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Page Thompson v. Granite Bituminous Pav. Co. Waterworks Imp. Dist. No. 1 of Tillar, (Mo. App.)...

496 Missouri Pac. R. Co. v. (Ark.).... 696 Thompson v. Thompson (Tex. Civ. App.) 939 Watkins v. State (Tenn.)..

344 Tierney Coal Co. *v. Smith's Guardian Watkins Medical Čo. v. Horne (Ark.). 24 (Ky.) 731 | Watts v. Baker (Tex. Civ. App.).

623 Tipton, Francis v. (Ky.). 524 Wayne, Faver v. (Ark.)..

22 Tomme, West Lumber Co. v. (Tex. Civ. Weatherby, Kansas City, M. & 0. R. Co. App.) 784 of Texas v. (Tex. Civ. App.)...

793 Toole v. Moore (Tex. Civ. App.).

429 Webb, Canadian Oil & Gas Co. v. (Tex. Townsend v. Neuhardt (Tenn.). 255 Civ. App.) ...

135 Travelers' Ins. Co., Carthage Stone Co. v. Webb v. State (Tenn.).

955 (Mo.)

822 Webb's Ex’r, Kentucky Distillers' & WareTravelers' Ins. Co. of Hartford, Conn., Bel- house Co. v. (Ky.)....

870 lows V. (Mo.). 978 Wells, Vaughn v. (Ky.)..

191 Truitt & Co. v. Gardner (Mo. App.).... 638 Werts' Heirs v. Vick" (Tex. Civ. App.). 63 Trustees of Graded Free Colored Common Wesco Supply Co. v. Smith (Ark.)...... 6

Schoolsof City of Mayfield v. Trustees Westbrook Grain & Milling Co. v. Johnson of Graded Free White Common Schools

(Ark.) ....

....1032 of City of Mayfield (Ky.)..

520 Westchester Fire Ins. Co. v. Thomas GogTrustees of Graded Free White Common gan & Bro. Tex. Civ. App.)..

163 Schools of City of Mayfield, Trustees of Western Assur. Co. of Toronto, Canada, v. Graded Free Colored Common Schools Busch Tex. Civ. App.)...

460 of City of Mayfield v. (Ky.).....

520 Western Indemnity Co. v. Walker-Smith Tuec Co. v. McKnight & Merz (Tenn.). ... 338 Co. (Tex. Civ. App.)...

93 Tune, State ex rel. Douglas v. (Mo. App.) 465 Western Union Tel. Co. v. Lamb (Tenn.) 752 Turner v. Bowens (Kv.)...

749 Western & Southern Life Ins. Co. v. Nagel Turner v. Gregory (Tex. Civ. App.).... 615 (Ky.)

192 Turney, Hess & Skinner Engineering Co. v. West Lumber Co. v. Tomme (Tex. Civ. (Tex.) 593 App.)

784 Turrentine v. Doering (Tex. Civ. App.) 802 Whipple v. Keith (Ark.)..

841 Tuttle, Louisville & N. R. Co. v. (Ky.). . 308 White v. Texas Motorcar & Supply Co.

(Tex. Civ. App.).....

441 Uhlmer v. St. Joseph Gas Co. (Mo. App.) 216 White County, Putnam County v. (Tenn.) 334 United Clothing Stores, Julian v. (Ky... 549 White Sewing Mach. Co., Searight v. United Rys. Co. of St. Louis, Aqua Con

(Tenn.)

330 tracting Co. v. (Mo. App.).. 479 Whitener v. State (Tex. Cr. App.).

48 United Rys. Co. of St. Louis, Aqua Con- Wichita Falls Motor Co. v. Meade (Tex. tracting Co. v. (Mo. App.)... 481 Civ. App.)

71 United Rys. Co., Aqua Contracting Co. v. Wichita Falls Sash & Door Co. v. Jack(Mo. App.).. 483 son (Tex. Civ. App.)..

100 United Rys. Co. of St. Louis, McMahon v. Wiggington, Connecticut Fire Ins. Co. of (Mo. 'App.). 500 Hartford, Conn., v. (Ark.)

844 United Rys. Co. of St. Louis, Nitchman v. Wilkerson, Dunn v. (Tex, Civ. App.).... 59 (Mo. App.)..

491 Wilkie v. State (Tex. Cr. App.)... .1091 United Rys. Co. of St. Louis, Winterman Wilkin v. Boyce (Ark.):..

.1183 V. (Mo. App.). 486 Wilkinson v. Hudspeth (Ark.).

