George L. Davis, of Kansas City, for appellant. Atwood & Hill and Ball & Ryland, all of Kansas City, for respondent.

JOHNSON, J. This is an action for personal injuries plaintiff alleges were caused by negligence of defendant in the operation of his automobile. The answer is a general denial.

The jury returned a verdict for plaintiff, assessing her damages at $500. In due time she filed a motion for a new trial, and the court sustained it on the ground stated in the order "that the verdict is against the weight of the evidence in that, if plaintiff had a right to recover any amount, it should have been in excess of the amount recovered." Defendant appealed.

The evidence shows that plaintiff, at the time of the injury, was 65 years old, and that her injuries consisted of a compound comminuted fracture of both bones of her left leg, severe bruises and cuts on her head, and bruises on her hip and hand. Of the injury to her leg, one of her physicians testified:

"It was broken in more than one place-fragments-the bones came out through the soft part, came clear outside the flesh and shot clear through; the larger one came out."

She was confined to her room four months. She had not completely recovered at the time of the trial, and there is room in the evidence for the conclusion that she never will recover fully. Of the injury to her head plaintiff testified:

"I have suffered a great deal with my head and neck. At first I thought possibly my-there was a crack in the base of my brain. I must have fallen on my head, and the pain has been intense at times. Then it will get better, but if I carry my head in a certain position for any length of time I can't turn it. I am continually turning my head to keep it so that--to lubricate it, as it were. It has been painful."

The position of defendant is that the court erred in granting a new trial on the ground of the inadequacy of the damages assessed by the jury, since the verdict was for a substantial sum, and was not so inconsistent with the evidence, and reasonable inferences that might be drawn therefrom, as to shock the conscience of the court or to indicate that the jury must have been moved by passion or prejudice. We are cited to the following cases as supporting this position: Pritchard v. Hewitt, 91 Mo. 547, 4 S. W. 437, 60 Am. Rep. 265; Dowd v. Air Brake Co., 132 Mo. 579, 34 S. W. 493; Edwards v. Railway, 82 Mo. App. 478; Gregory v. Chambers, 78 Mo. 294; Watson v. Harmon, 85 Mo. 443. Those cases state a rule applicable to actions sounding in tort, where the trial court refuses to grant a new trial on the ground of

[1] Section 2023, R. S. 1909, provides: "Only one new trial shall be allowed to either party, except: First, where the triers of fact shall have erred in a matter of law; second, when the jury shall be guilty of misbehavior; fy of record the ground or grounds on which said and every order allowing a new trial shall specinew trial is granted."

Under this statute the trial judge may grant one new trial on the ground that the verdict is against the weight of the evidence, and it is his duty to weigh the evidence and to set aside the verdict if he finds it opposed to the weight of the evidence, whether or not he believes the jury were actuated by an improper motive.

It

[2] With reference to the assessment of damages in tort cases, he is as much a trier of fact as the jury, and is charged with the final duty of doing justice between the parties. The question before him for solution, where the plaintiff asks for a new trial on the ground of an inadequate verdict, is not whether the assessment is so inadequate as to shock the judicial conscience and bespeak passion or prejudice on the part of the jury, but whether it is out of line with the evidentiary facts and circumstances, as the judge sees and understands them. being within the functions of the trial judge to grant one new trial on the ground that the verdict is against the weight of the evidence, the appellate court, on finding that the exercise of such function is based on substantial evidence, should not interfere. Lockwood v. Insurance Co., 47 Mo. 50; Reid v. Insurance Co., 58 Mo. 421; Bank v. Armstrong, 92 Mo. 265, 4 S. W. 720; Chouquette v. Railroad, 152 Mo. 257, 53 S. W. 897; Dean v. Insurance Co., 65 Mo. App. 209; Pacific Express Co. v. Emerson, 86 As is said in Bank v. ArmMo. App. 683. strong, supra:

"It has also been further held that the granting or refusing of new trials, on the ground that the verdict is against the weight of evidence, rests peculiarly with the judge presiding at the trial, and that his discretion in this particular will rarely be interfered with, unless it plainly appears that injustice has been done, or that it has been unsoundly or arbitrarily exercised.''

