Stoher v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 16 May 1887
• Citation: 4 S.W. 389,91 Mo. 509
• Court: Missouri Supreme Court
• Parties: STOHER, by her Next Friend, etc., v. ST. LOUIS, I. M. & S. RY. CO.

4 S.W. 389

91 Mo. 509

STOHER, by her Next Friend, etc., v. ST. LOUIS, I. M. & S. RY. CO.

Supreme Court of Missouri.

May 16, 1887.

1. MASTER AND SERVANT — NEGLIGENCE OF MASTER — RAILROADS.

In an action against a railroad company to recover for the death of a fireman, caused by the track giving way under the train during a heavy rain, held, that the sudden giving way of the track was prima facie evidence of negligence in its construction, and that, the evidence as to whether the rain was an extraordinary one being conflicting, the case was properly sent to the jury.

2. SAME — CONTRIBUTORY NEGLIGENCE.

In such action the fact that the fireman and engineer were warned against danger from water in the neighborhood of the place where the accident occurred, it appearing, however, that a long train passed safely over the track shortly before their train, held to be, at most, only evidence of contributory negligence for the consideration of the jury.

3. NEGLIGENCE — EVIDENCE — COMPETENCY.

In an action against a railroad company to recover damages for its negligence which resulted in the death of plaintiff's father, evidence of the condition of the track at the place of the accident more than three years after it happened, is inadmissible.

4. SAME — DEATH OF PARENT — DAMAGES.

In an action brought by a child against a railroad company to recover damages for its father's death, which was alleged to have been caused by the negligence of the company, the jury are not confined, in settling their verdict, to nominal damages, although plaintiff's evidence does not show what the earnings of the father were at the time of his death. The loss of a parent's care in the education, maintenance, and pecuniary support of the child have, in addition to their moral value, an appreciable pecuniary value, which the jury may consider.

5. DAMAGES — EXEMPLARY — INSTRUCTION.

In an action against a railroad company to recover for the death of a fireman caused by an insufficient culvert, and consequent washing away of the track, where there was neither allegation nor proof of malicious, wanton, or gross negligence, or of any aggravating circumstances, held, that the jury were not at liberty to award vindictive or exemplary damages; and an instruction inviting them to consider any aggravating circumstances in the evidence was erroneous.

Appeal from St. Louis court of appeals.

A. R. Taylor and P. Leahy, for respondent. T. J. Portis and Bennet Pike, for appellant.

RAY, J.

Bertha Stoher, an infant, brings this suit by her next friend in the circuit court of the city of St. Louis, to recover damages for the death of her father, Nicholas Stoher, who was killed by the derailment of a passenger train on the railroad of defendant, near Bismarck, Missouri, while he was acting as fireman upon the engine then drawing said passenger train. Upon a trial of the cause plaintiff had judgment for damages in the sum of $5,000, from which the defendant appealed to the St. Louis court of appeals, where the judgment was affirmed, pro forma, from which the case was appealed to this court. None of the witnesses testifying in the cause seemed to have been present when the cars were overturned, and the father of the infant plaintiff killed. The railroad track at this place was "an embankment about a foot high, composed mostly of rock and gravel, and built on the solid rock." At a distance from the place of the accident, variously estimated by the witnesses at from 600 or 700 to 1,000 feet, there was a culvert passing through the railroad bed designed and intended to carry off the water that fell and accumulated during rains in the basin situated on the eastern side of the railroad. This culvert was a double-box culvert, each opening four feet by four, and together with the railroad had been constructed and in use for a number of years. During the night of May 9, 1880, there had been a rain-storm, and the water had accumulated in this basin, and so washed the railroad track and weakened the embankment that the same gave way under the engine passing along there at about 3:30 o'clock at night, which said engine was thrown from the track, and the said Nicholas Stoher, fireman as aforesaid, was then and there killed.

The petition, so far as material, sets forth the grounds of recovery, in substance, "that said deceased was not guilty of any negligence that directly contributed to cause said injuries and his death, but that the same was wholly caused by the negligence of defendant and its agents in failing to keep its track in repair, and in a suitable condition for the passage of its engines and trains of cars along and over its said track; that, at the place where said engine was thrown from the track, said track was out of repair, and was in a defective and dangerous condition, and unsafe for the passage of engines and cars over same; that said track, at said point, was so defectively and negligently constructed that it obstructed the natural flow and drain of water, and did not allow said water an outlet; that, by reason of said obstruction and want of outlet from rain or other causes, the water would dam up and over said track, thus rendering the same defective, and unsuitable for the passage of engines and cars on said track; that, at the time said engine was thrown from said track, the water, by reason of the said defective structure and condition of said track, had accumulated against and upon said track, and washed the soil from said track, so that, when said engine went upon that portion of said track, it gave way, and said engine was thrown from the track, and killed said Nicholas Stoher, as aforesaid, without fault upon his part; and the plaintiff, who is a minor of about the age of eleven months, was the only child of said Nicholas Stoher at the time of his death; that no action for damages was ever begun by the widow of said Nicholas Stoher; that, by the statute in such cases provided, a cause of action has accrued to the plaintiff that, by reason of the death of her father, the plaintiff was and is damaged in the sum of $5,000, for which she demands judgment."

The answer of the defendant denied the allegations of the petition, except as therein afterwards admitted, and then set up that on and long prior to said May 9th said Stoher had been a fireman in its employ, accustomed for several years to run on and over said portion of its railroad; "that said track, prior to and up to the date of the accident, was well and skillfully built and constructed, and was in a state of good repair, as was well known to said Stoher; that, a few minutes prior to the accident, a sudden, violent, extraordinary, and unprecedented rain-storm prevailed at and near the place of the accident, in and during which an amount of rain fell to an extent previously unknown in that part of the country, by reason of which, and of wood and stones thrown against it, the said track, at the place or point where said Stoher was killed, was moved and gave way, and...