This action- is by the widow of Bartholomew Barth for damages resulting to Jaer from his death, occasioned, as she alleges, by the negligence of the defendant, at its elevated station at Ninth and Mulberry streets in Kansas City, Missouri.
Plaintiff’s husband was killed February 25, 1894, and this action was commenced March 22, 1894. The record shows that at the April term, 1894, defendant appeared and moved to dismiss the suit, which motion was overruled. On May 5, 1894, defendant demurred, but on June 16, 1894, withdrew its demurrer, and on the same day plaintiff filed an amended petition which defendant answered October 9, 1894, and afterward on December 12, 1894, the second amended petition, on which this cause was heard, was filed. It contained two counts, but as the second was withdrawn, the first count only remains as the basis of the judgment recovered. The first count avers in substance that plaintiff, on the twenty-fifth of February, 1894, was the lawful wife of Bartholomew Barth and on that day defendant was a railway corporation organized under the laws of Kansas, and was engaged in operating an elevated electric street railway for the carriage of passengers for hire between Kansas City, Kansas, and Kansas City,
“Plaintiff further states, for the purpose of admitting passengers to the cars owned and operated on its said railroad as aforesaid, steps are supplied on the right hand side of the rear platform, by the aid of which passengers are invited and are accustomed to go upon the platform and into said cars. That each of said cars and the particular one hereinafter mentioned is provided with a gate which is intended to guard against accidents and to prevent passengers from falling from the cars while in motion; that the rules of the defendant company provided that the gates of the cars should be kept closed while the cars were running over the elevated structure and that the cars should not be started until passengers were fairly landed or received on the car. That it was the duty of the agents, employees and servants of defendant to keep said gates*542 closed while running said cars over the elevated structure, and they were only accustomed to be open while the cars were stopped for the admission of passengers at the several stations along said railroad.
“Plaintiff states that, to wit, on said twenty-fifth day of February, 1894, the husband of plaintiff, Bartholomew Barth, entered the station of said defendant company at the corner of Ninth and Mulberry streets as aforesaid for the purpose of taking a trip west as a passenger on one of defendant’s Cars. Plaintiff states that the destination of her said husband, Bartholomew Barth, was his home in Kansas City, Kansas, near one of the terminal stations of said defendant company in said Kansas City, Kansas, and that upon the arrival at said station of the first car of said railway conducted, maintained and operated by said defendant and so propelled by the servants, agents and employees of defendant’s company, and after said car had been stopped and the gate of the car opened for the admission of passengers, the husband of said plaintiff attempted to get upon said car for the purpose of riding upon the same as aforesaid.
“Plaintiff states that while Bartholomew Barth was in the act of getting upon said car, and before he had sufficient time to get upon the platform of said car, and without waiting for said Bartholomew Barth to board said car or to get upon a safe portion of the platform of the same, and before said gate had been closed, the agents, servants and employees of defendant, managing its said railway and in charge of said car, and knowing that he was in the act of boarding said car, negligently and carelessly started said car forward suddenly and at a rapid rate of speed, causing said Bartholomew Barth, the husband of this plaintiff, to be thrown with great force and violence off the car and upon the platform, near the point where said*543 fence or guard on the west end of said platform was negligently and carelessly left open; and by reason of the fact that said fence or guard was left exposed and open on the west end of said platform as aforesaid, and there being nothing- to stop his body and nothing which he could grasp to save himself, he was by the impetus of said fall from defendant’s' car, propelled with great force and violence over said platform to the surface of the ground, twenty to thirty feet below.
“Plaintiff states that by reason of said fall, caused by the negligence and carelessness of the servants, employees and agents of said defendant as aforesaid, said Bartholomew Barth, the husband of plaintiff, was so greatly bruised, mangled and hurt that he died; that such death resulted from and was directly occasioned by the defect and insufficiency in the construction of said guard or fence as aforesaid, and by the carelessnéss and negligence of said servants, agents •and employees in so starting said car before said Bartholomew Barth had got upon said car and before the gate to said car was closed as aforesaid.
