July 30, 1928.
1. NEGLIGENCE: Derailment of Train: Brake Beam in Frog: Conjecture. A passenger engine was derailed and overturned at a switch, and the engineer killed. Plaintiff claims that the derailment was caused by the lodgment in the frog of the switch of a part of the dragging brake beam or brake rod of a freight car which had shortly before passed over the track, and was then torn from the brake rigging, and defendant contends that the fact that the brake rod found lodged in the frog came from the car in the freight train rests wholly on conjecture and speculation. Three witnesses, one the station agent, testified that as the freight train passed a station three miles from the switch ahead, they heard a noise beneath the freight car such as a dragging brake rod would make, and some of them saw an object under the car which looked like a dragging brake rod. The distance between the frog and the station ahead was a few hundred feet, and as the freight train went by the station the conductor, who stood thirty feet from it, inspected every car, and no brake rod was dragging from any car. When the train reached another station, nineteen miles ahead, the car had no dragging brake rod. The next day the car inspector discovered that the brake rod and brake rigging had been newly broken from the car and were missing. Immediately after the derailment of the engine, which occurred a few hours after the freight train had passed over the switch, a brake rod was found lodged in the frog, and no other train had in the meantime passed over the track. Held, that the evidence is amply sufficient to support a finding that the brake rod found lodged in the frog came from said car in the freight train; and, considering the duty and failure to inspect, these facts, taken in connection with others shown, were substantial evidence of negligence.
2. ____: ____: ____: Duty and Failure to Inspect. Where it was the duty of defendant's employees operating a freight train to discover a dragging brake beam, and they had opportunity to inspect the car and if they had done so would have discovered the danger, and their failure to do so led to the derailment of a later passenger engine, their negligent failure becomes the negligence of the company.
3. ____: ____: Failure to Give Notice of Discovered Danger: Causal Connection. Where it was the duty of any employee to look out for a dragging brake rod of a car in a freight train and to give notice of the danger to the employees operating the train, and to persons operating another train who might be injuriously affected by it, testimony by a station agent, that he telephoned to the next station agent ahead that something was dragging in the freight train and to tell the conductor to look over his train, and a few hours later, when a passenger train came by, he conversed for sometime with its conductor but did not tell him of the dragging brake rod or of his telephone call, is substantial evidence that the proximate cause of the derailment of the passenger engine, caused by the lodgment of the brake rod in the frog of the switch at said station ahead, was the failure to give proper notice of the danger and to make timely efforts to avert the derailment.
4. EVIDENCE: Telephone Conversation: Communication. The station agent having testified for both plaintiff and defendant that he had telephoned, through the regular exchange, to the agent at the next station ahead that a brake beam of a car in the coming freight train was dragging, testimony of a bystander, who heard the agent and details what the agent said, is admissible, although the agent at the next station testifies that he received no such information.
5. INSTRUCTION: Length: Consistency. An instruction is not to be condemned merely because of its length. An instruction for plaintiff, covering his entire case and being the only one given at his instance, is not erroneous, although very long, if it is logical, clear and necessary to a proper understanding of the issues. And an objection to its length by a defendant whose many separate instructions given and not given are of much greater length does not come with the grace of consistency.
6. ____: Incompatibility: Two Proximate Causes. An instruction authorizing the jury to find (a) that a brake rod of a car in a freight train lodged in the switch frog and caused the derailment of the engine of a following passenger engine and (b) that the crew in charge of the freight train failed to inspect the train at the last preceding station, in violation of defendant's rule requiring trainmen to know that cars in their train are in good order and to inspect them whenever they have opportunity to do so, does not hypothesize two inconsistent and incompatible acts as the proximate cause of the derailment, and is not self-destructive or erroneous.
7. ____: Dragging Brake Beam: Inspection. Substantial evidence that there was ample opportunity to inspect the train, and if inspected a dragging brake beam would have been discovered, and that the trainmen did not make use of such opportunity, is sufficient to support an instruction hypothesizing defendant's failure to inspect as negligence.
8. NEGLIGENCE: Measure of Damages: Instruction: Present Pecuniary Value: Life Expectancy: Mortality Tables. Evidence showing the ages of deceased, his widow and their minor children, and his earnings at the time of his death, is sufficient to support an instruction telling the jury to consider only the pecuniary loss sustained by the widow and minor children, "and in determining such loss, the jury should base their findings on the present cash value of the support lost to them by reason of the death of the deceased, and may take into consideration the age of deceased at the time of his death, his probable duration of life and his earning capacity," although no mortuary tables are introduced; and particularly so, where the amount of the verdict is far less than the jury might have found by a strict application of the mortality and present-worth-annuity tables.
9. ____: Withdrawal Instruction: Abandoned Issue. It is not error to refuse an instruction withdrawing an original assignment of negligence which has been abandoned by plaintiff during the trial or on the submission of the case, where refusal does defendant no harm.
