever at the switch stands, some four or five feet from the nearest rail.

There was evidence tending to show that the constant practice, in switching operations, both before respondent’s employment and during his service was to go between moving cars to disconnect the air hose.

Evidence was also offered that the space beneath the spread bar at which respondent was injured was considerably greater than was necessary, safe or customary in such switches. .

Appellant introduced evidence tending to show, among other things, that the switches on the Union Pacific in which vertical spread bars were employed were all constructed like that at' which respondent was injured, that the spaces beneath all such spread bars were two inches and that such construction, including the space mentioned, was necessary and customary on well managed roads. There was also evidence to the effect that the space beneath the spread bars under which respondent’s foot was caught was but two inches. Other evidence was to the effect that a six inch space beneath such spread bars was customary and the proper construction.

The common law was shown to be in force in Colorado and numerous decisions of the courts of that State were put in evidence.

I. The injury having occurred in Colorado the law of that State governs in this action. [Root v. Railroad, 195 Mo. l. c. 370, et seq., and cases cited; Newlin v. Railroad, 222 Mo. l. c. 391, 392; McGinnis v. Car & Foundry Co., 174 Mo. l. c. 227; Railroad v. Babcock, 154 U. S. l. c. 199; Railroad v. McDuffey, 79 Fed. 934; Railroad v. Keiffer, 132 Ky. l. c. 423, 424; Smith v. Railroad, 87 S. C. l. c. 138; Railroad v Becker, 67 Ark. l. c. 4; Railroad v. Carroll, 97 Ala. .] It follows that the action of the trial court in sustaining the demurrer to that part of the answer in which the Nebraska Statute of Limitation was pleaded was right and it also follows that the correctness of the court’s action in also sustaining the demurrer to that part of the answer setting up the bar of the Colorado Act of April 8, 1893, must be examined in the light of the laws of Colorado, that limitation being effectual only in case the “cause of action has been fully barred by the laws of the State, territory or country in which it originated” (R. S. Mo. 1909, Sec. 1895), to wit, in this case, the laws of Colorado.

It is averred in the answer that the Legislature of Colorado, in 1893, passed an act as follows:

“Where, after the passage of this act, personal injury is caused to an employee, who is himself in the exercise of due care and diligence at the time: (1) By reason of any defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from or had not been discovered or remedied owing to the negligence of the employer, or of any person in the service of the employer, or entrusted by him with the duty of seeing that the ways, works and machinery were in proper condition; or (2) by reason of the negligence of any person in the service of the employer, entrusted with exercising superintendence, whose sole or principal duty is that of superintendence; (3) by reason of the negligence of any person in the service of the employer who has the charge or control of any switch, signal, locomotive engine or train upon a railroad, the employee, or in case injury results in death, the parties entitled by law to sue and recover for such damages shall have the same right of compensation and remedy against the employer, as if the employee had not been an employee of, or in the service of the employer, or engaged in his or its works. ’ ’

It was further averred that by See. 2065, R. S. Colo. 1908 (Laws 1901, p. 161), it is provided that:

“Every corporation or company, or individual who may employ agents, servants or employees, such agents, servants or employees being in the exercise of due care, shall be liable to respond in damages for injuries or death sustained by any such agent, employee, or servant, resulting from the carelessness, omission of duty or negligence of such employer, or which may have resulted from the carelessness, omission of duty or negligence of any other agent, servant or employee of the said employer, in the same manner and to the same extent as if the carelessness, omission of duty or negligence causing the injury or death, was that of the employer;” and that,' by the same act, it was further provided that:

“No action for the recovery of compensation for injury or death under this act shall be maintained unless written notice of the time, place, and cause of injury is given to the employer within sixty days, and the action is commenced within two years from the occurrence of the accid.ent causing the -injury or death. ”

In this connection it was further alleged that by reason of the provisions of the Colorado statutes set out the cause of action in this case was barred, not having been commenced within two years after the respondent received his injuries.

A demurrer having been sustained to this portion of the answer, complaint is made of that ruling.

