*1 Brown Island v. Rock question. It this fact that these tribunals derived their name of courts of parchment record. In modern courts roll is discarded, but their judicial records still retain their character as a ‘high memorial supereminent authority.’ of and The court hears arguments upon records; its records; upon by it decides its it acts adjournments openings its records: its and sessions and can be proved by records; judgments only its only its can be evidenced its a word, vitality. records—in its records it has no without The acts of a of known court record alone and cannot are records testimony.” parol be established judge County, speaking by through
The circuit of Franklin and only, legally appoint could plaintiff records of the circuit court Officer, copy Probation and of the office of the said said order of county incompetent court was inadmissible and as proof of his appointment to said office. Reversible error was committed admission in said record. evidence of duly having appointed, and,
The been as he was jure county, not a suit for salary de officer defendant this cannot be maintained. plaintiff having proof, defendant’s
The failed demurrer to therefore, follows, the evidence have been sustained. should judgment should the circuit court be reversed. It is so ordered. except concur, J., All absent. Graves, Chicago
Hazel Brown, Administratrix Estate Brown, of Harold Railway Company, Appellant. Rock Island & Pacific One, July 30, Division 1. engine riding LICENSEE: Student Fireman. A student fireman train, permit company an interstate under di- engineers, qualifying
rected to all fireman, sub- ject engineer fireman, orders under the control riding engaged helping engine, while stoker, so to fire the run the shovel pans cinders', licensee, employee, coal and clean the not mere but an although pecuniary pay he receives no for his services. Where com- right pany retains the 'to direct the manner in which he shall the work do assigned engineer to him and the and fireman him instruct how it done, assigned orders, and he does work to him in be obedience their company him the relation between and the is that of master and servant. Negligence: Looking 2. PROXIMATE CAUSE: Deceased’s Own Back for Range imperative makes Train: it Vision. There rule of law which negligence rightfully walking upon trainman a railroad for a track years way, during public pedestrian as a for two has used eight minutes, back, period entered freight if the track was clear when look six or got off the fireman it. freight had stopped train ahead when another had been train which Term, Missouri, Court of Vol. badly drifting leaking stalled and shaker because of a main and throttles trouble, away, yard feet started to walk to the office terminal report. Escaping crippled engine make wester- steam from ahead drifted ly long, near-by cut, deep across a feet track and to the west bank of *2 through parallel passed, which the aside to them to turn tracks caused upon near-by escaping parallel track, pass walk the the in order to around steam, enveloped by emerging and while of steam or volume they opposite pilot engine and when which were about the the from of by escaping they instantly the steam a much- was killed were struck and passenger coming a belated track at train the west from behind them on escaping speed thirty forty the of noise or miles an The hiss or hour. of engine crippled the sound steam and the the drowned sound of the blower on train, approaching passenger apparent the evidence of the and it is deceased, range at and was that the train was within vision of the not the of upon beyond stepped range the when he least four hundred feet his vision of opposite escaping it. ahead of west tract the steam and started to walk company speed The rules the its whistle was sounded the evidence was dence that ten miles point limited the the train to of place. the whether ordinances to twelve miles an hour On conflicting, was evi- and there approaching train did deceased not look in the direction of entering upon The evidence before shows the volume of steam the western track. years. by period public a the track for a of two common user of Held, negligence it ruled as a matter of law that deceased’s cannot be own injury. proximate cause of his was contrary, DUE CARE. Absent evidence to the 3. PRESUMPTION OF presumption indulged entering upon that deceased a railroad will be safety. care his track used due for Memory. Refreshing permissible, for Witness’s 4. EVIDENCE: memory witness, refreshing purpose to direct his attention subject- deposition pertaining previously made in his statements testimony; the trial court abused and it will not be ruled that his matter of its discretion permitting witness’s attention to a cer- counsel to direct his deposition, page question a certain of his former and answer tain memory, refreshing the record does not show his where they jury question whether contra- and answer were read before the they testimony at the trial were used his or whether conflicted with dicted or as a substitute testimony. for his Testimony Reasonably Engine: expert of an -: Safe Conclusion. 