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go, and the car, traveling at half speed, could two distinct causes of action-one for negliDot bave been closer to the place of contact gence, and the other for willfulness—within

Code Civ. Proc. § 593 (Rev. St. 1899, 8.593), than 15 feet. Some of the witnesses put the

providing that different causes of action joined distance even greater. Plaintiff's expert.evi- in the same petition must be separately stated, depce shows that, under the existing condi- with the relief sought for each cause of action, tops the car could have been stopped in 10

in such manner that they may be intelligibly dis

tinguished. feet; defendant's experts say in 20. Accord

3. SAME-ELECTION BETWEEN COUNTS. ing to the various estimates made by the wit

Where both of the two counts in the petiDesses, the car ran from 10 to 30 feet after tion in an action against a street railroad for it struck plaintiff, and many witnesses say personal injuries set forth the same act as that no effort was made to stop it until just

causing the injury, but the first charges negli

gence, and the second willfulness, and the eviabout the instant of collision. Bearing in

dence is sufficient to justify a verdict on either mind that in passing upon a demurrer to the count, plaintiff will not be compelled to elect evidence every reasonable inference must be upon which he will proceed, but is entitled to

have both theories submitted to the jury. indalged in favor of the plaintiff, we are not

(Ed. Note.—For cases in point, see vol. 39, willing to declare that plaintiff failed to sus

Cent. Dig. Pleading, 1199.) tain bis burden. To do so, we must assume

4. CARRIERS-PERSONAL INJURIES-CONTRIBthat the gripman immediately applied the

UTORY NEGLIGENCE-QUESTION FOR JURY. brakes when plaintiff left the sidewalk (a In such action the question of plaintiff's matter in dispute) and that it was impossible contributory negligence held, under the evidence, to stop the car in a distance of 15 feet (an

to be for the jury.

5. PERSONAL INJURIES MEASURE OF DAMother controverted assertion). These issues

AGES. of fact were for the jury to decide. It was, In an action for personal injuries, damages proper, as was done, to submit the case un- should be estimated on the basis of compensader the "last-chance rule," for it is well set- tion. tled that, if the inferences to be drawn from

(Ed. Note.-For cases in point, see vol. 15,

Cent. Dig. Damages, 8 222.] the evidence are not certain or incontrovertible, the question of negligence cannot be

6. SAME-COMPENSATORY DAMAGES – BODILY

PAIN-MENTAL ANGUIBH. passed upon by the court Gratio v. Ry. Co.,

Pain of body and mental anguish resulting 116 Mo., loc. cit. 466, 21 S. W. 1094; Baird v.

from personal injuries are elements that enter Ry. Co., 146 Mo., loc. cit. 281, 48 S. W. 78. into the estimation of compensatory damages. Many objections are urged to the rulings (Ed. Note. -For cases in point, see vol. 15,

Cent. Dig. Damages, 88 100-105, 233, 234, 255_ of tbe learned trial judge upon the admission

259.) of evidence. We have considered carefully

7. SAME-REVIEW. each of them, and find none of sufficient mer.

On appeal in an action for personal init to call for special notice.

juries, the verdict will not be disturbed unless Criticism is made of plaintiff's instruction the damages assessed are so excessive as to

shock the moral sense, or it clearly appears No. 1, but the points made are fully covered

that the jury was influenced by passion or prejuin the views expressed. The case was fairly dice. tried and submitted.

[Ed._Note.-For cases in point, see vol. 3, The judgment is affirmed. All concur. Cent. Dig. Appeal and Error, 88 3944_3947.)

8. SAME-EXCESSIVE DAMAGES.

Where one of plaintiff's ribs was fractured, his collar bone dislocated, and his arms and

back bruised, and his injuries caused him much WAECHTER V. ST. LOUIS & M. R. R. CO.

pain and suffering and the loss of 11 weeks' (St. Louis Court of Appeals. Missouri. June time, and it appeared that the dislocation of 1, 1905.)

his collar bone interfered with his lifting power,

and that he would not recover of the injury un1. PLEADING_MATTER OF INDUCEMENT-REF

der four or five years, a verdict for $2,500 is not ZBENCE TO PRECEDING COUNT.

excessive. Where matter of inducement is stated in the first count of a petition, a mere reference

Appeal from St. Louis Circuit Court; to it in subsequent counts is sufficient.