The common law was in force in Colorado in 1902. Negligence of the kind defined by paragraphs (1) and (2) of the act above quoted was actionable at common law and the petition in this case counts on common law negligence. The act did not abolish the common law action. That this is true is made clear by the universally recognized rule as to the strict construction of statutes in derogation of the common law and put beyond all question by tbe decisions of tbe Supreme Court of Massachusetts, from the statutes of which State the act in question was copied, and by the decision of the Supreme Court of Colorado construing the act pleaded.

In Ryalls v. Mechanics Mills, 150 Mass. 190 (decided in 1889), it was held that the common law action was unaffected by the statute, that it was not the legislative intent to “make all actions by workmen for defects in machinery statutory” and further held that “it would not need the aid of previous exposition to show that the main purpose of the statute, as the titje indicates, is to extend the liability of employers in favor of employees, that it does not attempt to codify the whole law upon the subject, and that it leaves open some common law defenses and some common law liabilities. ’ ’

The court further declared in that case that tbe statute was to be construed “liberally in favor of erp.ployees, and we ought to be slow to conclude that indirectly, and without express words to that effect, it has limited the workman’s common law rights mojst materially in respect to the condition and time of bringing an action, and the amount which he can recover. For all these provisions stand upon the same footing with regard to the present case. . . . Certainly, with such a statute as this, we agree that common law rights are not to be taken away by doubtful implications and affirmative words.”

In concluding the court held that “in those cases within the words” of the statute “in which the common law gives the employee a remedy, he still has a right to sue under the same conditions, and to recover damages to the same extent, as if the statute had not been passed.” It was specifically held that the requirement in the act as to notice of the time and place of injury did not apply to any common law action, though the negligence giving rise to it might be included in that defined by the statute.

As the court indicated, the reason which supported this ruling as to the requirement of the act as to notice just as fully necessitated a like ruling as to the limitation of two years within which the act required .actions under it to be brought. The reason for the holding that the statutory notice was not requisite in a common law action though the negligence counted on was included in that defined by the statute was that such common law action was not an action under the statute. If not an action under the statute, then the limitation as to time in the statute was and is as inapplicable as the provision as to notice.

After the statute had thus been construed in Massachusetts (1889), it was incorporated in the laws of Colorado.in 1893 and brought with it the construction placed upon it in Massachusetts, as was directly held by the Supreme Court of Colorado in Colorado Milling & Elevator Co. v. Mitchell, 26 Colo. 284, in which case’the question of the necessity of the notice required by the Act of 1893 was before the Supreme Court of Colorado. From the language of the act, its prior construction in Massachusetts, the construction given it by the Supreme Court of Colorado, and other decisions of like tenor (Railroad v. Norgate, 141 Fed. 247; Gmaehle v. Rosenberg, 178 N. Y. 147; Railroad v. Little, 75 Kan. 716), we are of the opinion that the provision of the Act of 1893 with reference to the time within which an action under that act might be brought has no application to the present case, it being an action at common law and not an action under the statute at all. It is true that until the evidence was taken there was no proof that the common law was in force in Colorado, but that fact was pleaded in respondent’s reply and the proof of the fact was offered by appellant during the progress of the cause. The sole effect of the ruling sustaining the demurrer was to deprive appellant of the benefit of the defense of the special limitation incorporated in the Act of 1893, and since the whole record shows appellant would have been as certainly deprived of it in the long run had the demurrer not been sustained as it was by the ruling sustaining the demurrer, the ruling on the demurrer has been treated as if appellant had conceded the existence in Colorado of the common law on the hearing on the demurrer. Having shown the law of Colorado to he such as to sustain the ruling, appellant cannot now complain merely because the trial court applied the correct rule before the formal proof of it was made.

II. It is contended by counsel for appellant that the recital in the hill of exceptions that “defendant’s motion for new trial and in arrest of judgment are by the court overruled; to which ruling and action of the court the defendant at the time duly excepted and still excepts,” shows no sufficient separate exception to the overruling of the motion for new trial and, consequently, matters of exception cannot he reviewed. The identical question presented has been recently decided (Sotham v. Drovers Telegram Company, 239 Mo., l. c. 606), and for the reasons given in that case the exception in this must he held properly saved.

III. It is argued that the court erred in overruling appellant’s demurrer to the evidence. Several reasons are assigned for this position.