5. reasonably handling engine proper an it not a method of witness to allow a reasonably was engine escape therefrom and that was volume of steam materially or invade affect the merits of action safe does not jury, province the issues is whether the use and even when one of escaped negligent was unsafe and from which steam condition as deceased. Sounding there Evidence: Whistle. Where Based on INSTRUCTION: being escaping testimony the amount of noise made that “from enveloped man be hear the sound deceased a able to steam away, bridge it reached a 400 feet it as be- another a whistle” of of came a whistle, sounded, question if could have been fact whether distance. at that heard Possibility Hearing. Assumption An instruction of Fact: -: “that said required from the evidence to find and believe which passenger any cut and whistle while said locomotive did not sound train by deceased if it had been sounded been heard could have the whistle possible it was approaching not assume that it” does cut or while in said to have a reasonable distance. within whistle sounded the Brown v. Rock Island Anticipation 8. -: of Deceased on Track: Common User for Two Years. to common passenger duty crew of a employee owes ato anticipate presence his years on a it where has track for two been in public pedestrian way. use as a Damages. 9. -: Measure of coming In a case within the Federal Employers’ Liability Act, questions guilty where the whether contributory negligence negligence proximate or whether his sole injury law, cause of his are not to be ruled as matters of but under the evi- questions jury, dence are predicates an instruction which the measure damages finding guilty contributory negligence that he was not proper, is law is and one which tells them that he cannot recover as a matter of properly refused. Twenty
10. EXCESSIVE VERDICT: Student Fireman: Thousand Dollars. years twenty-six age, expectancy Deceased was and his life was 38.11 years. younger, expectancy approximately His wife was five months and her child, daughter, the same. He was age survived one whose was thirteen good He previously months. was in health and industrious. He had employed so vocations, periods year, at various six of months to a and while employed earnings per varied from $150 $200 month. the time At negligently train, employed killed he defendant’s was for his *3 fireman, pecuniary pay services, and as such received no and there may certainty evidence from it is no be inferred with reasonable qualified employment that fireman, would have later and entered defendant’s aas average earnings regular wife, nor evidence of the of a fireman. The administratrix, Employers’ Liability Act, sues under the Federal as daughter. Held, pecuniary act neither sustained her and the loss that under said at depend largely upon presented trial, must nor the facts each case and engage speculation, can unwarranted court and the ver- twenty large, judgment dollars is too but the is affirmed for thousand dict $17,500 remit $2500. condition for Death, J., Juris-Cyc. 235, p. 1350, Corpus References: C. n. 6. 17 Section 686, 505, 4; J., 647, 547, 99; p. 548, Evidence, p. 778, p. 22 C. Section n. n. Section Servant, J., 268, 388, p. 57; and 39 Section n. Master C. Section 55. n. p. 389, 1199, 1206, p. p. 985, 85; 986, 86; 1374, 69; p. n. Section n. Section n. p. 1200, 56; 43; 1379, 1384, p. 1202, 68; n. Section n. Section Section n. 87; 1398, 26; 1403, p. 1222, p. 1213, 1426, 1245, p. n. Section n. Section n. 71. 2449, Witnesses, Cyc., 79; p. 2450, 81, p. 85, 40 n. n. Davis, Judge. from Daviess Circuit Court. —Hon. B. Appeal Arch condition). (upon Affirmed Leopard
Guthrie appellant. & Conrad John C. & Son Platt for respondent. Hubbell and Geo. H. Hubbell SEDDON, Respondent, Brown, who is the widow of Harold C . as administratrix her deceased husband’s estate for sues daughter damages herself and deceased’s infant recover benefit wrongful alleged Employers’ death under the Federal Liabil- April ity 22, 1908, April 5, (U. Act of as amended on 1910 S. Compiled Statutes, 8657-8665), secs. and also under the Federal February 17, 1911, Boiler Act of amended on March as Locomotive Statutes, d.) 8630-8639 (U. Compiled 1915 secs. This 4, S. Chicago, Island & Pacific Kidd v. Rock
companion case to op Term, 412 Missouri, Vol. having 310 1,Mo. 274 1079, S. W. deceased, Brown, Harold met instant death at the casualty same time and in the same in which Clyde Kidd was also instantly killed. The tried case at bar was upon substantially pleadings as same same evidence Kidd length case, wherein we and with stated at considerable particularity bearing facts the deaths of substantive two employees above-named appellant. Consequently, it is un- necessary ease, for us to re-state those facts detail the instant incorporate we herein, by case, reference to the facts fully so opinion stated in our in that ease.
