This is a suit in damages under the Federal Employers' Liability Act, brought by Maude Crecelius as administratrix of the estate of Walter Crecelius, deceased, against the defendant, for the alleged negligent killing of the decedent, who was the husband of the plaintiff. She obtained a judgment in the sum of $25,000. From this judgment the defendant has duly appealed. This is the second appeal in this case. After a reversal in this court, Crecelius v. Ry. Co., 274 Mo. 671, the case was taken on change of venue to Daviess County, and plaintiff filed an amended petition. No questions are made as to the pleadings, except as hereinafter noted, and their contents need not be stated in detail.
The evidence in behalf of the plaintiff tended to show that the decedent was about thirty-five years of age, in good health, was employed by the month at a salary of about fifty dollars per month; that the plaintiff was his wife; that he left one child surviving him; that at the time of his death he was quite hard of hearing; that the defendant company was engaged in interstate commerce, and the deceased was and for some time had been in its employ as a time-keeper at Morley, Iowa. He was attached to a group of workmen which on the day of his death had been engaged in building a passing track (which was intended for temporary use only), in the *Page 34 vicinity of Morley, Iowa, but it appears that the embankment upon which the passing track was built was, to some extent at least, intended to be used and was thereafter used for permanent purposes; that is to say, the scheme of improvement then being executed by the defendant contemplated a correction of the grade of the main track and the laying down of an additional track at the point, thus making a double track for permanent use. In so doing, the embankment necessary in laying down the temporary track was apparently consolidated with the main track, and was left in that condition when the second line of the main track was laid down. It was the duty of deceased to attend the working force so engaged, and to check up the men at work at least twice a day. On the day that the decedent met his death, some of these workmen had been engaged in working on the temporary track, and some of them had been working on the main line, removing and replacing ties and rails. The men returned from work, as a rule, on a train provided for that purpose, at about six o'clock p.m. of each day. After their return to Morley, they occupied the bunk cars which were located on the south side of the double track at Morley. It then became the duty of the decedent to make out his daily reports. There were two of these reports; one, in a much condensed form, was sent by telegraph, and the other, in the form of a letter, was mailed on a train which usually left Morley at about 8:30 p.m. The decedent occupied one of the bunk cars, in conjunction with a number of other men. On the evening of his death, he had made out his telegraphic report and stopped with it at a car occupied by a witness named Kroumian, an Armenian who served in the double capacity of interpreter and a sort of assistant time-keeper. Decedent told Kroumian that all of the men had been at work that day, and that he (decedent) was going to send his telegraphic report. A number of Armenians and other foreigners were employed in this work, and Kroumian's duty, in part, was to act as interpreter in transmitting orders from the foreman to the Armenians. The *Page 35 evidence of the plaintiff tends to show that after the conversation with Kroumian above mentioned, the decedent left the bunk car in which the conversation occurred and went down to the south side of the passing track. He walked a short distance, some thirty or forty feet, west along the end of the ties on the south side of the passing track, until he reached the point at which he desired to cross the two tracks, which were apparently some nine or ten feet apart at that point. He then stepped in between the rails of the passing track, and looking to the east observed a way-freight train approaching from that direction. This train was so close to the decedent that he paused at that place to permit it to pass. As this train approached, the whistle was sounded, and when it had reached a point on the main track some eighteen or twenty feet from where the decedent was standing between the rails of the passing track, the decedent was struck by a gondola car which was being pushed by a work engine approaching him from the west. The freight train on the main track was still moving westward. Decedent was knocked down between the rails and his neck and back were broken. The body was found near or underneath the pilot of the engine.
The evidence in behalf of the plaintiff tended to show that the decedent had been standing between the rails with his face turned to the northeast, facing the train which was approaching from the east for about fifteen to twenty-five seconds, and that during that time the work engine pushing the gondola car approached from the west, with the result stated. Immediately before the decedent was struck and killed, some of the men who were in the bunk cars saw his danger and shouted a warning to the engineer upon the yard engine. This warning seems not to have been heard, or, if heard, was not heard in time. The engineer, however, discovered the decedent's perilous position before he was actually struck, and immediately endeavored to stop his engine and car. This attempt was made so forcibly and suddenly that *Page 36 the car was partially derailed and ran for a short distance upon the ties and over the body of the decedent, but without coming in contact with it further than as above stated. There is evidence in behalf of the plaintiff tending to show that there was no brakeman upon the front end of the car which struck the decedent, as the rules required, nor was there any light displayed there, nor was the headlight lighted; that the engine and car in question were running at a speed of twelve to twenty miles per hour; that such a rate of speed, under the circumstances, was excessive and dangerous, and that decedent could have been seen by one riding upon the front end of the gondola car in time for the car to have been stopped without injuring him. It further appears, and seems to be admitted, that there were something more than one hundred men occupying the bunk cars on the south side of the tracks mentioned; that the town of Morley lay to the north of these two tracks; that it was necessary for the men occupying the bunk cars to cross the tracks in order to get to the depot, the telegraph office and the stores at which they traded in the town of Morley, and also in order to procure the water and coal which they used in the cars in which they lived. The custom of these men frequently to be upon and about these tracks, and to be crossing them for the purposes above mentioned and for other purposes, was well known to the defendant company. At the time the decedent was struck and killed, it was about dusk, and snow was beginning to fall. The evidence for the defendant directly contradicted that offered in behalf of the plaintiff in many material matters, but the verdict is conclusive upon us on those matters of fact, and hence no useful purpose would be served in pointing out the conflicts in detail.
