Illinois Cent. R. Co. v. Henon the truck which he saw while he was on the platform of the car would have shown him that the train was in motion, if he had looked. So would the kerosene light. But he chose to get off without looking or paying attention to the train or his surroundings. The circumstances disclosed by the evidence have no tendency to show that he would have failed to discover the movement of the train if he had been in the exercise of ordinary care. Indeed, they indicate that the accident happened because he used no care. While the burden was on him to prove that he was carefully trying to alight safely, he fails to show that he was giving any attention to his surroundings. The case is not like Brooks v. Railroad Co., 135 Mass. 21. It differs materially in its facts from Merritt v. Railroad Co., 162 Mass. 326, 38 N. E. 447. In principle, it is more like England v. Railroad Co., 153 Mass. 490, 27 N. E. 1. Exceptions overruled. ILLINOIS CENT. R. Co. v. HENON. (Court of Appeals of Kentucky, May 27, 1902.) [68 S. W. Rep. 456.] Employment of Minor-Liability to Father for Personal Injuries.* One who employs a minor to perform dangerous or hazardous work without the knowledge or consent of the father, when he knows, or might by the exercise of ordinary care know, that the person employed is a minor, is liable to the father for the loss of the son's services during his minority, resulting from an injury received by him while so engaged, and for trouble and expense of taking care of him. Manumission. There being no plea that the father manumitted the son, an instruction on that point was properly refused. Damages-Harmless Error. Though the petition alleged only the expenditure of $5 for medicine, an instruction that the jury might find for "medicine not to exceed $25" was not prejudicial, there being no proof that the medicine cost over $5, and the error being plainly a clerical one. Res Gestæ. The circumstances under which the injury was committed were properly admitted in evidence as a part of the res gestæ. Evidence. Error in admitting the testimony of plaintiff's wife was harmless, as she stated nothing more than plaintiff had already testified to, and his statements as to those matters were not contradicted. Damages-Evidence. Testimony as to the extent of the boy's injury was admissible to show the extent to which his services had been lost and the trouble and care required in nursing him. Appeal from circuit court, Livingston county. "Not to be officially reported.' *See Taylor v. Ches. & O. Ry. Co. (W. Va.), 4 Am. & Eng. R. Cas., N. S., 115; Railway Co. v. Redeker, 75 Tex. 310; Railroad Co. v. Byerle, 110 Ind. 100, 28 Am. & Eng. R. Cas. 306; Vaughan v. Rhodes, 2 McCord 227, 13 Am. Dec. 713, and notes; Lawyer v. Sauer, 10 Kan. 519. 3 RR R-10 Illinois Cent. R. Co. v. Henon Action by W. L. Henon against the Illinois Central Railroad Company to recover for the loss of services of plaintiff's infant son and compensation for expenses and care in nursing him. Judgment for plaintiff, and defendant appeals. Affirmed. Quigley & Quigley and Pirtle & Trabue, for appellant. HOBSON, J. Appellee, W. L. Henon, instituted this action against appellant to recover for the loss of the services of his infant son Luther Henon and compensation for expenses and care in nursing his son in consequence of injuries received by him while in the service of appellant, alleging that he had been employed by it without his knowledge or consent in a dangerous and hazardous service, with notice of his infancy. He also alleged that the injury of his son was caused by the gross negligence of the defendant in the operation and management of its cars. The answer traversed the allegations of the petition and pleaded affirmatively contributory negligence on the part of the son Luther Henon. the trial of the case before a jury a verdict was returned in favor of the plaintiff for $600, on which judgment was entered, and the defendant appeals. On Luther Henon was 19 years of age. He was employed by the defendant to work in his gravel pit about February 10, 1900, and worked there until the 7th of March, when he was hurt. On that morning they loaded 8 or 10 cars with gravel. The boss or foreman then said, "Boys, get on that train and go over to Gilbertsville and help unload gravel." Luther Henon thereupon left the place where he was working, and walked around in front of the engine to the end of the tender, and climbed up the ladder to the rear end of the tender for the purpose of riding on it to Gilbertsville. After he started up the ladder the engine started off. The brakes had been loose on all the cars. After the engine started it was found that the cars were not fastened to the engine, and the engineer, at the order of the conductor, stopped it. The cars, however, had been set in motion and ran down against the engine, giving it quite a hard bump just as the boy got to the top of the ladder. This knocked him off and he fell down and the car ran over his arm and so injured it that it had to be cut off. The gravel crew had made a number of trips of this kind. The boy had seen some of the hands ride on the tender. Others rode on top of the gravel on the cars. Some who were sitting on the gravel on this occasion were knocked over by the concussion. The defendant knew he was only 19 years of age, and his father had not been consulted as to the employment. In Railroad Co. v. Willis, 83 Ky. 57, 4 Am. St. Rep. 124, the railroad company was held liable to the father of a boy who was acting as brakeman, although receiving no wages, Illinois Cent. R. Co. v. Henon and was injured. The court said: "The duty of the father to educate and maintain the son entitled the former to the son's services, and placed him in the attitude of a master to him, or created the relation of master and servant; and any interference with the master's right to control the servant by another renders the latter liable, at least, for any injury that was likely to result from such illegal conduct. If one engages the servant of another in an obviously dangerous business he renders himself responsible for any injury the servant may sustain while so engaged, and which can rationally be attributed to the undertaking; and this is so even if the injury results immediately from the neglect or unskillfulness of the servant, owing to the fact that the person by so illegally interfering assumes all the risk incident to the service. See, also, to same effect, Railway Co. v. Carroll (Ky.) 31 S. W. 132. The circuit court followed the rule laid down in these cases. He instructed the jury that if the son was employed without the knowledge or consent of the father, and was under 21 years of age, and this fact was known to the defendant's