Harold freight Brown was upon appellant’s fireman student morning engine crew, 3022 on the of October 1922. The consisting Clyde Breitenbueher, fireman, Kidd, engineer, V. G. evening Harold Brown, fireman, Iowa, left on the Eldon, 23rd, corporate of October the north limit of the arrived at city Missouri, of Trenton, morning six about o’clock on on up October 1922. The crew a train tie the train had order to the east track Trenton if sixteen between Tindall and consecutive (U. Compiled Federal statute prescribed hours service 8678) Statutes, expired reaching Trenton terminal sec. yards. engine 3022 order, pulled Pursuant to the train the crew of corporate onto the within east track limits Trenton about morning 24, 1922, stopped six some o’clock of October by engine 3002, freight 150 100 or behind another drawn feet pilot standing which had with about been stalled southwardly Bridge, an street from Rainbow overhead feet 2480 feet south of the mile-station crossing, approximately located depot Engine in Trenton. appellant’s north feet post drifting badly leaking main and had stalled because *4 standing had been left with trouble,' shaker and throttles and southwardly Bridge for from Rainbow 215 feet pilot 200 to some casualty, the half before the with an hour and a period- of about a right, the or of steam on emitting a volume cylinder open, cocks drifted across engine, steam was blown or westerly which side, of the deep cut, approximately a westerly west bank of the track parallel pass railroad tracks long, through appellant’s two feet escaping steam tended Trenton. The reaching terminal at the opposite engine westerly immediately track the view of to obscure a of steam, and the sound escaping the noise of 3002, and hiss or the sound 3002, drown the engine tended to operation the blower westerly track. on the train south-bound approaching an of to order having pursuant the train up engine 3022, tied of crew 6:15 about hours of service sixteen consecutive expiration of southwardly to walking were morning question, o’clock on the Bailway Brown Book Island yard register, wash, change office wash-room to their clothing, and, gangway cab opposite engine when about or of they westerly rails track, walked between the of the in order pass escaping and, around steam while enveloped by, emerging from, engineer or steam, volume of Harold Brown were struck at 6:35 and student-fireman a. m. passenger
pilot appellant’s of the locomotive of south-bound train easterly westerly opposite point 57 at a on the rail of the track about pilot Kidd, decedents, of 3002. The Brown and were fifty sixty instantly Appel- a distance of or feet and killed. thrown passenger forty-five lant’s train 57 was two hours and late minutes and, rounding three-degree curve in track when under or near thirty Bridge, traveling speed approximately at Bainbow railway forty hour, appellant an in violation com- miles rule of limiting pany, evidence, speed corporate all trains within hour, per limits of Trenton to ten miles and also in violation of city Trenton, evidence, limiting speed of the an ordinance corporate city limits per 'within the to twelve miles of trains evidence, required engineers appellant, A also hour. rule approaching whistle when long and two short blasts two sound engineers, places. Appellant’s crossings grade at and obscure public westerly curve in the track under Kull, testified that the Ellis and meaning Bridge place appel- within the obscure Bainbow crossing crossing, public grade, at inter- Street lant’s rule. Mable right-of-way approximately 1000 tracks and appellant’s double sected southeasterly Bridge. from Bainbow Evidence was adduced feet whistling point south-bound trains customary or the usual Bridge is crossing under Bainbow and the curve Mable Street north curve, 300 to 480 feet of Bainbow beginning about the the whistle of of evidence whether was a conflict Bridge. There under Bainbow place or curve 57 was sounded obscure was sounded testifying that the whistle witnesses Bridge, appellant’s immediately whistling point north of customary about testified that witnesses respondent’s while Bridge, Bainbow post, a mile north station passing the after whistle sounded Bridge, until of Bainbow 2480 feet north depot appellant’s immediately before was sounded warning whistle emergency or by train 57. There Kidd were struck Brown right-of-way tracks user of evidence appel- witness testified one at least employees, appellant’s casualty, years before two period had, tracks lant’s *5 appel- (not employ many people” by great a used “been live, they but where I know don’t “by people. lant),, numbers disputed, and the is not people.” great number it is used to, and their referred the trains all shows, conclusively proof Term, Court of Missouri, Yol. respective train crews, engaged, were at the time of casualty, interstate commerce.
