Appellant brought this action for damages for injuries he alleges he sustained while riding as a passenger on a street car operated by employees of respondent. The jury found against him, judgment was rendered accordingly, and this appeal followed.
The allegations of the petition respecting negligence are:
"Plaintiff states that upon taking his seat on the right hand side of said car, adjoining an outside window, which window was open, plaintiff rested his arm upon the window sill and part of said car intended and used for such purposes by passengers seated in a like position on said car and by plaintiff and the cars operated by defendant along and over said line, and that as said car approached a point" (particularly described) "his right elbow was struck by said car against or caught between a truck-stake-wagon, projection thereof or therefrom, while said car was going in a northerly direction, on which plaintiff was a passenger, thereby causing plaintiff's right arm to be severely and permanently injured" in respects set out at length and in particular.
"Plaintiff states that it was the duty of defendant to use the highest degree of care toward the plaintiff whilst plaintiff was a passenger aforesaid on said electric street car; that the injuries thus sustained by the plaintiff were directly caused by the defendant negligently and carelessly permitting the said electric street car on which plaintiff was a passenger, as aforesaid, to come in collision with said truck-stake-wagon, projection thereof or therefrom, as aforesaid, thereby catching plaintiff's elbow, as aforesaid, and injuring him as herein alleged. Plaintiff states that said injuries, collision, striking and *Page 270 catching of plaintiff's elbow, as aforesaid, were occasioned without any fault on the part of the plaintiff, but by reason of the negligence and carelessness, as aforesaid, of the defendant in permitting its said car, as aforesaid, on said line, at said point, to collide with said truck-stake-wagon, projection thereof or therefrom, as to cause the plaintiff's elbow and arm to be struck, caught and injured, as aforesaid, and thereby inflicting and endangering the safety of passengers on its said street car and cars, and more especially the plaintiff on the said car upon which he was a passenger; that said electric street car so in charge of defendant's agents and employees, [sic] permitted said car to collide, strike and catch plaintiff's elbow against said truck-stake-wagon, projection thereof or therefrom, with great force and violence. . . ."
The answer consisted of a general denial and the following:
"For further answer and defense defendant says that whatever injuries plaintiff may have sustained, if any, were caused by his own carelessness and negligence in allowing his arm to protrude from the window and to project from the side of a moving street car."
The reply was a general denial.
The truck referred to was owned by the Kroger Grocery Company and had been in use hauling bread. Just before the accident, which occurred at about 6:30 a.m. on a July day, the truck had been parked with the rear right wheel against or very near the curb, and the right front wheel a few inches out from the curb. The difference between the treads of the front and rear wheels was such that, parked as stated, the truck stood next the curb and parallel with it. The driver and his helper testified for respondent that two cars passed after they parked the truck and there was a clearance of four inches. The motorman of the car on which appellant was riding testified to a like clearance. There was no evidence of any marks or scratches on car or truck, and *Page 271 appellant does not claim to have heard or seen any contact between the truck and the car before his arm was injured. He was sitting next the window, fourth from the front of the car. The truck was a large one. The bed was four and one-half or five feet high. Along its sides upright stakes were counter sunk in the side of the bed so that they did not project. Inside these stakes boards were fastened firmly to them. These did not project beyond the stakes at the rear, according to respondent's evidence, though appellant's testimony seems to imply that they did so.
Appellant testified that he got on the car and seated himself on the right hand side at the fourth window from the front of the car. The window was open. He says: "I rested my arm right on the sill like this (illustrating on rail of witness stand); that is the natural place, and place you usually rest your arm on those cars when people rest their arms in those cars. I put it right down on the sill there and up against the upright."
"Q. Just a moment. Sit right over with that chair; just stand up and stand (witness illustrates) — you had your arm up against an upright you say; was there an upright there? A. In back of it.
"Q. This seat that you occupied had an upright just to the right of your arm and back even with the back, has it? A. Yes, sir; with the back.
"Q. And it occupies one window in the car? A. One window."
Describing the accident itself he says as "we came along . . . the car that I was on struck an automobile truck, it catched my arm, it catched it right here first" (then describes injury). "This car was coming about two or three miles an hour." He says that after he was struck he "happened to look out and saw it was an automobile truck; . . . it was standing there and the back end of it extended out towards the track in a catacornered way; a man stationed on the front of the car ought to see two or three blocks any way; everything that was in the street;" "As I sat there, my hand *Page 272 was right this way (illustrating) on the sill. I was sitting straight up in the car, had my arm against that upright. That comes along and is all out to the outside of the car, attached to that upright that runs horizontally down there, the bars run parallel with the car. The bar is about three or four inches from the sill.
"Q. Would your arm in sitting there — could it go out any further than this rod? A. No, sir; not the way I was sitting.
