Coleman v. Himmelberger-Harrison Land & Lumber Co.

• Decision Date: 01 March 1904
• Citation: 105 Mo. App. 254,79 S.W. 981
• Court: Missouri Court of Appeals
• Parties: COLEMAN et ux. v. HIMMELBERGER-HARRISON LAND & LUMBER CO.

79 S.W. 981

105 Mo. App. 254

COLEMAN et ux. v. HIMMELBERGER-HARRISON LAND & LUMBER CO.

St. Louis Court of Appeals. Missouri.

March 1, 1904.

MASTER AND SERVANT—ACTION FOR DEATH—PLEADING —AMENDMENT — CHANGING CAUSE OF ACTION—EVIDENCE—INSTRUCTIONS—NEGLIGENCE OF MINOR—DAMAGES.

1. In an action for the death of a servant, the petition alleged that deceased, who was a minor, was negligently put to work by defendant as a brakeman on a train, and that, deceased having made a switch, it was the duty of defendant's engineer to stop the train or check its speed so that deceased might get on, but that the engineer failed to do so, and, in attempting to get upon the train, deceased was killed. Subsequently an amended petition was filed, which was the same as the original one, except that it alleged that the track was dangerous, by reason of frogs and switches not being blocked, and that the foot of deceased caught in a frog, and that, though he warned the engineer of his peril, the latter negligently ran the train over deceased. Held, that the amendment did not state a new cause of action, and it was properly allowed.

2. Where an employer, on hiring a minor, was forbidden by the father of the minor to put him at work on a train, but the employer did so, there was no relation of master and servant.

3. Under such circumstances, the employer would be liable for the death of the minor, owing to his being run over by a train while making a switch, unless it could be shown that the death was the result of the minor's own willful act.

4. In an action for the death of a minor servant, there was evidence tending to show that the father of the minor had forbidden defendant to put the minor at work on a train, but that defendant had done so, and that the accident occurred while deceased, acting as a brakeman, was making a switch. Held, that it was proper to exclude evidence tending to show that the father had emancipated the boy prior to the contract of hiring.

5. Rev. St. 1899, § 1123, provides that all railroad companies shall block all switches and frogs in all yards, divisional and terminal stations, and where trains are made up; and section 1125 provides that in an action for injuries to one, or for the death of one, owing to noncompliance with the former section, contributory negligence shall be no defense. In an action for the death of a servant, owing to his being run over while his foot was caught in a frog, it not appearing from the evidence that the accident happened within a yard, and at a divisional and terminal station, it was error to charge that, if deceased's foot became caught, contributory negligence would not excuse defendant.

6. A servant on a railroad undertook to throw a switch, and while performing the duty his foot became caught in a frog, and he was run over before he could extricate himself; but it appeared that, in throwing the switch, it was not necessary for him to have gone on the side of the track where the frog was. Held, that the master was not liable under the statute; the act causing the death not having been in the discharge of the servant's duty.

7. A minor who is not a child of tender years is bound to use that care that persons of his age, capacity, and intelligence are capable of using.

8. In an action for the death of an 18 year old boy, it was error to instruct, as a matter of law, that he was not required to use the same care as an adult.

9. Rev. St. 1899, § 2865, provides that when the death of a person is caused by the wrongful act of another, and the act, if death had not ensued, would have entitled the injured party to maintain an action, the person who would have been liable shall be liable to an action for damages; and, by section 2866, the jury may give such damages, not exceeding $5,000, as they may deem fair and just, with reference to the necessary injury resulting from such death to the surviving parties entitled to sue, and also having regard to the mitigating or aggravating circumstances. Held that, in an action for the death of a servant, an instruction which left the assessment of damages to the discretion of the jury, and gave no rule by which to measure the damages, was erroneous.

Appeal from Circuit Court, New Madrid County; Henry C. Riley, Judge.

Action by James V. Coleman and wife against the Himmelberger-Harrison Land & Lumber Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed.

Russell & Deal, for appellant. Moore & O'Bryan, for respondents.

BLAND, P. J.

Omitting caption, the original petition is as follows: "Plaintiffs state that the defendant is a corporation duly organized under the laws of the state of Missouri, and as such corporation is now, and has for a long time been, the owner of, and engaged in running and operating, a locomotive and train of cars for the transportation of said logs and freight from a point about 15 miles below Morehouse, in New Madrid county, north to and in the town of Morehouse, in said county, on its line of railroad, by it constructed, operated, managed, and known as the tramway or tramroad; and, further, plaintiffs state that in the month of July, 1902, defendant ran and operated said tramway and railroad on its said lines in the town of Morehouse aforesaid, by running its engine and log cars thereto attached on its tracks in said town; that on the 12th day of July, 1902, the plaintiffs' son, Emmett Coleman, a minor, without the knowledge and consent of the plaintiff, and against his express orders to the defendant, was placed at work by defendant on its train of log cars, in said town of Morehouse, as brakeman and fireman; that while said engine and cars were switching on its said track, and after the said switch had been made, and when it was the duty of the engineer in charge of said train to slow up or check the speed of said train, so that plaintiffs' said son could again get upon the cars as brakeman, yet nevertheless said engineer negligently and carelessly failed to slow up or stop said train, although signaled so to do by plaintiffs' said son, who, after so signaling said engineer, and supposing said signal would be heeded, or that, in any event, the speed of said train would be sufficiently checked to enable him to get thereon in the discharge of his duties, undertook to get upon said tram as brakeman; that, in such effort, owing to the speed of the train, and the engineer's failure to check the same, he fell between the cars of said train, and was run over by the entire train, mangled and killed; that it was the duty of said engineer, after said switch had been made, to stop said train, or sufficiently check its speed as to enable plaintiffs' son to get thereon, both of which the said engineer carelessly and negligently failed to do; that plaintiff's said minor son was by the defendant carelessly, negligently, and against the express orders of plaintiff to defendant, placed at work as fireman and brakeman on said train. Plaintiff further states that his said son was of the age of eighteen years, unmarried, and without issue, was strong and vigorous in mind and body, and was capable of earning one hundred to one hundred and fifty dollars per month. Plaintiff further states that by reason of the death of his son, resulting from said carelessness and negligent acts of defendant, he has not only lost the use of the service of his said son, but also his companionship and presence, and has suffered great anguish of body and mind. And plaintiff further states that, by the aforesaid negligence of defendant in the killing of his minor son, he has been damaged in the sum of five thousand dollars for which, with costs, he asks judgment." At the March term of the circuit court, plaintiff filed the following amended petition: "Plaintiffs state that they are husband and wife, and was the father and mother of one Emmett Coleman, a minor of the age of eighteen years, who was killed on the 12th day of July, 1902, in New Madrid county; that said Emmett was single and unmarried, and left no children or their descendants; that on 12th day of July, 1902, and now, defendant was and is a corporation organized under the laws of Missouri, under the corporate name as styled above, and was engaged in the manufacture of lumber and building material; that it owned large plants for such purposes, and large bodies of timbered lands, from which it cut and from which it transferred saw stocks for manufacture at their said plants; that said defendant had large forces under its employment, getting out said stocks, and they transported said stocks from the forests where cut to the mill and plants where manufactured, over the tracks, side tracks, and switch tracks of a certain railroad, known and incorporated under the corporate name of the St. Louis & Gulf Railway, and that it operated locomotives, engines, and cars on said track, by servants and agents under its employment, upon which to transport said saw stocks; that on, to wit, 12th July, 1902, said plaintiffs had hired their son Emmett to said defendant to serve and work in and upon certain section work on said road, and expressly and positively forbade the defendant to use the service of said Emmett in the operation, or in connection with the operation, of said trains or locomotive engine. They further state that said track and side track were unsafe and dangerous, in that at no places thereon were the frogs of the switches or guard rails blocked as the law directs, which facts were well known to the defendant; that, notwithstanding the dangerous and unsafe tracks, rendered so by unblocked frogs and switches, and notwithstanding the positive prohibition of plaintiffs to defendant, the defendant wantonly and negligently put said Emmett to work in the capacity of a fireman, switchman, brakeman, and operator of engine and cars, and while so employed, and while exercising due care and diligence, said Emmett's foot became caught and fastened in an unblocked frog...