[3] When the trial court has granted a new trial, on the ground of the inadequacy of the verdict, our sole duty, on an appeal from such order, is to ascertain if the finding of fact it expresses has the support of substantial evidence. If it has, we have no ground upon which to pronounce it erroneous, nor to hold that its consequent ruling was an abuse of judicial discretion.

[4] In this view of the law, we must hold that the judgment awarding a new trial in

It is then objected that the Brockett Company did not prove date of delivery of material, or that it went into the building. The account of the lien stated the dates the articles were purchased, and there was evidence sufficient for a prima facie case that the account was correct and that the material was used in the building.

[2] The Brockett Company had two claims, one for material bought by the original contractor and the other for material bought by a subcontractor. For the latter claim, the company filed what is called an "intervening petition," and its case on that claim was regularly made out. We do not see that such proceeding was irregular or improper under the statute. We find that due proof was made prima facie to entitle the company to a lien for this part of its claim.

Logans had contracted for the building when only the husband had done so, it nullified the notice. We think this was not of serious consequence and did not avoid the lien. So it is no objection to a recovery that the petitions were originally grounded upon the idea that both husband and wife contracted for the building, when, in fact, the wife did not join. The statement in the case of Coen v. Bettman, 166 Mo. App. 671, 674, 150 S. W. 1137, is founded on Bagnell Timber Co. v. Railroad, 180 Mo. 463, 79 S. W. 1130, a case since overruled. Hutchison v. Safety Gate Co., 247 Mo. 108, 152 S. W. 52; Bagnell Timber Co. v. Railroad, 250 Mo. 519, 157 S. W. 497.

Objection is made in defendant's brief to the sufficiency of plaintiff's abstract and of the statement of the case. We think none of these well grounded.

The judgment will be reversed, and the cause remanded, as to the cases considered herein, viz., C. A. Brockett Cement Company, Mitchell & Keck, W. S. Dickey Clay Manufacturing Company, and Thomas Eadie.

concur.

All

The claim of defendant W. S. Dickey Manufacturing Company was for material purchased by a subcontractor under Peterson. We find there was evidence prima facie establishing this claim as a lien.

The claim of defendant Eadie was shown to consist of material furnished to Subcontractor Trent, and that it went into the building. The evidence in his case showed prima facie that he had taken all the steps necessary to fixing his lien upon the property.

[3] But it is said that while he brought his action within 90 days after filing his lien, as required by the statute, he was allowed to amend the petition after that period expired, whereby he changed his cause of action. The chief reliance of defendants Logan, in this respect, is that the amendment was that, at the time of delivery of the material to the subcontractor, defendants John A. Logan and Martha E. Logan were husband and wife, and each owned the property by the entirety, and that, prior to furnishing the material, defendant John A. Logan had contracted with Peterson for the erection of the building. The amendment consisted in inserting that defendants Logan were "husband and wife" and owned the property "by an estate by entirety." We think the amendment did not change the cause of action, and consequently did not affect the lien.

[4, 5] Objection was made (as in the Brockett Case, supra) to the effect that, since no

(No. 1291.)

(Springfield Court of Appeals.

Missouri. Jan. 30, 1915. Rehearing Denied Feb. 16, 1915.)

1. DAMAGES 132- PERSONAL INJURIES PERMANENT INJURIES TO LEG.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. 132.] 2. DAMAGES 185-SUFFICIENCY OF EVI

DENCE-RESULTING DISEASE.

held sufficient to warrant the jury in finding In an action for personal injuries, evidence that tuberculosis of plaintiff's leg resulted from a sprained ankle, without any intervening independent cause, so that she could recover therefor from the railroad, whose negligence caused the sprain.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 503-508; Dec. Dig. 185.] 3. DAMAGES 34-CAUSE OF INJURY-DISEASE GERMS.

ing the spot weakened by the injury, caused the The tuberculosis germs, which, by attackdiseased condition, were not the proximate cause of such condition, but were the remote cause brought into action by the injury.

[Ed. Note.-For other cases, see Damages, Cent. Dig. § 43; Dec. Dig. 34.] 4. DAMAGES

33—MITIGATION-PREDISPO

SITION TO DISEASE.

The fact that the plaintiff was predisposed to tuberculosis, so that her injuries resulting from the sprain were greater than might be reasonably expected, affords neither defense nor mitigation of damages.