agents in charge of him prior to his injury, and he was required to perform dangerous or hazardous work, and while thus engaged was thus injured, they should find for the father a fair compensation for the loss of the services of his son during his minority, and for trouble and expense in taking care of him; but that if the employment was made with the knowledge or consent of the father, or if defendant's agents who employed the son did not know, or by exercise of ordinary care could not have known, that he was under 21 years of age, they should find for the defendant. These instructions properly presented the law of the case, and the verdict cannot be disturbed as against the evidence. There was no plea that the father had manumitted the son, and the instruction on this point was therefore properly refused. The question of consent by the father to the employment of the son was fairly submitted to the jury by the instructions, and under the evidence was clearly a question for the jury. The amount of the verdict is not excessive. The instruction that the jury might find for "medicine not to exceed $25" could not have prejudiced appellant on the trial, and was plainly a clerical error. The medicine was alleged in the petition to have cost $5, and there was no proof that it cost over $5. The jury therefore could not have been misled by the instruction on this minor item. The plaintiff claimed damages in the sum of $1,800, or three times as much as was allowed. There was no substantial error in the admission of evidence. The circumstances under which the injury occurred were properly admitted in evidence. They were part of the res The testimony of the mother of the boy could not have been prejudicial to the appellant, as she stated nothing Central of Georgia Ry. Co. v. Austin more than appellant had already testified to, and his statements on these subjects were not contradicted. Testimony going to the extent of the boy's injury was properly admitted, for this went to show the extent to which his services had been lost and the trouble and care required in nursing him. On the whole record we see no error, and the judgment complained of is therefore affirmed. CENTRAL OF GEORGIA Ry. Cỏ. v. Austin. (Supreme Court of Georgia, March, 11, 1902.) Death of Employee*-Negligence of Master-Evidence. This being a suit for damages for a tortious homicide, and the evidence showing without contradiction that the defendant was not negligent in any of the particulars alleged, a verdict for the plaintiff was contrary to law. (Syllabus by the Court.) Error from city court of Atlanta; H. M. Reid, Judge. Action by E. V. Austin against the Central of Georgia Railway Company. Judgment for plaintiff, and defendant brings error. Reversed. Dorsey, Brewster & Howell, for plaintiff in error. Westmoreland Bros. and W. E. Cousins, for defendant in error. SIMMONS, C. J. Mrs. Austin brought suit against the Central of Georgia Railway Company for damages for the homicide of her son, who had been, up to the time of his death, an employee of the defendant company. On the trial the jury returned a verdict in her favor. The company moved for a new trial. The judge overruled the motion, and the movant excepted. Under the view we take of the case, it is unnecessary to notice any of the many allegations of error made in the motion for new trial, except that the verdict is contrary to law and the evidence. After a careful reading and study of the brief of evidence, we have come to the conclusion that, even if the deceased was without fault, the defendant was not shown to have been negligent. The evidence for the plaintiff fails to sustain any of the allegations of negligence on the part of the defendant, and the evidence for the defendant demonstrates that it was not guilty of any negligence whatever causing the death of the deceased, or contributing thereto. This being true, the verdict was without evidence to support it, and was contrary to law. Judgment reversed. All the justices concurring, except LITTLE, J., absent. *Columbus, etc., R. Co. v. Christian (Ga.), 5 Am. & Eng. R. Cas., N. S., 584. St. Louis, I. M. & S. Ry. Co. v. THURMOND. Master and Servant-Negligence-Fellow Servant.* Plaintiff's husband, while employed by defendant railway company as a "fire knocker," was killed by the standing engine under which he was working being run against by another engine in charge of a "hostler." Deceased and the "hostler" were both under the supervision of the engine dispatcher. The "hostler" had men under him, while deceased had no supervision over any others. Sand. & H. Dig. 6248, provides that all persons engaged in the service of any railway company who are intrusted with the authority of superintendence of any other employee are vice principals, and not fellow servants with such employee; and section 6249 provides that employees shall be deemed fellow servants only when of the same grade: held, that such "hostler" and deceased were not fellow servants. Appeal from circuit court, Pulaski county; Joseph W. Martin, Judge. Action by Lizzie Thurmond, as administratrix of the estate of James Thurmond, deceased, against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Dodge & Johnson, for appellant. P. C. Dooley, E. W. Kimball, and R. E. Wiley, for appellee. BUNN, C. J. Lizzie Thurmond, as the administratrix of the estate of her deceased husband, James Thurmond, brought this suit, for herself, as the widow, and James C. and Sue Ada Thurmond, the minor children of herself and deceased husband, against the St. Louis, Iron Mountain & Southern Railway Company, for damages in the negligent killing of her said husband, in the Second division of the Pulaski circuit court, laying the damages as follows, to wit: For herself in the sum of $6,000, for the children in the sum of $7,000, and for the estate in the sum of $3,000, aggregating the sum of $16,000, for which she prayed judgment. The defendant answered, denying all material allegations, and trial was had before a jury. Verdict and judgment for $1,050 for widow and children and $50 for the estate. From this judgment defendant in due form and in due time appealed to this court, assigning II separate and several grounds of error in the proceedings and rulings of the trial court. The plaintiff testified that she was the widow of the deceased. James Thurmond, and that they had two minor children living.-the children named in the complaint; that her husband had been working for the railway company for years as a "fire knocker," receiving $1.62 per day wages; that he was a steady colored man, and supported his family; *See article, "Fellow Servants," 12 Am. & Eng. Enc. Law 893. Also, see notes, 20 Am. & Eng. R. Cas., N. S., 296; 9 Am. & Eng. R. Cas., N. S., 9. |