249 S.W. 141 | Mo. Ct. App. | 1923
This case is here on second appeal. The former case is reported in
Appellant on this appeal renews its attack on the case made by plaintiff's evidence, and again urges this court to hold that the father of plaintiff was guilty of such contributory negligence as would in law bar a recovery. We discussed that feature in the former opinion and are not disposed to make any change in the ruling thereon. As we view it, it is a question for a jury to determine whether under the circumstances of this case the father of plaintiff was in fact guilty of contributory negligence, and they having decided that in plaintiff's favor puts an end to it so far as this appeal is concerned.
This case was brought under the compensatory death statute, and the negligence charged and submitted was that the defendant had negligently maintained a railroad crossing, and the evidence is overwhelmingly convincing that the defendant was negligent in the way this crossing was maintained, and that it was such negligence that was the proximate cause of this injury.
One of the contentions made by appellant is that the instruction asked by the plaintiff contained error in that it placed a greater duty upon defendant in regard to railroad crossings than is required by the statute, the section of the statute referred to being 9944, Revised Statutes 1919, which requires that there shall be constructed and maintained good and sufficient crossings, which requirement is then followed by a description of the manner of building such crossings. The instruction complained of fixed the standard of crossings as one *415 which could be crossed over without "hindrance and with safety." This same instruction required the jury to find that the defendant had torn out this crossing and had failed to replace it by placing the planks and timbers which are required by statute, and the filling of ballast between railroad ties and the rails. The evidence clearly shows that this was the condition of the crossing at the time of the accident. While the clause complained of should not have been in this instruction, it certainly did not mislead the jury in believing a higher duty was placed upon defendant than that required by the statute, because the evidence concerning this went clearly to show the things lacking which were required by statute. We do not think the error of placing it in the instruction materially affected the verdict. This objection is, therefore, overruled.
It is next contended that the verdict is excessive. The evidence shows that the plaintiff had from six to seven years to live before he reached his majority; that his father was sixty years of age. There is no showing that the father gave any particular amount to his son whom he was rearing in his home. The evidence, however, does show that he was a farmer, living on a rented farm on which there were fifty acres in cultivation; that he had no other trade or occupation and depended upon this farm for a living for the family. To allow him $5000 seems to us to be an amount which the parent in this case could not reasonably have been expected to furnish. To have given as much as $500 a year to this boy for board and lodging, sufficient clothing and some education would have required great sacrifice on the part of the father in the circumstances shown. We, therefore, must insist that in order that this verdict may stand and fall within an amount that could have been reasonably expected, the plaintiff must remit the sum of $2000.
Appellant further claims that the jury showed passion and prejudice and should have been discharged because of the fact that after they had deliberated in the *416 jury room on this case, they send word to the judge stating they wanted some further information. On being brought into the court room, in open court, they asked the trial judge whether the mother of this plaintiff, the wife of the deceased, had recovered any amount from the railroad company on account of the death of the father and husband. The court very properly informed them that was not a matter for their consideration. We think that the court could have done nothing else, and his action was proper, and that probably accounts for a verdict which goes beyond that which could be reasonably given under the evidence. We, however, have corrected that by requiring a remittitur, as heretofore suggested.
We now come to appellant's principal contention in this case, and that is that no verdict could be rendered against this defendant because at the time the injury was sustained the train was being operated by the United States government under the President's war time proclamation, and appellant raises this question also in its answer and by plea in abatement. The court ruled against the appellant on both grounds. The fact of the case are that the plaintiff first filed this suit and defendant made its first answer thereto at the March Term of the Pulaski County Circuit Court, 1921, in which answer it admitted the ownership of the railroad and operation thereof. The judgment of $5000 was rendered in plaintiff's favor, an appeal taken to this court, and the judgment reversed. During all of this time no question had ever been raised in any way suggesting that the wrong party had been sued, and, as stated, the answer admitted the ownership and operation of this train which injured plaintiff's father. After the case was reversed, it then came on for trial again in March, 1922, and on the day of trial the defendant then for the first time filed its plea in abatement raising the question of the operation of the train by the Director General of Railroads and not by the defendant and sought to have the case dismissed, which plea in abatement was overruled, and then an *417 amended answer was filed which for the first time in an answer disclosed this fact.
It is insisted by the appellant that the trial court and this court must take judicial notice that the train which was operated on the 20th day of August, 1919, was under the control of the Director General of Railroads under the proclamation of the President of the United States. We agree that appellant is correct in this contention, and there are numerous authorities sustaining it. We are further convinced, under the cases cited, that no judgment can be rendered in this case for this injury against the St. Louis-San Francisco Railway Company, named in plaintiff's petition. This, however, under the authority of Preston v. Union Pacific Railroad Co.,