Deceased, Brown, twenty-six Harold years of age (lacking day) one when killed and had life expectancy, according to mortality table in evidence, years. of 38.11 good His health was and he was shown to be previously industrious. He had worked as. switchman, railway street supervisor, and an automobile salesman, average and his earnings occupations those several had varied per $150 $200 to month. He was survived widow, his junior age, who was five his and months an infant daughter, who was born about thirteen months before her father’s death. The jury returned a unanimous verdict for and assessed damages $20,000, and from judgment the resultant ap- defendant peals. Appellant urges I. that the deceased, Brown, Harold a mere licensee, and employee not its purview within the of the Federal Employers’ Liability Act, and, therefore, that .the trial Licensee. court should have directed verdict for appellant upon ground. The evidence shows riding upon deceased was engine 3022 morning on casualty fireman, a student receiving pecuniary pay for days his services. Three his death, he appellant’s received from one of officers following order permit: Trenton, Missouri, October Engineers,
To all Missouri Division. your authority bearer, Brown, This is to allow Harold W. Division, engines qualifying ride on the Missouri Engineers please sign back, stating performance, as fireman. on his ' number, date, number, train and to and from stations. Fitzgerald. T.W. fireman, shows that further on such The evidence subject jurisdiction orders and under trips, that, goes -with engineer out, and the fireman whom helped trip question, engine, to fire the ran interstate coal, helped grates shake and clean the stoker, shoveled engineer pan, all under the orders Kidd out of cinders clothing was in the His clothes-box Breitenbucher. fireman engineer fireman, regular accompanied and, yard appellant way office wash-room of his he was on according clothing, to the usual change custom of wash and freight which deceased The conductor train crews. that, being caught by 16-Hour riding testified had been customary terminal, train crew it was to a when close Law duties, -work and of their and that register part as a walk in *6 Railway 415 Brown v. Rock Island he received pay for walking in from the train yard to the on office morning question. in In Baltimore & Ohio Railroad Company v. Burtch, 263 U. S. one Burtch injuries, suffered as a result of the railroad company's negligence, assisting in to heavy freight unload transit, interstate having requested to in unloading assist freight by the train In holding conductor. that Burtch employee an within ivas terms of Employers’ the Federal Liability Act, Mr. Justice Suther- ‘‘ speaking court, for that said: There land, dispute is a preliminary as to whether Burtch stood in employee the relation of at the time of the injury, and this we first consider. testimony shows that regularly Burtch was not employed, but he engaged -that in this particular request work at the conductor, of the train because it was necessary to unload the cutter and the train crew was unable to do help. so -without The evidence tends to show that the conductor, making request, long-standing followed a practice call upon bystanders heavy unloading freight. to assist in facts, These either undisputed or established the verdict of appro- under priate instructions, ample are to sustain the conclusion reached below exigency that there was an which authorized the conductor employ Burtch, outside assistance and being, occupied the time employee company. See, example, relation of to the Marks v. 181; Railway Co., 368; 146 Fox 86 Iowa, N. Y. v. Railway Co., 55 Minn.
Haluptzok 446; Threshing Maxson v. v. Case Aga 546; Harbach, Iowa, 127 144.” Co., 81 Neb. Machine Illinois In Huntzicker v. Central Fed. Circuit, held Appeals, 6th that a
Federal Court of Circuit riding permit, under written flagman, upon defendant’s conductors, asleep and killed while in a defendant’s directed to collision, employee an a rear-end reason of defend- caboose company. ant railroad Railway Company v. Harmon’s Adminis- Chesapeake
In & Ohio receiving “What the ‘student’ fireman is trator, Ky. 1, it is said: company receiving in return is and what the railroad valuable. performing While the ‘student’ fireman is arrangement, scope and within the contemplated duties certainly arrangement, company his duties under regularly employed fireman duties it owes him the same owes to Railway Co., v. G. N. employment. an in his [Rief employee engaged him while The law makes N. W. 309.] arrangement, being accepted him under the expected duties duty company the railroad furnish by appellant. is the required reasonably place perform safe the work servant -with master, duty to this while he is, also, of him. He entitled is, places, to his work—that such which are incident lias to be in op Missouri, Term. Yol. places at which he necessarily must be, connection with work. It has been held that the relation of servant, master and in so far duty as the protect employee concerned, begins when the necessarily servant is premises master, accordance with his employment. contract of Co. v. Carolina Railroad [North Zachary, 232 248; U. Gray 636; Railway Co., Wis. Fletcher *7 v. Co., Railroad 168 135; U. S. Seale, St. Louis Railroad v. 229 Co. U. S. 156.]”
