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Opinion of the Court.

Mr. John F. Dillon, (with whom were Mr. Winslow F. Pierce and Mr. David D. Duncan, on the brief,) for plaintiff in error.

Mr. R. C. Garland for defendant in error. Mr. A. H. Garland and Mr. Charles I. Evans were on the brief.

MR. JUSTICE HARLAN delivered the opinion of the court.

This is an action to recover damages alleged to have been sustained by reason of the negligence of the defendant railway company, the present plaintiff in error, resulting in the death of Louis D. Gentry. It was brought in the Circuit Court of Dallas County, Texas, and was removed into the Circuit Court of the United States for the Northern District of Texas on the petition of the defendant, a corporation created under acts of Congress.

The deceased left surviving him his mother, the plaintiff Mary A. Gentry, seventy-five years old, and dependent upon him for support; his wife, the plaintiff May Gentry, twentysix years of age; and two children, the plaintiffs Olive Lee Gentry and Thomas M. Gentry, six and two years of age, respectively.

By the statutes of Texas, in force when the alleged injuries were received, it was provided:

"ART. 2899. An action for actual damages on account of injuries causing the death of any person may be brought in the following cases: 1. When the death of any person is caused by the negligence or carelessness of the proprietor, owner, charterer or hirer of any railroad, steamboat, stage coach or other vehicle for the conveyance of goods or passengers, or by the unfitness, negligence or carelessness of their servants or agents. 2. When the death of any person is caused by the wrongful act, negligence, unskilfulness or default of another.

"ART. 2900. The wrongful act, negligence, carelessness, unskilfulness or default mentioned in the preceding article must be of such a character as would, if death had not ensued,

Opinion of the Court.

have entitled the party injured to maintain an action for such injury.

"ART. 2901. When the death is caused by the wilful act or omission or gross negligence of the defendant, exemplary as well as actual damages may be recovered.

"ART. 2902. The action may be commenced and prosecuted, although the death shall have been caused under such circumstances as amounts in law to a felony, and without regard to any criminal proceeding that may or may not be had in relation to the homicide.

"ART. 2903. The action shall be for the sole and exclusive benefit of the surviving husband, wife, children and parents of the person whose death shall have been so caused, and the amount recovered therein shall not be liable for the debts of the deceased.

"ART. 2904. The action may be brought by all of the parties entitled thereto, or by any one or more of them for the benefit of all.

"ART. 2905. If the parties entitled to the benefit of the action shall fail to commence the same within three calendar months after the death of the deceased, it shall be the duty of the executor or administrator of the deceased to commence and prosecute the action, unless requested by all of the parties entitled thereto not to prosecute the same.

"ART. 2906. The action shall not abate by the death of either party to the record if any person entitled to the benefit of the action survives. If the plaintiff die pending the suit, when there is only one plaintiff, some one or more of the parties entitled to the money recovered may, by order of the court, be made plaintiff and the suit be prosecuted to judgment in the name of such plaintiff for the benefit of the persons entitled.

"ART. 2907. If the sole plaintiff die pending the suit, and he is the only party entitled to the money recovered, the suit shall abate.

"ART. 2908. If the defendant die pending the suit, his executor or administrator may be made a party, and the suit be prosecuted to judgment as though such defendant had con

Opinion of the Court.

tinued alive. The judgment in this case, if rendered in favor of the plaintiff, shall be paid in due course of administration. "ART. 2909. The jury may give such damages as they may think proportioned to the injury resulting from such death; and the amount so recovered shall be divided among the persons entitled to the benefit of the action, or such of them as shall then be alive, in such shares as the jury shall find by their verdict." Sayles' Tex. Civ. Stat.

There was a verdict in favor of the plaintiffs as follows:

"We, the jury, find for the plaintiffs ($10,166.66) ten thousand one hundred and sixty-six dollars and sixty-six cents, apportioned among plaintiffs as follows:

"May Gentry, four thousand one hundred and sixty-six dollars and sixty-six cents;

"Olive Lee Gentry, two thousand five hundred dollars; "Thos. M. Gentry, two thousand five hundred dollars;

"Mary A. Gentry, one thousand dollars."

