56 S.W. 1107 (Mo. 1900), Fisher v. Central Lead Company

Citation:56 S.W. 1107, 156 Mo. 479
Opinion Judge:BRACE, J.
Attorney:Wm. Carter and Percy Werner for appellant. M. R. Smith and J. A. Abernathy for respondent.
Case Date:May 26, 1900
Court:Supreme Court of Missouri

Page 1107

56 S.W. 1107 (Mo. 1900)

156 Mo. 479




Supreme Court of Missouri, First Division

May 26, 1900

Appeal from St. Francois Circuit Court. -- Hon. James D. Fox, Judge.

Reversed and remanded.

Wm. Carter and Percy Werner for appellant.

(1) The trial court committed error in permitting the plaintiff to testify with particularity, to the number or ages of her children. Railroad v. Roy, 102 W. S. 45; Chicago v. O'Breenan, 65 Ill. 645; Railroad v. Binion, 107 Ala; Railroad v. Towers, 74 Ill. 341; Galion v. Lawer, 55 Ohio St. 392; Joliet v. Conway, 119 Ill. 489; Railroad v. Gower, 85 Term 465; 2 Sedgwick on Damages (8 Ed.), sec. 577; Railroad v. Austin, 69 Ill. 426; Railroad v. Wildow, 52 Ill. 290; Kelley v. Railroad, 48 F. 663; Shaw v. Boston, 8 Gray, 45; Railroad v. Finlay, 32 S.W. 51; Railroad v. Cowser, 57 Tex. 303; March v. Walker, 48 Tex. 375; Lierman v. Railroad (Wis.), 52 N.W. 91. We make this point with all due deference to the decisions of the court in the cases of Haehl v. Railroad, 119 Mo. 325; Titheron v. Railroad, 98 Mo. 74; O'Mellia v. Railroad, 115 Mo. 205. Also the cases of Stephens v. Railroad, 96 Mo. 207; Dayharsh v. Railroad, 103 Mo. 570; Mahaney v. Railroad, 108 Mo. 191; Williams v. Railroad, 123 Mo. 573. (2) The court erred in excluding the testimony of competent witnesses offered by defendant to the effect that there was left in said mines a sufficient number of stone pillars to secure the working of the same and render said mines reasonably secure for the safety of defendant's employees while working in said mines. Lawson on Expert and Opinion Evidence (1 Ed), p. 2, rule 2, subrule same page, and pages 70 to 82; Benjamin v. Street Railway, 50 Mo.App. 609; Boettger v. Iron Co., 124 Mo. 105; O'Mellia v. Railroad, 115 Mo. 221; Wray v. E. L. & W. P. Co., 68 Mo.App. 388; Goins v. Railroad, 47 Mo.App. 182; Turner v. Haar, 114 Mo. 344. (3) The court erred in refusing to give defendant's instruction in the nature of a demurrer to plaintiff's evidence. There was no testimony authorizing a recovery by plaintiff. Boemer v. Central Lead Co., 69 Mo.App. 601; Fulger v. Bothe, 117 Mo. 500; Marshall v. Hay Press Co., 69 Mo.App. 255; Steinhauser v. Spraul, 127 Mo. 563; Epperson v. Postal Tel. Cable Co., 50 S.W. 795; Halliburton v. Railroad, 58 Mo.App. 34; Moore v. St. Louis Wire Mill Co., 55 Mo.App. 494; Ring v. Railroad, 112 Mo. 231; Williams v. Railroad, 110 Mo. 323; Bradley v. Railroad, 138 Mo. 293; Railroad v. Mealer, F. 725; 44 L. R. A. 49, 50, note sub-head 1, and p. 79, sub-head c; Scheller v. Consolidated Coal Co., 42 Ill.App. 619. (4) The court erred in giving to the jury, at the request of plaintiff, instructions numbered 1, 2, 3, 4, 5 and 6.