To like effect are
Railway
Rief v. Great Northern
Co., 126 Minn.
430; Smith v. Railroad Co.,
216;
134 Ga.
Findley
Railway Co.,
v.
76
747; Millsaps Railway
W. Va.
423;
v.
69 Miss.
v.
Weisser
Railway Co.,
As is said in Illinois Company Central Railroad 205 Johnston, v. 1, Ala. 87 So. c. 871: has “It been decided of the United States that the test to determine the existence vel non of the relation employer of master servant is whether the asserted right ‘retains the to direct in which the manner the business shall done, accomplished, or, words, be as well as the result to be other only done, being what done,’ not shall be but how it shall be it neces sary carefully distinguish to ‘between authoritative direction and control, suggestion and mere details.’ to v. Han Co. [Railroad 649; Singer ning, Mfg. 518; Chicago, 15 132 Rahn, Wall. Co. v. U. S. etc., Company Bond, 449; v. 240 S. Anderson, U. Standard Oil Co. v. ed 215; Orleans, Company S. etc., States, U. New v.U nit 239 U. S. 202; Company, Squire, Harrell v. Atlas 83; 250 Fed. The 248 Fed. 469.]”
Applying the foregoing test to the facts in
case,
the instant
there
can
little,
any,
be
if
appellant
doubt that
right
retained the
direct
the manner in which
Brown
assigned
deceased
should do the work
to him the
accompanied
they
and fireman who
him, for
(acting
appellant)
only
done,
told Brown what
but
should be
apparently
done;
words,
him
instructed
how it
should be
other
part
that was
of the instruction which Brown
was to receive
qualifying
regular
him as a
person
fireman.
If a third
injured
had bevn
through
negligent performance
Brown’s
assigned
duties
him,
question
there can be
appellant
no
would
have been
negligent
liable for Brown’s
acts, although
received
pecuniary
compensation for
performance
of those duties.
[Haluptzok
Railway Co., 55
446,
v.
Minn.
We have cited consideration to cases appellant in support a mere of its contention that deceased employee, and not licensee its but the differentiate facts those cases them from the case at In 237 U. S. bar. Robinson v. Railroad porter Company, was a plaintiff employed by the Pullman its own supplied organized facilities and its own and controlled Brown v. Island . Rock service, including its porters, the service of whom it selected, defined duties, paid their fixed and wages, supervised their directed and performance tasks, placed their them pleasure, and removed at without railway company. the interference or In control Wells Fargo Company & Taylor, 175, Taylor express U. S. was an messenger express company subject employ Chicago, control and In Rock Island & Pacific Rail- direction. way Company Bond, Administrator, 240 U. S. was an decedent independent court, company, contractor with the railroad and the in applying the test as an employee whether he railroad company, therefore, remarked: “The company, did not right retain the to direct manner in which the business should done, be as well as or, results be accomplished, words, other did not retain only control not of what should be done but how it should be [Singer Mfg. Rahn, done. Co. v. 518; U. S.
Co. v. Hanning, 649; 15 Wall. Standard Oil Anderson, Co. v. U. S. falls, therefore, ease ruling under 215.] in Casement v. Brown, 148. U. 615.” There is no doubt in our minds that an employee appellant time death *8 that properly brought the action is Employers’ under the Federal Liability Act. Appellant
II. assigns error in the failure of the trial court direct a verdict for ground defendant on the that the proximate sole
cause negligence. death his deceased’s was own The point identical appellant raised Deceased’s and ruled against (310 Kidd case 274 W. Mo. l. c. ™ the ProíimaTe6' 1091), appellant but that in the evidence this insists Cause. case that in differs from the case in Kidd that the this in case shows that the area of escaping evidence steam from only feet, distance of ten or engine 3002 extended twelve north suuth, in Kidd was no wdiile the case there definite evidence as and the area steam extended north and south. the distance which Arguing premise that the evidence instant case only conclusively shows that the area steam ten or twelve south, appellant insists that train 57 feet, north and was visible to deceased, entering the steam, had he looked toward north the affording feet, ample him time to of 320 save himself a distance safety. westerly place stepping'off track into "of the injury from appellant foregoing premise, leans basis of the As the Gibson, plaintiff, offered wherein Gibson deposition witness in distance And volume of steam its north “Q. this testified: south, up track, and south down north it mentions judge I ten long? Well, about feet—ten or how A. about evidence, however, to show further tended that twelve feet.” 315 Mo.—27. op Term, Missouri, Vod.
