(3) by producing the record of his conviction, present ever since, then, as a matter of pracof some infamous crime; (4) by adducing gen- tical opinion on your part, would you say it was eral evidence tending to show that he is un- due to the injury? A. I would say I had missed worthy of belief on his oath. Evidence im- my diagnosis." peaches a witness when it assails his general credibility or otherwise weakens the force of his testimony and detracts from the weight to be given it, without having of itself probative value as original evidence upon the matter at issue." 40 Cyc. 2563, 2564.

Plaintiff's counsel appeared to be very careful not to ask the doctor, on direct examination, whether from his personal examination of plaintiff he found that his condition was due to the injury of July 7, 1922, but in approaching the subject he would ask hypothetical questions based wholly or in part upon the testimony of plaintiff, tending to show that he had recovered from the bobsled accident of 20 years before, and that the condition of his knee was good immediately before his injury of July 7th. Of course, naturally, on cross-examination, defendant would attempt to bring out the true situation, and in its effort to do so the court, as we have already shown, erred in restricting the cross-examination too narrowly, in sustaining objections to questions propounded in regard to the cause of plaintiff's condition. There is an entire absence in the record of any testimony tending to show that the physician had ever stated to plaintiff or his attorney, prior to the trial, anything different from that he testified to. There was no unfriendliness to plaintiff exhibited by the physician in his direct examination, or at any other time, unless it be the fact that the doctor's testimony was not favorable to plaintiff, and, of course, it is not contended that a party may cross-examine his own witness be"Do you think that this man's injury is per- cause his testimony proved to be unfavor

See, also, 28 R. C. L. pp. 614, 615.

[9] There is nothing in the record to show what was the conversation between Mr. Welch and Dr. Dorsey, but we may assume from the testimony that it was concerning plaintiff's injuries. While it was improper for the doctor to have talked about plaintiff's injury to defendant's attorney, this circumstance by itself was insufficient to afford ground for plaintiff to impeach his own witness. Feary v. O'Neill, 149 Mo. 467, 50 S. W. 913, 73 Am. St. Rep. 440.

[10, 11] It is insisted that Dr. Dorsey unexpectedly proved to be a hostile witness, and plaintiff was entrapped and surprised by his testimony, and had the legal right to cross-examine him. The record is absolute ly devoid of anything of this nature. In this connection it is stated, "When defendant began to examine Dr. Dorsey a subtle change appeared in the manner of the doctor and in his testimony." Plaintiff points out that on the doctor's direct examination he was asked and answered the following:

manent or not? A. I believe that this man has a partial permanent injury."

Plaintiff insists that the plain implication of this answer was that the injury in question—that is, the injury of July 7, 1922was permanent, that when defendant took hold of the doctor on cross-examination the doctor gave testimony tending to show that whatever permanent injury plaintiff had at the time of the trial was caused by something occurring prior to July 7, 1922, and that he had completely recovered from any injuries he had received on that day. When all of the doctor's testimony on direct examination is taken together, it shows that it is not to be implied that he meant that the injury of July 7, 1922, was permanent when he answered the question that we have quoted. On direct examination he testified that the X-ray picture indicated that plaintiff was suffering from a chronic condition in the joint prior to his recent injury, and he diagnosed this condition as acute traumatic synovitis, and that the recent injury was a sprain imposed upon the old chronic injury, "with abrasions or bruises on thigh or leg." He was also asked the following question, and gave the following answer, on direct examination:

"Q. Assuming that it (a thickening. membranous condition of lining of the knee) was ab

able, in the absence of surprise or entrapment. Dauber v. Josephson, 209 Mo. App. 531, 539, 540, 237 S. W. 149. Plaintiff was not attempting to refresh the doctor's memory by his cross-examination, because, as we have just stated, there is no evidence that the doctor had previously stated anything contrary to what he testified at the trial. There was no claim at the trial that either the doctor or defendant's counsel had been guilty of any trick, device, or artifice leading plaintiff to put the witness on the stand.

Plaintiff admits that before putting the doctor on the stand he knew that the doctor represented employers' liability insurance companies and was employed by the Casualty Reciprocal Exchange. It would seem that the surprise with which plaintiff was confronted by the doctor's testimony was merely that he had talked to defendant's attorney before the trial. While this conduct of the doctor was improper, and was a matter in connection with which, if plaintiff had shown that he had been entrapped or surprised by some testimony of the doctor, he undoubtedly would have had the right to have cross-examined the witness in reference to the subject, yet a party cannot put a witness upon the stand, and ask him questions showing that he had been guilty of some im

(273 S.W.)

aid to conductor in expelling trespasser, acted within scope of his authority in attempting to expel trespasser.

