Plaintiff sued defendant for personal injuries occurring to her, it is averred, from defendant’s negligence. On a trial had before a jury she had judgment for damages in the sum of $20,000, and therefrom defendant appealed in due and ancient form.
The salient facts are few and simple; while the details may to an extent be left for statement in connection with the discussion of the points urged for reversal. The outstanding facts run thus: Defendant, pursuant.to solemn ordinance, had by contract caused to be graded a street called 49th Street, where this street traverses an addition known as “Prospect Hill Addition.” This grading was completed in October, 1914, some six 'weeks or two months before plaintiff was injured, on December 14, 1914. In grading this *448street pursuant to the plans adopted and carried out by the defendant, a uniform cut was made the width of the whole street, including the sidewalk space, to the property line,- so that when the grading was done, there were left along the property line perpendicular hanks, or walls of earth or clay, from ten to twelve feet high. A wagonway twenty-six feet wide had been improved at the point of the injury on 49th Street, for vehicular traffic, though the sidewalks had not been made. Spaces on both sides of the street, called “sidewalk spaces” in the record and which were each 17feet wide, had been left. These sidewalk spaces were at the time of plaintiff’s injury being used by pedestrians living in the vicinage to go to and from their homes, to work, to the street-car lines, and to stores in the neighborhood, whereby a path was trodden out. Prior to the time of plaintiff’s injury a part of this perpendicular clay wall had caved off and fallen across the sidewalk space and across the path made by pedestrians and above mentioned, at a point thereon only -a few feet from the place whereat plaintiff was hurt.
Plaintiff, a young woman nineteen years of age, then working for a real estate concern in a minor clerical capacity at a salary of six dollars a week, had gone to a point on 49th Street between Prospect Avenue and Wabash Avenue to chaperon her sister, who with other young persons had resorted to this part of 49th Street to coast on sleds thereon. There was another party of young folks there also coasting. The night was cold— only three degrees above zero — and some of the latter party had made a fire on the sidewalk space for the purpose of warming. In the making of this fire plaintiff had no part. The size and' location of the fire were disputed questions, since the chief defense of the city upon the facts is that this fire thawed the frozen clay bank and caused it to fall.’ The evidence of plaintiff tends to prove that this fire was about a foot in diameter, and a foot or a foot and a half in- height; that it was from three to five feet distant from the perpendi-*449calar wall of the cut and of negligible intensity. The defendant’s evidence tends to show that it was from a foot to three feet and seven inches from the wall (the city’s measurements showed 3.6 feet, exactly) and that it was some two feet in height and twenty inches in diameter and' of such heat and intensity as to convert the clay of the wall which fell, into burnt clay of a brick-like hardness and consistency.
Plaintiff, just a few seconds before she was hurt, had been in the middle of the street with a sled for her young sister. After delivering this sled to the sister she stepped back on to the sidewalk space near the fire for the purpose of warming, or of observing her sister and the other young people while they were coasting. Almost instantly thereafter a frozen section of the clay wall caved and fell and struck plaintiff, hurling her to the ground and breaking her right leg in two places. The upper fracture was a comminuted fracture of the femur near the hip, and the lower consisted in fractures of both bones near the ankle. It is averred that the muscular tissues of both legs were seriously crushed and bruised, and the testimony tends to sustain this averment.
Plaintiff was confined in a hospital for some seven weeks as a result of the injuries sh.e sustained, and thereafter was confined to her bed at her home for some ten or eleven weeks. Her right deg was permanently shortened an inch and a half, and other conditions appeared which were nervous in character and which are averred to be incidents of shock and nerve injury and to be permanent. There was as stated some crushing, or mashing and bruising of the fibres of the muscles of both legs, which the evidence tends to prove has (at least till an operation shall correct it) permanently affected movements in certain ways of both of plaintiff’s legs and causes her and will continue to cause her to limp. Upon the question of whether the nervous condition was permanent the medical experts *450were dubitante. It was agreed-by tbe expert testimony, as we read it, that tbe shortening of tbe right leg would cause a permanent limp, which, however, might be largely taken care of by the adjustments in the bones of the pelvis, at the expense of some slight distortion of the spine in the adjustment process. On this single phase of injury to the right leg the medical expert for defendant said that “there ought not to be anything more than a little limp, possibly not that.”
Some further facts will be found set out in the course of the expression of our views upon the divers contentions of error urged.