O'Neil Ryan, Judge. (Ed. Note.-For cases in point, see vol. 39,

Action by Gottlieb Henry Waechter, as Ceat Dig. Pleading, $ 118.)

next friend of Carl August Waechter, against 2. PLEADING SEPARATE CAUSES OF ACTIONSEPARATE STATEMENT.

the St. Louis & Meramec River Railroad ComIn an action against a street railroad for pany for personal injuries. From a judgpersonal injuries, the first count of the petition,

ment for plaintiff for $2,500, defendant apafter setting out matter of inducement, charged

peals. Affirmed. segligence on the part of the conductor in failuz to discover plaintiff's perilous position and

On the evening of January 3, 1903, the strip the car to avoid injuring him. The second

plaintiff, who was then about 20 years of fount recited, “For the purpose of stating a soood cause of action, plaintiff hereby repeats age, and in the employ of the St. Louis Car ul the facts above recited (except the specifica- Company, after finishing his day's work, tions of negligence and of the damages thereby

boarded a Broadway car and rode to Locust Estained *), and prays that the said

street, where he was transferred to a Lee tecto be taken as part of this second cause of ation, to avoid unnecessary prolixity in this avenue car, to be carried to his home, in the petition"; and then followed an allegation that

northern part of the city. He left the Broadthe motorman “intentionally, recklessly, and

way car at the intersection of Broadway and rith wanton disregard of plaintiff's rights,” ran he car upon him. Held to sufficiently state Locust street, and boarded a Lee avenue

car, which was standing on the south track that he could not have seen the approaching on Locust street, between Broadway and car, on account of the bunch of people imSixth street. The car he boarded was out mediately in front of him, without stepping of order, and the passengers were advised back onto the north track. All the passenby the conductor to take another Lee avenue gers except plaintiff and Astroth got on the car, standing about three feet ahead on the Lee avenue car before the arrival of the same track. About 25 or 30 of the passen- Meramec River car, and Astroth testified he gers, including the plaintiff, got off the car had hold of the hand rail, and was trying at the front platform, passed north between to pull himself up on the car step, when he the two standing cars, and made a rush to was struck and rolled between the two cars. get on the forward car by way of the rear A statement made by the motorman was platform. Plaintiff and Fred Astroth were read as his evidence by the defendant. The in the rear of the bunch of passengers, and, motorman stated that his car was running before they could get aboard, a St. Louis & from 2 to 242 miles per hour when it passed Meramec River car, traveling west on the the Lee avenue car, and that there was no north track, came along and caught plaintiff one on or so near the north track as to be and Astroth between it and the standing car, struck by his car, and that he did not know and rolled the plaintiff; turning him around any one had been hurt by it until informed and around six or eight times, and dropping by his conductor; that, as his car approachhim on the street. One of plaintiff's ribs was ed from the east, it was in plain view of any fractured, his collar bone dislocated, and his one looking east from where the Lee avenue arms and back bruised. The injury caused car stood. The conductor testified that the him much pain and suffering, and the loss of car was running about two miles an hour, 11 weeks' time. There is also evidence that and that he did not know any one had been the dislocation of plaintiff's collar bone in- hurt by it until he had turned his car in that terferes with the lifting power of his right evening. arm, and that he will not recover of this in- The petition is in two counts. The first jury under four or five years.

charges negligence on the part of the conThe Meramec River car runs north on ductor in failing to discover plaintiff's perilFourth street to Locust, where it turns west, ous position and stop the car to avoid injurand runs over Locust street on the north ing him. The second charges that the motortrack. Plaintiff testified that he knew these man "intentionally, recklessly, and with wancars ran west on the north track in Locust ton disregard of plaintiff's rights,” ran the street, and when he got off the Lee avenue car upon him. The answer was a general car, and passed between it and the one denial, and the affirmative defense of conahead, he looked east to see if a car was tributory negligence. The jury found for coming on the north track, but did not see plaintiff on the first count, and assessed his one, and that, after he got on that part of damages at $2,250. The verdict was for the street between the two tracks, the bunch defendant on the second count.. At the close of passengers in front of him obstructed his of plaintiff's evidence the defendant moved view, and he could not see the car coming the court for a compulsory nonsuit, and at from the east on the north track, and that the close of plaintiff's evidence, and again he did not see the car that rolled him until at the close of all the evidence, the defendit was right on him (within a foot or two of ant moved the court to compel the plainhim), and too late to get out of its way. In tiff to elect upon which count he would probis deposition taken before the trial, and ceed. These motions were all denied. read in evidence by the defendant, plaintiff

