The plaintiff's evidence was that she, with witness Rosa Berger, her sister-in-law, had got on the train at Glasgow some time in the afternoon of the day hereinbefore named, for the purpose of returning to West Glasgow, a station near where they lived; that, owing to the shortness of the distance between the two stations, defendant's conductor, prior to the occasion in controversy, had insisted that they ride in the smoker, so that it would enable them when they arrived at their destination to get off the train more readily; that on the day in question they took seats in the smoking car, and when they arrived at their destination, as plaintiff was passing from the platform of the smoking car to the next car, at the foot of which stood the porter to assist ladies to alight from the car, the conductor met her, and said in an angry tone, "You get off here," and struck or pushed her, which caused her to fall against the side of the car and to the ground below. Rosa Berger, her sister-in-law, corroborates her in almost every particular. The conductor denies having used harsh or angry words, denies having either struck or pushed her, and states that plaintiff and her sister-in-law were not in the smoking car, but were in the chair car, and that when she came out of the car he was on the platform of the smoker, and as plaintiff, who was on the platform of the ladies' car at the time, was about to pass him, he put his hand on her shoulder, and said to her, "No, step down these steps;" that he said and did this in order to have her go down by the porter, who was standing on the ground at the steps to which he directed her, so that he could assist her in getting off the train; that she got off safely, but after she got off she seemed to have slipped and fallen on her hands and knees and left side, as the porter had hold of her right arm, and the porter helped her up, and asked if she was hurt, she answering that she was not. On cross-examination he was asked if when plaintiff fell her body touched the ground, to which he answered: "No, sir, it didn't; for the porter had hold of her right arm, and that kept her from falling to the ground." The porter Wilson testified that plaintiff and her sister-inlaw were not in the smoking car, but in the chair car; that the plaintiff, who was the last to get off the train, fell as she stepped to the ground off the stool; that she did not go all the way down to the ground, because he was helping her, having her by the arm with both his hands; that she only fell on her hands and knees. J. D. Selmeyer, who was a passenger on the same train, was in the smoking car and got off the train before plaintiff. He was standing and looking at her when she fell. When he saw her first she was on the last step, at which time she was standing. From this step she fell, at which time the porter was holding out both his hands towards her, in which position he still had them when she went down to the ground. Dr. Gallemore, a physician and surgeon, testified that the plaintiff had two ribs broken, which he thinks have entirely healed. Plaintiff's testimony was that she suffered greatly and still suffers from her injuries, and is not able to perform labor. The plaintiff, in rebuttal, introduced Adaline Johanning, who was on the train at the time and in the chair car, but did not see plaintiff and her sister-in-law in said car. nesses We have given enough of the evidence to show its character. If what defendant's witnesses stated in their evidence was true, the plaintiff and her sister-in-law were guilty of deliberate perjury. On the other hand, if they told the truth, the conductor, the porter, and Selmeyer were guilty of perjury. This is not a case where witnesses might see the occurrence differently in detail, but agree on the main facts, but the difference is radical· and irreconcilable. The plaintiff first stated that the conductor pushed her, and then afterwards that he struck her, and other inconsistencies might be pointed out in her evidence. But in that respect defendant's witare equally unfortunate. The conductor is contradicted by the porter, the porter by the conductor, and both by Selmeyer and by Dr. Gallemore. The conductor testified that plaintiff got safely to the ground, then stepped and fell, but was prevented from going to the ground by the act of the porter. The porter's evidence was that she fell from the stool while he held her arm with both hands, and that her body did not touch the ground; while Selmeyer's testimony is that the porter did not have her by the arm, and that she fell to the ground. The physical fact testified to by Dr. Gallemore, a disinterested witness, that two of plaintiff's ribs were broken, was a flat contradiction of both the conductor and porter; for she must have fallen to the ground or upon some solid substance with great force to have produced such a result. It is presumed that the jury carefully weighed all