— This is an action to recover compensation for personal injuries sustained by plaintiff. It is based on defendant’s alleged negligence in omitting reasonable care to keep a sidewalk in proper condition for public use.
It is the same action that was before the second division on a former occasion. Haynes v. Trenton (1892), 108 Mo. 123.
Plaintiff’s case, shortly stated, is that he fell through a hole in the sidewalk of one of the public streets in the city of Trenton, Missouri. He was walking homeward, about 7 p. m., January 12, 1888, when the boards of the plank walk, provided for pedestrians on Fifth street, in that city, gave away. Plaintiff fell into the hole and upon some loose rocks below.
At the place of the accident, according- to plaintiff’s account,' the footway was quite narrow; the planks were loose, worn and old; one was entirely out; and some of the cross pieces (or supports) were gone.
*332The sidewalk and streets were covered with snow at the time, though no negligence is charged against defendant on that account.
The hole into which plaintiff fell was between three and four feet deep.
Plaintiff described his injuries fully at the trial; but it will not be' necessary to state them now particularly.
There was testimony that the defective condition of the sidewalk had existed for months before plaintiff’s misfortune.
The defenses were a denial of the alleged negligence and a counter charge of contributory negligence.
The ease was tried with the aid of a jury, who returned a verdict for plaintiff in the sum of $5,000, upon which judgment was rendered.
Defendant appealed, after the necessary motions and exceptions to secure a review.
One of the instructions given at the instance of the plaintiff, and now assigned as error, is as follows:
“6. Although the plaintiff may have frequently passed over the walk in question and knew the condition thereof, and knew of the excavation or hole, yet if the same was one of the accustomed routes of travel in said town and in general use by the public, he was not bound to abandon the same, but had the lawful right, notwithstanding his knowledge aforesaid, to travel upon and over said walk; and the law only exacts of him the exercise of ordinary care while so doing, and the law presumes that he was, and did exercise such care; and the burden of proof is on the defendant to show to the contrary to the reasonable satisfaction of the jury.”
1. Defendant’s objection to the instruction just quoted relates to that part which declares that the law *333presumes plaintiff • was exercising ordinary care at the time of the accident.
That sort of statement to the jury has often been condemned of late, in cases involving the same principles that govern this one.
The statement does not even accurately embody a rule of law, to say nothing of its obviously misleading tendency.
When the evidence before a jury is such as to justify an inference or finding of contributory negligence on plaintiff’s part, the law does not presume that he is guiltless of such negligence. The issue of his negligence, viewing it most favorably for him, is then one of fact for the jury, and to that issue it is their province to respond. To tell them that the law entertains a presumption that plaintiff was exercising proper care, in the face of evidence tending to a contrary conclusion, has, necessarily, the effect to greatly weaken the probative force of that evidence. .
In the case at bar there was direct testimony of admissions by plaintiff to several witnesses that, while he was looking at some persons in a passing sleigh, he walked off the sidewalk, and so was injured.
He contradicted those admissions; but the issue of credibility thus raised was for the jury. There certainly was a basis which would have sustained a finding that the alleged admissions contained the true account, of his mishap. If they did, the jury might reasonably have found that his act in stepping off the walk was-negligent.
The defendant was entitled to have the jury left free, on such an issue, to find according to their own judgment of the facts, without the suggestion of a rule by the court which could properly apply only in the absence of any evidence of negligence on plaintiff’s part.
*334But it seems unnecessary to further re-argue the question involved in this assignment of error. It hits been frequently before the court heretofore.
We think it should now be considered settled by the adjudications (of which but a few of the latest will be cited) that the- form of instruction adopted in this cage is erroneous upon the point indicated. Myers v. Kansas City (1892), 108 Mo. 480; Weller v. Railroad (1893), 120 Mo. 635; Bluedorn v. Railroad (1894), 121 Mo. 258 (25 S. W. Rep. 943.)
2. The plaintiff seeks to parry the force of the objection to the sixth instruction by some propositions which we shall notice.
