48 F. 57 | 8th Cir. | 1891
In the month of April, 1890, a freight train was wrecked at or near Salt river, in Macon county, Mo., on a line of railroad owned and operated by the plaintiff in error. In the evening of the same day a large force of men was assembled at the wreck for the purpose of clearing the track and repairing it as speedily as possible. These men were employes of the company, of various occupations, collected from the line of the road. It was not the practice of the company to keep men for the business of removing wrecks, but in such an emergency men were called from all branches of the service as occasion might demand. For the most part they were section-men, and with them came the division superintendent of the road, William E. Costello, the road-master, Charles A. Lehman, and the train-master, William B. Scott. It is not clear whether any of these officers had general supervision of the entire force and of all the work to be done at that time and place; and, in the view w'o take of the case, it is not important to determine that question. It is enough to note the fact, clearly established by the evidence, that in repairing the track, or reconstructing it in a manner to be presently noticed, the work was under the supervision of the road-master, Charles A. Lehman, who was present and attending to that duty. Circumstances were not favorable to the work in hand. Rain had been falling for several days, and was still falling, and the ground was very wet, soft, and muddy. The work could not be-completed in daylight, and it was necessary to carry it on through the night, with the aid of lanterns and bonfires, as might be possible under a wet sky. The place of the wreck was a high embankment or fill, 20 feet or more above the level of the adjacent land, and the borrow-pits below held more or less water. The width of the embankment was not much greater than the track, so that there was not much room for building a temporary track around the wreckage, or removing the old track to accomplish the same thing. The general course
Whether the north rail was first laid lower than the other, or sunk in the mud under the wrecking-car, if in fact it was lower than the other immediately after the casualty, it was obviously a fault in construction. The track was straight at that point, and therefore there was no reason for placing one rail higher than the other, as is usual on curves. It is to be observed, also, that the new track was not intended for temporary use in removing the wreckage only, but was for the general traffic of the road during the following day, and j>erhaps longer. Under all the circumstances prevailing at the time, the duty of the company to restore the track as speedily as possible, and for that purpose to go on with the work at night, through rain and mud, no one will contend that the company should be held to the same care in building its track as would be demanded under more favorable conditions. Nevertheless, some care was necessary to make a track adequate to the support and safe passage of trains, not alone in the interest of the public, who were using the road extensively, but also in the interest of the employes of the company who should be sent over the road. With certain well-understood qualifications, which it is not necessary to define in this connection, a servant is as fully entitled to a safe track as any traveler over the road. .If the track was in fact defective, and by the use of more ties or in any other way it could have been made safe for the wrecking-car, the duty of the company in that regard is clear and unmistakable. It seems to be conceded that the north rail, being lower than the other, would operate to deflect the load on the derrick in the manner and to the extent whidh actually occurred; so that it was a material question for the jury to consider whethei the north rail of the new track was first placed lower than the south rail, or, not being so placed, whether it sunk under the wrecking-ear, and thus caused the load on the derrick to swing to the north and overturn the car.
But, if this be allowed, we are urged to declare that the new track was laid by fellow-servants of Wilson, for whose negligent acts the company cannot be charged at the suit of one of their number. But our vision is net so limited, since we are bound to find the directing mind of the company, and that is a matter of no embarrassment in this instance.
The circuit court did not err in declining to instruct for plaintiff in error, or in submitting to the jury upon the evidence the issue as to the condition of the railway track as the probable cause of Wilson’s death.
As to the issue upon the use of the wrecking-car, the writer holds that .it was improperly submitted to the jury, and that the fifth instruction asked by plaintiff in error ought to have been given by the court. But this court is unable lo agree on this proposition, and declines to express an opinion upon it.
Two other questions, affecting the measure of damages, arc presented in the record, upon which we have sought only to ascertain what construction has been given to the statute by the supreme court of Missouri. The first arises out of the admission of testimony as to the number and ages of Mrs. Wilson’s children. When it was learned that the children were of an ago to support themselves, the testimony was abandoned by counsel for plaintiff below. But it was not withdrawn from the jury, and counsel for plaintiff in error insist that it had weight with that body. If so, the supreme court of the state has held that, in an action by a wife for the death of her husband, such evidence may be received, for the reason that on the death of the husband she becomes responsible for the care of the children. Tetherow v. Railway Co., 98 Mo. 84, 11 S. W. Rep. 310. And this must be accepted in federal courts as the meaning of the statute on which the action is based.
Error is also assigned on the charge of the court that the jury might consider the loss which defendant in error sustained in consequence of being deprived of her husband’s society. In two eases reported from the supreme court of Missouri before this action was tried, it was held that such damages were properly allowed in an action by a husband for an injury to his wife. Blair v. Railroad Co., 89 Mo. 335, 1 S. W. Rep. 867; Furnish v. Railway Co., 102 Mo. 669, 15 S. W. Rep. 315. In the absence of other expression from that court, it might well he assumed that the same rule would obtain in an action on the statute by husband or wife. Since this case was tried, however, an opinion of that court has been published which distinctly declares that, in an action on the statute by a wife for the death of her husband, nothing shall be allowed for loss of society. Schaub v. Railway Co., (Mo. Sup.) 16 S. W. Rep. 924.
As already pointed out. the earlier cases were common-law actions for injuries to the wife, and it is not to be assumed that the last case is in