McGowan v. St. Louis Ore & Steel Co.

• Decision Date: 19 May 1891
• Court: Missouri Supreme Court
• Parties: McGOWAN et al. v. ST. LOUIS ORE & STEEL CO.<SMALL><SUP>1</SUP></SMALL>

16 S.W. 236

McGOWAN et al. v. ST. LOUIS ORE & STEEL CO.¹

Supreme Court of Missouri, Division No. 2.

May 19, 1891.

DEATH BY NEGLIGENT ACT — MEASURE OF DAMAGES — INSTRUCTIONS.

In an action by children for the death of their father by the negligent act of his employer, under Rev. St. Mo. §§ 4426, 4427, providing that in an action for death by the wrongful act of defendant the jury may give such damages, not exceeding $5,000, as they may deem fair and just, with reference to the necessary injury resulting from such death to the surviving parties entitled to sue, an instruction that the jury will assess damages "in such sums as they believe" will compensate plaintiffs for the pecuniary injury sustained, not to exceed $5,000, is erroneous, in not requiring the jury's belief to be based on the evidence, and in not stating the elements on which their estimate should be made; though, in the absence of other objection, failure to specifically confine the jury to the evidence would not be ground for reversal.

Appeal from St. Louis circuit court; JAMES A. SEDDON, Judge.

Rev. St. Mo. § 4426, gives a right of action for death by a wrongful act. Section 4427 provides that in such action the jury may give such damages, not exceeding $5,000, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties entitled to sue.

Hitchcock, Madill & Finkelnburg, for appellant. Laughlin, Kern & Tansey, for respondents.

GANTT, P. 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. The petition is as follows: "Plaintiffs state that they are infants under the age of 21, and that John G. Gay, Jr., was on February 7, 1884, duly appointed by above circuit court as the next friend of the said plaintiffs to institute this suit on their behalf, and for a cause of action state that they are the children of one Michael McGowan who died December 10, 1883; that said Michael McGowan left no widow surviving him; that defendant is a corporation duly organized and existing under the laws of Missouri; that defendant was, at and prior to the day above mentioned, the owner of certain ore and steel works in or near the city of St. Louis. Mo.; that at and prior to said date said Michael McGowan, deceased, was employed by defendant in the said ore and steel works as a laborer to pull certain loaded trucks from an elevator in an elevator chute of great height, to unload the same, and to return the same when unloaded to the entrance to said elevator chute, and then and there to place the same upon said elevator; that at said time and place it was defendant's duty to have said elevator at said entrance to said elevator chute, and to have the said entrance to said elevator chute safely and securely guarded, fenced, and lighted, as defendant well knew, or by the exercise of reasonable care could have known; that on said 10th day of December, 1883, defendant did not have said elevator at the said entrance to said elevator chute, nor did it have said entrance to said elevator chute safely and securely guarded, lighted, and fenced, as it was its duty to do; that at said time and place, while said Michael McGowan was occupied in the discharge of the said duties of his employment in defendant's said iron, ore, and steel works, he was precipitated down said elevator chute with such force as to then cause his death almost instantly, by reason of defendant's said neglect to have said elevator at said entrance to said elevator chute, and to have said entrance securely and safely guarded, fenced, and lighted, he being then and there free from all neglect in the premises. Plaintiffs further say that by reason of the premises aforesaid, and by virtue of provision of section 2122, Rev. St. Mo. 1879, they have sustained damages in the sum of five thousand dollars, for which said sum they pray judgment." To which petition the defendant filed the following answer: Now comes the St. Louis Ore & Steel Company, defendant, and for answer to the petition of plaintiffs in the above-entitled cause says: "That defendant has not knowledge or information sufficient to form a belief whether said plaintiffs are or either of them is an infant, nor whether Michael McGowan was their father, nor whether said Michael McGowan left no widow surviving him. Defendant is informed, and therefore admits, that on or about December 10, 1883, one Michael McGowan, who was before then employed by defendant as a laborer at certain steel-works owned by defendant in the city of St. Louis, commonly called the Vulcan Steel-Works, came to his death by falling down an elevator shaft or chute at said steel-works. But defendant denies generally each and every other allegation in said petition contained. Defendant, further answering, says that said McGowan directly contributed to and in part caused his own death by the negligent and reckless manner in which he undertook, on or about said 10th of December, 1883, to push a heavy iron truck, which it was his duty to assist in moving back wards and forwards from said elevator opening; that said McGowan well knew the situation of said elevator opening, and that it was necessary to approach the same with care; but said McGowan, at the time aforesaid, so negligently and recklessly pushed said truck towards and into said opening that said truck was precipitated down the same, and said McGowan, in attempting to hold back the same, was, in consequence of his own recklessness, dragged down said opening, and thereby injured so as to cause his death. And, having fully answered said petition, defendant prays to be hence dismissed, with its costs." 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, 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; he 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 $3 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. "My duty was charging cupolas with pig-iron, which we got from the hoist or elevator, which was on the north part of the floor. The iron was brought up the elevator on iron buggies. One man could push an empty buggy, but it took two to push a loaded one. The iron is melted in the cupolas. When a loaded buggy came up on the elevator, the men would pull it off when it came up even with the floor, take it to the cupola, and throw the material in. One man would push the buggy, and one would pull it. The empty buggies were pushed back onto the elevator to be let down." 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...