Upon the conclusion of the evidence for the plaintiff, the defendant asked for a peremptory instruction, which was refused, and a like request made at the conclusion of all of the evidence met with a like fate. Exceptions were duly saved in both instances. At the request *Page 37 of the plaintiff the court gave to the jury fourteen instructions, and at the request of the defendant gave to the jury eight instructions. Defendant also requested instructions marked A to N, inclusive, which were refused. Exceptions were duly saved as to the instructions given in behalf of the plaintiff, as well as to the refusal of those requested by defendant and refused by the court.
So far as it may become necessary to do so, the instructions and additional facts will be set forth in the opinion. Twenty-two grounds are alleged in the motion for new trial. Reference will be made in the opinion to such of them as it may be necessary to discuss.
I. Appellant assigns as error the action of the trial court in overruling appellant's motion to strike out certain portions of the amended petition upon which this case was tried. The motion was based upon the ground that the portions mentionedDeparture. were a departure from the cause of action theretofore stated. No time need be spent on this question, for the reason that appellant, by filing an answer and proceeding to trial upon the merits, waived the objection, even if the amendment did constitute a departure. [Schroeder v. Edwards,267 Mo. 459, l.c. 482; Castleman v. Castleman, 184 Mo. 432, l.c. 440; Scovill v. Glasner, 79 Mo. 449 l.c. 454.] If appellant desired to preserve this point, it should have stood upon its motion. Not having done so, it cannot now complain.
II. Appellant asserts that the court erred in not taking the case from the jury upon appellant's demurrer to the evidence. This contention is based, in part at least, upon the claim that the evidence conclusively shows that the deceased was guilty of contributory negligence. Without now determining the question of the negligence of the deceased, it suffices as to this contention to say that in suits under the Federal Employers' Liability Act, contributory negligence does not bar a recovery. [Grand Trunk Ry. Co. v. Lindsay, 233 U.S. 42; Sells v. A., T. *Page 38 S.F. Ry. Co., 181 S.W. (Mo.) 106, l.c. 114; Fish v. Railroad,263 Mo. 106, l.c. 122. We rule this point against appellant. Discussion of whether or not decedent was or was not engaged in interstate commerce is reserved for the next paragraph.
III. Appellant claims that the record fails to show that either appellant or decedent was engaged in interstate commerce, and that this action must therefore fail. That appellant was a common carrier engaged in interstate commerce is undisputed. The evidence in behalf of plaintiff tends to show that decedent was time-keeper for a group of workmen in the employ of appellant; that he was employed by the month; that his duties required him to keep a record of the men employed, to check them up at least twice daily; to make two daily reports to his superiors, one by telegraph and one by mail; that these duties usually consumed his time until about seven or eight o'clock in the evening; that he was killed at about 6:30 p.m.; that he was, at the moment when death overtook him, on his way to make his daily telegraphic report; that during the day upon which he died, the men under his observation were employed in part in constructing a temporary track and in part in work upon the main track; and that this main track was used by appellant in interstate commerce. The train which killed decedent was an intrastate train. Upon these facts, the question arises whether or not decedent was engaged in interstate commerce within the meaning of the Federal Employers' Liability Act. If he was not, appellant's demurrer to the evidence should have been sustained.
Upon this proposition the facts are substantially the same as upon the former appeal. In determining this question, which is one by no means free from difficulty, it may be said that the act here in question is a humane statute, and should receive a liberal interpretation.
"Enacted as the Federal Employers' Liability Act was to bring the United States law up to the humanitarian *Page 39 level of the laws of many of the states, by abolishing the unjust and irritating fellow-servant rule, by modifying the often harsh contributory-negligence rule, and by otherwise changing the common-law liability of interstate rail carriers to their employees, it should receive a liberal construction to promote its important purpose." [Dissenting opinion of Mr. Justice CLARKE, in Hull v. Philadelphia R. Ry. Co., 40 Sup. Ct. Rep. 358, l.c. 361.]