the testimony, and gave to each witness that degree of credit to which he or she was entitled. It is almost incredible that the conductor of defendant's train should have been guilty of the outrage with which he was charged, and there seems to have been no sufficient motive, to say the most about it, for the act. But this is a case not lacking in proof to sustain the allegations of the petition, but where its unreasonableness is attacked. It is not alike upon principle with that cited by the appellant of Hook v. Railway Co., 162 Mo. 569, 63 S. W. 360, where it was held that: "Courts will treat as unsaid by a witness that which in the very nature of things could not be as said. The testimony of a witness, if in clear contradiction to the physical facts, should be disregarded, and not submitted for the consideration of a jury, and, if so sub mitted, their finding should be disregarded." predicated thereon While the facts testified to by plaintiff and her witnesses may be untrue, they are in no sense a contradiction of the physical facts in the case. They are, at most, only improbable. But that the improbable and unlooked for do sometimes occur is common experience. Appellant insists that the action of the court in permitting plaintiff in rebuttal to prove by the witness Johanning that she did not see plaintiff in the chair car was error and prejudicial to the defendant. We think not. Although plaintiff stated in her evidence as a fact of her case that she was riding in the smoking car, the defendant's evidence tending to contradict and impeach her testimony, and making that point an issue in the case, clearly justified the court in permitting plaintiff to fortify herself in that respect by the introduction of corroborative testimony. It was a matter within the sound discretion of the court. It is also claimed that the court erred in giving plaintiff's third instruction for punitive damages. If plaintiff was entitled to recover anything she was entitled to punitive damages, for the act upon which the cause of action was based was both wanton and malicious, and it is so charged. It is not denied that if the act in question was wanton or malicious it was a case for punitive damages. Defendant objects to plaintiff's instruction as to the measure of damages, in which shame and humiliation are included as elements, as there was no evidence that plaintiff experienced either shame or humiliation. A similar question arose in Brown v. Railroad Co., 99 Mo. 310, 12 S. W. 655, where it was held that: "It is not necessary to make specific proof of pain and mental anguish. These elements of damage are sufficiently shown by the evidence which discloses the nature, character, and extent of the injuries. From such evidence the jury may infer pain and mental anguish." So, if defendant's conductor struck or shoved plaintiff so as to cause her to fall off the train, the jury might legitimately infer that in consequence thereof she felt humiliation and shame. It would have been natural for her to have experienced such sensations. Nor was it necessary to allege such in her petition. Brown v. Railroad Co., supra. The defendant introduced a witness to prove the character and general reputation of the conductor, and as to his general conduct toward passengers, ladies especially. Upon objection to the competency of such evidence, the court excluded it. The reputation of the witness had not been assailed, and no attempt was made to impeach him in any manner. But we are cited by defendant to certain authorities, among which is Best, Prin. Ev. §§ 2567, 2568. to sustain the contention that the court committed error in refusing to admit said evidence. In section 257 the author, in formulating a rule, uses the following explicit language: "According to the general rule, upon the whole a just one, it is not competent to give evidence of the general character of the parties to forensic proceedings, much less of particular facts not in issue in the cause, with a view of raising a presumption either favorable to one party or disadvantageous to his antagonist." Applying this rule, which is according to universal practice in the courts of the state, the action of the court in the matter was right, and not wrong. For the reasons given, the cause is affirmed. All concur. SHANNON v. SHANNON.