Brakeman, acting as aid to conductor in expelling trespassers, acted within scope of his authority in attempting to expel plaintiff trespasser, even though he did not report plaintiff's presence to the conductor.

6. Railroads 282(5)—Evidence held to show brakeman, in expelling trespasser from train, performed duty within scope of employment.

entrapment, for this would violate the well [ 5. Railroads 281 (3)-Brakeman, acting as known rule that a party may not impeach his own witness, whom he vouches for when he places him upon the witness stand. Bank v. Harrington (Mo. Sup.) 199 S. W. 242. So we think, taking the cross-examination of the doctor at the trial, combined with the argument to the jury, that the court committed error against defendant. While we realize a certain amount of discretion is vested in the trial court in ruling upon matters of this kind, it seems to us that the court permitted counsel to go too far. A point is made that the objection to the testimony and to the argument was not sufficiently specific; some of the objections seem to be specific enough but the definiteness of other objections is questionable. However, we think there were enough specific objections to save the point, and, as the case may be retried, it is not necessary to discuss that question as the matter may again come up and should be settled now. There is no merit in another incident complained of in connection with the argument to the jury.

The judgment is reversed, and the cause remanded.

ARNOLD, J., concurs.
TRIMBLE, P. J., absent.

GRAHAM v. ST. LOUIS & S. F. RY. CO.
(No. 19011.)

(St. Louis Court of Appeals. Missouri. June
2, 1925. Rehearing Denied June 24, 1925.)
1. Trial 140(2)-Contradiction in testimony
of plaintiff and his witness was for jury.
Contradiction in testimony of plaintiff and
his witness was for jury.

2. Railroads 276(1)-Carrier owed tres-
passer duty only to refrain from willfully or
recklessly injuring him after discovering his
presence.

To one who stole a ride on freight train, carrier and its employés owed the duty only to refrain from willfully or recklessly injuring him after discovering his presence.

3. Railroads 282 (5)-Evidence held to show brakeman acted within scope of employment in expelling trespasser from train.

Evidence held to show that defendant's brakeman acted within scope of his employment in expelling trespasser from freight train.

4. Evidence 67(1)-Authority of employé, once shown to exist, is presumed to continue until contrary is shown.

Authority of employé, once shown to exist, is presumed to continue until contrary is shown.

Evidence held to show defendant's brakeman, in expelling trespasser from freight train, performed duty within scope of his employ

ment.

7. Railroads 282(5)—Evidence held to show brakeman ordered trespasser on train to get off and then struck him.

Evidence held to show that defendant's brakeman ordered trespasser on freight train to get off and then, after a few remarks had passed, struck him with a club, thereby causing trespasser to fall on track.

8. Railroads 282(15)-Instruction held not misleading as not requiring finding act of brakeman was in scope of employment.

An instruction which authorized jury to find for plaintiff trespasser on freight train, if they found that he was struck and knocked from freight train by defendant's brakeman while the latter was about the work he was employed to do and while he was undertaking to serve defendant, held not misleading, as not requiring jury to find that the act of such brakeman was within the scope of his employment and in the line of duty under such employment, since words used in instruction required such finding.

9. Railroads 282 (5)—Evidence held to create inference brakeman had instructions to remove trespassers from train.

Evidence held to create inference brakeman had instructions to tell trespassers to get off and to put them off train.

10. Railroads 282(15) - Instruction using word "instructions" instead of "authority" held not misleading.

An instruction which used the word "instructions" instead of "authority," on the question whether a brakeman exceeded his authority in ejecting a trespasser on a freight train. held not misleading, since, under the circumstances, instructions may reasonably be interpreted as meaning authority.

[Ed. Note.-For other definitions. see Words and Phrases, First and Second Series, Authority-Authorize; Instruction.]

11. Railroads 282 (6)-Carrier liable in punitive damages for act of brakeman in striking trespasser.

If defendant's brakeman struck plaintiff trespasser on moving freight train, and thereby caused him to fall on track, where he sustained injury, and at the time acted within the scope of his authority, defendant was liable in punitive damages for the act of its brakeman,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Instruction, if erroneous in failing to require finding manner of brakeman's ejection of trespasser was willful, unlawful, wrongful, and malicious, held harmless, in view of clear cut issue raised by evidence.

