go, and the car, traveling at half speed, could not have been closer to the place of contact than 15 feet. Some of the witnesses put the distance even greater. Plaintiff's expert evidence shows that, under the existing conditions the car could have been stopped in 10 feet; defendant's experts say in 20. According to the various estimates made by the witnesses, the car ran from 10 to 30 feet after it struck plaintiff, and many witnesses say that no effort was made to stop it until just about the instant of collision. Bearing in mind that in passing upon a demurrer to the evidence every reasonable inference must be indulged in favor of the plaintiff, we are not willing to declare that plaintiff failed to sustain his burden. To do so, we must assume that the gripman immediately applied the brakes when plaintiff left the sidewalk (a matter in dispute) and that it was impossible to stop the car in a distance of 15 feet (another controverted assertion). These issues of fact were for the jury to decide. It was, proper, as was done, to submit the case under the "last-chance rule," for it is well settled that, if the inferences to be drawn from the evidence are not certain or incontrovertible, the question of negligence cannot be passed upon by the court. Gratio v. Ry. Co., 116 Mo., loc. cit. 466, 21 S. W. 1094; Baird v. Ry. Co., 146 Mo., loc. cit. 281, 48 S. W. 78. Many objections are urged to the rulings of the learned trial judge upon the admission of evidence. We have considered carefully each of them, and find none of sufficient merit to call for special notice.

Criticism is made of plaintiff's instruction No. 1, but the points made are fully covered in the views expressed. The case was fairly tried and submitted.

The judgment is affirmed. All concur.

WAECHTER v. ST. LOUIS & M. R. R. CO. (St. Louis Court of Appeals. Missouri. June 1, 1905.)

1. PLEADING-MATTER OF INDUCEMENT-REFERENCE TO PRECEDING COUNT.

Where matter of inducement is stated in the first count of a petition, a mere reference to it in subsequent counts is sufficient.

[Ed. Note.-For cases in point, see vol. 39, Cent Dig. Pleading, § 118.]

2 PLEADING SEPARATE CAUSES OF ACTION— SEPARATE STATEMENT.

In an action against a street railroad for personal injuries, the first count of the petition, after setting out matter of inducement, charged negligence on the part of the conductor in failing to discover plaintiff's perilous position and stop the car to avoid injuring him. The second count recited, "For the purpose 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 *), and prays that the said facts be taken as part of this second cause of action, to avoid unnecessary prolixity in this petition"; and then followed an allegation that the motorman "intentionally, recklessly, and with wanton disregard of plaintiff's rights," ran the car upon him. Held to sufficiently state

two distinct causes of action-one for negligence, and the other for willfulness-within Code Civ. Proc. § 593 (Rev. St. 1899, § 593), providing that different causes of action joined in the same petition must be separately stated, with the relief sought for each cause of action, in such manner that they may be intelligibly distinguished.

3. SAME-ELECTION BETWEEN COUNTS.

Where both of the two counts in the petition in an action against a street railroad for personal injuries set forth the same act as causing the injury, but the first charges negligence, and the second willfulness, and the evidence is sufficient to justify a verdict on either count, plaintiff will not be compelled to elect upon which he will proceed, but is entitled to have both theories submitted to the jury. [Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, § 1199.]

4. CARRIERS-PERSONAL INJURIES-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY. In such action the question of plaintiff's contributory negligence held, under the evidence, to be for the jury.

5. PERSONAL INJURIES

AGES.

MEASURE OF DAM

In an action for personal injuries, damages should be estimated on the basis of compensation.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, § 222.]

6. SAME COMPENSATORY DAMAGES - BODILY PAIN-MENTAL ANGUISH.

Pain of body and mental anguish resulting from personal injuries are elements that enter into the estimation of compensatory damages. [Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Damages, §§ 100-105, 233, 234, 255259.]

7. SAME-REVIEW.

On appeal in an action for personal injuries, the verdict will not be disturbed unless the damages assessed are so excessive as to shock the moral sense, or it clearly appears that the jury was influenced by passion or prejudice.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 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 pain and suffering and the loss of 11 weeks' time, and it appeared that the dislocation of his collar bone interfered with his lifting power, and that he would not recover of the injury under four or five years, a verdict for $2,500 is not excessive.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by Gottlieb Henry Waechter, as next friend of Carl August Waechter, against the St. Louis & Meramec River Railroad Company for personal injuries. From a judgment for plaintiff for $2,500, defendant appeals. Affirmed.

