Quirk v. Met. St. Ry. Co. tion P-1, is based upon the last chance rule. It not only detailed what facts were necessary to be shown by plaintiff to entitle him to recover but required the jury to find that these constitued negligence on defendant's part and concluded by telling the jury that if they found while plaintiff was trying to alight he fell "as a direct result of the negligence of the defendant,” etc., plaintiff was entitled to recover. It is the contention of defendant that the portion of the instruction quoted permits plaintiff to recover upon any theory of negligence and does not confine the negligence to that pleading, There is nothing in this contention. The word "the" before the word "negligence" is a definite article and refers to acts of negligence theretofore set out in the instruction, which acts were those alleged in the petition. The court did not err in refusing defendant's instructions D-3, D-4 and D-5. Defendant's instruction D-3 told the jury that if they found that— a lack of ordinary care upon the part of the motorman and a lack of ordinary care upon the part of the boy combined to bring about the casualty, then the plaintiff cannot recover; if you find that the casualty was caused solely and alone by the boy's own negligence or by the mutual and concurring negligence of the boy and the motorman and that any negligence on the part of the motorman without the concurring negligence of the boy would not have caused the casualty then the plaintiff cannot recover and your verdict must be for the defendant." This instruction was properly refused for many reasons, one being that the tender years of the plaintiff excused him from concurring negligence. [Flower v. Penn Rd. Co., 69 Pa. 1. c. 216; Levin v. Traction Co., 194 Pa. St. 156; Sherman v. Railroad, 72 Mo. 62, 1. c. 66; Holmes v. Railway, 207 Mo. 149, 1. c. 164-165.] Defendant's instructions D-4 and D-5 told the jury that the motorman and conductor owed the boy no duty other than to refrain from willfully, wantonly and recklessly injuring him. These instructions were prop Quirk v. Met. St. Ry. Co. erly refused as they tended to mislead the jury. The words "willfully," "wantonly" and "recklessly" are ones of technical meaning and should be defined. These words, as applied to the facts in evidence, are not to be taken in their popular meaning. [See Drogmund v. Railway, 122 Mo. App. 154, 1. c. 160.] It was the duty of defendant's servants to use ordinary care in removing the boy from the car (Brill v. Eddy, 115 Mo. 596; Farber v. Mo. Pac. Ry. Co., 139 Mo. 272; Winn v. Railway Co., 245 Mo. 406; Southard v. Railway Co., 191 S. W. 1101), and the jury would have been misled had this instruction been given. Defendant urges that the court erred in excusing without challenge the juryman Page. It appeared upon his voir dire examination that this juryman was working for the Kansas City Electric Light & Power Company and had so worked for six years; that although this company and the defendant were separate companies at the time of the trial, the witness had been in the employ of the Electric Light & Power Company during the time that the two companies were connected. The court excused the juryman on the court's own motion because he had been employed by the Kansas City Electric Light & Power Company during the time in which the two companies were connected. We do not think the court abused his discretion in the matter. The position that this juryman occupied toward the defendant, as we get it from the record, was substantially that of an ex-employee. This relationship of the juryman to the defendant was certainly stronger and more intimate than that shown in the case of Garner v. Met., 177 S. W., 177 S. W. 737, cited by defendant. In that case there was no relationship whatever shown between the defendant and the juryman; nothing was shown but that the juryman was acquainted with the attorney for the defendant. In both that case and this the juryman testified that his connection would not bias or affect his verdict. The trial court was not bound by the statement of the juryman that he would not be biased under the circumstances Quirk v. Met. St. Ry. Co. present in this case. [Theobald v. Transit Co., 191 Mo. 395.] The point is made that the court erred in refusing to discharge the jury on account of the alleged misconduct of plaintiff's counsel. Plaintiff attempted to show by his father that plaintiff was an ordinarily intelligent boy at the time he was hurt. This was objected to on the ground that it was not proper in rebuttal and that the mentality of the boy was not in issue. Plaintiff's counsel stated in the presence of the jury. "You will raise it in the appellate court." Defendant objected to this remark on the ground that it was improper and asked that the jury be discharged. The court refused to discharge the jury but reprimanded counsel for making the statement and said, "This jury is too sensible to consider a thing like that." We think there was no error under the