“Plaintiff states that she was dependent upon the deceased, Bartholomew Barth, for her support, and has suffered pecuniary loss and has been otherwise injured by the death of said Bartholomew Barth to her damage in the sum of five thousand dollars. '
“Wherefore plaintiff asks judgment for said sum' of five thousand dollars, and for all costs herein incurred and expended.”
The answer is a general denial and plea of contributory negligence of plaintiff’s husband.
At the January term, 1895, there was a verdict and judgment for plaintiff for $4,500. Motions for ' new trial and in arrest were duly filed and overruled and defendant appeals.
The evidence disclosed these facts. The station
Some of the witnesses testified he fell off, others that he stepped off, but the great preponderance supported the finding of the jury that he fell off. Again there was evidence that the deceased said to the conductor that he would take the next or Edgerton Place car, but these witnesses testified that they saw no effort upon his part to voluntarily leave the car. On the other hand other witnesses testified that at the same time that the conductor -signaled the motorman to start the car he told Barth he had better get off and take the next car, and these witnesses say that the deceased did not then have time to leave the car before it began to move. Much testimony was elicited as to the
“1. The jury are instructed that it was the duty of those in charge of the car operated by the defendant company, to stop at the station a reasonably sufficient length of time to allow passengers to get off and on the cars in safety; and if the jury believe from the evidence that they did not do so and that while they saw plaintiff’s husband getting upon the car, they negligently, carelessly and suddenly started up the car while he was in the act of getting on the car, and that plaintiff’s husband was thereby thrown from said car and killed without any fault or negligence on his part, then your verdict should be for the plaintiff.
“3. If you find from the evidence that the servants of the defendant stopped the car at the Mulberry street station for the purpose of receiving and letting off passengers, but did not stop the same a reasonably sufficient length of time to enable the plaintiff’s hus*547 band by the use of reasonable expedition and care to get safely upon the ear before it again started, and it was so started by the agents and servants of the defendant while they saw that plaintiff’s husband was in the act of climbing the steps of the platform for the purpose of getting upon the car as a passenger, whereby he was thrown down and killed without any fault or negligence on his part, then your verdict must be for the plaintiff.”
For the defendant the court instructed the jury:
“6. If the injury to Barth was caused by an attempt to step off or on a moving car on the elevated road, then plaintiff can not recover.
“7. Barth was required to use his eyes and senses; and if by the use of same and exercise of reasonable care he could have gotten up into the car or off on the platform in safety and thereby have avoided the injury, then plaintiff can not recover.
.“8. If Barth was injured while attempting to step off the car on the elevated road while the car was in motion, then plaintiff can not recover herein.
“9. If Barth was injured by reason of attempting to get on a moving car on the elevated road, then plaintiff can not recover herein.”
Other instructions will be discussed in the opinion.
I. Considering the grounds assigned for reversing the judgment of the circuit court in the order of defendant’s brief, the sufficiency of plaintiff’s petition is first. The amended petition of the widow avers that her husband’s death was caused by the negligence of defendant and occurred on February 25, 1894. Her amended petition was filed December 12,1894, or more than six months after his death, without averring there were no minor children. Section 4425 gives an action to the wife of the deceased when her husband’s death is caused by the negligence of the defendant in the
II. It is next insisted that the circuit court erred in not sustaining the demurrer to the evidence. Without repeating the testimony, the substance of which is set out in the statement, it suffices to say that there was much evidence tending to establish that when defendant’s car reached Mulberry street and Ninth'it stopped to permit passengers to alight and others to enter; that Mr. Barth, the deceased, stepped upon the steps of the car to take passage; that while in the act of stepping upon the platform the conductor rang the bell and the car was suddenly started forward, and that Mr. Barth either fell off, or stepped off to avoid falling off, upon the station platform, and by reason of the acquired momentum was precipitated to the surface of the street below and killed. Whatever the contention of
Certainly it <?an not be said that when the plaintiff closed’ in chief that any negligence on the part of her deceased husband had been shown. When the car of defendant stopped at the Mulberry street station and passengers were permitted to alight and the iron gate to the platform was opened, it was an invitation to Mr. Barth to take passage thereon. There was no delay on his part in attempting to board the car. He followed immediately in the wake of others who went on the car at that station. The conductor had not given any reasonable signal that it would no longer be safe to attempt to get on the car. By permitting him to thus enter upon its steps or platform the plaintiff’s husband at once became and was accepted as a passenger on said car and defendant was bound to exercise the highest degree of care of a prudent person under similar circumstances for his safety, and be held to a strict responsibility therefor. Brien v. Bennett, 8 Car. & P. 724; Smith v. Railroad,
Considering the character of the agencies employed
Tbe objection that tbe evidence of Veal, Cresswell and Allnew did not support tbe first and only remaining count in the petition seems to have been made without a copy of that count before tbe learned counsel. This evidence strictly corresponded with tbe allegations of that count.
