Boyd v. Missouri Pac. Ry. Co.

• Citation: 236 Mo. 54,139 S.W. 561
• Parties: BOYD v. MISSOURI PAC. RY. CO.
• Decision Date: 01 July 1911
• Court: United States State Supreme Court of Missouri

139 S.W. 561

236 Mo. 54

BOYD v. MISSOURI PAC. RY. CO.

Supreme Court of Missouri, Division No. 2.

July 1, 1911.

1. DEATH (§ 14) — ACTION FOR WRONGFUL DEATH — RAILROADS — INJURY TO PERSONS ON TRACKS — STATUTES — CONSTRUCTION — "CAR."

A hand car is a car within Rev. St. 1909, § 5425, providing that when a person shall die from an injury received through the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employé while running, conducting, or managing any locomotive, car, or train of cars, the railroad company should be subject to a certain penalty.

2. MASTER AND SERVANT (§ 258) — INJURIES TO SERVANT — ACTIONS — PETITION.

A petition which alleged that plaintiff was the widow of a section hand on defendant's railroad, and that, in charge of defendant's foreman, deceased and other section hands were running a hand car on defendant's railroad on their way to work, and that other men on a hand car followed them about 60 feet in the rear; that the morning was foggy and rainy, and the tracks were very slippery, the brakes of the car being old, and that though it was the duty of the foreman to know whether trains were coming, he started around a sharp and dangerous curve without stopping to listen or to send a man ahead to see if a train was approaching; that when partly around the curve, a train, the presence of which the foreman should have discovered, was seen approaching at about 30 miles an hour, and that in the haste to remove the hand cars from the track, deceased was thrown down and run over by the train — states a cause of action, being broad enough to cover plaintiff's claim that the failure of the foreman to stop the hand car and listen or send a man ahead was negligence.

3. MASTER AND SERVANT (§ 213) — INJURIES TO SERVANT — ASSUMPTION OF RISK.

A section hand going to work upon a hand car, which was run under the direction of the railroad company's foreman, does not assume the risk of injury from approaching trains.

4. MASTER AND SERVANT (§ 281) — INJURIES TO SERVANT — ACTIONS — EVIDENCE — CONTRIBUTORY NEGLIGENCE.

In an action by a wife for the death of her husband, a railroad laborer who was run over by a train, evidence held not to show that deceased was guilty of contributory negligence.

5. DEATH (§ 86) — ACTIONS FOR DEATH — RAILROADS — STATUTE — CONSTRUCTION.

Under Rev. St. 1899, § 2864 (Rev. St. 1909, § 5425), providing that when a person shall die from an injury received through the negligence of any person running a locomotive, car, etc., the owner of the vehicle shall forfeit the sum of $5,000, to be sued for first by the husband or wife of the deceased, as amended by Laws 1905, p. 135, which changed the statute so as to read "shall forfeit and pay as a penalty a sum of not less than $2,000, and not exceeding $10,000 in the discretion of the jury," in a wife's suit for the wrongful death of her husband, the jury may consider, not only the negligence of the railroad company, but also the pecuniary loss to plaintiff, in computing which they may consider not only the value of the support which he would have given her but any additional burden cast upon her for the support of her minor children, for the statute is remedial as well as penal.

6. APPEAL AND ERROR (§ 882) — RIGHT OF REVIEW — PERSONS ENTITLED.

A party is not bound by the law of requested instruction when it was refused.

7. DEATH (§ 85) — ACTIONS FOR DEATH — RAILROADS — STATUTE — CONSTRUCTION.

Under Rev. St. 1909, § 5425, providing for actions for deaths caused by the negligent operation of trains and cars, the jury, where a widow is suing for the wrongful death of her husband, is not, in computing the widow's damages, restricted wholly to the actual earning capacity of the deceased.

8. MASTER AND SERVANT (§ 293) — INJURIES TO SERVANT — ACTIONS — INSTRUCTIONS.

In an action by a widow for the wrongful death of her husband, a sectionman, and who was killed on his way to work on a hand car, an instruction that it was admitted that deceased was the husband of the plaintiff and a section hand on defendant's road, and was killed on the date charged; that there was a heavy fog at the place where he was killed; and that M. was defendant's section foreman in charge of deceased; and that if they should find that deceased, while operating a hand car on defendant's railroad under the superintendence of M., whose duty it was to see that the car did not come into collision with any train, was killed as a result of such a collision, etc. — was too involved, and should, after the statement of admitted facts, have told the jury that if they found that going around a curve in a heavy fog without stopping to listen or sending a man forward to see if a train was coming was negligence, they should find for plaintiff.

