Holmes v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 30 April 1879
• Citation: 69 Mo. 536
• Parties: HOLMES v. THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

69 Mo. 536

HOLMES

v.THE HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from Macon Circuit Court.--HON. JOHN W. HENRY, Judge.

Geo. W. Easley for appellant.

The second section of the damage act can have no application to this case, because the recovery for defective machinery, cars, &c., under that section, is confined exclusively to passengers. The language is: “And when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car,” &c., the owner shall forfeit and pay the sum of $5,000. The respondent's right of recovery should have been based on the third section of the damage act. The instruction should have directed the jury, if they found for the respondent, to assess her damages at a sum not exceeding $5,000. Field on Damages, p. 502, § 631.

Williams & Eberman for respondent.

This case comes within the provisions of section 2 of the damage act. Schultz v. Pacific R. R. Co., 36 Mo. 13; Rohback v. Pacific R. R. Co., 43 Mo. 187; Connor v. C. R. I. & P. R. R. Co., 59 Mo. 293; Gibson v. Pacific R. R. Co., 46 Mo. 163.

NORTON, J.

This suit was brought in the Macon county circuit court to recover damages for the death of Charles Holmes, the husband of plaintiff. The petition alleges that said Charles Holmes was employed by defendant as a laborer on a construction train of defendant, and that while so employed he was killed on the 4th day of November, 1873, in consequence of a defective and broken hinge fastening a dump box to the frame work of a car which was being used in said construction train. The answer of defendant traversed all the allegations of the petition except that deceased was in its employ. A trial of the cause was had at the January term, 1876, of said court, which resulted in a verdict and judgment for plaintiff of $5,000, from which defendant has appealed, and seeks a reversal of the judgment principally on the ground of alleged error committed by the court in giving and refusing instructions. Among other instructions given against the objection of defendant, was the following:

The jury are instructed that it is the duty of railroad companies, as between them and their employees to provide suitable machinery and appliances for the prosecution of the work which their employees are engaged in, and if they find from the evidence that the dumping box which deceased was using at the time he was thrown from the car, was from its make...