Leahy v. Davis
| Decision Date | 24 March 1894 |
| Citation | 25 S.W. 941,121 Mo. 227 |
| Parties | Leahy et al., Appellants, v. Davis et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. W. W. Edwards Judge.
Affirmed.
H. A Loevy for appellants.
(1) First. The verdict as to amount of damages is against the law, the uncontradicted evidence and weight of evidence. Second. The jury disregarded the evidence in determining the amount of damages. Lionberger v. Pohlman, 16 Mo.App 398; Borgraefe case, 22 Mo.App. 148; Reichenbach case, 22 S.W. 573. Third, the damages are grossly inadequate. Schultz v. Moon, 33 Mo.App. 341; Bishop v. Mayor, 7 Ga. 303; Franke v. St. Louis, 110 Mo. 516; Falvey v. Stanford, L. R. 10 Q. B. 54; James v. Railroad, 9 S. Rep. 335; Sedg. on Meas. Dam., p. 661, note; Robbins v. Railroad, 7 Bosw. 1; Marini v. Railroad, 52 Q. B. D. (9 Cent. L. J.) 36; Cowles v. Watson, 7 Hun, 41; 1 Sutherland on Damages, 810; McDonald v. Walter, 40 N.Y. 551; Fairgrieve v. Moberly, 29 Mo.App. 150; Todd v. Douglas, 7 Jur. (N. S.) 1029; Webb v. Co., 29 P. 981. (2) The court erred in refusing plaintiff's instruction. They maintain that respondents, by reason of the exposed situation of the door of the elevator shaft and their neglect and that of their employees, Tobin and Hirth, to give any notice or warning to Dennis or the public in general of the proximity of the pitfall have been guilty of such gross negligence as to have made themselves liable to punitive damages. Perkins v. Railroad, 55 Mo. 213; Klingman v. Holmes, 54 Mo. 304; Beck v. Dowell, 111 Mo. 509. Exemplary damages are allowed where there is "an entire want of care which would raise the presumption of a conscious indifference to consequences." Newman v. Co., 2 Mo.App. 407; Shuford case, 72 Tex. 165; Grodley case, 52 Tex. 600. So, in case of gross negligence. Franz v. Hilterbrand, 45 Mo. 123; Green v. Alden, 61 Pa. St. 642; Moibus v. Dodge, 38 Wis. 300; Austin v. Wilson, 50 Am. Dec. 766 (note, p. 767); 5 Am. and Eng. Encyclopedia of Law, p. 21, 22; Co. v. Johnson, 72 Tex. 95; Co. v. McLendon, 63 Ala. 266; Buckley v. Knapp, 48 Mo. 162; Taylor v. Co., 48 N.H. 304; Caldwell v. Co., 47 N. Y. (2 Sick.) 282; Kuntz v. Brown, 16 B. Mon. 577; Cochran v. Miller, 13 Iowa 128; Co. v. Kessler, 18 Kan. 523; Wilkson v. Drew, 75 Mo. 360; Co. v. Way, 83 Ala. 542; Quinn v. Co., 1 L. R. A., 682.
Eben Richards for respondents.
(1) The instructions of the court were more favorable to plaintiffs than the law and evidence in the case justified. (2) First. The question of damages is peculiarly the province of the jury and their verdict will not be disturbed except in extreme cases. Pritchett v. Hewitt, 91 Mo. 547; Brown v. Railroad, 51 Mo.App. 192. Second. Loss of society and mental anguish are not elements of damage in this case. Parsons v. Railroad, 94 Mo. 286. Third. Exemplary damages can not be allowed in this case. Pruett v. Quarry Co., 33 Mo.App. 18; Trauerman v. Lippincott, 39 Mo.App. 478, and other cases cited. Fourth. The net value of the services of their son up to the time of his majority is the measure of plaintiff's damages. Fifth. Mitigating circumstances may be taken into account by the jury. R. S. 1889, sec. 4427. Sixth. Many similar cases might be cited which have been reversed because the judgment was excessive. See Hart v. Railroad, 94 Mo. 255; Railroad v. Barker, 33 Ark. 369; Schultz v. Moon, 33 Mo.App. 342. (3) Under the pleadings and evidence of this case plaintiffs were not entitled to recover and the court should have so instructed the jury. But, as defendants have not appealed, this court will simply affirm the judgment. Overholt v. Vieths, 93 Mo. 422.
This is an action for damages by plaintiffs for alleged negligence of defendants, resulting in the death of their son, Dennis J. Leahy, who, at the time of his death, was sixteen years and ten months old. Defendants are partners conducting a wholesale dry goods business in the city of St. Louis under the firm name of Samuel C. Davis & Company.
