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Thompson v. Granite Bituminous Pav. Co.
(Mo. App.). . . . . . . . . . . . . . . . . . . . . . . . . 496
Thompson v. Thompson (Tex. Civ. App.) 939
Tierney Coal Co. v. Smith’s Guardian
(Ky.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 731
Tipton, Francis v. (Ky.) . . . . . . . . . . . . . . . . 524
Tomme, West Lumber Co. v. (Tex. Civ.
App.) . . . . . . . . . . . . . . . . . . . . . - - - - - - - - - 784
Toole v. Moore (Tex. Civ. App.). . . . . . . . . . 429
Townsend v. Neuhardt (Tenn.). . . . . . . . . 255
Travelers’ Ins. Co., Carthage Stone Co. v.
(Mo.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 822
Travelers' Ins. Co. of Hartford, Conn., Bel-
lows v. (Mo.) . . . . . . . . . . . . . . . . . . . . . . . . 978
Truitt & Co. v. Gardner (Mo. App.) . . . . 638

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of City of Mayfield v. (Ky.) . . . . . . . . . . . . 520 Tuec Co. v. McKnight & Merz (Tenn.). . . . .338 Tune, State ex rel. Douglas v. (Mo. App.) 465 Turner v. Bowens (Ky.) . . . . . ". . . . . . . . . . . 740 Turner v. Gregory (Tex. Civ. App.).... 615 Turney, Hess & Skinner Engineering Co. v.

(Tex.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 593

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Tuttle, Louisville & N. R. Co. v. (Ky.). , 308
Uhlmer v. St. Joseph Gas Co. (Mo. App.) 216
United Clothing Stores, Julian V. (Ky.) .. 549
Jnited Rys. Co. of St. Louis, Aqua Con-
tracting Co. v. (Mo. App.). . . . . . . . . . . . 479
United Rys. Co. of St. Louis, Aqua Con-
tracting Co. v. (Mo. App.). . . . . . . . . . . . 481
United Rys. Co., Aqua Contracting Co. v.
- (Mo. App.): . . . . . . . . . . .. . . . . . . . . . . . . 483
United RyS. CO. Of St. Louis, McMahon W.
(Mo. App.): . . . . . . . . . . . . . ::... . . . . . . . . 500
United Rys. Co. of St. Louis, Nitchman V.
(Mo. App.). . . . . . . . . . . . . . . . . . . . . . . . . . 491
United Rys. Co. of St. Louis, Winterman
v. (Mo. App.). . . . . . . . . . . . . . . . . . . . . . . 486
United Rys. Co. of St. Louis, Woodis V.
(Mo. App.). . . . . . . . . . . . . . . . . . . . . . . . . . 489
Urbahn, Espejo Land & Irrigation Co. v.
(Tex. Civ. App.). . . . . . . . . . . . . . . . . . . . 920
Vail, Dickinson v. (Mo. App.). . . . . . . . . . . . 635
Vanover v. Justice (Ky.). . . . . . . . . . . . . . . . 321
Van Pelt v. Russell (Ark.). . . . . . . . . . . . . . . 267
Vaughan, Barr v. (Ark.) . . . . . . . . . . . . . . . 589
Vaughn, City of Louisville v. (Ky.). . . . . . 546
Vaughn v. Wells (Ky.). . . . . . . . . . . . . . . . . . 191
Verser, Lilly V. (Ark.). . . . . . . . . . . . . . . . . . 31
Vick, Werts Heirs v. (Tex. Civ. App.). . 63
Vickstrom, Southwestern Surety Ins. Co.
v. (Tex. Civ. App.). . . . . . . . . . . . . . . . . . . . 389
Vinson v. State (Tenn.). . . . . . . . • - - - - - - - - 338
Violette, Mitchell v. (Mo. App.). . . . . . . . . . 218
Vose Wall Paper Co., Bauerdorf V. (Mo.
App.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220
Wabash R. Co., Irminger v. (Mo. App.) . . 660
Wabash R. Co., McCoy v. (Mo. App.). . . . 249
Wade, Shelton v. (Tenn.). . . . . . . . . . ... .. 253
Walden v. Cumberland R. Co. (Ky.). . . . . S54
Walker-Smith Co., Western Indemnity Co.
v. (Tex. Civ. App.)... . . . . . . . . . . . . . . . . 93
Waller v. J. H. Lewis & Co. (Ark.) . . . . . . 697
Wallis, Chess & Wymond Co. v. (Ark.). . 274
Walsh, Stroburg v. (Tex. Civ. App.). . . . . . .391
Walton v. Walton (Tex. Civ. App.)..... 133