10. NEGLIGENCE: Instruction: Acts of Trainmen Only. It is not error to refuse an instruction telling the jury that if they find that defendant's "employees in charge of the freight train," could not by the exercise of ordinary care, have discovered that the brake beam was dragging, etc., where the evidence shows that employees other than those in charge of the freight train were also charged with the duty to act whenever danger was apparent.
11. ____: ____: Accident. A case in which the issue is negligence or no negligence does not call for an "accident" instruction.
12. ____: Notice of Danger: To Employee Off Duty. An instruction telling the jury that notice to an employee off duty that a brake beam of a freight car was dragging was not notice to the defendant, should be refused, where the evidence discloses that whenever a condition came to the notice of any employee, whether on duty or off duty, which he deemed dangerous, it was his duty to report it to the proper authorities.
13. ____: Judgment: Abatement: Death of Widow Pending Appeal: Apportionment. In a cause brought under the Federal Employers' Liability Act, by the widow as administratrix of the estate of her deceased husband, for the benefit of herself and their three minor children, to recover damages resulting from his death caused by the negligence of defendant, the judgment in her favor is not abated by her death pending the appeal, either as to her proportionate part of it or as to the share of the children, nor is it necessary to remand the cause for new trial in order that proper compensation as to the minors may be determined by a jury. In such case the question is not whether a cause of action survives to a beneficiary who dies before judgment; but the question is whether a final judgment rendered for plaintiff as trustee for four beneficiaries has become a vested right. Nor is the apportionment of the verdict among the beneficiaries a matter to be determined in such an action, since that is a proper matter for the probate court.
14. ____: ____: ____: ____: Revivor. The death of one of several plaintiffs in error or of one of several defendants in error neither abates a suit nor necessitates its revival in the appellate court; but a final judgment stands until vacated or reversed.
Corpus Juris-Cyc. References: Abatement and Revival, 1 C.J., Section 288, p. 169, n. 66; Section 289, p. 169, n. 68. Appeal and Error, 3 C.J., Section 978, p. 1021, n. 39; Section 980, p. 1022, n. 46; Section 984, p. 1023, n. 50; 4 C.J., Section 2614, p. 704, n. 78; Section 2970, p. 988, n. 5; Section 3015, p. 1033, n. 37. Death, 17 C.J., Section 68, p. 1225, n. 66; Section 81, p. 1234, n. 62; Section 183, p. 1314, n. 75; Section 246, p. 1359, n. 95. Master and Servant, 39 C.J., Section 1309, p. 1113, n. 49; Section 1310, p. 1115, n. 55; Section 1340, p. 1153, n. 95; Section 1356, p. 1176, n. 23; Section 1414, p. 1234, n. 80; p. 1235, n. 81. Trial, 38 Cyc., p. 1518, n. 69: p. 1605, n. 69; p. 1689, n. 28.
Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landuehr. Judge.
E.T. Miller, A.P. Stewart and C.H. Skinker, Jr., for appellant.
(1) The demurrer to the evidence should have been sustained and the peremptory instruction requested by defendant at the close of the whole case should have been given. (a) There was no substantial evidence of negligence on defendant's part proximately resulting in the death of the deceased. Furthermore, the fact that the brake rod found wedged in the frog came from a car in the freight train rests wholly on conjecture and speculation. Under the Federal Employers' Liability Act negligence is an affirmative fact which plaintiff must establish, and a jury should not be permitted to indulge in speculation and conjecture in arriving at a verdict. New Orleans N.E. Ry. v. Harris, 247 U.S. 367; Chicago Ry. Co. v. Coogan, 271 U.S. 472; St. Louis Railway v. Mills, 271 U.S. 344; Northern Railway v. Page, 47 Sup. Ct. Rep. 491; Bennett v. Terminal Co., 2 F.2d 913; Reading Co. v. Boyer, 6 F.2d 185; Douglas v. Terminal Co., 298 F. 199; Payne v. Bucher, 270 F. 38. (b) Res ipsa loquitur does not apply. Patton v. Railway, 179 U.S. 663; New Orleans N.E. Ry. v. Scarlet, 249 U.S. 530; Midland Valley Ry. Co. v. Fulgham, 181 F. 95: Smith v. Ill. Central Ry. Co., 200 F. 553; So. Covington Ry. v. Finan's Admx. (Ky.), 155 S.W. 742; Washington Ry. v. Weakley (Va.), 125 S.E. 675; Connor v. Railway (Cal.), 207 P. 378. (c) Upon the record the evidence respecting the telephone conversation by Penrod, defendant's station agent at Brownwood, was wholly insufficient to establish notice to the train crew in charge of the freight train, or to defendant, of a dragging brake beam or brake rod. Strack v. Tel. Co., 216 Mo. 601. (2) Upon the record it was prejudicial error to admit the testimony of plaintiff's witness Kelch as to the telephone