-

3. MASTER AND SERVANT (§ 190*) - FELLOW
SERVANT.
A section foreman was a vice principal of
a section hand in ordering him to take a track
jack from the track.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 449-474; Dec. Dig. § 190.*]

4. MASTER AND SERVANT ( 289*)-INJURIES - JURY QUESTION - CONTRIBUTORY NEGLI

GENCE.

Evidence in an action for the death of a section hand by having a track jack knock against him while removing the jack from the track held to make it a jury question whether decedent was negligent in not getting out of the way of the train.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*]

5. MASTER AND SERVANT (§ 296*)-INJURIES INSTRUCTIONS CONTRIBUTORY NEGLI

-

GENCE.

In an action against a railroad company for the death of a section hand while attempting to grab a track jack from before a moving train, defendant requested a charge that though the foreman told decedent to remove the jack, and decedent knew that the train was rapidly approaching, and that another employé had attempted to remove the jack after the order was given and failed to do so, and abandoned the attempt because the train was so near as to make it dangerous, and that decedent knew that the other party called to him to look out just as the other left the jack, and thereupon decedent attempted to remove it and came so close to the train as to be in danger of being struck, then decedent was guilty of negligence, which request the court modified by requiring a finding that decedent knew, or by the exercise of ordinary care could have known, that the train was so near or was approaching so rapidly that there was no reasonable opportunity for him with safety to remove the jack before the train struck him. Held, that the modification was proper.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1180-1194; Dec. Dig. § 296.*]

APPLICA

6. TRIAL (§ 251*) - INSTRUCTIONS
BILITY TO EVIDENCE.
Where the issue in an action for the death
of a section hand by being struck while at-
tempting to remove a jack from the track be-
fore an approaching train was upon the negli-
gence of decedent's foreman in ordering him
to remove the jack, a requested charge that the
train employés were not bound to notify dece-
dent of its approach, and that it was his duty
to keep out of the train's way, was properly
refused as inapplicable.

[Ed. Note.-For other cases, see Trial, Cent. Dig. 88 587-595; Dec. Dig. § 251.*]

7. TRIAL (8 260*)-INSTRUCTIONS-REQUEST.

A requested instruction which was covered by other instructions so far as it was correct was properly refused.

[Ed. Note. For other cases, see Trial, Cent. Cent. Dig. §§ 651-659; Dec. Dig. § 260.*] 8. NEW TRIAL (8 76*)-EXCESSIVE DAMAGES. In an action by minor children for their father's death, the jury is not confined to any exact measure in estimating damages, but have considerable discretion which will not be interfered with by the courts unless abused.

[Ed. Note.-For other cases, see New Trial, Cent. Dig. §§ 153-156; Dec. Dig. § 76.*] 9. DEATH (§ 86*)-ACTIONS-DAMAGES.

In an action by a child for its parent's death, the child is entitled to recover damages

for the loss of the parent's care, guidance, training, and education, considered from a pecuniary as well as from a moral standpoint.

[Ed. Note. For other cases, see Death, Cent. Dig. 88 108, 109, 112-114, 117, 119; Dec. Dig. § 86.*j

10. DEATH (§ 104*)-ACTIONS-INSTRUCTIONS. ent's wrongful death that the jury should conAn instruction in a child's action for a parsider only the loss of its father's "support and ing the child's minority naturally included the maintenance" from the time of his death durconsideration of the care, education, etc., of the child by the parent.

[Ed. Note.-For other cases, see Death, Cent. Dig. §§ 142-148; Dec. Dig. § 104.*] 11. DEATH (§ 104*)—ACTIONS-INSTRUCTIONS

-SUPPORT AND MAINTENANCE.

In a child's action for its parent's wrongful death, the court instructed that in assessing plaintiff's damages the jury should consider only the pecuniary loss to plaintiffs necessarily resulting from their father's death during their minority, and that nothing could be allowed for injured feelings, and that the jury should only consider the loss of the father's support and maintenance during their minority, and the verdict must be based upon the evidence in the case showing the value of such support and maintenance, and the jury could not resort to speculation to determine such loss. Held, that the instruction improperly required a showing as to what decedent's earnings were in order to determine the value of the loss of support and maintenance, which was not necessary.

[Ed. Note. For other cases, see Death, Cent. Dig. 88 142-148; Dec. Dig. § 104.*]

12. DEATH (§ 77*)-ACTIONS-SUFFICIENCY OF EVIDENCE.

Evidence in an action by children for the wrongful death of their parents held to support. a finding that plaintiffs suffered some pecuniary loss.

[Ed. Note.-For other cases, see Death, Cent. Dig. § 96; Dec. Dig. § 77.*] 13. TRial (§ 121*)—ARGUMENT-COMMENTS ON EVIDENCE.

