Hickman v. Missouri Pacific Ry. Co.

Citation22 Mo.App. 344
PartiesHENRY HICKMAN, Respondent, v. MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
Decision Date24 May 1886
CourtCourt of Appeal of Missouri (US)

APPEAL from Pettis Circuit Court, HON. JOHN P. STROTHER, Judge.

Reversed and remanded.

The case is stated in the opinion.

THOS. G. PORTIS and WM. S. SHIRK, with THOS. J. PORTIS, for the appellant.

I. The petition shows upon its face that deceased had once been married. Therefore, although he died while a minor, and left neither wife nor children surviving him, the father could maintain no action under the statute. Sects. 2121 and 2122, Rev. Stat.; Barker v. Hann. & St. Jo. Railroad, 85 Mo--; McNamara v. Staten, 76 Mo. 329.

II. Incompetent and irrelevant evidence was admitted, neither establishing negligence nor incompetency by defendant's servants in the performance of their duties. Pierce on Railways (1 Ed.) 382. So the court excluded competent and relevant evidence offered by defendant.

III. But the main error in the case is in the action of the court in refusing to sustain defendant's demurrer to the evidence, and in giving the plaintiff's instructions. The evidence did not entitle plaintiff to recover; and there was no evidence on which to base the plaintiff's instructions. To make a master liable for injury caused by defective machinery, or which, from use, has come to be out of repair, the evidence must show that the master knew of the defect, or could have known it by diligence. Shearm. & Redf. Neg. sect. 99; Wood on Master & Servant (1 Ed.) sect. 344; Porter v. Railroad, 71 Mo. 66; Duskin v. Sharp, 88 N. Y. 225. The burden of proof is on the servant to show that the company was negligent; and it is necessary to show something else besides the mere fact that the defect existed, Elliott v. Railroad, 67 Mo. 272; Pierce on Railways, 382, notes 3 and 4.

IV. The damages were flagrantly excessive and were assessed contrary to the instruction given for defendant. Under the petition and evidence the father was only entitled to compensatory damages. Frick v. Railroad, 75 Mo. 542; Pierce on Railways, 393.

V. The parent may emancipate his child and divest himself of any right of service. Ream v. Walkins, 27 Mo. 519. It was done here and plaintiff suffered no loss. Iron Co. v. Rupp, 100 Pa. St. 95.

SANGREE & LAMB and WILKERSON & MONTGOMERY, for the respondent.

I. It was the duty of defendant to have not only furnished safe and suitable machinery and appliances, but to have maintained the same in that condition; or to have exercised reasonable care and watchfulness to guard against their being out of order and unsafe. Flynn v. Railroad, 78 Mo. 203; Wood on Master and Servant (1 Ed.) sect. 329, p. 688.

II. If defendant could have discovered the defect by the use of ordinary care, and failed in this respect, and, by reason of the defect, injury was sustained, the plaintiff is entitled to recover. Gibson v. Railroad, 46 Mo. 163; Wharton on Negl., sect. 212; Smith v. Railroad, 69 Mo. 36.

III. The instructions given for plaintiff submit to the jury whether or not the defect in the brake shaft was such as would have been discovered by the master had he exercised ordinary care. This is the proper issue, and it was for the jury to decide it. Railroad v. Van-Steinburg, 17 Mich. 122; Thomp. on Negl. 1236; Hackett v. M. M. Co., 101 Mass. 101; Wyatt v. Railroad, 55 Mo. 485; Norton v. Ittner, 56 Mo. 351; Stoddard v. Railroad, 65 Mo. 514.

IV. Plaintiff assumed the burden of showing negligence, and that the defect would have been known had defendant been exercising ordinary care. This was all that was required. In the absence of proof as to the manner in which the injury was inflicted, it may be inferred from the jury. Wood on Master and Servant (1 Ed.) 762; Wharton on Negl., sect. 428.

V. The opinion in Philpot v. Mo. Pac. Ry. Co. (85 Mo 164), is a sufficient answer to the argument on the question of emancipation.

VI. The question of the amount of damages was fairly submitted to the jury. It had the right to consider his prospect for promotion, as well as all the circumstances of the case.

ELLISON, J.

Plaintiff brings this actiou for the death of his minor son alleging himself to be the sole surviving parent. He recovered a judgment for $2,250.00 and defendant appeals to this court.

The son was a brakeman in defendant's service, and, at his decease, was eighteen years and three months of age. His death was caused by the severing of a brake rod while he was engaged in setting a brake. He was doubtless thrown from the car by the sudden giving way of the rod. It was clearly shown that there was a crack or flaw in the rod, of near a quarter of an inch in depth, at the point where the rod passes through the clasp which is attached to the top of the car, and that this defect was covered by the clasp so that it could not be seen by ordinary observation. The defect had existed for some time, as it was old looking and rusty, while the remaining portion of the rod showed a fresh break.

It is not directly shown by the testimony whether this defect was in the rod when originally placed on the car, or whether it was caused by subsequent use. From the nature of it, it would appear more probable that it was originally placed on the car in the defective condition. One of defendant's instructions submits that idea to the jury by conceding, in effect, if such was the fact, the finding would be for the plaintiff. The main errors complained of consist in the court refusing defendant's demurrer to the evidence and refusing to set aside the verdict for excessive damages.

We do not care to set out the evidence in detail, but deem it sufficient to say that it justifies a finding in plaintiff's favor. While the master is not an insurer of the employe's safety, yet he must furnish him with machinery and appliances suitable to the use it is intended to be put; and he must not only furnish it originally, but must use ordinary care and diligence to see that it is kept in that condition. The servant has a right to expect this. If a defect, unknown to the servant, exists, chargeable to the master's negligence in either of the above respects, he is liable. There is no pretense in this case that deceased knew of the condition of the rod; it was hidden from his observation; he is not required to search for latent defects as a condition precedent to his right of recovery. The case has been tried with fairness and substantial accuracy with the exception of the amount of the verdict. The sum returned for plaintiff is not justified by the evidence.

II. The question, then, is, what is the measure of damages in actions of this nature? The statute, section 2123, is, that “the jury may give such damages, not exceeding two thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue; and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.” This statute differs from a similar one in many other states, in that we have the words necessary injury, instead of pecuniary injury; and we also have regard to the “mitigating or aggravating circumstances,” which the others have not. In the absence, however, of evidence tending to show aggravation the word necessary is used as of the same import as pecuniary ( Morgan v. Durfee, 69 Mo. 478), and the damages are merely compensatory. Joice v. Branson,73 Mo. 28. So, too, it is held with us, that while the command of the statute is that we shall have regard to circumstances of aggravation, and in this respect go beyond mere compensation for the necessary or pecuniary loss, yet, in the absence of evidence of aggravation, nothing more than the pecuniary loss is permitted to be allowed as damages. Owen v. Brokschmidt, 54 Mo. 289; Morgan v. Durfee, supra; Joice v. Branson, supra.

In this case there is no evidence of any circumstances of aggravation; and so the circuit court declared in an instruction. The case, then, is left purely on the basis of compensation to plaintiff for his pecuniary loss, and in estimating this loss we “are to be confined to injuries of which a pecuniary estimate can be made, and cannot take into consideration the mental suffering occasioned to the survivors by the death, and that nothing may be allowed as a solatium, that being incapable of a pecuniary estimate, nor for the suffering of the...

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