It is obvious, of course, that the work of a time-keeper is an important element in the operation of a railroad, and an invariable incident of construction and reconstruction work in that line of business. It is perhaps safe to say that the cost of doing such work without a time-keeper when, as in this instance, large numbers of men are employed, would be very largely increased. Sound business judgment, as evidenced by universal practice, dictates that the services of a time-keeper are an essential element in such work as was here being done. It is certainly as much so as the work of the seal-clerk in St. L. San Francisco Ry. v. Seale, 229 U.S. 156, where such a clerk was held to be engaged in interstate commerce, even though the station where the work of checking up the cars was being done was the final destination of those cars. The general principles laid down by the United States Supreme Court are applicable to the facts here involved, and in harmony with what we have said. In substance, that court has said that when the work being done "was in the nature of a duty resting upon the carrier" (Pedersen v. Del., Lack. West. Railroad., 229 U.S. 146, l.c. 151), or when the work being performed "was a minor task which was essentially a part of a larger one" (Pedersen case, supra, l.c. 152) or when the act in question "is so directly and immediately connected with such business, [i.e., interstate commerce] as substantially to form a part or a necessary incident thereof" (N.Y. Cent. H.R. Railroad Co. v. Carr, 238 U.S. 260), or when the *Page 40 employee was engaged in interstate commerce at the time of the injury, "or in work so closely related to it as to be practically a part of it" (Shanks v. Del., Lack. W. Railroad, 239 U.S. 556, l.c. 558; C.B. Q. Ry. Co. v. Harrington, 241 U.S. 177, l.c. 180) — then, in all such cases, the employee is said to be engaged in interstate commerce. Applying these principles as the test, we think that in the case in hand the decedent may properly be said to have been so engaged. In so saying we are conforming to the views of this court en Banc upon this question on the former appeal. Additional reasons and authorities are set forth in that opinion, and need not be repeated here.
IV. As upon the former appeal, appellant insists that the stipulation which is quoted in full in the former opinion, concludes respondent from contending that decedent was engaged in interstate commerce. This stipulation wasStipulation: Waiver. offered in evidence upon the second trial also, but, as upon the first trial, both parties to all intents and purposes ignored it. Evidence was introduced on both sides without regard to the stipulation and without objection on that ground. On the former appeal we held that both parties had waived the stipulation. Much the same situation is presented, in this regard, now as then; and our conclusion is also the same as before and for the same reasons. We rule this contention against appellant.
V. Appellant complains of instruction numbered two, given in behalf of respondent. This instruction relates to the use of the main and passing tracks above mentioned by the employees who were housed in the bunk cars at Morley, andInstruction: User. imposes upon the appellant the duty of using "reasonable care and caution for the personal safety of the occupants of said bunk cars while crossing said tracks." The point of the objection is that, as appellant claims, "to show user, it must be shown that the public as well *Page 41 as the employees used the track at the point of accident." This was an unfenced railroad yard adjoining the little town of Morley. The town lay to the north of the tracks. Something more than one hundred men, mostly Armenians and Bulgarians, were housed in the bunk cars south of the tracks. They were compelled to cross the tracks to go to the stores, the post-office, the telegraph office, to the hydrant when they obtained water, to the yard where they obtained coal, and to the only toilet facilities provided for them. Appellant well knew these facts and knew also that these men were constantly crossing these tracks for these purposes. Upon the plainest and most common principles of humanity, appellant was bound to use reasonable care and caution to avoid injuring them. They were its servants, housed by it in a place of its own selection. Whatever dangers were inherent in the situation — and that there were some, this record bears evidence — were dangers created by appellant and fully known to it. The lives of even the humblest strangers within our gates are tenderly regarded by the law. The fact that this record does not show that the general public also traversed these tracks does not absolve appellant from the exercise of the degree of care imposed by this instruction. Appellant cites us to no authority which so holds, and we would be loath to follow such an authority if it were cited. Degonia v. Railroad, 224 Mo. 564, l.c. 590, cited by appellant, is not a parallel case. User was neither pleaded nor proven in that case. It is both pleaded and proven here. We are not unmindful of the rule pronounced in Gabal v. Railroad,251 Mo. 257, and in Aerkfetz v. Humphreys, 145 U.S. 418, and similar cases, with reference to the status of employees, but we are not now dealing with the question of contributory negligence, but with the single objection above noted, to this one instruction. There is evidence in this record that it was not usual for the work train to be at this hour upon the passing track where decedent was killed, and there is also evidence *Page 42 that the fatal train was running at a rate of speed which was excessive and dangerous under the circumstances. There is no merit in the objection to this instruction. [Kippenbrock v. Railroad, 270 Mo. 479, l.c. 484.]
