142 Mo. App. 248 | Mo. Ct. App. | 1910
This action is prosecuted by a widow to recover damages for the death of her husband which, she alleges, was caused by the negligence of defendant. The cause is here on appeal from a judg
The husband of plaintiff, Robert D. Ogan, was killed April 28, 1907, near Lexington. He was in the service of defendant at the time and was a member of a wrecking crew of which his brother Andrew J. Ogan was foreman. An engine and some coal cars had been derailed on a spur track leading to a mine, and the wrecking crew and train were engaged in replacing them on the track. The engine, had been replaced and removed from the scene, and the efforts of the crew then were directed to one of the coal cars which, at the time of its derailment, was loaded with coal. The derrick car was run alongside and anchored to the track to hold it in place. The derrick picked np the coal car, swung it across the track to dump out the load and then was proceeding to set it on the track when a jar occasioned by the striking of the suspended car against the track or embankment, caused one of the boom guy chains to break. The boom, released from the position in which the chain held it, swung around and upset the derrick car, despite its anchorage. Ogan, whose station was on the car, was caught in the fall and pinned under the car. The derrick, built on a flat car, consisted in part of a mast about ten feet high, a boom thirty-six feet long, a hoisting cable of rope operated by power from the locomotive, and two guy chains employed to hold the boom in position. Each of these chains was twenty-three feet long and was composed of wrought iron links three inches long and seven-eighths of an inch thick. The chain which .broke had been in use about four years and had been constantly exposed to the weather. One of the links snapped in two, whizzed off and became lost. The load being lifted was not heavy for the derrick, and we do not agree with defendant in the view that the jar and consequent strain on the derrick produced by the bumping of the load against the track was unusual. The evidence shows
Negligence is pleaded in the petition as íoUoavs: “That said chain which broke and caused said car and derrick to turn over was old and defective, and the defect therein was knoAvn to defendant or could have been known to it by the exercise of reasonable care in time to- have remedied the same before the accident.”
First, we shall dispose of the contention of defendant that the jury should have been peremptorily instructed to return a verdict in its favor. It is hardly necessary to repeat the familiar rules that a master is not the insurer of the safety of his servant, and is only required to exercise reasonable care to furnish his servant a reasonably safe place in Avhich to work, and with reasonably safe tools and appliances. This duty, however, is a continuing duty and its demands are to be measured largely by the character of the work being done. Where the natural risks and dangers are great, ordinary care requires greater vigilance on the part of the master than is required where the- natural risks and dangers are slight.
The pertinent rule thus is stated in Labatt on Master & Servant, vol. 1, sec. 159: “In view of the natural tendency of an inorganic instrumentality to become less and less safe the longer it is- used, a court will not set aside a verdict for the servant which is based upon the theory that the failure to inspect it was culpable, where the evidence shows that it had been a part of the master’s plant for such a period that, taking into account the nature of the materials of which it was composed, the functions it was performing, and the various influences to which it was exposed by climatic changes or physical forces, it is not an unreasonable inference that a prudent man would have examined it for the purpose of ascertaining what its actual condition was.”
The demurrer to the evidence was properly overruled.
Point is made that the court erred in permitting plaintiff to testify to the number and the ages of her minor children. The Supreme Court has ruled this point adversely to the contention of defendant. [Tethe
. Other objections to rulings on evidence have been examined and found to be not well grounded.
The instructions given at the request of plaintiff were as follows: “The court instructs the jury that if you believe from the evidence that on or about the 28th day of April, 1907, the husband of plaintiff was in the employ of defendant on a wrecking car as boom man on a derrick and that while in the discharge of his duties as such employee, one of the guy chains of said derrick broke by reason of its being old and defective, if you so find, causing said car to turn over and that plaintiff’s husband, without carelessness or negligence on his part which contributed directly thereto, was caught beneath said car and killed, and if you further find that said chain at said time was old and defective and that such breaking was caused because said chain was old and defective and that such defective and unsafe condition of said chain was unknown to plaintiff’s husband and could not have been known to him by ordinary care or caution on his part, but was known to defendant or might have been known to defendant by the exercise of reasonable caution and diligence on the part of defendant in time to have remedied the same before said accident then your verdict should be for the plaintiff.”
“(2) The court instructs the jury that if you find for the plaintiff you will assess her damages at such sum 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.”
The first instruction is criticised on the. ground that it assumes the chain in question was unsafe. We do not so understand the instruction and find it to be free from prejudicial error.
It is argued that since the statute provides, “in
The defendant did not ask an instruction on the measure of damages, and following repeated decisions of the Supreme Court and the. Courts of Appeals, we must hold the instruction under consideration to be unobjectionable. [Tetherow v. Railway, supra; Browning v. Railway, 124 Mo. 55; Barth v. Railway, 142 Mo. 535; Boettger v. Iron Co., 124 Mo. 87; Geismann v. Electric Co., 173 Mo. 654; Parman v. Kansas City, 105 Mo. App. 691; Gamache v. Metal Co., 116 Mo. App. 596.]
The case was tried without error and accordingly the judgment is affirmed.