*1 1924. TERM, Lorton v. Mo. Pac. Co. by question plain-

made the the court, but to whether the equity. any tiff was entitled relief in judgment be should affirmed. not C., Small, sitting. foregoing opinion

PER CURIAM : —-The of Lindsay, adopted opinion Ragland, C., as the the court. Woodson concur; and James T. Graves, JJ., Blair, J.,P. 'sitting. not

HAZEL of Es ROSELLA Administratrix LORTON,

tate of LORTON, FOUNT H. v. MISSOURI PA Appellant. COMPANY, RAILROAD CIFIC One, 19, 1924. Division December Employers’ Safety Appliance Liability NEGLIGENCE: Act: 1. Act: Coupler: Duty. Injury Safety Line Defective in The Federal company Appliance haul Act makes unlawful for a it railroad couplers permit equipped to be on its line car not used coupling automatically, Employers’ Liability Act and Federal Safety company liable railroad where a violation makes the injury employee; and an of an in contributed death Act plaintiff acts, case both makes for action based on out by showing that was defec- evidence substantial couple automatically, not and that deceased and would tive duty, switchman, for his went between the cars in the line of coupler, inspecting adjusting purpose and defective response signal so, engineer, that, doing while crew, switching pushed forward other cars foreman of the contributory negligence is not a de- In case crushed him. such fense, own conduct sole unless switchman’s recover, injury plaintiff proximate entitled to cause of his proximate was the cause that his own conduct be ruled cannot inwas line of his that he establishes the evidence where coupler, cars to defective between the he went when presence the immediate cause the cars was between his then coupler, presence injury, was induced therefore, which, cause. was the appellant’s assignment Incompetent brief -: Evidence. An 2. incompetent, im- irrelevant trial court admitted nothing, where the evidence com- amounts evidence material objection pointed and the record reveals plained out isof respondent. offered admission MISSOURI, SUPREME COURT OP By. Lortcrn Mo. Pac. Coupler: -: Injury Duty. Instruction: Defective Line In damages Appliance Safety an action for based on the Federal Act *2 Employers’ Liability Act, telling and the Federal an instruction jury they switchman, parting that if find that or after cars, switchman, of “in the line of his as a they separated, went between ends of the two where purpose adjusting making operative, attempting for the or or "to operative coupling, broken, or make for such operative etc., coupler,” erroneous, ample is not there is where support evidence it. Damages: Mortality -: Pecuniary --: Measure of

4. Tables: Notwithstanding annuity present-worth Loss. tables do not con- guide judgment an absolute stitute of the and conscience accept jury computa- and are not bound follow and by them, annuity tions or values shown tables such standard life upon jury may finding present are which the base pecuniary cash value of the benefits which wife and minor death; deprived by children of the deceased were switchman his mortality by agreement table and where was read in evidence expectancy years and it showed that the life was 32.5 deceased expectancy years; and that his wife’s life was 38.12 and was there years age; earnings he 34 evidence that that his had been month, per gave $185 $35 retained and to his wife the expenses; family surviving for balance that he left him two chil- aged years, respectively, dren, two and four cannot be ruled upon was no evidence could which the determine pecuniary present cash value benefits of which the wife deprived. were and children Twenty plain- -: Excessive Verdict: Thousand Dollars. The 5. Liability administratrix, Employers’ under the Federal tiff sues by her, aged years, daughters, loss sustained 26 and two Act for her years respectively, aged four and when her husband and their years, father, aged company. 34 was killed defendant railroad strong ablebodied, perfect health; earnings and in his He month, per per this amount he $35 allowed himself $185 support month, her and the balance used for years, expectancy family; was 32.5 his life wife’s 38.12 twenty Held, years. verdict that a for dollars thousand does not prejudice part passion jury, and cannot indicate be to be excessive.' held 1230, 1, Cyc. Servant, 1124, Master and to Headnotes: 26 Citations 1659; 2, Appeal Error, 1519, par. par.

1461, 1483; 3 C. J. and 4 C. J. Cyc. 1492; 183, Servant, pars. 3, 5, Death, 4 26 C. Master J. 235. OCTOBEE TEEM,

Lorton Mo. Pac. Appeal City from St. Louis Circuit Court.—Hon. Victor Judge.

II. Falkenhainer, Aeeirmed. White,

Edward J. James F. Merritt Green and D. Hayden appellant.