263 United Rys. Co. of St. Louis, Woodis v. Willard v. Willard (Ark.)..

..1019 (Mo. App.)..

489 Williams, Cameron v. (Tex. Civ. App.). 928 Urbahn, Espejo Land & Irrigation Co. v. Williams, Engles v. (Mo. App.)...

671 (Tex. Civ. App.)..

920 Williams v. Inter-Southern Life Ins. Co. (Ky.)

549 Vail, Dickinson v. (Mo. App.).

635 Williams v. Missouri Pac. Co. (Ark.). .1038 Vanover v. Justice (Ky.). 321 Williams v. Moore (Mo. App.).

824 Van Pelt v. Russell (Ark.).

267 | Williams, Nations v. (Tex. Civ. App.). Vaughan, Barr v. (Ark.)

589 Williams Coal Co., Auxier v. (Ky.). 310 Vaughn, City of Louisville v. (Ky.). 546 Winburn v. Commonwealth (Ky.).

.1073 Vaughn v. Wells (Ky.)....

191 Winterman v. United Rys. Co. of St. Louis Verser, Lilly V. (Ark.). 31 (Mo. App.).....

486 Vick, Werts’ Heirs v. (Tex. Civ. App.).. 63 Winters, Robbins v. (Tex. Civ. App.) 149 Vickstrom, Southwestern Surety Ins. Co. Wittmeyer v. Storms (Mo. App.)

237 v. (Tex. Civ. App.)....

389 Woodis v. United Rys. Co. of St. Louis Vinson v. State (Tenn.)..

338 "(Mo. App.)...
)

489 Violette, Mitchell v. (Mo. App.). 218 Woods v. State (Tex. Cr. App.).

54 Vose Wall Paper Co., Bauerdorf v. (Mo. Wright, Ogilvie v. (Tenn.)..

753 App.) 220 Wright v. State (Tex. Cr. App.)

7755

W. T. Rawleigh Co., Dodd v. (Tex. Civ. Wabash R. Co., Irminger v. (Mo. App.).. 660 App.)

131 Wabash R. Co., McCoy v. (Mo. App.).... 249 Wunschel v. Farmers' State Bank (Tex. Wade, Shelton v. Tenn.).. 253 Civ. App.)...

924 Walden v. Cumberland R. Co. (Ky.)..... 854 Wurdack, State v. (Mo. App.)

502 Walker-Smith Co., Western Indemnity Co. Wurzburg v. New York Life Ins. Co. v. (Tex. Civ. App.). 93 (Tenn.)

332 Waller v. J. H. Lewis & Co. (Ark.).. 697 Wyatt, City of St. Joseph v. (Mo.)

819 Wallis, Chess & Wymond Co. v. (Ark.). 274 Walsh, Stroburg v. (Tex. Civ. App.). 391 Young v. State (Ark.)....

1183 Walton v. Walton (Tex. Civ. App.). 133 York Lumber & Mfg. Co. v. McKnight & Ward v. Compton (Tex. Civ. App.).... 129 Merz (Tenn.)...

254

REHEARINGS DENIED

(Cases in which rehearings have been denied, without the rendition of a written opinion, since the publication of the original opinions in previous volumes of this Reporter.]

KENTUCKY
Clay v. Clay's Committee, 200 S. W. 934.
Dickson v. Dickson, 202 S. W. 891.
Illinois Cent. R. Co. v. Meacham Contracting Co., 202 S. W. 859.
Louisville R. Co. v. Broaddus' Adm'r, 202 S. W.654.
Stamps v. Frost, 200 S. W. 609.