The negligence complained of consisted in the construction and maintenance of the doors to the freight elevator, by which freight was discharged. This elevator ran in a shaft from the basement to the fifth floor of the business house of defendants, and was in the rear of the building, along which ran an alley. To facilitate shipments of goods, defendants had built a platform about twenty-five feet long, six or eight feet wide and three feet above the alley. This platform was on a level with the bottom of the east elevator door opening on the alley. This door and elevator was used for discharging goods. The door was eight or nine feet high by seven feet wide, and was operated by weights and worked in a groove up and down. On the outside was a knob and a groove for the hand by which the door was lowered or raised as occasion required. The hole of the shaft was about one foot in from the outside of the wall. At the east end of the platform defendants had a small wooden structure for their shipping clerk's office, extending six or seven feet into the alley outside of their building.
On the twelfth day of April, 1890, about five o'clock in the afternoon Dennis Leahy, a boy nearly seventeen years old, employed as a teamster by the Udell Crunden Wooden Ware Company, having been directed by his employers to deliver a baby buggy to defendants' store, drove into the alley in the rear of the building and deposited the buggy on the platform. Tobin, a porter in the store was just about to close the gate or door at the western entrance to the store and stopped long enough to ask Dennis if he had anything for the house. He answered, "No, I have got something for Davis." Tobin directed him to leave the buggy on the platform and see the shipping clerk. Tobin then left. Dennis started towards the shipping office. He next saw Dennis lying in the basement unconscious from a fall. Mr. Hirth, who was stock clerk at the time, for defendants, was sitting in the window looking down on the alley. He saw Dennis get on the platform, go to the door of the elevator, stoop down and raise the door. It took a strong lift to raise it. He next saw him lying at the bottom of the shaft, into which he had stepped and fallen. This door of the elevator is right adjoining the shipping clerk's office.
Plaintiffs recovered a judgment for $ 175, from which they have appealed.
The grounds assigned for a new trial were the inadequacy of the damages awarded, and the refusal of the court to instruct the jury that they might award plaintiffs punitive or exemplary damages as follows:
"If you believe and find from the evidence that defendants and their employees during their usual business hours did not lock or fasten the door of the elevator shaft which plaintiffs' son opened, and did not keep it locked or fastened when the elevator was not being used and that they or their employees did not give to persons who might have business with them, and for that purpose came upon said premises, verbal or written notice or warning that said door was the door to the elevator shaft, and not the door for entrance to their place of business, and that it was a pitfall or place of danger, and that it was dangerous for him to open said door, and that they did not properly fence or guard said shaft so as to prevent injury to persons unaccustomed to said premises who might open said door and attempt to pass through said doorway, and that the door of said shaft which he opened is close to two doors in defendants' building, which are doors used as entrance thereto, then the defendants have been guilty of such wrongful negligence and default as evinced a conscious disregard of the rights of said Dennis John Leahy, and plaintiffs are entitled to recover damages from them as a punishment or example for their said neglect or default."
There is no entrance to the floor of the building opening onto the platform in the alley. The entrances to the building are all on a level with the alley west of the platform except the door to the little shipping office which is just east of the platform.
Plaintiffs maintain that there was nothing to indicate to their son that there was an open unguarded shaft back of the door; whereas defendants insist that the fact that the door worked up and down in grooves; was shut and closed when plaintiffs' son came to it; that it was open daylight and by ordinary care, he could have seen it; and the fact that it opened up on the platform, three feet higher than the floor of the building, which Dennis, plaintiffs' son, could have seen through the door in which Tobin was standing, all gave notice that this was not a business entrance to the store, and but for his hurried, careless and negligent act in raising the door, and walking forward without looking, he would not have been hurt.
I. There is no allegation of willful or wanton injury to plaintiff's son, nor is there any evidence to support such a charge in the proofs submitted, nor was there such gross negligence as would have justified an instruction for exemplary or punitive damages, and the court very properly declined to give the instruction prayed for by plaintiffs to that effect. Franz v. Hilterbrand, 45 Mo. 121; Graham v. Railroad, 66 Mo. 536; Seibel v. Siemon, 72 Mo. 526; Brown v. Railroad, 89 Mo. 152; Parsons v. Railroad, 94 Mo. 286.
II. Plaintiffs' counsel with great pertinacity urges that the damages awarded his clients are grossly inadequate; that the verdict shocks the moral sense. The evidence shows that Dennis Leahy, the son who lost his life by this most unfortunate accident, was within two months of seventeen years old; that he was a teamster earning $ 7.50 per week. There was no evidence as to what would be reasonable cost of...
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