conversation Penrod, defendant's station agent at Brownwood, had respecting a dragging brake beam, and to overrule the motion to strike out that testimony. The evidence wholly fails to show that Penrod's information was communicated to an agent of defendant, but, on the contrary, does show that it was not. Hence, no notice of a dragging brake beam was brought home to defendant, much less to the train crew in charge of the freight train, who were the only agents or employees of defendant who could, under the circumstances, be charged with negligence. Strack v. Tel. Co., 216 Mo. 614. (3) Plaintiff's Instruction 1 is erroneous, and the giving of this instruction was prejudicial error. (a) It is so lengthy, involved and incomprehensible, consisting of only one sentence and covering five printed pages that its effect was to confuse and mislead the jury, instead of to instruct them. Wolfe v. Payne, 294 Mo. 189 (dissenting opinion); Stid v. Railroad, 236 Mo. 382; Williams v. Ransom, 234 Mo. 55; Heman v. Hartman, 189 Mo. 20; Sidway v. Live Stock Co., 163 Mo. 342. (b) It is conflicting in its own terms and self-destructive, authorizing a finding of two inconsistent and incompatible acts as the proximate cause of the death of deceased, (a) the brake beam or brake rod catching in the frog, and (b) the failure of the train crew in charge of the freight train to inspect the train at Brownwood and Advance, in violation of a rule of defendant requiring that trainmen must know that the cars in their train are in good order before starting, and inspect them whenever they have an opportunity to do so. (c) It is not supported by the evidence. It is reversible error to give instructions which find no support in the evidence. Evans v. Railway, 106 Mo. 594; Paddock v. Somes, 102 Mo. 226. (d) It fails to give proper effect to the standard prescribed by the Federal Employers' Liability Act for determining the amount of damages, as interpreted by the Supreme Court of the United States. Chesapeake O. Ry. v. Kelly, 241 U.S. 491; Chesapeake O. Ry. v. Gainey, 241 U.S. 494. (4) It was error to refuse to give defendant's requested instructions which were intended to withdraw from the consideration of the jury assignments of negligence which were without support in the evidence. Chrismer v. Tel. Co., 194 Mo. 207. (5) It was error to refuse to give defendant's requested Instruction 16. Upon the record, the train crew having charge of the operation of the freight train were the only employees of defendant whose negligence could in anywise he made the predicate of liability in this case. The evidence wholly failed to show actual knowledge on the part of the freight train crew of the dragging brake beam, if it existed. Hence, if the jury should find that this train crew could not, by the exercise of ordinary care on their part, have discovered the fact that said brake beam was dragging, then they would not have been justified in finding for plaintiff. (6) It was error to refuse to give defendant's requested Instruction 18. The evidence having failed to show any negligence on the part of defendant proximately causing the death of deceased, and it not being contended that deceased was guilty of negligence which contributed to cause his death, this case is peculiarly one in which the "accident" instruction should have been given. (7) It was error to refuse to give defendant's requested Instructions 19 to 21. Since it is undisputed that Penrod, defendant's station agent at Brownwood, was off duty at the time the freight train passed defendant's depot at Brownwood, any information he may have had as to a dragging brake beam on said train was not the knowledge of or notice to defendant. Penrod had nothing whatever to do with the operation of the freight train; and, under the circumstances shown by the evidence, no legal duty rested on him to communicate his knowledge and information to the defendant, and defendant would not be liable for his failure to communicate such knowledge or information to defendant, or to a proper agent of defendant, or to communicate it properly. (8) The recovery for the benefit of Fannie Williams, widow and statutory beneficiary of Henry Williams, was personal to her, that is to say, the portion of the recovery representing compensation for her pecuniary loss sustained through the alleged wrongful death of Henry Williams was for her exclusive personal benefit. No other person, party or beneficiary had or has any interest in that portion of the recovery, or any right to the same. Since Fannie Williams, the widow, is now dead, this suit should abate pro tanto as to her interest therein or in the judgment appealed from. Sanders' Admx. v. Railroad, 111 F. 708; Martin v. Railroad, 151 U.S. 692; Mich. Cent. Ry. Co. v. Vreeland, 227 U.S. 70.
Charles P. Noell for respondent; Glen Mohler, of counsel.