[Ed. Note. For other cases, see Damages, Cent. Dig. § 42; Dec. Dig. 33.]

In an action for personal injuries, evidence held sufficient to warrant the jury in finding that the diseased condition of plaintiff's leg resulted from the spraining of her ankle by defendant's negligence, and not from a previous injury to her knee.

--

ing to the platform between the coaches, in ward in the chair car, where they were rid

order to descend the car steps to the station

Error in permitting a physician to answer a question calling for a conclusion which invaded the province of the jury was harmless, where he had previously testified to the same conclusion without objection.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.]

8. EVIDENCE 506 OPINION EVIDENCE INVADING PROVINCE OF JURY.

A question asked a physician whether it was likely that an injury, thought at first to be slight, might develop into the condition in which plaintiff was at the time of the trial, was not objectionable as calling for a conclusion which invaded the province of the jury.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 2309; Dec. Dig. 506.] . 9. GUARDIAN AND WARD 17 APPOINTMENT OF CURATOR-COLLATERAL ATTACK. The power and jurisdiction of a probate court to appoint a curator for a minor cannot be questioned in a collateral proceeding, such as an action by the minor by her curator, for personal injuries.

[Ed. Note.-For other cases, see Guardian and Ward, Cent. Dig. §§ 66-70; Dec. Dig. 17.] 10. INFANTS 90-ACTIONS APPEARANCE BY AN UNAUTHORIZED CURATOR.

The statute forbidding reversal of a judgment in favor of an infant merely because the infant appeared by attorney applies where the judgment was in favor of an infant who appeared by an unauthorized curator.

[Ed. Note.-For other cases, see Infants, Cent. Dig. §§ 273-276; Dec. Dig. 90.]

Appeal from Circuit Court, Butler County; J. P. Foard, Judge.

Action by Edith Thomas, a minor, by A. W. Greer, public guardian, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

N. A. Mozley, of Bloomfield, and J. F. Green, of St. Louis, for appellant. L. M. Henson, of Poplar Bluff, for respondent.

the foot of the steps assisting the passengers, especially women and children, to alight. The passageway was somewhat congested, and when the plaintiff had passed out of the coach and reached the top of the steps leading down to the platform, the brakeman reached up, took plaintiff by the hand, and, instead of assisting her to walk down the steps, said: "Jump way out, little girl." The plaintiff obeyed and jumped from the platform of the car to the station platform, a distance of four or five feet. Plaintiff says the brakeman, when he told her to jump, pulled or jerked her somewhat forward, and then let go of her before she alighted. The result was that plaintiff sprained her ankle. She walked away, limping somewhat, complained of her ankle hurting her, and, while staying at the picnic several hours and moving around, she was limping and complaining of her ankle. There was no external injury, and the injury was not thought to be serious, and on plaintiff's return home she was kept quiet, and some home remedies applied. The ankle became inflamed and swollen, and this gradually extended towards the knee. When medical aid was summoned in a few days the physician thought it was nothing more than a severe sprain. It soon developed that the periosteum of the ankle and leg was affected, and the injury developed into a malignant, painful, and dangerous condition, affecting the leg from the knee down. The leg had to be lanced a number of times, discharging large amounts of pus, and the bone became diseased and sloughed off, and at the time of the trial, more than seven months after the injury, the leg, far from being healed, was diseased, deformed, and permanently weakened. The jury returned a verdict for $4,000, and the above details of the injury are given in answer to defendant's contention that the verdict is excessive. We do not think so.