(xvi) +

203 S.W.

THE

SOUTHWESTERN REPORTER

VOLUME 203

(134 Ark. 1)

mine, an instruction that, if the jury found it JENKINS v. MIDLAND VALLEY R. Co. was 'the custom of the railroad's employés not (No. 303.)

to go with their trains below the run-around,

and it was the custom of the employés of the (Supreme Court of Arkansas. April 22, 1918.) mine to go at will upon the mineyard, it was 1. DEATH 31(3) - RIGHT OF WIDOW AND not negligence for deceased to be on any track

On
NEXT OF KIN-STATUTES.

other than the run-around track was properly Under Kirby's Dig. $$ 6289, 6290, the right refused, where, though the facts recited in the of the widow and next of kin to sue for a instruction were found to exist, the question of wrongful death is dependent upon there being decedent's negligence in standing near the end no personal representative of decedent.

of a car under the tipple would still be for the 2. DEATH 29-SURVIVAL OF CAUSE OF AC-jury under all the circumstances. TION-STATUTES. Despite Kirby's Dig. § 6285, providing that

Appeal from

from Circuit Court, Sebastian wrongs done to the person or property of an- County; I. S. Simmons, Special Judge. other shall survive the death of the injured Action by Thomas Jenkins, administrator, person and the wrongdoer, a widow's cause of against the Midland Valley Railroad Comaction, under sections 6289 and 6290, against

for defendant, a railroad for the death of her husband, and pany. From a judgment for the cause of action of the husband's adminis- plaintiff appeals. Reversed, and cause retrator for her benefit, did not survive her death, manded for new trial. 3. DEATH Om101-ACTION BY ADMINISTRATOR -SEPARATE RECOVERY.

R. W. McFarlane, of Greenwood, for apIn suit by an administrator for the benefit pellant. 0. E. Swan, of Muskogee, Okl., and of the widow and next of kin of his decedent | Thos. B. Pryor, of Ft. Smith, for appellee. wrongfully killed, though it is maintained for the joint benefit of all of the beneficiaries, there is a separate recovery for the benefit of each,

McCULLOCH, C. J. [1] The death of T. according to the pecuniary injury resulting to L. Jenkins resulted from alleged negligent each from the death.

acts of servants of the defendant railroad 4. RAILROADS 398(2)-DEATH ON TRACK-company, and this action

and this action was instituted NEGLIGENCE-SUFFICIENCY OF EVIDENCE.

In an administrator's action against a rail- against the company by the administrator road for a wrongful death, evidence held suffi- of the estate of said decedent to recover cient to justify the finding of negligence on the damages for the benefit of the estate and for part of the railroad's servants in throwing cars the benefit of the next of kin, consisting of in on a switch track without signal or other four adult children of decedent. The widwarning, or without having a brakeman in charge, or in throwing the cars on the track ow of the decedent died after the death of with sufficient violence to set other cars on the the former, and the individual who was the track in motion.

administrator of the estate of T. L. Jenkins 5. RAILROADS Om 256 CONCURRENT NEGLI- also became administrator of the widow, GENCE-INJURIES ON TRACK.

If there was negligence of persons other and as such joined in the suit. The heirs than a railroad's servants in leaving uncoupled of Jenkins also joined. The court sustained cars already on a track, and also negligence a demurrer to the complaint of the adminis

in additional cars on such track with such violence trator of the estate of the deceased widow as to put the cars already there in motion, kill- and of the heirs. That ruling was correct, ing plaintiff's decedent, there was a case of con- for the right of a widow and next of kin current acts of negligence, rendering the au- to sue is, under the statute, dependent upon thor of each responsible for the injuries. 6. DEATH 103(4) — DEATH BY WRONGFUL the decedent. Kirby's Digest, $8 6289, 6290;

there being no personal representative of ACT-LOSS OF NEXT OF KIN-QUESTION FOR JURY.

Kansas City So. Ry. Co. v. Henrie, 87 Ark, In an administrator's action against a rail-443, 112 S. W. 967. road for the death of his decedent, the extent

[2, 3] It is also contended that the ruling of the loss sustained by adult children held for the jury,, under the evidence that decedent, was correct so far as it concerns the suit though old, had a reasonable expectancy of life, for the benefit of the estate of the widow for earned good wages, and made frequent though the further reason that her cause of action irregular contributions to his children,

and the cause of action for her benefit did 7. TRIAL Cw188 - INSTRUCTIONS.— INVADING not survive her death. In view of another PROVINCE OF JURY.