(1) The demurrer to the evidence was properly overruled. (a) There was substantial evidence of negligence on the defendant's part, in that the crew on the freight train failed to discover the hanging brake beam by inspection at the station of Brownwood and Advance, and that the crew violated a rule of the company with respect to inspections of moving cars. There is also substantial evidence for the jury that defendant's agent, Penrod, knew that the brake beam was dragging in time to have prevented the accident. Under the Federal Employer's Liability Act, the carrier owes the duty to its employees to furnish a safe track over which the employee may operate its trains. Lock v. C.B. Q. Railroad, 219 S.W. 919; Hach v. 1. M. S. Ry. Co., 208 Mo. 601; Burtch v. Wabash Ry. Co., 236 S.W. 338; Miller v. Schaff, 228 S.W. 448; Schlueter v. Railroad Co., 296 S.W. 105; Woolsey v. Wabash Ry. Co., 274 S.W. 871. (2) The court did not err in admitting the testimony of plaintiff's witness Kelch, that he notified the station agent Penrod of the dragging brake beam, nor in admitting the evidence as to the telephone conversation of Penrod to the station at Advance. Meeker v. Union E.L. P. Co., 279 Mo. 603; Guest v. H. St. Joe Ry. Co., 77 Mo. App. 258. (3) Instruction 1 is not erroneous, but is a correct instruction under the pleadings and proof in this case. (a) The length of the instruction is not reversible error. The instruction submits three assignments of negligence. It contains the requirements with respect to the beneficiaries of the deceased and sets out the measure of damages and authorizes the jury to diminish the damages in case deceased was guilty of contributory negligence. The instruction is clear and not confusing, and the mere length should not condemn it. Ward v. Mo. Pac. Railroad Co., 277 S.W. 908; Kidd v. C.R.I. P. Ry. Co., 274 S.W. 1079; Weller v. Railroad, 164 Mo. 180. (b) The instruction submits three assignments of negligence and it cannot be said that it is self-contradictory and self-destructive. Garard v. Coal Coke Co., 207 Mo. 259. (c) There was substantial evidence to support each portion of the instruction. (d) The instruction gives proper effect to the pecuniary loss sustained by the beneficiaries, which is the measure of damages under the Federal Employer's Liability Act. Gill v. B. O. Railroad Co., 302 Mo. 317. (4) The court did not err in refusing to give withdrawal instructions offered by defendant, since plaintiff abandoned the assignments of negligence sought to be withdrawn. Flach v. Ball, 240 S.W. 469; Johnson v. Wabash Ry. Co., 259 Mo. 534; Dietzman v. Screw Co., 254 S.W. 59; Berry v. Coal Co., 253 S.W. 456. (5) The court did not err in refusing to give appellant's Instruction 16, since by that instruction appellant sought to limit the recovery to negligence on the part of the train crew, whereas there was evidence that defendant's agent Penrod had knowledge of the dragging of the brake beam in time to have remedied the same and that he telephoned the defendant's station agent at Advance and notified him. Plaintiff had the right to go to the jury on as many assignments of negligence as there was proof of, and it was not error to refuse this instruction limiting the issues to one assignment of error. (6) There was no error in refusing defendant's Instructions 19 to 21, since it is undisputed that Penrod was in the station at Brownwood working at defendant's business at the time he received the information and heard the dragging brake beam and hence the defendant was chargeable with the knowledge of Penrod at that time. Penrod was the general agent of defendant at Brownwood whose duty it was to safeguard the operation of trains and to get notice to the crew if possible of the dragging brake beam. He admitted in evidence and testified that it was his duty so to do, hence there was no error in refusing the requested instructions. (7) The judgment of the trial court was not vacated by the appeal, but its operation merely suspended. The share of Fannie Williams, widow, who died after the judgment was rendered and pending this appeal, constitutes an asset of the estate of Fannie Williams, deceased. This suit cannot abate, so as to deprive her estate of its share of this judgment, which became vested on its rendition and entry in the circuit court. Lewis v. St. L.I.M. S. Ry. Co., 59 Mo. 495; Kansas City Southern v. Leslie, 238 U.S. 599; Federal Employer's Liability Act, sec. 8658, U.S. Comp. Statutes; C.B. Q. Ry. Co. v. Wells-Dickey Trust Co., 48 Sup. Ct. Rep. 73; Central Vermont Ry. Co. v. White, 238 U.S. 507; 2 Woerner, Law of Administration (3 Ed.) 979.
This is an appeal from a judgment against the St. Louis-San Francisco Railway Company and in favor of Fannie Williams, administratrix of the estate of Henry Williams, deceased, for fifteen thousand dollars on account of the death of said deceased, alleged to have resulted from negligence of said railway company. The deceased was an engineer on said railway company's passenger train number 876, northbound from Hoxie, Arkansas, to Cape Girardeau, Missouri, and was killed when the engine was derailed and overturned at a switch about 350 feet south of defendant's railway station at Advance, Missouri. The deceased left surviving him his widow, who commenced this action as the above-named administratrix, and three minor children. After judgment was rendered herein and while this appeal was pending said administratrix died, her death was suggested to this court, and Horace Siberell, administrator de bonis non of the estate of Henry Williams, deceased, was substituted as party respondent.