[2] The demurrer raises the point that, where the injury complained of may have resulted from one of two or more causes, for one of which defendant is liable, but not for the others, it devolves on the plaintiff to prove with reasonable certainty that the injury did, in fact, result from that cause for which the defendant is liable. Warner v. Railroad, 178 Mo. 125, 77 S. W. 67; Beebe v. Transit Co., 206 Mo. 419, 103 S. W. 1019, 12 L. R. A. (N. S.) 760. Defendant claims that plaintiff's evidence does not measure up to this requirement of the law, because it was shown that plaintiff had received other injuries to this same leg, and the evidence tended to show that the real, and what defendant denominates the proximate, cause of the injury is tuberculosis. The argument is that, as tuberculosis is a germ disease, and may result from a variety of causesthat is, the germs, or, more learnedly, the tubercle bacilli, may enter infected tissues from a variety of sources and causes and under a variety of circumstances--it is purely speculative to say that the turbercular condition of the plaintiff's leg was caused by the sprain. In answer to this we find that the three learned medical men who examined plaintiff's diseased leg do not agree that the conditions they found were tubercular at all. They more nearly agree that if the disease is turberculosis of the bone and tissues surrounding the same, such condition could be caused by a severe sprain of the ankle, and this without any abrasion of the skin or external injury, and that such condition would develop several days after the sprain. The scientific explanation attempted is that tubercular germs are in the air and in all human and animal bodies at all times in greater or less numbers. Whenever any portion of the body becomes injured, weakened, or diseased, these soldiers of destruction make an attack or "drive" on the weakened spot, and in proportion as nature is not able to resist the same destruction ensues. In this way a sprain causing more or less laceration and breaking of the tissues and congested and impaired circulation offers a weakened point for attack. It is sufficient to sustain the verdict that the evidence showed that in this particular case the plaintiff's ankle was sprained, and that swelling and abscesses and sloughing off of the bone did follow in apparently natural sequence and without any known intervening independent cause, and that from their learning and experience some, at least, of the medical men testified that, in their opinion these later symptoms could and did grow out of and result from the sprain of the ankle. MacDonald v. Railroad, 219 Mo. 468, 481, 118 S. W. 78, 16 Ann. Cas. 810; Seckinger v. Manufacturing Co., 129 Mo. 590, 603, 31 S.

physicians mentioned as giving this evidence is the one who treated the injury from very near the beginning, and admitted that in the beginning he thought there was nothing more than a sprain.

[3] If the defendant means to have us do so, we decline to hold the germs responsible for this injury on the ground that they were the proximate cause thereof, and that the sprain, caused by defendant's negligence was only the remote cause when such sprain produced and brought about the conditions under which the germs did their work. Seckinger v. Manufacturing Co., 129 Mo. loc. cit. 604, 31 S. W. 957; Arnold v. Maryville, 110 Mo. App. 254, 260, 85 S. W. 107.

[4] Granting that the later developed condition of the leg was tubercular, yet, if this tubercular injury followed from, and developed out of, the sprain of plaintiff's ankle as the exciting cause, then the fact that plaintiff was predisposed to tuberculosis, as stated by one witness, or that her physical condition was such as to yield more readily to the ravages of tubercular germs, and thereby her injuries resulting from this sprain were greater or different in degree than is usual or to be expected from such cause, furnishes neither a defense nor mitigation of damages. Patterson v. Traction

Co., 178 Mo. App. 250, 265, 163 S. W. 955, and cases there cited; Neff v. City of Cameron, 213 Mo. 350, 356, 111 S. W. 1139, 18 L. R. A. (N. S.) 320, 127 Am. St. Rep. 606. It was shown, however, that, while tuberculosis is hereditary, plaintiff's family and ancestors were not thus afflicted so far as

known.

[5] The former injury on which defendant lays some stress occurred some weeks previous to the sprain in question, and was only a slight flesh wound near the knee, caused by being cut with a piece of glass. Plaintiff's evidence shows that this injury healed readily, and the location of this injury, as well as the evidence concerning its nature and cause, convinced the jury, as it does us, that the injuries sued for here did not result from that cause. The defendant's evidence disproves any injury to plaintiff at the time and in the manner detailed by her. This, however, was clearly a question for the jury. We also think the evidence is clearly sufficient to justify the finding that the injuries sued for were caused and grew out of the sprain of plaintiff's ankle. Hartzler v. Railway Co., 140 Mo. App. 665, 672, 126 S. W. 760.

[6-8] The defendant also complains that certain questions asked and answered by the medical witnesses called for conclusions of the witnesses, invading the province of the jury under the rule announced in Holtzen v. Railroad, 159 Mo. App. 370, 140 S. W. 767; Roscoe v. Street Ry. Co., 202 Mo. loc. cit. 594, 101 S. W. 32; Wesner v. Railroad, 177 Mo. App. 117, 163 S. W. 298. The ques