engine draw-bar, 3002 is ninety-one long about feet from draw-bar cylinder gangway and that cocks distance from tbe witness, neighborhood sixty Another “somewhere feet.” Griffin, “must have stood that steam from testified " there, half-way engine half-way tender, of the somewhere — see you right-of-way; could and that the steam “blocked the Fire through right-of-way account of the steam'and smoke.” train of the curve man McDonald of who was on inside only operative 57 who saw Brown and Kidd before of train casualty, testified that he saw them when within about first person wester of men and that he did not believe that a on the feet from under ly seen, track could have been when train first came lots Bridge, feet; Rainbow over 150 or 160 that “there was about guess and, I steam; coming engine,” it ‘‘ great of steam com statement, he said: was a volume signed There us, track ahead of engine 3002, which over the ing from extended ’’ clearly. seeing very Plaintiff’s me from them witness bothered vision by him as to the experiments made to certain Smith testified point twenty feet track at a standing most western on the man of a pilot 215 south engine 3002 with feet its gangway of south of smoke or shape Bridge, without obstruction Rainbow track, freight standing on east train that, with a steam, and north range over 100 vision would extend feet not think did Bridge. Rainbow argument brief, Assuming, appellant does walking at a slow walk of two and one-half Kidd were deceased thirty hour, traveling forty train 57 was miles an and that miles fast times as as deceased was walk- hour, not to exceed sixteen have traveled from to 960 while ing, then train 57 would feet walking sixty gangway were feet from the therefore, pilot It, apparent seems *9 range vision, within of 400 was not deceased’s and was at 57 least beyond range vision, his when deceased of started to walk south feet point opposite westerly gangway track at a the or of upon the cab 3002, as tends to show. engine the record Pennsylvania Company Crouse, 376, In Railroad v. Fed. that imperatively is law rule of said: “There no makes it court walking along a track to negligence neglect a licensee for eight during a six if period of or seconds track to look back the upon was when he entered it.” behind him clear There in the record before no evidence us that deceased did is northwardly entering look the not before volume of steam on the westerly contrary, presumption track. to the Absent evidence the indulged safety. will due care for his own be that he used [Hunt 401; Hines, 107, 127; v. McDaniel v. Railroad Mo. Mo. Brown v. Rock Island Railway Co., Burtch v. 236 S. W. say, upon For ns 338.] ns, record contributorily that as negligent law, or, matter of negligence that deceased’s own proxi the sole mate canse of death, judgment his would be to substitute our own for that duly constituted triers of the facts. were Those questions jury (Hunt for the 127; fact Mo. Railway Co., 1092), 310 Mo. l. c. 274 S. W. and the
assignment against appellant. must be ruled
III. assigned Error the admission of certain evidence. Ellis, Plaintiff’s witness being inter- rogated by counsel for escap- whether the steam Refreshing ing enough from that was hot passing to burn one Memory. jn proximity dose deposi- thereto. He was asked if his tion had been taken signed, whereupon attention was his directed question a certain upon page and answer a certain deposi- objected tion. Defendant’s counsel to this method of examination improper, sought lay ground that it foundation impeachment plaintiff’s witness, whereupon plaintiff’s counsel replied purpose memory that the was to refresh the of the witness. objection Defendant’s thereupon counsel made the further any witness’s did refreshing answer not indicate that he needed subject. his overruling objections, recollection In permit the trial court stated: “The court not lay would him to impeaching purpose witness, foundation for the own .his but'the deposition permit court will witness examine the for the purpose refreshing his recollection.” While the record does not question deposition show that the and answer were read before impression jury, appellant insists that nevertheless necessary to confront the deposi- that it was witness with created him the truth tion in to have tell witness order stand. We question deposition and answer do know whether the not con- contradicted, with, testimony trial, or witness’s' flicted they incorporated in the So far see, are not record. as we can there substitute, get previous jury, made to before the ivas effort witness, appear testimony for it does either counsel any part it, deposition, aloud or the witness read memory refreshing resting is a matter jury. of a witness’s court, rulings will of the trial whose .ot be the discretion disturbed permissible, of abuse of discretion. absence memory, to direct refreshing his the attention of witness subject-matter him as previously made to statements testimony respect a previous thereto at testimony, or to his *10 testimony previous hearing, trial or for which [April Term. Missouri, Yol. oe say Cyc. 2449, We cannot may witness