The suit was brought under the Federal Employers' Liability Act for the benefit of the widow and the three minor children. It was plaintiff's contention and the evidence tended to show that the engine driven by deceased was derailed and overturned by the lodgment in the frog of said switch of a part of a dragging brake beam or brake rod which had dropped down and was finally torn from the brake rigging of car numbered 32805 in defendant's northbound freight train numbered 848 which a few hours previous had passed over this track. Plaintiff went to the jury on three assignments of negligence, to-wit: first, that the brake beam or brake rod was dragging, and that the crew of the freight train in the exercise of ordinary care could have discovered it in time to have remedied it; second, that the train crew violated a rule of the railway company then in force which required trainmen to "know that the cars in their train are in good order before starting, and inspect them whenever they have an opportunity to do so;" and third, that the brake beam or brake rod was dragging between Brownwood and Advance, and that defendant and its agents and servants knew of this fact and could have prevented it from catching and becoming fastened in the frog. Defendant's answer was a general denial. At the close of plaintiff's case defendant interposed a demurrer to the evidence, which was overruled. At the close of the whole case defendant requested a peremptory instruction, which was refused.
Appellant first contends that its demurrer to the evidence should have been sustained and the peremptory instruction given. It is said that "under the Federal Employers' Liability Act negligence is an affirmative fact which plaintiff must establish;" that "the fact that the brake rod found Conjecture: wedged in the frog came from a car in the freight Causal train rests wholly on conjecture and speculation:" Connections. and that "there was no substantial evidence of negligence on defendant's part proximately resulting in the death of the deceased."
We do not agree that the fact that the brake rod found wedged in the frog came from a car in defendant's freight train rests wholly on conjecture and speculation. Three witnesses, one of them being defendant's station agent at Brownwood, testified that as this freight train, numbered 848, containing this car, numbered 32805, passed defendant's station at Brownwood which was about three miles south of Advance, they heard a noise beneath a freight car near the rear of the train such as a dragging brake beam or brake rod would make, and some of them saw an object beneath the car from which the noise came which looked like a dragging brake beam or brake rod. As the train approached Advance it consisted of an engine, tender, caboose, and about twenty-nine freight cars, these cars averaging forty feet in length. The train stopped with the engine headed north about two thousand feet south of the depot at Advance. The location of the frog of the switch in which a part of a brake beam or brake rod was found lodged immediately after the wreek a few hours later was variously estimated at one hundred feet to three hundred fifty feet south of this depot. The conductor of this freight train testified that car numbered 32805 was the seventh car from the rear of the train, so it is apparent that when this train started to leave Advance the car in question had not yet passed over this switch. This conductor further testified that as his train pulled out of Advance he stood twenty-five or thirty feet south of the depot and inspected every car, including the car in question, as the train passed, and that no brake beam or brake rod was dragging from any car. The evidence thus shows that a brake beam or brake rod was dragging from a car located about where freight car numbered 32805 was located in this train and that immediately after this car passed over the frog and switch in question no brake beam or brake rod was dragging therefrom. Car numbered 32805 was set out at Nash, about nineteen miles north of Advance, and the evidence further discloses that at that time it had no dragging brake beam or brake rod. The next day defendant sent its car inspector to Nash to inspect this car, and he testified that a brake beam or brake rod and other parts of the brake rigging had been newly broken from the car and were missing. The equipment that was missing generally corresponded with the broken portion found lodged in the frog of the switch and other parts attached thereto or found on the ground near by. After the wreek marks were discovered on the ties from Brownwood nearly to the scene of the wreek, such as a dragging brake beam or brake rod would make. We think the record presents substantial evidence, amply sufficient to go to the jury, from which the jury might well have concluded without guess or conjecture that the part found lodged in the frog of the switch was a part of a brake beam or brake rod that was dragging from car numbered 32805 when it left Brownwood.
We also think that the record presents substantial evidence proper to go to the jury tending to show that negligence of defendant was the proximate cause of deceased's death. As above stated, plaintiff pleaded the existence of a rule of the railway company which required the trainmen to "know that the cars in their train are in good order before starting, and inspect them whenever they have opportunity to do so." This rule was admitted in evidence and shown to be then in force. The train was stopped at a water tank about one-half mile south of Brownwood. One of the train crew testified that it was there inspected and no dragging brake beam or brake rod was reported. The train was next stopped at Brownwood for about ten minutes, but during that time it was not inspected, although if any one of the crew had even stood at the station and caught the caboose after the other cars had passed by him he would certainly have noticed what was seen and heard by other witnesses at the station, namely, an object like a brake beam or brake rod dragging from a freight car near the rear of the train. Instead of doing this, however, the entire crew rode out of Brownwood on the engine or no farther back than the middle of the train. Furthermore, defendant's own evidence showed that its station agent at Brownwood called by telephone for its station at Advance, got what purported to be this station, and told the person speaking to have the conductor on train number 848 to look over his train; that he thought he had something dragging. It is true the agent testified that he was off duty when this occurred, that the connection was poor and he did not recognize the voice speaking as that of defendant's agent or helper at Advance, but he also testified that "it is any employee's duty to look out for danger, in case of danger, if they considered that to be dangerous, any employee's duty to notify them:" and that he could have telegraphed this information and request to defendant's agent at Advance. It further appears that a few hours later, before the wreck occurred and while this same agent was on duty, he conversed for some time with the conductor of deceased's northbound train while it was stopped at Brownwood, but did not tell him of the dragging brake beam or brake rod or of his telephone call to defendant's station at Advance. There was substantial evidence that defendant's negligence proximately caused this engineer's death, and defendant's demurrer and peremptory instruction were properly ruled.