Jefferson Chandler, for appellant. R. F. stated that he did not see the car until it struck him. The evidence is all one way

Ralph and Barclay & Fauntleroy, for rethat the gong was not sounded and no warn

spondent. ing whatever was given of the approach of

the Meramec River car—and all of plaintiff's BLAND, P. J. (after stating the facts). 1.

witnesses testified that the car was running at a rapid rate of speed. One of plaintiff's witnesses, who got off the disabled car at the rear platform, testified that he saw the Meramec River car stop on the west side of Broadway, saw the motorman turn on the power to start the car, and, apprehending danger, stepped over the track, out of reach of the car, and saw the bunch of passengers getting on the Lee avenue car, and saw the motorman turn on more power as his car approached, and hallooed at him three times to stop, but that he paid no attention, and went ahead at a rapid speed. The plaintiff testified that he knew he was in a place of danger when between the two tracks, but

The matter stated as inducement in the first count of the petition covers over a page and one-half of the printed abstract (ordinary size). The second count begins as follows: "For the purposes of stating a second cause of action, plaintiff hereby repeats all the facts above recited (except the specifications of negligence and of the damages thereby sustained by said minor) and prays that the said facts be taken as part of this second cause of action, to avoid unnecessary prolixity in this petition.” Then follow the allegations of intentional injury. For the reason the matter of inducement is not set out in full in the second count, the defendant contends the petition contains but one

