19 S.W. 199 (Mo. 1892), McGowan v. St. Louis Ore & Steel Co.

Citation:19 S.W. 199, 109 Mo. 518
Opinion Judge:Gantt, J.
Party Name:McGowan et al. v. The St. Louis Ore & Steel Company, Appellant
Attorney:Hitchcock, Madill & Finkelnburg for appellant. Laughlin, Kern & Tansey for respondents.
Judge Panel:Gantt, J. Sherwood, C. J., and Macfarlane, J., fully concur with Gantt, the judgment should be reversed and cause remanded. Brace and Black, Barclay and Thomas, JJ., hold it should be affirmed, Brace, Black and Thomas, JJ., in separate opinions. Black and Brace, JJ.
Case Date:March 28, 1892
Court:Supreme Court of Missouri
 
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Page 199

19 S.W. 199 (Mo. 1892)

109 Mo. 518

McGowan et al.

v.

The St. Louis Ore & Steel Company, Appellant

Supreme Court of Missouri

March 28, 1892

Page 200

[Copyrighted Material Omitted]

Page 201

Appeal from St. Louis City Circuit Court. -- Hon. James A. Seddon, Judge.

Affirmed.

Hitchcock, Madill & Finkelnburg for appellant.

(1) The damages awarded by the jury were excessive, and not warranted by the evidence. 2 Sedgwick on Damages, p. 541, note 8; Parsons v. Railroad, 94 Mo. 286, 300. (2) The subject of damages was not properly placed before the jury. Railroad v. Weldon, 52 Ill. 290; 3 Sutherland on Damages, p. 282. (3) The instruction on the subject of damages, given to the jury at the plaintiffs' request, was erroneous, insufficient and misleading and ignored important elements which, under the statute in such cases, should have been brought to the attention of the jury. R. S., sec. 4427. (4) The instruction of damages asked by defendant should have been given. Owen v. Brockschmidt, 54 Mo. 285; R. S., sec. 4427.

Laughlin, Kern & Tansey for respondents.

(1) The instruction given by the trial court for respondent on the measure of damages wes proper and sufficient. Tetherow v. Railroad, 98 Mo. 74; Smith v. Railroad, 92 Mo. 559; Rohrer v. Railroad, 91 Mo. 509; Hurt v. Railroad, 94 Mo. 255. (2) Besides, the appellant asked for an instruction almost identically like the one complained of by it, and is now estopped to complain. Noble v. Blount, 77 Mo. 235; Leabo v. Goode, 67 Mo. 216; Bank v. Armstrong, 92 Mo. 279.

Gantt, J. Sherwood, C. J., and Macfarlane, J., fully concur with Gantt, the judgment should be reversed and cause remanded. Brace and Black, Barclay and Thomas, JJ., hold it should be affirmed, Brace, Black and Thomas, JJ., in separate opinions.

OPINION

IN BANC.

Gantt, J.

This is an action by respondents in the circuit court of the city of St. Louis to recover damages on account of the death of their father, Michael McGowan, on the tenth of December, 1883, by falling down an elevator chute on the premises of appellant, the St. Louis Ore & Steel Company, under sections 4426 and 4427.

The petition is as follows:

"Plaintiffs state that they are infants under the age of twenty-one, and that John G. Gay, Jr., was on February 7, 1884, duly appointed by above circuit court as the next friend of the said plaintiffs to institute this suit on their behalf, and for a cause of action state that they are the children of one Michael McGowan who died December 10, 1883; that said Michael McGowan left no widow surviving him; that defendant is a corporation duly organized and existing under the laws of Missouri; that defendant was at and prior to the day above mentioned the owner of certain ore and steel works in or near the city of St. Louis, Missouri; that at and prior to said date said Michael McGowan, deceased, was employed by defendant in the said ore and steel works as a laborer to pull certain loaded trucks from an elevator in an elevator chute of great height, to unload the same and to return the same when unloaded to the entrance to said elevator chute, and then and there to place the same upon said elevator; that at said time and place it was defendant's duty to have said elevator at said entrance to said elevator chute and to have the said entrance to said elevator chute safely and securely guarded, fenced and lighted as defendant well knew or by the exercise of reasonable care could have known; that on said tenth day of December, 1883, defendant did not have said elevator at the said entrance to said elevator chute, nor did it have said entrance to said elevator chute safely and securely guarded, lighted and fenced as it was its duty to do; that at said time and place whilst said Michael McGowan was occupied in the discharge of the said duties of his employment in defendant's said iron, ore and steel works he was precipitated down said elevator chute with such force as to then cause his death almost instantly by reason of defendant's said neglect to have said elevator at said entrance to said elevator chute and to have said entrance securely and safely guarded, fenced and lighted, he being then and there free from all neglect in the premises.

