McGowan v. St. Louis Ore & Steel Co.
Decision Date | 28 March 1892 |
Citation | 19 S.W. 199,109 Mo. 518 |
Parties | McGowan et al. v. The St. Louis Ore & Steel Company, Appellant |
Court | Missouri Supreme Court |
[Copyrighted Material Omitted]
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.
Brace and Black, Barclay and Thomas, JJ., hold it should be affirmed, Brace, Black and Thomas, JJ., in separate opinions.
OPINIONIN BANC.
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:
To which petition the defendant filed the following answer:
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. ...
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