Where, in an action for the death of a section hand while attempting to grab a track jack from before a moving train, the evidence tended to show that it was dangerous for the train to pass over the track with jacks under it, and for that reason decedent's foreman ordered him to remove the jack, plaintiffs' counsel was justified in stating in argument that, when decedent pulled the jack from under the track "trying to save the train," he did not have time to think.

[Ed. Note. For other cases, see Trial. Cent. Dig. §§ 294-298, 300; Dec. Dig. § 121.*] 14. APPEAL AND ERROR (§ 231*)-PRESENTATION BELOW.

The impropriety of remarks in argument will not be considered on appeal where the objection thereto did not point out the specific statement complained of, or the specific ground of the objection.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1299, 1352; Dec. Dig. § 231.*]

15. APPEAL AND ERROR (§ 1060*)-HARMLESS ERROR-IMPROPER ARGUMENT.

in an action for a section hand's death while A remark of plaintiff's counsel in argument attempting to pull a jack from under the track before a moving train, "Now there should have been either signals, or the men on such a day,' was not prejudicial to defendant, though the

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

absence of signals was not a ground of negli- | ahead of deceased, "tripped" it, and stepped gence relied on.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4135; Dec. Dig. § 1060.*] Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by Viola Gentry and others by Enock Gentry, guardian and curator, against the Wabash Railroad Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

J. L. Minnis, of St. Louis, and Robertson & Robertson, of Mexico, Mo., for appellant. Barclay, Fauntleroy, Cullen & Orthwein, of St. Louis, for respondents.

between the rails and tried to remove the jack. The jack in question had a small plate or foot that went under the rail and which raised the latter. When the witness tripped it-i. e., operated it so as to release the rail

some little gravel dropped under it, and, owing either to this or to rust on this foot or plate, it was difficult to remove it from beneath the rail. Bybee testified that when he tripped the jack and caught hold of it to remove it deceased was immediately behind him just outside of the track, on the south side thereof, that seeing the danger that he was in Bybee let loose of the jack and jumped from between the rails, at the same time calling out to deceased to "look ALLEN, J. This is an action for death un- out." Just as Bybee let loose of the jack, der section 5426, Rev. Stat. 1909. The de- deceased grabbed it, and tried to get it out. ceased, one Curtis Gentry, was struck and According to the testimony of Bybee, when killed by one of defendant's trains while he released his hold upon the jack and working as a section hand in the employ of jumped, deceased was in the very act of defendant. He left no wife surviving him, grabbing it; and the witness testified that and the action is by his minor children, what they did at this time was done very brought by their guardian and curator. hurriedly-as the witness said, "In the snap Plaintiffs recovered, and defendant prosecutes the appeal.

of your finger." Just as deceased got hold of the jack, the train struck it, causing the wooden handle thereof to strike deceased, whereby this handle was driven through his head, and he was instantly killed.

It appears that the jack opposite to the one that deceased was trying to remove, and which was sustaining the other rail, was not removed either; that one Clark attempted to do so, but did not succeed in removing it. The train, which according to the testimony was running between 50 and 60 miles an hour, passed over this portion of the track and ran, as the witness said, for nearly a quarter of a mile before coming to a stop.

The deceased was about 30 years of age, and his health and strength good. The exact ages of the three minor children do not appear. The witness testified that they were quite young; one being, as he thought, 5 or 6 years of age. Two of them were present at the trial. Defendant offered no evidence beyond recalling the one witness who testified for plaintiffs for a further brief exam

On November 30, 1909, the deceased, in the course of his employment by defendant, was engaged with other laborers in “surfacing" a portion of defendant's track at a point about three-quarters of a mile east of Centralia, Mo., under the immediate supervision of one Joe Crowley, defendant's section foreman. The evidence shows that it was a very dark, foggy day, and that an ap proaching train could not be discerned more than 150 yards away, and then only by the smoke from it. The train which struck and killed the deceased was an east-bound passenger train which was due at that point about 10:30 or 10:45 a. m., but which was between two and three hours late, and passed at about 1:20 p. m. The evidence consisted solely of the testimony of one witness, John Bybee, a colaborer with deceased. At the point where the section crew were working at the time, the rails of the track had been raised some three or four inches by "jacks." There were two of these jacks, standing op-ination. posite to each other, outside of the rails, and supporting the latter. They were operated by wooden handles about a foot or eighteen inches in length. While the rails were thus supported, and deceased and Bybee were on the south side of the track some 16 feet west of these jacks, and reaching down to pick up their shovels, defendant's foreman called to them, saying: "Boys, here comes the train, get those jacks." At that time a passenger train approaching from the west was about 150 yards away. The evidence is that the foreman, who was standing some little distance west, suddenly gave this order, speaking rapidly, and that deceased and Bybee at once made a rush for the jacks. Bybee was in the lead, reached one of the jacks just

At the close of plaintiffs' case defendant offered an instruction in the nature of a demurrer to the evidence, which was refused by the court; as was a like instruction offered by defendant at the close of the entire case. The cause was submitted to the jury upon two instructions on behalf of plaintiff, only one of which we shall need to notice, as the other simply defined the terms “ordinary care" and "negligence." The plaintiffs asked no instruction on the measure of damages. Four instructions were offered by defendant, two of which were refused by the court, and two modified by the court and given as modified. The jury returned a verdict for plaintiff in the sum of $5,000.

