M'Pherson v. St. Louis, I. M. & S. Ry. Co.

Decision Date04 February 1889
Citation97 Mo. 253,10 S.W. 846
CourtMissouri Supreme Court
PartiesMcPHERSON et al. v. ST. LOUIS, I. M. & S. RY. CO.

After the jury had retired, the court was notified that the jury were convinced that it would be impossible to agree, and that the jury-room was so damp as to render it unhealthy to remain there. The court sent the sheriff for defendant's attorney, and on his report that he was unable to find him, the jury were brought into court, and, in the presence of an agent of defendant, and without other notice to the latter, were told that, as aids to the court, and to avoid a waste of time, their conference should be in a spirit of fair investigation with a view of reaching a verdict, but that no juror was expected to surrender his honest convictions merely for the sake of reaching an agreement. They were told to retire a short time longer, and it was plainly intimated that if they were then unable to agree, they would be discharged. The extent of the sheriff's search for defendant's counsel did not appear. Held, that the communication to the jury, in the absence of both defendant and its counsel, was not reversible error.

8. APPEAL — REVIEW — OBJECTIONS WAIVED.

By putting in his own evidence defendant waives an exception to a refusal of an instruction in the nature of a demurrer to plaintiff's evidence. Following Bowen v. Railway Co., 8 S. W. Rep. 230; Guenther v. Railway Co., Id. 371.

Appeal from St. Louis court of appeals.

Action in the St. Louis circuit court, by Winifred McPherson and Reginald Duncan McPherson, minors, by their next friend, Jennie C. McPherson, against the St. Louis, Iron Mountain & Southern Railway Company, for causing the death of plaintiffs' father, Charles McPherson, an engineer in defendant's employ. The petition averred that decedent's death was caused by his engine being thrown from the track while he was in the discharge of his duties; that he was at the time free from any negligence contributing to the accident; and that the engine was thrown from the track solely and directly by reason of defendant's negligence in failing to keep its track in repair and in a suitable condition for the passage of its cars and engines. The petition further averred that such defective and dangerous condition of the track was caused by reason of the natural drain of water being interrupted by defendant's track, and no proper outlet provided to allow said water to flow off; that thereby, whenever it rained, said water overflowed the track of the defendant, and rendered it dangerous for engines and cars to pass over the same; that by reason of said water being so caused to accumulate against and over said track, the soil was washed out under said track, and upon said engine coming upon said track it gave away, and caused the engine to be thrown from the track, and said Charles McPherson to be killed, as aforesaid.

Defendant, in its answer, admitted the killing of plaintiffs' father in the manner averred in the petition, but denied that he was not guilty of any contributory negligence; denied that the engine was thrown from the track by reason of defendant's negligence in failing to keep its track in repair or in suitable condition for the passage of its cars and engines; denied that the track, at the place of the accident, was in a defective and dangerous condition, by reason of the natural drain of the water being interrupted by said track, and no proper outlet provided for said water. It then averred that all proper and necessary water-ways and culverts had been and were constructed and existing at the time of and near the place of said accident, amply sufficient to carry off all the water accustomed to fall or flow at or near said point, for more than 20 years prior thereto; that just previous to, and at the time of, the accident, (which occurred in the night-time,) an extraordinary, sudden, and unprecedented rain-storm occurred, or a water-spout burst at and near the place of the accident, of such violence and extent as to cause wood and stones to be thrown against said track, and move and break down the same; that after the occurrence of said storm, and before the happening of the accident, defendant's section-men or track repairers had no time or opportunity to go to or over said track and ascertain its condition.

The seventh instruction given by the court, of its own motion, referred to in the opinion, and necessary to an understanding thereof, was to the effect that if the jury, after considering the other instructions given in the cause, decided to find for the plaintiffs, they should assess the damages, and authorized them to fix the damages at the maximum sum of $5,000, fixed by statute. Defendant objected to this instruction on the ground that it did not tell the jury to consider the evidence as well as the instructions, and on the ground that, there being no evidence as to what deceased was earning, or could earn, at the time of his death, the verdict should have been limited to nominal damages. There was a judgment for plaintiffs, defendant's motion for a new trial was overruled, and it appealed to the St. Louis court of appeals, where the judgment was affirmed, and defendant now appeals to this court.

Bennett Pike, for appellant. A. R. Taylor and P. Leahy, for respondents.

RAY, C. J.

This is a suit by plaintiffs, by next friend, in the circuit court of the city of St. Louis, to recover damages for the death of their father, Charles McPherson, who was killed by the derailment of a passenger train on defendant's railway near Bismarck, Mo., while he was in charge of the engine drawing the train, as locomotive engineer. The trial resulted in a verdict and judgment for plaintiffs. At the conclusion of the evidence in plaintiffs' behalf an instruction in the nature of a demurrer to the evidence was asked by defendant, and was refused by the court, and this action is the first ground of error complained of in this court. By...

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