* (Court of Appeals at Kansas City, Mo. Dec. 1, 1902.j DIVORCE-CHILD BORN AFTER DECREE-OR- 1. Rev. St. 1899, § 2926, provides that the court granting a divorce shall make proper orders touching the maintenance of the wife and of the children, and may open the decree as to maintenance. A husband was granted a divorce from his wife, and subsequently a child was born of the marriage, for whose support no provision was made in the decree of divorce. Held, that the court had authority, on petition being made therefor, to make provision for the care and custody of such child. Appeal from circuit court, Clay county; J. W. Alexander, Judge.. Action by Georgie Shannon against Ollie Shannon. From a decree in favor of plaintiff, defendant appeals. Affirmed. J. W. Courtney and F. B. Ellis, for appellant. Sandusky & Sandusky and A. A. Whitsitt, for respondent. BROADDUS, J.. The facts of this case were that plaintiff and defendant were husband and wife prior to the 12th day of April, 1900, at which time they disagreed and separated; that afterwards the defendant herein brought suit in the Clay county circuit court for divorce, resulting in a decree in his favor divorcing him from his wife, and that soon thereafter-August 9, 1901-there was born of said marriage a male child; that the divorce was granted on the statutory ground that the wife had been guilty of indignities to the husband; that she did not appear at the trial, the same being ex parte; that, as the child was not then born, there was no order in the decree of divorce providing for its custody and maintenance; that the respondent, as well as her parents, with whom she has resided since the separation, are without sufficient means to maintain and educate the infant, and the appellant herein has contributed nothing for that purpose; and that said appellant is a young man of good business Rehearing denied January 5, 1903. capacity, and has a moderate estate in money and other property. Before the trial the appellant demurred to the petition for various causes, among which were that the court had no jurisdiction of the defendant or the subject-matter of the action, that the plaintiff had no legal capacity to sue, that the rights of the parties had been adjudicated in said divorce proceedings, and that there was a defect of parties plaintiff. The court overruled this demurrer, and, after hearing the evidence, decreed that defendant pay to plaintiff $30 in advance every three months, and awarded the care and custody of the child to the mother. The same questions are raised on the appeal as were raised on said demur rer. In Rankin v. Rankin, 83 Mo. App. 335, it was held that: "Where the defendant obtained a divorce from the plaintiff under a decree making no award of the custody of the children, and which left them to the care and nurture of the former wife, his liability for their support and education remained just as it had existed before the obtention of the decree." That case is similar on the facts with the one under consideration here in this: that the defendant in a former suit had obtained a decree of divorce against his wife in which there was no award of the care and custody of two of their children. The judgment was rendered in the state of Texas, where the husband had moved, and while the wife and children were in Missouri, where he had left them. In Meyers v. Meyers, 91 Mo. App. 151, it was held that: "Where the statute authorized the court awarding the custody of minor children in a divorce to the mother to make provision in the decree for their maintenance, and to change it from time to time, and no such provision is made at the time the decree is entered, the mother may, at a subsequent term, on petition, obtain an order of the court compelling the father to provide her with means for its future support." See, also, In re Kohl, 82 Mo. App. 442. The cases cited, we think, are sufficient authority justifying the proceedings in this case in the name of the mother for the support of the minor, and the right and duty of the court rendering the original decree of divorce, and any other court of competent jurisdiction, to make at a subsequent term or terms a proper order for the support of the minor. And as the father has abandoned the minor to the care and custody of its mother, and has also imposed upon her the burden of its maintenance as well, which the law imposed upon the father, we can see no good reason why she cannot, with the aid of the court, compel him to relieve her of such burden. It is true, in a sense, that the proceeding is in the interest of the infant, but only so indirectly. Primarily and directly the cause of action is in the mother. And as her petition to the court is in her interest, to compel the father, while she is maintaining, caring for, and nurturing the child, to per form his share of such duty,-a duty not only imposed by the common law, but by the universal custom of all civilized society,good conscience demands that she should be heard. The child was not a party to the quarrels of its father and mother, and the decree of divorce did not affect his right to maintenance at the hands of his father. Bish. Mar. & Div. § 552, states the rule that "the children are no parties to the quarrels of the parents; they lose no right thereby." See, also, Chester v. Chester, 17 Mo. App. 657. And a divorce does not terminate the father's liability to support his child. Bish. Mar. & Div. § 1220. It would be a strange rule of law that would absolve the father from such liability when the decree of divorce was