recognized rule as to the measure of proof in civil suits. Its language is that "courts and juries should rather weigh than count the testimony of witnesses, and a decree or verdict should never be found by them on a mere preponderance which fails to produce a proper conviction or satisfaction in their minds." That was a chancery case, and the duty rested on the court, not on a jury, to weigh the testimony. We find no error in the record. Affirmed.

Injury to Invalid Person-Aggravation of Disease. See East Line, etc., R. Co. v. Rushing, etc., R. Co., ante, Owens v. Kansas City, etc., R. Co., 33 Am. & Eng. R. R. Cas. 524, note, 530; Louisville, etc., R. Co. v. Falvey, 23 Ib. 522, note 536.

HURT

V.

ST. LOUIS, IRON MOUNTAIN AND SOUTHERN R. Co.

(Missouri Supreme Court, February 20, 1888.)

Passenger Personal Injuries-Damages-Opinion-Evidence. In an action by a parent to recover damages for injuries which have disabled his minor child, the plaintiff cannot state his opinion of the amount he is damaged by reason of the injuries, taking into consideration the loss of his child's work until he is twenty-one, and the trouble and expense he had been at in caring for the child, end would be at in the future.

Same-Setting Down Passenger-Duty of Company. The conductor of a train, acting as the agent of the company, in order to comply with the obligation of the carrier to a passenger, is only charged with the duty of carrying him safely to his destination, announcing the arrival of the train at the station, and giving him a reasonable opportunity to leave the cars; and it is error to instruct the jury in an action for personal injuries that the company is bound to exercise the strictest vigilance in carrying passengers to their destination, and in setting them down safely thereat.

Same-Negligence Comparative. The doctrine of "comparative negligence" has never been recognized in Missouri.

Same--Minor Child-Excessive Damages. A verdict of $4500 in favor of a parent as damages for loss sustained through the disabling of a child of ten years of age is excessive and will be set aside when it appears that the child's services before he came of age would not have been worth more than $1100 at the most.

APPEAL from Circuit Court, Madison County.

Action by Samuel Hurt against the St. Louis, Iron Mountain & Southern R. Co. to recover damages for injuries to his

son, J. Henry Hurt. The defendant appeals from a judgment for the plaintiff. The case is stated in the opinion.

Bennett Pike, Wm. Carter, and H. G. Herbel for appellant. J. E. F. Edwards, Moses Whybark, Mr. Emerson, and Cahoon & Cahoon for respondent.

Facts.

SHERWOOD, C.J.--Action by plaintiff for injuries received by his minor son, a boy about five years old, who was shaken from the front platform of a caboose, and run over by a car of the defendant, in consequence of the caboose being struck by the train from which it was detached, backing suddenly. The result of the accident was that one of the boy's legs had to be amputated just below the knee, as well as the toes of the other foot. The plaintiff, his wife, and four children, aged, respectively, one, five, seven, and ten years, took passage in the caboose of the defendant from Knob Lick to Fredericktown, their point of destination. When that point was reached, the conductor announced the station, the cars stopped, and other passengers got out, and while the plaintiff was on the front platform, and in the act of getting off with his wife and children, the collision occurred, with the consequences above stated. It seems that this col lision or jar of the cars took place as the result of the train-. men making what is called a "running switch," and this was made after a signal had been given to "back up." As is usual in such cases, there was great conflict in the testimony; that of the plaintiff showing that not sufficient time was given after the train stopped to permit himself and family to alight, and that their employees were guilty of carelessness in backing the train; that of the defendant showing the exercise of care, and the giving of ample time for alighting; the different witnesses on either side fixing at from one half minute to some four or five minutes; that the caboose remained at a stand-still. The result of the trial was a verdict for the plaintiff for $4500.

As the evidence was conflicting, the only points for discussion will be in reference to the admissibility of the testimony, the instructions, and the amount of the verdict. Of these in their order. While the plaintiff was testifying, his counsel drew his attention to the amount of his damage in the following way: "Now, then, having stated his incapacity for work, tell the jury, as near as you can, what, considering first the loss of his work until his twenty-first year of age, and the trouble and expense you have been at in caring for the child, and in the caring for him in the future, the amount you are damaged by reason of the injuries. State, if you can, how much you think you are damaged." Objection was made by

the defendant's counsel to the witness making such statement, as requested, upon the ground that such estimate of the witness would be merely speculative, and not the proper measure of damages; but the objection was overruled, and the witness answered: "Well, from the loss of the child's work, and what I have lost myself, I claim damages, $5000."

Opinion of witness, not

amount of damages not admissible.

1. The objection was well taken, and should have prevailed. A witness not testifying as an expert, testifying merely as to matters with which the jury may well be supposed to be as conversant as himself, and as capable of expert, as to drawing a correct conclusion, is not allowed to give an opinion. I Phil. Ev. 781 (Cow. & H. Notes); Ramadge v. Ryan, 9 Bing. 335. The books are full of illustrations of this doctrine. Blair v. Railroad, 20 Wis. 262, is a case directly in point. A member of a mercantile firm had been injured by the negligence of a railroad company; the injury causing his enforced absence from the firm. It was ruled that his partner, testifying as a witness, could not be allowed to state his opinion as to the amount of damage the firm had sustained by reason of that absence. To the same point is Lincoln v. Railroad, 23 Wend. 424. Wherever the testimony sought to be elicited amounts to but matters of opinion as to the future, not of a present fact, it is inadmissible. Burt v. Wigglesworth, 117 Mass. 302. Here, the testimony drawn out of the witness as to the amount of his damage was merely speculative in its character, and the response that he made to his counsel was but a substitution of the judgment of the witness for the judgment of the jury, and virtually put him in their place. If the opinion sought is based on no evidence, it should be rejected; and, if properly founded upon evidence, that evidence ought to be laid before the jury; the law presuming that they are equally as capable to draw therefrom the correct inferences. Best, Ev. (Chamberlayne), 497. A result similar to the one here announced, as to an opinion of a nonexpert witness respecting damages, has been reached in Belch v. Railroad, 18 Mo. App. 80.

