McGowan v. St. Louis Ore & Steel Co.
Decision Date | 28 March 1892 |
Citation | 19 S.W. 199,109 Mo. 518 |
Court | Missouri Supreme Court |
Parties | McGOWAN et al. v. ST. LOUIS ORE & STEEL CO. |
2. The giving of such instruction is harmless error, where the verdict is only for $5,000, and the plaintiffs are four minor children, and deceased was only 40 years old when killed, and was earning $3 per day. SHERWOOD, C. J., and GANTT and MACFARLANE, JJ., dissenting. 16 S. W. Rep. 236, reversed.
In banc. On rehearing.
The other facts fully appear in the following statement by GANTT, J.:
This is an action by respondents in the circuit court, city of St. Louis, to recover damages on account of the death of their father, Michael McGowan, on 10th of December, 1883, by falling down an elevator chute on the premises of the appellant, the St. Louis Ore & Steel Company, under sections 4426 and 4427, Rev. St. Mo. 1889. The petition is as follows: To which petition the defendant filed the following answer: The reply was a general denial of new matter set up in the answer.
At the trial, on March 21, 1888, respondents, to sustain the issues on their part, introduced evidence in substance as follows:
John McGowan testified that his age was 20 years. That he had two brothers and a sister, viz., James McGowan, 18 years of age; Mary McGowan, 17 years of age; and Michael McGowan, 10 years of age; and that witness was 16 when his father, Michael, died. That his mother died some time before his father was killed. That they lived in South St. Louis when the father died, and had lived there as long as he could remember. That he and his brother James are employed by the Western Steel Company, (the same works formerly operated by the St. Louis Ore & Steel Company.) That his sister is earning wages as a house servant, and that his younger brother is in an orphan asylum. That in December, 1883, his father worked for the St. Louis Ore & Steel Company, and lost his life by falling down a shaft. It was on the 10th day of December, 1883. That he was 40 years of age. Witness was also working for the St. Louis Ore & Steel Company at the time of the accident. Witness saw him shortly after the accident, but he was unconscious. Was not present when the accident occurred. Deceased died on the day of the accident, at the Alexian Brothers Hospital, to which place he was removed by respondents. He was buried by the family, the expenses of hospital and burial being paid out of the wages due him and the furniture that was sold. Deceased had just gone on duty for the morning when he was killed. He started to go to work at about 3 o'clock that morning. He was paid by the ton, and had been earning about three dollars a day. On cross-examination witness testified that his father left some property. That he owned the dwelling-house in which he lived; also a tenement-house, which he let to tenants for rent; also a store in East St. Louis. Witness, his brother James, and his sister were all earning wages. There was a mortgage on all the real estate. The property in Missouri was sold, and brought nothing over the mortgage. The Illinois property had not yet been sold. His father was killed on Monday morning. Saturday had been his day off. He had been at work Friday. Had been at work for the Ore & Steel Company since March. Was killed in December. During all this time he had been doing the same kind of work, — pushing buggies. On re-examination witness stated that the Carondelet property had been swept away by mortgages, and that the creditors were now proceeding to sell the East St. Louis property, and that there was nothing left for his children.
Patrick Quinn testified that in December, 1883, he was working for the Ore & Steel Company in the converting department of the Vulcan Works, on the charging floor, and about 50 feet above the ground floor, — about three or four ordinary stories high. Witness went to work about 4 o'clock on Monday morning, December 10, 1883. It was still dark. Michael McGowan was there. He worked on the same floor. Witness was engaged in charging cupolas. Peterson was the superintendent of the whole works. Shea was the boss or foreman of the works. Shaneyman was the select foreman. He was the boss charger. Was the first man on the floor. Witness saw a gate or door there that closes up the elevator hole when the elevator was not up at the floor, but it was not there at the time of the accident. It worked this way: When the cage came up with the buggy it was elevated up and stayed up, and when they took the buggy off it would drop down in its place, and close the hole. There were two sides to this elevator, — one goes up and one goes down; but believes the gate was not working that way when McGowan was killed. He had an empty buggy, going back after unloading it, — going back to the hoist to put the empty buggy on, — and he went into the wrong hole. He went into this one that went down. There were two...
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