Separate judgments were rendered in favor of each plaintiff for the respective sums awarded by the verdict and for costs, for which execution was directed to issue.

A motion for a new trial having been made and overruled, the case was taken to the Circuit Court of Appeals, and. by that court the judgment of the Circuit Court was affirmed with costs to the plaintiffs.

It was alleged in the complaint and there was evidence tending to show (although this evidence was weakened by that introduced on behalf of the railroad company)

That the deceased was an engineer on the regular passenger train of the defendant running between Big Springs, in Howard County, Texas, and Toyah, in Reeves County, Texas, and was paid for the number of miles actually run by him as such engineer;

That he had brought his train into Big Springs from Toyah about six o'clock on the morning of March 13, 1890, and was off duty that day, the schedule time for his going on duty again being twenty-five minutes past nine o'clock in the evening of the day when his train would leave Big Springs for Toyah ;

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That at fifteen minutes after eight o'clock on that evening the deceased left his residence for the purpose of going to and taking charge of his engine;

That his train was standing at its usual and customary place on a switch on the north side of the defendant's yards at Big Springs, and in order to reach his engine he was compelled to pass over and across several switches and the main track;

That while so passing across and over the defendant's yards, as he and other employés had been in the habit of doing for the previous nine or ten years, along the usual and customary path, and between the hours of twenty minutes after eight o'clock and nine o'clock, he was run down and killed by a flat car coupled in front of a locomotive used by the defendant for switching purposes, and while moving westward on the main track of defendant's road in said yards;

That the defendant failed to place any headlight, lantern or lights of any kind, or any other signal of danger, or any person to watch for employés on said flat car, to give warning of its character or to sound a whistle or to ring the bell of the locomotive as it approached the crossing where the deceased was struck down;

That the headlight on the locomotive was so arranged that the rays of light from it passed entirely over and beyond the flat car in front of such locomotive;

That the defendant failed to have any lanterns or lights of any kind in or about its yards or along that crossing;

That the engine used by the company for switching purposes on the occasion referred to was an ordinary heavy road engine with a pilot on in front, and was wholly unsuitable and unfit for such purposes, and that in order to make it useful the defendant coupled an ordinary flat car in front of the engine; and

That the deceased, not knowing of such use of an ordinary road engine, with a flat car coupled in front of it, for switching purposes, and while passing along said usual and customary crossing through the defendant's yards, unable to see the flat car on account of the darkness of the night, and being blinded

Opinion of the Court.

by the headlight on the engine, and not hearing the whistle or bell of the locomotive, and not knowing anything of the : use and danger of the locomotive and flat car as an appliance for switching purposes, was run over by the flat car and immediately killed.

The action proceeded on the general ground that the railway company failed in its duty to supply and furnish proper and suitable machinery for switching purposes, so guarded by lights and otherwise as to give warning to its employés who, in the discharge of their duties, were compelled to cross the tracks of the defendant's yards.

At the close of the evidence the company made six requests for instructions, one of which was that, as the plaintiffs had failed to prove their case, and had shown no right to recover, the jury should find for the defendant. These requests were all denied, and the defendant excepted to the action of the court in respect of each request.

The court then charged the jury as follows:

"In this case there is no dispute about the following facts: Louis D. Gentry, on the night of the 13th of March, 1890, was run over and killed by a flat car of the defendant, propelled by a switch engine in its yards at Big Springs, Texas; at the time of his death he was an engineer of defendant, 35 years old, and earning from $150 to $160 per month; that he left surviving him his wife, May Gentry, 26 years old, and two children, Thomas Gentry, now three years old, and Olive Lee, now seven years old, and his mother, Mary A. Gentry, who is a widow and to whose support he contributed $15 to $25 per month; that his mother was about 75 years old at the time of Louis D. Gentry's death.

"Louis D. Gentry, deceased, assumed the risk naturally incident to crossing the railroad track of defendant at Big Springs to reach his car or in crossing said track for any other purpose. You are further instructed that defendant in switching the cars where said Gentry was killed was not required to furnish absolutely safe machinery to do switching at that place, but only to use reasonably safe machinery to do said switching, and if you find from the evidence that

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