at 2. We do not think the court erred in re

cout Its position is that a cause of action the case may alternate, is clearly permissiannot be stated by reference to or by adop- ble, and is common practice. Rev. St. 1899, ton of allegations in another cause of ac- 626; Brownell v. Railroad, 47 Mo. 239; ton. Section 593 of the Code of Civil Pro- Owens v. Railroad, 58 Mo. 386. edure (Rev. St. 1899, § 593) provides that different causes of action joined in the same fusing to compel the plaintiff to elect upon petition "must be separately stated, with which count he would proceed. As before the relief sought for each cause of action, stated, there was but one cause of action, b such manner that they may be intelligi- though stated in different ways. The evibly distinguished." In Bricker v. Railway, dence, it seems to us, would have justified 83 Mo. 391, it is said: "When a pleader in- a verdict on either count. It shows that e'odes in his statement or petition several the motorman in charge of defendant's car distinct causes of action, it is unnecessary was either extremely negligent, or, worse, for him to repeat allegations which are ap- was reckless of human life. Where there plicable to them all.” The statement in the is evidence supporting two theories, upou case alleged the killing of plaintiff's stock either of which the plaintiff might recover, by defendant's locomotive and engine on and both are properly pleaded, the plaintiff I see different dates, and contained but one is entitled to have both theories submitted allezation that the stock at the three differ- to the jury, and it would be a denial of his ent dates got upon defendant's road where legal rights to withdraw either from the it was required by law to fence its right of jury's consideration. Fay, but bad neglected to do so. The court 3. It is contended that plaintiff should have beld it was unnecessary to repeat in every been nonsuited, for the reason his own evicount the allegation of failure to fence, as dence shows he voluntarily put himself in it was common to them all. In St. Louis a place of peril, and was thereafter negligent Gaslight Co. v. St. Louis, 86 Mo., loc. cit. (down to the time of his injury) in failing to 498. it is said: "The petition consists of take proper precautions to protect himself. Tarious counts; two for each month-one The facts do not justify the statement that for the price of the gas, and one for the plaintiff voluntarily chose to place himself other services. The first count sets out the near the north-bound track, where he was incorporation of the three parties to the injured. He had to go there to take passage contract, the ordinance directing the con- on the Lee avenue car, and had a right to go tract to be made, the contract, 'and the there for that purpose. Plaintiff testified terms thereof. These matters are not stat- that, as he passed between the two Lee aveed in the second and subsequent counts, but nue cars, he looked east, but saw no car comin them reference is made to the first by the ing on the north track. He was detained ise of such terms as 'in the district afore- in a position of danger for two or three minsaid, 'under said contract,' and 'agreed as utes by the bunch of passengers. preceding aforesaid.'” It was held that subsequent him, and said he lingered behind for the purcounts might be made certain by reference pose of giving the lady passengers an opporto preceding ones. The rule has always tunity to get off the first car and aboard the been that where matter of inducement is second, and during the time he was standing stated in the first count, if this count be on the street he did not look east for a good, a mere reference to it in subsequent car. Plaintiff's evidence is that his view counts is sufficient. Loomis V. Swick, 3 of the north track was obstructed by the Wend. 205. The contention that the counts people ahead of him, and he could not have are a unit, stating two repugnant causes of seen east, if he had looked, without stepping action, we do not think is supported by back onto the north track; that he was elther reason or authority. The petition facing to get on the car, and uid not pay contains two causes of action, separately attention to the north track; knowing all stated in such manner as to be intelligibly the while that he was in a position of dandistinguished. It is true, the same act caus- ger, and that prudence required him to look ing the injury is set forth in both counts of out for a west-bound car. As applicable to the petition. The difference in the counts this phase of the case, defendant's counsel, in is not in the act, but in its quality. In the his brief, quotes the following from the case first its quality is described as negligence, of Holwerson v. Railway, 157 Mo, 227, 57 8. and in the second count as willfulness. W. 770, 50 L. R. A. 850 (quoted from Kirtley Proof of negligence necessarily disproves v. Railroad (C. C.] 65 Fed. 391): “Conceding willfulness, and vice versa, and for this rea- that there was a duty upon the defendant's son they could not be joined in the same servants to anticipate that persons would count. The cause of action was the injury, be upon the track, this is set off by the and the two counts stated it in different duty on the part of the deceased to anticiways to meet the evidence, which might pate that trains would run on the track, and show that it occurred in the manner alleged hence keep a lookout for them. Conceding in the first or the manner alleged in the sec- that a careful lookout on the part of the opd count. That the same cause of action defendant's servants would have revealed may be stated in this way in different the deceased on the track, this is set off by counts, as the various theories or phases of the fact that a diligent outlook by the de ceased would have revealed the approach of recover. We do not think that plaintiff's ev. the engine at his rear. Conceding that the idence convicts him of continuing negligence, defendant's servants might have stopped the as a matter of law. It is true, he knew he was engine, by the exercise of ordinary care, be- in a place of danger, and that a west-bound fore running onto the deceased, this conces- car might run over the north track at any sion is set off by the indisputable fact that moment, and before he could board the Lee the deceased, after he might have discov- avenue car; but his view of the north track ered the engine, and even at a later stage was obstructed, and he was pressing forward in the events which led up to the catastrophe, to board the car, which, if he had succeeded might have stepped aside and have avoided in doing, would have placed him out of danthe engine.” In the same case (at page 225, ger. The plaintiff's duty to look and listen 157 Mo., page 772, 57 S. W., 50 L. R. A. 850) for an approaching car on the north track we find the following: “The whole law on should be measured by his opportunity to see the subject is so aptly expressed by Macfar- and hear the car, and his environment should la ne, J., in Watson v. Railroad, 133 Mo., loc. be taken into consideration; and if, after cit. 250, 34 S. W. 573, that to attempt to im- considering these, it appears he used such prove upon it or to elucidate it would be as care as a reasonably prudent person would puerile as to try to paint the lily,' and we have used in the same or similar circumtherefore simply quote and approve it. That stances, he should not, as a matter of law, learned jurist's formulation of the rule is be convicted of contributory negligence bethis: 'In order to avoid the effect of the cause he failed to discover the car in time unquestioned negligence of deceased, plain- to get out of its way. The question was one tiff charges that defendant's employés failed of fact for the jury, and was submitted to to observe proper care after the peril to them by the court on appropriate instrucwhich he had exposed himself was known to tions. them, or by reasonable care might have 4. Defendant insists that the verdict is exbeen known. The rule is thus invoked, cessive, and evinces prejudice and passion which is well settled in this state, that, on the part of the jury. In this character of though one has negligently placed himself up- case, the damages cannot be mathematically on a railroad track in front of a moving calculated. They should be estimated on the train, those operating it owe him the duty basis of compensation. Pain of body and of care to avoid injuring him, and his pre- mental anguish resulting from an injury are vious negligence will not bar a recovery if elements that enter into the estimate of the injury results to him fro:n neglect of such damages. The uncertainty of correctly estia duty. But to carry this doctrine to the mạting what is a fair money compensation length of saying that one who knowingly for pain of body and mental anguish is crosses the track of a railway, in such close shown by the wide differences in the amounts proximity to a moving train as to be struck assessed by juries in similar cases. We thereby before he could cross, would not be might go further and say that the reported guilty of concurring negligence, would vir- cases also show a like contrast in the judgtually abolish the law of contributory negli- ments of the appellate courts as to what are gence altogether, and render nugatory a excessive damages. We think this is due long and uniform line of decisions of this more to temperament than to sound, concourt. Boyd v. Railroad, 105 Mo. 371, 16 S. servative judgment. The question is one W. 909, and cases cited.'” As held by Judge which must necessarily be deferred to the Marshall, who wrote the opinion in the Hol- jury and the trial court, as they are in a werson Case, the doctrine of negligence and much better position, from having seen and contributory negligence, in its last analysis,