Ward v. Compton (Tex. Civ. App.)....... 129 |

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Waterworks Imp. Dist. No. 1 of Tillar,
Missouri Pac. R. Co. v. (Ark.). . . . . . . . 696
Watkins v. State (Tenn.). . . . . . . . . . . . . . . . 344
Watkins Medical Co. v. Horne (Ark.). . . . 24
Watts v. Baker (Tex. Civ. App.). . . . . . . . 623
Wayne, Faver v. (Ark.). . . . . . . . . . . . . . . . 22
Weatherby, Kansas City, M. & O. R. Co.
of Texas v. (Tex. Civ. App.). . . . . . . . . . 703
Webb, Canadian Oil & Gas Co. v. (Tex.
Civ. App.) . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Webb v. State (Tenn.). . . . . . . . . . . . . . . . . 955
Webb's Ex’r, Kentucky Distillers' & Ware-
house Co. v. (Ky.) . . . . . . . . . . . . . . . . . . 870
Wells, Vaughn v. (Ky.) . . . . . . . . . . . . . . . . 191
Werts Heirs v. Vick (Tex. Civ. App.)... 63
WeSC0 Supply CO, V, Smith (Ark.), , , , , , 6
Westbrook Grain & Milling Co. v. Johnson
(Ark) ... . . . . . . . . . . . . . * - - - - - - - - - - - - - - - 1032
Westchester Fire Ins. Co. v. Thomas Gog-
gan & Bro. (Tex. Civ. App.). . . . . . . . . 163
Western Assur. Co. of Toronto, Canada, V.
Busch (Tex. Civ. App.). . . . . . . . . . . . . . . . 460
Western Indemnity Co. v. Walker-Smith
Co. (Tex. Civ. App.). . . . . . . . . . . . . . . . . . . 93

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(Ky.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192
West Lumber Co. v. Tomme (Tex. Civ.
App.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 784
Whipple v. Keith (Ark.). . . . . . . . . . . . . . . . 841
White v. Texas Motorcar & Supply Co.
(Tex. Civ. App.). . . . . . . . . . . . . . . . . . . . . . 441
White County, Putnam County v. (Tenn.) 334
White Sewing Mach. Co., Searight v.
(Tenn.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 330
Whitener v. State (Tex. Cr. App.). . . . . . . 48
Wichita Falls Motor Co. v. Meade (Tex.
Civ. App.) . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Wichita Falls Sash & Door Co. v. Jack-
son. (Tex. Civ. App.). . . . . . . . . . . . . . . . 100
| Wiggington, Connecticut Fire InS, CO. Of
Hartford, Conn., v. (Ark.) : . . . . . . . . . . . 844
Wilkerson, Dunn v. (Tex. Civ. App.).... 59
Wilkie v. State (Tex. Cr. App.). . . . . . . . . . 1091
Wilkin V. Boyce (Ark.) . . . . . . . • - - - - - - - - - 1183
Wilkinson v. Hudspeth (Ark.). . . . . . . . . . . 263
Willard v. Willard (Ark.). . . . . . . . . . . . . . . . 1019
Williams, Cameron v. (Tex. Civ. App.). . . . 928
Williams, Engles v. (Mo. App.). . . . . . . . . . 671
Williams v. Inter-Southern Life Ins. Co.
(Ky.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 549
Williams v. Missouri Pac. Co. (Ark.). . . . . . 1038
Williams v. Moore (Mo. App.). . . . . . . . . . . .824
Williams, Nations v. (Tex. Civ. App.). . . .1176
Williams Coal Co., Auxier v. (Ky.) . . . . . . 31()
Winburn v. Commonwealth (Ky.) . . . . . . . . . 1073
Winterman v. United Rys. Co. of St. Louis
(Mo. App.). . . . . . . . . . . . . . . . . . . . . 486
Winters, Robbins v. (Tex. Civ. App.). . . . . . 149
Wittmeyer v. Storms (Mo. App.). . . . . . . . 237
Woodis v. United Rys. Co. of St. Louis
(Mo. App.). . . . . . . . . . . . - - - - - - . . . . . . . 489
Woods v. State (Tex. Cr. App.). . . . . . . . . .54
Wright, Ogilvie v. (Tenn.). . . . . . . . . . . . . . 753
Wright V. State (Tex. Cr. App.) . . . . . . . . 775
|W. T. Rawleigh Co., Dodd W. (Tex. Civ.
App.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
Wunschel V. Farmers' State Bank (Tex.
Civ. App.). . . . . . . . . . . . . . . . . . . . . . . . . . . 924
Wurdack, State v. (Mo. App.). . . . . . . . . . . . 502
Wurzburg v. New York Life Ins. Co.
(Tenn.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 332
Wyatt, City of St. Joseph V. (Mo.) . . . . . . . . 819
Young v. State (Ark.). . . . . . . . . . . . . . . . . . . 11.83

York Lumber & Mfg. Co. v. McKnight &
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. 203 S.W. (xvi)+

THE

SOUTHWESTERN REPORTER VOLUME 203

(134 Ark. 1) JENKINS V. MIDLAND WALLEY R. CO. (No. 303.)

