Elliott v. St. Louis & Iron Mountain R.R. Co.

Citation67 Mo. 272
PartiesELLIOTT v. ST. LOUIS & IRON MOUNTAIN R. R. CO., Appellant.
Decision Date30 April 1878
CourtUnited States State Supreme Court of Missouri

Appeal from Washington Circuit Court.--HON. LOUIS F. DINNING, Judge.

Thoroughman & Warren and Wm. R. Donaldson for appellant.

1. The second clause of section 2, p. 519, 1 Wag. Stat., does not continue the right of action to the plaintiff, as deceased was confessedly not a passenger, but an employee. It was not embraced in the first clause of that section, for that relates to injuries received from negligence of employees while running a train, and this action is not for such negligence, but for alleged defective road and cars. The words “other person” do not include a servant injured by defective appliances, any more than one injured by negligence of a fellow servant. Connor v. C. R. I. & P. R. R. Co., 59 Mo. 284; Proctor v. H. & St. Joe R. R. Co., 64 Mo. 112.

2. Under section 3, the right of action is preserved only where the party injured could have maintained the action if death had not ensued. A servant must aver and prove negligence or want of care of the master in providing or using the defective machinery, and this negligence is the gist of the action. Shearman & Red. on Neg. (3 Ed.) § 99; Wharton on Neg., § 234; McDermott v. Pacific R. R. Co., 30 Mo. 115; Gibson v. Pacific R. R. Co., 46 Mo. 163; Devitt v. Pacific R. R. Co., 50 Mo. 302.

Thos. W. B. Crews and Chas. M. Napton for respondent, cited Gibson v. Pacific R. R Co., 46 Mo. 163; Dale v. St. L., K. C. & N. Ry. Co., 63 Mo. 455; Henschen v. O'Bannon, 56 Mo. 289.

HENRY, J.

The plaintiff's petition alleges, that David O. Elliott, father of Mamie, was an employee of defendant. and was killed, in consequence of the use of defective machinery by the company, on a train of cars of which said Elliott was a brakeman, and it was to recover damages for the killing of her father that Mamie prosecuted this suit.

The court and her counsel seemed to have based her right to recover on the second section of our damage act, and, in the third instruction for plaintiff, the jury were told, that if they found for plaintiff, they should assess the damages at $5,000. Inasmuch as four members of this court adhere to the doctrine announced in the case of Proctor v. H. & St. Joe. R. R. Co., 64 Mo. 112, that no action can be maintained under that section, by an employee, from which I dissented, and still dissent, the judgment herein must be reversed, and the cause remanded. Plaintiff's right to recover is derived from the third section of the damage act, and in an action by one authorized to sue by that section, the jury may allow less than $5,000.

As the cause will be remanded and probably retried, it is proper to determine another question which is presented by the second instruction given for plaintiff. The third section of the damage act is as follows: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, (if death had not ensued,) have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages notwithstanding the death of the person injured.” The 4th section declares what parties may sue, and the amount of damages to be recovered. The second instruction predicates the right of plaintiff to recover upon proof that defendant failed to provide sound and suitable machinery, if Elliott was not negligent, and was ignorant of the defect in the machinery.

The suit can only be maintained when the deceased, if he had lived, could have recovered damages for his injury, and the same evidence as to the cause of the injury is required in a suit by his representative, that would have been required had he survived and sued for the...

To continue reading

Request your trial
59 cases
  • Sullivan v. Hannibal & St. Joseph R.R. Co.
    • United States
    • Missouri Supreme Court
    • October 31, 1885
    ...206. “It is his duty to give the employe a place where he can work free from danger, of which he has not notice. Ib., sec. 209; Elliott v. Railroad, 67 Mo. 272, and cases cited in opinion; Whalen v. The Cen. Church, 62 Mo. 326. (2) It was not required of plaintiff that he should have looked......
  • Oglesby v. Missouri Pacific Railway Company
    • United States
    • Missouri Supreme Court
    • May 30, 1899
    ...of negligence in employing him." [Shearman & Redfield on Negligence (3 Ed.), sec. 91; Moss v. Railroad, 49 Mo. 167 at 169; Elliott v. Railroad, 67 Mo. 272.] Roblin v. Railroad, 119 Mo. 476, 484, 24 S.W. 1011, the court declares the law upon the question under consideration, as follows: "But......
  • McMurray v. St. Louis Iron Mountain & Southern Ry. Co.
    • United States
    • Missouri Supreme Court
    • February 2, 1910
    ... ... 495; Snellen v. Railroad, 102 S.W. 193; ... Railroad v. Pool, 160 U.S. 438; Aerkfetz v ... Humphreys, 145 U.S. 418; Railroad v. Elliott, ... 137 F. 904; State v. South Baltimore Car Co., 58 A ... 447; Latremoulle v. Railroad, 63 Vt. 336; ... Campbell v. Railroad, 2 A. 489; ... ...
  • Moore v. St. Louis Transit Company
    • United States
    • Missouri Court of Appeals
    • August 4, 1902
    ... ... Co., 105 ... Mo. 371, 16 S.W. 909; Butts v. St. Louis & Iron Mt. Ry ... Co., 98 Mo. 272, 11 S.W. 754; Maxey v. Railroad ... Co., ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT