*1 1236 objection
Also an tbe tbe was made intervenor because re spondents are Catholics, Baptist whereas she is a tbe father and boy belonged mother of the It to the church. Christian was shown also one of the father’s his Baptist sisters is brother Mac any is a Methodist. (obviously) Neither father of his nor side family objected respondents’ religion. Intervenor invokes 392, forbidding appointment guardians religious Sec. of a faith if parents, person different from that of .the can another suitable be minor, being proper age (14 years), procured, unless shall so applying juvenile Likewise, cited, Sec. 9691 is choose. courts committing the than public provides children to other institutions. It place person them with an court shall endeavor association religious parents, practicable. belief as so far as same construing cases appear to be decided this section. But it There puts practicalities 392 temporal been held Sec. consid has again surviving of the last parent And here wishes erations first. ^ Voullaire, v. great weight. 602; Voullaire Mo. v Brewer seq., 685, et W. App. seq.; Mo. S. 687 et Cary, 148 (2d)W. (Mo. 64, 69(6). 180 S. App.), v. Cook Parks record, and the decree the circuit no error court We find All concur. is affirmed. therefore of Fred Bolino, Deceased, Estate Administrator Bolino,
Alto Appellant. 40078. Company, Railroad Illinois Terminal No. (2d) 352. W. S. One, March 1947. Division *2 Gilbert, Anderson, Roscoe Anderson and Cullen Coil for appellant; Wolfort, Allen (cid:127)& Bierman of counsel. *3 Miller Louis TS. and Miller Landau and B. Sherman Landau
respondent. *4 Lia- Employers’ the Federal under BRADLEY, C. Action damages because seq.) to recover bility (45 A., Sec. 53 et Act U. S. C. suit The Bolino, of defendant. an'employee of Fred the death for deceased by (the father) of brought was the administrator and mother. of the father benefit negligence (res alleged general and was in two counts petition The $15,000 for damages in the sum for asked ipsa). The first count $85,000 for count asked suffering, the second and pain and conscious a the answer here far concerned So as loss. pecuniary for the first count defendant on found for jury general The denial. Judgment $13,500. sum of count in the plaintiff for second appealed. accordingly defendant went Defendant (appellant) assigns error on re- the refusal its quested B, instructions D, and G; giving .6; on the of instruction on modified instruction 4; and alleged an excessive verdict. Deceased, 33 years old, was the unmarried son of admin-
istrator and his wife, Frederica, and was killed in the derailment of pushcar by drawn a motorcar about 9 a. m. on December 1945, about three-quarters River, Illinois, of a mile north of Wood and it is that, conceded at the time, en- defendant were gaged in the furtherance of interstate commerce. Deceased was a bond welder and at welding the time derailment, and his he helper, Lewis Votrain, riding pushcar. on the The motorcar operated foreman, Gilbreath, defendant’s section Yal all were way on their previously to a designated point track where a bond or bonds were to be welded on. Cecil Rowlands was a welder and deceased was under Rowlands. Prior to December 29th Rowlands had directed replace deceased to bonds necessary where on the track where the derailment occurred. Ordinarily the carry welders welding equip- used their truck own ment and get to the places where welded, bonds were to be sometimes a get sufficiently truck could not near to some of places, and that seems to have been the situation December 29th. > Anyway, on 29th, December roadmaster, Winkler, defendant’s E.G. directed Gilbreath to use the motorcar and take deceased helper, his welding with their equipment, places to the where bond welding done, was to be and Gilbreath did so.