(1) It is said that under the laws of Colorado “in the absence of defective construction, or of negligence or want of care in reparation of machinery furnished him, the master incurs no liability arising from its use. The general rule is that the servant accepts the service subject to the risks incidental to it; and where the machinery and implements of the employer’s business are at the time of a certain kind, and the servant knows it, he can make no claim upon the master to furnish, other or different safeguards.” [Denver Tramway Co. v. Nesbit, 22 Colo. l. c. 411.] The argument is that “plaintiff had entered into the employment of the defendant knowing that the defendant used the kind and character of switch complained of in his petition, and he accepted the employment with such knowledge and without any promise or inducement on the part of the defendant to enter its employment, that such switches would be discarded and different switches put in their place; and, therefore, . . . plaintiff assumed whatever risk of injury arose from the operation of said switch.” Conceding that the rule quoted is, as contended by appellant’s counsel, a complete statement of an applicable principle, the vice in the argument lies in the incorrect assumption of facts it contains. The evidence for appellant tends to show that a two-inch space beneath the spread bar was the uniform construction on its line in that respect and that this standard was conformed to in the switch at which the injury occurred. The evidence for respondent, however, tends to show that the space beneath the particular spread bar under which respondent’s foot was caught was as much as four inches. The jury might well have inferred from the measurements of respondent’s foot and the manner in which he was injured, that the space beneath the spread bar mentioned must have exceeded the alleged standard in that respect and that respondent’s injury could not have resulted had the space beneath the spread bar been but two inches, which some of appellant’s evidence tended to show was the uniform, proper and necessary space in switch construction. Further it was stipulated by appellant’s counsel that the switch at which respondent was injured was, at the time, in all respects in the same condition it had been in for months and that appellant had knowledge of that condition during that time. Respondent testified he had no knowledge of the condition of switch No. 4. Even could it be held that he must be presumed to have known the depth of the space between the spread bars on the switches he had operated, it cannot be held as a matter of law that he consequently knew the depth of such space beneath the spread bar under which his foot was caught, the evidence tending to show that this space exceeded that in all other switches.

The general principle as to the imputation of knowledge of risks incident to the character of the plant or appliances of the master as constructed and in use at the time the servant takes employment (the principle contended for by appellant), as is said by an eminent authority (1 Labatt on Master and Servant, Sec. 404), “obviously has no application to cases in which it is shown that conditions like those which caused the injury were, as a matter of fact, exceptional rather than normal.” There being a conflict of evidence both as to the customary construction on appellant’s road and as to the conformity of switch 4 to the construction appellant contended was uniform on its line, the questions of fact thus presented were for determination by the jury. The jury were instructed on this phase of the case fully and as favorably to appellant as it had the right to ask. The fact that the spaces between the spread bar and the ties (and the spread bar itself, in its dimensions), conformed to the customary construction, would not, even if concededly true, render necessary the conclusion that the space beneath the spread bar was the customary one. The evidence on this point was in conflict and from the evidence the jury might well have found that it was the nonconformity of this space to the customary construction appellant attempted to prove which caused the injury, i. e., that a two-inch space would not have admitted respondent’s foot enough to have wedged it between the crosstie and the spread bar and that a six inch space would have admitted of the easy withdrawal of his foot without difficulty in the circumstances. The trial court was right in refusing to sustain the demurrer on this ground.

(2) It is next contended that the demurrer should have been sustained on the ground that respondent must, as a matter of law, be held to have known and appreciated the particular danger incident to the condition of switch No. 4 and to have assumed the risk. Numerous cases are cited and quoted which announce the familiar rule as to the assumption of risks from known conditions and dangers and those so obvious that knowledge of them, under proper circumstances, will be imputed as a matter of law. To uphold this contention it would be necessary to absolutely reject the positive testimony of respondent that he did not know anything about this switch, never having operated it, and to hold that in the circumstances plaintiff must be conclusively presumed to have known of the existence of a dangerous'space beneath the spread bar, a space which the evidence tended to show was not customary on appellant’s road and not according to the standard of construction it claimed to have adopted. This we cannot do, in view of the rule universally followed and in force at the time in Colorado. [Railroad v. Brady, 45 Colo. l. c. 209; Denver Traway Co. v. Nesbit, 22 Colo. 408; Rice v. Van Why, 49 Colo. l. c. 36, 38; Railway v. Keegan, 87 Fed. 849.] The question as to respondent’s knowledge was whether by the exercise of ordinary care he could have known of the condition of switch No. 4 in the particular respect which substantial evidence tends to show caused the injury (Denver Tramway Co. v. Nesbit, 22 Colo. l. c. 411, 412), such defect not being of the open and obvious character necessary to charge him with knowledge as a matter of law. [Denver Co. v. Reiter, 47 Colo. l. c. 427, 428; Wells v. Coe, 9 Colo. l. c. 166, 167; Railroad v. Burchard, 35 Colo. l. c. 557.] Respondent denying knowledge, the question whether knowledge was to be imputed to him from the exercise of ordinary care was, in the circumstances, for the jury. [Railroad v. Brady, 45 Colo. l. c. 206.]

