— This cause is before us for the second time on defendant’s appeal from a judgment of the circuit court of Buchanan county. Plaintiff, who was a passenger on defendant’s train, destined for Pickering, a station of its road, sued to recover damages for injuries sustained by him, by reason of the alleged negligent failure of defendant to stop its train a sufficient length of time at said station to enable him to get off at said station, and in prematurely starting the train while he was in the act of alighting, whereby he was thrown between the cars and platform of the depot and injured.
The opinion delivered in this case when it was first before the court, is reported in 75 Mo. 185. The evidence bearing on the point there raised by counsel, and,, also, now raised, that there was no evidence on which to-submit the question to the jury, that the conductor either knew, or had good reason to believe, that plaintiff was> in the act of alighting from the train, when he ordered it to start, is thus stated in the opinion: “ The plaintiff himself testified as follows : ‘ On the twenty-sixth day of November, 1877,1 was a passenger on the defendant’strain, going to Pickering. Just as the train whistled for *427Pickering, I got np from my seat and went to the door of the car. When it stopped, I opened the door and started ont, and the car started, just as I was in the act of getting off, with a sudden jerk, and I was thrown down between the car and the platform, and rolled around till I got to the end of the platform.’. * * * Several witnesses testified that the plaintiff told them, a short time after the accident, that he had been traveling on trains so much that he had become careless ; that he did not notice that the train was moving, and that he got off backwards, and that nobody was to blame for his getting hurt but himself. * * * The plaintiff, on his cross-examination, admitted that he stated to several persons that the conductor was not to blame, but said he so stated because he did not wish to get the conductor into trouble. But he denied that he ever .stated to any one that no one was to blame but himself. The conductor testified as follows: ‘ The train stopped still. The stop was at least for one-half minute. We stopped the usual length of time for stops at stations at which no business is to be transacted. After the train stopped I walked out on the depot platform, walked across to the-corner of the depot and leaned up against the building a few seconds. * * * As I went across the platform to the depot, I looked to the left, over my shoulder, to the rear of the train, and saw the plaintiff coming down the steps- of the car. I leaned against the depot a few seconds, and then gave the signal to the engineer to go ahead, and walked across the platform to the door of the baggage car and went in. I went into the same door I came out of; went back into the same car. The car had not started when I went into it.’ The station agent at Pickering testified, in substance, that after the train stopped, he walked from his office across the platform to the train, got his mail from the train, and returned to the office door before the train started. He saw the plaintiff standing on the car platform looking through *428the door into the car, and saw him after the train started step off the car on the wrong foot, which whirled him around and off his feet.”
On this state of facts the judgment was reversed, not because there was no evidence on which to submit to the jury the question whether the conductor knew, or had good reason to believe, that plaintiff was in the act .of alighting from the train when he started it, but the judgment was reversed and the cause remanded for another trial on the distinct ground that an instruction which did submit that very question was erroneous only in that it ignored the question as to whether the train in fact was stopped a reasonable length of time to enable the plaintiff to get off, and the further ground that there was a conflict between an instruction given for •plaintiff and one for defendant. The point then made that there was no evidence upon which to submit the ■case to the jury was not sustained, but, on the contrary, in speaking.of the facts in evidence the court proceeded to lay down the law applicable, and for the guidance of the trial court on a re-trial, as follows: “If the servants of the defendant did not halt the train at Pickering station a sufficient length of time to enable the plaintiff, by the use of reasonable expedition, to get off before it was again started, and it was so startedNvhile plaintiff was an the act of alighting, whereby he was thrown down and injured, the defendant is undoubtedly liable.”
“If the train was stopped a sufficient length of time-for plaintiff, to conveniently alight, and, without any fault of defendant’s servants, he failed to do so, and the •conductor, not knowing and having no reason to suspect that plaintiff was in the act of alighting, caused the train to start while he was so alighting, the defendant would not be liable.”