(Supreme Court of Arkansas. April 22, 1918.)

1. DEATH 6:531(3) — RIGHT OF WIDOW AND NEXT OF KIN–STATUTES. Under Kirby's Dig. §§ 6289, 6290, the right of the widow and next of kin to sue for a wrongful death is dependent upon there being no personal representative of decedent. 2. DEATH 6:929–SURVIVAL OF CAUSE OF ACTION–STATUTES. Despite Kirby's Dig. § 6285, providing that wrongs done to the person or property of another shall survive the death of the injured person and the wrongdoer, a widow's cause of action, under sections 6289 and 6290, against a railroad for the death of her husband, and the cause of action of the husband's administrator for her benefit, did not survive her death, 3. DEATH G->101—ACTION BY ADMINISTRATOR —SEPARATE RECOVERY. In suit by an administrator for the benefit of the widow and next of kin of his decedent 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, according to the pecuniary injury resulting to each from the death. 4. RAILROADS S->398(2)—DEATH ON TRACK— NEGLIGENCE—SUFFICIENCY OF EVIDENCE. In an administrator's action against a railroad for a wrongful death, evidence held sufficient to justify the finding of negligence on the part of the railroad's servants in throwing cars in on a switch track without signal or other warning, or without having a brakeman in charge, or in throwing the cars on the track with sufficient violence to set other cars on the track in motion. 5. RAILROADS @:256 – CONCURRENT NEGLIGENCE—INJURIES ON TRACK. If there was negligence of persons other than a, railroad's servants in leaving uncoupled Cars already on a track, and also negligence of the , railroad's servants, in throwing in additional cars on such track with such violence as to put the cars already there in motion, killing plaintiff's decedent, there was a case of concurrent acts of negligence, rendering the author of each responsible for the injuries. 6. DEATH 3:103(4) — DEATH BY WRONG FUL £Loss OF NEXT OF KIN-QUESTION FOR URY. In an administrator's action against a railroad for the death of his decedent, the extent of the loss sustained by adult children held for the jury, under the evidence that decedent, though old, had a reasonable expectancy of life, earned good wages, and made frequent though irregular contributions to his children. 7. TRIAL Q->188 – INSTRUCTIONS.-INVADING PROVINCE OF JURY. In an administrator's action against a railrailroad for death of the employé of a coal

mine, an instruction that, if the jury found it was the custom of the railroad's employés not to go with their trains below the run-around, and it was the custom of the employés of the mine to go at will upon the mineyard, it was not negligence for deceased to be on any track othér than the run-around track was properly refused, where, though the facts recited in the instruction were found to exist, the question of decedent's negligence in standing near the end of a car under the tipple would still be for the jury under all the circumstances.

Appeal from Circuit Court, Sebastian County; I. S. Simmons, Special Judge.

Action by Thomas Jenkins, administrator, against the Midland Valley Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, and cause remanded for new trial.

R. W. McFarlane, of Greenwood, for appellant. O. E. Swan, of Muskogee, Okl., and Thos. B. Pryor, of Ft. Smith, for appellee.

McCULLOCH, C. J. [1] The death of T. L. Jenkins resulted from alleged negligent acts of servants of the defendant railroad company, and this action was instituted against the company by the administrator of the estate of said decedent to recover damages for the benefit of the estate and for the benefit of the next of kin, consisting Of four adult children of decedent. The WidOW of the decedent died after the death of the former, and the individual Who was the administrator of the estate Of T. L. Jenkins also became administrator of the widow, and as such joined in the Suit. The heirs of Jenkins also joined. The Court Sustained a demurrer to the complaint of the administrator Of the eState Of the deceased Widow and of the heirs. That ruling was correct, for the right of a widow and next of kin to sue is, under the statute, dependent upon there being no personal representative of the decedent. Kirby's Digest, §§ 6289, 6290; Kansas City So. Ry. Co. v. Henrie, 87 Ark. 443, 112 S. W. 967.