On this phase of the case the court instructed the jury fully, giving all instructions asked by appellant (with some modifications) and giving none for respondent which announced a rule less favorable to appellant than that contained in the instructions appellant requested. The modifications made by the court are complained of but no authorities are cited and the principlés announced herein demonstrate the correctness of the trial court’s action in this regard. These modifications need not, therefore, be specifically discussed.

So*far as concerns the rule requiring respondent, as an employee, to use due care and to acquaint himself with the location of structures and objects, including switch stands, near enough to the track to.endanger him when on the top or sides of cars, it added nothing to respondent’s common law duty with respect to familiarizing himself with things other than those of the class specifically mentioned and certainly furnishes no sound basis for the contention made, in substance, that if respondent obeyed the rule and familiarized himself with switch stands it must follow as a matter of law that he thereby necessarily obtained full knowledge of the track construction in appellant’s switches generally and in switch No. 4 in particular, including a knowledge of the space beneath the spread bar.

(3) It is next urged that the switch “was a standard switch, adopted and used by the up-to-date railroads in the same territory . . .' and, therefore, there was no negligence shown in maintaining such switch” and the demurrer should have been sustained on that ground. So far as concerns anything connected with this switch save the space beneath the spread bar, let it be assumed that counsel are correct. With respect to that space there was evidence tending to show there were roads constructing their switches with a space of an inch or less, others with a space of two inches and others with a six-inch space. The fact that the switch in all other respects conformed to the usual custom of construction of switches of the same kind does not exonerate appellant from liability for an injury resulting (as the jury could well have found in this case) from conditions created by a departure from the customary construction in a material particular. On the record in this case, we cannot hold as a matter of law that the trial court was compelled to believe appellant’s witnesses, to the exclusion of those of respondent, as to the customary space left beneath vertical spread bars in proper switch construction and maintenance and direct a verdict for appellant on such finding. In fact, as to the proper depth of such space, appellant’s own witnesses were themselves in marked disagreement with each other. Again, there was evidence that the space in this particular switch (No. 4) conformed to no standard or custom of construction as testified to by any witness. Another consideration is that the rule in Colorado is that “a railroad company is not relieved of its obligation to furnish a reasonably safe place by showing what other railroads have furnished, and the fact that open trestles are used on other railroads constitutes no defense to an action of this kind, if, as a fact, the court cannot declare as a matter of law that the place furnished is reasonably safe. The question is not determined by showing that other railroads have been maintained in the same condition as the' defendant’s trestle, but it is the province of the jury to determine, under all the circumstances of the case, whether the defendant has or has not been guilty of negligence.” Railroad v. Brady, 45 Colo. l. c. 206. It’is true as contended, that conformity to custom in construction is not evidence of negligence (Bohn v. Railroad, 106 Mo. l. c. 433, 434), but departure from it ordinarily is and in this case both the existence of the alleged custom and the fact of conformity to it were disputed. That appellant had adopted a method of construction which it termed “standard” did not establish any custom. It appears that whatever method of construction was prescribed by appellant’s engineers was termed “standard” construction. This word thus used had no efficacy to end all questions as to the customary character of the construction of appellant’s switches generally and, of course, none to require the trial court to find as a matter of law that word thus used had no efficacy to end all question as it tended to show that the switch in question was not, in one most material particular, constructed even according to the “standard” fixed as indicated. In this connection it may be noted that the trial court gave appellant full benefit of the rule as to customary construction, giving all instructions asked by appellant on that subject and giving none for respondent less liberal than those given for appellant. The slight modification made by the court was correct in view of what has already been said. The question was for the jury and there was no error in the manner of its submission.