(1) upon alleged This suit is based an violation of Congress Safety Appliance the Act of known as the Act (27 531). imposed, by Stat. L. up The burden was law, respondent prove only appellant violated hut that the act, condition which resuhed from such violation cause of the death of her Eailroa,d Conarty, 243; intestate. 238 U. S. Eailroad *3 Layton, Lang v. 617; 243 U. S. Co., v. Eailroad 255 U. Co., S. Eailway Davis 455; v. 263 Wolfe, 239; U. S. v. 280Fed. Eisenhart, McCalmont v. 271; 283 Eailroad, Fed. Ey. Swearingen 736; Warner 125; v. 178 Mo. Co., Eail v. (2) coupler road, 221 Mo. 644. The defective injuries car not the was cause of the which re respondent’s in sulted the death of intestate. Its con immediately prior dition at the time the acci to, of, any the.part dent did not necessitate action on of de-’ required vicinity ceased him to be or in the around,, coupler, any danger injury of, or in as the together, performance came not in the duty appellant any for when he went into or while he danger remained between the cars. a fail There is proof going ure of for reason between the required cars. His duties him to elsewhere than be be enough coupler tween these to the defective cars or near danger injury coming to be from the to gether. by respondent The evidence offered to es tends only coupler inoperative, but tablish this operative coupling could not be made Lorton, part there is no of his evidence that was duties repair Conarty, coupler. this 238 243; Eailroad v. U. S. Lang Layton, v. 255 617; Eailroad, Eailroad v. 243 U. S. 128 MISSOURI, OF SUPREME COURT Ry.

Lorton v. Mo. Pac Co. Ry. 455; U. Davis v. 263 Wolfe, S. S. 239; U. Co. v. 280 Fed. 271; MeCalmont v. Eisenhart, 283 Railroad, (3) negligence Fed. 736. The of Lorton the inde pendent, intervening, efficient and cause of in sole juries Conarty, which resulted in his death. Railroad v. (cid:127) Railway (4) 243; 238 U. S. v. Wiles, S. 444. 24.0 U upon finding by There nowas evidence which to base a “present jury pe cash value the future respondent cuniary benefit” of which either the or her deprived by children are any the death of nor Lorton. is there ‘‘ jury adequate which the make could earning power money.” allowance for the The in guide struction afforded no whatever for the assistance arriving at the amount of its verdict. Railway Kelly, (5) v. 241 Co. U. S. The verdict excessive. Midwest & Bank Trust v. 233 Davis, Co. S. 406.W. respondent. Eaglet D.

Mark on for (1) required go Lorton’s him to between the separated by ends cars which had reason of a de- coupler. using fective pany Appliance In com- railroad provisions Safety violated terms and Layton, Act. Railroad 617; U. S. Davis Wolfe, etc. v. U. Pac. 239; S. & Texas (2) Rigsby, charge pleadings 241 U. S. 33. did not negligence. Lorton with There no evidence of same. Contributory negligence is not even a defense in diminu- *4 damages viqlation tion where a of the terms of Safety Appliance Ry. Trunk Act. Grand Lind- Co. v. (3) say, 233 U. S. 42. instruction on the Plaintiff’s damages language measure Su- followed preme Railway Kelly, Court of United States in v. (4) 241 S. 485. The is not excessive. Lorton U. verdict young surviving him a wife two left small children. and- regular earnings per The evidence showed his were $185 earnings during period and these were not made month, y. wages high. abnormally of time when Bank 129 1924. TERM, Ry. v. Pac. Mo. Lortan Railway, Laughlin 471; v. 275 Mo. 406; 233 W. S.

Davis, McIntyre Railway, Mo. v. 26; 284 Railroad, Crecelius v. Ry. 233 Bennett, 80; U. S. Southern v. 1047;

227 W. S. Ry. Vaughn, Ry. 885; Antonio S. W. v. Pac. So. v. Ry. Beezley, 153 S. W. 1194; v G-ulf Littleton, 180 S. W. Ry. 1043; An- S. T. 117 W. M. K. &

1171; Williams, S. W. Williams, tonio by plaintiff,. an action C. This

SEDDON, of her deceased husband, of the estate administratrix her benefit of herself and Fount IP. for Lorton, damages for under recover his death children, infant Comp. Liability (U. Employers’ Act Stat. S. the Federal Safety Ap 8657-8665) 2 of the and Section sees. 1918, 8606). Comp. (U. pliance 1918, sec. Stat. Act S. specific petition, acts of other, in addition pleaded, alleges