be read to him. 2450.] [40 herein. that of discretion guilty the trial was of an abuse court testify, de- over expert Burke was allowed Plaintiff’s witness engine 3002, engine in the condition of objections, fendant’s that an used, and reasonably safe to be opinion, in was not han- reasonably proper method of not' Conclusion of it was Witness. escape dling engine allow a volume steam an jury was the issue before the Appellant urges therefrom. engine whether 3002 was unsafe deceased the use and condition of testimony invaded the negligent him, that the aforesaid province the witness. conclusion of jury called for a inferentially, least, at testimony expert Similar witness from 86, 75, l. c. Railway Co., ruled to be Mo. proper in Kilburn v. 1093, 274 W. 44, we and, Railway Co., 310 Mo. l. c. S. Kidd v. materially merits of the error, if affect the any, ruled that the did not error the admission of evidence action. We see no reversible complained of. in- assigned giving plaintiff’s in the of certain
IY. Error by requested of certain instructions structions' and refusal given refused, in the instructions, defendant. Instructions. jnstan^ by passed upon are with those identical case> error. us in the Kidd case and ruled to be free from reversible have re plaintiff’s should been claimed that Instruction sounded fused because evidence failed to show that whistle by Bridge have been of train 57 north Rainbow could witness, testified, without Ellis, Bert by heard deceased. Plaintiff’s objection, effect, if made any, what the noise when asked hearing escaping 3002 had of whistle steam “I think from Bridge: should north of Rainbow sounded cut being escaping steam at made the amount of noise that able to hear the sound present that a man should be time north whistle, if a reasonable distance Whether a sounded whistle.” by deceased above the Bridge, could have heard of Rainbow. escaping the noise of the 3002 and sound the blower jury question under evidence. proper ivas of fact steam Pryor, 10, In Unrein v. Oklahoma Hide 290 Mo. [Rigley 22.] questions l. said: “It was one of Mo. c. we descending by the elevator decide, whether the noise made movement being pushed on to the elevator and the the truck reasonably have attracted the attention of the rope thought he particularly if perilous position, to his approved A similar instruction elevator the .time.” on the 193 W. in Hubbard Wabash court this *11 Brown v. Bock Island claimed it It is that this instruction is also in erroneous that it possible that was to have sounded whistle while the the assumed Bridge of train 57 approaching the curve and Rainbow words, hearing deceased; within a in of other reasonable distance that, jury inasmuch as that the instruction authorized the to find duty it was the of the in the to sound whistle reasonable hearing negligently distance it and that he failed to sound within hearing distance, assumed, contrary to reasonable the instruction evidence, possible the that have sounded a it was to whistle north bridge of by heard deceased. In our the which could have been opinion, grounded, is well this of the instruction not criticism required jury the instruction the to find and further believe any passenger the did not evidence “that said sound locomotive in Bridge; and, while cut north said Rainbow that whistle said of by heard the locomotive whistle could have been the said Harold approaching had in Brown if it been sounded said cut while said Bridge.” apparently instruction was pat curve and Rainbow The approved by in after a similar instruction us terned Hubbard c. 586. had the Wabash Railroad 193 W. l. But instruction ability hypothesized upon not the of the deceased to been hear the hypothesis plaintiff’s if in sounded, whistle is embodied in herein, would seem that the instruction would struction it have been ruling our proper under Preston Mo. “ jury 455, whereat we further contended that the said: required find, for respondent, to before verdict that have been one,been warning given. had could have heard respondent jury duty find require warn, did the instruction warn, warn, and then that opportunity the failure to this respondent’s injury was direct result such negligent and that of finding respondent. covered issue negligence, before This heard, warning given.” have had respondent could whether giving’ plaintiff’s trial court erred insisted that the instruc It is which authorized to find from the tions numbered duty anticipate train 57 owed the crew of evidence track, refusing walking upon give and in presence withdrawing 4 and numbered issue defendant’s instructions plaintiff, giving similar instructions for jury. While requested by contrary defendant, instructions refusal supra,, appellant contends case, that the in the approved us the Kidd case differs from in that in the case at bar evidence public railroad tracks of user of the evidence there by appellant’s only user em case, that the evidence the instant blocking as the of a circumstance ployees under such unusual city by operation limits corporate train within however, apparently overlooks the testi- Appellant, 16-Hour Law. Term, Missouri, oe Vol.
