Friedman v. United Railways Co. 168 Mo. 487; State v. Martin, 124 Mo. 529; Shore v. Dunham, 178 S. W. 903; State v. Castor, 93 Mo. 251, 252; Jewell v. Mfg. Co., 166 Mo. App. 560. (a) And in case of an accident similar to this one, although some considerable time elapsed before the statements are made, if they appear to be spontaneous and not concocted and spring from the transaction as by being made to her physician while preparing to treat her or on the way to the hospital for treatment such declarations and conversation are competent as of the res gestate. Harriman v. Stowe, 57 Mo. 93; Brownell v. Railroad, 47 Mo. 239; Entwhistle v. Feighner, 60 Mo. 214; Ins. Co. v. Mosley, 8 Wall. (U. S.) 407; Greenlee v. Casualty Co., 192 Mo. App. 308; Comm. v. Pike, 3 Cush. (Mass.) 181; Railroad v. Coyle, 55 Pa. St. 402; Cattison v. Cattison, 22 Pa. St. 275. (b) The conversation between plaintiff and her husband in the automobile while en route to the hospital, immediately after the accident, was not incompetent because it was essential to elicit what the husband said in order to reveal the meaning of plaintiff's statement, "I know it was; I don't blame you, sweetheart," and such conversation is in no sense a confidential communication. Greenlee v. Casualty Co., 192 Mo. App. 309; New York Life Ins. Co. v. Mason, 272 Fed. 32; Parkhurt v. Bardell, 110 N. Y. 386; Ins. Co. v. Morley, 8 Wall. 397. (c) Where such statements are spontaneously made as in this case, either shortly before or shortly after the accident, and are clearly connected with it and tend to elucidate it, when the party had neither opportunity nor cause to concoct a story, they are properly received in evidence. Hodges v. Hill, 175 Mo. App. 455; Parr v. Ins. Co., 178 Mo. App. 155. (d) Even statements of a third party are competent of the res gestae. State v. Kaiser, 124 Mo. 651; State v. Walker, 78 Mo. 380. (7) Evidence tending to show that one was either negligent or careful in respect to his acts concerning a similar matter is not admissible, because to receive it would detract from the main issue in the case and mislead by diverting the juror's mind to mere col Friedman v. United Railways Co. lateral issues. Goble v. Kansas City, 148 Mo. 470. (8) No matter of exception is reviewable on appeal unless an exception is saved thereto at the trial. Sec. 1512, R. S. 1909; In re Aiken, 262 Mo. 403; Hubbard v. Slavens, 218 Mo. 598; Frieland v. Williamson, 220 Mo. 217. (a) And even though an exception be duly saved, it may not be considered on appeal unless it is also brought to the attention of the trial court and thus marshaled for review in the motion for a new trial. Hammon v. Coal Co., 156 Mo. 232; Green v. Walker, 99 Mo. 68; Pencot v. Ry. Co., 176 Mo. App. 225. (b) Objections to remarks or comments of the court during the trial must be excepted to and brought to the attention of the court in the motion for a new trial, or they are waived. McClintock v. Bank, 120. Mo. 127; Joplin v. Joplin, 177 Mo. 532; Ashby v. Road Co., 111 Mo. App. 79. REEVES, C.-Plaintiff sued for fifteen thousand dollars damages. Upon a trial the jury returned a verdict for defendant, and she appeals. The basis of the action is a collision, occurring about eight o'clock, p. m. on the 4th day of September, 1918, at Kingshighway and Wise Avenue in the city of St. Louis, between a street car of respondent, and an automobile owned and driven by appellant's husband and in which she was riding. The negligence charged was the violation of the Vigilant Watch Ordinance and the Speed Ordinance of the city of St. Louis. Sundry injuries were alleged. The answer of respondent ascribed appellant's injury, if any, to her own carelessness and negligence, and was tantamount to a general denial. For appellant, the testimony showed that she and her husband had been driving through Forest Park in her husband's Ford coupe and had entered Kingshighway, a north-and-south street, driving toward the south; that as they approached Wise Avenue, a street running east and west, they turned in toward the sidewalk on the west side of Kingshighway preparatory to turning back to the north. At this point Kingshighway is about sixty293 Mo. Sup.-16 Friedman v. United Railways Co. five feet wide. Respondent's street car tracks are laid thereon in such way that there is a space of forty feet between the west curb of Kingshighway and the west rail of said track, so that vehicular traffic goes both north and south on Kingshighway on the west side of the street-car tracks, the east side of said tracks being used also for north-bound traffic. Appellant's husband had made the turn and his automobile was running in a northeasterly direction at the time of the collision. The street car was coming from the north. Appellant said: "We came down Kingshighway, my husband stopped and then turned. While he was turning eastwardly and northwardly, he was not driving very fast. He was looking. I was looking also. I remember when my husband had just about turned he had this terrible collision. We were going northeast at the time and he was starting to cross the street car