the and all is the effort to determine the immediate and direct cause of the injury, and to i cer- than is the appellate court, who neither sees tain whether the ain was guilty of negli- nor hears any of the witnesses; and we do gence which contributed with the defendant's not think it is wise practice for appellate negligence to produce the injury, and, wher- courts to interfere with the verdicts of juries ever it appears from the ultimate facts prov- on account of the damages assessed, and take ed that plaintiff was guilty of contributory upon themselves the task of estimating them, negligence, it ends the case.

It clearly ap

in this class of cises. The verdict of the pears from the evidence that plaintiff's neg- jury should not be disturbed unless the damligence, if he was negligent in placing him- ages assessed are so excessive as to shock self where he was hurt, was prior to that of the moral sense, or it clearly appears that the motorman's. This prior negligence was the jury was influenced by passion or prejua remote, not a direct or proximate, cause of dice. There is no indication in the record the injury, and plaintiff was entitled to go before us that the jury was inflamed by to the jury, unless his own evidence shows passion or was prejudiced, and we are not that his prior negligence continued down to prepared to say that the damages are grossly the time of the happening of the accident. excessive. If it did, then his negligence concurred with Discovering no reversible error in the recthat of the motorman, and plaintiff cannot ord, the judgment is afirmed. All concur.

• nesses

, to correctly aestimate the damages,

souri. That on the 8th day of January, 1900, SAWYER V. SANDERSON et al.* at the date of said note and transfer of said 81 Louis Court of Appeals. Missouri. June saloon business, the stock of liquors and fix. 1, 1905.)

tures did not exceed two thousand ($2,000) 1 INTOXICATING LIQUORS-LICENSE-TRANS

dollars in value, and that the agreed considILE

eration paid plaintiff, altogether, was four A bill of sale reciting the transfer of "all thousand ($4,000) dollars cash, and four thou=goods, license, good will, etc., to my saloon,"

sand ($4,000) dollars in and represented by pred at the conclusion of negotiations in which ze license was considered, and in which it was

the note sued on. That in order to close Egreed and understood that the saloon should be said deal and obtain the execution of said by the buyers under the seller's name and

note, and as an inducement to defendants to bonge until the expiration of the license, and i porsuance of which it was so conducted, con

execute the same, and as a part of its conet a transfer of the license, within the sideration, plaintiff (being a regular, licensed probition of Rev. St. 1899, $ 2992.