mony of witness Ellis, Bert the fair inference from which is that the tracks right-of-way period years were used for a of two the casualty by great “a many people, great used number people” employees appellant. While it is true that there was much cumulative public evidence of user tracks yet Kidd case, say we cannot that the record the instant case is any devoid evidence of public. user of tracks ample There is evidence in right- of user of record the tracks *12 of-way by appellant’s employees. engineer 57 of train did not right have the expect a place casualty clear track at the and was duty anticipate relieved of the presence of de ceased the westerly Railway railroad track. Co., v. [Greenwell 404; S. W. Co., 107; Hunt v. Railroad 303 Mo. Hubbard v. Rail Co., 579; road Co., S. W. 413; Rigley Dixon v. Railroad 109 Mo. v. Pryor, 10; Railway Co., supra.] Mo. Kidd v.
It is also claimed that giving error was committed in the plain tiff’s Instruction 15 on damages, the measure of was predicated which finding by a guilty that deceased was not of contribu tory negligence instructions, as defined in other and in the refusal of defendant’s Instruction requested, the form it was which would jury, effect, have told the negligent deceased was a matter of law. We have herein ruled that deceased was not eon tributorily negligent aas matter law. guilty Whether he was contributory negligence negligence, proxi was the sole death, mate cause of his proper questions jury. were [Hunt Co., Railroad 303 Mo. l. c. The same criticism was directed 127.] to an given identical instruction in the Kidd case and that instruction proper, held to be when read in with given connection other instructions on damages. the measure of v. Railway Co., 310 [Kidd case, Mo. l. c. ruling applies The same to the criticism in this 43.] plaintiff’s given instructions on the damages measure of and defining contributory negligence are given the same as those the Kidd ease. The record discloses no reversible giving error in the or refusal of instructions.
V. finally It is by appellant contended that the verdict $20,000 herein is twenty-six years excessive. The deceased was age
(lacking day) one at his death and had a expectancy life years. of 38.11 His wife was five junior, months his so Excessive 1 erdict. expectancy approximately that her life the same as that child, age He was survived one a daughter, of deceased. whose good at his death. about thirteen months He was in health and indus- employed previously vocations, trious. He had been at various but employed the record tends to show that he was in each the several periods year. vocations for short from six months to a There Railway Island Brown v. Rock earnings $150 in those had varied from his evidence that vocations pay while apparently pecuniary received no per $200 He month.
working fireman, and is no evidence from which there as a certainty have subse- may with that he would we infer reasonable appellant’s quently qualified employment regular as a and entered average earnings a fireman. is there evidence Neither regular fireman.
Respondent justifies the amount the verdict of our reason findings Co., 317; 302 Mo. Railroad Lorton v. Gill 385; 267 W. and Kidd v. 310 Mo. Mo. reasonably In case, the Gill foreman, may and we deceased was a switch presume position previous promoted that he had to that after training capacity; he was also experience term of a minor years expec- life younger longer two than Harold Brown and had tancy, although expectancy life than widow had a shorter herein, case, surviving In deceased and Gill left child. the LorL.- twenty-six age, infant years wife and two survived daughters. case, In a locomotive years wife railroad service for thirteen was survived $30,000 sons, but excessive four minor we deemed verdict of *13 required reducing judgment $5,000, remittitur $25,000. 338, an In Burtch v. 236 S. W. action daughter surviving, and infant death a switchman who left wife held, $15,000 be court, Banc, this en a verdict for excessive $3,000. extent of case, as we last cited ease under
However, said “each largely upon Liability depend Act Employers’ Federal must fixing pecuniary loss sustained.” presented at the trial facts engage specu- in unwarranted nor ourselves Neither respecting evidence, loss supported pecuniary lation,' not surviving wife and children a de- reasonably sustained are convinced evidence here- employee. We ceased $2,500. If, therefore, to the extent verdict is excessive in that the will file with the clerk of this court respondent $2,500 voluntary days within ten remittitur herein a and enter judgment will opinion, be affirmed for filing of this from the $17,500 original circuit rendition court the date as of will judgment be May 1923; otherwise, the nisi reversed Lindsay, G., concurs. for a retrial. cause remanded C., foregoing opinion Seddon, adopted PER CURIAM: —The Graves, All judges concur, except opinion of the court. as J., absent.