Haddox v. Northern Pacific Ry. Co.

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was brought by the father of Omer Haddox, deceased, to recover damages which the plaintiff as parent suffered by reason of the death of his son. From a judgment in favor of the plaintiff and from an order denying them a new trial, the defendants appealed.

The cause is submitted to this court upon the briefs in Melzner, Admr. v. Northern Pacific Ry. Co. et al., just decided [ante, p. 162, 127 Pac. 146], for a determination of all questions involved, except one. Upon the questions common to the two cases our decision in the Melzner Case determines them against the appellants. The one question submitted in this ease which was not considered in the Melzner Case arises upon the action of the trial court in modifying an instruction tendered by the defendants, to the effect that the duty of Engineer Barry to make all reasonable efforts to avoid striking the boy- did not arise until Barry actually discovered the boy in a position of peril. The trial court modified the offered instruction by striking out the word “actually,” and error is predicated upon that action. The presence of the word “actually” in the instruction did not add anything, and its elimination did not take away anything from the instruction. “Discovered” means actually discovered, and “actually discovered” does not mean more than “discovered.”

The judgment and order are affirmed.

Affirmed.

Me. Chief Justice Beantly concurs. Me. Justice Smith did not hear the argument and takes no part in the foregoing decision.