On the evening of January 3, 1903, the plaintiff, who was then about 20 years of age, and in the employ of the St. Louis Car Company, after finishing his day's work, boarded a Broadway car and rode to Locust street, where he was transferred to a Lee avenue car, to be carried to his home, in the northern part of the city. He left the Broadway car at the intersection of Broadway and Locust street, and boarded a Lee avenue

car, which was standing on the south track on Locust street, between Broadway and Sixth street. The car he boarded was out of order, and the passengers were advised by the conductor to take another Lee avenue car, standing about three feet ahead on the same track. About 25 or 30 of the passengers, including the plaintiff, got off the car at the front platform, passed north between the two standing cars, and made a rush to get on the forward car by way of the rear platform. Plaintiff and Fred Astroth were in the rear of the bunch of passengers, and, before they could get aboard, a St. Louis & Meramec River car, traveling west on the north track, came along and caught plaintiff and Astroth between it and the standing car, and rolled the plaintiff; turning him around and around six or eight times, and dropping him on the street. One of plaintiff's ribs was fractured, his collar bone dislocated, and his arms and back bruised. The injury caused him much pain and suffering, and the loss of 11 weeks' time. There is also evidence that the dislocation of plaintiff's collar bone interferes with the lifting power of his right arm, and that he will not recover of this injury under four or five years.

The Meramec River car runs north on Fourth street to Locust, where it turns west, and runs over Locust street on the north track. Plaintiff testified that he knew these cars ran west on the north track in Locust street, and when he got off the Lee avenue car, and passed between it and the one ahead, he looked east to see if a car was coming on the north track, but did not see one, and that, after he got on that part of the street between the two tracks, the bunch of passengers in front of him obstructed his view, and he could not see the car coming from the east on the north track, and that he did not see the car that rolled him until it was right on him (within a foot or two of him), and too late to get out of its way. In his deposition taken before the trial, and read in evidence by the defendant, plaintiff stated that he did not see the car until it struck him. The evidence is all one waythat the gong was not sounded and no warning whatever was given of the approach of the Meramec River car-and all of plaintiff's 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

that he could not have seen the approaching car, on account of the bunch of people immediately in front of him, without stepping back onto the north track. All the passengers except plaintiff and Astroth got on the Lee avenue car before the arrival of the Meramec River car, and Astroth testified he had hold of the hand rail, and was trying to pull himself up on the car step, when he was struck and rolled between the two cars.

A statement made by the motorman was read as his evidence by the defendant. The motorman stated that his car was running from 2 to 21⁄2 miles per hour when it passed the Lee avenue car, and that there was no one on or so near the north track as to be struck by his car, and that he did not know any one had been hurt by it until informed by his conductor; that, as his car approached from the east, it was in plain view of any one looking east from where the Lee avenue car stood. The conductor testified that the car was running about two miles an hour, and that he did not know any one had been hurt by it until he had turned his car in that evening.

The petition is in two counts. The first charges negligence on the part of the conductor in failing to discover plaintiff's perilous position and stop the car to avoid injuring him. The second charges that the motorman "intentionally, recklessly, and with wanton disregard of plaintiff's rights," ran the car upon him. The answer was a general denial, and the affirmative defense of contributory negligence. The jury found for plaintiff on the first count, and assessed his damages at $2,250. The verdict was for defendant on the second count.. At the close of plaintiff's evidence the defendant moved the court for a compulsory nonsuit, and at the close of plaintiff's evidence, and again at the close of all the evidence, the defendant moved the court to compel the plaintiff to elect upon which count he would proceed. These motions were all denied.

Jefferson Chandler, for appellant. R. F. Ralph and Barclay & Fauntleroy, for respondent.

BLAND, P. J. (after stating the facts). 1. 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

count. Its position is that a cause of action cannot be stated by reference to or by adoption of allegations in another cause of acton. Section 593 of the Code of Civil Procedure (Rev. St. 1899, § 593) provides that different causes of action joined in the same petition "must be separately stated, with the relief sought for each cause of action,

