Coleman v. Himmelberger-Harrison Land & Lumber Co.

105 Mo. App. 254 | Mo. Ct. App. | 1904

BLAND, P. J.

(after stating the facts as above).

—1. The death of plaintiffs’ son alone did not constitute a cause of action against the defendant. His death, if caused by the negligence of defendant, would constitute a cause of action. The two things must concur and co-exist death, and death caused by the negligence of the defendant, to entitle plaintiffs to recover. The cause of action, therefore, was the death caused by defendant’s negligence. In both petitions the same death is relied on as one of the elements going to constitute the cause of action, and the negligence of defendant as causing the death is the other element. The only difference in the two petitions is in the allegations .of the facts going to show the negligence of the defendant. There was, therefore, neither the substitution of another death or a new cause of death in the second petition. No change was made in the entire scope and purpose of the action by the amendment, and we think the amendment was permissible under our code system of practice. Ross v. Mineral Land Co., 162 Mo. 317; Lincoln v. Railway, 75 Mo. 27; Stewart & Jackson v. Van Horne, 91 Mo. App. 647; Bernard, Adm’r v. Mott, 89 Mo. App. 403.

2. It is not- claimed by plaintiffs that the defendant is a railroad corporation owning or operating a railroad within the meaning of section 2873, R. S. 1899, and liable under that section for damages occasioned to one servant by the negligence of his fellow-servant. It is admitted by the defendant that the deceased was engaged in a hazardous employment at the time he was injured and that he was put to that work by Mobley, his boss. Plaintiff’s evidence is that the deceased was under age; that he was hired with his father’s consent to work as a section hand on the road under Mobley, but that Mobley was expressly forbidden by the father to put the boy to work on a train or in the mill. If this evidence be true, then the defendant, by its agent Mobley, was guilty of putting an inexperienced boy at a dangerous employment against the will and contrary to the express orders of his father, and there was no valid contract of hire for this particular work as between the plaintiffs and the defendant, and the relation of master and servant between the boy and the defendant was not created. In such circumstances the defendant would be liable for the death of the boy, unless it should be shown that his injury and death were the result of his own willful act. His negligence would not excuse the willful misconduct of the defendant in placing him in a place of danger against the express directions of his father. The fourth instruction given for plaintiffs substantially so declares the law and we think it was appropriate under this phase of the evidence. To meet this phase of the evidence, the defendant offered evidence tending to show that the father had emancipated the boy prior to the time he was hired by the defendant but the court excluded this evidence. We think this was error.

3. The first instruction given for the plaintiffs made it amenable to the penalty of section 1125, R. S. 1899, visited upon all companies and corporations operating any railroad that have failed to block all switches, frogs and guard rails on the road in all yards, divisional and terminal stations, and where trains are made up, as required by section 1123, E. S. 1899. The evidence shows that the defendant had a section boss and a gang of section men working under him on the part of the road used by the defendant company. It is therefore reasonably inferable that its duty was to keep that portion of the road in a reasonably safe condition and to block frogs, etc., as required by section 1123, supra. But the instruction is broader than the statute. Whether or not the frog, where it is claimed Coleman got his foot caught, was within a yard or at a divisional and terminal station is not made clear by the abstract of the evidence furnished us; and if it was not admitted by the defendant that the frog was at one of these places, then it should have been submitted to the jury to find whether or not it was within the territory where the statute requires the company operating the road to block switches and frogs. This instruction also ignores another phase of the case. The uncontroverted evidence is that the boy in the performance of the duty he undertook (to throw the switch) was not required to go on the side of the track where the frog was situated ; that the frog was forty-six feet west of the switch block and there was no necessity for him to go near the frog, therefore, if he did go to the frog and get his foot fastened in it, he did not do so in the performance of any duty required of him by the defendant. The act was of his own volition, not in the discharge of any duty enjoined on him by the defendant and the defendant is not liable for the resulting injury, unless intervening negligence is shown, on the part of the defendant, that directly contributed to the injury and resulting death, provided the boy sustained the relation of servant to defendant.

4. The second instruction for plaintiff is erroneous. It is not correct to say that the law does not exact of one who is a minor, that care and caution that it demands of an adult. A child of very tender years is not chargeable with contributory negligence under any circumstances. A child not of tender years, say seven or eight years of age, is bound to use such care as children of his age, capacity and intelligence are capable of exercising. Perkin v. McMahon, 27 L. R. A. 206; Id. 154 Ill. 141. The care a minor is bound to use is that care that persons of his age, capacity and intelligence are capable of using in like circumstances. People of New York v. Andrews, 6 L. R. A. 128; Consolidated Traction Co. v. Scott, 33 L. R. A. 122. There is no arbitrary rule fixing the age when a youth may be declared wholly capáble of understanding and avoiding danger. Barney v. Railway, 126 Mo. 372. Yet it seems to us that a youth eighteen years of age, of ordinary intelligence and experience, should show some incapacity in addition to his minority to warrant a court in directing, as a matter of law, that he was not required to use the same care as an adult.

5. It is contended by defendant that the instruction in respect to the measure of damages is erroneous. The assessment of the damages was left to the discretion of the jury. They were authorized to assess such damages as in their judgment would compensate plaintiffs for the loss of their son, not to exceed the sum of five thousand dollars. No rule by which to measure the damages is contained in this instruction. The action falls within the second section of the damage act (section 2865, R. S. 1899). The next succeeding section provides that the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just with respect to the “necessary injury” resulting from such death to the surviving party entitled to sue; also having reference to the mitigating or aggravating circumstances attending the wrongful act, neglect or default causing the death.

In Rains v. Railway, 71 Mo. 164, it is said: “The necessary injury’ resulting to a parent from the negligent killing of his minor child within the meaning of the third section of the damage act (E. S. 1899, sec. 2866), consists in the loss of services of the deceased during minority, the cost of nursing, surgical and medical attendance and appropriate funeral expenses.” And if there were any aggravating circumstances attending thereon resulting in the death they should be pointed out to the jury and the jury should be restricted to those pointed out in assessing the damages. In Leahy v. Davis, 121 Mo. 227, the rule for the measurement of actual damages announced in the Eains case was approved and it was held that circumstance in aggravation of the wrong .resulting in the death were elements authorizing the assessment of punitive damages. The rule was again approved in Stumbo v. Duluth Zinc Co., 75 S. W. 185 (Kansas City Court of Appeals). Tested by these authorities the instruction is erroneous in respect to the measure of damages.

For errors herein noted the judgment is reversed and the cause remanded.

Reyburn and Goode, JJ., concur.