"Counsel for respondent objected to this as calling for a conclusion and invading the province of the jury. Sustained. Appellant's counsel excepted." The witness then bared his arm and showed the jury (indicating) just the point at which it was caught and (indicating) the exact point of the fracture of the bone. On cross-examination he was furnished a photograph of the car. He was asked:
"Q. And what portion of the truck struck you? A. Well, it extended out from the — towards the car track, and after it hit my arm I looked out and I saw those strips along the side. I don't know whether it was one or two, but my arm laying this way and they come in right over this way, tore the arm open here and jammed me up against the upright.
"Q. Now, this upright is right here, is it not, Mr. Leister? A. Yes, sir.
"Q. That is what you had the back of your elbow against, that upright? A. Yes, sir.
"Q. And your arm was lying inside, you say, of this iron rod? A. Yes, sir.
"Q. And your claim is that something from that truck reached inside and caught your arm? A. The car ran into it and that came right in the car.
"Q. The front end of the car didn't run into the truck? A. From what I seen. I don't know what it done at the back. . . .
"Q. Until you were struck there was no contact with the car, was there? A. No, sir — I don't know whether there was or not. *Page 273
"Q. You didn't see any part of the car in contact with the truck before you were struck? A. No, sir; I didn't see the truck.
"Q. That part came in there, did it strike this upright against which your elbow was resting? A. It seemed like it came in there, hurt my arm and broke it and slid out.
"Q. And went out of the car again? A. Yes, sir.
"Q. This part of the truck, then, you say that struck you, as the car was passing, this horizontal rod along the truck came into the window? A. Yes, sir.
"Q. Struck your arm and then went back out of the window again? A. It must have been that way.
"Q. Before it got back to this upright behind your arm? A. Yes, sir."
He said again that he didn't see the truck until after he was struck; that he was "looking out the window on the sidewalk, sitting up straight, and had my face toward the pavement, . . . the side the truck was on." "The rear end of the truck came in contact with my arm. Upright stake truck and these strips that runs along the side. Just the strips then came in through the windows came in contact with my arm. Those strips located on the stakes of the truck are on the side, they reach to the back end. I think they are flush with the upright part of the back end. Those strips on the west side of that truck would be flush with the western-most edge of that rear upright post. These strips were wood . . . and are fastened to the side of the stakes.
"Q. A strip on each side? A. Yes, sir, and three strips on the side. It seems one or two came in this window.
"Q. And you state that your arm was clear inside these rods? A. Yes, sir.
"Q. And resting on the window sill? A. On the window sill. And that strip came inside, caught my arm there, pushed it back against this jamb and then went outside the car. Those iron bars that run along *Page 274 the body of the street car, the first one of those is about four inches apart and there are three of them to a side, three of them above the door jamb. The first one about four inches from the window sill, the next one about four inches above that, the next one about four inches more.
"Q. And so the side of the car would be coming along here? A. Yes, sir, they are parallel with the car.
"Q. And how was your arm resting on that window sill? A. Right that way.
"Q. And it was along here your arm was caught, was it? A. Catched me here and tore this open and catched me there.
"Q. Have you ever ridden on a car with your arm extended out? A. Sir? Q. Have you ever ridden on a car with your arm extended out beyond those bars? A. No, sir.
"I judge the car was going about two or three miles an hour as it was passing that truck coming to Park Avenue where they turn. As to whether I heard any noise of any collision of the car and truck only when it struck did I hear a little noise, only when it struck my arm. I didn't hear the car scrape the truck or the truck scrape the car. It may have been heard inside, but I couldn't hear it on the outside. The windows were open. As soon as I hollered the car was stopped. I do not know how long that truck had been there."
Appellant requested but one instruction on the question of respondent's negligence. This was given. After dealing with the relation between appellant and respondent at the time of the accident, it continued:
"And if you believe from the evidence that the street car on which plaintiff was a passenger (if you believe he was a passenger thereon) collided with the truck-stake-wagon, projection thereof or therefrom, the presumption is that it was occasioned by some negligence of the defendant, and the burden of proof is cast upon the defendant to rebut this presumption of negligence *Page 275 and establish the fact that there was no negligence on its part, and that the injury, if any, was occasioned by inevitable accident, or by some cause which such highest degree of care could not have avoided."
Appellant assigns as error the giving of certain instructions and the trial court's refusal to grant a new trial on the ground of newly discovered evidence.
I. There was no error in refusing a new trial on the ground of newly discovered evidence. The evidence set up in the motion and affidavits consists of measurements of the truck in question which, it is asserted, would show that if the truck was parked against the curb, as Koste testified, it would have left a space of seven and one-half inches between it and the car upon which appellant was riding. This case was partly tried once before. No investigation of the dimensions of the truck seems to have been made prior to that proceeding. Subsequently, "a month or so before the trial of this case," as his affidavit reads, appellant's counsel called upon the superintendent and manager of the Kroger Grocery Baking Company to inquire who was in charge of the truck when the accident occurred. No report of an accident had been made to the Kroger Company, and the superintendent did not have the information desired. Counsel made no further investigation, but left his card and telephone number with the superintendent, who said he would investigate further and report such discovery as he might make. Nothing was reported and the case went to trial "a month or so" later without objection by appellant. It is clear no diligence was shown. In addition, the defendant's evidence clearly shows the truck stood so that a passing car left a space of but four inches. Koste testified to this and it is Koste whom appellant says he desires to impeach by the evidence. Neither is newly discovered evidence for mere impeachment purposes looked on with favor. If admitted at another trial it would merely raise the question whether testimony that *Page 276 a truck was parked next to or against the curb was substantially correct if the truck was two and one-half or three inches from the curb. The evidence proffered is immaterial, cumulative, designed for impeachment only, and that on an immaterial point, and no diligence appears. Certainly, the trial court's discretion was not arbitrarily exercised.