(4) Long prior to respondent’s injury appellant had promulgated a rule forbidding brakemen to go between moving cars to couple or uncouple them “or follow other dangerous practices.” This rule, among others, was given respondent when he applied for employment and he testified he had read it. It is now contended that because of this fact the demurrer should have been sustained. There was evidence that to disconnect the air hose it was necessary to go between the cars but that the cars could be coupled and uncoupled without so doing, there being an appliance provided' for that purpose. The evidence for respondent tended to show that it was the practice in the yards at North Platte, an important division point on appellant’s line, to go between slowly moving cars to disconnect the air hose, that respondent had never seen the work done any other way during his employment or theretofore, though crossing the yards mentioned several times daily and frequently seeing the disconnection made. Respondent also testified that it was the custom of the brakemen and conductors with whom he worked in switching to go between slowly moving cars to make the disconnection and that the other crews he observed always did the work the same way. Witnesses for appellant denied the custom but several of them admitted they had gone between cars to disconnect the air hose. To this must be added the testimony that respondent ’ was sent to Conductor McFarland for instructions as to methods of work and McFarland, among other things, told respondent that the practical way of doing the switching work included going between slowly moving cars to disconnect the air hose and demonstrated the process for respondent’s benefit. At the same interview at which the officer, whose function it was to hire and discharge employees, sent respondent to McFarland for instructions he gave him a time card containing, among others, the rule relied upon. McFarland, while instructing respondent, represented the company (Lebbering v. Struthers, 157 Pa. St. l. c. 323; Atlas Engine Works v. Randall, 100 Ind. l. c. 297), and the instructions the evidence tends to show he gave tend to prove the company’s knowledge of and acquiescence in the practice mentioned. Under the authorities (Brady v. Railroad, 206 Mo. l. c. 531; Railroad v. Smock, 23 Colo. l. c. 462, 463; Barry v. Railroad, 98 Mo. l. c. 69; Brady v. Railroad, 184 Mass. l. c. 228, 229; Railroad v. Flynn, 154 Ill. l. c. 454), this evidence was sufficient to make the abandonment of the rule a question for the jury and it may be said here that the instruction relating to that question was free from prejudicial error.

(5) Finally, it is insisted that respondent was guilty of such contributory negligence at the time as to bar a recovery. The rule of the Colorado court is that “whether or not, under all the circumstances, the negligence of the master, or the negligence of the servant, was the proximate cause of the injury, in all cases where there is any doubt, is a question for the jury.” [Railroad v. Ogden, 3 Colo. l. c. 508.] In another case, in which the facts were that a switchman was injured by stepping between the ties on a partly planked trestle after he had' gone between cars to couple them, the Supreme Court of Colorado, responding to a contention like that here, said:

“Whether the plaintiff saw, or by the exercise of reasonable caution should have seen, that the track was unplanked, is not a question of law, but a question of fact for the jury’s determination. Whether it was of was not the duty of-the plaintiff, under all the circumstances shown, to have stayed out from between the cars,-waited until -the train was stopped, and then made the coupling, it is not our province to determine. Whether plaintiff did or did not, under the facts disclosed by the record, choose a more dangerous method of making the coupling, and that by reason of his selecting the more,dangerous method he was injured, is for the jury to pass upon, and is not a question of law for the decision of the court. Where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, to be settled by the jury; and this, whether the uncertainty arises from a conflict of the testimony or because of the facts being undisputed, fair-minded men will honestly draw different conclusions from them.” [Railroad v. Brady, 45 Colo. l. c. 210.]

In that case the planking on the trestle extended only part way and a planked way beside tbe track was provided for employees. Brady went between moving.cars on the .trestle and walked with tbe train, endeavoring to conple tbe cars, until be reached tbe end of tbe planking where bis foot went between tbe ties and be was injured. Tbe rule laid down is applicable to this case and results in tbe conclusion that tbe question as to. respondent’s contributory negligence was one of fact and not of law. [Hollenbeck v. Railroad, 141 Mo. l. c. 110; Vautrain v. Railroad, 78 Mo. 44; Hannah v. Railroad, 154 Mass. 529.] The instructions on this phase of tbe case were as favorable to appellant as it could demand and tbe criticism of their phraseology we do not deem sound. No authorities are cited condemning them or tbe principle they announce.