such manner that they may be intelligibly distinguished." In Bricker v. Railway, 83 Mo. 391, it is said: "When a pleader inelades in his statement or petition several distinct causes of action, it is unnecessary for him to repeat allegations which are applicable to them all." The statement in the case alleged the killing of plaintiff's stock by defendant's locomotive and engine on three different dates, and contained but one allegation that the stock at the three different dates got upon defendant's road where it was required by law to fence its right of way, but had neglected to do so. The court held it was unnecessary to repeat in every count the allegation of failure to fence, as it was common to them all. In St. Louis Gaslight Co. v. St. Louis, 86 Mo., loc. cit. 498. it is said: "The petition consists of various counts; two for each month-one for the price of the gas, and one for the other services. The first count sets out the incorporation of the three parties to the contract, the ordinance directing the contract to be made, the contract, and the terms thereof. These matters are not stated in the second and subsequent counts, but in them reference is made to the first by the use of such terms as 'in the district aforesaid, 'under said contract,' and 'agreed as aforesaid.'" It was held that subsequent counts might be made certain by reference to preceding ones. The rule has always been that where matter of inducement is stated in the first count, if this count be good, a mere reference to it in subsequent counts is sufficient. Loomis v. Swick, 3 Wend. 205. The contention that the counts are a unit, stating two repugnant causes of action, we do not think is supported by ether reason or authority. The petition contains two causes of action, separately stated in such manner as to be intelligibly distinguished. It is true, the same act causing the injury is set forth in both counts of the petition. The difference in the counts is not in the act, but in its quality. In the first its quality is described as negligence, and in the second count as willfulness. Proof of negligence necessarily disproves willfulness, and vice versa, and for this reason they could not be joined in the same count. The cause of action was the injury, and the two counts stated it in different ways to meet the evidence, which might show that it occurred in the manner alleged in the first or the manner alleged in the second count. That the same cause of action may be stated in this way in different counts, as the various theories or phases of

the case may alternate, is clearly permissible, and is common practice. Rev. St. 1899, § 626; Brownell v. Railroad, 47 Mo. 239; Owens v. Railroad, 58 Mo. 386.

2. We do not think the court erred in refusing to compel the plaintiff to elect upon which count he would proceed. As before stated, there was but one cause of action, though stated in different ways. The evidence, it seems to us, would have justified a verdict on either count. It shows that the motorman in charge of defendant's car was either extremely negligent, or, worse, was reckless of human life. Where there is evidence supporting two theories, upon either of which the plaintiff might recover, and both are properly pleaded, the plaintiff is entitled to have both theories submitted to the jury, and it would be a denial of his legal rights to withdraw either from the jury's consideration.

3. It is contended that plaintiff should have been nonsuited, for the reason his own evidence shows he voluntarily put himself in a place of peril, and was thereafter negligent (down to the time of his injury) in failing to take proper precautions to protect himself. The facts do not justify the statement that plaintiff voluntarily chose to place himself near the north-bound track, where he was injured. He had to go there to take passage on the Lee avenue car, and had a right to go there for that purpose. Plaintiff testified that, as he passed between the two Lee avenue cars, he looked east, but saw no car coming on the north track. He was detained in a position of danger for two or three minutes by the bunch of passengers preceding him, and said he lingered behind for the purpose of giving the lady passengers an opportunity to get off the first car and aboard the second, and during the time he was standing on the street he did not look east for a car. Plaintiff's evidence is that his view of the north track was obstructed by the people ahead of him, and he could not have seen east, if he had looked, without stepping back onto the north track; that he was facing to get on the car, and Cid not pay attention to the north track; knowing all the while that he was in a position of danger, and that prudence required him to look out for a west-bound car. As applicable to this phase of the case, defendant's counsel, in his brief, quotes the following from the case of Holwerson v. Railway, 157 Mo. 227, 57 8. W. 770, 50 L. R. A. 850 (quoted from Kirtley v. Railroad [C. C.] 65 Fed. 391): "Conceding that there was a duty upon the defendant's servants to anticipate that persons would be upon the track, this is set off by the duty on the part of the deceased to anticipate that trains would run on the track, and hence keep a lookout for them. Conceding that a careful lookout on the part of the defendant's servants would have revealed the deceased on the track, this is set off by the fact that a diligent outlook by the de