9. DAMAGES (§ 213) — INSTRUCTIONS — AGGRAVATING CIRCUMSTANCES.

In view of Rev. St. 1909, § 1796, providing that a petition must state separately the amount of such exemplary damages as are to be recovered, and that the amount of such damages shall be separately stated in the verdict, the jury in an action for damages should not be instructed to take aggravating circumstances into consideration, save where exemplary damages are allowed.

Appeal from Circuit Court, Barton County; J. B. Johnson, Judge.

Action by Jennie Boyd against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action brought in the circuit court of Barton county, on November 29 1905, under section 5425, Revised Statutes, on account of the death on July 29, 1905 plaintiff's husband, Charles J. Boyd, while he was one of a special gang of laborers on a hand car going to their work of surfacing the roadbed of defendant's railroad. There was a trial September 19 and 20, 1906, resulting in a verdict for plaintiff for $6,000, and defendant has perfected its appeal. The petition is as follows:

"Plaintiff states that on the ______ day of ______, 18__, she was lawfully married to Charles J. Boyd, deceased, late of Barton county, Missouri, and at the times hereinafter mentioned she was the lawful wife, and is now the widow, of said deceased, Charles J. Boyd. Plaintiff states that the defendant now is, and at all times hereinafter mentioned, was a railway corporation, duly organized and existing under and by virtue of the laws of the state of Missouri; that defendant owns and controls and operates a line of railroad, running through the counties of Jackson, Cass, Bates, Vernon, and Barton in the state of Missouri, and particularly through and between the town of Nassau in Vernon county, Missouri, and the town of Liberal in Barton county, Missouri. Plaintiff states that on or about the 29th day of July, 1905, the said Charles J. Boyd, husband of plaintiff, being an employé of the defendant as a section hand, was engaged with others in running and operating a hand car on defendant's said railroad in going to the place where they were engaged at work, and other sectionmen were on a hand car following the said hand car upon which said Charles J. Boyd was, as aforesaid, at a distance of about 60 feet; that said hand cars were under the superintendence and control of one L. Mead, the section foreman, with authority over the said Charles J. Boyd and the other sectionmen in running and operating said hand cars, and who controlled the movements of said hand cars as the agent of defendant; that at the time of the running and operating said hand cars by the said foreman and sectionmen as aforesaid, there was a very heavy fog, which prevented a person seeing a greater distance than about 180 feet, and the rails of said railroad were very wet, slick, and slippery, and the brakes on said hand car were old and out of repair, which the said Mead well knew, or by reasonable care could have known, and which said brakes on said hand cars would not work; that at a point about one and three-fourths miles north of the said town of Liberal there is a sharp curve in the railroad track of defendant; that it was the duty of said Mead to see that the rear hand car was not run in such close proximity to the front hand car, on which the said Charles J. Boyd was, so as to endanger the men riding thereon, and that it was the duty of said Mead to see that the said hand cars were not run upon the railroad track so as to come in collision with any train running on said railroad, and it was the duty of said Mead to so inform himself as to the movements of trains on said railroad track, that said hand cars should not be run so as to conflict with any such trains; that it was the duty of said Mead, before entering said curve, to discover whether or not a train was coming thereon. But the said Mead on the 29th day of July, 1905, being then and there in charge of said hand cars as aforesaid, and the said Charles J. Boyd, being engaged in running the front hand car aforesaid under the superintendence, control, and management of him, the said Mead, the said Mead did run, operate, and manage the said front hand car so carelessly, negligently, recklessly, and unskillfully on said railroad northward from the said town of Liberal on the time of a train, which the said Mead then and there knew or ought to have known was approaching from the north, and which the said Mead then and there knew or ought to have known was liable to collide with the said hand car going north, and the said Mead carelessly, negligently, recklessly, and unskillfully caused and permitted said rear hand car to follow the front hand car at a distance of about 60 feet, and carelessly, negligently, recklessly, and unskillfully failed to discover whether or not a train was coming before entering said sharp curve aforesaid with the hand cars aforesaid; that at a point about one and three-fourths miles from the said town of Liberal, and just after entering the sharp curve aforesaid, an engine and train of cars owned and operated by the...