Stookey v. St. Louis-San Francisco Ry. Co.
| Decision Date | 16 March 1923 |
| Docket Number | No. 3208.,3208. |
| Citation | 249 S.W. 141 |
| Parties | STOOKEY v. ST. LOUIS-SAN FRANCISCO RY. CO. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pulaski County; L. B. Woodside, Judge.
Action by Wilbur Stookey, a minor, by his next friend, Carrie M. Stookey, against the St. Louis-San Francisco Railway Company. Judgment for plaintiff, and defendant appeals. James C. Davis, as federal Agent, substituted as party defendant, and judgment affirmed as against him, on condition that plaintiff remit certain sum.
W. F. Evans and E. T. Miller, both of St. Louis, Mann & Mann, of Springfield, and Frank H. Farris, of Rolla, for appellant.
J. J. Crites and Lofts & Breuer, all of Rolla, and R. J. W. Bloom, of Richland, for respondent.
This case is here on second appeal. The former case is reported in 209 Mo. App. 33, 236 S. W. 426, in which opinion we made a statement of the case, to which statement we now refer as to the facts covering the collision in this case. On the first appeal we reversed the judgment because of an erroneous instruction on the measure of damages. That error was corrected in this trial. The plaintiff again recovered judgment in the sum of $5,000. From this judgment the defendant appeals, assigning numerous errors.
Appellant on this appeal renews its attack on the case made by plaintiff's evidence, and again urges this court to hold that the father of plaintiff was guilty of such contributory negligence as would in law bar a recovery. We discussed that feature in the former opinion and are not disposed to make any change in the ruling thereon. As we view it, it is a question for a jury to determine whether, under the circumstances of this case, the father of plaintiff was in fact guilty of contributory negligence, and they having decided that In plaintiff's favor puts an end to it so far as this appeal is concerned.
This case was brought under the compensatory death statute, and the negligence charged and submitted was that the defendant had negligently maintained a railroad crossing, and the evidence is overwhelmingly convincing that the defendant was negligent in the way this crossing was maintained, and that it was such negligence that was the proximate cause of this injury.
One of the contentions made by appellant is that the instruction asked by the plaintiff contained error, in that it placed a greater duty upon defendant in regard to railroad crossings than is required by the statute, the section of the statute referred to being 9944, R. S. of 1919, which requires that there shall be constructed and maintained good and sufficient crossings, which requirement is then followed by a description of the manner of building such crossings. The instruction complained of fixed the standard of crossings as one which could be crossed over without "hindrance and with safety," This same instruction required the jury to find that the defendant had torn out this crossing and had failed to replace it by placing the planks and timbers which are required by statute, and the filling of ballast between railroad ties and the rails. The evidence clearly shows this was the condition Of the crossing at the time of the accident. While the clause complained of should not have been in this instruction, it certainly did not mislead the jury in believing higher duty was placed upon defendant than that required by the statute, because the evidence concerning this went clearly to show the things lacking which were required by statute. We do not think the error of placing it in the instruction materially affected the verdict. This objection is therefore overruled.
It is next contended that the verdict is excessive. The evidence shows that the plaintiff had from 6 to 7 years to live before he reached his majority; that his father was 60 years of age. There is no showing that the father gave any particular amount to his son, whom he was rearing in his home. The evidence, however, does show that he was a farmer, living on a rented farm, on which there were 50 acres in...
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