GRAVES, J.
Action for personal and property injuries occasioned by a collision between plaintiff's automobile and defendant's railway train in the city of Kirksville, Mo. There were some four grounds of negligence pleaded, including the humanitarian doctrine. After the trial of the case, the alleged negligence, as submitted by plaintiff, was limited to two grounds, i. e. (1) the failure of defendant to give warning of bell or whistle as it approached a public street crossing; and (2) that defendant had always maintained an alarm bell at such crossing, and had so maintained it for some time, to the knowledge of the plaintiff, but that upon this occasion the defendant, although it had ample notice of the defect in such bell, had failed to put and keep the same in repair so that it would signal the approach of a train upon defendant's tracks. These two alleged failures are the ones submitted by the plaintiff, and the only ones relied upon by plaintiff in the instructions. So, it would seem that the humanitarian rule, as well as the excess of ordinance speed (as grounds of negligence), are abandoned, and questions concerning them are not now before us. The instructions for plaintiff are short, and we quote them; this because they must be the foundation for all complaints here. They read:
"The court instructs the jury that, while the law did not require or compel defendant to install and maintain an electric signal at the point where its said railroad crossed or intersected Franklin street, in the city of Kirksville, Adair county, Mo., but if you find and believe from the evidence that defendant did install and maintain an electric crossing alarm or signal at said crossing, and if you further find that said Franklin street was a public highway or street in said city, and if you further find and believe from the evidence that the plaintiff knew and relied upon said signal to warn him of the approach of any train or trains on defendant's said track at said crossing, you are then instructed that it became and was the duty of the defendant to use reasonable care to properly maintain said signal so that said signal would duly warn plaintiff of the approach of any train or trains on defendant's said track at said crossing, and that plaintiff had a right to rely upon no train being in close proximity to said crossing, if said crossing bell was not ringing, unless plaintiff knew said train was approaching, or by the exercise of ordinary care and diligence might have so known.
"You are therefore instructed that if you so find, and if you further find and believe from the evidence that on the morning of October 11, 1922, plaintiff was driving his automobile in a northerly direction on Franklin street in said city and approaching said crossing, and was struck and injured, and his automobile was damaged on said crossing by defendant's train, and if you believe from the evidence that the plaintiff was unable to see the approach of defendant's train on account of obstructions until he was within a few feet of defendant's main track, and if you further find and believe from the evidence that defendant carelessly and negligently failed to cause the bell on said engine to be rung continuously for 80 rods before said engine reached said crossing, and that defendant negligently and carelessly failed to cause the whistle on said engine to be sounded at intervals for a distance of 80 rods before said train reached said crossing, and if you further find and believe from the evidence that the defendant negligently and carelessly permitted said crossing bell or signal to be and remain out of order and repair, and that the same would not operate, and that said crossing signal had been in such condition for a sufficient length of time for defendant, by the exercise of ordinary care on its part, to have discovered that said crossing signal was in such condition, and to have repaired the same prior to said collision (if you find there was a collision), and if you further find that plaintiff knew defendant had installed and had been maintaining said signal, and relied thereon, and that plaintiff had no knowledge that said crossing bell or signal was out of order and would not operate, and if you further find that said crossing bell or signal was not ringing or giving any warning to plaintiff of the approach of defendant's said train, then you should find for the plaintiff, provided you further find that, in so driving upon said crossing, plaintiff was in the exercise of the degree of care required of him as defined in other instructions, and that he was not guilty of negligence directly contributing to his injury as defined in other instructions; and you are further instructed that the burden of proving contributory negligence on the part of the plaintiff rests upon the defendant to prove the same by the greater weight of the credible evidence, and in determining whether or not plaintiff was guilty of contributory negligence, or was in the exercise of due care, as defined in other instructions, you will take into consideration all the facts and circumstances shown by the evidence.
"(2) The court instructs the jury that it was the duty of the defendant, its agents, and servants in charge of and operating its locomotive engine and train, in approaching a public street or crossing to sound the whistle on said locomotive at intervals for 80 rods next before said crossing is reached, or to cause the bell on said locomotive to be rung continuously for 80 rods next before said crossing is reached, and if said locomotive whistle was sounded only at a point about one-quarter of a mile distant from said crossing and the other signals were not given, as above stated, then defendant did not comply with its duty in the premises and was guilty of negligence.
"(3) You are instructed that negligence on the part of plaintiff which will prevent him recovering in this action must be such as directly contributes to his injury and consists of the want of ordinary care. Ordinary care as used in these instructions means that degree of care which may be reasonably expected of an ordinarily prudent person in plaintiff's situation at and just before the time the accident occurred, and in determining whether plaintiff was using such care you should take into consideration all the circumstances surrounding him at the time.
"(4) The court instructs the jury that if your verdict is for the plaintiff, in assessing his damages you will take into consideration his age, the injuries sustained by him, if any, and the physical and mental pain and anguish endured by him on account of said injury, if any, together
with such as he will necessarily endure in the future resulting from his said injury, if any, also his loss of time and of his earning capacity, if any, together with his medical and hospital bills incurred in an effort to cure himself of his injuries, if any, and assess his damages at such sum as you believe from the evidence will reasonably compensate him for the same, and if you find for the plaintiff for the damages to his said automobile, you will allow plaintiff such sum therefor as you find and believe will be a reasonable compensation for the damages to said automobile, if any, not to exceed the sum of $20,000 for his personal injuries, and not to exceed the sum of $600 for his automobile, in all not to exceed the sum of $20,600.
"(5) The court instructs the jury that nine or more of your number may return a verdict; if all concur your verdict shall be signed by your foreman only; if nine or more and less than the entire panel concur your verdict shall be signed by those concurring or agreeing thereto."
We have omitted the instruction as to the form of the verdict. It suffices to say that plaintiff had a verdict for $10,300, and from a judgment upon such verdict the defendant has appealed. The points made by defendant, and the pertinent facts, we leave to the opinion.
I. This case can and should be simplified. When the plaintiff abandons certain alleged grounds of negligence, they drop Gut of the case as thoroughly as if they had never been pleaded. Plaintiff's instructions indicate clearly to what grounds of negligence he clings. These are the only ones for determination here. Cases are simplified and shortened in this manner, and no effort should be made to go beyond the issues made by the pleadings and the instructions. If the instructions are narrower than the pleadings, we must confine ourselves to the issues made by the instructions. In other words the issues must be measured by both the pleadings and the instructions, however broad the field may be under the evidence. One other thing as a foreword is, if the sufficiency of the evidence is challenged by defendant, it must appear that there is no substantial evidence to support the verdict. This court does not weigh evidence to determine where the greater weight lies. That is a matter purely resting with the trial court. If there is substantial evidence upon which the verdict may be founded, counsel are wasting their time and the time of this court in urging a demurrer to the evidence. This situation too often occurs. The proper issues made by pleadings, evidence, and instructions will be taken up in the course of the opinion.
II. On the two grounds of negligence upon which the case was finally submitted to the jury, there is no question as to the right of the plaintiff to have the jury to...