Affidavits. Extra Judicial I. We are met with a motion - by respondent to strike the brief of appellant from the files, for that it contains as exhibits thereto three certain affidavits purporting to set forth the physical status and condition of plaintiff, as of a date long subsequent to the trial and the taking of this appeal. This motion coming in too near the day of argument to allow time for careful consideration, was by us taken with the case. Meeting it therefore on the threshold of the case, we must needs dispose of it before reaching the merits.
It is so plain that we may not consider affidavits filed here in an action at law after the appeal is taken, when such affidavits contradict the solemn evidence upon which the verdict was rendered that neither authority nor exposition is necessary to holster up- .the assertion. Lately, in a case more flagrant by far than that made by the showing in the instant case, and one in which the extra-judicial showing of conditions subsequent to appeal were presented formally in a common law. proceeding and not ex parte as here, we refused to be bound thereby in the case appealed. [Callicotte v. Railroad, 274 Mo. 689, 204 S. W. 528.] We therefore refuse to consider the affidavits filed and. content ourselves with striking them from the files. But, we overrule the motion to strike the brief of defendant from *451the files, since there is nothing to indicate that the objectionable matter therein contained was interpolated in any other spirit than that of bringing about counsel’s conception of the doing of justice in the case. Counsel’s client ought not to be penalized on account of counsel’s making every effort consistent with honesty and a proper respect for the courts to protect their client’s interests and obviate what they may honestly deem to be a gross miscarriage of justice. That counsel may in doing so, and in an effort to prevent justice from becoming “a hissing and a by-word,” sometimes go out of the beaten paths which justice now treads, is not to their discredit.
Neither, on the other hand, are we saying that if we could consider these affidavits they show any fraudulent overreaching of the 'courts. They do not necessarily comport any such thing. They would merely— even if they be true — tend to show the ordinary errors in prophecies of future physical conditions, due to mistaken expert evidence and to the psychological phases of the situation presented.
II. Coming to the strenuously urged contention of defendant that plaintiff made out no case for the jury and that the demurrer of the city to the evidence ought to have been sustained, we meet a close and difficult question. As we understand defendant’s several contentions upon this point, they are (a) that the falling of the wall or bank of the cut or excavation was due to a defect in the plan of the work, and not to any negligent or defective execution of the work itself, which per contra was done precisely according to the plan; (b) that plaintiff in standing by a fire built by other persons in violation of the city ordinances, was doing an unlawful act and therefore cannot recover, and (c) that the danger of the clay bank’s falling being equally as apparent to plaintiff as it was to defendant, she was guilty of contributory negligence as a matter of law in assuming the position she was in when she was injured.
*452Defective Plan. There is no doubt that tbe doctrine of a city's non-liability when tbe injury is directly caused by a defective plan, in contradistinction to a defective or negligent execution of that plan, exists in tbe law. Tbe books are fairly full of cases bolding this view. [Vide, Hays v. Columbia, 159 Mo. App. 431; Lansing v. Toolan, 37 Mich. 152; Davis v. Jackson, 61 Mich. 530; McIntyre v. Pittsburg, 238 Pa. St. 524; Urquhart v. Ogdensburg, 91 N. Y. 67; Hoyt v. Danbury, 69 Conn. 341; Watters v. Omaha, 76 Neb. 855; Foster v. St. Louis, 71 Mo. 157.] Nor is tbe doctrine bottomed on unstable or unsound legal foundations; for when tbe city bas, through its officers in good faith exercised its best judgment in devising a plan of doing a given work, this judgment ought not to be subjected to tbe incongruous and changeable rules of alleged safety arbitrarily devised by shrewd counsel to fit tbe actionable necessities of every casualty.
