Young v. Waters-Pierce Oil Co.
Decision Date | 24 December 1904 |
Citation | 185 Mo. 634,84 S.W. 929 |
Parties | YOUNG v. WATERS-PIERCE OIL CO. |
Court | Missouri Supreme Court |
1. Pursuant to a contract with a railroad company, defendant oil company erected on the railroad right of way a pipe connecting a tank with a building, the pipe being so close to the railroad track that plaintiff's husband, an employé of the railroad company, was killed by striking it while standing on the ladder on the side of a passing freight car. Defendant had been notified by the railroad company that the pipe was in a dangerous location, and to remove it. Held, that the fact that there were no contract relations between defendant and decedent does not prevent recovery for his death, as defendant owed the employés of the railroad company the duty of not imperiling their lives while performing their duties.
2. In an action for wrongful death, where the evidence shows that decedent was killed by coming in contact with a pipe by the side of a railroad track while switching cars; that decedent had been employed at this place only about a week; that, while the pipe was only four inches from the side of a freight car, the curve in the track made it seem a greater distance; that decedent had been warned to look out for the pipe, but had not been taken to it— the question of decedent's contributory negligence is for the jury.
3. A verdict for $5,000 damages for the death of a man 35 years of age, of sober and industrious habits, earning $40 per month, is not excessive.
Appeal from Circuit Court, Bollinger County; James D. Fox, Judge.
Action by Alice Young against the Waters-Pierce Oil Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Johnson & Richards and Geo. H. Williams, for appellant. Moses Whybark, Ralph W. Wammack, and N. A. Mozley, for respondent.
This is an appeal from the circuit court of Bollinger county. Plaintiff, as the widow of Robert Young, recovered judgment for damages resulting to her from the death of her husband, who it is alleged was killed by the reason of the negligence of the defendant at Bloomfield, Mo., January 31, 1901. The action was commenced within six months after the death of the husband. On the 9th of September, 1901, she filed an amended petition containing three counts, which are the same save and except that the first count alleges the death of the deceased resulted from all the injuries he received in the accident; the second, that his death was caused by internal injuries then received; and the third, that it was caused by the injuries to his legs. The petition, in substance, states that plaintiff is the widow of Robert Young; that the Cape Girardeau, Bloomfield & Southern Railway Company is and was at the time of said injuries a railroad corporation existing under the laws of this state, and owned and operated a railroad from Zalma, in Bollinger county, to Brownwood, in Stoddard county, thence to Bloomfield, and from thence to a connection with the St. Louis Southwestern Railroad at Zeta, in Stoddard county; that the defendant is, and was prior to and at the time of the alleged wrongful acts, a corporation organized under the provisions of article 9 of chapter 12 of the Revised Statutes of Missouri of 1899, and the general purposes of said corporation are dealing in naval stores and dealing in compounding petroleum and other oils and products thereof and buying and selling the same in Missouri and elsewhere; that said defendant corporation had and usually kept at the date of the institution of this suit and still keeps at Lutesville, in Bollinger county, an office and agent for the transaction of its usual and ordinary business.
The substantive averments of the facts showing the relation of the parties and the negligence complained are as follows:
The answer contained a general denial; a plea that defendant at the time of the alleged accident, nor at any other time, had no possession or control of that part of the right of way or roadbed of said railroad where said accident occurred, and had no authority or control in the management of said railroad or in the running and operating of trains and cars thereon, and, third, a plea of contributory negligence on the part of the said Robert Young; to which the plaintiff filed the following reply:
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