[2, 3] It is also contended that the ruling Was correct So far as it concerns the Suit for the benefit of the estate of the Widow for the further reaSOn that her CauSe Of action and the cause of action for her benefit did not survive her death. In View of another trial of the case it is proper to decide that question, for the complaint States a cause

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

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of action in favor of the administrator Of T. L. Jenkins for the benefit of the next of kin, and if the right of action for the benefit of the Widow Survived her death, there may be a recovery by the administrator for the benefit of the Widow’s estate as well as for the benefit Of the next of kin. Our Statute provides that a right of action for “wrongs done to the person or property of another” shall Survive the death of both the injured person and the Wrongdoer, and that the action may be maintained by the executor or administrator of the person injured against the wrongdoer, or after his death against his executor or administrator “in the same manner and with like effect in all respects as actions founded on contracts.” Kirby's Digest, § 6285. Another statute Which was patterned after Lord Campbell's Act confers a right of action against the wrongdoer for the benefit of the next of kin of a deceased person whose death Was caused by the “Wrongful act, neglect or default” of another, but the Statute is silent as to the survivability of such right of action. Kirby's Digest, §§ 6289, 6290. This court has decided that the “injury to the person” mentioned in section 6285 means Only a bodily injury or damage of a physical character, and that pecuniary damages resulting to a person from the death of another is not an injury to “property” within the meaning of that section. Davis V. Nichols, 54 Ark. 358, 15 S. W. 880; Billingsley v. St. L., I. M. & S. Ry. Co., 84 Ark. 617, 107 S. W. 173, 120 Am. St. Rep. 95. In the first case cited above the court held that a right of action under sections 6289 and 6290 for the benefit Of a Widow did not survive the death of the wrongdoer; and in the other case cited, the court held that a husband’s right of action against a Wrongdoer for the death of his wife did not SurVive the husband's death. It necessarily follows, we think, from those decisions that a right of action under sections 6289, 6290 for the benefit Of the Widow On account Of the death of her husband by the wrongful act of another does not survive her death. In the case of Davis v. Nichols, supra, the widow was the sole beneficiary of the cause of action involved in that branch of the Suit, and in that respect it is distinguishable from the present case, but the principle there announced is applicable, for Such a Suit by an administrator for the benefit of the widow and next of kin of a decedent, though maintained for the joint benefit of all of the beneficiaries, there is a separate recovery for the benefit of each, according to the pecuniary injury resulting to each from the death by wrongful act. Railway CO. V. Sweet, 60 Ark. 550, 31 S. W. 571; Kansas City So. Ry. Co. v. Henrie, Supra. Where One of the beneficiaries in such a suit dies, the right of action to that extent

