This is a suit brought against appellant railroad company by the administrator of the estate of John Gunn, deceased, for the benefit of the widow and the next of kin of said decedent for damages occasioned by reason of the alleged negligent killing of deceased by a train' of appellant. Damages are laid in the sum of $25,000, and plaintiff recovered a judgment- for $10,000, from which the defendant appealed.
Appellant claims that the evidence is insufficient to sustain the verdict, and that the court erred in refusing to instruct the jury peremptorily to return a verdict in its favor, but concedes that, if the testimony is legally sufficient, there was no error in the instructions or other proceedings. Deceased was a section hand employed by appellant, and worked under one Lisk as foreman. On the morning of September .12, 1901, deceased and the foreman, and gang,' of which he was a member, started on a handcar from Coin, a station on appellant’s road, to the place of their labor of the day. After running only about one-fourth of a mile they discovered the approach of a local freight train, and hastily stopped the handcar, and endeavored to remove it from the track. It is contended on behalf of appellee that Gunn was killed while assisting, under orders of the foreman, in the removal of the handcar from the track, and while so engaged appellant was guilty of negligence, through its foreman, in failing to warn him of the imminent danger. Appellant claims, on the other hand, that Gunn was duly warned of the near approach of the train, and, pursuant to the warning, left the track, but voluntarily returned to secure his dinner pail, and in so doing was struck by the engine and killed. On this point there is a sharp conflict in the testimony, and it is -not the province of this court to determine where the weight lies. The foreman and several of the section hands testified that, when they discovered the approaching train, they, with deceased, stopped the handcar, and tried to lift it off the track, and partially succeeded, but one end of the car was against a stump, and they failed to get it off; that the foreman then called out to the hands to leave the car, and they all ran up the hill, and across a ditch about twelve feet away from the track, when deceased returned to the car to get his dinner pail, and was struck by the train. George Carson, a witness introduced by the plaintiff, testified that he was about 200 yards away, and saw the accident, which he described as follows: “There was one man standing at the left corner of the car, and when they went to throw the car off they throwed the car this way — one side — and there were three at that end, and two at this, and when it caught that way, the car dropped down, the hind end, and they seemed to give away, and let it drop two or three times before they got it off. About the time I thought they had shoved the car off the track, two of these men run right around the car there this way, and this man left at this corner had never raised up out of a stooping position, and these two men, just as they passed by, the engine struck the car, they just got away.”
“Q. Before the car was struck, had any of these men left the track and gone back?
“A. No, sir; I never saw any come back; no man at all.”
George Gunn, a son of deceased, testified that the accident occurred in his view, and he described it as follows:
“Well, like this way: the track (indicating) and the car running up that way, and they were all on there running. He was right there on the front end, and when they got ready to get off the car, why, three of them got off at one end, and two at the other end, and they moved the car around, and got it across the track that way, and then went to lifting the car and got it, it looked to me like, pretty near off, and part of the men started to run up the bank, and two of them stayed with that end of the car, and it looked to me like, I know it got one of them, and it looked like the other one just got away.
“Q. Which way were you looking?
“A. I was looking right up the track.
“Q. ■ Was there anything in the track to obstruct your view?
“A. No, sir; he was struck at this corner of the car (indicating) .
“Q. And the other man ran around the car, and ran up the bank ?
“A. Yes, sir.
“Q. Had any of these men prior to that time left the handcar before that ?
“A. They left when the train was pretty close.
“Q. They left just about the time the train struck the man?
“A. Yes, sir.
“Q. Did you see anybody .before the train struck the car and the man; did you see any one run up the bank and come back ?
“A. No, sir; no, sir.”