In an administrator's action against a rail- trial of the case it is proper to decide that railroad for death of the employé of a coal question, for the complaint states a cause

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

203 S.W.-1

of action in favor of the administrator of it may continue in the interest of other benT. L. Jenkins for the benefit of the next of eficiaries. The surviving beneficiaries do kin, and if the right of action for the bene- not succeed to the rights of the deceased one, fit of the widow survived her death, there but the recovery for their benefit is limited may be a recovery by the administrator for in extent to compensation for the injuries the benefit of the widow's estate as well as sustained by them on account of the wrongfor the benefit of the next of kin. Our stat- ful act of the defendant. ute provides that a right of action for

This brings us to a consideration of the "wrongs done to the person or property of questions concerning the rulings of the court another” shall survive the death of both during the progress of the trial. Jenkins rethe injured person and the wrongdoer, and ceived fatal injuries by being knocked down that the action may be maintained by the and run over by a freight car at the tipple executor or administrator of the person in- in the yards and premises of a coal mine jured against the wrongdoer, or after his near Greenwood, Ark. The track on which death against his executor or administrator the car stood was connected with the line of "in the same manner and with like effect in defendant company, and the car was suddenall respects as actions founded on con- ly bumped and put in motion by other freight tracts." Kirby's Digest, § 6285. Another cars thrown in on the track by servants of statute which was patterned after Lord the company. The railroad company has a Campbell's Act confers a right of action spur extending from Greenwood northeast to against the wrongdoer for the benefit of the Fidelity, a distance of about two miles, and next of kin of a deceased person whose the coal mine where Jenkins was injured is death was caused by the "wrongful act, neg- near this spur track, about midway between lect or default” of another, but the statute the two points mentioned. A switch track is silent as to the survivability of such right runs off from the spur track to the coal mine, of action. Kirby's Digest, 88 6289, 6290. and passes under the tipple where cars are This court has decided that the “injury to loaded with coal when the mine is in operathe person” mentioned in section 6285 means only a bodily injury or damage of a physical tion.. Connected with the switch track are

the

certain other tracks which parallel character, and that pecuniary damages resulting to a person from the death of anoth- switch track alongside the tipple. Cars are er is not an injury to “property” within the furnished by defendant company to the opmeaning of that section. Davis v. Nichols. erators of the coal mine by placing them on 54 Ark. 358, 15 S. W. 880; Billingsley v. St. the switch track, and as the cars are needed L., I. M. & S. Ry. Co., 84 Ark. 617, 107 s. they are pushed back to the tipple by an emW. 173, 120 Am. St. Rep. 95.

ployé of the coal mine known as the “car In the first case cited above the court hustler," who uses a pinch bar to start a car held that a right of action under sections rolling along the track to the tipple. The 6289 and 6290 for the benefit of a widow did car hustler also lines up the switches connot survive the death of the wrongdoer; and necting the switch track with the run-around in the other case cited, the court held that tracks. The coal mine was not in operation a husband's right of action against a wrong

on the particular day Jenkins was killed, doer for the death of his wife did not sur- but a loaded car, or one to be loaded, was vive the husband's death. It necessarily standing under the tipple at that time, and follows, we think, from those decisions that Jenkins was at the end of it away from the a right of action under sections 6289, 6290 Fidelity spur track. Four empty cars were for the benefit of the widow on account of standing on the switch track about 300 feet the death of her husband by the wrongful or farther from the tipple, between the tipact of another does not survive her death. ple and the spur track, and the switch conIn the case of Davis v. Nichols, supra, the necting the run-around tracks with the widow was the sole beneficiary of the cause switch track was closed, so that cars moving of action involved in that branch of the down the switch track would pass to the tipsuit, and in that respect it is distinguishable ple and strike the car standing there. The from the present case, but the principle train came along the spur track from Greenthere announced is applicable, for such a wood en route to Fidelity, pushing a caboose suit by an administrator for the benefit of and several empty cars to be left on the the widow and next of kin of a decedent, switch track for use at the mine, and those though maintained for the joint benefit of cars and the caboose were thrown in on the all of the beneficiaries, there is a separate switch track. The evidence tended to show recovery for the benefit of each, according that no signal by bell or whistle was given to the pecuniary injury resulting to each of the passing of the train, and that no one from the death by wrongful act. Railway was on the cars or caboose when they were Co. v. Sweet, 60 Ark. 550, 31 S. W. 571; thrown in on the switch track, and that the Kansas City So. Ry, Co. v. Henrie, supra. cars moved rapidly down the switch track

Where one of the beneficiaries in such a and struck the other cars which were standsuit dies, the right of action to that extent ing uncoupled and without brakes being set,

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on down the switch track and struck with, of the law, for if there was negligence of great violence the car behind which Jenkins other persons in leaving the cars already on was standing. Serious injuries were inflict- the track uncoupled, and also negligence of ed, from which Jenkins suffered pain and the employés of the railroad company in shortly died.