An examination of the record now before us shows that the evidence, as to what took place with reference to stopping and starting the train when the accident oc*429curred, is substantially the same as reported in 75 Mo. supra, and it also shows that on the re-trial of the cause-the trial court gave an instruction strictly in harmony with the theory indicated in the opinion of the court. .For that reason, and believing the questions therein settled, and the principles therein announced to have been correctly settled, and fully supported by the authorities cited in the opinion, we decline to re-discuss or re-investigate them, further than to say that we are not disposed to-relax any of the rules of law which impose on a common-carrier the strictest observance of the contractual obligations it assumes to a person whom it has received as a passenger, not only in using the utmost care and caution in carrying him, but also the same care and caution in stopping and starting its trains at the station to which, it has agreed to carry him.
The conductor, in his evidence, stated that the train stopped thirty seconds, or less; “ that he stepped on to the platform at the depot and looked back southward to the passenger coach, and saw Straus on the steps of the passenger coach, as though coming down the steps to the depot platform; the train stopped a half minute, or less ;5 ’ that he walked on four or five steps to the corner of the depot, turned round facing the train, and looked northward toward the engine, and gave the signal to start. To hold, under these facts, that the failure of the conductor to ascertain that plaintiff had alighted from the train before he gave the signal to start it, which fact-he could have ascertained (and which, under the circumstances, it was his duty to ascertain), had he looked south where he first saw plaintiff on the steps, is no evidence of negligence, would be to hold that a conductor might shut his eyes, under circumstances which made it his duty to look. In the opinion in this case, in 75 Mo., supra, it is said that if a conductor “has reason to believe that any passenger, who has reached his destination, has not alighted, and, though dilatory, may be in *430the act of alighting, and he starts his train without examination or inquiry, and such passenger is in the act of alighting when the train is started, and is thereby injured, the company will be liable.” Although the conductor stated that the train stopped thirty seconds or less, although he saw plaintiff on the steps as though coming down’ the steps, a few seconds before he gave the signal and started the train, he made neither examination nor enquiry, but instead of simply casting his eye, the work of a moment, south ¡towards the place where he had seen plaintiff a moment before, to ascertain whether he had reached the platform, he looked away from him, to the north, and gave the engineer the order to go, which resulted, according to the evidence of plaintiff, in putting his life ;!n great peril by being rolled between the train and depot platform, and dumped to one side when the end •of the platform was reached..
Another ground of objection is that defendant applied for a continuance on account of the absence of one Wallbridge, a material witness, setting out in the application what it expected to prove by him, and thereupon plaintiff admitted that said Wallbridge, if present, would testify as stated in the application, whereupon ¡the court overruled the application, and the trial proceeded, during which the evidence of said Wallbridge, •as set out, was read to the jury. After all the evidence was put in and instructions given, Mr. Green, one of plaintiff’s counsel, in his opening speech to the jury, •said: “ Why is not witness Wallbridge here to testify .and let us cross-examine him ? He lives here in this city; he has left defendant’s employ. They (meaning defendant’s counsel), tell us he has been sent for and won’t •come. Why won’t he come % While he was in their service he swore to suit them. He will not come now and •swear to the truth for fear of being prosecuted for perjury by this soulless railroad corporation,” or language *431to that effect. When defendant’s counsel objected to this line of argument, and asked the court to interfere and rebuke counsel for discussing facts not in evidence, the court interfered no further than to tell the jury, in substance, that they were only to consider such matters as were shown by the evidence. The circuit judge who heard these remarks, and was cognizant of the circumstances under which they were made, and who was presumably acquainted with the intelligence of the jury to whom they were made, and with the ability of counsel for defendant, who were to follow Mr. Green, to explain to the jury that defendant had asked the court to continue the cause on account of the absence of Wallbridge, and in order that it might have him in attendance, and that 'the continuance was prevented by the admission of Mr. Green himself, that the witness, if present, would testify to the facts as set out in the application, was in a better position than we are to determine how far he should interfere and rebuke counsel, and whether what was said would or not be likely to prejudice the jury against the defendant. State v. Hamilton, 55 Mo. 520.