negligence that on November deceased, employ as a switchman defendant in the 20, 1921,was engaged rail- for defendant in his its and was duties switching yards en- with Missouri, Louis, road in St. switching moving gine in inter- and crew, necessarily be- deceased state and while commerce, adjust- purpose of cars, tween two railroad such ing fixing coupling crushed thereof, he was device proxi- injured fatally a direct and them, between negligence, rea- mate result of defendant’s neg- insufficiency, to defendant’s due son of defects equipment, appliances ligence, and its cars, its provisions laws of the aforesaid violation United equipped said car was States, hy impact, automatically couplers or which coupling going' necessity uncoupled men without could be neces- the deceased between the cars, ends said and was required go sarily said between to and did injured, result defend- a direct and and as he re- negligence of said laws violation ant’s injuries death. in his ceived resulted general denial. Defendant’s answer was *5 SUPREME MISSOURI, COURT OF Lorton Mo. Pac. plaintiff The trial resulted verdict for in the judgment sum of from the and thereon $20,000, defend- appealed court. ant to this has fatally Plaintiff’s Fount intestate, Lorton, H. in- jured employ in defendant’s as .while switchman, evening in the about six o’clock November 20, 1921, injured Eighteenth after dark. He was Street yards defendant, railroad which consist aof number extending’ easterly westerly in an tracks, direc- Eighteenth Twenty-first Street on the east to tion on the The curve somewhat Street west. tracks toward the west. south as extend Deceased switching consisting a member of a crew of a foreman, Gregg, and four Linton Martin, McKee. The Lorton, switchmen, engine engineer was manned switch Hoops. The other members Harris and fireman switch-tenders, Bowers Five crew were Walsh. witnesses at members of the crew testified trial. engine Gregg and Linton and fireman, Switchmen appeared plaintiff. Hoops, engi- as witnesses for The appeared Martin, foreman, and the crew Harris, neer, for defendant. witnesses freight consisting of some A nineteen or train, twenty come off the road and had been cars, had yards. standing in the Several left on one tracks including switching Lorton, deceased, crew, engine Twenty- up on the foot board switch rode engine on the headed in west Street, first and the end string coupled of this onto west end the track engine east, headed so of cars. The switch train right-hand engineer side of the south coupled engine engine. onto train, After the the track toward train of down to shove the started being switching made on movement was The the east. distributed themselves 11. The crew Track Number along known as deceased, Lorton, was the train. The position regular was next or usual man, the head position top engine, he took near the to or engine. car from the next the second either ' TERM, *6 Ky. Pac. Co. Lorton Mo. position the east end near assumed a Martin,

foreman, Eighteenth while switchmen Street, close to train, of the Gregg were located somewhere east of and McKee Mar- position Linton took a near Martin, tin. Switchman appears just Eighteenth It of the Street viaduct.. east pass a as head to the Lorton, man, have been to along signals the other from the foreman and switchmen expressed by engineer. In words, other one to the wit- signal” give engi- man to “he the last to the ness, the. particular signals switching on neer. The move- top given either from the of the train were or on ment engineer’s being- of the train. It the or side, south side, by lighted signals given lanterns. the were After dark, pushed engine train a short distance the toward' the stop engineer given, signal, received a the the east, top of the box car Lorton the next he testified, engine, separation Upon stopping engine. the a the or six from the en- about cars the train occurred five of gine. east fourteen end of the Thirteen or along the while five track, the east or train drifted engine on the end remained attached to west six cars appear standing track. Some of still on the crew thought, separation immediately realized, have Gregg parting occurred. Switchmen train had with the east .end train, who were McKee, brought stop. drifting it to a section'and boarded separation Linton switchman occurred, When Eighteenth just together east foreman Martin car-lengths west of extreme" about viaduct, Street Thinking the train had of cars. the cut east end up Linton toward the west Martin sent broken’ two, up walked to the Linton cause. to see what was end string saw a break or of cars east west end car-lengths. says He gap, four three or testified, he easterly engineer signal close to move gave he coupler observing upon on up gap, but, string, stopped the east car of of west the west end him engine on the again attached when fifty twenty-five east feet of the -within west were MISSOURI, SUPREME OF COURT v. Mo. Pac. string only of cars. Linton, however, witness who testified that there more than one movement of engine place. after the took All the other witnesses testified that there was hut one movement separation, after the one which Lorton met injuries. fatal or lock- Linton testified he noticed that the knuckle pin on car west end of the west inoper- string of the east defective or cut cars was king (used ordinarily part A of another ative. as a holt regu- appliance), larger in and dimensions than size *7 regular lock-pin, being place lock-' lar used in (cid:127)pin. According testimony, effect had the to the preventing coupling uncoupling of the automatic and impossibility to the cars. Linton it testified an by impact. question.on coupling make a There is no cou'pler defective. how record but that the As to long king it had been defective and when the bolt place regular lock-pin, been inserted record Linton said when he discovered is silent. the defective inoperative coupler top or Lorton on saw engine. head car from the east second Linton then went report got to to foreman Martin that “we a order bad couple up got can’t into; knuckle we to we have set it in.” He out shove testified he did not notice given by signal the foreman after that conversation, shortly afterward there but was a movement up closing twenty-five the train eastward the cut of fifty eighteen that the train feet, and moved east to twenty-two lengths. ear His attention was attracted “hollering cry.” gave stop of distress He kind a —a n signal, going lying and west he found Lorton on the 11 switch, at Number lead from Number 12 leads off. It took witness about go three seconds to where he had been when he heard the cry distress to where Lorton was. He was the first man to reach lying whom Lorton, he found on his back with feet right being to rail, foot crushed and the stomach right broken side. TERM,