silent upon the matter. The appellant has cited us to two Kansas decisions in support of his contention that the plaintiff is not entitled to the relief asked for. In Harris v. Harris, 5 Kan. 46, the husband and wife were divorced by a Kansas court, at which time they had three children, the custody of which was awarded to the mother. Two days after the decree a fourth child was born. The wife brought an action of debt against the father for the entire support and education of all the children. The court held that she could not maintain the action, and that the only way for relief was by opening the decree as to the children, and making such provision for them as might be just under all the circumstances, or by other proper proceedings under or supplemental to the decree. It was also held, as between the father and mother, the duty of maintaining the children was as much that of the mother as the father; but this distinction from the common law was made by reason of a constitutional provision of the state for the equal rights of the wife as of the husband in the possession of their children. With this exception we think the ruling is in harmony with decisions of this state, for it recognizes the right of the wife to compel the husband to contribute to the support of his children "by opening up the decree as to the children, or by other proper proceedings under or supplemental to the original bill," which is equivalent to the proceedings in this case. In Hampton v. Allee, 56 Kan. 461, 43 Pac. 779, the wife predicated her right to recover for maintenance of the children on a decree of divorce. The action was also for debt. The court held, as there was no liability imposed by the decree, plaintiff was not entitled to recover; or, in other words, she could not recover in that form of action. In Husband v. Husband, 67 Ind. 583, 33 Am. Rep. 107, the court held that: "The awarding to the mother of the custody of her minor children, on decree granting her a divorce from the father, deprives him of all right to the services of the child, and consequently frees him from all liability to the mother for the care, support, and maintenance of the child." This decision was the result of a construction of the statute of that state to the effect that the court, in decreeing a divorce, shall make provision for the guardianship, custody, and support and education of the minor children of such marriage. Our statute regulating divorce is somewhat different, in that it provides that the court may from time to time, after the original decree, on the application of either party, alter the same as to the allowance of alimony and maintenance. Section 2926, Rev. St. Mo. 1899. In Cushman v. Hassler, 82 Iowa, 295, 47 N. W. 1036, the facts were that the child's parents had been divorced, and its care and custody awarded to the father. The child, without cause, and without the consent of the father, left him, and went to live with his mother. The mother sought to charge the father with the support of the child. The court held that the father was not liable. In Brow v. Brightman, 136 Mass. 187, it was held that the father is not liable for the support of his minor child, under the statute of the state, after its custody had been given to the mother by a decree of court. It was further held that under the laws of that commonwealth the defendant, "if of sufficient ability, was under obligation to provide for and support his infant child." And it was also held that, "the remedy to secure such provision for the support of the child as the defendant might have the ability to furnish was under a decree of this court, which it had ample authority to make, in either of the proceedings before it, as a part of the original decree, or at any subsequent term." (Italics ours.) In Finch v. Finch, 22 Conn. 411, the court held that, where the decree of divorce granted on the application of the wife awarded to her the custody and control of the minor children of the husband and wife, she was not entitled to recover against the father “in action of book debt for the entire support and education of such children, furnished by her after such decree had been granted." This Connecticut case is squarely in conflict with the decisions of this state. The Iowa and Indiana decisions have no application. The Kansas and Massachusetts decisions are in harmony with our own, except the case of Rankin v. Rankin, supra, where the proceeding was not in the nature of a supplemental bill. as the one under consideration, but was an original bill in the court of a state different from that in which the decree of divorce had been granted. We are satisfied that the weight of authority and reason is that the court in which the decree of divorce was granted has the power at a subsequent term by motion or by supplemental bill to open the decree as to the minor children of the parties to the suit, and to make suitable orders for their