The court did interfere, and- what was said by the judge to.the jury was equivalent to telling them to disregard the remarks made by Green. Can we say that the trial judge exercised his discretion improperly in not going further than this ? If so, what rule shall be laid down for the government and guidance of nisi priios judges in such cases ? Looking at it from my standpoint, and presuming, as I may (what the circuit court, perhaps, knew), that those who composed the jury were men of ordinary intelligence, and understood the obligations of-the oath they had taken, such remarks, if calculated to prejudice them at all, would be more likely to prejudice them against the plaintiff than defendant, because of his counsel having resorted to aliñe of argument so easily exposed and turned against him. This court has in sev*432eral instances reversed judgments -where counsel, in the closing argument, where there was no opportunity for réply, were permitted to mis-state the law without rebuke, but in no case, that I am aware of, has this been done when improper remarks Avere made as to the evidence, by counsel in an opening argument, where such statements could be corrected by counsel in reply. It is the common experience of all judges that in most trials had before them, where there is evidence on both sides, that opposing counsel differ in their understanding as to what the evidence was in the case, and in such cases it is the peculiar province of the jury, and not of the court, to determine between them.
During the trial plaintiff read the deposition of Andrew Hose, who testified that “ he was on the train Avhen plaintiff was injured, and that the train came to a dead stop and started immediately; that he, Straus, as soon as the train stopped, walked out of the car to get off, and just as he Avas stepping off, the train started with a jerk and he fell; Straus was standing right in the car door, and as soon as it halted he walked out to get off; [the stop of the train was not long enough for him to step from the car door to the platform, in my opinion.”] The above statement, included in brackets, was objected to on the ground that it was the expression of the opinion of the witness ; the objection was overruled, and the evidence received. The deposition of Amanda Jackson Avas also read, who testified as follows : ‘ ‘ I was on the train at the time a young man by the name of Straus was injured; he was sitting in front of me; at the time the train came to Pickering I was about the center of the train, and he was in front of me. As the train approached the depot at Pickering, he started to get off; the train did not come to a stand still, at all, to the best of my knoAvledge. [I don’t think it stopped long enough for any one to get off with safety.] I don’t think it stopped at all.” The same objection was made to such *433of the above as is included in brackets, which was also overruled. This action of the court is also assigned for error.
If these witnesses had been allowed simply to give their opinion, without more, that the train did not stop long enough for plaintiff to get off, the rule invoked by defendant that a witness should not be permitted to give his opinion, but should state facts, would apply, and might justify an interference with the judgment. But in this case, Mrs. Jackson expressed the opinion that the train did not stop long enough for plaintiff to alight, and swore as a fact that the train did not stop at all, and emphasizes this fact by repeating it. Witness Hose expressed the same opinion, and in the same connection swears positively to facts conclusively showing that the train did not stop long enough for plaintiff to alight; he testified that as soon as the train stopped he saw the plaintiff walk out of the car door to get off, and, just as he was stepping off, the car started with a jerk, and he fell. In face of the facts thus sworn to by these witnesses, and the statutory prohibition (section 3775) that no judgment shall be reversed unless error has been committed materially affecting the merits of the action, to reverse this judgment for the last error assigned would be wholly unwarranted. Besides this, the rule that the opinion of a non-expert witness is not to be received in evidence, has its exceptions. Where the value of property is in question, a witness, who states that he is acquainted with the value of that kind of property, may give his opinion of the value of the property in dispute. So, where the question of the sanity of a person is involved, a witness may give his opinion, provided he states the facts upon which it is founded. The length of time that the train stopped, to some extent, involved an expression of opinion. When the conductor *434testified that the train stopped “ half a xninnte or less,” it was nothing more than the expression of his opinion.
The instructions given in the case, being in strict • harmony with the law as laid down in 75 Mo., supra, and finding nothing in the record justifying an interference with the judgment, it is hereby affirmed.
Ray and Black, JJ., concur.