WHITE,
J.
Certiorari to the Kansas City Court of Appeals. The relatrix, Mary Ambrose, as administratrix of the estate of James Ambrose, deceased, recovered judgment in the Circuit Court of Jackson County, Missouri, in the sum of $7500, against the Chicago & Alton Railroad Company, on account of the death of James' Ambrose, who was unmarried and living with his dependent widowed mother, Margaret Ambrose. Ambrose was killed in Saline County. The suit was brought under the Federal Employers’ Liability Act.
On appeal to the Kansas City Court of Appeals the judgment was reversed and the cause remanded. The relatrix, in her petition for the writ, asserts that the opinion of the Kansas City Court of Appeals is contrary to certain rulings of this court in holding erroneous certain instructions given by the trial court.
• Respondent Chicago & Alton Railroad Company claims that the ruling of the Kansas City Court of Appeals was contrary to certain rulings of this court in holding that a case was made out for the jury on the evidence presented, and asks this court to quash the record on that account.
I. We will first consider the alleged conflict urged by relatrix. The trial court, by instruction number three, on the measure of damages, told the jury that if they found certain facts, required in order to renqer a verdict for plaintiff, they should assess her damages at such sum as would reasonably compensate for the loss of pecuniary benefits which the
jury should find from the evidence the mother, Margaret Ambrose, would certainly have' received from the deceased, taking into account her life expectancy.
Instruction number two, given on behalf of plaintiff, requires the jury to make a similar finding in regard to the facts necessary for a verdict, and then told the jury:
“If you find that Margaret Ambrose was damaged by his death a full recovery should not be had for such damages, but only a proportional amount thereof bearing the same relation or ratio to the full amount of damages she has sustained as the negligence, if any, attributable to the defendant bears to the entire negligence attributable to both deceased and defendant.”
The Court of Appeals held that those instructions were contradictory and reversed the case on that account. This, it is claimed by the relatrix, is contrary to certain rulings of this court.' [State ex rel. Jenkins v. Trimble, 291 Mo. l. c. 234; McIntyre v. Railroad, 286 Mo. l. c. 260; Colburn v. Krenning, 220 S. W. 934, l. c. 940; Gordon v. Burris, 153 Mo. l. c. 232.] It was held by this court in Colburn v. Krenning, that in a personal injury case, if an instruction authorizing a recovery is sufficient, aside from the question of contributory negligence, and if an instruction for defendant properly declaring the law with respect to contributory negligence is given, the two instructions thus given shall be sufficient. It was said by this court in the Jenkins Case, 291 Mo. page 234:
“Where plaintiff’s instruction omits some feature which is not an element of his cause of action, but is merely a defensive feature, the omission may be cured by the instructions for defendant submitting that feature. ’ ’
The Colburn Case was rendered by Division Number Two, and the Jenkins Case by Court in Banc.
The general principle was announced in McIntyre v. Railroad, 286 Mo. l. c. 260, a case arising under the Federal Employers’ Liability Act, and applied to the defense of contributory negligence. Contributory negli
genee in such a case is a defense
pro tanto,
and in this ease was pleaded as such. The opinion of the Kansas City Court of Appeals says: “The answer is general and pleads contributory negligence and assumed risk.” It is not necessary for the plaintiff in his suit under the Federal Employers ’ Liability Act to negative - contributory negligence. In order to recover he states a complete case when he alleges the negligent act of the defendant which caused the injury. If the defendant relies upon the contributory negligence to diminish the amount of damages it must be pleaded, unless contributory negligence appears in the plaintiff’s evideuce in maldng out his case.- If the defendant should instruct on the evidence from the plaintiff’s witnesses, tending to show contributory negligence, it would come within the rule announced in cases cited.
Cases cited by the Railroad Company, such as State ex rel. v. Ellison, 272 Mo. l. c. 583, are where the instruction omits some hypothetical fact which must be found in favor of plaintiff before he could recover. And where such an instruction is given, purporting to cover the whole case, the error is not cured by instruction given for the defendant. They are not in point.
