Merb v. St. Lows Merchants' Bridge Terminal. Ry. Co.

• Decision Date: 11 June 1923
• Docket Number: No. 23497.,23497.
• Parties: MERB v. ST. LOWS MERCHANTS' BRIDGE TERMINAL. RY. CO.
• Court: Missouri Supreme Court

252 S.W. 370

MERB v. ST. LOWS MERCHANTS' BRIDGE TERMINAL. RY. CO.

No. 23497.

Supreme Court of Missouri, Division 2.

June 11, 1923.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

Action by Theodore J. Merb, as executor of the estate of Albert Merb, deceased, against the St. Louis Merchants' Bridge Terminal Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

J. L. Howell and W. M. Hezel, both of St. Louis, for appellant.

Sidney Thorne Able and Charles P. Noell, both of St. Louis, for respondent.

Statement.

BAILEY, C.

Theodore J. Merb, as executor of the estate of Albert Merb, deceased, sued the St. Louis Merchants' Bridge Terminal Railway Company, a corporation, in the circuit court of the city of St. Louis, Mo., to recover damages for the death of said Albert Merb, who, at the time he was killed, was a switchman in the employ of defendant. The suit was brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), and the only ground of negligence alleged relates to the violation of the federal Safety Appliance Act (U. S. Comp. St. § 8605 et seq.); the specific allegation being that a coupler on a car of a train of cars, which said Albert Merb was attempting to use in uncoupling that car from the one to which it was connected, was defective, in the sense that the lever provided for lifting the pin, which would allow the knuckle of the coupler to open, would not lift that pin, and as a consequence thereof said Merb, in some way, went between the, cars to pull the pin that locked the knuckle on the connecting car, and while so doing fell and sustained injuries from which he died. The deceased, at the time of his death, was 28 years of age, and left surviving him an only child, a female, 2½ years old at the time of her father's death. The name of the child was June. The scene of his death was in a yard of the defendant at Madison, Ill., and the date of the accident was February 21. 1921. The damages prayed for was $65,000, which was alleged to have been the pecuniary loss suffered by June Merb by reason of the death of her father. The answer was a general denial, coupled with pleas of assumption of risk and contributory negligence.

The plaintiff, at the trial, offered substantial evidence tending to prove the allegations of petition. The defendant likewise offered evidence tending to support the allegations of its answer. It appears from the evidence that deceased was earning about $150 per month when killed; that previous to his death he had been supporting his own child (June Merb) and a 14 year old daughter of his deceased wife by a former marriage. The jury returned a verdict for $17,500. Defendant filed a motion for a new trial, containing various assignments of error, including the charge that the verdict was excessive, and the result of passion and prejudice upon the part of the jury. The court required, and plaintiff entered, a remittitur of $5,000. A new judgment was then entered for $12,500, and the motion for a new trial overruled. Defendant thereupon appealed to this court.

Opinion.

I. Appellant has presented but one as. signment of error in this court, which reads as follows:

"The trial court erred, and abused its discretion, in failing to grant the defendant a new trial, for the reason that under the only instruction given for the plaintiff the jury were authorized to return a verdict not to exceed $65,000, the same being a judicial hint that the court would accept a verdict up to that amount, because the verdict of $17,500 returned by the jury was so excessive as to indicate passion and prejudice on the part of the jury, and because, though the court ordered a remittitur of $5,000, the verdict is still excessive. Lessenden v. Railroad, 238 Mo. 247, 142 S. W. 332; Partello v. Railroad, 217 Mo. 645, 117 S. W. 1138; Applegate v. Railroad, 252 Mo. 173, loc. cit. 202, 158 S. W. 376; Jones v. St. Louis & S. F. R., 287 Mo. 64, 228 S. W. 780, loc....