it may continue in the interest of other beneficiaries. The surviving beneficiaries do not succeed to the rights of the deceased one, but the recovery for their benefit is limited in extent to compensation for the injuries Sustained by them on account of the Wrongful act of the defendant. This brings us to a consideration of the questions concerning the rulings of the court during the progress of the trial. Jenkins received fatal injuries by being knocked down and run over by a freight car at the tipple in the yards and premises of a coal mine near Greenwood, Ark. The track on which the Car stood was connected With the line of defendant company, and the car was suddenly bumped and put in motion by other freight cars thrown in on the track by servants of the Company. The railroad company has a Spur extending from GreenWOOd northeast to Fidelity, a distance of about two miles, and the coal mine where Jenkins was injured is near this spur track, about midway between the two points mentioned. A switch track runs off from the spur track to the coal mine, and passes under the tipple Where cars are loaded with coal when the mine is in Operation. Connected With the Switch track are certain other tracks which parallel the switch track alongside the tipple. Cars are furnished by defendant company to the operators of the coal mine by placing them on the switch track, and as the cars are needed they are pushed back to the tipple by an employé of the coal mine known as the “car hustler,” who uses a pinch bar to start a car rolling along the track to the tipple. The car hustler also lines up the switches connecting the switch track with the run-around tracks. The coal mine was not in Operation on the particular day Jenkins was killed, but a loaded car, or One to be loaded, Was Standing under the tipple at that time, and Jenkins was at the end of it away from the Fidelity spur track. Four empty cars were standing on the switch track about 300 feet or farther from the tipple, between the tipple and the spur track, and the switch connecting the run-around tracks with the switch track was closed, so that cars moving down the switch track would pass to the tipple and strike the car standing there. The train came along the spur track from Greenwood en route to Fidelity, pushing a caboose and several empty cars to be left on the Switch track for use at the mine, and those cars and the caboose were thrown in on the Switch track. The evidence tended to show that no signal by bell or whistle was given of the passing of the train, and that no one was on the cars Or Caboose When they were thrown in on the SWitch track, and that the CarS moved rapidly down the Switch track and struck the other cars which Were standing uncoupled and without brakes being set, On dOWn the SWitch track and Struck With great Violence the car behind which Jenkins Was Standing. Serious injuries Were inflicted, from which Jenkins suffered pain and shortly died. [4] The eWidence iS Sufficient to justify a finding of negligence on the part of the employés of the railroad company in throwing in the cars on the SWitch track Without Signal or other Warning, or without having a brakeman in charge to control the movement of the cars, and in throwing them on the track with Sufficient violence to Set in motion other cars on the track. It Was reasonably to be anticipated, or the jury might have found it so, that injury would result to persons or property by violently throwing cars in upon a switch track without giving warning or without placing some One in charge of the cars to control their movement, especially where there were other cars standing on the track, as was the case in this inStance. [5] The evidence tended to establish negligence on the part of the car hustler or other employés of the mine operator in leaving the cars on the switch track uncoupled and without the brakes being set, and the testimony also warrants the finding that the custom was for the car hustler to leave the switch lined up with the run-around track, and if that had been the condition in this instance the cars would have not have moved on down the switch track so as to strike the car behind which Jenkins was standing. It is contended that under this state of facts the negligence of the employés of the coal company intervened so as to prevent the alleged negligent act of the Servants of the railroad company from being the proximate cause of the injury to Jenkins. The trial court took that view of the law, and instruct: ed the jury accordingly over the objections of plaintiff. One of the instructions on that subject reads as follows: “You are instructed that if the employés of the defendant, when they placed the cars which were standing upon the spur track, prior to the day of the injury, properly set the brakes so that the cars were in no danger. of rolling down the track, and so they would withstand the impact of the caboose and other cars, then they had a right to presume, when they started to place additional cars on the spur track, that the brakes were as they had fixed them, unless there is proof that defendant's employés. had knowledge of the loosening of the brakes, if the proof shows that they were loosened, and in this connection you are instructed that if you find that some of the cars which had been placed upon the spur track prior to the day of the accident rolled down the spur track when additional cars were coupled onto them by reason of the brakes on said cars, which were already standing on said track, having been loosened by some person other than the defendant's em: ployés, and without defendant's knowledge, and that they would not have started to roll but for the fact that the brakes were so, loosened, then the plaintiff cannot recover in this case. The same idea is embraced in other instructions, and it was an incorrect interpretation

of the law, for if there was negligence of other persons in leaving the cars already on the track uncoupled, and also negligence of the employés of the railroad company in throwing in the additional cars with Such Violence as to put in motion the CarS already there, then there is presented a case of concurring acts of negligence which rendered the author of either responsible for the injuries inflicted. [6] Instruction No. 3, given at the instance of defendant, Was erroneous in telling the jury that the evidence was not sufficient to justify a recovery for pecuniary loss sustained by the next of kin. Jenkins was a very old man, and his children were all adults, but the evidence tended to show that he had an expectancy of life for a reasonable length of time, and earned good wages and made frequent contributions to his children, although the contributions were not made regularly. It was a question for the jury to determine under that proof the extent of the loss Sustained by the adult next of kin by reason of the death of the father. Kansas City So. Ry. Co. v. Frost, 93 Ark. 183, 124 S. W. 748. [7] Another assignment of error is the ruling of the court in refusing to give the following instruction: “The court instructs you that one of the defenses set up by the defendant is that the deceased was guilty of contributory negligence in occupying the place he did at the time of the injury. The court instructs you that if you find by a preponderance of the evidence that it was the custom of the employés of the defendant, not to go with their trains and cars, below the run-around track, and that it was the custom for the employés of the mine to go at will upon the mineyard, then it was not negligence for the deceased to be on any other track than the run-around track.”

We are of the opinion that the proof in the case calls for an instruction. On that subject, but it does not follow that the above in Struction in that form WäS COTTeCt. Jenkins was not engaged in loading the Car at the time he was struck, and the evidence is not clear as to what he was doing there at that time, but he was an employé of the COal company, and Was not a trespasser in being at that place on the premises of his employer. It Would have been proper to give an instruction submitting those facts, if found to exist, for consideration of the jury in paSSing upon the question of contributory negligence On the part of Jenkins, but this particular instruction was incorrect in telling the jury that Jenkins should be exonerated from the charge of negligence if it was the custom of the railroad company not to place cars below the run-around track, and that it was the custom of the employés of the mine to go at will upon the mineyard. Even though the facts recited in the instruction were found to exist by the jury, the question of Jenkins' negligence in standing near the end of the car under the tipple would

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