throwing in the additional cars with such [4] The evidence is sufficient to justify a violence as to put in motion the cars alfinding of negligence on the part of the em- ready there, then there is presented a case ployés of the railroad company in throwing of concurring acts of negligence which renin the cars on the switch track without sig.dered the author of either responsible for nal or other warning, or without having a the injuries inflicted. brakeman in charge to control the move- [6] Instruction No. 3, given at the instance ment of the cars, and in throwing them on of defendant, was erroneous in telling the the track with sufficient violence to set in jury that the evidence was not sufficient to motion other cars on the track. It was rea- justify a recovery for pecuniary loss sustainsonably to be anticipated, or the jury mighted by the next of kin. Jenkins was a very have found it so, that injury would result old man, and his children were all adults, to persons or property by violently throwing but the evidence tended to show that he had cars in upon a switch track without giving an expectancy of life for a reasonable length warning or without placing some one in of time, and earned good wages and made charge of the cars to control their movement, frequent contributions to his children, alespecially where there were other cars stand- though the contributions were not made reging on the track, as was the case in this in- ularly. It was a question for the jury to destance.

termine under that proof the extent of the [5] The evidence tended to establish neg- loss sustained by the adult next of kin by ligence on the part of the car hustler or reason of the death of the father. Kansas other employés of the mine operator in leav- City So. Ry. Co. v. Frost, 93 Ark. 183, 124 ing the cars on the switch track uncoupled S. W. 748. and without the brakes being set, and the [7] Another assignment of error is the rul- . testimony also warrants the finding that the ing of the court in refusing to give the folcustom was for the car hustler to leave the lowing instruction: switch lined up with the run-around track,

“The court instructs you that one of the deand if that had been the condition in this in fenses set up by the defendant is that the destance the cars would have not have moved ceased was guilty of contributory negligence in on down the switch track so as to strike the occupying the place he did at the time of the

injury. The court instructs you that if you car behind which Jenkins was standing. It find by a preponderance of the evidence that is contended that under this state of facts it was the custom of the employés of the dethe negligence of the employés of the coal fendant, not to go with their trains and cars,

below the run-around track, and that it was company intervened so as to prevent the al- the custom for the employés of the mine to go leged negligent act of the servants of the at will upon the mineyard, then it was not negrailroad company from being the proximate ligence for the deceased to be on any other track cause of the injury to Jenkins. The trial than the run-around track.” court took that view of the law, and instruct- We are of the opinion that the proof in ed the jury accordingly over the objections the case calls for an instruction on that of plaintiff. One of the instructions on that subject, but it does not follow that the above subject reads as follows:

instruction in that form was correct. Jen“You are instructed that if the employés of kins was not engaged in loading the car at the defendant, when they placed the cars which the time he was struck, and the evidence is were standing upon the spur track, prior to the not clear as to what he was doing there at day of the injury, properly set the brakes so that the cars were in no danger of rolling down that time, but he was an employé of the the track, and so they would withstand the im-coal company, and was not a trespasser in pact of the caboose and other cars, then they being at that place on the premises of his had a right to presume, when they started to place additional cars on the spur track, that employer. It would have been proper to give the brakes were as they had fixed them, unless an instruction submitting those facts, if there is proof that defendant's employés had found to exist, for consideration of the jury knowledge of the loosening of the brakes, if the in passing upon the question of contributory proof shows that they were loosened, and in this connection you are instructed that if you find negligence on the part of Jenkins, but this that some of the cars which had been placed particular instruction was incorrect in tellupon the spur track prior to the day of the acing the jury that Jenkins should be exonercident rolled down the spur track when additional cars were coupled onto them by reason ated from the charge of negligence if it was of the brakes on said cars, which were already the custom of the railroad company not to standing on said track, having been loosened by place cars below the run-around track, and some person other than the defendant's em- that it was the custom of the employés of the ployés, and without defendant's knowledge, and that they would not have started to roll but for mine to go at will upon the mineyard. Even the fact that the brakes were so loosened, then though the facts recited in the instruction the plaintiff cannot recover in this case.” were found to exist by the jury, the ques

The same idea is embraced in other instruction of Jenkins' negligence in standing near tions, and it was an incorrect interpretation the end of the car under the tipple would

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