We do not deem it necessary to recapitulate, in this connection, the evidence tending to show contributory negligence and tbe lack of it. Tbe facts tbe evidence tends to show have been fully stated in tbe first instance and those facts demonstrate so clearly tbe apx>Iicability of tbe rule quoted that to collect here again those bearing on this question would be entirely supererogatory.

IV. Some objections are made to tbe instructions given at respondent’s instance but the criticisms, for tbe most part, are grounded on tbe same assumptions of fact made by counsel in their' presentation of the complaint as to tbe action of tbe court in overruling tbe demurrer to tbe evidence and are answered by the principles to which we have already adverted. Tbe instructions to tbe effect that if McFarland, at appellant’s instance, instructed respondent that it was part of his duty in switching to go between moving cars to disconnect the air hose and if respondent complied with this special instruction as to method and circumstances, then tbe rule to tbe contrary was no defense, was not erroneous. The fact that respondent had the printed rule and that the examining board subsequently provided him with another copy of the same rule (with 1879 others).was of no consequence since .others of these rules specifically required respondent to obey “the rules and special instructions.” The contention that the company can now exonerate itself from liability for injury received by respondent while obeying the specific instructions given by McFarland, because there was a printed rule with which those specific instructions are alleged to conflict, is not tenable. If McFarland was directed to instruct respondent, as the jury could have found, he, in the capacity of such instructor, spoke for the company and as the company. In these circumstances it might well be held, in view of the fact that ambiguous rules of this character are to be most strongly construed against the company promulgating them (Railway v. M’Dernid, 177 Fed. l. c. 108; Railroad v. Hopkins, 161 Fed. l. c. 269), that the rule relating to coupling and uncoupling cars had no relation to the act of disconnecting the air hose. It is hardly necessary to go so far in this ease, however. The instruction was not erroneous.

The' principal instruction given for respondent was unobjectionable, in substance declaring it was appellant’s duty to use ordinary care to furnish respondent a reasonably safe place to work, requiring ordinary care of respondent, and referring the jury to other instructions on the question of assumption of risk. The instruction as to assumption of risk fairly presented appellant’s theory substantially as it requested and the definition of ordinary care was in ap proved form. The instructions asked and refused cover more than eleven printed pages and it is manifestly out of reason to set them out in full and reiterate, in connection with them, as appellant’s counsel have done, the arguments as to assumption of risk, contributory negligence, etc. We have carefully considered them all and think the law of the case was fairly given to the jury.

V. It is also urged that the admission of evidence to show the abandonment of the rule relied upon is violative of the spirit of the Safety Appliance Act and the case of Gilbert v. Railroad, 128 Fed. 539, is cited. The act mentioned requires interstate carriers to equip their cars with a device for coupling and uncoupling. If the act does not require the installation of a device for disconnecting the air hose the contention cannot be upheld, and if it does require it, appellant had wholly failed to comply with that requirement and can find no shelter behind the act. That there is a substantial distinction between uncoupling cars and disconnecting the air hose is indicated by decisions both in this State and Colorado. [Brady v. Railroad, 44 Colo. l. c. 288; McManus v. Railroad, 118 Mo. App. l. c. 162.] The case cited by appellant has been, in one particular, practically disapproved by this court and we do not feel disposed to follow it in this case, on the facts before us, if it is to be construed as appellant contends. We do not, however, agree to that construction. There was no error in the admission of the evidence mentioned.

VI. The day following the completion of the evidence, appellant filed its motion to discharge the jury because of the presence of respondent’s wife and three-year.-old child during the trial and because, during an intermission, while respondent was on the stand, the child went to the father and was caressed by him in the presence of the jury. Affidavits filed disclosed that most, probably all, of the members of the jury were absent at the time of the last mentioned incident. It is not necessary to discuss the question thus attempted to be presented. All that nee.d be said is that no objection was made at the time and it was too late, after the trial had thereafter proceeded for several days, to move for the jury’s discharge. Affidavits filed disclosed that appellant’s counsel were fully aware of the facts when they occurred. Besides, it was their business to be aware of them. [Ross v. Grand Pants Co., 241 Mo. l. c. 296.]

