Nagel v. Missouri Pacific Ry. Co.

• Decision Date: 31 October 1882
• Citation: 75 Mo. 653
• Parties: NAGEL v. THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.
• Court: Missouri Supreme Court

75 Mo. 653

NAGEL

v.THE MISSOURI PACIFIC RAILWAY COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Cole Circuit Court.--HON. E. L. EDWARDS, Judge.

AFFIRMED.

Thos. J. Portis and H. S. Priest for appellant.

The petition did not state facts sufficient to constitute a cause of action. It was nowhere alleged that defendant owned or in any manner controlled the turn-table, or that it had any right or authority to control it. A mere allegation that defendant used and operated said turn-table is not sufficient. If defendant did not own or control the turn-table, it could not be held liable for the neglect or failure of the owner, or person controlling the same, to keep it fastened or so secured as to prevent children from being injured by it. For aught that appears in the petition, the defendant only used the turn-table permissively, at the option of the owner thereof, as an occasional, or even continuous accommodation from the owner, in which case no obligation or duty devolves upon the defendant, which would render it liable to plaintiffs in this action. The conclusion of such a use is as legitimately and naturally inferable from the charges in plaintiffs' petition as that of a state of facts or such use as would make defendant liable. Again, the allegations in the petition clearly show that the boy was injured by the acts of others and not by the acts of defendant.

2. No doubt can exist upon the evidence that the boy's death was not a necessary or natural result of the would, but of the improper treatment of the physicians attending him, and bad nursing and want of proper dressing of the would, etc. We, therefore, insist that the defendant should not be held responsible for the death, which was not the proximate result of the would even if defendant caused said would.

3. The plaintiffs were guilty of contributory negligence. The mother entrusted the child to another person of her own selection, (Alice,) such other person's acts are the acts of the mother, and negligence on such other person's part is the negligence of the mother. Bell. R. R. Co. v. Snyder, 18 Ohio St. 399; s. c., 24 Ohio St. 670; 2 Thompson Neg., 1191; O'Flaherty v. Railway Co., 45 Mo. 70; Stillson v. R. R. Co., 67 Mo. 671; Waite v. N. E. R'y Co., 28 L. J., Q. B. 258; 96 Eng. C. L. 728.

4. No damage having been proved, none should have been found. The general rule is that “the proper measure of damages is the value of the child's services, until he attains his majority, from the time of the injury, less the expense necessary for his support and maintenance, taken in consideration with his expectations of life.” 2 Thompson Neg., 1292 (3). And nursing, medical attendance and funeral expenses can be recovered if specially pleaded and proved. Ib., 1293 (4). But neither was alleged or proved in this case. In general, under these statutes, the principle under which damages are to be assessed is that of pecuniary injury, and not as a solatium. No compensation can be given for wounded feelings, mental or physical pain, or the loss of comfort and companionship of a relative. Blake v. R'y Co., 18 Q. B. 93; s. c., 21 L. J. (Q. B.) 233; Burke v. R. R. Co., 10 Cent. L. J. 48; State v. R. R. Co., 24 Md. 84, 107. In actions under statutes giving a right of action to husband or wife, or parents, brothers and sisters, for the death of a husband, or wife, or parent, or son, or brother, or sister, it seems well settled that the damages provided for and recoverable under them are only such as are pecuniary and actual, or fixed in amount by the statutes, and not exemplary, and not on account of the mental suffering of the deceased, or for the sorrow, grief or suffering of the sorrowing relatives who may be entitled to recover. Porter v. R. R. Co., 71 Mo. 83; Rains v. R. R. Co., 71 Mo. 164. Such being the case, the recovery in this case is limited to actual damage, and none having been proved, none can be recovered, or at most, only nominal damages, and the court should have so instructed the jury. 2 Thompson on Neg., 1293 (5); Brown v. Emerson, 18 Mo. 103; Owen v. O'Reilly, 20 Mo. 603. Father may recover for services of a minor son until he would have been twenty-one years old, whatever the proof shows the services worth. Ford v. Monroe, 20 Wend. 210; Drew v. R. R. Co., 26 N. Y. 49. Where it was an infant child, whose service was of no value, only physician's bill and funeral expenses, etc., should be recovered. Pack v. Mayor, 3 Comst. 489. As the damages should be confined to compensation for the pecuniary loss, it is erroneous to leave the question of the amount to the uncontrolled discretion of the jury. Sedg. on Damages, (6 Ed.) 698, note; Pa. R. R. Co. v. Vandever, 36 Pa. St. 298; Pa. R. R. Co. v. Ogier, 35 Pa. St. 60; Field on Damages, 498. In cases arising under the third section of the damage act, the jury should not be left to grope their way unaided through the testimony, to find the circumstances of mitigation or aggravation, which the statute authorizes them to take into consideration in making up their verdict. What circumstances will mitigate or aggravate a wrong done, is a question of law, and if any such circumstances exist, they should be pointed out by the court, and the jury should be restricted to a consideration only of those so designated. Porter v. R. R. Co., 71 Mo. 83; Rains v. R. R. Co., 71 Mo. 169.