Lorton Mo. Pac. engine Hoops, after fireman, testified that engine place attached with took and the go got to engine standing, “I down remained off the to Eighteenth get go fountain Street to a drink—to alongside and so I Lorton there; cut, walked down got exactly off at the I couldn’t second third car— ground, tell—he climbed down we both met on along I and me' and Lorton walked down just seen seen the about cut—the when break — jimmied it, road a and I seen it call on the was what we jimmied ‘There knuckle, Lorton, I said you,’ says, ‘Yes,’ Lorton walked knuckle and he I on down the fountain.” The and walked walked down on the train and the south side of twenty thirty broken knuckle about feet from place they with when the took conversation saw — jimmied lamp, Lorton’s and Lorton walked in to Hoops straight fountain knuckle and get went east to the Hoops getting drink, with a drink. After talked shoving “they the switch then come Bowers, tender, and says ‘He whole and I train, Bowers, down hurry.’ jimmied knuckle sure fix that That did thought all that fixed how man had I Hoops get drink train shoved on down.” went to another *8 - at fountain and then informed him the Bowers whereupon up he Lorton Lorton was ran to over, run Hoops and found Linton there. left Lorton at the When standing the break break both cut or were still. ends sitting engineer, The that he was Harris, testified engine. right on been the side of the There south bad eight coupled a on break in the train and some cars were given engine. upon signal him, After the break, a stopped engine. he broke That was when the cars signal stopped, Lorton two. When he received the and top of car- car, was on head a box little over half a engine. length that, from the After come he saw Lorton right car on down box walk on down off side and sight got around the until out curve he of witness. MISSOURI, OF SUPREME COURT Lorton Mo. Pao. Oo. stayed engine seven six or there thinks

Witness signal light got ahead come a when he minutes, did response signal, He and, he moved ahead. him—did was—could not see not know Lorton where signal from gave signal. was The not know who way Ordinarily, was somebody he switch. down signal supposed man, from the head to take the engineer up bring purpose being signal close to the signal. got the He so be no mistake as to there would away. eight signal feet man about hundred from a eight disappearing sight, about head man out was engine. he car-lengths know where not from Does sight break where the reference to out of went break, but know there not occurred. did Witness get thought cars. Lorton break Saw there was a in the direction of car start down off the head and standing still. Does time the cars break. At that away signal proceed gave the far not know who —too signal got the train he did it was. After to tell who impact say it there was an move far before —would only eight he That is the movement or ten feet. moved kept' together. came the cars Witness made before getting signal come and ahead shoved the the slow stopped lead. never clear of the He east ahead proceed signal, receiving and after lie after stop got carlengths, he a number down shoved signal stop back-up signal then another then a injured. The signal, then discovered separation got signal train was before the he last top got the car and when Lorton down from Lorton walking kept ground him saw he witness on the get signal got him from down after Never more. ground; him more. never saw car- foreman, testified he was two the crew Martin, train when lengths east end of the the extreme Linton with him or break occurred. up learn the. cause. end to Linton toward west he sent knuckle, Linton came back said *9 ' Yol. 306] TERM,

Lorton. v. Mo. Pac. they coupler, something up of that kind there — couple could not cut on and would have to the shove in. then told the set switchman, cars Witness “We will leading some brakes on this cut that broke and this off push up he cut The idea, the clear lead.” expressed intact being still that are it, to switch cars engine, with broken car next to the and then handle this thereupon gave engine get light closer to it. He — signal engineer come the east ahead toward supposed responded signal. engineer Witness caught because Lorton, movement was fell out down there commenced slow- Lorton when signal engineer, gave ing up. At the time he was, time where The last did not Lorton witness know top on car he Lorton was next to Lorton, saw car, engine. not Lorton off the Did know was engine, place being engine, up to follow the next get up top He not Lorton to cars. did direct go break, off car and between the he did ground Lorton out on between the see him. fell out located. this defective He .fell where engine passed be- at the switch. The witness whole gone toup heard noise Linton had fore he shortly with him. Lorton first Lorton died Lorton witness not see when did afterward. Witness signaled eastwardly engineer to shove the —in up was. where did not look to see he fact, signal gave engine moved when he he never up along. looking anybody pass He had been saw looking west when he start- toward break shoving the cut of cars. not see man ed Did the track him. Witness walk toward down lantern carrying lantern man see a after dark believed could for blocks. duty, Gregg asked, far as “Whose

Witness in- concerned, are is it to it and the switchmen “Any spect break?” answer was, His what causes *10 MISSOURI, SUPREME COURT OF Ry. Lorton v. Pac. Mo. Co. G-regg the nearest man it.”

man; stated he did not who was the nearest man know to the break when it occurred.

