Appeal from Circuit Court, Saline County; A. M. Duffie, Judge.
BATTLE, J.
On the 23d day of May, 1902, L. H. Hickey, in his lifetime, commenced an
action against the Choctaw, Oklahoma & Gulf Railroad Company, in the Garland circuit court. Plaintiff stated his cause of action as follows:
"On the 9th day of January, 1902, plaintiff was on one of defendant's trains on a through ticket from Memphis, in the state of Tennessee, to the city of Hot Springs, in Arkansas, and while such a passenger the train upon which he was traveling stopped at Little Rock, Ark., for the purpose of allowing the passengers on the train to procure dinner.
"That plaintiff left said train for the purpose of procuring dinner, and upon his return to said train, and while in the act of boarding the same, while upon the first step leading into the coach on said train, the agents, employés, and servants of defendants in charge of and operating said train wrongfully, negligently, unlawfully, and carelessly caused said train to move by a sudden jerk, which caused plaintiff to fall from said step violently to the ground and underneath said train; that plaintiff at the time was in the exercise of due care, and he was thrown or caused to fall from said step before he was able to get upon said car in the manner and form as aforesaid, by the wrongful, careless, and negligent acts of the agents and employés of defendant in starting said train; that by said fall the plaintiff sustained severe personal injuries to his back and other portions of his body; that in falling he in some way rolled under the edge of the train as it was moving along, in such position that he could not get out from under said car while the same was in motion; that some bystander hallooed to him to lay down close to the ground if he wished to save his life, which injunction he obeyed, and the entire train passed over him in that position; that plaintiff's position was such that, if he moved in an effort to get out, some portion of the car would have caught his clothing, which would have evidently dragged him to death; that plaintiff realized this fact and remained in that position under the edge of the cars until the entire train passed over him; that plaintiff, during the time that said train was thus passing over him, expected every minute to be caught by some portion of the car and to be killed, and during such time he suffered untold mental agony and pain; that by reason of the wrongful, careless, and negligent acts of the defendant as aforesaid plaintiff has been damaged in the sum of $10,000."
The defendant answered and denied the allegations of the complaint. On the 20th of November, 1903, the issues in the case were tried in the Garland circuit court and a verdict was rendered in favor of the plaintiff, which was set aside on a motion for a new trial. Subsequently the plaintiff died, and the action was revived in the name of D. J. Hickey, as administrator of L. H. Hickey, deceased, and he filed an amendment to the complaint as follows:
"That the said L. H. Hickey died in the city of Lexington, and county of Fayette, in the state of Kentucky, on the 7th day of December, 1903, and that this plaintiff, D. J. Hickey, was duly appointed administrator of the estate of the said L. H. Hickey by the county court of said Fayette county, in the state of Kentucky, on the 21st day of December, 1903, a day of the December term, 1903, of said county court, and that he is now the duly appointed, qualified, and acting administrator of the estate of the said L. H. Hickey, deceased; that the said L. H. Hickey left surviving him at his death, Ada Hickey, as a widow, and ____ Hickey, his son and only heir; that the said ____ Hickey at the time of the death of the said L. H. Hickey was five years old; that the death of the said L. H. Hickey resulted from and was caused by the injuries received by him in falling from the train on the 9th day of January, 1902, in the manner as set out and stated in the complaint herein, and resulted by reason of the wrongful and negligent acts and conduct of the defendants and its employés, as stated in said complaint; that the death of the said L. H. Hickey was produced and brought about by the negligent acts and conduct of the defendant and its employés as set out in said complaint; that after receiving said injuries the said L. H. Hickey continued to suffer excruciating pain, both of body and mind, as stated in said complaint and the amendment thereto filed on November 19, 1903, until the 7th day of December, 1903, when he died.
"That in the month of May, 1902, soon after said injuries were received by the said L. H. Hickey, he became paralyzed therefrom and totally blind, as stated in his said amended complaint filed November 19, 1903, and remained in that helpless condition, suffering and languishing, until the time of his death; that during the lifetime of the said L. H. Hickey, and prior to the receipt of said injuries, he was an active, industrious man, a devoted father and husband; that he provided for his family a comfortable home and furnished them with all things necessary for their pleasure and happiness in life; that he was a man of good moral habits, and devoted all of his earnings to the benefit of his said wife and child; that by the death of said L. H. Hickey the said widow and child have been damaged in the sum of $10,000.
"Wherefore, plaintiff prays judgment against the defendant herein in the sum of $10,000 as damages resulting to the estate of the said L. H. Hickey, and the further sum of $10,000 as damages for the benefit of the said widow and child."
The defendant moved to strike the amendment from the files of the court, because it sets up a cause of action, which cannot be joined with that in the original complaint. On the 19th day of June, 1905, this action was taken by change of venue, on motion of the defendant, to Saline county. On the 12th of September, 1905, the motion to strike amended
complaint from the files was overruled by the Saline circuit court, and the defendant saved exceptions. An answer to the amendment to the complaint was thereupon filed by the defendant, specifically denying each allegation thereof.
Evidence was adduced by the plaintiff in the trial in the action which tended to prove, substantially, the allegations in his complaint; and the defendant adduced evidence to prove the contrary.
The court instructed the jury, over the objections of the defendant, at the request of the plaintiff, in part, as follows:
"(6) If you find from the evidence that the deceased, Hickey, was a passenger on defendant's train from Memphis to Hot Springs, and while such passenger he left the train at Little Rock for the purpose of getting dinner at the place provided for passengers to get meals, and for changing cars for Hot Springs, then it was the duty of the employés of defendant in charge of its Hot Springs train to exercise reasonable care in holding said train a reasonable time for said Hickey to board said train after announcing that the train was ready to depart, and if you find from the evidence that said employés failed to hold said train a reasonable time for said Hickey to board it after announcing all aboard, but negligently started said train while said Hickey was in the act of boarding the same, and was on the first or second step leading to the platform of one of the passenger coaches, and in a position likely to be injured, and that he was thrown or caused to fall from said train by such starting, and was injured thereby, you will...