M. R. Smith and J. A. Abernathy for respondent.

(1) Respondent deems it unnecessary to reply to the proposition asserted in point 1, of appellant's brief, for the simple reason that this court has repeatedly ruled against it. Haehl v. Railroad, 119 Mo. 344; Tetherow v. Railroad, 98 Mo. 86; Soeder v. Railroad, 100 Mo. 686. These cases hold that when the widow sues for damages for the death of her husband caused by defendant's negligence, she may show how many children deceased left by her, and their ages; but when the suit is prosecuted by the injured party, such party will not be permitted under the decisions of the court to testify as to the number of his children. Williams v. Railroad, 123 Mo. 584; Railroad v. Roy, 102 U.S. 45; Soeder v. Railroad, supra. (2) Plaintiff's amended petition states facts sufficient to constitute a cause of action on demurrer thereto; more especially is it sufficient on objection to the introduction of evidence in support of it. Hall v. Railroad, 74 Mo. 302; Young v. Shickle Iron Co., 103 Mo. 328; Crane v. Railroad, 87 Mo. 588; Williams v. Railroad, 109 Mo. 486; Johnson v. Railroad, 96 Mo. 346; Mack v. Railroad, 77 Mo. 232; Schneider v. Railroad, 75 Mo. 296; Bliss on Code Plead., sec. 211a; Railroad v. George, 94 Ala. 199; Magee v. Railroad, 78 Cal. 430; Johnston v. Railroad, 23 Ore. 94; Donahue v. Railroad, 32 S.C. 299; Richmond Granite Co. v. Railroad, 92 Va. 554; Cole v. Railroad, 67 Wis. 272; contra; Epperson v. Postal Co., 50 S.W. 803. (3) Under the record, defendant was not prejudiced by the action of the court in excluding the evidence complained of. Chouteau v. Iron Works, 94 Mo. 388; Spiva v. Mining Co., 88 Mo. 75; Goins v. Railroad, 47 Mo.App. 173; Benjamin v. Railroad, 133 Mo. 289; Thomas v. Steam Pump Co., 28 Mo.App. 567; 27 Am. and Eng. Ency. of Law, 733; Cook v. Railroad, 57 Mo.App. 480; Wright v. Brown, 68 Mo.App. 584; 1 Pat. Comp. Mo. Dig., p. 264, par. 3381. It would be a singular rule of pleading to require the plaintiff to allege that her husband did not have knowledge of the defective condition of the roof and supports of defendant's mines when she would not be required to prove such allegation in order to make out her case. R. S. 1889, sec. 2055; Green v. Cole, 127 Mo. 606; Crane v. Railroad, 87 Mo. 594; Alcorn v. Railroad, 108 Mo. 92; Fairgrieve v. Moberly, 29 Mo.App. 155. The assumption of risk must be pleaded as a defense. Epperson v. Postal Co., 50 S.W. 803; Alcorn v. Railroad, 108 Mo. 105; Mayes v. Railroad, 63 Iowa 562; 13 Enc. of Pl. & Prac., 914, note (1).


Page 1108

[156 Mo. 482] BRACE, J.

This is an action by the plaintiff to recover damages for the death of her husband, William Fisher, in which she had judgment in the court below for $ 3,000, and the defendant appeals.

The deceased was an employee of the defendant, engaged in operating a drilling machine in defendant's lead mine in the county of St. Francois on the 7th day of November, 1896, when a fragment of the rock which constituted the roof of the mine in which he was working fell upon him inflicting injuries from which he died the next day. The plaintiff's cause of action as stated in the petition is as follows:

"Plaintiff states that she was many years ago married to William Fisher, deceased; that on the day of November, 1896, she was the wife of the said William Fisher, and the mother by him of five children, all of which are living, the [156 Mo. 483] oldest of which is nine years past; that on said day, and prior thereto, he had been and was then employed in the service of said defendant company in one of the drifts or slopes of its said mines, located a short distance from the town of Flat River, county of St. Francois, State aforesaid, in the immediate vicinity of its reduction works; that he was at the time underground with another man operating a drilling machine, under the control, direction and supervision of one Jesse Smith, who, as plaintiff is informed, was a shift or underground boss of said defendant company. Plaintiff states that her husband, at the time of receiving the injuries hereinafter complained of, of which he died, was operating, as aforesaid, a drilling machine, and was at the time adjusting it in the manner and as was his custom preparatory to drilling with it in said mines; that while so engaged, a large sliver or scale of rock overhead broke loose and fell upon him, mortally injuring him upon and along the left side of his person, of which said injury so received, while at work in the line of his duty, under the negligent supervision of the said Jesse Smith, he died within a short time thereafter.

"Plaintiff states that defendant company had negligently failed to construct and maintain in a reasonably safe form, the roof of its said mines at the place where deceased was injured, as aforesaid, the same being composed of a shaley and seamy limestone rock through which water was continually trickling, liable to give way at any time, as was well known by defendant company, or might have been so known by it, by the...

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