12. Appeal and error 1064(1)—Instruction, [is; that, after leaving Rolla, the train on if erroneous in failing to require finding as to which he was riding stopped at a siding callcharacter of brakeman's ejection of tres- ed Dillon, some few miles east of Rolla, to passer on freight train, held harmless, in view let several west-bound trains pass; that, of evidence. when the freight train stopped at Dillon, plaintiff and Allison alighted, hiding in the weeds south to the main track; that, after the passing of the west-bound trains, the freight train from which they alighted began to move east, and, as it was moving from the siding to the main track, plaintiff and Allison again boarded it, getting on an Weight of evidence as to whether or not oil tank car from the right-hand side, then defendant's brakeman struck plaintiff trespass-crossing to the north side of the tank car, er on defendant's freight train held for jury and taking positions on the running board thereof, plaintiff at the west and Allison at the end of the car.

13. Appeal and error 1005 (4)-Weight of evidence held for jury and trial court.

and trial court.

14. Railroads 282(6)-$7,500 damages, including $2,500 punitive damages for injuries to trespasser on train held not excessive.

In action by trespasser on defendant's freight train, for loss of fingers and toes, sustained from having fallen between tracks when defendant's brakeman told him to get off and then struck him with a club, verdict of $7,500, of which $2,500 constituted punitive damages, held not excessive or result of passion or prejudice; it appearing plaintiff played musical instruments for a living, and was in hospital for 72 months, undergoing a further operation on his hand and foot.

Plaintiff testified that he had been seated on the tank car about 20 minutes before anything happened to him, and during this time the train was running about 20 miles an hour; that a brakeman then walked up behind him and said, "Get off there," and plaintiff turned around and replied, "Who are you?" the brakeman saying, "I am the Gd brakeman," at the same time hitting him with a club; that this man had a lighted lantern on his arm, and plaintiff looked up and saw some kind of a sign on his hat like "brakeman"; that it was dark at the

Appeal from St. Louis Circuit Court; Wil- time, and he had never seen this man before. son A. Taylor, Judge.

"Not to be officially published."

Action by Orlando Graham against the St. Louis & San Francisco Railway Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

As to whether that man was a brakeman on that train, he would just go by what he said, "I am the Gd brakeman," and he had "brakeman" on his cap; that he did not know whether he had a cap on or not, but saw the word "brakeman." Plaintiff furth

W. F. Evans, E. T. Miller, and A. P. Stew- er testified that he was sitting on the runart, all of St. Louis, for appellant.

ning board of the oil tank, with his feet

Bishop & Claiborne, of St. Louis, for re- hanging over the outer edge of the running spondent.

DAVIS, C. This is an action for damages for personal injuries, caused, as alleged, by plaintiff being knocked, by a brakeman, from a moving freight train operated by defendant. The jury returned a verdict for $5,000 actual, and $2,500 punitive, damages for plaintiff and against defendant, and, from the $7,500 judgment entered thereon, defendant appealed.

The evidence for plaintiff, a negro, tended to show that he was 23 years old, and at the time of his injuries was beating his way and stealing a ride on a freight train operated by defendant; that several days previous to his injuries, he, with others, boarded a freight train by stealth at Springfield, Mo., being ejected therefrom at some town west of Rolla; that he continued to board freight trains and to be ejected therefrom until near Rolla, walking to Rolla from the place last ejected; that on the night of June 21, 1922, at Rolla, plaintiff, with a negro youth named Allison, boarded one of defendant's freight trains, intending to beat his way to St. Lou

board, and that when this man struck him with the club he fell through the opening between the running board and the oil tank to the ground between the rails of the track; that his left hand and foot were run over, and in some way he was thrown out to the north of the track.

[1] There are several contradictions between the testimony of plaintiff and that of his witness Allison. However, we do not consider the contradictions material. What ever question there was in that respect was for the jury. Suffice it to say that Allison stated that the brakeman did not say a word to plaintiff, nor did plaintiff speak to him, before the brakeman hit plaintiff with the club.

Over defendant's objection, the court permitted plaintiff to introduce in evidence a portion of one of defendant's printed rules. To show the context, defendant, without waiving its objection, was obliged to offer in evidence the remainder of that portion of said rule. The portion of the rule offered in evidence by plaintiff appears italicized. The rule is as follows:

(273 S.W.)