III. Instructions 1 and 3 given at tbe instance of plaintiff correctly declare the law. If tbe jury found, which they evidently did, tbe facts upon which tbe recovery was predicated, plaintiff’s husband was a passenger and entitled to tbe strict care defined in tbe last paragraph of this opinion. Schepers v. Railroad,
“2. You are further instructed that it was the duty of the defendant railway company to exercise ordinary care and prudence in constructing and maintaining reasonably sufficient and proper railings and guards at the ends of its station platforms for the reasonable safety of persons using its platforms and cars, and if you believe from the evidence that it failed to exercise such ordinary care and prudence in constructing and maintaining the railings or guards at its Mulberry street station, then it was guilty of negligence-in that regard.”
Before proceeding to discuss this question, however, it must be constantly borne in mind that it does not authorize a recovery by itself. The effect of the negligent construction is only submitted to the jury along with the negligent starting or management of the car, as will be seen from the plaintiff’s fourth instruction in these words:
”4. If you find that the injuries resulting in the death of the plaintiff’s husband, Bartholomew Barth, were caused by the negligence of the servants or employes •of defendant in charge of the car, in suddenly starting the car while said Barth was in the act of stepping upon the platform of said car, combined with the negligence of defendant in so constructing the railing at the west end of the platform as to leave the open space at the end of the platform described in evidence, if you find that such construction was negligent, then you will find for the plaintiff and give her such damage, not -exceeding five thousand dollars, as you may deem fair and just under the evidence in this ease with reference*552 to the necessary injury resulting to her from the death of her husband. And in such case your verdict should be in the following form:
“ ‘We, the jury, find the issues for the plaintiff and assess her damages at the sum of-dollars.
“ ‘ -, Foreman.’ ”
It is obvious that the petition declares upon two-concurring acts of negligence on part of defendant, first, the sudden jerk in starting the car whereby plaintiff’s husband was precipitated from the car; and second, negligence in leaving such a wide space between its railing and the cars so that when he fell or was compelled to step from the cars there was nothing to prevent his falling from the station platform to the street below.
These instructions then are not outside of the pleadings. Was there substantial evidence supporting them? Keeping in view that this was an elevated road, the most ordinary care would dictate that the edges of such a structure should be guarded with a railing or fence. This much seems to be conceded by defendant, but it maintains that there was no proof that leaving a space of twenty-six inches between the end of the railing and the sides of the cars as they passed was negligence. “When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the question is one for the jury” under our system of laws. O’Mellia v. Railroad,
Bearing in mind that this was a railroad for the carriage of passengers alone; that neither employes or passengers were allowed to ride outside; that gates were constructed to the platforms to keep passengers off of the steps, no necessity apparently existed for extra space between the sides of the ear and the end of the'
Defendant relies upon Evans v. Interstate Rapid Transit Co.,
It is clear that in that case the failure to put in the post did not cause Evans’ death, but it can not be said as a matter of law that the failure to have a railing across the open space of twenty-six inches through which deceased in this case fell did not contribute directly to his death. Had there been a railing to within twelve inches of the cars, it seems perfectly clear that he would have been able to recover himself or would have been caught thereby in spite of himself. We do not think the eases are similar on their essential features.
