Laughlin v. Railway. grossly excessive verdict; and (4) the admission of improper evidence. Direction of Verdict. I. It has become axiomatic in our procedure that we will not interfere with the action of a trial court in refusing to direct a verdict where there is any substantial evidence to sustain the same. [Twentieth Cent. Mach. Co. v. Excelsior Co., 200 S. W. 1079; Dunn v. Railroad, 192 Mo. App. 260.] The probative force of such evidence is not to be tested by that adduced by plaintiff alone, although every reasonable inference arising therefrom is to be taken as true; but it may also be aided by any of defendant's evidence that helps to make out plaintiff's case. [Hall v. Mfg. C. & C. Co., 260 Mo. 1. c. 365; Stauffer v. Railroad, 243 Mo. 1. c. 316.] Plaintiff's testimony was, that as he attempted to swing himself upon the car by grasping the stirrup, his feet or legs struck an obstacle, making a sound as of pieces of iron striking together; that the impact broke his hold on the car and he fell to the ground; that when he recovered from the condition of unconsciousness caused by the fall, he saw a keg of spikes near his feet. These spikes had been pulled from old ties in the track which had been removed and new ties and spikes substituted therefor. A short time before the accident, the track had been repaired at that point. The proof of this betterment, as explanatory of the reason for the presence of the keg and its contents, is aided by the physical fact that old ties that had been used were lying along the track. The inference made by the jury was, that the keg had been left at the point where found, as testified to by plaintiff, and that it had been so left by defendant's trackmen. Having made this inference, they were not required to indulge in speculation to determine if it might not have been placed there by some one other than the defendant. [Myers v. Pittsburg Coal Co., 233 U. S. 1. c. 193, 58 Law. Ed. 911.] Generally, the determination of the proximate cause of an injury, whether it be the original negligence of one party or 275 Mo-30 Laughlin v. Railway. the intermediate negligence of another, is ordinarily one for the jury. Direct evidence to establish this negligence is not required, but it may be sufficiently shown by inferences from the surrounding facts and circumstances. Proof of this nature, however, must do more than raise a conjecture as to the cause of the injury; it must show with reasonable certainty that the cause for which the defendant is sought to be held liable produced the injury. It is only when the evidence with all of the inferences that the jury may reasonably make therefrom, is insufficient to support a finding for the plaintiff, that the court is authorized to direct a verdict for the, defendant. A case should, therefore, be left to the jury under proper instructions, unless the conculsion follows, as a matter of law, that no recovery can be had on any view that may be taken of the facts which the evidence tends to establish. [Hall v. Mfg. C. & C. Co., 260 Mo. 1. c. 365; Wolfgram v. Mod. Wood. Am., 167 Mo. App. 220; James v. Mut. Reserve etc. Assn., 148 Mo. 1; Lac. Nat. Bk. v. Richardson, 156 Mo. 270; Deere Plow Co. v. Sullivan, 158 Mo. 440.] Under these general rules the jury was authorized in making the inference under the facts proved and the circumstances shown that the plaintiff's fall was caused by his striking against the keg, and that the trackmen of the defendant left the keg and its contents at the place where is was found after plaintiff's injury. This accords with reason, and excludes the inference of an impact with another object, or that the keg may have been left, at the point where found, by others than defendant's agents. Numerous reasons support this conclusion: the absence of any other obstruction that could have caused the injury; the evident recent improvement of the track; that the spikes were used only in this character of work; and that the keg and its contents were owned by and in the possession of the defendant. The evidence to sustain the verdict having been found sufficient under the rules stated, the alleged conflict in the testimony, however sharp it may be, cannot be interposed here to affect the verdict. This, for the Laughlin v. Railway. reason that in demurring to the testimony, the defendant admitted the truth of plaintiff's proof not only as to the affirmative facts adduced, but of every inference in their favor that the law will warrant. [Hanser v. Bieber, 271 Mo. 1. c. 335; Meenach v. Crawford, 187 S. W. 1. c. 882; Williams v. Railroad, 257 Mo. 1. c. 112.] We decline, therefore, to interfere with the verdict on the ground that the trial court did not sustain a demurrer to the evidence. II. The giving of instruction numbered IV, at the request of plaintiff, as modified by the trial court, is complained of. It is as follows: "You are instructed that before the plaintiff can be said to have Instructions. been guilty of contributory negligence, contributing directly to his own injury, if any, it must be shown that he knew, or had reasonable opportunity of knowing of the dangerous condition, if any, of the roadbed of which he complains, and appreciated, or under the exercise of ordinary care and prudence, should have appreciated the danger, if any, encountered, in time to have prevented