circumstances in the court refusing to discharge the jury. It was probably improper for plaintiff's counsel to make the remark. Taking it in its most unfavorable light to plaintiff, it was nothing more than a suggestion to the jury that plaintiff expected to win the case and that defendant would appeal it. A jury certainly would not be influenced by an attorney who intimated that he expects to win the case. Attorneys are supposed to entertain such hopes. Nor do we see how the jury could have been prejudiced by plaintiff's intimation that defendant would appeal the case. We are unable to see where there was any statement that defendant was trying to get some error in the case so that it would be reversed, as contended by defendant. Plaintiff's counsel simply suggested that he ought to be permitted to show that the boy was not one above average intelligence and asked defendant's counsel if he would agree not to raise the point in the appellate court if plaintiff desisted in his efforts to prove the matter in the lower court. The great weight of the evidence shows that defendant's motorman and conductor were guilty of culpable negligence, if not cruel conduct, toward plaintiff. The size of the verdict does not indicate that the Quirk v. Met. St. Ry. Co. amount was influenced by any improper conduct of plaintiff's counsel at the trial. The judgment is affirmed. All concur. MAURICE QUIRK, Respondent, v. METROPOLITAN Kansas City Court of Appeals, January 6, 1919. 1. NEGLIGENCE: 2. 3. Humanitarian Doctrine. Plaintiff's son, seven years of age, was on the front steps of a street car in a position of peril which was known to the defendant's servants and they failed to stop the car. In attempting to alight while the car was moving, the boy fell and was injured. Held, that it was not necessary for plaintiff to show more than that his son was upon the steps, that he was a boy of tender years, that the car was moving from seven to ten miles per hour, to entitle him to go to the jury on the question that the 'boy was in a position of peril such as upon discovery by defendant's servants required them to stop the car or to take the boy back on the car out of danger. : Pleadings: Statute of Limitations. An amendment to a petition alleging a new item of damages is not barred by the Statute of Limitations as the gist of a cause of action for damages for personal injuries is negligence, or breach of duty, and not the consequent injury resulting therefrom. : Amended Pleading: Affidavit of Surprise. It was not error for the trial court to refuse a continuance because of the amending of the petition during the trial asking for loss of services of plaintiff's son under the circumstances in this case notwithstanding the filing of an affidavit of surprise. Appeal from Jackson Circuit Court.-Hon. Wm. O. AFFIRMED. Clyde Taylor and Roscoe P. Conkling for appellant. Harding, Murphy & Harris for respondent. 200 M. A.-38 L Quirk v. Met. St. Ry. Co. BLAND, J.-Plaintiff recovered a verdict and judgment for loss of services, medical attention and other damages suffered by him on account of an injury to his son, Charles Quirk. The latter while attempting to get off of one of defendant's cars on July 4, 1910, fell from the front step thereof, his leg going under the the car causing the same to be cut off about six inches below the knee. The facts in this case are substantially the same as those in the case of Charles Quirk, by next friend, Maurice Quirk v. Metropolitan Street Railway Company, No. 13116, decided at this sitting but not yet reported. The two cases are dissimilar however in some respects. Plaintiff in his petition in this case alleged that his minor son was on the front steps of the car in a position of peril which was known to defendant's servants, and that after seeing him in such a position they failed to stop said car. There is nothing said in the petition about the boy being ordered from the car or that he was attempting to alight therefrom when he fell. Plaintiff thus plants himself squarely upon the last chance doctrine. Plaintiff's instructions followed the petition and submitted the same negligence as alleged therein. A number of points raised in this case were disposed of in the other so it is unnecessary for us to go into those points a second time. Defendant urges that the evidence does not prove but disproves the allegation in the petition that plaintiff's son fell from the steps of the car, in that it proves that he fell not by reason of the continued movement of the car but in an attempt to alight therefrom. It is defendant's contention that there was no duty upon defendant's servants to stop the car merely because they saw plaintiff's son upon the steps, in the absence of any other showing that it was dangerous for plaintiff's son to be upon them, such as a showing that the car was swaying or jerking by reason of some defect of the track, etc. That the humanitarian doctrine applies in cases where the circumstances are like those present in the |