VI. Appellant assigns error in the action of the court in "permitting expert testimony as to what was the negligent running of engines in the Morley yard." This assignment is hardly an accurate description of the testimony. SeveralExpert Testimony. witnesses who were shown to have had large experience in railroad work, were asked and permitted to answer questions relating to the reasonable and proper rate of speed at which an engine should be driven under the conditions existing at the time decedent met his death, and also as to whether or not it was reasonable and proper to have some one stationed on the front end of the gondola car which was, on this occasion, being pushed through the yard at Morley by the work engine. The competency of these witnesses is not attacked. The objection is taken solely to their evidence. They testified, in substance, that a reasonable and proper method of doing the work involved would have been to limit the speed of the engine to six or seven miles per hour, and that a brakeman should have been stationed on the front end of the gondola car, if the work were to be done in a reasonably safe and proper manner. In this we think there was no error. The manner of doing work of this character was a proper subject for expert evidence. [Meily v. Railroad, 215 Mo. 567, l.c. 589.] The witnesses were competent and the questions were in proper form. [Kaminski v. Tudor Iron Works, 167 Mo. 462, l.c. 466; Meily v. Railroad, supra, l.c. 593.] We rule this contention against the appellant.
VII. One question remains to be determined. Appellant affirms that the damages assessed are excessive. This contention is one which seems not to have been *Page 43 urged upon the former appeal, although theExcessive Verdict. same sum was allowed by the trial court then as in this instance. It is a question which gives us serious pause.
Instruction number fourteen given in behalf of respondent upon the measure of damages is as follows:
"If under the evidence and the instructions, the jury finds for the plaintiff, and if the jury furthur finds from the evidence that the wife and child of Walter Crecelius were dependent upon him, and that they have sustained financial or pecuniary loss by reason of his death, then, in assessing the damages, if any, the jury may take into consideration the age of deceased, Walter Crecelius, his occupation, the condition of his health and his habits, and his earning capacity, as shown by all the evidence before you on said subjects, and you may take into consideration such a sum as you believe from the evidence will reasonably compensate the plaintiff for the loss of such pecuniary benefits as the evidence shows she, as the wife of said Walter Crecelius, and her child, had reasonable expectation of receiving from him, basing such assessment on financial loss as shown by the evidence, not to exceed in all, however, the sum of fifty thousand dollars."
Appellant criticizes this instruction in general terms, but we think it was well enough. [Boyd v. Railroad, 249 Mo. 110, l.c. 126.]
The serious question is as to the amount allowed under this instruction. The decedent was shown to be thirty-four years of age, with a life-expectancy of thirty-two years, of sound health, industrious, and of good habits. He was earning a salary of about $52 per month and subject to no bodily infirmity, except that he was somewhat deaf. There is some more or less vague evidence that he had been promised an increase of salary to $100 per month, but this was a matter of expectancy rather than of fact.
Respondent is entitled to recover reasonable compensation for the pecuniary loss sustained by herself and *Page 44 daughter as the result of the death of the husband and father. No element of punitive damages enters into the case, nor is there any allowance for suffering either mental or physical on the part of the deceased, nor for any mental anguish resulting to plaintiff or her daughter. Cold as the doctrine may seem, the assessment is one which contemplates a calculation of the money value, to plaintiff and her daughter, of the life of the husband and father. Furthermore, this sum must also, under the provisions of the Federal Employers' Liability Act, be reduced, if decedent's own negligence contributed to his death, in the proportion that such negligence on his part was a factor in the total negligence which culminated in his untimely taking-off. That the decedent was guilty of contributory negligence, we decided on the former appeal, and nothing appears in the present record to justify a different finding. The judgment below was for $25,000. We must take into account the fact that the living expenses of decedent himself would have to be paid out of his earnings, and we must make proper deduction for his contributory negligence. Viewed even with a lenient eye, the judgment is obviously excessive. To reduce the amount allowed by two presumably honest and intelligent juries for the loss sustained by the negligent slaughter of a husband and father, is a hard and ungrateful duty. But duty is not to be shirked merely because it is difficult or unpleasant. We have endeavored to consider this question with care. We have taken into consideration the fact that deceased, were he alive now, would probably be earning much more than when he was killed, and we are not unmindful of the evidence touching upon the promised increase in his salary, but, on the whole, we are constrained to believe that this verdict ought to be reduced to $15,000.
If, therefore, the respondent will within ten days enter aremittitur of $10,000 as of the date of this judgment, the judgment will be affirmed. Otherwise, the cause will be reversed and remanded.
It is so ordered. All concur; Woodson, J., absent. *Page 45