The respondent claims that the McIntyre Case, and other cases cited above, are not in point because the omission in the plaintiff’s instruction was presented in the defendant’s instruction, whereas in the present case it is not presented in the defendant’s instruction, but in an instruction given for the plaintiff; therefore, the error is not cured. This argument defeats itself, because the two instructions given for the plaintiff not only required a finding of every fact necessary to entitle plaintiff to recover, but required a consideration of the defense of contributory negligence in determining the amount of the verdict, in case of a verdict for plaintiff. The two instructions were numbered two and three. The complaint now is that those instructions were contradictory, whereas if the matter of both instructions had
been embodied in one instruction it would have been correct. If they are contradictory when separated by a numeral — distinguished by two numerals — then, if both were included in one, it would be contradictory of itself. What would be the difference in effect upon the jury if the two instructions were put in one paragraph' instead of in two, and designated by one number instead of by two numbers where they thus come consecutively? ■ If the Wo paragraphs together had been numbered either Wo, or three, the respondent would have made no complaint, but since they happen to be numbered two
and
three, they are contradictory. To state the proposition is to refute it.
Further, Instruction 3 does not authorize a verdict. The two instructions taken together define, somewhat awkwardly but correctly, the duty of the jury. It must first ascertain how much the plaintiff is damaged, and then deduct from the sum found an amount in the proportion that the negligence of the deceased contributed to the death. If the first is not found there would be no basis whereon to make the deduction. Instruction 3, instead of authorizing a verdict, only directs the jury what it must take into consideration in assessing her damages. There can be no complaint that the direction in that respect is not correct. The jury must consider all those elements and assess the ¡damages accordingly. It is a strained construction to say they must then and there fix the amount of the verdict without considering anything else.
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WHITE,
J.
Certiorari to the Kansas City Court of Appeals. The relatrix, Mary Ambrose, as administratrix of the estate of James Ambrose, deceased, recovered judgment in the Circuit Court of Jackson County, Missouri, in the sum of $7500, against the Chicago & Alton Railroad Company, on account of the death of James' Ambrose, who was unmarried and living with his dependent widowed mother, Margaret Ambrose. Ambrose was killed in Saline County. The suit was brought under the Federal Employers’ Liability Act.
On appeal to the Kansas City Court of Appeals the judgment was reversed and the cause remanded. The relatrix, in her petition for the writ, asserts that the opinion of the Kansas City Court of Appeals is contrary to certain rulings of this court in holding erroneous certain instructions given by the trial court.
• Respondent Chicago & Alton Railroad Company claims that the ruling of the Kansas City Court of Appeals was contrary to certain rulings of this court in holding that a case was made out for the jury on the evidence presented, and asks this court to quash the record on that account.
I. We will first consider the alleged conflict urged by relatrix. The trial court, by instruction number three, on the measure of damages, told the jury that if they found certain facts, required in order to renqer a verdict for plaintiff, they should assess her damages at such sum as would reasonably compensate for the loss of pecuniary benefits which the
jury should find from the evidence the mother, Margaret Ambrose, would certainly have' received from the deceased, taking into account her life expectancy.
Instruction number two, given on behalf of plaintiff, requires the jury to make a similar finding in regard to the facts necessary for a verdict, and then told the jury:
“If you find that Margaret Ambrose was damaged by his death a full recovery should not be had for such damages, but only a proportional amount thereof bearing the same relation or ratio to the full amount of damages she has sustained as the negligence, if any, attributable to the defendant bears to the entire negligence attributable to both deceased and defendant.”