Witness Linton asked and “Q. answered: separation you when a Now, have kind de- place, scribed takes spection whose it to an make in- adjustment separation? of which caused the A. The nearest man to the or whatever the may trouble be. And who was the man Q. nearest at A. that time? Fount Lorton.” stipulation parties put A in evidence and jury reciting read to the that “Fount H. Lorton atwas place fatally injured, engaged the time and he was commerce; interstate is, commerce between the meaning states, within the intent and of the Federal Em- ’ ployers Liability Act.” Experience Mortality The American Table of by agreement showing age read in evidence, that at 34, age at time expectancy Lorton’s of his the life death, age years, age 32.5 and at 26, widow Lorton’s expectancy years. at time of death, his the life is 38.12 plaintiff appointed testified that sh'e was adminis- tratrix her deceased husband’s estate. That Lorton leaving died on November 20, children surviv- 1921, two ing, age years, age years, four Ruth, Nellie, who 'marriage plaintiff were born of between and de- thirty-four years age ceased. That deceased she was twenty-six years age at the time of death, his prior perfect thereto deceased’s health was and he average strong. earnings was able-bodied and His per which he month, $185 retained cover his $35 personal expenses, and the balance was used wife family. Appellant assigns

I. error the refusal of its de- respondent’s murrer offered at the close evidence. Appellant upon did not elect to its demurrer, stand but TERM,

Lortan v. Mo. Pac. own behalf. of its its At the close offered appellant again, own evidence, demurred assigns trial court as error the action of the Cause”8*6 charge refusing a ver- return appellant. dict for not Where a defendant does stand plaintiff’s on demurrer chief, at the evidence in close puts but own final all by ease, its searches demurrer testimony plaintiff’s if to see case was aided *11 proof. [Stauffer defendant’s 243 Mo. 1. c. Railroad, v. foregoing if 316.] respondent mind, the rule in let us see With entitling her a verdict made out a case to jury. from the alleged primarily upon an

This suit is viola based appellant Ap by Safety tion pliance 2 of Federal of Section Comp. (Sec.

Act S. 2, of March 1893 U. 8606, after the first day 1918) Stat. which reads: “On and January, any it be such com 1898, of shall unlawful permit mon carrier to ’or be used haul hauled any moving traffic not its line car interstate used automatically by equipped couplers impact, coupling necessity uncoupled of can be without the and which ’ ’ going men between the ends of cars. respondent appellant must contends At the outset, by appellant. prove The record of a violation this act coupler clearly of the west west end that the shows string fourteen cars which of of thirteen or car the east the time of broke loose from train at record, a undisclosed defective. At some time, regular place king lock- of inserted in bolt had been couple pin, auto- impossible the cars made impact. any matically by evi- barren of The record is contrary. with the witnesses, dence All of engineer exception possible as to Harris, testified appar- coupler and it is the defective condition preventing ently undisputed the effect of that this had uncoupling This cars. coupling the automatic proof appellant violation of convicted' negli- proof Safety Appliance further without Act, 138 SUPREME OF MISSOURI, COURT Mo.

Lorton v. Pac. c, gence appellant. Payne, [Wolfe v. 294 184- Mo. 185.]

Was the defective cause injury? perhaps fatal deceased’s Or to be exact, more by appellant Appliance Safety did violation injury Act contribute to deceased’s or death within the meaning proviso of the Liability contained Section 3 of Em ployers’ April (Sec. Act of 22, 1908 8659, U. Comp. 1918), S. Stat. which reads: “Provided, employee injured may such who be or killed shall be contibutory guilty any negligence held to have been case where the violation common carrier of such safety employees enacted statute for the contributed employee?” injury or death of In such other words, was there causal connection between the al leged respondent’s by appellant injury violation of the act Appellant

deceased husband? that, insists questions evidence, under the these must be answered in negative, upon leans decisions United Company Supreme Conarty, States Railroad Court in Lang Company, 243; Railroad U. S. U. 455, S. *12 Company Railway S. 444. Wiles, and U. reviewing in Without here detail the facts in each was held in the first cases, cited cited cases injured person endeavoring where the that, was appliance, in way handle the car with the defective ap- no causal connection between the defective there was injury, recovery pliance his and no hence could be fgr Conarty injury. supra, his In the em- case, injured ployee riding upon while was footboard freight engine a switch collided with a car, which loaded having standing no or on the left track. drawbar, Apparently engine no one on the switch knew that the car were bound on another was track and mission entirely handling unconnected with movement of injured Lang supra, In defective car. case, top purpose employee setting was of a car for the stopping string before brakes a crippled in not the inten- came contact a car. It was with TERM, v. Mo. Pac. injured employee disturb, tion of the crew crippled couple move the car. In the onto, or Wiles supra, not involve a violation of the did case, which employee Appliance Safety because was killed Act, positive of a rules in violation certain railroad on-coming requiring flag stop an him to evidence, a he with caboose which was which collided train, riding. Appellant Com also cites McCalmont v. Railroad authority pany, contention. 283Fed. There 736,as its inspectors car went in deceased a foreman of helper a a chain to a between two cars with standing coupler, on a car left dead awaiting repairs. rules track with other The eyidence required company sig him out a to set denoting presence flag under or between the nal helper flag, out him to but cars. The set warned by ignored warning. collision he He killed shunting Held, track. another car on the caused injury failure to set out was the cause of the ruling, coupler. flag how In so and not the defective significant language: “We the court uses this ever, logical properly situations, of such view think the fairly precedents in discussed, the authoritative be one fall into two classes—the dicate that such accidents injures impact the work the two cars which where the purposely part movement which man impact participating; is 'rather a the other where part plan. In the former collision which is nothing happens unintended which which class should have been avoided. injured presence person of the in cause the immediate between the cars is jury, presence the defective induced proximate cause. coupling, law, is, therefore, *13 and unneces unintended In cases the the other class of injury, sary cause is immediate collision point danger injured person presence is at the look must therefore an a we condition, incident or coupler cause is to see whether defective SUPREME OP MISSOURI, COURT Mo. Pao collision. If then it is so, cause of the injury; it is a otherwise, remote cause.”