But tbe rule bas its limitations; and where tbe plan adopted by tbe city is so manifestly dangerous and unsafe, or leaves tbe street in so obviously a dangerous and unsafe condition that a court can so say as a matter of law, then tbe city is liable for an injury produced as tbe proximate cause of such patently dangerous plan. [Hinds v. Marshall, 22 Mo. App. 208; Gould v. Topeka, 32 Kan. 485; Teager v. Flemingsburg, 109 Ky. 746; Healy v. Chicago, 131 Ill. App. 183; Conlon v. St. Paul, 70 Minn. 216.] But we do not think this rule bas any application to tbe facts shown by this record. No one was hurt from tbe city’s following tbe mere plan of grading tbe street by so excavating it as to leave a perpendicular wall of clay ten feet, or more, in height. The negligence consisted in leaving this clay bank overhanging tbe pathway used by pedestrians, for some six weeks, or two months, without bracing it, or without in some wise giving notice to tbe public of its dangerous character. For, while as forecast above there is lodged in tbe city a discretion as to tbe time at which and tbe place through which it makes im-*453pro.vements, yet -when this discretion has been exercised and the street has been made, the duty of maintaining it in repair so that it will not become a menace to the public is not governmental, but ministerial. [Hines v. Lockport, 50 N. Y. 238; Twist v. Rochester, 165 N. Y. 619; Collins v. Council Bluffs, 32 Iowa, 324; Jones v. Henderson, 147 N. Y. 120; Circleville v. Sohn, 59 Ohio St. 285; Hand v. Brookline, 126 Mass. 324.] And an action will lie for injuries caused by dangerous defects in a street, which defects the city suffers to remain after reasonable notice of the existence thereof; although such defects developed from well-understood physical laws operating upon the conditions produced by t'he plans which the city adopted. Here, the perpendicular bank did not at once cave. It might indeed never have caved. But when it had been subjected to the mutations of the weather for some six weeks, it began to cave in other near and similar places and thus gave notice to the city of its dangerous conditions. Thereupon it became the duty of defendant city either to take steps to remedy the defect, or to advise those using the street of the existence of such defect, so that they might protect themselves against it.
Unlawful Act. III. Coming to the next urged reason of non-liability, we are likewise of the opinion that it is untenable under the facts in this record. Plaintiff had nothing to do with making the fire, none of the party whom she was chaperoning had anything to do with this violation of the ordinance. The fire had been made by others and she was standing near it for a few seconds' observing her sister and others coasting, when the bank fell and she was hurt. Cases called to our attention by learned counsel wherein the facts were that persons were hurt while unlawfully coasting upon streets by alleged obstructions in such streets are clearly not in point. If it be urged that her act in chaperoning these young people who were coasting at a place forbidden by ordinance made her *454as guilty as they were, or that she aided and abetted this violation of an ordinance by bringing a sled to her young sister, the obvious answer is that the coasting was not the proximate cause of her injury. Since plaintiff was lawfully upon the street and when hurt was not engaged in any unlawful act, the duty caeteris paribus was owed her by the city to make the street on which she stood reasonably safe for her use.
Patent Danger. IV. Lastly, uponthis phase, it is urged that since plaintiff was sui juris, she could and should have seen this overhanging- bank and have realized its potential danger, which danger, it is urged, was just as apparent to her as it was to the defendant. The record. shows that plaintiff had never been along this street or sidewalk-space- since it was graded; that she had not seen the patent evidences of its recent caving at other near points, because she had at the instant before she was hurt approached this wall from the center of the street; that it was night and except for the fire in question, very dark, so that she saw only some five or six feet of the wall and this portion but dimly, and only by the light of this small fire.
On her evidence on this point, of which there was some corroboration, and some contradiction, it became a question of fact for the jury and not a question of law for the court, as to whether the danger was apparent to her, or whether she saw, or ought under the cir;-cumstances to have seen, the potential menace of the situation. We are, upon the whole, of the opinion that there was a case made for the jury, and that each of the defendant’s three contentions to the contrary should be disallowed.
*455Feigning Tears. *454V. In the course of the examination of Dr. Hamilton (who was a witness for plaintiff and who, as "plain*455tiff’s family physician, had attended her professionally and treated her for the injury in' controversy tere), he was asked, over defendant’s objection, this question: “Do you see any evidence of Miss Katherine’s (plaintiff’s) feigning these tears?” After some discussion on the point of the admissibility of this question, it was held by the trial court to be a proper one. "Whereupon, counsel repeated it to the witness, changing the verbiage' thereof slightly, thus: “Answer, what if any evidence you found of her feigning these tears?” The witness answered, “I could not say that there was any evidence that sheds feigning.”