Two of the witnesses, John Bridgeford, and T. L. Plummer, who were passengers on the train, testified that they looked out of the car window, and saw the engine strike the handcar and a man who appeared to be trying to get it off the track, and that several of the men were running up the hill. The testimony of both these witnesses tended to show that deceased did not leave the handcar and return after crossing the ditch. The jury was therefore warranted in finding from the testimony that deceased was struck while at work, under order of the foreman, removing the car, and that he did not leave the track and then return in the face of danger. Treating it as thus established that the deceased did not leave the handcar or track and return after receiving warning of the danger, there is no testimony tending to show contributory negligence on his part. Joining his fellow workmen at the accustomed meeting place that morning, he and they pro-ceded, by direction and command of the foreman, toward the place at which they were to work. If the train was thus expected, and due care was not observed in awaiting its passage, it was the negligence of the foreman, who was vice-principal, and not the negligence of the section hands. They met the train in a curve, and there is evidence that no signal was given from the approaching train by whistle or bell". When the party discovered the approach of the train, they hastily descended from the handcar, and endeavored to remove it before the train reached them.
The language of the court in St. Louis, I. M. & S. Ry. Co. v. Rickman, 65 Ark. 138, is particularly applicable to the facts here: “What the plaintiff did was manifestly done in obedience to the orders of the foreman to get the car off quick. Plaintiff had a right to presume that the foreman, who was in a position to devote his whole attention to the approaching train and the efforts of his men to get the handcar off the track, could better determine than he what was best to be done under the circumstances. We do not think that the danger was so apparently imminent but that he could reasonably rely upon the direction of the foreman. He did so, and was injured. Pie should not be charged with contributory negligence under the circumstances.”
We-think there was sufficient evidence to sustain a verdict for the plaintiff, and the court did not err in refusing to take the case from the jury.
It is set forth as a further ground for new trial that the verdict is excessive. The testimony fairly establishes the fact that deceased contributed to the support of his family as much as $350 per annum, in addition to his earnings in supervision of his farm, and that the present value of an annuity in that sum for his expectancy would be $4,690. He owned a small farm of eighty acres of land, and was out of debt. It is also shown by undisputed testimony that he was a very industrious man of good moral character, and was especially solicitous as to the mental and moral training of his children. That he was a kind and indulgent father, provided well for his family, and gave much attention to the proper instruction and education of his children. He had five children, the youngest being only two years of age at the time of the accident. This is a well-recognized element of damages in suits of this kind for the benefit of minor children, and it is held to be for the jury to say, from all the facts and circumstances found, what will be a fair compensation to the children for the pecuniary loss of the care and attention of the father in the way of training and instruction. Railway Co. v. Sweet, 60 Ark. 559; Railway Co. v. Maddry, 57 Ark. 306.
Opinion delivered January 6, 1906. J. M. Moore and W. B. Smith for appellant, on petition for rehearing. 1. The act of April 25, 1901, is unconstitutional (1) because it limits the circuit judges in the-exercise of their rights to control and regulate procedings in their courts so as to do justice between litigants, by restricting the exercise of the discretion to two events; (2) because it prohibits the circuit judge from entering remittitur except upon the losing party waiving his constitutional right of appeal. 2. If the act was intended to apply to the Supreme Court, it is unconstitutional, being an encroachment on the functions of the judiciary. Art. 4, § § 1 and 2,Const.; 49 Ark. 160; 44 Ark. 273; 16 Ark. 384; 24 Ark. 91; 5 Ark. 710; 6 Ark. 71; 14 Ark. 568; 39 Ark. 82. The Legislature can only prescribe the mode and manner that shall be pursued in bringing cases before the Supreme Court. 25 Ark. 489; art. 7, sec. 4, Const.; 5 Ark. 362, 365. 3. If intended to be limited to circuit courts only, it is unconstitutional for reasons supra, and because it is a denial of the complete justice intended by sec. 13, art. 2, Const. See also 10 Lea (Tenn.), 366; 49 Ark. 495.The amount of damages of this kind being of an indeterminate character, and left largely to the sound discretion of the jury, we cannot say as a matter of law that the verdict is so excessive as to appear to have been given by the jury under passion or prejudice.
The judgment is therefore affirmed.