In the instant case, car defective with the actually impact. in use at the time of was Prior to separation integral part an train, it been switching of the train which the crew, which Lorton handling. was one, After the was dis- reported covered switchman he cause to Linton,- by saying, got Martin, a bad order foreman, '“We up couple got knuckle there we can’t we into; to have set it out or in.” The Martin, shove confirms foreman, testimony, for he Linton’s testified when Linton coupler up “come back he there said couple . there . . couldn’t on and we would have shove the cut of in. ... I told the will set on cut that ‘We some brakes switchman, this up leading push broke cut clear of off and this being the cars that the lead.’ The idea to switch are engine tfye still intact next to and then handle broken light engine get you closer to it. with the I car, know, — thereupon give engineer signal to come ahead to- responded engineer, it.” The east. He wards sig- got the come-ahead that, testified when he Harris, kept going . . . nal, “It hit the I cars; was to evident them on So out the lead.” shoved respondent’s testimony of one of witnesses purpose appellant’s that the Mar- own witnesses push signal engineer switch the tin’s including crippled out the lead ear, train, whole separated impact cars which'had and that the between the intended and accom- an at the break the result of plished switching movement. quite to facts here us is similar as case before Lindsay, Company Railway

to Grand Trunk Western injured went be- switchman 201 Fed. 836. There the coupler. While tween two a defective testimony gave whether in the was some conflict signal going stop engineer between before *14 141 TERM, 1924. Ry. v. Mo. Pac. Co. gave signal, he or whether come-ahead the evi- cars, show the movement the tended to of due dence supposition signal engineer’s that a come-ahead to the given. jury The case was to the been submitted on giving whether the defective or the the issue of employee signal proxi- by the of a come-ahead was the Appeals injury, and the of his mate cause Court judgment plaintiff. of the trial court for affirmed On Supreme Court that the United States held error, writ of Employers’ proviso section of the Lia- third injured employee bility to the effect Act, contributory negligence guilty held shall killed be the carrier of stat- where the violation case employees safety for the contributed enacted ute employee, injury the de- of such abolished or death negligence purposes, contributory for all fense of [Railway judgment was affirmed. Com- again below Lindsay, pany 42.] 233 S.U. ruling in a recent case in this court

Such is Payne, Appliance [Wolfe volving Safety Act. Wolfe, Davis v. U. S. 185; affirmed 1. c. 294 Mo. Supreme Court case, In the Wolfe 239.] Lang Conarty distinguishes clearly States United as there was substantial supra, that, holds cases, condition of tending defective that the to show injury cause Wolfe’s appliance a discharge a conductor, of his in the he while was properly under the submitted ease language approval court quotes act, Layton, Company v. Railroad & Nashville in Louisville language au the acts and the “The 617: S. 243 U. entirely clear that the make cited have we thorities comply damages employees failure to liability being made unlawful to springs from its law with the position required equipped as cars not use —not may be employee may the work in or be injured.” doing, moment when he at SUPREME MISSOURI, OF COURT Lorton v. Mo. Pac. any part

itWas of deceased’s duties a switchman handling go the crew train at the time to in be- inspect attempt tween or make operative coupler? Appellant says, “No”; respondent *15 Gregg answers, “Yes.” Switchman duty, far asked, as “Whose switchmen are con- adjust inspect it to it cerned, is what causes the' break?” and answered, the nearest man; man to “Any Now) it.” Switchman Linton testified: “Q. when a you separation of the kind that have described takes place, inspection duty whose to make an is of the ad- justment separation? which caused A. The near- separation may man or est to whatever the trouble be.”