InstructionsSetting down passengers

2. Now as to the instructions. The second one for the plaintiff was in this language: "No. 2. The court instructs the jury that defendant, as a railroad company, is responsible to passengers for the careDuty of com- less or negligent acts of its agents and servants employed by it, running or managing its trains, when such wrongful, careless, or negligent acts result in injury to such passengers, and are committed in connection with the business intrusted to them, and springing from or growing immediately out of such business; and that defend

pany.

ant, as such railroad company, is bound to exercise the strictest vigilance in carrying passengers to their destinations, and in setting them down safely thereat, and are responsible for want of care and foresight in doing it, and are amenable to the direct and immediate consequences of errors committed by it in so doing. If, therefore, the jury believe from the evidence in the cause that the caboose in which defendant transported plaintiff and his family, at the time referred to by the witnesses in this cause, was not allowed to remain standing still such reasonable and sufficient length of time as to enable plaintiff, by the exercise of reasonable diligence, to safely remove himself, his wife, and minor children, with such baggage as they had with them, from said car, but while plaintiff was using reasonable diligence to so remove his said family and baggage from said caboose, it was, by defendant, suddenly and violently, and without notice to the plaintiff, struck by the other parts of the train to which it belonged, and by reason of the shock so produced John Henry Hurt, the minor son of plaintiff, was precipitated from the platform of said caboose, under said train, and injured as described in the petition, then said facts constitute negligence on the part of the defendant, and the jury should find the issue in this cause for the plaintiff, and assess his damages at a sum not to exceed five thousand dollars."

This instruction was erroneous in the particular that it asserts that "such railroad company is bound to exercise the strictest vigilance in carrying passengers to their destination, and in setting them down safely thereat. This, in its latter portion, states the law too strongly in favor of the plaintiff. All the duty the law imposes upon a conductor, acting as the agent of a corporation, in order to comply with the obligation of the carrier to a passenger, is to carry him safely to his point of destination, announce the arrival of the train at the station, and give him a reasonable opportunity to leave the cars. When this is done the duty of the conductor ceases. Sevier v. Railroad, 18 Am. & Eng. R. R. Cas. 245; Straus v. Railroad, 75 Mo. 185; s. c., 6 Am. & Eng. R. R. Cas. 384. And when the servants of a corporation, engaged in the business of a common carrier, afford passengers a reasonable time to leave the cars after arrival at the end of their journey, they have the right at the expiration of such reasonable period to presume that all the passengers whose place of destination is then reached have done what is customary for passengers in like circumstances to do, to wit, have left the cars. When such a reasonable time has thus elapsed, it is no part of the duty of the servants of such corporation to make personal inspection of, or to interrogate the remaining passengers, to

see whether they intend leaving the cars. The law imposes no such onerous duty upon a carrier of passengers. And if it should appear in evidence, in any given case, that passengers similarly situated as to age, sex, etc., have safely left the cars, prior to any injury or accident complained of, this would afford ground for legitimate inference by the jury that sufficient time had been granted to the passenger who sues for a negligent injury to have alighted in safety. It is true that in Kelly v. Railroad, 70 Mo. 604 (loc. cit. 609), where, speaking of the duties of a common carrier towards passengers, it is said "that persons to whom the management of a railroad is intrusted are bound to exercise the strictest vigilance in carrying passengers to their respective destinations, and in setting them down safely;" but an examination of that case as a whole will clearly show that the words I have italicized were not intended to be taken in a literal sense; for there the cars did not stop at all, but only, in railroad parlance, "slowed up," and Kelly, in attempting to alight, was killed. General expressions in an opinion are always limited and controlled by the particular facts of the given case; and it is a very unsafe method for a practitioner to select such general words and incorporate them into an instruction as a guide to a jury, and as announcing a practical principle of faw. The error now being commented on was committed in a more palpable form in the eighth instruction for plaintiff, which told the jury that the defendant, in "so carrying such minor son of plaintiff thereon, is to be held to the same degree of diligence in carrying to and safely landing plaintiff's said minor child at his destination, as though," etc. Taking these two instructions, the jury may well have thought it the duty of the company to have taken the child bodily and placed it safely on the ground. Such instructions as these would make common carriers the guardians of their passengers. Considerable criticism has been indulged in by counsel for defendant relative to that portion of the second instruction which says that the train should have been allowed "to remain standing still such reasonable and sufficient length of time as to enable plaintiff, by the exercise of reasonable diligence, to safely remove himself, his wife, and minor children, with such baggage as they had with them, from said car.' This objection is not well taken; nor this criticism well founded. When a man becomes a passenger on a railroad car, with his wife and little ones, he is their guardian and protector; he has the supervision of their safety; and the family group, so far as the act of debarkation from the cars is concerned, is to be regarded to all intents and purposes as a unit and indivisible integer; and the same rule which ac