The Court of Appeals held that those instructions were contradictory and reversed the case on that account. This, it is claimed by the relatrix, is contrary to certain rulings of this court.' [State ex rel. Jenkins v. Trimble, 291 Mo. l. c. 234; McIntyre v. Railroad, 286 Mo. l. c. 260; Colburn v. Krenning, 220 S. W. 934, l. c. 940; Gordon v. Burris, 153 Mo. l. c. 232.] It was held by this court in Colburn v. Krenning, that in a personal injury case, if an instruction authorizing a recovery is sufficient, aside from the question of contributory negligence, and if an instruction for defendant properly declaring the law with respect to contributory negligence is given, the two instructions thus given shall be sufficient. It was said by this court in the Jenkins Case, 291 Mo. page 234:
“Where plaintiff’s instruction omits some feature which is not an element of his cause of action, but is merely a defensive feature, the omission may be cured by the instructions for defendant submitting that feature. ’ ’
The Colburn Case was rendered by Division Number Two, and the Jenkins Case by Court in Banc.
The general principle was announced in McIntyre v. Railroad, 286 Mo. l. c. 260, a case arising under the Federal Employers’ Liability Act, and applied to the defense of contributory negligence. Contributory negli
genee in such a case is a defense
pro tanto,
and in this ease was pleaded as such. The opinion of the Kansas City Court of Appeals says: “The answer is general and pleads contributory negligence and assumed risk.” It is not necessary for the plaintiff in his suit under the Federal Employers ’ Liability Act to negative - contributory negligence. In order to recover he states a complete case when he alleges the negligent act of the defendant which caused the injury. If the defendant relies upon the contributory negligence to diminish the amount of damages it must be pleaded, unless contributory negligence appears in the plaintiff’s evideuce in maldng out his case.- If the defendant should instruct on the evidence from the plaintiff’s witnesses, tending to show contributory negligence, it would come within the rule announced in cases cited.
Cases cited by the Railroad Company, such as State ex rel. v. Ellison, 272 Mo. l. c. 583, are where the instruction omits some hypothetical fact which must be found in favor of plaintiff before he could recover. And where such an instruction is given, purporting to cover the whole case, the error is not cured by instruction given for the defendant. They are not in point.
The respondent claims that the McIntyre Case, and other cases cited above, are not in point because the omission in the plaintiff’s instruction was presented in the defendant’s instruction, whereas in the present case it is not presented in the defendant’s instruction, but in an instruction given for the plaintiff; therefore, the error is not cured. This argument defeats itself, because the two instructions given for the plaintiff not only required a finding of every fact necessary to entitle plaintiff to recover, but required a consideration of the defense of contributory negligence in determining the amount of the verdict, in case of a verdict for plaintiff. The two instructions were numbered two and three. The complaint now is that those instructions were contradictory, whereas if the matter of both instructions had
been embodied in one instruction it would have been correct. If they are contradictory when separated by a numeral — distinguished by two numerals — then, if both were included in one, it would be contradictory of itself. What would be the difference in effect upon the jury if the two instructions were put in one paragraph' instead of in two, and designated by one number instead of by two numbers where they thus come consecutively? ■ If the Wo paragraphs together had been numbered either Wo, or three, the respondent would have made no complaint, but since they happen to be numbered two
and
three, they are contradictory. To state the proposition is to refute it.
Further, Instruction 3 does not authorize a verdict. The two instructions taken together define, somewhat awkwardly but correctly, the duty of the jury. It must first ascertain how much the plaintiff is damaged, and then deduct from the sum found an amount in the proportion that the negligence of the deceased contributed to the death. If the first is not found there would be no basis whereon to make the deduction. Instruction 3, instead of authorizing a verdict, only directs the jury what it must take into consideration in assessing her damages. There can be no complaint that the direction in that respect is not correct. The jury must consider all those elements and assess the ¡damages accordingly. It is a strained construction to say they must then and there fix the amount of the verdict without considering anything else. One of the meanings of “assess” given in Webster and in Bouvier is, “to value,”.“to fix the value of.” If the words “you may ascertain as damages” were used instead of “you may assess as damages,” there would be no complaint. If microscopic inaccuracies like that complained of should work a reversal in every case, no case could be affirmed.
The ruling of the Kansas City Court of Appeals, therefore, was in conflict with the cases first cited above.