Counsel for appellant urge that it was prejudicial error to admit the testimony of plaintiff's witness Kelch as to the telephone conversation Penrod, defendant's station agent at Brownwood, had respecting a dragging brake beam, Telephone and to overrule the motion to strike out that Conversations. testimony. Mr. Penrod's deposition, taken by plaintiff, was substantially by the same as the testimony given by witness Kelch with reference to this telephone conversation. Mr. Penrod was also called as a witness for defendant and on his direct examination testified fully as to this telephone conversation and the matters previously objected to by counsel for defendant. Furthermore, notwithstanding the fact that defendant's station agent and helper at Advance, called as witnesses by defendant, said that they did not participate in and had no knowledge of any such telephone conversation with Mr. Penrod, the jury were the sole judges of their credibility. Witness Penrod testified that he called for the Frisco station at Advance through the regular telephone exchange connecting the towns of Brownwood and Advance, that when connection was made the voice that answered said it was the Frisco station at Advance, and when he finished his telephone message the voice at the other end of the line said the freight conductor would be notified. The facts connected with this telephone conversation are easily distinguishable from those presented in Strack v. Tel. Co., 216 Mo. l.c. 614, cited by appellant. It was not prejudicial error either to admit the testimony of witness Kelch or to refuse to strike it out.
At the trial defendant excepted to the action of the court in modifying and giving plaintiff's requested instruction numbered one consisting of four pages. Appellant here urges that this instruction "is so lengthy, involved and incomprehensible" that its effect was to confuse and mislead the jury. As Long to its length, we observe that it is the only Instruction. instruction given at the instance of plaintiff and it undertakes to present plaintiff's theory of the entire case. Had the same elements been presented in several instructions they, in the aggregate, would probably have been as long. Defendant's theory of the case is presented in eight requested instructions which were given. They cover more than four printed pages of the abstract, and appellant now claims that the trial court should have given eleven more of its requested instructions covering nearly nine additional pages of the printed abstract. Single instructions of great length and a multiplicity of instructions are both frequently condemned, and in the light of its own record defendant's criticism appears without the grace of consistency. However, whether the giving of a single long instruction or a very large number of short ones constitutes prejudicial error depends upon whether or not the instructions given are confusingly repetitions, vague or conflicting. If the thought and expression of a comparatively long instruction be logical, clear and necessary to a proper direction of the case we do not understand why its substance would not be as easily understood and remembered by the jury as the substance of a number of separate instructions which cover the same ground and in the aggregate are as long. We have carefully examined the instruction here given and do not regard it as confusingly involved, or incomprehensible, or to be condemned merely because of its length.
Appellant also says instruction numbered one "is conflicting in its own terms and self-destructive, authorizing a finding of two inconsistent and incompatible acts as the Two Proximate proximate cause of the death of deceased, (1) the Causes. brake beam or brake rod catching in the frog, and (2) the failure of the train crew in charge of the freight train to inspect the train at Brownwood and Advance, in violation of a rule of defendant requiring that trainmen must know that the cars in their train are in good order before starting, and inspect them whenever they have an opportunity to do so." We find no such inconsistency or incompatibility. Had the train been so inspected the dragging brake beam or brake rod would doubtless have been discovered and its lodgment in the switch frog could have been prevented.
Appellant further says that this instruction is not supported by the evidence in that there was no evidence of failure to inspect the freight train when it stopped at Brownwood and at Advance. Our above analysis of the evidence in this Inspection. respect clearly indicates that it was sufficient to go to the jury. An inspection was said to have been made at the water tank stop south of Brownwood, but none during the stop at Brownwood. The only inspection made at Advance was not when the train stopped there, but while the train was passing the depot as it pulled out of Advance. It seems too plain for repetition that if even the moving train had been inspected as it pulled out of Brownwood the dragging equipment would have been discovered, or if an inspection had been made while the train was stopped at Advance it would have been discovered in time to have prevented this wreck. When the train stopped at the latter station the rear cars were far south of the switch where the wreck subsequently occurred, and if the brake beam or brake rod was still dragging when the freight train started north to pull out of Advance the only inspection that was said to have been made being made from the depot platform was of course ineffectual because the dragging equipment was torn from the car and lodged in the frog of the switch south of the depot before that part of the train passed by the platform where the conductor said he was standing when he inspected the moving train.