care, custody, and maintenance. The policy of it is to protect the progeny of unfortunate marriages; and, while such is the case, great care should be exercised by the courts in so doing to do no injustice to either parent, and to as far as possible make such orders as will not impose a burden upon either not in harmony with justice and good conscience. An examination of the record in the cause before us has convinced us that the court below in its judgment was guided by sound discretion, and that no burden was cast upon the defendant other than that imposed by the common law. Cause affirmed. All concur. JOHNSON v. CITY OF ST. JOSEPH. (Court of Appeals at Kansas City, Mo. Déc. 1, 1902.) STREETS-PLATS - ACCEPTANCE - PERSONAL INJURY-INSTRUCTIONS-DEGREE OF CARE-IMPUTED NEGLIGENCE. 1. In a suit against a city for injuries arising from defects in an alleged street, the proof showed that the place of the accident was designated as a street on plats of land within the city limits; that the city by special ordinance had directed the city water company to extend its water mains and erect hydrants in streets on such plats; that a city officer had issued a permit to a telephone company to open some of such streets; and that the street on which the accident happened had been used as a public highway. Held sufficient to require the submission to the jury of the question of the acceptance of the street by the city. 2. In a suit against a city for injuries arising from a defective street, an instruction that, if plaintiff at the time of the injury was using such care as might reasonably be expected from an ordinarily prudent person at the time and under the circumstances, the jury must find that she was exercising reasonable care, was not erroneous. 3. Contributory negligence of a son driving a vehicle in which his mother was riding will not be imputed to the mother, in the absence of a showing that he was in her employ, so as to defeat a recovery for injuries sustained by her from a defective street. Appeal from circuit court, Buchanan county; A. M. Woodson, Judge. Action by Jacobine Johnson against the city of St. Joseph. From a judgment for plaintiff, defendant appeals. Affirmed. Kendall B. Randolph, for appellant. J. A. Connett and J. F. Woodson, for respondent. BROADDUS, J. The plaintiff is a woman who at the time of the injury complained of was about 70 years of age. She alleges that on the night of about the 17th day of August, 1901, while riding in a wagon with two other persons and her son, the latter of whom was driving, and while passing along on Thirty-Second street in defendant city, it was noticed that they were driving among the weeds lining said street; that it was a dark night, and there were no street lamps or lights of any kind in that vicinity; that the son, in attempting to guide the team into the beaten path, unwittingly pulled them the wrong way, so that the wagon and its 2. See Municipal Corporations, vol. 36, Cent. Dig. §§ 1673, 1761. Occupants were precipitated down a perpendicular embankment several feet in height, throwing plaintiff out of said wagon and onto the ground with great force and violence, from which fall she sustained serious and permanent injuries; that said embankment ran lengthwise with said Thirty-Second street and about the center thereof, and was caused by the east side of said street being graded down so that the surface of said east side was five or six feet lower than the surface on the west side. It was admitted on the trial of the case that on December 1, 1899, the limits of the city were extended so as to take in the place where the injury occurred, including the property on the east side thereof for a width east and west of one block, and extending about one-half mile south to what was known as "Mitchell Avenue." The following copy of plats of "Mason Place" addition and "Oak Hill" addition will assist in a proper understanding of the case: It will be seen from said plat that Mitchell avenue is the first street south of Penn street and south of where the injury occurred. It is also shown by said plat that the first street north of the place of accident is Penn street, the second is Seneca street, the third is Lafayette street, and the fourth is Olive street. The west half of said Thirty-Second street from Mitchell avenue north to and beyond Olive street was dedicated in October, 1888, and the other half in April, 1889. On May 17, 1900, the defendant city, by special ordinance, directed the St. Joseph Water Company to extend its water mains on Twenty-Eighth street from Penn street north to Seneca street, thence east on Seneca to Thirty-Second street, and to erect fire hydrants at each corner of said Seneca street at the intersection of Twenty-Eighth, Twenty-Ninth, Thirtieth, Thirty-First, and ThirtySecond streets, respectively. The defendant's city engineer, on September 25, 1900, issued a permit to a telephone company to |