Bonds are woven copper wire; strands of small are round and are from one half inch diameter, vary length to one inch in from inches to 30 end,'for yielding inches. purposes, Over each is a tri- angular and flat piece copper length. some 3 like of solid inches ends, outside, bonds are welded to the rail and transmit electric coupled current from one rail to the next. The coupling the motorcar a round iron rod inches in about 1% length. coupling diameter and rod at the feet separated ends shape into a flat clevis-like with round holes therein a metal coupling pins. for On the motorcar flange-like flange-like containing round holes over which attachment ac- piece coupling placed rod were so the clevis-like ends of Ordinary spikes, rail without cotter coupling pins. commodate the at the coupling pins at the motorcar and keys, both were used pushcar. *5 length; and 7 or 8 feet in 5 6 in width
The motorcar was or feet floor; guard boards were height; in had wood or 3 feet about 2% floor, in the one at the left holes There were two at sides or ends. 2 and about feet from the rear” the “middle of and about rear one and 2 8 inches width about holes were about the These rear. Gilbreath, foreman and section men, The three length. 18 inches
1243 the operator, deceased, helper Votrain, motorcar out and his started place morning Hartford, Illinois, of derailment south of the the from the derailment, bonding equipment of and was loaded on the 2 pushcar empty drums, at 3 oil barrels or Hartford. Gilbreath had fifty Federal, gallons gallons, and 30 to refill at one that he wanted Hartford, upright front north of and these were loaded across the A piece of pushcar, end of the one at each corner and one between.- and in width welding equipment, resistor, termed a 16 to inches welding length, 2 feet in was loaded near the left rear. Other about and 25 or consisting welding rods, welding pins, poles, equipment crosswise, loaded between the resistor welding bonds, placed were welding helper “right behind the barrels barrels; the the said riding Deceased, derailment, at the time of the pocket.” in that right hand squatting position with a hand on a barrel on the in a directly standing behind deceased. Votrain was pushcar. side traveling per pushcar were or miles The motorcar level, slight dry, straight except for some The track was hour. unevenness. I “The first knew there was
Votrain, helper, testified: welder I accident, just stop. a an there was sudden going to be thrown. thing the next of the face and air; hit me on the side the a barrel right Q. hand side. Where were pushcar I was off I knew ? was after the accident pushcar where the lying with reference to and on the east side say a little bit to the north A. I would '. Q. Q. the track? A. Yes. On the east side of track. words, go didn’t In other bit to the north. A little how No, A. I did not see you did, did it? sir. north as far push- north of about 30 feet stopped The motorcar thrown. (cid:127) predicament, I his (deceased) as soon as saw Fred got back to I car. my shoulder and held little bit with back a pushed west) (to the-track, his head lying crosswise up. He was head his ’’' Bolino was not conscious when is that The inference rail. shortly thereafter. him; he died got to Votrain deposition, or a deposition and read Gilbreath’s took Plaintiff as a witness. called Gilbreath Defendant thereof, in evidence. part given at triál evidence Gil- from his deposition From the follows; may here, be stated as necessary far as evidence, so breath’s thing per hour and the first 20 miles going north “I was jar a or heard a noise or attention, I either felt my attracted around, when I looked around to look caused me something that they rails; were off to off the pushcar wheels the front gear ap- out of immediately threw the motorcar I west, and Bolino around second time' I then looked brakes. plied Bolino leave the I did see pushcar. under (deceased) not around; I the first time looked he-was pushcar, 8 or 10 I to Bolino he was got pushcar. When in front fell he *6 feet behind pushcar; the place head; had a bad in the back of his all four pushcar wheels of the the track. The east then off two against wheels were the west rail and the other the out- two were on track, side of the west.
“When I first looked push- back and saw the front wheels of the track, car off the the pushcar motorcar was still connected' with the coupling the rod; I when looked back it the second time was connected; spike still so was still in there. But when the motor- stopped car the two cars were not coupling connected. The rod had then come loose from the motorcar. When it came loose from the dropped it caught ties; motorcar down and on the turned back under pushcar pushcar; and broke pulled loose from the the bolts pushcar out of wood of the and was then disconnected from coupling very both. rod was bent but little. I From the time pushcar saw the front wheels of the off the track until the motorcar stop, came to a the motorcar 40 feet, push- traveled close to and the car traveled about 35 feet.” Winkler,
E.C. defendant’s roadmaster who directed use of the pushcar motorcar, Floyd Johnson, machinist, defendant’s p.2 day derailment, of the made an examination of m. pushcar generally. present. scene Gilbreath was also flanges No defects were found the track or in the wheel inor alignments wheel pushcar. “biggest majority” equipment pushcar that was on the west side of track. No marks were found on the rails to indicate left where the track, but Winkler said that marks on the ties showed where rail”; the wheels “went over the that these marks extended north 25 feet, coupling slightly or 30 rod was bent. Johnson midway a found bond between the rails and 8 or 10 feet south of place where the then rested on the west side of the push- track. Johnson said that the vibration of the motorcar and car, traveling “rough spots spots” when over the rails’ and low would loosely out, spikes, resting couplings, not work cause at the key pin that a “in a coupling he said cotter the bottom of se- place out,” spike cure it in so it won’t work and he that a said likely coupling pin jar pin would more out from a sudden than a come even, regular that had an diameter. theory plaintiff’s spike coupling,
It is that the at the motorcar be- loosely square-like key resting shape its cause of without vibration, coupling round holes and because worked out and that the caught thereby thereupon dropped down, rod in the ties and caused derailment, slight unevenness of and Gilbreath said there was some going per hour there would be some the rails and 15 or miles theory is that bumping and vibration. hand defendant’s On other evidence, in some the bond found between the rails and way worked forward on floor of the the barrel thereby rail and the left front and fell over the end and onto the front falling on derailment, and that such a bond caused the Gilbreath said says that the rail could have caused the derailment. And defendant loading pushcar the responsibility the entire for the manner of *7 welding equipment, including bonds, deceased. was on B a sole instruction
Defendant’s refused instruction was cause had the sole and hypotheses and was based on the that deceased exclu loading welding equipment pushcar, on the control of the of the sive welding .equip it be with the it or caused loaded and loaded per equipment was loaded in such manner as to ment, that the did at end and that a bond so welding bond to roll off mit a front thereby derailed, pushcar that was the rail and off and onto roll death, cause of the proximate was the that such derailment causing equipment be loaded the on deceased, loading in or if that an prudence care and as or exercise such pushcar, failed to under person have used dinarily prudent would careful negligent, and if found that circumstances, then deceased was same derailment and death and cause of the negligence the sole was such any in other respect, submitted defendant in negligence of the that death, then cause the instructions, caused or contributed inbe favor of the the verdict would to recover was not entitled defendant.
