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(Ky.)

570

.1108 State, Taylor v. (Tex. Cr. App.).
.1131 State, Thetford v. (Tex. Cr. App.).
State, Vickers v. (Tex. Cr. App.).
State, Walker v. (Tex. Cr. App.).
State, Whitfill v. (Tex. Cr. App.).

672

.1153

669

.1156

681

Sorrell v. State (Tex. Cr. App.)..
Southern Exp. Co., Commonwealth v. (Ky.)
Southern Gas & Gasoline Engine Co. v.
Adams & Peters (Tex. Civ. App.).....1143
Southern Nat. Life Ins. Co., Ford v. (Ky.) 874
Southern Nat. Life Ins. Co., Ford's Adm'r
v. (Ky.)
Southern R. Co., Jett & Brooks v. (Tenn.) 767
Southern R. Co. v. McNabb (Tenn.).
Southern R. Co. v. State (Tenn.).
Southern Surety Co., Ross v. (Tex. Civ.
App.)

874

299

State, Whitley v. (Ark.).

952

517

State, Williams v. (Tex. Cr. App.).
State, Wilson v. (Ark.).
State, Woods v. (Tenn.).

.1154

795

558

State ex inf. Attorney General v. Arkansas
Lumber Co. (Mo.)..

145

757

.1173

State ex rel. Hopkins v. Excelsior Powder
State ex rel. Koeln v. Title Guaranty Trust
Mfg. Co. (Mo)..
Co. (Mo.)..

267

28

..1056

State ex rel. Sager v. Polar Wave Ice &
Fuel Co. (Mo.).

126

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State Mut. Fire Ins. Co. v. Kellner (Tex.

tillos (Tex. Civ. App.)..

638

(Civ. App.)

636

Southwestern Telegraph & Telephone Co.

v. Andrews (Tex. Civ. App.).

218

State Sav. Bank of Springfield, Mo., Del-
olme v. (Ark.)...

229

Sowards, Higgins v. (Ky.).

554

Stephens, Gilreath v. (Ky.).

482

Spaulding v. Smith (Tex. Civ. App.)..

627 Stephens v. Ludlow (Ky.).

473

Spencer v. State (Ark.)..

790

Stevens v. Dublin (Tex. Civ. App.).

188

Spivey v. State (Ark.).

Spore, Royal Neighbors of America v. (Ky.) 984
Sproul, Interstate Coal Co. v. (Ky.).

949 Stevens v. Galveston, H. & S. A. R. Co.
(Tex. Civ. App.)....

644

698

Stacy, Wilkes v. (Ark.)..

796

Steves & Sons, Dilworth & Green v. (Tex.
Civ. App.)

630

Starr, Commonwealth v. (Ky.).

State, Allen v. (Tex. Cr. App.).

State, Baker v. (Tex. Cr. App.).
State, Bell v. (Tex. Cr. App.).
State, Bitner v. (Tenn.).
State v. Bolt (Tenn.).
State v. Brewer (Ark.).
State, Brown v. (Tex. Cr. App.)
State, Brown v. (Tex. Cr. App.).
State, Cannon v. (Ark.).

State, Catlett v. (Tex. Cr. App.).
State v. Chadwell (Tenn.)..
State, Clark v. (Tex. Cr. App.).
State, Cox v. (Àrk.)..

State v. Craighead County (Ark.).
State, Cyrus v. (Tex. Cr. App.).
State, Elza v. (Tex. Civ. App.).
State, Ethridge v (Tex. Cr. App.).

743 Stewart & Whitesides v. Mackin (Ky.). .1151 Stimson, Aubrey's Adm'r v. (Ky.).

469

991

1154 Stogsdill v. Holmes (Ark.)...

961

.1150 Stokely v. Burke (Tenn.).