Again, Carroll v. Railroad,
Y. We are thus brought to the consideration of the instruction 4 on the measure of damages given at the instance of plaintiff, already reproduced at length in paragraph IY of this opinion. The jury were instructed that if they found for plaintiff they would award her “such damage not exceeding five thousand dollars as you may deem fair and just under the evidence in this case with reference to the necessary injury resulting to her from the death of her husband.” This instruction was approved in Browning v. Railroad,
The contention of the very able and learned counsel for defendants in that case was only for an instruction in the words of the instruction herein complained'of. Subsequently we ruled in- the Browning ' case where the essential elements of the damages were given to the jury for the-plaintiff in the language of the statute, its generality would not constitute reversible error, reserving to the defendant the right to point out the elements limiting the damages in its own
Was error committed in refusing defendant’s instruction which was in these words: “If the jury should find for the plaintiff, and that the deceased met his death on account of the negligence of the defendant in not having a sufficient railing on the elevated platform, they will assess the damages at such sum as will compensate her for the actual pecuniary loss which she has sustained by reason of the death of her husband, and nothing shouldbe allowed for mental anguish, grief or sorrow at the loss of her husband; the question in such case is as to the amount of pecuniary loss as shown by the evidence, and that means the actual amount in money which she has lost by reason of being deprived of the support of her husband.”
Plaintiff had no right to recover for mental anguish, grief or sorrow which she suffered by the loss of her husband. This is the construction placed upon similar statutes throughout the country. Shearman & Redfield on Negligence [5 Ed.], sec. 767; Field on Damages, sec. 630; Parsons v. Railroad,
But the propriety of the instruction in other respects is denied. If unsound principles of law have been incorporated in the instruction by the defendant, it was not error in the circuit court to refuse it or to fail to give a correct instruction of its own motion. In civil cases it is not the duty of the trial court to instruct of its own motion if the parties neglect to ask proper instructions. Unlike the Browning case, supra, or the Tetherow case,
The statute of New York (Laws 1849, p. 388) provided that “the jury may give such damages as they shall deem a fair and just compensation not exceeding $5,000, with reference to the pecuniary injuries resulting from such death to the wife and next of kin of such deceased person." In Tilley v. Railroad,
Now our statute, section 4427, Revised Statutes 1889, gives “siich damages not exceeding five thousand dollars as they (the jury) may deem fair and just with reference to the necessary injury resulting from such death, . . . having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.”
It is now the settled rule of decision in this court that where there is neither allegation of malice, wickedness or wantonness in the tort complained of, nor evidence of any aggravating circumstances, it is improper in the instruction to include the words “having due regard to the mitigating or aggravating circumstances. ’ ’ Those words are only proper in a ease in which punitive damages or smart money may be allowed. Stoher v. Railroad,
On the other hand, it has been uniformily held that exemplary damages may be allowed under this statute within the limits of the penalty affixed. Nichols v. Winfrey,
The most casual reading will show that it excludes all idea of prospective damages of a pecuniary nature and limits the widow’s recovery to the immediate damages suffered or at most to those up to the trial only. That such an instruction is incorrect even under a statute like that of New York which limits the damages to those pecuniary only in express terms, is apparent from the Tilley case. Judge Denio held it. looked to prospective damages, and there is nothing in the phraseology of our act which restricts the right of recovery to the present actual loss of money to the plaintiff. The word “necessary injury” in our statute is broad enough to include any damages which may be estimated according to a pecuniary standard, whether present, prospective or proximate. While it may not be feasible for the trial courts to define with exactness the rule of damages applicable to the loss of a husband or wife, to the jury, with a knowledge of the character, habits of deceased, station in life, business, etc.; much is necessarily left in arriving at a just conclusion.
While defendant was justly entitled to an instruction warning the jury that they were not authorized to award plaintiff any damages for the pain and anguish she suffered by the tragic death of her husband, it was not entitled to restrict her compensation to the mere present money loss she had suffered, and hence its instruction was erroneous and no error was committed in refusing it.
In Parsons v. Railroad,
Having carefully examined every assignment of error presented by defendant, we find no reversible error in the record and hence affirm the judgment of the circuit court.