This instruction, among other things, told the jury that they should take into consideration only the pecuniary loss sustained by the widow and minor children by reason of the death of Henry Williams "and in determining such loss, if any, the Mortality jury should base its findings on the present cash and Annuity value of the support, if any, lost to them by reason Tables. of the death of Henry Williams, if you find that he did so die causing such loss, and the jury may in determining such matter take into consideration the age of Henry Williams at the time of his death, if you so find, his probable duration of life and his earning capacity," etc. The record does not show that any mortality tables were introduced in evidence, and on such account appellant says that this part of the instruction is not supported by the evidence, and that the instruction fails to give proper effect to the standard prescribed by the Federal Employers' Liability Act for determining the amount of damages, as interpreted by the Supreme Court of the United States, citing Gulf, Colorado Santa Fe Ry. Co. v. Moser, Admx., 48 Sup. Ct. Rep. No. 4. p. 49, and other cases. The evidence showed that the deceased was forty-nine years of age, in good health, and earning an average of two hundred forty-two dollars a month at the time he was killed. The widow was thirty-three years of age, and the minor children were fourteen, sixteen and eighteen years of age, respectively. Appellant cites no authority holding that such a showing is insufficient to support an instruction like the above, or that in such a case failure of the plaintiff to introduce a mortality table in evidence is reversible error. As a matter of fact, the amount of the verdict returned is far less than the jury might have found by a strict application of mortality and present-worth-of-annuity tables, so it is apparent that the jury used no improper standard and defendant was not hurt if such tables were not used. In the cases cited by appellant. (Gulf. C. S.F. Ry. Co. v. Moser, 48 Sup. Ct. Rep. No. 4. p. 49: Chesapeake Ohio Railroad Co. v. Kelly, Admx., 241 U.S. 485, 491: Chesapeake Ohio Railroad Co. v. Gainey, Admr., 241 U.S. 494), the rule is thus stated:
"In computing the damages recoverable for the deprivation of future benefits, the principle of limiting the recovery to compensation requires that adequate allowance be made, according to circumstances, for the earning power of money: in short, that when future payments or other pecuniary benefits are to be anticipated, the verdict should be made up on the basis of their present value only."
The above rule was not violated in the instant case and there was substantial evidence to support the instruction given. [Gill v. Baltimore Ohio Railroad Co., 302 Mo. 317.]
Appellant also assigns error in the court's refusal to give defendant's withdrawal Instructions III. IV. V. VIII, IX and XI. Some of these instructions asked the court to hold that there was no evidence in support of certain alleged facts as to which we have already held there was sufficient evidence to go to the jury. The others related to original assignments of negligence which were abandoned by plaintiff during the trial or on submission of the case. The first class of instructions was, of course, properly refused. As to the second class, the trial court's refusal to give the requested withdrawal instructions did not harm defendant. [Johnson v. Railroad, 259 Mo. 534, l.c. 551; Dietzman v. St. Louis Screw Co., 254 S.W. (Mo. Sup.) 59, l.c. 65.]
Appellant complains of the court's refusal to instruct the jury that if they found that defendant's employees in charge of the train "could not, by the exercise of ordinary care on their part, have discovered the fact that said brake beam was dragging, then, independent of any other issue in the case, plaintiff cannot recover." The evidence shows that employees other than those in charge of the freight train were likewise charged with the duty to act whenever danger was apparent. This instruction was properly refused.
Also, defendant's requested "accident" Instruction XVIII, and instructions numbered XIX, XX and XXI to the effect that notice to agent Penrod of the dragging brake beam or brake rod when he was off duty was not notice to defendant, were all properly refused. The case made did not call for an "accident" Accident. instruction. As we said in Dietzman v. St. Louis Screw Company, 254 S.W. l.c. 65, this is "a case of negligence or no negligence as to defendant." We have already alluded to the fact that the evidence disclosed that whenever anything that an employee, whether on duty or not, deemed dangerous came to his notice it was his duty to report the condition to the proper authorities. Agent Penrod evidently understood this and acted accordingly. Whether or not Notice to he or other of defendant's employees were negligent Employee after he learned of the dragging brake beam or brake off Duty. rod was a question for the jury's determination under proper instructions.
Finally, appellant says that plaintiff Fannie Williams, the widow of deceased, having died after verdict and judgment and before the determination of this appeal, the action abates as to her, and since we have before us an unapportioned verdict a substantial part of which represents the pecuniary Abatement loss of the widow and not the children, the of Judgment. judgment should be reversed and the case remanded for a new trial in order that proper compensation for the minors may be determined by a jury. Sanders' Admx. v. Louisville N. Railroad Co., 111 Fed. l.c. 711; Martin v. Railroad, 151 U.S. l.c. 692; Mich. Cent. Railroad Co. v. Vreeland, 227 U.S. 59, 68, 70; and C.B. Q. Railroad Co. v. Wells-Dickey Trust Co., Special Admr., 48 Sup. Ct. Rep. No. 4, p. 73, are cited in support of this view. Respondent, on the other hand, contends that judgment below having been rendered during the lifetime of the widow in favor of certain beneficiaries, of which she was one, her interest therein vested in her at once, and when she thereafter died her interest in the judgment passed to and is now vested in her personal representative.