ceased would have revealed the approach of the engine at his rear. Conceding that the defendant's servants might have stopped the engine, by the exercise of ordinary care, before running onto the deceased, this concession is set off by the indisputable fact that the deceased, after he might have discovered the engine, and even at a later stage in the events which led up to the catastrophe, might have stepped aside and have avoided the engine." In the same case (at page 225, 157 Mo., page 772, 57 S. W., 50 L. R. A. 850) we find the following: "The whole law on the subject is so aptly expressed by Macfarlane, J., in Watson v. Railroad, 133 Mo., loc. cit. 250, 34 S. W. 573, that to attempt to improve upon it or to elucidate it would be as puerile as to try to 'paint the lily,' and we therefore simply quote and approve it. That learned jurist's formulation of the rule is this: In order to avoid the effect of the unquestioned negligence of deceased, plaintiff charges that defendant's employés failed to observe proper care after the peril to which he had exposed himself was known to them, or by reasonable care might have been known. The rule is thus invoked, which is well settled in this state, that, though one has negligently placed himself upon a railroad track in front of a moving train, those operating it owe him the duty of care to avoid injuring him, and his previous negligence will not bar a recovery if injury results to him from neglect of such a duty. But to carry this doctrine to the length of saying that one who knowingly crosses the track of a railway, in such close proximity to a moving train as to be struck thereby before he could cross, would not be guilty of concurring negligence, would virtually abolish the law of contributory negligence altogether, and render nugatory a long and uniform line of decisions of this court. Boyd v. Railroad, 105 Mo. 371, 16 S. W. 909, and cases cited.'' As held by Judge Marshall, who wrote the opinion in the Holwerson Case, the doctrine of negligence and contributory negligence, in its last analysis, is the effort to determine the immediate and direct cause of the injury, and to ertain whether the plaintiff was guilty of negligence which contributed with the defendant's negligence to produce the injury, and, wherever it appears from the ultimate facts proved that plaintiff was guilty of contributory negligence, it ends the case. It clearly appears from the evidence that plaintiff's negligence, if he was negligent in placing himself where he was hurt, was prior to that of the motorman's. This prior negligence was a remote, not a direct or proximate, cause of the injury, and plaintiff was entitled to go to the jury, unless his own evidence shows that his prior negligence continued down to the time of the happening of the accident. If it did, then his negligence concurred with that of the motorman, and plaintiff cannot

recover. We do not think that plaintiff's evidence convicts him of continuing negligence, as a matter of law. It is true, he knew he was in a place of danger, and that a west-bound car might run over the north track at any moment, and before he could board the Lee avenue car; but his view of the north track was obstructed, and he was pressing forward to board the car, which, if he had succeeded in doing, would have placed him out of danger. The plaintiff's duty to look and listen for an approaching car on the north track should be measured by his opportunity to see and hear the car, and his environment should be taken into consideration; and if, after considering these, it appears he used such care as a reasonably prudent person would have used in the same or similar circumstances, he should not, as a matter of law, be convicted of contributory negligence because he failed to discover the car in time to get out of its way. The question was one of fact for the jury, and was submitted to them by the court on appropriate instructions.

4. Defendant insists that the verdict is excessive, and evinces prejudice and passion on the part of the jury. In this character of case, the damages cannot be mathematically calculated. They should be estimated on the basis of compensation. Pain of body and mental anguish resulting from an injury are elements that enter into the estimate of the damages. The uncertainty of correctly estimating what is a fair money compensation for pain of body and mental anguish is shown by the wide differences in the amounts assessed by juries in similar cases. We might go further and say that the reported cases also show a like contrast in the judgments of the appellate courts as to what are excessive damages. We think this is due more to temperament than to sound, conservative judgment. The question is one which must necessarily be deferred to the jury and the trial court, as they are in a much better position, from having seen and heard the plaintiff and all the other witnesses, to correctly estimate the damages, than is the appellate court, who neither sees nor hears any of the witnesses; and we do not think it is wise practice for appellate courts to interfere with the verdicts of juries on account of the damages assessed, and take upon themselves the task of estimating them, in this class of cases. The verdict of the jury should not be disturbed unless the damages assessed are so excessive as to shock the moral sense, or it clearly appears that the jury was influenced by passion or prejudice. There is no indication in the record before us that the jury was inflamed by passion or was prejudiced, and we are not prepared to say that the damages are grossly excessive.

Discovering no reversible error in the record, the judgment is affirmed. All concur.

A bill of sale reciting the transfer of "all my goods, license, good will, etc., to my saloon," given at the conclusion of negotiations in which the license was considered, and in which it was agreed and understood that the saloon should be rn by the buyers under the seller's name and Ecense until the expiration of the license, and in pursuance of which it was so conducted, constimates a transfer of the license, within the prohibition of Rev. St. 1899, § 2992.