II. The respondent Railroad Company asserts here that the opinion and judgment of the Kansas City Court of Appeals should he quashed because it is in conflict with the ruling of this court. Although a respondent in this proceeding, it may properly raise the questio'n of conflict. [State ex rel. Shawhan v. Elliott, 273 Mo. 218.] The argument is that Ambrose was killed while performing a duty in connection with the operation of trains; that it was his duty to know when trains were coming and to look'out for them, so that it was not necessary for trainmen to be on their guard to discover whether or not he was on the track. The case was submitted on the humanitarian rule. .The trial court refused an instruction asked by defendant, which denied -recovery unless Ambrose actually was seen in time to have stopped, or to have checked the speed of the train, and so avoided hitting him. Recovery was permitted if the defendant’s employee
could have seen
him, by the exercise of ordinary care, in time to have avoided the injury. The Court of Appeals thus presents the facts in regard to that issue:
‘ ‘ There was testimony in detail tending to show that the public had been using the track in going to and from Marshall, at the place where the accident occurred, .and that this practice had existed for a period of eighteen or twenty years. Ve think this testimony sufficiently substantial to take the case to the jury on the question, of user. User, however, goes only to the question of the duty of defendant to watch for persons who might be on the track at this point. We think this testimony, in connection with that offered to the effect that just east of the bridge over the Missouri Pacific track was a private crossing on a farm owned by a Mr. Carpenter, is sufficient to negative the presumption that the engine crew had a right to anticipate a clear track. The testimony further was to the effect that persons walked upon this portion of the track more in summer than in winter.
“But it is urged by defendant that it owed deceased a less degree of care in this respect than it owed the general public in that deceased was an employee of defendant, and* was sent by his foreman to see that a signal lamp was in proper condition and to fill said lamp; that he knew trains might pass over the track at any time, and that the mission he was sent to perform had to do with the movements of trains from the signal to the bridge at Salt Fork Creek, at which the concrete work was being done. It is insisted that the law did not require the operatives of the freight train to keep a lookout for deceased, but that it was the duty of deceased to look and listen for approaching trains, and failing in this, there can be no recovery.
“The testimony of the train crew is to the effect that they recognized it as their duty to look down the track for persons who might be thereon, The fireman testified he was looking down the track towards the crossing bridge until the train was within a quarter of a mile of it, and that he then turned his attention to his duty of shoveling coal into the fire-box. The engineer testified also that he was ‘looking ahead for danger,’ that he was ‘looking for anyone that might be up there, any pedestrian who. might be walking along there. ’
“The testimony is undisputed that no warning was given of the approach of the train. The engineer also testified he did not see deceased because of the cuive in the track at the bridge. The fireman stated he did not see deceased because, at that time,- he was engaged in shoveling coal. The brakeman explained his failure to see deceased by stating that, at the time, he was looking backwards, observing the train until a few moments before the collision. This testimony tends to show only that the fireman and brakeman did not look when ‘to look was to see,’ and that while the engineer was looking he did not see deceased in a position of imminent peril, and oblivious to his danger.”
The court then makes this comment upon the Federal case:
“It was held, in effect, in Connelly v Penn. Railroad Co., 228 Fed. 322, that a railroad company which operates trains in a proper and customary manner is not chargeable with negligence which renders it liable for the killing, by any of such trains, of a trackwalker who assumes the risk from such danger as necessarily is incident to his employment. This case, cited by defendant, falls somewhat short of applicability to the facts before us. Here the testimony shows that deceased was not employed as a trackwalker, but as a cement worker ; that the duty of lighting the lamp on the signal board, was not any part of his regular duty, and not connected therewith. The testimony shows that in the period of his employment at the bridge abutment, a period of approximately thirty days, he was assigned to the task of filling the lamp only on two or three previous occasions.”