It may be conceded that the question as to whether a particular cause of action, dependent upon a statute, survives the death of the plaintiff, or of the beneficiary for whose benefit the action is brought, is a question of right, and not of procedure, depending upon the substance of the cause of action, and its solution must be sought in the statute giving the right of action, which in this instance is the Federal Employers' Liability Act. [Martin v. Railroad, 151 U.S. l.c. 692; Schreiber v. Sharpless. 110 U.S. l.c. 80.] It has also been decided that prior to the amendment of the Employers' Liability Act in 1910 no right of action thereunder survived the death of the injured employee (Mich. Cent. Railroad v. Vreeland, 227 U.S. l.c. 67); and that since this amendment and as the law now stands the right of action survives to the personal representative of the deceased "as trustee for the person or persons on whose behalf the act authorizes recovery," but that the cause of action accrues at the death of the employee and the vesting thereof is immediate, final and absolute with no shifting among the beneficiaries. [Chicago B. Q. Railroad Co. v. Wells-Dickey Trust Co., 48 Sup. Ct. Rep., No. 4, p. 73.] But these decisions at most only go to the question of whether or not a right of action survives the death of the person for whose benefit it was created when the death of such person occurs before any judgment is rendered in his favor. Such even is the effect of the holding in Sanders' Admx. v. Louisville N. Railroad Co., 111 Fed. l.c. 711, above cited by appellant. There the right of action involved arose under a Tennessee statute, and the person in whose favor the right of action was created died after the action was commenced and before any judgment whatever was rendered. Defendant thereupon filed a plea to abate the action on that account. Plaintiff's demurrer thereto being overruled and plaintiff refusing to plead further, defendant's plea in abatement was held good and plaintiff's petition dismissed. On appeal to the United States Circuit Court of Appeals this judgment was affirmed on authority of Railroad v. Bean. 94 Tenn. 388. An examination of the opinion in the Bean case discloses that the action was commenced by George Bean, administrator of Frank Murray, deceased. "to recover damages for the negligent killing of plaintiff's interstate." The widow, for whose benefit the action was instituted, died after a judgment was rendered for defendant and plaintiff had appealed therefrom. The plaintiff, therefore, never at any time had a judgment favorable to the person for whose benefit the right of action was by statute created, and no question of the vesting of a judgment favorable to a living beneficiary who thereafter died was in this case. Nor is such a question in any of the other cases cited by appellant, although, as suggested by respondent, on the record in the instant case, this question is vital and controlling. Hence, we conclude that the authorities cited and suggestions made by appellant in support of its motion to abate this suit pro tanto are not in point. Furthermore, in the instant case a final judgment was rendered for plaintiff as trustee for four living beneficiaries. The verdict was not defective because it was unapportioned, the apportionment having been held to be a proper matter for probate courts. [Central Vermont Ry. v. White, 238 U.S. l.c. 515; Kansas City Southern Ry. v. Leslie, 238 U.S. l.c. 603.] The right of action conferred by the statute upon certain individuals was merged in the final judgment and the interest of these individuals therein immediately vested subject to the laws governing the devolution of like property in case of death, and the doctrine of abatement would not apply. The rule applicable under the record presented in this case is thus stated in 1 Ruling Case Law, page 39:
"It is as obvious as it is elementary that a final judgment is the end of litigation. That which up to the moment of the entry of a judgment for the relief sought was a matter in controversy becomes an absolute debt of one party to the other. The cause of action then has ceased to exist, being merged in the judgment, and consequently, so long as the judgment remains in force, the doctrine of abatement has no further application, unless the case is one in which the death wholly eliminates the matter in controversy, such as a suit for divorce, which will abate on the death of either party so far as it relates to the status of the parties, except where property rights dependent thereon are involved or a bastardy proceeding, which will abate on the death of the defendant."
Of course the devolution of a judgment or any interest therein will not interfere with the unsuccessful party's right of appeal, and parties who have by any means acquired an interest therein may be adversely affected by the result of the appeal, but until the judgment is reversed or vacated it stands. We have frequently held that the death of one of several plaintiffs in error or one of several defendants in error neither abates a suit nor necessitates its revival in this court. [Prior v. Kiso, 96 Mo. l.c. 316: Maguire v. Moore, 108 Mo. l.c. 277: Essey v. Bushakra, 304 Mo. l.c. 237.] Appellant's motion to abate the suit pro tanto is denied.
For the reasons hereinabove stated the judgment of the trial court is affirmed. All concur.