Young v. Waters-Pierce Oil Co.

• Decision Date: 24 December 1904
• Citation: 185 Mo. 634,84 S.W. 929
• Parties: YOUNG v. WATERS-PIERCE OIL CO.
• Court: Missouri Supreme Court

84 S.W. 929

185 Mo. 634

YOUNG v. WATERS-PIERCE OIL CO.

Supreme Court of Missouri, Division No. 2.

December 24, 1904.

NEGLIGENCE—IMPLIED DUTIES—CONTRACT RELATIONS—WRONGFUL DEATH—CONTRIBUTORY NEGLIGENCE—EXCESSIVE DAMAGES.

1. Pursuant to a contract with a railroad company, defendant oil company erected on the railroad right of way a pipe connecting a tank with a building, the pipe being so close to the railroad track that plaintiff's husband, an employé of the railroad company, was killed by striking it while standing on the ladder on the side of a passing freight car. Defendant had been notified by the railroad company that the pipe was in a dangerous location, and to remove it. Held, that the fact that there were no contract relations between defendant and decedent does not prevent recovery for his death, as defendant owed the employés of the railroad company the duty of not imperiling their lives while performing their duties.

2. In an action for wrongful death, where the evidence shows that decedent was killed by coming in contact with a pipe by the side of a railroad track while switching cars; that decedent had been employed at this place only about a week; that, while the pipe was only four inches from the side of a freight car, the curve in the track made it seem a greater distance; that decedent had been warned to look out for the pipe, but had not been taken to it— the question of decedent's contributory negligence is for the jury.

3. A verdict for $5,000 damages for the death of a man 35 years of age, of sober and industrious habits, earning $40 per month, is not excessive.

Appeal from Circuit Court, Bollinger County; James D. Fox, Judge.

Action by Alice Young against the Waters-Pierce Oil Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Johnson & Richards and Geo. H. Williams, for appellant. Moses Whybark, Ralph W. Wammack, and N. A. Mozley, for respondent.

GANTT, P. J.

This is an appeal from the circuit court of Bollinger county. Plaintiff, as the widow of Robert Young, recovered judgment for damages resulting to her from the death of her husband, who it is alleged was killed by the reason of the negligence of the defendant at Bloomfield, Mo., January 31, 1901. The action was commenced within six months after the death of the husband. On the 9th of September, 1901, she filed an amended petition containing three counts, which are the same save and except that the first count alleges the death of the deceased resulted from all the injuries he received in the accident; the second, that his death was caused by internal injuries then received; and the third, that it was caused by the injuries to his legs. The petition, in substance, states that plaintiff is the widow of Robert Young; that the Cape Girardeau, Bloomfield & Southern Railway Company is and was at the time of said injuries a railroad corporation existing under the laws of this state, and owned and operated a railroad from Zalma, in Bollinger county, to Brownwood, in Stoddard county, thence to Bloomfield, and from thence to a connection with the St. Louis Southwestern Railroad at Zeta, in Stoddard county; that the defendant is, and was prior to and at the time of the alleged wrongful acts, a corporation organized under the provisions of article 9 of chapter 12 of the Revised Statutes of Missouri of 1899, and the general purposes of said corporation are dealing in naval stores and dealing in compounding petroleum and other oils and products thereof and buying and selling the same in Missouri and elsewhere; that said defendant corporation had and usually kept at the date of the institution of this suit and still keeps at Lutesville, in Bollinger county, an office and agent for the transaction of its usual and ordinary business.