He claims that the plea of contributory negligence is too general, and that the particular facts constituting such negligence should have been alleged.
No objection appears to have been made to the answer on that, or any other ground, in the trial court. We think it too late to raise that objection now. Gilson v. Railroad (1882), 76 Mo. 286; Whitman v. Foley (1891), 125 N. Y. 651.
If the charge of negligence was too vague or'mncertain to advise plaintiff of the facts he had to meet, he should have taken steps, pointed out by the Code of procedure, to require it to be made more definite and certain. R. S. 1889, sec. 2057. But having failed to do so, the general allegation of contributory negligence should be held sufficient, as against an objection to it first interposed in this court.
We do not deem it needful to examine that part of the answer to determine whether or not it is so framed as to withstand a motion against it for uncertainty. Assuming (without deciding) that it is too general, it must now be taken as good enough to raise the issue of plaintiff’s negligence for the purposes of the trial in the circumstances described.
*3353. It is next urged that the same instruction (the sixth), now questioned, was given at the first trial, and was not challenged on the former appeal, reported, 108 Mo. 123. From these facts, it is argued, inferentially, that defendant can not be heard to object to the instruction as given at the second trial.
It must be borne in mind that the judgment in this cause, reviewed in the 108th report, was reversed on other grounds. The point of criticism now made to the sixth instruction was not discussed, still less adjudicated, in the opinion then rendered.
We can see no possible basis for holding defendant estopped to object to the instruction on this appeal, even conceding that the city did not object to it on the former one. The city may then have waived its right to a reversal on that point by not raising it; but it did not thereby consent to the same error at a later trial, or estop itself to then object to such error.
4. Nor can the error be considered harmless.
The plaintiff recovered a very heavy verdict, considering the nature and extent of his injuries. The question of his exercise of care was a vital one in the case. The instruction quoted, bearing on that topic, was clearly erroneous under the former rulings of this court. Hence it must be regarded as prejudicial, unless affirmatively shown to have been harmless.
That showing has not been made.
It follows that the judgment should be reversed and the cause remanded. It is so ordered.
Black, C. J., and Brace and Macearlane, JJ., concur.
SEPARATE OPINION.
— It appears from the record that, during the trial, plaintiff was permitted to exhibit to the jury his injured leg. ' This was done while plaintiff *336was under examination as a witness in his own behalf. The evidence tended to prove that plaintiff had previously sustained an injury to the same leg at or near the same place. In a former trial, experts had been permitted to examine the leg and testify as to its condition and the probable permanency of the injuries.
After plaintiff had shown his leg to the jury on this trial, and evidence had been offered tending to prove that the injuries were greater than they appeared on the former trial to have been, defendant, as a part of the cross-examination of plaintiff, asked that physicians, who had previously examined the leg, might be permitted to make a further examination and give their opinion as to its condition as compared with that when previously examined. This request the court refused, and in doing so we think it committed reversible error.
' The leg, when shown to the jury, became evidence in the ease which may have carried with it great weight, particularly in the matter of the damage sustained. This evidence thus put into the case was open to attack by the opposite party in any manner which may have tended to reduce its probative force. When, for example, a piece of machinery or material, the character .or quality of which is in issue, is exhibited to the jury, it is always competent for the opposite party to have experts examine it and give the jury their opinion of the quality of the material and the sufficiency of the machinery. When admitted in evidence, and its damaging effect has been accomplished, it can not be withdrawn until the party affected by it has had opportunity to apply every test for the purpose of overcoming its force and effect.
No reason can be urged why a different rule should be applied when an injured limb is the subject of inquiry. Defendant had the undoubted right in this case, at any time after the injuries had been shown to *337the jury, to have physicians, examine the injured leg and testify, as experts, to its character and probable permanency.
The question was not as to the right of defendant to have an examination of the injuries made, hut as to the right to test the effect and reduce the weight of evidence introduced by plaintiff.
Black, C. J., and Brace, J., concur.