Defendant urges that its demurrer to the

evidence should have been sustained for the it does not show that, after it was given, reason that the evidence, as defendant there was sufficient time to enable him to claims, conclusively shows that deceased in get out of the way and avoid being struck. grabbing the jack when he did was acting, We think that the demurrer was properly not in obedience to the foreman's order, overruled. but voluntarily, some time after the order was given, and under different circumstances, and that in so doing he was guilty of such negligence as to bar a recovery by plaintiffs. A careful review of the evidence, which is exceedingly brief, convinces us that it does not sustain defendant's theory that plaintiff was not acting under the foreman's order when he grabbed the jack. With a train approaching at the rate of speed above mentioned, a slight computation will show that it would take only from five to six seconds from the time that it was first discovered for it to reach the jacks. In this brief interval deceased and his colaborer, acting under the order of defendant's foreman, were endeavoring to reach and remove one of these jacks. Defendant's view of the evidence is that deceased made no effort to execute the order until Bybee jumped, and then voluntarily "rushed in" immediately in front of the train. It is true that the witness testified that when he had hold of the jack deceased was outside of the rails, but it does not appear that he waited until after Bybee jumped to make an effort to execute the order. On the contrary, it appears that he was very near the jack when Bybee jumped and seeking to help the latter remove it; for it seems that he was in the very act of grabbing it when Bybee let loose of it and jumped.

[1] Under these circumstances, the court could not properly have declared as a matter of law that the act of deceased in grabbing the jack at that instant was not in obedience to the foreman's order, which had caused plaintiff to rush to the jack for this

very purpose.

[2, 3] Also the question of the negligence of deceased was properly referred to the jury. The foreman occupied the position of vice principal, and was not a fellow servant with deceased. He ordered deceased and others to perform a task, extra hazardous indeed, but one which cannot be said as a matter of law to have so plainly imperiled deceased's life that to undertake to obey was not to exercise ordinary care. See Stephens v. Railroad, 96 Mo. 207, 9 S. W. 589, 9 Am. St. Rep. 336.

[4] Neither can it be held that deceased was negligent as a matter of law in not getting out of the way of the train as Bybee did, or in not heeding the warning given by the latter as he jumped. Whether deceased realized how imminent the danger was or could so have known by the exercise of ordinary care was for the jury to determine under the evidence. As to the failure of deceased to heed the warning, the evidence shows that he was in the act of grabbing the jack when this warning was given, and

The instruction complained of, given on behalf of plaintiffs, told the jury, in substance, that if they found from the evidence that defendant's foreman negligently ordered deceased to remove the jacks in question while the train was rapidly approaching, and that this order under the circumstances was extra hazardous, but did not plainly imperil the life or limb of deceased, and that deceased obeyed the order, and in so doing exercised ordinary care for his own safety, and that in obeying and attempting to execute the order deceased was injured and killed by reason of defendant's engine striking one of the jacks, then plaintiff was entitled to recover. This instruction is similar to one approved in the Stephens Case, supra, and it is not urged that it is erroneous except for the reason that it is based upon the theory that deceased acted throughout in obedience to the foreman's order; whereas defendant insists that the action of deceased in taking hold of the jack when he did was not in obedience to the order of the foreman, but materially later, of his own volition, and at his own risk. said above practically disposes of the assignment of error with respect to this instruction, and it need not be repeated. What deceased did during the brief interval of time in question was done in great haste, under excitement, and the jury might well find that all of his acts during this time were done in obedience to the foreman's order and in an effort to execute the same. case was one for the jury at all, then this instruction was proper as presenting the plaintiffs' theory of the case.