763

565 Stone v. Burkhead (Ky.).

489

761 Stone v. Kansas City & W. B. R. Co. (Mo.)
804 Strader v. Strader (Ky.).

88

857

437 Strickland v. Baugh (Tex. Civ. App.)

181

897 Stringer, Justice v. (Ky.)...

836

812 Strong v. State (Ark.).

.1189

673 Strother v. Kansas City Mill. Co. (Mo.).
.1170 Stroud v. Commonwealth (Ky.).
895 Stroud v. Conine (Ark.).

43

..1021

959

789

964

Studebaker Corp. of America, Johnson v.
(Ky.)

992

679

633

Sugg v. George B. Hendricks & Son (Tex.
Civ. App.)

394

.1152 Sullenger's Adm'r, Illinois Cent. R. Co. v.

State, Fondren v. (Tex. Cr. App.)
State v. Frank (Ark.).

411

(Ky.)

858

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333 Supreme Tribe of Ben Hur v. Cosgrove
(Ky.)

999

1

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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.

Chesapeake & O. R. Co. v. Dawson's Adm'r, 167 S. W. 125.

Chesapeake & O. R. Co. v. De Atley, 167 S. W. 933.

Chesapeake & O. R. Co. v. Lauhorn, 167 S. W. 132.

Chesapeake & O. R. Co. of Kentucky v. Vaughan's Adm'x, 167 S. W. 141.

Cincinnati, N. O. & T. P. R. Co. v. Blankenship, 163 S. W. 1123.

City of Louisville v. Stoll, 166 S. W. 811. Commonwealth v. Lee Line Co., 167 S. W. 409.

Evans Chemical Works v. Ball, 167 S. W. 390.
Guest v. Foster, 166 S. W. 620.
Hostetter v. Green, 167 S. W. 919.
Keyser v. Damron, 167 S. W. 381.
Kincaid v. Bull, 167 S. W. 903.
Rounds v. Cloverport Foundry & Machine Co.,
167 S. W. 384.

Snowden v. Flanery, 167 S. W. 893.
Volz v. Scully, 166 S. W. 1015.
Weidekamp's Adm'x v. Louisville & N. R. Co.,
167 S. W. 882.

Wilson v. Town of Whitley, 166 S. W. 775.

See End of Index for Tables of Southwestern Cases in State Reports

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THE

SOUTHWESTERN REPORTER

VOLUME 169

OSTERTAG v. UNION PAC. R. CO.

(No. 16725.)

6. DAMAGES (§ 132*)-PERSONAL INJURIESAMOUNT.

An award of $15,000 damages in favor of a railroad switchman 34 years of age, in good

(Supreme Court of Missouri, Division No. 2. health, and earning $100 a month, who suffered July 14, 1914. Rehearing Denied

July 25, 1914.)

injury requiring the amputation of one leg nearly up to the hip and sustained other slight in

1. MASTER AND SERVANT (§§ 286, 289*)-INJU-juries, is excessive by $5,000. RIES TO SERVANT-ACTIONS-JURY QUESTION.

In an action by a member of a switching crew run down by a switch engine, behind which he stepped while it was standing on a switch track to allow a train to pass, the questions of the negligence of defendant and contributory negligence of the switchman, held, under the evidence, for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1089, 1090, 1092-1132; Dec. Dig. §§ 286, 289.*] 2. APPEAL AND ERROR (§ 1064*)-REVIEW— HARMLESS Error.

In an action for injuries to a switchman run down by a switch engine behind which he attempted to pass, the erroneous admission of evidence of a rule of the railroad company, requiring two short whistles in answer to any signal not otherwise provided for, is harmless, where the instructions did not submit to the jury any fact involving that rule.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4219, 4221-4224; Dec. Dig. § 1064.*]

3. TRIAL (§ 121*)—ARGUMENT OF COUNSEL.

In a personal injury action by a railroad employé, who signed a statement prepared by a claim agent immediately upon his return to consciousness after the amputation of his leg, remarks by his counsel comparing the claim agent to a ghoul are not improper.

[Ed. Note.-For other cases, see Trial, Cent. Dig. § 294-298, 300; Dec. Dig. § 121.*] 4. TRIAL (§ 133*)—ARGUMENT OF CounselIMPROPRIETY.