Plaintiff, brief, says in the that B properly instruction was refused because there was no substantial evidence that the bond found between the rails fell pushcar, from the derailment, or caused the or that deceased had the sole and loading bonding exclusive control of equipment pushcar, loading arrangement or that welding equipment improper customary or was other than the way, hypothesize and that the instruction did not facts which would negative negligence require finding defendant’s in that it failed to a arranged the bonds could have been on the in a safer position considering in the holes the floor and the absence of side guard and end boards furnished defendant.
Gilbreath, operator motorcar, testifying im- to conditions derailment, mediately practically after said that the bonds all west and that on the were thrown off to the those not so “Q. any lying Were of them thrown were on the front end. between No, were; A. I think I think rails that saw? don’t there the. they any Q. I didn’t notice inside. Was the were on the outside. any stop? Well, it A. direction when came to pushcar tilted the fill there. just slope of the shoulder of nothing more than sloping it toward? A. To west. Q. Well, which direction was moved deceased from derailment, and Votrain After the Gilbreath clearance for enough west to furnish track; pushcar far moved the River to call an am- to Wood go back on the motorcar Gilbreath at about 9:30 A. ambulance arrived from Alton. m., bulance about 30 minutes after tbe employees derailment. tbe am- Some company bulance came with these, Gilbreath, tbe ambulance and with who had returned from River, placed Wood the ambulance. The bond that Johnson found was in evidence and left here when argued. the case slight It appears new, to be and there is a dent about dent, lengthwise bond, inches from one end. % about of an length inch in and about of an inch in width. 3/16 Three of the copper small pressed slightly wires are down and one slightly, less but perceptibly. diameter, The bond is inch in about % length easily 18 inches in and is flexible. There no evidence at all and no reasonable that a for- inference bond or bonds worked ward from their position crosswise somewhere behind the barrel occurred, left pushcar. sug- front corner of the is no If such still there gestion got by to how the bond the barrel to fall the front over pushcar. assuming, deciding, end of the And the purpose, but not equipment loading welding deceased had exclusive control pushcar, still there is no evidence reasonable inference that *8 equipment, including improper the in an man- bonds, the was loaded place pushcar.- Especially ner at an the is this unsafe on true the in the floor are taken into considera- when holes of the improper loading tion. And made no defendant effort show suggest have been loaded in pushcar, but does the bonds could that weight troughs the on There was the motorcar. no evidence the only weight of pushcar with load. The evidence that its came in in- weight pounds and evidence the of deceased was 230 that condition, etc. deceased. physical connection with the of bond not of itself be sufficient our dent on the would The small pushcar passed wheel the over opinion to raise the inference that a of when Gilbreath it, place this was at the where or that bond found. just derailment. ambulance crew the scene after looked over welding another, Votrain, the least other than had there and at been away taken in the ambulance Yotrain were helper. Deceased and River, then back Wood Gilbreath walked shortly 9:30, after scene, at the appear next to so one at the Those .leaving no scene. p.2 Gilbreath, around Winkler, Johnson shown, were far as m., any think there was substantial We do not bond was found. when the B; cause instruction to base defendant’s upon which evidence .sole conjecture to show speculation and than mere no more there place found was at the where the rails found between bond that the over front end of bond fell or that this left the all scene when over it pushcar passed a wheel of or that properly B was refused. thereby derailed, hence instruction Ry. Co., 682, Mo. 348 Terminal Electric Louis al. St. et Seimers 135, cited. cases there 130, l. c. (2d) W. S. 155 proof burdeU of D a short refused instruction Defendant’s proof plaintiff, was on burden of that the jury telling instruction plaintiff contends that reversible by error was not committed re- fusing it jury because two other instructions told the that the burden proof plaintiff. given of was on hypothe- Plaintiff’s instruction No. 1 sized the facts under ipsa given the res rule. Plaintiff’s instruction No. jury they told the that if greater weight found “from the credible evidence” 1, the facts as submitted instruction No. “then has met and proof required carried the burden of of him under the law the instructions herein.” Instruction No. jury told the that the mere fact that Fred Bolino was killed while employed by defendant, and the mere fact that his had administrator death, for