VII. It is urged that respondent’s counsel indulged in improper remarks in the closing argument. It is unnecessary to set out at length the arguments of which complaint is made. The record discloses that in passing upon this ground of the motion for new trial the lower court had before it the entire closing argument of respondent’s counsel and affidavits showing that the arguments of appellant’s counsel had been of such character as to elicit the remarks to which objection is now made. Counsel for appellant had referred, the affidavits indicate, to respondent’s failure to bring photographs, blue prints, witnesses and additional depositions to prove the character of the construction of .the incline switch and other switches on appellant’s road. The evidence showed that appellant had brought all these things. In answer, in his closing argument, one of respondent’s counsel asked the rhetorical question: “Do you think the poor boy has unlimited means to run all over this railroad like that railroad company, with their passes and their money ? ’ ’ Exception was taken without any objection having been made.' Without regard to that, however, the remark now objected' to was- retaliatory in character and, in the circumstances we see no harm in it. That appellant was able and willing to meet and had met the expense of a careful preparation for trial was evident. The statement quoted followed a summary of the facts indicative of respondent’s inability to do certain things from the failure to do which appellant’s counsel had argued the jury must draw an unfavorable inference, ■ At the most the trial court did not abuse its discretion in ruling’ as it did on the ground of the motion for new trial relating to this matter. [Huckshold v. Railroad, 90 Mo. l. c. 559; Gidionsen v. Railroad, 129 Mo. 402, et seq.]

VIII. It is earnestly contended that the verdict is excessive.

Respondent’s right leg was crushed from the ankle to the knee; the left leg was dislocated at the knee, the ligaments being torn; his right arm was bruised; there were two cuts on the leg severe enough to require several stitches to close the wounds; one ear was torn so that two or three stitches were necessary on it and there were injuries to the chest. Immediately after his injury respondent was hurried to Omaha to the hospital. There on the night after the injury his right leg was amputated, the three cuts were sewed and the left leg was set and put in splints. Respondent was confined seven or eight months, and was unable to work at all until nearly a year after he was injured. At the time of the trial the left knee was stiff, the stump of the right leg often pained respondent, he still had occasional pains in his chest, was unable to do any work which required him to stand, but was able to go to and from his work by aid of an artificial limb and, sometimes, a cane. He used crutches when the artificial limb wearied or pained him. He was put to some expense, totaling two or three hundred dollars.

It is not unusual in this State to affirm judgments of $10,000 for the loss of a single leg. In addition to the loss of his right leg respondent suffered other serious injuries, some permanent, some otherwise, which must be taken into account. In several instances judgments for $20,000 for the loss of both legs have been affirmed and judgments in excess of that amount have on more than one occasion been reduced to the sum named.

At the time of his injury respondent was a yonng man, twenty-seven years of age and in good, health. In the circumstances the pain he suffered must have been intense and that his capacity to cope with life’s responsibilities has been most seriously impaired cam not be doubted. The nature and extent of his injuries are not disputed. That he is entitled to compensation is put beyond question by the verdict of the jury and what has already been said. But the ever vexing question as to the justness of the amount fixed by the verdict reappears. In the case of Lessenden v. Railroad, 238 Mo. 266, et seq., will be found an illuminating discussion of the perplexities which confront juries and judges who come to this question in the course of their respective duties. In view of what is said in that case and of the facts in this, this judgment, when the rules there announced are applied, seems excessive and it should be reduced to $15,000.

IX. It is practically impossible in the course of an opinion to follow counsel, in detail, through the six hundred and odd pages of briefs filed in this case. The various questions raised have been considered and carefully examined with the result that the conclusion has been reached that the judgment ought to be affirmed on the condition that respondent enter a remittitur, as of the date of the original judgment, of $10,000. If respondent enters such remittitur within ten days the judgment will stand affirmed in the sum of $15,000, as of the date of the original judgment. Otherwise the judgment will be reversed and the cause remanded for new trial.

Boy, C., concurs.

PEE CURIAM.

— The foregoing opinion of Blair,

O., is adopted as the opinion of the court.

All the judges concur; Kennish, J., adhering to the views expressed by him in Partello v. Missouri Pacific Railway Company, 240 Mo. 122, l. c. 143, on the subject of remittitur.