That the court denied the request of defendant's counsel to discharge the jury for improper argument by plaintiff's counsel does not warrant reversal, where objections thereto were sustained and on one case the jury were instructed to disregard the argument; it not appearing that defendant's counsel requested the court to reprimand the counsel for plaintiff.

[Ed. Note. For other cases, see Trial, Cent. Dig. § 316; Dec. Dig. § 133.*]

5. APPEAL AND ERROR (§ 1004*)-REVIEWEXCESSIVENESS OF DAMAGE.

Improper argument of counsel for plaintiff in a personal injury action will be considered in determining the question of excessive dam

ages.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. 8 1004.*]

[Ed. Note. For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. § 132.*1 Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

Action by Louis H. Ostertag against the Union Pacific Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition that plaintiff enter remittitur; otherwise reversed and remanded.

This is a suit for damages for personal injuries. The plaintiff recovered a verdict and judgment for $15,000. He was 34 years old at the time of the injury, and in good health. He had been in the employ of defendant as a switchman about 4 years, and had been in railroad work longer. The injury occurred in defendant's freightyards in Kansas City, June 7, 1910, about 6:40 p.

m.

Plaintiff was one of the crew of engine No. 1241. .The petition alleges the negligence as follows:

"That while such switch engine was stationary and plaintiff was engaged in the act of passing around the end of the same, and in a position of peril from the movement of said engine backward, the said switch engine, in consequence of and through the negligence and mismanage ment of the agents, engineers, and other employés of the defendant, including the foreman of said switching crew, was suddenly, swiftly, and violently moved backward, toward, and against the plaintiff; and said agents, engineers, and other employés, including the foreman of said switching crew, negligently failed to give any warning to the plaintiff, as due ca. required them to do, of such movement of such engine."

It alleges the loss of his left leg about halfway between the knee and hip, and that he was earning $100 a month, and prays for $25,000 damages. The answer contained a general denial, a plea of contributory negligence, and an allegation that under the law of Kansas the plaintiff assumed the risk. The reply is a general denial.

Tracks 4 and 5 in the defendant's yards, running parallel from east to west, are connected at the west by a switch, from which

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 169 S.W.-1

Plaintiff took the deposition of W. H. Wildermood, engineer of engine 1241, and the defendant read it in evidence. He testified:

the track continues west. On the south side | up there they pulled up too far, and they had of the track, and 200 or 300 feet west of that to back down again to get in the clear. Q. That is 1241? A. 1241. switch was the "shanty" or office, where the the switch, and the conductor gave us a highThen they gave us defendant's employés went to get and give ball, and we whistled off and started up. Just orders and reports. Freight train 157, con- as we started somebody gave a sign for 1241 taining about 50 cars, was on track 4. The to back up towards the west and beat us to the switch. Then is when Ostertag got hit. Q. road engine was coupled to the west end How far did you say that 1241 moved when it of that train, and headed west. In front of headed east to clear 4? A. The length of the the road cngine was coupled the helper en- engine. Q. You say you got the switch. Did gine reversed, i. e., with its head to the east. your train whistle for the switch to get it? A. No. They gave us the switch, and we whistled It was there for the purpose of helping the off. Q. Where was 1241 at the time you start train start westward on an upgrade. South ed? A. They were about even with the switch of that train was engine 1241 on track 5. It engine of 57. Q. That is, with your engine? was coupled to its tank or tender, but not to started before 1241 started west? A. Well, I A. Yes, sir. Q. How long was it after you any cars. The plaintiff was in the cab of could not say. Q. As your engine stood there his engine at the time it arrived near the alongside of 1241, how far was your tank, the switch. The foreman of that engine, Mr. end of your tank, from the clearing point between tracks 4 and 5? A. Well, if I remember Moore, had come with the engine from the right about the length of the engine. Probably east, riding on the footboard on the rear end a few feet further. Q. How far would you say of the tank, which was in advance as the you moved with the helper engine from the engine backed west. On reaching that spot, A. 10 or 12 feet, something like that, maybe time you started to the west until you stopped? the foreman left the engine and went to the not that far. All I remember is we got started, shanty to report to the yardmaster, Shull, whistled off and got started." and to receive additional orders if there were any. It was quitting time for that engine and crew, and, in the absence of further orders, the engine was to be taken westward beyond the shanty to the roundhouse, and the crew were to disperse to their homes. As Moore reached the shanty, he met and passed Detwiler, conductor of the freight, who was going towards his train. About that time, 157 "whistled off," i. e., signaled that it was ready to go. Engine 1241 was too near the switch to permit the freight to pass safely. It headed east so that the freight could pass, and stopped with the west end of its tank one or two car lengths east of the clearing point of tracks 4 and 5. The west end of the helper engine in front of the freight train was about the same distance east of the clearing point. Detwiler, the freight conductor, signaled his train to "come ahead," and it startAbout that time the plaintiff, having ed. left the cab of his engine about the time it last stopped, passed west between tracks 4 and 5 on his way to the shanty, and Moore, the foreman of 1241, with the permission of Shull, the night yardmaster, signaled his engine to "back up," which meant to come on west over the switch ahead of 157. The engine started quickly, and the rear end of the tank, which was for the time in front, struck plaintiff within 5 or 10 feet after starting. The plaintiff had stepped on track. How quick after you had headed down in