It is difficult to ascertain from the record whether counsel for plaintiff was asking the above question with reference to plaintiff’s attitude upon the witness stand, or as to her condition while the witness was treating her, or as to her attitude while sitting in court and observing and taking part in the trial. And while the sequence with which the witnesses testified in the case would seem to exclude the first hypothesis, there are yet indicia in the record that the question had reference to the attitude of the witness while taking part in the trial. For counsel for defendant had before asked that the jury be discharged on account of the behavior of the plaintiff. Regardless of these hypotheses, the question invaded the jury’s province. There was a general denial in the case; the extent of plaintiff’s injuries and the question of their permanence ,vel non were sharply contested, and it is here and now most strenuously contended that the verdict herein is excessive. The evidence in the case, the demeanor of the witness on the stand and the question whether or not plaintiff was malingering and feigning as to the symptoms of her injuries were questions solely for the jury. Clearly, one witness may not pass upon the credibility of another witness. [Hunt v. Gas. Co., 8 Allen (Mass.) 169; Holliman v. Cabanne, 43 Mo. 568.] Neither may an expert witness give his opinion upon the existence or non-existence of the very matters *456and conditions which are vital issues in the case. [Deiner v. Sutermeister, 266 Mo. 505.] The question was improper, and the answer probably contributed largely to the swollen verdict in the case.
VI. Defendant asked, and now complains that the court refused the below instruction, to-wit:
instruction. “The court instructs the jury that although you may find from the evidence that plaintiff was injured at the time and place claimed by her, yet if you further find from the evidence that the bank of clay £ep up0I1 per had, before the accident been frozen and thereby rendered the north side of Forty-ninth Street, between Prospect and Wabash avenues, reasonably safe for travel, and that said bank was thawed' loose at the time of such accident by the building of a fire, the evening of the accident, and that it thereupon fell on plaintiff, you are instructed that a sufficient time had not elapsed before the accident to impart to the city notice of such condition of the bank, and that plaintiff cannot recover, and your verdict must be for the defendant, Kansas City.”
However, since the court gave sua sponte the below instruction, in all material substance similar to that which was refused, no error enures from the failure of the court to give the above instruction. For the instruction given by the court on this theory of defense reads thus:
“The court instructs the jury that if they believe from the evidence that on and before December 15, 1914, the embankment in question was reasonably safe for persons to pass on and along the north side of Forty-ninth Street, and if you find from the evidence that on said date a fire was maintained adjacent to the part of the embankment which fell, and that (sic), the direct result of such fire, if any, said bank was caused to fall, then the defendant city had no notice thereof and you must find for defendant Kansas City.”
*457While there is a patent hut harmless clerical error in the above instruction, the meaning of it is plain. It is also plain that it presents to the jury the identical defense presented by the instruction refused. We disallow this contention.
VII. Defendant asked and the trial court refused the below instruction, to-wit:
Ordinary Care. “The court instructs the jury that although you may find from the evidence that plaintiff was injured at the time and place claimed by her, yet if you find from the evidence that plaintiff, by standing the embankment which fell upon her while the bank was subjected to the- heat of a fire built near it, and that said fire caused said bank to fall, did not exercise ordinary care under the circumstances and that such lack of care directly contributed to her injury, then plaintiff cannot recover, and your verdict must be for defendant, Kansas City.”
We think this was error. There were both plea and proof upon defendant’s part of contributory negligence. Plaintiff was sui juris; and while she says that she could not see the clay wall, except by the light of the bonfire, which illuminated only some four or five feet of it, and thus as we have ruled made a case to go to the jury, there was countervailing testimony adduced on defendant’s part which tended to prove that this fire was' of such size and character thát it so lighted up this clay bank as to make its menace apparent.
Ambiguous Instruction. VIII. It is also urged that instruction C2, which was the chief and (except for a mere formal instruction withdrawing certain evidence from the jury) the only instruction asked by plaintiff, is erroneous; for that it assumes as true one of the vital, contested issues of the case. That is to say, that it tells the jury that the clay wall in question was reasonably certain to fall. It is a close and difficult question whether the language and gram*458matical construction' of this instruction makes it susceptible or not to the criticism urged. The law is well settled in favor of defendant’s abstract contention. [Crow v. Houck’s Ry., 212 Mo. 589; Coffey v. Carthage, 186 Mo. 573; Miller v. Busey, 186 S. W. 983; Ganey v. Kansas City, 259 Mo. 654.] It is only the language of the instruction, therefore, which makes the point doubtful. The instruction is, to say the least of it, ambiguous. Since the case must be reversed upon other grounds, we need not say more upon the question, for doubtless learned counsel for plaintiff will be advised upon another trial to so recast this instruction as wholly to obviate the criticism urged.
IX. We are also of the opinion that the verdict is excessive. This condition can also be corrected upon a new trial, in the even that the triers of fact do not see fit to do so of their own initiative. For the errors pointed out, let the case be reversed and remanded for a new trial not inconsistent with what we have herein ruled.
All concur, Williams, P. J., in result and in all except paragraphs one and nine.