"Plaintiffs further say that by reason of the premises aforesaid, and by virtue of provision of section 2122 of the Revised Statutes of Missouri, 1879, they have sustained damages in the sum of $ 5,000, for which said sum they pray judgment."

To which petition the defendant filed the following answer:

"Now comes the St. Louis Ore & Steel Company, defendant, and for answer to the petition of plaintiffs in the above-entitled cause says: That defendant has not knowledge or information sufficient to form a belief whether said plaintiffs are or either of them is an infant, nor whether Michael McGowan was their father, nor whether said Michael McGowan left no widow surviving him. Defendant is informed and, therefore, admits that on or about December 10, 1883, one Michael McGowan, who was before then employed by defendant as a laborer at certain steel works owned by defendant in the city of St. Louis, commonly called the Vulcan steel works, came to his death by falling down an elevator shaft or chute at said steel works. But defendant denies generally each and every other allegation in said petition contained.

"Defendant further answering says that said McGowan directly contributed to and in part caused his own death by the negligent and reckless manner in which he undertook, on or about said tenth of December, 1883, to push a heavy iron truck, which it was his duty to assist in moving backwards and forwards from said elevator opening; that said McGowan well knew the situation of said elevator opening and that it was necessary to approach the same with care; but said McGowan at the time aforesaid so negligently and recklessly pushed said truck towards and into said opening that said truck was precipitated down the same, and said McGowan in attempting to hold back the same was in consequence of his own recklessness dragged down said opening and thereby injured so as to cause his death. And having fully answered said petition defendant prays to be hence dismissed with its costs."

The reply was a general denial of new matter set up in the answer.

At the trial, on March 21, 1888, respondents, to sustain the issues on their part, introduced evidence, in substance, as follows: John McGowan testified that his age was twenty years; that he had two brothers and a sister, viz.: James McGowan, eighteen years; Mary McGowan, seventeen years of age, and Michael McGowan, ten years of age, and that witness was sixteen when his father Michael died; that his mother died some time before his father was killed; that they lived in south St. Louis when his father died, and had lived there as long as he could remember; that he and his brother James are employed by the Western Steel Company (the same works formerly operated by the St. Louis Ore & Steel Company); that his sister is earning wages as a house servant, and that his younger brother is in an orphan asylum; that in December, 1883, his father worked for the St. Louis Ore & Steel Company, and lost his life by falling down a shaft, -- it was on the tenth day of December, 1883; that he was forty years of age; witness was also working for the St. Louis Ore & Steel Company at the time of the accident; witness saw him shortly after the accident, but he was unconscious; was not present when the accident occurred; he died on the day of the accident at the Alexian Brothers' hospital, to which place he was removed by respondents; he was buried by the family, the expenses of hospital and burial being paid out of the wages due him and the furniture that was sold. Deceased had just gone on duty for the morning when he was killed; he started to go to work at about three o'clock that morning. He was paid by the ton, and had been earning about $ 3 a day.

On cross-examination witness testified that his father left some property; that he owned the dwelling-house in which he lived, also a tenement house which he let to tenants for rent, also a store in East St. Louis. Witness, his brother James, and his sister, were all earning wages. There was a mortgage on all the real estate; the property in Missouri was sold and brought nothing over the mortgage; the Illinois property had not yet been sold. His father was killed on Monday morning; Saturday had been his day off; he had been at work Friday; had been at work for the ore and steel company since March; was killed in December; during all this time he had been doing the same kind of work, pushing buggies.

On re-examination witness stated that the Carondelet property had been swept away by mortgages, and that the creditors were now proceeding to sell the East St. Louis property, and that there was nothing left for his children.

Patrick Quinn testified that in December, 1883, he was working for the ore and steel company in the converting department of the Vulcan works, on the charging floor, and about fifty feet above the ground floor, about three or four ordinary stories high. Witness went to work about four o'clock on Monday morning, December 10, 1883; it was still dark; Michael McGowan was there; he worked on the same floor; witness was engaged in charging cupolas. Peterson was the superintendent of the whole works, Shea was the boss or foreman of the works, Shaneyman was the select foreman; he was the boss charger; was the first man on the floor. "My duty was charging cupolas with pig-iron which we got from the hoist or elevator, which was on the north part of the floor. The iron was brought up the elevator on iron buggies; one man could push an empty buggy, but...

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