“Q. who was the nearest man at And that time? Hoops, A. relating Fount Lorton.” The fireman, along conversation with Lorton as walked down separation the train toward the said: “I cut, said jimmied you,’ to ‘There knuckle for Lorton, is and he says, ‘Yes,’ and Lorton walked in.” All of this testi- mony objection appellant. went without from The separation evidence shows that when occurred Lor- top ton of either the next car or the on second car engine or six removed from the and that five re- cars (The engineer engine. mained attached to the testified remained). place eight cars This would within separation. to from four seven other the foreman were near the east switchmen and end of string the east of thirteen or fourteen cars. cut So that Lorton the evidence to show tends nearest impact man at time to the before exception upon who, direction of Linton, with the up break to ascertain the went to the foreman, cause proof reported Martin. There back to separa- at ever been that Linton Lorton knew Gregg Besides, testified, tion or ascertained the cause. by appellant, that after im- on cross-examination' injury pact before he caused Lorton’s learned 1924; Vol. TERM, Lorton v. Mo. Pac. injury, up went break at that time and working trying king

“I was to extract the knuckle trying bolt; to remove that. You Q. in, then, trying king fix bolt? A. this sir.” Yes, At pushed eastwardly time the defective car had been point Gregg some near where had been located. So Gregg’s testimony an at from inference, least, duty “any that he deemed it to man” or be “the nearest man” to the fix break the defective coupler, without command from the fore- says man so to do. Martin, foreman, it was True, place engine up “to next Lorton’s follow — engine top engineer, says, of the cars” and the Harris, “Ordinarily, sup- the movement those we are trains, ’’ posed signal to take man. the head But neither say witness undertook that Lorton’s sole head top engine man was to remain on near the signals. Appellant *16 purpose passing for the of offered tending evidence limit the no other to duties Lorton operation. testimony single appel- The act or referring might well be as lant’s two witnesses construed one of his as' head but several duties switchman. We prove in the record to think there is sufficient evidence in in line that deceased went between cars of his attempt inspect switchman to coupler. operative or make the defective Appellant’s plead contributory neg- answer not does ligence but if it as to whether did, deceased, negligence, contributory guilty if of such respondent’s pre- prevent recovery, we are was, as question by considering reason cluded Employers’' Liability proviso Act, to Section 3 proviso given Federal and the effect Su- Railway preme Trunk in Western Com- Court Grand say, upon Lindsay, pany we 42. can 233 U. Neither v. S. in the record, all the evidence a consideration of and under the circum- conduct at the time Lorton’s own cause of the sole evidence was stances injury. SUPREME OF COURT MISSOURI, Lorton Mo. Pac.

Does the evidence show that Lorton received his injuries separated fatal he while between place coupler? of the train' at the of the defective We s Hoop think so. Witness was the last naan who saw injury. him before the He left Lorton at the bre.ak cut “jimmied” the train. He called Lorton’s attention to the says

knuckle and Lorton “walked in—went apparently purpose attempting in,” for the to fix or coupler. ap-. ascertain the cause defective Martin, pellant’s own witness, cross-examination, testified: ground “Lort'on fell out on the between the cars where coupler located.” So the un that, proof disputed Lorton went in shows between place coupler at the. pact of the defective and, after the im by shoving eastwardly, caused the whole train ground fell out on the between the cars where the de fective located. There is no evidence to contrary. legitimate, It is when facts are admitted proved, to dráw such reasonable inferences therefrom will be [Yarnell sufficient to sustain verdict. Company, Railroad 580.] Mo. c. the case a case made for the refusing

and the trial court no error in committed by appellant plaintiff’s demurrers offered at the close case in chief and at the of all close the evidence. Appellant assigns

II. objection admission, error over appellant, incompetent, immateriál respondent. Appel- and irrelevant evidence offered lant does direct our attention to the evi- complained dence of. Neither does the rec- *17 Evidence. objection by appellant ord disclose to the respondent. of on behalf admission evidence of There assignment is no error before in and it is, us there- this against appellant. ruled fore, Appellant complains giving

III. in of error of plaintiff’s instruction one. numbered instruction This OCTOBER TERM, 1924.

Lorton v. Pac. Mo. jury recovery. respondent’s theory submitted of Appellant complains that the instruction exceeds the

scope jury the evidence and submits to the of liability of elements established inl^Mof11 part particular evidence. The of instruc- Duty. complained tion of is reads: “and -which parting or that after said cars the said duty in the line of his as a switch- Lorton, said Fount H. in between the cars 'Where man, went ends purpose separated, you they if so find, for the making attempting adjusting operative, or or coupling operative defective broken, or make such inoperative coupler, you if we have so find.” What disposes Paragraph opinion this as- I said signment. ample There was line of and that Lorton defective pur- between the two cars for the

as a went in switchman operative, pose adjusting attempting making coupler. The sub- instruction do so, assignment recovery proper element mitted appellant. against ruled is plain- giving assigns Appellant as error the

IV. dam- on the measure of numbered two instruction tiff’s ages. “The court instructs That is: instruction plaintiff you under other that if find for you given you, will assess her instructions °f may you damages find and be- as such sum Damages present cash the evidence lieve any, pecuniary of which if benefit, future value H. deprived Lorton, death of Fount widow pecuniary benefits future present value of cash deceased, children minor the two each of which deprived, become until Lorton, are H. Fount according age, respectively, twenty-one years of adequate making allowance evidence, circumstances you assess money, the sum earning power of for the damages being sums aggregate of such amount Mo —10 *18 146 SUPREME COURT OF MISSOURI, Ry.