dramshop keeper in said city, holding li2. SAVE-EFFECT OF TRANSFER.

censes therefor from said city, county, and The inclusion of the seller's license in a ale for a single and indivisible consideration,

state) assigned and delivered his said dramof a saloon, fixtures, and good will, renders

shop keeper's licenses for said county, state, the abole contract, and the note given therefor, and city to the defendants; and likewise, as Toid, ander Rev. St. 1899, $2992, prohibiting

a part of said transaction, and for the same be transfer or assignment of a dramshop licease, and under other provisions of the dram

purpose and consideration, the plaintiff at the sbop act, which contemplate the possession by same time sold his good will, as based on said a Esposee of specified qualifications, and the licenses, in the said liquor and saloon busisard of a license by the county court only to

ness, to the defendants; and likewise, and 2n individual possessing those qualifications, and a ter specified proceedings, including the con

for the same purpose, plaintiff, as part of sent of taxpaying citizens and the giving of a said consideration for said note, guarantied bord.

to the defendants that the room in which Goode, J., dissenting.

said Hotel Bar was run and operated should Appeal from Circuit Court, Newton County;

not cost the defendants to exceed one hunHenry C. Pepper, Judge.

dred and fifty ($150) dollars per month for a Action by Thomas Sawyer against S. H. period of one year from said date; and in Sanderson and another. There was a judg-pursuance of said sale and transfer of said Dept for plaintiff, and defendants appeal.

saloon and business, and as part of said conReversed.

sideration, and as part of said transaction,

and for said note, the plaintiff executed and The suit is to recover a balance alleged to

delivered to the defendants a certain writing, be due on a promissory note for the prin

of which the following is a copy: Carthage, eipal sum of $4,000, dated January 8, 1900,

Mo., January 8, 1900. For and in consideracoe 12 months after date, with 7 per cent.

tion of the sum of eight thousand ($8,000) interest, payable to plaintiff, and executed

dollars, paid to me this day, I grant, bargain by the defendants. Omitting caption, the

and sell to S. H. Sanderson and Geo. H. answer is as follows: "Come the defendants,

Thomas all my goods, license, good will, etc., aod, for answer to the petition, admit the Execution of the note sued on, but deny any

to my saloon known as the Joplin Hotel Bar,

located in the Joplin Hotel, Joplin, Mo., and liability thereon. Defendants, for further

do guarantee the title to the same. I also answer, say: That the sole and only consideration for said note was the sale and

agree to pay all bills of the said house up to

date, and guarantee that Sanderson and transfer of a stock of intoxicating liquors and

Thomas can have the room that the saloon the business of a saloon from plaintiff to detendants, known as the Joplin Hotel Bar, in

is now in, for at least one year, at one hun

dred and fifty ($150) dollars per month. the city of Joplin, Jasper county, Missouri,

Thomas Sawyer.' That pursuant to said and the good will and license, etc., hereinafter mentioned. That said liquors, etc.,

agreement said plaintiff thereupon immediTere sold and delivered to defendants with

ately delivered possession of said saloon and the express agreement, purpose, and inten

stock to defendants, who, with the knowl

edge, consent, aid, co-operation, and good tion on part of plaintiff that the same should

will of plaintiff, engaged in the retail sale of be unlawfully used, vended, and sold by the defendants at retail in said Joplin Hotel Bar,

said liquors at said Joplin Hotel Bar under in Jasper county, Missouri, for the purposes

said licenses, in said room, and under and in below mentioned, without defendants having

pursuance of said contract and the giving

of said note. Defendants say that said sale any legal authority or license to sell or vend the same. That said liquors, business, good

and assignment of said license was in viola

tion of section 2992, Rev. St. 1899, contrary will, and licenses were so unlawfully sold at

to general law, and against public policy, said county and state, and said business was therewith thereafter conducted, with the ap

and, by reason of the premises, said note is

void and without consideration. Wherefore proval. sanction, aid, and consent of the plaintiff, without lawful license, and in open. they have judgment for costs.” The reply

defendants ask to be discharged, and that Tiolation of the laws of the state of Mis

was a general denial. *Bebearing denied June 19, 1905.

Defendants, having admitted the execution

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