tracks to get on the east side of the street. I did not see the street car coming down there before the accident, only saw it momentarily just as we were struck." On cross-examination she said: "When I was five feet of the track I looked north and could see a block up the street-car tracks, and didn't see a street car until the moment of the collision. I was looking for one all the time. I never tell my husband, he always stops. I placed myself entirely in his hands and was depending upon him to avoid a street car. But I always look around. I looked also. I depended more upon my husband to discover the street car than I did upon myself." Appellant's testimony further showed that the street car was being operated in violation of the Speed Ordinance and that she suffered rather severe injuries. Respondent's testimony tended to show that after appellant's husband had turned his automobile toward the north, while the street car was passing, he suddenly turned to the right, bringing it in collision with the street car, and otherwise there was substantial testimony on Friedman v. United Railways Co. the part of respondent contradicting that adduced by appellant. The court gave seven instructions requested by appellant. Respondent offered no instructions and made no requests. The court refused to give appellant's requested instruction numbered C. Appellant's instruction covered the allegations of the petition, and submitted the question of appellant's own negilgence as a contributing factor to her injuries. She complains that the verdict of the jury was against the law and evidence and that the trial court committed manifold errors during the trial, all of which, with additional pertinent facts, will be discussed in the course of the opinion. I. There was substantial testimony tending to show appellant's negligence. She said her husband was driving slowly and that when within five feet of Contributory the track she looked toward the north where Negligence. she could see a block up the street-car tracks, but saw no street car and that immediately the collision occurred. Her witnesses said that the street car was running from twenty to twenty-five miles per hour. There was no reason why the approaching street car could not have been seen by appellant, as well as by her husband, as she said they were both looking for a street car. It was her duty thus to look (Burton v. Pryor, 198 S. W. (Mo. App.) 1117, Leapard v. Rys. Co., 214 S. W. (Mo. App.) 268, and cases cited), and failure to perform this duty, or to perform it badly, was negligence. The automobile being only five feet from the car track, moving in a northeasterly direction for the purpose of crossing over, and the view being unobstructed, the street car was clearly visible to appellant while it covered the intervening distance of a block before the collision. Whether such testimony was unreasonable or not (Alexander v. Railway, 233 S. W. 44; Evans v. Railroad, 233 S. W. 397) appellant treated it as raising a question of fact for Friedman v. United Railways Co. the jury, as she submitted in practically all of her seven instructions the question of her own negligence. The rule is well established that where there is substantial testimony on both sides of a debatable question, it is for the jury and the trial court, and not for the Supreme Court, to weigh such evidence. [Thomasson v. Hunt, 185 S. W. (Mo.) 165; Daniel v. Pryor, 227 S. W. (Mo.) 102; Moore v. Railroad, 268 Mo. 31, 186 S. W. 1035; Haines v. Railroad, 193 Mo. App. 453, 185 S. W. 1187; DeWolff v. Morino, 187 S. W. (Mo. App.) 630; Robertson v. Kochtitzky, 217 S. W. (Mo. App.) 543.] Moreover, respondent's witness, Woody, said that as the automobile completed its turn and was on the moment of passing to the left of the approaching street car, it suddenly turned to the right and ran into the street car, thus raising the question as to whether or not the negligence of appellant's husband was the proximate cause of the collision and consequent injuries to her. A verdict supported by evidence will not be disturbed by this court (State ex rel. National Bank v. Sturgis, 276 Mo. 559; Ellis v. Railroad, 234 Mo. 657), and particularly is this true where the trial court has overruled a motion for a new trial, based in part upon the alleged insufficiency of the evidence. [Alexander v. Railroad, 282 Mo. 236, 221 S. W. 712.] In actions at law, it has even been held by this court that the weight of undisputed parol evidence is for the triers of fact and their findings are conclusive. [Union Trust Co. v. Hill, 283 Mo. 278, 223 S. W. 434.] II. Immediately after the accident, appellant was taken to the hospital in the automobile of witness Woody. Appellant was not unconscious, but hysterical, and in her excitement she said "Oh, daddy, you have killed me," to which her husband replied, "It was your fault, sweetheart, you grabbed the wheel." Whereupon, appellant said, "I know it was, I don't blame you, sweetheart." Appellant strenuously objected to this testimony, upon the twofold grounds that appellant was irresponsible, and her husband being Admissions. |