"Drunken or disorderly persons, or others whose conduct or appearance is such as is calculated to operate as a serious annoyance to other passengers, or is disgusting, or a passenger who is guilty of gross misconduct, either by insulting or assaulting other passengers or train employés, who uses vile or profane language in the car, or who threatens to assault other passengers or train employés, or who attempts to ride and insists upon riding upon freight trains forbidden by the rules of the company to carry passengers, may lawfully be expelled from the train at any place, provided the place is not such as to cause want or injury; this may be done whether fare has been paid or not. In all cases secure name and address of witnesses."

Witness Ripper testified that he was a railroad switchman, and knows the duties of

a brakeman; that he worked for the defend

ant, ceasing work April 8, 1920; that it is the brakeman's duty to keep a trespasser off a freight train; that, if he found one on a freight train; it was his (brakeman's) duty to take the best and safest precaution in ejecting him from the train, by stopping the train and putting the trespasser off; that it was not his duty to forcibly remove him from the train without stopping it first. On cross-examination he stated the conductor is the official in charge of trains during their operation, and the brakemen work under the conductor.

Witness Glick, for plaintiff, testified that he worked for defendant as special agent from February to September 1, 1920, on the Memphis Division, but had never made any trips over the Rolla Division; that he has seen brakemen put hundreds of tramps stealing rides on freight trains off. Asked if he knew whether or not these rules applied to all Frisco lines, he answered, "I do; sure."

Defendant's evidence tended to show that brakeman Wieter, brakeman Smith, and conductor Campbell were the employés on a freight train that left Rolla about 9:20 p. m. June 21, 1922, coming east to St. Louis. All testified that they did not hit plaintiff with a club.

Brakeman Wieter testified that he saw two negro men between two box cars in the train when it stopped on the siding at Dillon, and told them to get off, which they did, one on the south, and the other on the north side; that he reported this occurrence to conductor Campbell; that on moving east Wieter got on the engine, but jumped off, boarding one of the oil tank cars some distance back from the engine, and riding on that car until the train made its first stop at Cuba, 18 miles east; that after leaving Dillon he did not see any negro men or other trespassers on that train at any time or any place, and did not order any negro men off the train, and did not strike any negro man with a club and knock him off the train on that occasion; that he did not see any one on that train at all after it left Dillon that night.

Defendant's evidence further tends to show that the conductor and brakeman Smith rode in the caboose until the train reached Cuba; that neither had any knowledge of negro men riding on the train after it left Dillon; that neither of them ordered any negro men to get off the train, and neither of them struck a negro man or knocked him from the It was further shown that the contrain. ductor and brakeman on freight trains do not wear badges on their hats or caps with the words "conductor" or "brakeman" thereon, and that defendant's rule J, offered in evidence by plaintiff, to the effect that employés on duty must wear the prescribed badge and uniform, applied only to crews of passenger trains and not to crews of freight trains. It was further shown that plaintiff stated to Dr. Brewer that he was bumming his way on the train, and a brakeman came over the train and struck at him, and he dodged and fell off the train; that Dr. Brewer then said, "Now, colored boy, come and tell me the truth, is it a fact that you went to sleep and fell off?" that plaintiff replied, "I don't know, sir; I was powerful sleepy and I may have dreamed it." This was corroborated by at least one other witness for defendant. It was further shown that just west of the point where plaintiff was found on the right of way by a nearby resident, there was a sag or dip in the track, which caused a great jarring and bumping of the cars in the train due to the running up of the slack as the train ran down into the sag and then up again.

Defendant's witness, brakeman Wieter,

further testified:

"As our train was standing there at Dillon observed two colored boys on the train and I told them to get off. Q. Was that one of your duties there as a brakeman? A. Yes, sir. Q. At that time you were about your duties there, braking on that train? A. Yes, sir. Q. Now, suppose you had not observed the boys at that time, and the train had gotten under way, and you had found them on the train, then what would have been your duty with respect to them there on the train, moving? A. To put them off at the next stop."

On redirect examination, witness testified: "Q. What would you have done with reference to reporting the fact of the men being on the train to the conductor, before you took any action? A. Well, if I would have found them on there I would have told them that they would have to get off at the next stop, and then when we stopped at the next stop I would have went back there to see whether they were off or not."

"The Court: Q. Well, suppose they weren't, then what? A. Then I would have told the conductor there is two men that refuse to get off. I would have left it to the conductor in a case of that kind."

Brakeman Smith, defendant's witness, testified on cross-examination:

"On June 21, 1922, the duties of a brakeman on the Frisco with reference to the handling

Defendant's witness, conductor Campbell, er the brakeman could, within the scope of testified: