Faulk v. Kansas City Rys. Co.

• Decision Date: 04 December 1922
• Docket Number: No. 14405.,14405.
• Citation: 247 S.W. 253
• Parties: FAULK et ux. v. KANSAS CITY RYS. CO.
• Court: Missouri Court of Appeals

247 S.W. 253

FAULK et ux. v. KANSAS CITY RYS. CO.

No. 14405.

Kansas City Court of Appeals, Missouri.

December 4, 1922.

Rehearing Denied January 8, 1923.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"Not to be officially published."

Action by Albert S. Faulk and wife against the Kansas City Railways Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

C. N. Sadler and E. E. Ball, both of Kansas City, and L. T. Dryden, of Independence, for appellant.

Patrick T. O'Hern, of Kansas City, for respondents.

BLAND, J.

This is an action brought under section 4217, R. S. 1919, by the parents, for the death of their son. There was a verdict and judgment in favor of plaintiffs in the sum of $6,000, and defendant has appealed.

The facts show that on the morning of the 14th day of June, 1919, deceased was a passenger on one of defendant's east-bound electric street cars on the Intercity viaduct in Kansas City, Mo. While the car was going at a speed of from 20 to 25 miles per hour it ran into the rear of a stationary street car on the same track. The car in which deceased was riding was crowded. It was a bright, clear morning, and the track was straight. The impact was so great that the stationary car was smashed in at the rear. The front part of the car upon which deceased was riding was demolished, and the glass and fenders were broken. When the collision occurred, deceased was standing in the front vestibule of the car and received such injuries as to cause the severance of both legs and, on the following day, his death. A witness testified that she noticed the speed of the car because "it was going too fast." One witness testified that the front vestibule of the car in which deceased was riding "was wrapped around the other car." The motorman tried to stop the car, "but he didn't have any power to stop it"; he "jumped and grabbed" the brake.

At the close of plaintiff's case, defendant offered an instruction in the nature of a demurrer to the evidence, which was refused. Defendant introduced no' evidence, but asked an instruction on the measure of damages, which was refused. Complaint is made that the court erred in refusing this instruction. It, among other things, sought to tell the jury that "the only damage to which the plaintiffs, under the law, are entitled, in this case, if any, is the pecuniary loss resulting to them, that is, for the loss of services of their son, * * * until such time as he would have attained the age of 21 years," less the cost of his maintenance during that time. Although another part of the instruction to which defendant calls our attention was proper, the part quoted made the instruction erroneous, and the court properly refused it. This cause of action is under section 4217, R. S. 1919. The damages to be recovered under this section are now declared to be wholly penal. Grier v. K. C., C. C. & St. J. Ry. Co., 286 Mo. 523, 228 S. W. 454; Lackey v. United Rys. Co., 288 Mo. 120, 231 S. W. 956; Miller v. Kansas City Rys. Co. (Mo. Sup.) 233 S. W. 1066, 1068; Bloomchamp v. Mo. Pac. Ry. Co., 208 Mo. App. 464, 236 S. W. 388. In the Grier Case, 286 Mo. 540, 228 S. W. loc. cit. 459, the Supreme Court said of the statute under consideration that the amount to be recovered under it "is not to be limited or controlled by the rules of law that govern the assessment of compensatory damages." However, it is held in that case that it is proper to show pecuniary loss as well as aggravating circumstances attending the negligent act.

Complaint is made of the giving of plaintiffs' instruction No. 1, which told the jury that if, on the day in question, decedent was a passenger on one of defendant's cars, and while riding thereon as such and while it was being run by defendant's servants and employés, it was caused to collide with the other car, resulting in injuries to deceased from which he died, "then the law presumes that the collision was through the negligence...