What we have

If the

[5] Of the two instructions requested by defendant and given by the court after being modified, one need not be noticed, as appellant's counsel expressly say that they make no point in regard to this instruction. The other, as offered by the defendant, was as follows: "The court instructs the jury that although the foreman told the decedent to remove said jack, and the decedent knew said train was approaching rapidly and in near proximity, and that witness Bybee had attempted to remove said jack after said order was given, and had failed to remove it because it was caught, and Bybee abandoned the effort to remove the jack because said train was so near it was dangerous to attempt further to remove the jack, and the decedent knew of the near approach of the train, and that Bybee had gotten out of the way, and Bybee had said to decedent to 'Look out,' just as he, Bybee, left the jack, and that thereupon decedent attempted to remove the jack and came so close to the train as to be in danger of being struck by

moral training of a child by its parent is to only." The argument advanced in support be considered as having a pecuniary value of this portion of the instruction is that in estimating the loss which the child sus- the verdict must necessarily be based upon tains by reason of the parent's death; that evidence in the case and that the jury is not the child is entitled to recover for the loss of entitled to indulge in mere conjecture and a parent's care, nurture, guidance, training, speculation. The language used, however, and education; and that these may be con- might well be interpreted by the jury to sidered as having a pecuniary as well as a mean that there must be direct and posimoral value. Stoher v. Railway, supra; Sip- tive proof of the value of such support and ple v. Gaslight Co., 125 Mo. App. 81, 102 S. maintenance, and that without such proof W. 608; Gamache v. Metal Co., supra; and the jury has no discretion to place a pecuniauthorities cited. ary value thereon. This would seem to be It is strongly urged, however, by learned the purpose of employing this language in counsel for appellant that the words "sup- the instruction, and we think its effect would port and maintenance" are broad enough to be but to mislead the jury. From it the cover all of the elements of loss for which jury might well believe that, since the eviplaintiffs were entitled to recover, including dence did not show what the earnings of the loss of the care, education, etc., of the deceased were, there was no evidence "showfather. And, if this be not true, counsel saying the value of such support and maintethat this objection to the instruction may nance;" whereas the jury should be left be well taken. In support of this conten- free to exercise a considerable discretion in tion we are cited to authorities construing arriving at the amount of the verdict, takthese words as used, in particular instanc- ing into consideration all the facts and cires, in wills, statutes, etc. But in dealing cumstances in evidence. We are of the opinwith the expression "support and mainte- ion that the lower court committed no ernance," as used in this instruction, we are ror in refusing this instruction. not to consider the words in the light of the construction that may have been placed upon them in instances such as are referred to by counsel. The language of the instruction must be considered from the standpoint of what the jury would have understood it to mean. In this connection it is pertinent to ask what the purpose and object of defendant was in requesting the instruction in this form-i. e., limiting the recovery to the loss of "support and maintenance"-without defining these terms or otherwise making the instruction clearly include all proper elements of damage, unless it were to confine the recovery to the mone tary value of the support of the father, in the sense merely of supplying food, clothing, and shelter.

[10] We have no doubt that the jury, construing the terms in question in their usual and everyday sense, would understand that other elements of loss, such as care, education, etc., were intended to be excluded.

[11] Furthermore, we think it quite reasonable to suppose that the jury would infer from this instruction that it was necessary for plaintiff to show what the earnings of deceased were, in order to determine the value of plaintiffs' loss of support and maintenance. This it was unnecessary for plaintiff to do. Stoher v. Railway, supra; Sipple v. Gaslight Co., supra; Voelker v. Construction Co., supra; Haines v. Pearson, 107 Mo. App. 481, 81 S. W. 645. It is true that the instruction does not in express terms so declare. It does, however, tell the jury that their "verdict must be based upon evidence in the case showing the value of such support and maintenance," and that the jury "cannot resort to guess, conjecture, or speculation to determine such loss, but it must be determined from the evidence in the case

[12] It is true that the evidence was very meager from which to determine the loss occasioned to these plaintiffs by the death of their father. It was shown merely that he was a man 30 years of age, in good health and strength, employed by defendant as a section hand, and that he had been so employed for eight or nine months. It was shown that the children were quite young; two of them being before the jury. From this evidence, however, we think that the jury might properly place a pecuniary value upon the loss suffered by these plaintiffs. We have no reason to think the verdict excessive, and have no disposition to interfere with the discretion of the jury in arriving at it.

[13] Another assignment of error is that plaintiffs' counsel made certain improper remarks in argument before the jury. One of these was the following remark by Mr. Anderson, of counsel for plaintiff: "Gentlemen, when Mr. Gentry pulled the jack from under the track, trying to save the train, he didn't have time to think about how close it was, and-" This was objected to by defendant's counsel. The objection was overruled and defendant excepted. We see nothing improper in this remark of counsel. The evidence shows that it was considered dangerous for a train to pass over the track with these jacks beneath the rails, and it was evidently for this reason that the order was given. It is true that deceased did not pull the jack from under the track, but he was in the act of endeavoring to do so when killed, and we do not see how this remark could have been prejudicial to defendant.

[14] Another remark objected to was made by Mr. Cullen, representing plaintiffs. It is not necessary, however, to set out the language used, nor comment upon it, as the