the sued recover were of themselves no evidence of de- negligence plaintiff by preponderance fendant’s “unless negligence credible evidence this case has established part you of the defendant as detailed described to in other instruc- ’’ given tions the court. says given Plaintiff that to have defendant’s instruction D would repetitious proof, have been on the burden of and therefore would subject, citing emphasized (Mo. Miller v. Sup.), Williams plaintiff’s While (2d) 76 S. W. 355. instruction No. and instruction subject solely proof, yet of burden these, No. were not on jury instruction No. told the especially plaintiff’s the burden and that all that proof plaintiff, in- defendant’s refused 1943, p. 390, Laws code, provides: struction D did. Sec. new appeals, court, judg- or courts of shall not supreme “The reverse the any it court, unless shall believe that error ment of was committed materially affecting against appellant, such court merits We do not think refusal of instruction D the action.” mater- ially of the case. affected the merits together, part, assignments for the most consider
We giving plaintiff’s defendant’s instruction G and on refusal of in *9 damages. measure of 6 on the Defendant’s refused No. struction jury specifically have told the that G loss of com would instruction anguish damage, were not of and mental elements panionship Didricksen, 145, Am. R. v. 227 See Co. U. S. concedes. plaintiff so 456; al., v. Wheelock et 224, L. Ed. Truesdale 335 Mo. 57 33 S. Ct. says But 585, plain 1. c. 592. defendant that (2d)W. 924, 74 S. 6, without the limitation contained in No. instruction tiff’s instruction companionship award for loss of permitted have G, would Plaintiff denies this. Instruction directed that anguish. for mental 1, under instruction No. plaintiff which sub jury for found if the rule, ipsa plain and further found for the res facts under mitted you count, “then will award the such sum second on the tiff fairly reasonably from the evidence believe may find and as of Fred value, death, as of the date Bolino’s of cash represents parents of Fred as the said Bolino benefits pecuniary future such receive from Fred if expected to said Bolino might have reasonably he had not been killed.” goes jury Then instruction tell the on to that in arriving at the they might amount into awarded take consid- eration the age, health, earning power, among etc. of deceased, things mentioned were the “care, attention and assistance” that parents might reasonably expected deceased. is from It “care, this says attention and that authorized assistance” defendant award for companionship anguish. loss of and for mental Ry.
Jenkins v. App. Wabash Co., 438, (2d) Mo. 107 S. W. 204, Liability was under the Employers’ Federal Act recover for the death of a plaintiff. son The instruction the measure of damages was, effect, the same here. instruction as There the was phrased, pertinent here, care, so far as point “services, at- tention”, “care, instead of here. attention assistance” as One complaints in the was instruction Jenkins case that finding “it failed to pecuniary limit to the sustained.” loss approved appeals instruction was and certiorari court was Jenkins, 737, denied. See R. Co. 58 S. Wabash S.U. Ct. 139, argument jury 82 L. present Ed. 570. to the in the is case record, argument in the defendant, and’in able counsel for discuss- ing damages, plain “under made it that instructions of the parents anything court” not recover “for were entitled to their grief 6, or their In instruction No. plaintiff’s sorrow.” view of damages, measure of instruction G no more than a defendant’s cautionary which was for the sound discretion. instruction court’s 544, 446, (2d) 541, W. 1. c. and cases Zagata, Lewis v. 350 Mo. 166 S. al., 351 cited; I. & et Mo. there Morris v. E. DuPont DeNemours Co. there 39, 1. c. We do not think that (2d) 173 S. 42. W. mentioned, respects 6 in or in in instruction No. above error refusing instruction G. defendant’s No. plaintiff’s makes instruction
Also, point defendant says G. Defendant point not concern instruction which does jury to consider the permitted it bad because instruction there no evidence as to deceased when of the mother of health jury as and not before was not a witness her health. The mother being evidence as says that so absent such such, and defendant determining way her health.” jury had “the health, to her there and that was no was not a witness the mother It is true that the record that health, appear from but it would her evidence during counsel argument, and for at least room in the court she say parents present court that “the brief, in the plaintiff, jury.” argu In full view of the subject trial, throughout the “ record, plaintiff said, ... counsel in the ment, preserved there, and father mother who sit back woman man *10 that that absence of evidence as to not think do We . .” . deceased justify here, in the situation to a sufficient, is health mother’s snpra, again reversal. We here make reference to Sec.
