Haehl v. Wabash R. Co.

• Decision Date: 23 December 1893
• Citation: 24 S.W. 737,119 Mo. 325
• Parties: HAEHL v. WABASH R. CO.
• Court: Missouri Supreme Court

24 S.W. 737

119 Mo. 325

HAEHL v. WABASH R. CO.

Supreme Court of Missouri, Division No. 1.

December 23, 1893.

CIRCUIT COURTS — SPECIAL TERMS — DEATH BY WRONGFUL ACT.

1. A defendant, whose case was set before Judge V., of the St. Louis circuit court, for December 14th, on December 11th, when Judge V. was not sitting, applied to Judge W. for a special jury, which was refused. Trial and verdict followed before Judge V., and at the next term judgment was rendered against defendant, who appealed on bill of exceptions signed by Judge V. Defendant then presented another bill relating to the jury matter to Judge W., who signed it, and it was sent up as part of the record. Held that, if such matter were independent of the trial, exception should have been saved before Judge W. at the same term; but, if not, it should have been brought to the attention of Judge V.

2. Deceased, walking on defendant's railroad bridge, was met by the bridge watchman, who motioned him to go back. Deceased remained standing, and the watchman went to him, and they spoke together, when deceased started back, and the watchman struck him twice with a billy. Deceased then ran back a long way across the bridge, pursued by the watchman, who at last shot deceased in the back, and killed him. Held, that the jury was warranted in finding that the watchman was acting in the course of his employment.

3. A charge that defendant had a right to keep foot passengers off the bridge, using whatever force was reasonably necessary; but that, if the watchman used more violence than was needed, and willfully killed deceased when it was unnecessary in order to remove him from the bridge, then defendant is liable, — fairly submits the issues in the case.

4. A charge that if defendant's servant killed deceased wantonly and maliciously, plaintiff cannot recover, unless defendant authorized or sanctioned such wanton and malicious killing, is properly refused.

5. Rev. St. 1889, §§ 4426, 4427, authorizing suit against the person or corporation liable if death had not ensued, the jury to give such damages, not exceeding $5,000, as they may deem fair, looking to the necessary injury to the survivors, and the circumstances of the wrongful act, permits exemplary damages, when such act was wanton or malicious, against a corporation which did not sanction it.

6. Rev. St. 1889, § 4427, authorizing such damages, not exceeding $5,000, as the jury may deem fair with reference to the necessary injury resulting to the survivors entitled to sue, a charge directing the jury to assess such damages as they shall deem fair to compensate plaintiff for "whatever actual injury" she has sustained is not objectionable.

7. It is no ground for reversal that plaintiff, the widow, was allowed to show that she had one child, and was dependent on her husband for support.

Appeal from St. Louis circuit court; Leroy B. Valliant, Judge.

Action by Emma Haehl against the Wabash Railroad Company for damages for the wrongful killing of her husband by a servant of defendant. Judgment for plaintiff. Defendant appeals. Affirmed.

F. W. Lehmann and Geo. S. Grover, for appellant. Frank, Dawson & Garvin and Chas. W. Bates, for respondent.

BRACE, J.

This is an action to recover damages for the death of plaintiff's husband, Jesse Haehl, alleged to have been wrongfully assaulted and killed by defendant's servant, James W. Hill, on the 17th of March, 1891, on its railroad bridge at St. Charles, Mo. The plaintiff had a verdict and judgment for $5,000 in the court below, and the defendant appeals.