injury, if any, to his person." To this was added by the court, the following: "And you are further instructed that the burden of proving contributory negligence on the part of the plaintiff is upon the defendant." The burden of defendant's complaint is directed against the addition to the instruction. This is urged as error, because it was not supplemented by the following: "unless the jury finds from plaintiff's own evidence and the witnesses introduced by him that he was guilty of contributory negligence." This case was tried under the Federal Employers' Liability Act. The United States Courts have uniformly held in proceedings under this act, that as a matter of general law the burden of proving contributory negli gence is on the defendant even in trials in states where it is held that the burden is on the plaintiff. [Central Vermont Ry. Co. v. White, 238 U. S. 507, 59 Law. Ed. 1433; Seaboard Air Line Ry. Co. v. Moore, 228 U. S. 433, 57 Law Ed. 907.] No testimony was offered by Laughlin v. Railway. defendant at the trial to sustain the contention here made, nor is it intimated in its brief as to the respect in which the plaintiff was guilty of contributory negligence; nor did the defendant ask any instruction or request the modification of the one given to cover the alleged error. Under this state of facts, where, as here, the instruction did not state what the plaintiff did, or knew, or was in a position to know, the failure of the court to give the same as now contended for, is not error. If the defendant desired an amplification or qualification of the instruction in order to present its point of view to the jury, an appropriate request therefor should have been made. If asked, its propriety then would have depended primarily upon whether there was testimony upon which it could be predicated. [Ill. Cent. R. R. Co. v. Skaggs, 240 U. S. 66, 60 Law Ed. 528.] The Court of Appeals of Kentucky has recently considered the question here involved. Its apposite reasoning merits repetition. It is as follows: "But notwithstanding the Federal statute and the right thereunder to plead and rely upon the defense of contributory negligence, we think it is obvious that when there is no evidence tending to show that the plaintiff was guilty of contributory negligence, the jury should not be instructed on this subject, although that defense may be set up in a pleading. It is just as essential that there should be proof of contributory negligence as that there should be an allegation relying on this defense. If contributory negligence is not pleaded, of course an instruction presenting this defense should not be given, and if pleaded, and there is no evidence to support the plea, there should be no instruction." [Chesapeake & Ohio Ry. Co. v. Cooper, 181 S. W. (Ky.) 933.] But, if the instruction as modified by the court be subject to objection standing alone, its alleged omission is cured by the instructions taken as a whole. Those given for the plaintiff about which there is no question, and hence, not set forth herein, instructed the jury fully as to the facts necessary to be proved to enable plaintiff's damages to be determined, taking into consider Laughlin v. Railway. In ation the element of contributory negligence. addition, defendant's instructions admonished the jury that before the plaintiff could recover, it was necessary that it be shown that he had exercised the ordinary care and caution of a reasonably prudent man in boarding defendant's train. Defendant's concrete contentions in regard to the vice in instruction numbered IV are, that it did not enable the jury to determine whether the plaintiff intelligently employed the means at hand to ascertain whether his footing was secure, and that there were no pitfalls or obstacles in his way, and whether or not it was negligence on his part to mount a moving train when he could have mounted it while standing still. Let us Let us see if these contentions are well founded. Under the issue made by the pleadings, it devolved upon the plaintiff to prove that his injury was due to the negligent leaving of the keg of spikes upon its right-of-way by the defendant. Absent the keg, there could have been no negligence on the part of, the defendant, and as a consequence, no injury to plaintiff for which damages might be assessed in his favor. The ground of negligence being thus limited, the plaintiff could not be held to have contributed to same, unless, in attempting to mount the train with knowledge of the keg's presence, he struck it and was thereby injured. Only upon this showing could the damages have been mitigated under the Federal Act, on account of plaintiff's contributory negligence. But defendant's plea of special contributory negligence on the part of the plaintiff was to the effect that, if the latter was injured at the time and place alleged, it was the result of his own negligence in attempting to climb on a moving train without properly using the stirrup. If this If this had been satisfactorily shown, it would have constituted a failure of such proof as is necessary to authorize a recovery, due to plaintiff's sole and not contributory negligence. There is, therefore, nothing in defendant's answer authorizing the modification of the instruction as now contended for. The duty of the jury upon a failure of proof due to |