II. (1) Instruction 3, given at respondent's instance, is assailed on the ground that it precluded a recovery by appellant on the theory that he had placed his arm so that it projected from the car window beyond the plane of the side of the car and that respondent negligently moved the car inInstruction: In such close proximity to the truck thatHarmony With appellant's arm struck it and was injured.Plaintiff's Theory. It is the law of this State that it is not in every instance that one who permits his arm to project somewhat from a street car window and is injured by its contact with something beside the car, is guilty of such contributory negligence as to bar recovery as a matter of law. [Gage v. Transit Co., 211 Mo. l.c. 152, 153; Smith v. Transit Co., 120 Mo. App. l.c. 333, 334, and cases cited; Francis v. N.Y. Steam Co., 114 N.Y. 380; Covington Ry. v. McCleave, 18 Ky. L. Rep. 1036; Chi. City Ry. Co. v. Rood, 62 Ill. App. 550; Barton v. Railroad, 52 Mo. l.c. 254 et seq.] The difficulty with appellant's case is that (1) he pleads a collision; (2) he testifies to a collision, and (3) the only instruction he asks on the merits takes the case to the jury on that theory. He testified that his arm did not protrude from the window and that in the manner in which he was sitting and resting his arm, it not only did not but could not project beyond the bars or rods which guarded the window; that, in fact, he never had ridden in a car with his arm so projecting. The record discloses that he demonstrated to the trial court and jury the position he was in. How far his "illustrations" of his position strengthened what he said as to the position of his arm, *Page 277 the trial court and jury could see and this court cannot. By his course at the trial he definitely excluded from his case, before instructions were asked, the theory he now invokes. The instruction merely confines the appellant's case to the appellant's theory. His own testimony excluded from his case every other theory. The same thing is true of Instruction 4.
(2) Instruction 6 told the jury that respondent was not liable if appellant's injury was the result of accident as contradistinguished from negligence. "Accident" was defined. No objection is made to the form of the instruction. The complaint is that there was no evidence authorizing the givingAccident. of such an instruction. Even though it be conceded there was no such evidence, yet appellant's instruction numbered one first brought this accident issue into the case, and he cannot complain of invited error.
(3) Instruction 5, framed by the court, reads as follows:
"The court instructs the jury that, if you believe the statements of any person testifying in this case are contrary to the physical facts shown to exist by evidence, you should disregard his statements for that reason."
It is argued that this instruction directed the jury, if it found a witness had made any statement, material or immaterial, in conflict with physical facts, to disregard all the testimony of such witness — and that this constituted error. While a jury may reject the whole testimony of a witness who hasInstruction: wilfully sworn falsely as to any material fact, itTo Disregard is not required to do so. The instruction is in aTestimony. form which might be understood as appellant argues, and would thereby become misleading in ordinary cases. In this case the record discloses a situation with respect to the instruction in question which is not ordinary. Appellant offered no testimony on the merits except his own. He does not complain of the effect of the instruction upon the testimony of respondent's *Page 278 witnesses. Though it be construed as appellant construes it, yet the instruction does not permit the jury to disregard any statement of appellant unless it first finds that "the statements" of appellant "are contrary to the physical facts shown to exist by evidence." The jury is thereby required first to find from the evidence physical facts which disprove "statements" of appellant before it is permitted to "disregard his statements for that reason." The statement of the case shows there is no evidence of any physical fact or facts which conflicts or tends to disprove appellant's testimony or statements, except evidence of those facts which, if found to exist, absolutely negative his testimony that a collision occurred and that he was hurt in the manner he alleged in his petition and to which he testified as a witness. Under the instruction the jury was not authorized to find any other conflicting physical facts, because there was no evidence of any others. If they found those which negatived appellant's testimony as to the manner in which he was hurt, that finding ended the case and it became immaterial what view the jury might take of the remainder of his testimony. It is suggested the jury might have rejected appellant's testimony respecting the manner of injury and then might have found for him on a theory referred to in paragraph II. Besides what has been said in the paragraph, it may be added that the rejection of appellant's testimony on the merits would have been essential to a recovery on the other theory and that this instruction would aid, rather than hinder, in effecting that rejection. Appellant's testimony in no wise or particular tended to support such a theory. The record makes it clear that the giving of the instruction in question worked no prejudice to appellant in this case. This disposes of the errors assigned.
The judgment is affirmed. All concur. *Page 279