77 Mo. App. 108 | Mo. Ct. App. | 1898
This is an action by the minor children of John Fischer, deceased, by their next friend in default of a suit by the widow, tq recover damages for the death of their father occasioned by the explosion of a tank used by defendant for rendering fat, lard, offal and the like, which the petition alleges had become dangerous with the knowledge of defendant, wherefore it exploded and killed the said John-Fischer while he was engaged, near said tank, in his duties as an employee of defendant. The answer admitted the incorporation of defendant, but denied every other allegation in the petition. On the trial there was evidence tending to prove the allegations of the petition. The jury returned a verdict for plaintiffs for $2,500, from which defendant duly appealed.
It is next complained that the court erred in its instruction given for plaintiffs, upon the measure of damages. The instruction in question is to wit: “If you find for the plaintiffs, you will assess their damages at such a sum not exceeding $5,000, as you find from the evidence will compensate plaintiffs for the pecuniary loss sustained by the death of their father; and to arrive at the amount of damages you may consider ail the circumstances developed by the testimony, the ages of plaintiffs, the age of the deceased, the amount of his earnings, and such other facts in evidence as tend to enable you to ascertain such loss.” Conceding that there was some want of precision and definiteness in the language of this instruction, and that if it had been left alone the exact elements of the damages recoverable might not have been apparent to the jury, yet no difficulty could have been experienced when they read the clear, explicit and correct statement of the damages recoverable in this action contained in the qualifying instructions given at the request of the defendant. The rule is too well settled for a citation of authorities, that such instructions must be taken as a whole and read together, and when so considered, if there is no reasonable ground to apprehend that the jury were misled, the judgment will not be reversed for a mere generality in one which is clearly and distinctly corrected in another.
Finding no reversible error, the judgment is affirmed.