Gamache v. Johnston Tin Foil & Metal Co.

• Decision Date: 13 February 1906
• Citation: 92 S.W. 918,116 Mo. App. 596
• Parties: GAMACHE v. JOHNSTON TIN FOIL & METAL CO.
• Court: Missouri Court of Appeals

92 S.W. 918

116 Mo. App. 596

GAMACHE v. JOHNSTON TIN FOIL & METAL CO.

St. Louis Court of Appeals. Missouri.

February 13, 1906.

Rehearing Denied February 27, 1906.

1. APPEAL — GROUNDS OF REVIEW — PRESENTATION IN LOWER COURT — FAILURE TO ASK DEFINITE INSTRUCTIONS.

A party cannot complain that an instruction is couched in too general terms, where he has requested no specific instruction.

2. DEATH — DAMAGES — ACTION BY CHILD FOR DEATH OF PARENT.

In an action by a child for negligence causing death of her father, plaintiff may recover damages for the loss of support, education, and maintenance, and also for the loss of intellectual and moral instruction by the deceased parent, and in estimating this latter element of damage, the jury is not confined to an exact calculation, but is vested with considerable discretion, with which the court will not interfere unless such discretion is abused.

3. SAME — EXCESSIVE DAMAGES.

In an action by a child 13 years of age for negligence causing the death of her father, a verdict for $4,200 was not excessive.

Appeal from Circuit Court, Franklin County; Robert S. Ryors, Judge.

Action by Catherine Gamache, by the St. Louis Union Trust Company, as her curator, against the Johnston Tin Foil & Metal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

McKeighan, Wood & Watts and Wm. R. Gentry, for appellant. Johnson, Houts, Marlatt & Hawes, for respondent.

GOODE, J.

The plaintiff, Catherine Gamache, a child 13 years old, sues by her curator. She is a daughter of Alphonse Gamache, who was killed in the defendant's factory on August 4, 1904. The factory is in St. Louis and among the articles manufactured is tin foil. The plates of tin foil were made by running ingots of metal some 10 inches long between heavy revolving rollers. The rollers were turned by a steam engine to which was attached an 8-foot fly wheel of great weight and revolving 175 times per minute. When one of the ingots was passing through the rollers, the load on the rollers required more power from the engine to rotate them than when there was no ingot between them. To give the increased power, more steam was required in the steam chest or cylinder of the engine. Hence, if the same head of steam was kept on all the time, the fly wheel would revolve much more rapidly when the rollers were running light than when they were loaded. To control the revolutions of the machinery, an appliance called a governor was attached to it. The operation of this appliance regulated the quantity of steam which passed into the cylinder of the engine, letting in more when the rollers were loaded and less when they were not; thus making the revolutions uniform, and preventing the fly wheel from revolving too rapidly. The testimony that such an appliance is necessary and that it is practically impossible to run an engine in safety without one, is very strong, and, we may say, convincing. The governor worked automatically and controlled a valve which admitted steam into the cylinder. On July 24th, which was 14 days before the accident, the governor broke and was removed, and from that time to the day of the accident, the engine was operated without a governor. A new governor was ordered from Salem, Ohio, and reached St. Louis about a week before the tragedy, but for some reason was not attached to the engine. The testimony for the plaintiff tends to show it was not attached because the company owning the factory did not wish to shut down the machinery long enough and were waiting for an idle Sunday in which to put on the new governor. The testimony of the defendant indicates that it was not put on because it was not ready for use. After the old governor broke, the revolutions of the machinery were regulated by the engineer sitting at the throttle and, with his hand, opening it wide to admit the steam into the cylinder when the rollers were loaded, and partially closing it when they were not. In other words, the engineer acted as a governor. Occasionally he would call some other employé to the throttle to do the work. Gamache's business was running ingots through the rollers; but on the day he was killed, he had been placed at the throttle to act as governor. It is impossible to run the machine with safety without an automatic governor, because the opening and closing of the throttle which is necessary in order to keep the proper amount of steam in the cylinder as...