new code. De giving
Was error in modified instruction 4? committed requested A, fendant “The court instructs instruction as follows: you you may directly although find that Fred Bolino’s death was that by negligence yet, by caused of the defendant contributed you unless further find and believe from the evidence that Alto Bolino, Bolino, Fred Bolino and Frederica the father mother of pecuniary as the them, or either of have sustained a loss of benefits Bolino, your Fred be in of result of the death of verdict will favor plaintiff’s petition.” the defendant as to count of gave A and No. 4. modified The court modified instruction it as As ‘‘ you you although that it reads follows: The court instructs as directly by may death caused or contrib- find that Fred Bolino’s yo%i negligence yet, the defendant unless uted to of find further Bolino, Alto Bolino and Frederica and believe from the evidence that Bolino, them, Fred or either of have sustained the father and mother of they reasonably might as have pecuniary a loss of such future benefits killed, Fred Bolino if he had not been expected to receive from said your plain- the defendant as to count verdict will be favor of (italics ours). petition” tiff’s says that that the modified instruction assumes
Defendant reasonably expected pecuniary benefits might have future parents killed. Instruction No. had he not been from the deceased clearly required finding as supra, damages, appears, as measure of pecuniary future parents as to expectancy reasonable fairly read, think the we modified instruction is benefits, and when may reasonably expected be considered they might have italicized as Dohring Kan under unless See hypothesized find. further Anyway, modified (2d)W. 943. when City Sup.), 81 S. (Mo. sas 6,No. there could be in connection with 4 is read No. instruction that the court jury got the notion that liklihood reasonable granted as they assume, it for could take them that to tell meant reasonably might expected parents says, defendant not think error was committed We do benefits. pecuniary future complained of. the modification supra, ? the verdict was appears, As excessive the verdict Is years age at the time of was 33 deceased $13,500, and respectively. were 60 and and mother father The his death. years 32.36 and that of deceased was expectancy years respectively. pay and 14.34 13.31 mother father day gross per and his $8.00 death was of his time at 29th, $2,338.10. December the his death 1945, up earnings “It inconceivable to us how a father says: brief Defendant years, is 13.83 and who average expectancy life whose mother respondent expect favorable to could most evidence under *11 only receive $80.00 a month, pecuniary by could sustain a loss reason of the death of the $6,000.00.” son excess of On the basis of per $80 up month and end of the mother’s expectancy, years, $11,777.60 13.31 would have been contributed. expectancy years father’s was 1.03 more than the mother’s. If he received the years contributions for the 1.03 on the basis of $80 per month, the sum $988.80, would be only or if he half received thereof after the expiration of the expectancy, mother’s the sum would be $480. The $11,777.60, and $12,737.60, the $988.80 make figured on the half of the $988.80, $12,257.60. the sum would be De- ceased did not live in the home of his father mother, but after day’s his work as a defendant, welder for he helped, about hours per day, doing the work farm; plowed, helped about father’s feed horses, cattle, sheep hogs. pe- These were of services cuniary value. Humphries, Illinois Central R. 459, Co. v. 174 Miss. 22, So. 102 A. L. R. 549. say financially
Counsel that the father was comfortable married, therefore, parents was to be could rea not sonably expected, killed, had deceased not been have received any pecuniary jury such sum for loss as the awarded. The evidence marriage the undertaker who conducted the funeral of woman, said, deceased. A he told him that in she deceased had shortly. tended to be married Counsel for moved to strike this, plaintiff said, did not because counsel for but the court rule ahead.” This and the evidence father’s financial condi “Go damages jury. primarily The amount of is tion were before jury’s Co., v. Missouri-Kansas-Texas R. 354 Mo. prerogative. Joice 568, 577, l. c. 161 A. L. R. 383. Counsel cite no (2d) 189 S. W. satisfactorily comparable here, situation find none ease and we money depreciated purchasing power of considering present Assn., (2d) 909, R. Mo. 193 S. W. Terminal [Francis that we hold that the verdict is believe should do not l. c. we 914] excessive. and it is so ordered. Dal- be affirmed should judgment GG., concur. Osdol, and Van ton foregoing opinion Bradley, C., adopted PER CURIAM:—The judges All the concur. the court. opinion