5 on his way to the shanty.

Melvin H. Milam, fireman on the "helper" engine, witness for plaintiff, testified as fol

lows:

"Q. Suppose you tell us in your own way what happened there that night with reference to the switches and the engines on 157 and this engine 1241. A. Well, 157 was made up on track 4. 1241 had made a Frisco transfer and backed out the stock track and onto 5, and 'come up about even with the switch engine on the head end of 57. They stood there quite a little bit (I don't know how long) and the conductor-we got the switch anyway, and the conductor gave us a highball. When they pulled

"Q. Mr. Wildermood, suppose you tell us in your own way what occurred there in the operation of that engine from the time you first backed west toward the switch shanty the evening Ostertag was hurt. A. Well, we backed up on what we call No. 5 and engine 1151, night engine, was switching on the hill, and posed it would clear 4. Well, night engine we couldn't get out, so I stopped where I sup1151 shoved in the clear. Q. That was onto track 3? A. That was on track 4. We were on track 5. No. 157, that is a train of local merchandise, going west, whistled off. Fireman says to me, he says, 'Go ahead a little in the clear.' I says, 'I am in the clear,' and he says, Well, you don't clear good,' and Lou Ostertag dropped off the engine and says, 'Yes, give them a good clear.' So I let engine 1241 slack ahead in the clear about 30 or 40 feet. I will say that much, but don't know whether that far, and maybe a little farther. After I stopped The fireman says, 'Moore says back up,' and I the fireman says, 'Back up.' I says, 'What?' looked over the tank and seen Moore, the foreman, give the signal to back up, and George I started Tighe lining the switch up for 4. lengths, maybe a little more, and the fireman back, and I went back probably two engine hollered, and he says, 'Stop, we have run over Lou Ostertag,' and I stopped as quick as I could. Q. Where was the west end of this train 157, the tank of the helper engine on that train, with reference to the clearing point when you stopped before you headed east to clear? A. Well, I don't know. I didn't pay no attention.

the clear was it that the fireman told you to back up? A. Well, I don't know as I any more than stopped till the fireman says, 'Back up,' not much more anyway. Q. What made you say, 'What?' in that surprised sort of way to the fireman? A. Well, because the fireman told me to slack ahead in the clear. Fifty-seven whistled off, and I supposed they was going to let 57 go before us. Did'nt think of the way it was done. Q. Was that the way it had ordinarily been done? A. Yes, sir. Q. How fast did you get going before you had run over Ostertag? A. Well, I don't know. I could not say. Q. Give your best judgment? A. That would be a hard matter to do. Q. Can't you give us some idea? A. No, sir; don't believe I could. Q. Did you know that-I believe you said you did

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