Lorton v. Mo. Pac. each, you may find deprived, of such beneficiaries is herein set out.”

Appellant dispute does not that the measure of dam- ages may way be arrived at in the in indicated in- but struétion, of insists there the record “present pecuniary cash value of the benefits” of respondent and her deprived, children are jury no standard which the can make “adequate earning power money.” allowance for the respect toas 'its basic elements instruction, damages the measure such cases, conforms to the Chesapeake Railway Company rule laid down in & Ohio Kelly, recognized by v. U. S. 485, 241 this Court in recent Banc in the case of Gill v. Baltimore & Rail- Ohio Company, road Mo. In 317. case, the Gill this court present-worth annuity put said: “No tables been, they, they evidence. if Neither, would have guide judgment an ‘absolute and con- constituted jury.’ [Chesapeake Railway science & Ohio ” supra.] Kelly, Vicksburg Company In & Meridian Railroad v. Put- (cited by Kelly 118 U. S. 545 the court in the nam, case, supra), charged jury the trial court had in ar- that, riving accept they at a verdict, were bound to follow and computations or values shown certain life and annuity holding charge in evidence. In tables- to be jury “In the court said: order to assist erroneous, making annuity an estimate, such standard life and age showing probable at duration of tables, life, present annuity, competent aof life are and the evidence. value

. . . But been never held that has computations be derived such tables must rules judgment guides be the absolute and conscience of jury. necessary, . . The if not the ef- natural, . beginning peremptory at instructions fect of these dealing be matter to lead the end of with this would accept must to understand tables affording principal elements of their the rule for the TEEM, OCTOBEE Pac. Oo.

Lorton Mo. *19 especially, computation; . . . as it nowhere, was charge, suggested throughout jury they they difficulty following liberty, if found would be at prescribed them, to the mathematical estimate rules judgment according their the loss of income otvn physical average of his deceased, The condition earning together earnings capacity, monthly and with respective ages of his wife himself, and health and all in of evidence. The death, children at the time mortality his are expectancies showing life of both tables of at the time his death were ad deceased and his wife agreement. by It also shown was mitted evidence monthly earnings average what his was de amount of personal expenses, and that own ducted for his by family. think there was balance was used his We predicate upon instruc which sufficient evidence question, that the misled tion in and damages. guide- on measure of a We instruction as average were men of business ex must assume that intelligence competent perience and to determine according guide, damage, a the instruction with appellant judgment. did not see Besides, the their own upon bearing sub fit to additional evidence offer upon ques ject. an instruction did it ask Neither Company, 259 S. [Gill Railroad v. tion now raises. appellant. against assignment ruled c. The is 96.] 1.W. assignment Appellant’s error of last is V. bias, as to indicate excessive

verdict and so excessive, jury. part The passion, prejudice verdict, that Lor- shows $20,000. age thirty-four years at the time ton was perfect. He was health was death. His his verdict™ earnings strong. aver- His able-bodied a himself $35 he allowed per month, aged $185 used his was month, $150 the balance, month, pay always his check family. handed He wife expenses. time At the paid family she wife and his SUPREME COURT OF MISSOURI, Lorton Mo. Pac. Go. twenty-six years age, death, his wife ages daughters years, of the two were four and two respectively. good. expectancy Their health is The life years; years. of deceased 32.5 that of the wife 38.12 approved, Banc, In a recent we ease, Court in twenty- verdict for where deceased $22,333.33, years thirty-two. four but the wife old, There were dependent average children. There the income of year, deceased was of which the $1800 wife received Company, [Gill v. Railroad 259 S. 93.] $1100. McIntyre W. In Company, Railway Mo. 234, de years thirty-eight age expectancy ceased was an twenty-nine years, earning about a month, of $120 *20 which he turned over to the wife each $80 month. $90 dependent There were no children. a verdict for Held, Railway not excessive. In $16,000was Crecelius v. Com thirty-four pany, years age, 284 Mo. deceased was 26, thirty-two years. expectancy a life He left surviving earnings and one His wife child him. only per month court reduced the verdict $52 from $25,000 $15,000.

Having average earnings in mind the of the deceased family receiving and that his at the time death his per average ages year, an month, $150 $1800 expectancies, of deceased and wife and their life ages daughters, say of his two infant cannot we here in- $20,000 excessive, verdict or that it is passion prejudice part jury. dicates We error in the find reversible record, judgment Lindsay, concurs. G., affirmed. foregoing opinion Sneddon,

PER CURIAM:—The adopted opinion C., court. All of the judges concur.