The Railroad Company claims this ruling is in conflict with certain cases affecting track repairers, section men, and employees whose duty compels them to work along and upon the tracks where they, know trains are operated, and they are, therefore, expected to look out for themselves. [Gahal v. Railroad, 251 Mo. l. c. 267; Van Dyke v. Railroad, 230 Mo. l. c. 282-283; Evans v. Wabash Ry. Co., 178 Mo. 508; State ex rel. v. Ellison, 271 Mo. l. c. 474; Degonia v. Railroad, 224 Mo. 564.]
In all those cases the employee who was injured had duties connected with the railroad track or with something on the track, or with the immediate operation of trains. They were trackwalkers, car repairers, switch-men, etc. In such cases the servants operating the trains had reason to expect that trackwalkers and the like not only knew what trains were operating, but would step out of danger when a train approached.
Another line of cases holds that if an employee, whose regular duties do not require him to be on the track, nor to take note of the time and operation of trains, is struck and injured where such-incidental duty
calls him, then the rule just mentioned does not apply. Under the humanitarian rule he may recover if operators of trains by the exercise of ordinary care might have discovered his danger in time to have avoided striking him. The cases turn upon whether the circumstances were such as made it the duty of those operating the trains to look out for persons ahead, or whether they had a right to expect a clear track. [Crecelius v. Railroad, 223 S. W. 413, l. c. 417; Tetwiler v. Railroad, 242 Mo. 178; Kippenbrock v. Railroad, 270 Mo. l. c. 484-485; Greenwell v. Railroad, 224 S. W. l. c. 407; Rigley v. Pryor, 290 Mo. l. c. 18-19.]
It is contended by the Railroad Company here that Ambrose was a cement worker, therefore he was working on the track; that he was in the same position as the track worker, or a section hand working on the track, and knew he must move off when trains came along. There is no similarity in the duties. The work Ambrose was doing was underneath the bridge. In his regular work he had no reason to take note of trains. There appears no evidence to show that a cement worker ever worked where he had to' take note of trains. ' It would seem in the very nature of the case that when he was doing cement work trains could not come over the work on which he was employed. It was no more necessary for him to observe the moving of trains and keep1 out of the way than'for any other worker on an unfinished track where trains did not move.
Ambrose was killed while coming across the bridge to fill a signal lamp. It is argued that the signal lamp was to direct the operation of trains, and therefore he was bound to take note of the operation of trains and must be familiar with the time of their coming. Just the contrary appears from the evidence. The Court of Appeals in speaking of the lamp, said: “The purpose of this signal'was a ‘slow-up order’ for trains at the bridge where the work was being done.
The lamp was filled
with oil every alternate day and was burning continuously.”
(Italics ours).
Thus, while the cement workers were working underneath the bridge, it was desired that trains pass over the bridge slowly. The lamp was kept burning continually; it did not matter when it was filled, for it lasted two days. This point was argued as if it were necessary for Ambrose, or some one of the bridge gang, to go out on the bridge and signal each train when it came along. The fact that the lamp was burning continually shows there was no such duty. It made no difference what time the trains came; it was no more necessary for the persons who filled the lamp and lighted it to know when trains approached than it was necessary for someone who might be working on the foundation for a station house opposite the track to know when the trains were coming. For the cement worker, working underneath the bridge, it was a matter of indifference when the trains passed. The trains were slowed up because, inferentially, the structure was weakened while undergoing repairs. Once or twice previously Ambrose had been sent by his foreman to fill the lamp. There was nothing in the náture of his regular employment and nothing in this incidental employment which put him in the class with workers on the sections, track workers, and switchmen in the yards who must know of the way trains are running. His duty brought him within the rule announced in the Crecelius Case, and in the Grreenwell and other cases of like import.
Accordingly, so far as the record and opinion of the Kansas City Court of Appeals holds there is conflict in instructions on the measure of damages, it is quashed; but in no other respect.
Woodson, Ragland
and
David E. Blair, JJ.,
concur;
James T. Blair, J.,
dissents in separate opinion in which
Graves, G. J.,
and
Walker, J.,
concur.