2. SAME-EFFECT OF TRANSFER.

The inclusion of the seller's license in a sale, for a single and indivisible consideration, of a saloon, fixtures, and good will, renders the whole contract, and the note given therefor, vold, under Rev. St. 1899, § 2992, prohibiting the transfer or assignment of a dramshop license, and under other provisions of the dramshop act, which contemplate the possession by a Loensee of specified qualifications, and the award of a license by the county court only to an individual possessing those qualifications, and after specified proceedings, including the consent of taxpaying citizens and the giving of a bord.

Goode, J., dissenting.

Appeal from Circuit Court, Newton County; Henry C. Pepper, Judge.

Action by Thomas Sawyer against S. H. Sanderson and another. There was a judgment for plaintiff, and defendants appeal. Reversed.

The suit is to recover a balance alleged to be due on a promissory note for the principal sum of $4,000, dated January 8, 1900, due 12 months after date, with 7 per cent. nterest, payable to plaintiff, and executed by the defendants. Omitting caption, the answer is as follows: "Come the defendants, and, for answer to the petition, admit the execution of the note sued on, but deny any Hability thereon. Defendants, for further answer, say: That the sole and only consideration for said note was the sale and transfer of a stock of intoxicating liquors and the business of a saloon from plaintiff to defendants, known as the Joplin Hotel Bar, in the city of Joplin, Jasper county, Missouri, and the good will and license, etc., hereinafter mentioned. That said liquors, etc., were sold and delivered to defendants with the express agreement, purpose, and intention on part of plaintiff that the same should be unlawfully used, vended, and sold by the defendants at retail in said Joplin Hotel Bar, in Jasper county, Missouri, for the purposes below mentioned, without defendants having any legal authority or license to sell or vend the same. That said liquors, business, good will, and licenses were so unlawfully sold at said county and state, and said business was therewith thereafter conducted, with the approval, sanction, aid, and consent of the plaintiff, without lawful license, and in open violation of the laws of the state of Mis"Rebearing denied June 19, 1905.

souri. That on the 8th day of January, 1900, at the date of said note and transfer of said saloon business, the stock of liquors and fixtures did not exceed two thousand ($2,000) dollars in value, and that the agreed consideration paid plaintiff, altogether, was four thousand ($4,000) dollars cash, and four thousand ($4,000) dollars in and represented by the note sued on. That in order to close said deal and obtain the execution of said note, and as an inducement to defendants to execute the same, and as a part of its consideration, plaintiff (being a regular, licensed dramshop keeper in said city, holding licenses therefor from said city, county, and state) assigned and delivered his said dramshop keeper's licenses for said county, state, and city to the defendants; and likewise, as a part of said transaction, and for the same purpose and consideration, the plaintiff at the same time sold his good will, as based on said licenses, in the said liquor and saloon business, to the defendants; and likewise, and for the same purpose, plaintiff, as part of said consideration for said note, guarantied to the defendants that the room in which said Hotel Bar was run and operated should not cost the defendants to exceed one hundred and fifty ($150) dollars per month for a period of one year from said date; and in pursuance of said sale and transfer of said saloon and business, and as part of said consideration, and as part of said transaction, and for said note, the plaintiff executed and delivered to the defendants a certain writing, of which the following is a copy: 'Carthage, Mo., January 8, 1900. For and in consideration of the sum of eight thousand ($8,000) dollars, paid to me this day, I grant, bargain and sell to S. H. Sanderson and Geo. H. Thomas all my goods, license, good will, etc., to my saloon known as the Joplin Hotel Bar, located in the Joplin Hotel, Joplin, Mo., and do guarantee the title to the same. I also agree to pay all bills of the said house up to date, and guarantee that Sanderson and Thomas can have the room that the saloon is now in, for at least one year, at one hundred and fifty ($150) dollars per month. Thomas Sawyer.' That pursuant to said agreement said plaintiff thereupon immediately delivered possession of said saloon and stock to defendants, who, with the knowledge, consent, aid, co-operation, and good will of plaintiff, engaged in the retail sale of said liquors at said Joplin Hotel Bar under said licenses, in said room, and under and in pursuance of said contract and the giving of said note. Defendants say that said sale and assignment of said license was in violation of section 2992, Rev. St. 1899, contrary to general law, and against public policy, and, by reason of the premises, said note is void and without consideration. Wherefore defendants ask to be discharged, and that they have judgment for costs." The reply was a general denial.

Defendants, having admitted the execution