The answer admitted defendant's corporate existence, that the said Hill at the time was in its employ as watchman of said bridge and denied the other allegations of the petition. The suit was instituted in the circuit court of the city of St. Louis on the 17th day of September, 1891, returnable to the October term of said court. The answer was filed October 5, 1891, and the cause set for trial in court room No. 5 of said circuit court before Hon. Leroy B. Valliant, judge of said room, on Monday, the 14th of December, 1891. Afterwards, on Friday, the 11th of December, 1891, Judge Valliant not holding court on that day, the defendant presented, without any notice to plaintiff or her attorneys, to Hon. James E. Withrow, judge of court room No. 3, an application for a special jury accompanied with a deposit of $75, which or the same day was overruled by Judge With row. On the 14th day of December, 1891, the cause, coming on in regular course in room No. 5, before Judge Valliant, was called for trial, and the parties by their respective attorneys announced themselves ready, and remained subject to the orders of the court until the 16th of December, 1891, when a jury was called, duly impaneled, and sworn, the evidence heard, and the court, after refusing one instruction asked for by the plaintiff, and several asked for by the defendant, among which was one in the nature of a demurrer to the evidence, submitted the cause to the jury upon the following instructions, given on its own motion: "It appears from the evidence and the admissions in this case that the St. Charles bridge, on which the plaintiff alleges that her husband was killed, was a railroad bridge only, and not a public highway for foot passengers. The defendant had the right to keep foot passengers off the bridge, using for that purpose whatever force was reasonably necessary; but in the effort to keep foot passengers off the bridge, or to expel them from it when they were on it, the defendant had no right to use any more force than was reasonably necessary for that purpose. If you believe from the evidence that the plaintiff's husband, on the day he is alleged to have been killed, was on the bridge in question, and that James W. Hill was at that time acting in the performance of his duty as bridge watchman for the defendant, then the said watchman would have been justified in using a reasonable degree of force necessary and proper to accomplish the removal of the plaintiff's husband from said bridge; but if you believe from the evidence that the said Hill, in exercising his authority to remove the plaintiff's husband from said bridge, used more violence than was necessary, and willfully shot and killed said Haehl, plaintiff's husband, when it was unnecessary in order to remove him from said bridge, then the defendant is liable in this action, and your verdict should be for the plaintiff; but, unless you do so find, your verdict should be for the defendant. If you find for the plaintiff, you should assess her damages in such sum as you deem fair and just to compensate her for whatever actual injury you may find from the evidence she has sustained resulting from the death of her husband. And if you believe from the evidence that the said killing was wanton or malicious, you may, if you see fit so to do, add to the sum you may assess as the plaintiff's actual damages such further sum, by way of punitive or exemplary damages, as you may believe from the evidence would be right and just, by way of punishment to the defendant, and as an example to the community, not exceeding, however, $5,000 in the total amount of your verdict."

On the trial it was admitted that the St. Charles bridge "was a railroad bridge, and a part of the Wabash Railroad, and is not a wagon bridge, nor a bridge crossed by foot passengers;" and "that the length of the trestle of the St. Charles bridge on the St. Charles side, ending with the first overhead span, rock pier, is 1,445 feet 8 inches. That that portion of the bridge between the rock piers, designated as `overhead spans,' and which crossed the river proper, is a distance of 2,177 feet 6 inches. The trestle on the St. Louis county side, from the last rock pier to the dump or end of the bridge on the St. Louis county side, is 2,896 feet by actual measurement. By `trestle' is meant the approaches on either side." The defendant offered no evidence. The evidence for the plaintiff tended to prove that the deceased, at the time he was killed, was about 32 years of age, 5 feet 8 inches high, slightly built, and weighing about 140 pounds. That he was a cigar maker by trade, having constant employment, and earning from $13 to $14 per week. That he resided with his family, consisting of the plaintiff and one child, a little girl aged about five years, in the city of Indianapolis. That he was a quiet and peaceable citizen of good reputation. That for some time before his death he had not been in good health, and thought a change of climate would do him good; and on the morning of the 7th of March, 1891, he left his home in Indianapolis, to go first to Decatur, Ill. That was the last time his family and friends saw him alive, although his wife heard from him afterwards during his absence. On the morning of the 17th of March, 1891, about 8 o'clock, he was seen crossing the St. Charles bridge, going from the St. Louis county side towards St. Charles. He had gone over the approach on the St. Louis side, the main bridge and a part of the approach on the St. Charles side, when he was met by James W. Hill, the defendant's bridge watchman, and his brother. Hill, the watchman, motioned to him to go back. The deceased not going back immediately, but remaining standing, Hill went up to him, and spoke to him, and some conversation passed between them, but what was said was not heard by any witness. It resulted, however, in the deceased starting back, when Hill struck him on the back or shoulder twice with a club or billy, and the deceased commenced running back towards the St. Louis side, followed by Hill. They thus proceeded until the deceased had recrossed the trestle on the St. Charles side, the whole of the main bridge, and about one-half the approach on the St. Louis side, pursued by Hill, when they two being thus alone on that approach, Hill, in the rear of deceased, and distant about 15 feet from and pursuing him, a pistol shot was...