Gentry v. Wabash R. Co.

• Decision Date: 08 April 1913
• Parties: GENTRY et al. v. WABASH R. CO.
• Court: Missouri Court of Appeals

156 S.W. 27

172 Mo. App. 638

GENTRY et al. v. WABASH R. CO.

St. Louis Court of Appeals. Missouri.

April 8, 1913.

Rehearing Denied April 22, 1913.

1. MASTER AND SERVANT (§ 284*) — INJURIES — CONTRIBUTORY NEGLIGENCE — JURY QUESTION.

Evidence in an action for the death of a sectionman by having a track jack knock against him while attempting to take it from the track before an approaching train held to make it a jury question whether decedent's act in grabbing the jack was pursuant to his foreman's order.

2. MASTER AND SERVANT (§ 289*) — INJURIES — JURY QUESTION — CONTRIBUTORY NEGLIGENCE.

Evidence in an action against a railroad company for the death of a section hand while attempting to grab a track jack from the track before an approaching train held to make it a jury question whether decedent was negligent.

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.

4. MASTER AND SERVANT (§ 289*) — INJURIES — JURY QUESTION — CONTRIBUTORY NEGLIGENCE.

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.

5. MASTER AND SERVANT (§ 296*) — INJURIES — INSTRUCTIONS — CONTRIBUTORY NEGLIGENCE.

In an action against railroad company for the death of a section hand while attempting to grape 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.

6. TRIAL (§ 251*) — INSTRUCTIONS — APPLICABILITY TO EVIDENCE.

Where the issue in an action for the death of a section hand by being struck while attempting to remove a jack from the track before an approaching train was upon the negligence of decedent's foreman in ordering him to remove the jack, a requested charge that the train employ és were not bound to notify decedent of its approach, and that it was his duty to keep out of the train's way, was properly refused as inapplicable.

7. TRIAL (§ 260*) — INSTRUCTIONS — REQUEST.

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

8. NEW TRIAL (§ 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.

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.

10. DEATH (§ 104*) — ACTIONS — INSTRUCTIONS.

An instruction in a child's action for a parent's wrongful death that the jury should consider only the loss of its father's "support and maintenance" from the time of his death during the child's minority naturally included the consideration of the care, education, etc., of the child by the parent.

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.

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.

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.

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.

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

A remark of plaintiff's counsel in argument in an action for a section hand's death while 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

absence of signals was not a ground of negligence relied on.

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.

ALLEN, J.

This is an action for death under section 5426, Rev. Stat. 1909. The deceased, one Curtis Gentry, was struck and killed by one of defendant's trains while working as a section hand in the employ of defendant. He left no wife surviving him, and the action is by his minor children, brought by their guardian and curator. Plaintiffs recovered, and defendant prosecutes the appeal.

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 approaching 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 opposite 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 ahead of deceased, "tripped" it, and stepped 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 out." Just as Bybee let loose of the jack, deceased grabbed it, and tried to get it out. According to the testimony of Bybee, when he released his hold upon the jack and jumped, deceased was in the very act of grabbing it; and the witness testified that what they did at this time was done very hurriedly—as the witness said, "In the snap 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 ...