6 S.W. 464 (Mo. 1888), Parsons v. Missouri Pac. Ry. Co.

Citation:6 S.W. 464, 94 Mo. 286
Opinion Judge:Brace, J.
Party Name:Parsons v. The Missouri Pacific Railway Company, Appellant
Attorney:Thos. J. Portis, Thos. G. Portis and Wm. S. Shirk for appellant. Draffen & Williams for respondent.
Judge Panel:Brace, J. Sherwood, J., absent.
Case Date:January 16, 1888
Court:Supreme Court of Missouri
 
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Page 464

6 S.W. 464 (Mo. 1888)

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

[94 Mo. 290] 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...

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