Botsford & Williams and M. J. Leaming for respondents.

1. The petition is sufficient, and the company's demurrer thereto was properly overruled. Ownership of the turn-table by appellant was not necessary in order to make it liable for using it and negligently leaving it unlocked and unguarded to the injury of others. Fletcher v. R. R. Co., 1 Allen 9; Shearman & Redfield Neg., (2 Ed.) 501, 504. The words “use and operate,” and ““using and operating,” which are employed in the petition, are terms used in the statutes of this State defining the duties and creating the liabilities of railway companies, (R. S. 1879, §§ 809, 810, 818, 832, 834, 844,) and the refusal of the court to give appellant's instructions three, four, five and ten, based on the same grounds as were contained in the demurrer to the petition, was proper. Stetler v. R. R. Co., 46 Wis. 502; s. c., 49 Wis. 613; Jetter v. R. R. Co., 2 Keyes 154; Stanton v. Bridge Co., 47 Vt. 172; 14 Am. L. R. 469. The fact that appellant may not have owned the turn-table, but used it wrongfully as a trespasser, did not exempt it from liability if it left it in such condition as to kill respondents' child.

2. The action of the court in submitting to and not withdrawing from the jury the issue of contributory negligence on the part of respondents, was proper. Thompson v. R. R. Co., 51 Mo. 190; Buesching v. Gaslight Co., 73 Mo. 219; Hicks v. R. R. Co., 64 Mo. 430; Boland v. R. R. Co., 36 Mo. 491; Wyatt v. R'y Co., 55 Mo. 485; Norton v. Ittner, 56 Mo. 352; Owens v. R. R. Co., 58 Mo. 393; Smith v. R. R. Co., 61 Mo. 592; Stoddard v. R. R. Co., 65 Mo. 521; Mauerman v. Siemerts, 71 Mo. 105; Langan v. R. R. Co., 72 Mo. 397; Kelley v. R. R. Co., 50 Wis. 385; Hoyt v. Hudson, 41 Wis. 105; Railroad Co. v. Fuller, 17 Wall. 569; Railway Co. v. Fitz Simmons, 22 Kas. 686; Railway Co. v. Bohn, 27 Mich. 503; s. c., 12 Am. L. R. 745; Railway Co. v. Pointer, 14 Kas. 53; Railroad Co. v. Hotham, 22 Kas. 49, 50; Johnson v. R. R. Co., 20 N. Y. 74; Wharton on Neg., §§ 420, 425, 427; Cooley on Torts, p. 670. And appellant's instructions seven and eight were, therefore, rightfully refused.

3. The leaving unguarded and unlocked a heavy turn-table for the revolving of locomotive engines, so that it could be easily turned by a boy ten years old, in an open space of ground near a large flouring mill, the city gas works, dwelling houses and shops, in the midst of the principal play-ground for the boys of a city of 5,000 people, where circus managers pitched their tents and exhibited their shows, and under the shadow and within a stone's throw of the State capitol, and after the company's agents had been informed of previous injuries to other boys thereon, was grossly negligent and fully warranted the verdict and judgment below. Respondents' first instruction was, therefore, properly given, and appellant's instruction number 6 was rightfully refused. O'Flaherty v. R'y Co., 45 Mo. 73; Koons v. R. R. Co., 65 Mo. 597; Stout v. R. R. Co., 17 Wall. 657; s. c., 2 Dill. 294; s. c., 11 Am. L. R. 226; Keffe v. R'y Co., 21 Minn. 207; Railway Co. v. Fitz Simmons, 22 Kas. 690; Railway Co. v. Kellogg, 94 U. S. 474.

4. The absence of proof of special pecuniary damage to respondents resulting from the death of their child would not have justified the court in giving the instruction asked by appellant, number 12. Ihl v. R. R. Co., 47 N. Y. 321; Oldfield v. R. R. Co., 14 N. Y. 310; O'Mara v. R. R. Co., 38 N. Y. 445. And respondents' eighth instruction, being in the language of the statute, (§ 2123,) and of a like instruction given in the case of Owen v. Brockschmidt, 54 Mo. 287, was properly given.

NORTON, J.

This is an action for the recovery of damages for the death of plaintiffs' infant son Albert, which is alleged to have been caused by the negligent acts of defendant. It is alleged in the petition that on the 27th day of May, 1878, defendant owned and operated a railroad through the City of Jefferson, and in connection therewith used and operated a turn-table so constructed and arranged as to be easily turned round and caused to revolve; that said turn-table was situated in an open and public place in said City of Jefferson; that children were in the habit of resorting to said turn-table and going upon the same to play; that said turn-table was unfastened, without locks and unprotected by inclosures or otherwise, so as to prevent its being turned round at will by small children--of all which defendant had knowledge, and of the unsafe and dangerous condition of said turn-table; that the son of plaintiffs, who was a child...