Parsons v. Missouri Pac. Ry. Co.

• Decision Date: 16 January 1888
• Citation: 6 S.W. 464,94 Mo. 286
• Parties: Parsons v. The Missouri Pacific Railway Company, Appellant
• Court: Missouri Supreme Court

6 S.W. 464

94 Mo. 286

Parsons v. The Missouri Pacific Railway Company, Appellant

Supreme Court of Missouri

January 16, 1888

Appeal from Cooper Circuit Court. -- Hon. E. L. Edwards, Judge.

Reversed and remanded.

Thos J. Portis, Thos. G. Portis and Wm. S. Shirk for appellant.

(1) Defendant's demurrer to the evidence should have been sustained for at least four different reasons. (a) The evidence shows that the alleged unsound condition of the car was not the proximate cause of the injury, but that the immediate cause of the injury was the neglect of plaintiff's son, the deceased brakeman, to set at least one of the brakes, at all, and his failure to set the other brakes upon the cars which escaped, sufficiently tight to hold them upon the grade. Cooley on Torts [1 Ed.] prop. 3 pp. 70, 71; prop. 4, pp. 78, 79, and 80; Henry v Railroad, 76 Mo. 288; Railroad v. Staley, 19 Am. and Eng. Ry. Cas. 381; Cleveland v. Elliott, 4 Ohio St. 474; Pease, Adm'x, v. Railroad, 61 Wis. 163. (b) The evidence shows that the cars were loaded, and approached the other loaded cars at the rate of eight miles an hour, and came together with great force. Deceased was in a position to see and appreciate the danger, and voluntarily incurred it, and had ample opportunity to escape it. Wood on Master and Servant, sec. 328; Smith v. Railroad, 61 Mo. 588; Walsh v. Transfer Co., 52 Mo. 434; 57 Ia. 444; 45 N. J. L. 368; 26 Kas. 443; Nolan v. Shickle, 3 Mo.App. 300. (c) The deceased was himself guilty of negligence, which directly contributed to the accident, and no negligence of the defendant intervened between the negligence of the deceased and the injury. The rule is, that where the plaintiff has been guilty of negligence directly contributing to the injury, he cannot recover, unless the defendant, after becoming aware of plaintiff's danger, could have prevented the injury by the exercise of ordinary care and caution. This rule is so familiar and well established that a citation of authorities seems unnecessary; but see Cooley on Torts [1 Ed.] 563, 674; Field on Damages, secs. 24 and 167; Karle v. Railroad, 55 Mo. 476; Yarnell v. Railroad, 75 Mo. 576; Shear. & Redf. on Neg. sec. 25; Whart. Neg., sec. 300; Scoville v. Railroad, 81 Mo. 434; 2 Thomp. Neg. 1149. (d) There is no evidence showing that the car which broke was not reasonably safe and sufficient for its intended use. It only shows that it did not stand the great shock and strain of colliding, when moving at the rate of eight miles an hour, with eight other loaded cars, and impelled by its own weight and load, and that of at least two other loaded cars behind it. Nor was it defendant's duty to furnish a car that would stand such a collision. Nor does the fact that other cars may have, at other times and under other circumstances, stood as fierce a crush, prove that this one was not reasonably safe and sufficient for the purposes for which it was intended and used. Porter v. Railroad, 71 Mo. 66, and authorities cited. It is sufficient if the company provided a car, which without extraordinary accident would have safely carried its load to its destination. Amies v. Stevens, 1 Str. 128; Railroad v. Blower, 41 L. J. C. P. 268. (2) No damages being proved, none should have been given, unless merely nominal. No circumstances of aggravation being shown, the damages are merely compensatory. Morgan v. Durfee, 69 Mo. 478; Joyce v. Branson, 73 Mo. 28; Rains v. Railroad, 71 Mo. 164. Where compensatory damages alone are recoverable, the amount of such damages should be shown by the evidence. The jury should not be left free to act in an unrestrained and irresponsible manner. Hickman v. Railroad, 22 Mo.App. 344; Railroad v. Brown, 26 Kan. 443; Railroad v. Sykes, 2 Am. & Eng. Ry. Cases, 254. (3) The damages were excessive. Railroad v. Brown, 26 Kas. 443.

Draffen & Williams for respondent.