The substantive averments of the facts showing the relation of the parties and the negligence complained are as follows:

"That at the city of Bloomfield, aforesaid, in or about the year 1900—the particular date the plaintiff is unable to state—there was erected and built a large tank on the west side of the track of said railroad, and distant therefrom about 51 feet; and also at about the same time at the place aforesaid, and near to said tank, and used in connection therewith, there was erected and built a building. That on the 31st day of January, 1901, and for a long time prior thereto, the said tank was used and operated by the defendant for a receptacle for oil; and said building was used by said defendant in connection with said tank. That in the latter part of the year 1900—the particular date the plaintiff is unable to state—the defendant erected a metal pipe of about two inches in diameter, connecting the said building with said tank, and reaching from the said tank to the said building, and from said building on towards said railroad, and above the ground, and ending near the west side of the track of the main line of said railroad at a height of about eleven and a half feet above the top of the west rail and on the right of way of the said railway company. That said pipe was erected, maintained, and used by the said defendant for a conduit to convey oil from cars on said railroad, loaded with oil, to the said tank; or, if occasion required, to convey oil from the said tank to the cars on the said railroad. That the end of said pipe was fixed by defendant in a stationary position, and was erected by defendant so close to the west side of the track of said railroad as to be dangerous to the servants and employés of said railway company on its cars and trains of cars while engaged in the performance of their ordinary duties in operating and managing the same in passing over said railroad and by the end of said pipe, and which cars and trains of cars operated and managed by them would have to and did daily pass over said railroad, and in doing so would daily have to and did pass by the end of said pipe—all of which defendant well knew, or by the exercise of ordinary care might have known; yet the said defendant negligently and carelessly so erected said pipe, and after having negligently and carelessly so erected it, negligently and carelessly maintained and kept the same, in that same dangerous condition to the servants and employés of the said railway company engaged in managing and operating its cars for a space of time of more than two months continuously, and immediately next before the 31st day of January, 1901, without any alteration or change in its dangerous nature or character to them, the servants and employés aforesaid. That on the 31st day of January, 1901, and for a short time prior thereto, the said Robert Young, plaintiff's said husband, was an employé of said railway company as a conductor on its cars and trains of cars at a salary of forty dollars per month, and as such conductor it was his duty to manage and assist in the operation and movement of cars and trains of cars of said railway company running over and upon its said railroad. That at the city of Bloomfield, aforesaid, on the 31st day of January, 1901, while he, the said Robert Young, was engaged in the discharge of his duties as such employé of said railway company, and was descending from the top of a car of the train of cars of the said railway company moving north on said railroad, and of which trains of cars he was conductor, down a ladder of said car, and on its then west side, and while he was on said ladder and in the act of descending the same the said car passed the end of said pipe, and he was then and there, by reason of the closeness of the said end of the said pipe to the railroad track and to the side of the car he was on struck by the said pipe, and thereby knocked from the said ladder and from the said car, and thrown by the force of said knock on the track of said railroad, and between the car he was on and another moving car attached thereto, and then immediately next to the car he was on, and was then and there run over by the said last-named car, and both of his legs thereby broken and crushed, and the flesh thereof bruised, mangled, and lacerated, and he then and there and thereby received other great bodily internal injuries in his abdomen, the particular character of which are unknown, and for that reason plaintiff is unable to more particularly describe them, and in consequence of said injuries so received by him as aforesaid he died on the 31st day of January, A. D. 1901, at the city of Bloomfield aforesaid. That the said injuries so received by the said Robert Young, and which caused his death as aforesaid, were caused by the negligence and carelessness of the said defendant in negligently and carelessly erecting and maintaining the end of the said pipe so close to the west side of the track of the said railroad as to be dangerous to the servants and employés of said railway company on its cars and trains of cars engaged in the performance of their ordinary duties in operating and managing the same in passing over the said railroad and by the end of said pipe as aforesaid."

The answer contained a general denial; a plea that defendant at the time of the alleged accident, nor at any other time, had no possession or control of that part of the right of way or roadbed of said railroad where said accident occurred, and had no authority or control in the management of said railroad or in the running and operating of trains and cars thereon, and, third, a plea of contributory negligence on the part of the said Robert Young; to which the plaintiff filed the following reply:

"Now comes the plaintiff, by her attorney, and for her replication to the new matter set up by defendant in its answer denied that said defendant did not at the time of the alleged injury to her husband have the possession of that part of the right of way of the Cape Girardeau, Bloomfield & Southern Railway Company where the said injury occurred as alleged in the petition, nor any part thereof; but plaintiff...