Barnes v. Columbia Lead Co.

107 Mo. App. 608 | Mo. Ct. App. | 1904

REYBURN, J.

(after stating the facts). — 1. Appellant has assailed instructions designated as numbers one and three, given at instance of respondent, and also assigns as error the modification by the court of defendant’s own instructions, distinguished as numbers thirteen and fourteen. We are debarred from the consideration of these portions of the charge to the jury, as the record fails to demonstrate that appellant preserved any exceptions to the action of the trial court in these regards. A reference to the record, which is at length and in complete form, reveals that the defendant objected to the giving of the instructions sought to be criticized, and also requested the instructions identified but without qualification, and objected to the alterations made by the court; the record further discloses, that among the grounds contained in defendant’s motion for new trial were incorporated the refusal of the instructions mentioned, and the giving of the instructions objected to, but it is not sufficient to except to instructions in first instance in the motion for a new trial; due exceptions must be taken and saved to the giving and refusing of instructions at the time the court acts upon them. State v. Rambo, 95 Mo. 462, 8 S. W. 365; State v. Craig, 79 Mo. App. 412; Ritzenger v. Hart, 43 Mo. App. 183; State v. Reed, 89 Mo. 168, 1 S. W. 225.

• 2. The statement of the cause of’ action, as set forth' in the paragraphs quoted from the petition, is impugned, as insufficient to warrant the action of the court in receiving testimony to show that steam escaping from the shaft obstructed the view. While it is true that the petition is silent as to the manner in which such steam was permitted to escape, whence it arose and the extent of the control of defendant over the escaping steam, and it is not charged that it escaped from any negligent location of the machinery or from any defective condition present therein, yet the averments to the effect that the defendant carelessly permitted the escape of steam about the hole, so as to obstruct the view of it, and that the death of plaintiffs’ son was attributable to permitting steam to escape in the manner described, were general averments of negligence, and as no objection was made to the adequacy of the pleading by motion or otherwise, it should be adjudged sufficient after verdict and the testimony was properly suffered to be introduced. Foster v. Railway, 115 Mo. 165, 21 S. W. 916; Benham v. Taylor, 66 Mo. App. 308.

3. The jury were restricted by the instruction upon that branch of the case to assessment of damages at such sum as would be the probable value of the services of the deceased son from date of his death to his majority, less cost of maintenance during the same period. The jury were entitled to weigh the probability of his services increasing in value with experience obtained and the maturing of his physical and mental powers as he advanced toward full age, but the amount of the verdict returned three thousand dollars, can not be upheld upon the most liberal computation, and it is self-evident that the jury was not controlled by the rule embodied by the court for its guidance. The deceased was within two years, seven and one-half months of legal age, and in view of his age and wage-earning capacity, the inference is irresistible that the verdict was the result of prejudice, or more probably, of mistake in its calculation. The damages recoverable in such class of cases are strictly compensatory, and while not capable of exact determination with mathematical accuracy, they should be confined within reasonable limits. Parsons v. Railway, 94 Mo. 286. This verdict far exceeds the amount legally recoverable, but as no other error is discovered in the trial of this case and as the power to order á remittitur in such ease is lodged in this court (Chitty v. Railway, 166 Mo. 435, 65 S. W. 959), it is hereby ordered that upon plaintiff’s entering a remittitur of $2,000 of the amount of the judgment herein with the clerk of this court, within twenty days from this date, the judgment will be affirmed, otherwise the judgment will be reversed and the cause remanded on-the ground that its amount is excessive.

All concur.