(1) The unsound condition of the car was the proximate and direct cause of the death of plaintiff's son. Nagel v. Railroad, 75 Mo. 653. (2) The deceased had the right to assume and to act upon the presumption that the car was safe and sufficient. Brown v. Railroad, 53 Iowa 595; Condon v. Railroad, 78 Mo. 567; Porter v. Railroad, 71 Mo. 66. (3) Contributory negligence is a defence to be pleaded and proved by the defendant. Donovan v. Railroad, 89 Mo. 147; Harrison v. Railroad, 74 Mo. 364; Thompson v. Railroad, 51 Mo. 190. There is no presumption that the deceased was guilty of contributory negligence, but the contrary. Buesching v. Gas Co., 73 Mo. 219; Stepp v. Railroad, 85 Mo. 229. The court below properly refused to take the case from the jury. Drain v. Railroad, 86 Mo. 574; Petty v. Railroad, 88 Mo. 306. (4) The instruction given in behalf of plaintiff as to the measure of damages was correct. Nagel v. Railroad, 75 Mo. 653; Owen v. Brockschmidt, 54 Mo. 285. What the life of one person is worth to another is a question to be submitted to the sound judgment of the jury, under all the evidence, and within the limits of the statute. Grogan v. Railroad, 87 Mo. 321; Railroad v. Barron, 5 Wall. 90; O'Mara v. Railroad, 38 N.Y. 445; Railroad v. Keller, 67 Pa. St.; Chicago v. Hissing, 83 Ill. 207; Railroad v. Shannon, 43 Ill. 338. (5) The damages were not excessive. Bierbauer v. Railroad, 15 Hun, 559; S. C., 77 N.Y. 558; Erwin v. Steamboat Co., 23 Hun, 573. (6) The question of damages, within the statutory limits, must be left to the discretion of the jury, and there is nothing in this case to show that they were actuated by any improper motive in assessing the damages. 3 Sutherland on Damages, p. 282, et seq.

Brace J. Sherwood, J., absent.

OPINION

Brace, J.

This is an action instituted by plaintiff to recover damages for the death of his minor son, Walter Parsons, who was in the employ of defendant as a brakeman, and whose death, it is alleged, was caused by the breaking of the defective timbers of a car in the train on which he was engaged.

The evidence on the part of the plaintiff tended to prove that said Walter was, at the time of his death, a minor, unmarried, aged about eighteen years and four months; that plaintiff was his father, and that his mother was dead; that the train on which he was employed as a brakeman was hauling rock from a quarry near Warrensburg; three of the cars, after having been loaded with rock, which was placed in the ends over the trucks, and none in the centre, were brought up and placed on the switch, on which the cars remained standing there after the engine was detached (it does not appear who set the brakes on these cars); that, by some cause, not disclosed in the evidence, the three cars started down the track. The conductor and the brakeman, Walter Parsons, were about a car's length away from these three cars; they both started to them; the conductor tried to get on the rear car, but did not succeed. Parsons got on the front car and began tightening up the brakes; one of the cars had no brakes on it; there were eight cars standing lower down on the track; Parsons did not succeed in stopping the three before they collided with the stationary cars; the front car of the three upon which Parsons was standing broke in the middle, throwing him forward and the rock upon him, instantly killing him; that the timbers which broke were decayed and partially rotten; that the force of the collision was not sufficient to have broken them if they had been sound, and that the defect in the timbers could have been discovered by a proper inspection.

The defendant demurred to the evidence, and the demurrer having been overruled, the defendant offering no evidence, the case was submitted to the jury under the instructions of the court, and a verdict returned for plaintiff for five thousand dollars. After an unsuccessful effort for a new trial and in arrest of judgment the defendant appealed, and seeks a reversal for alleged errors, considered, in their order, in the course of this opinion.

I. In order that the action of the court below in admitting evidence may be reviewed in the appellate court, the evidence objected to must be specifically pointed out to the trial court, and the grounds of objection thereto specifically stated, and the ruling of the court thereupon excepted to. This has been so frequently ruled by this court that it is becoming irksome to cite the cases. In this case many items of testimony contained in the depositions are grouped together, and a general objection made to their being admitted to the jury, with no specific reason assigned why any particular item of such evidence should not be admitted; in such case it was not incumbent upon the trial judge to fish out incompetent evidence, if any there was in the mass objected to, with a hook and line of his own.

II. We find no error in the action of the circuit court overruling defendant's demurrer to the evidence. It was the duty of the defendant to furnish to its employes cars reasonably safe and sufficient for the purposes for which they were to be used by such employes; and in the absence of notice to the contrary, the deceased had the right to assume that the car which he mounted in the line of his duty, and on which he was attempting to set or tighten the brakes when it broke, was so safe and sufficient. There was no evidence tending to show that deceased had notice of any defect in the car; in fact he was killed within two weeks after he left his father's house to enter the service of the defendant, and could have had no such experience as would have enabled him to detect such a latent defect in the timbers of the car as the evidence tends to show existed; it was not his duty to do so, if he could. It was the duty of the defendant, not only in the first instance to furnish safe and sufficient cars to be used by their employes in...