McCarty v. St. Louis Transit Co.

• Decision Date: 21 December 1905
• Citation: 192 Mo. 396,91 S.W. 132
• Parties: McCARTY v. ST. LOUIS TRANSIT CO.
• Court: Missouri Supreme Court

91 S.W. 132

192 Mo. 396

McCARTY v. ST. LOUIS TRANSIT CO.

Supreme Court of Missouri, Division No. 1.

December 21, 1905.

1. DEATH — ACTION FOR CAUSING DEATH — NEW TRIAL.

Where, in an action by a wife for the death of her husband, no instructions in mitigation or aggravation of damages were requested or given, and the case admitted of no such instructions, but depended on decedent's contributory negligence, it was not error to set aside a verdict for $500 on the ground that the verdict was substantial, and that the granting of a new trial subjected defendant to a new inquisition of damages, and to the danger of being mulcted in $5,000, the maximum amount recoverable under Rev. St. 1899, § 2866, for the death of a person.

2. SAME—INADEQUATE DAMAGES.

In an action by a wife for the death of her husband, the evidence showed that he supported her; that he was 49 years of age, in good health, and with an earning capacity of $90 a month; and that he was industrious and stood well as a citizen. Held, that a verdict of $500 was inadequate, justifying the court to award a new trial on that ground.

3. APPEAL — DISCRETION OF LOWER COURT — GRANTING NEW TRIAL—REVIEW.

The Supreme Court will not interfere with the discretion of the trial court in granting plaintiff a new trial on a question of fact, except where he is not entitled to recover.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Mary McCarty against the St. Louis Transit Company. From an order granting a new trial on the ground of the inadequacy of the damages awarded to plaintiff, defendant appeals. Affirmed.

Boyle & Priest, Geo. W. Easley, and Edward T. Miller, for appellant. A. R. Taylor, for respondent.

LAMM, J.

Cornelius McCarty was the husband of plaintiff, concededly performing his marriage contract and marital duties pertaining to her care and support. He was an employé of the St. Louis fire department, and at the time in hand the driver of truck No. 12; said truck being a long-coupled wagon, 27 feet between axles, used for carrying ladders to a fire. His age was 49 years, and he was earning "eighty-nine dollars and a dime" per month (his real salary being $90 per month, but 90 cents were deducted for a firemen's pension fund). His health was excellent, his sobriety and industry unquestioned, and he is outlined by the record to be one of the best firemen in the department—an all'round good man. At 2 o'clock in the morning of December 15, 1902—a night of storm and gloom, as described by the witnesses, with sleet and drizzling rain falling—a fire alarm was sprung, and McCarty started with his truck to the fire. While in the line of his duty going downgrade on Florissant avenue at a rapid speed—a "fire alarm" speed, but having his horses under control—his wagon struck an obstruction in the street, and he was thereby pitched forward and down, striking on his head, and instantly killed. The obstruction consisted in a temporary switch with a frog appendage laid on top of appellant's track and the street grade, and intended for temporary purposes, in that repairs on a bridge some distance away were in progress and the two street railroad tracks laid on Florissant avenue, one an outgoing and the other an incoming track, were by said switch temporarily converted into one track for a certain distance, over which both incoming and outgoing cars passed. The switch was about 50 feet long and rose above the track—some of the witnesses say 1¼ inches, some say 2 inches, and some 4 inches. The obstruction commenced thin, and the cars mounted the switch, gradually feeding up to the full height of the obstruction above the surface of the street. However this may be, a V-shaped, raised obstruction was formed, against or in which a wheel of McCarty's truck struck, with the aforesaid result.

An ordinance of the city of St. Louis was pleaded in the petition and introduced in evidence which, inter alia, provided that "* * * and every person who shall occupy or cause to be occupied any portion of any public street, alley, highway or public place with * * * any obstruction shall cause one red light to be securely and conspicuously posted on or near such * * * obstruction; provided such obstruction does not extend more than ten feet in length, and if over ten feet and less than fifty feet two red lights, one at each end, shall be so placed, * * * and shall keep such lights burning during the entire night." Evidence hopelessly conflicting was introduced pro and con on the character and location of the lights kept by appellant at this obstruction. It is uncontradicted that a small shanty was close by, intended for protection of the employé, attending to the lights and signaling cars, against the weather. Some of the evidence was to the effect that there was no red light displayed at all, but that one or two pale or white lights were displayed. Some of the evidence indicated that there was one red light displayed, but that it was, at the time, over close to said shanty, and quite a distance from the obstruction. Some of the evidence indicated there were two pale or white lights, one at each end of the switch, and another, a red light, about midway between the two railroad tracks and the termini of the switch. The evidence on the size and distinctness of these lights was also conflicting. None of the witnesses saw two red lights, as provided by ordinance when an obstruction was over 10 feet long. None of the evidence indicated that the red light displayed was at either end of the obstruction; and, furthermore, the evidence indicated that the obstruction had existed for some time, and that the usual danger signal in the city of St. Louis was a red light, and, moreover, tended to show that a white light did not have a danger significance.

This suit is based upon Rev. St. 1899, §§ 2865, 2866, the latter of which provided "that * * * the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death * * * and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default"; and the city of St. Louis, as well as the St. Louis Transit Company, were made parties defendant. The defense interposed by appellant was a general denial, fortified by a plea...