153 Mo. App. 1 | Mo. Ct. App. | 1910
(after stating the facts). — 1. Appellant first contends that there was no evidence to sustain the verdict. There was ample evidence to justify the jury in finding that the defendant’s duty of guarding the excavation and maintaining warning lights was broken. But it is insisted the evidence failed to show any causal relation between the negligence thus properly found and the injury which- resulted in the
Defendant insists that the evidence, justifies the inference that the deceased walked through the build
2. Defendant. insists' that the instructions were erroneous in respect to the measure of damages. Plaintiff’s first instruction authorized the jury “to assess her damages at such sum as the jury believes from the
If defendant desired a more specific instruction on the measure of damages, it should have asked for it in proper form. [Simpson v. Ball, 129 S. W. 1017.] In this connection defendant suggests that it did ask, and the court refused, two instructions limiting the verdict to nominal damages, and contends such refusal was ei’ror. We will pass upon said refused instructions in their proper place in this opinion. Suffice to say here, that if unsound principles of law have been incorporated in them by the defendant it was not error in
Defendant furthermore suggests that in the cases approving general instructions, the evidence contained sufficient elements to enable the jury, without conjecture, to estimate the damages, while the evidence in the case at bar contained no such elements. That suggestion will be met in our discussion of the second instruction for nominal damages offered by defendant.
“The burden is upon the plaintiff to establish the amount of her pecuniary damages resulting from the death of F. H. G. Voelker, and you are instructed that if the evidence fails to show the earning capacity of the deceased, his habits of industry or sobriety, his treatment of his family, or whether he ever contributed anything to the support of his family, then you will assess the damages, if you find in favor of the plaintiff, at no more than a nominal amount.”
The court would have erred had it given such an instruction. It was not necessary for the plaintiff to prove what the earnings of the deceased were • to avoid being limited to nominal damages. [Haines v. Pearson, 107 Mo. App. 481, 485, 81 S. W. 645: Stoher v. Railroad, 91 Mo. 509, 518, 4 S. W. 389; Sipple v. Gas Light Co., 125 Mo. App. 81, 95, 102 S. W. 608.] Aside from his society, which she is not entitled to recover for, (Knight v. Lead & Zinc Co., 75 Mo. App. 541, 550), and aside from his support, the plaintiff had other property rights in the life of her husband. The personal attention of the husband to insure her comfort and the many ways he might make himself helpful and useful to her, should be taken into consideration in measuring her loss. For this loss she was entitled to substantial damages without any showing as to Ms
4. The defendant next complains that the court refused to instruct the jury that under the. evidence adduced the damages could not exceed a nominal amount; also that the verdict is excessive. These contentions rest upon the theory that the evidence does not disclose any basis for the jury to build upon in estimating plaintiff’s damages. We cannot agree with defendant. Its theory is not'borne out by the fact. Plaintiff might recover for the loss of the personal attention, helpfulness and usefulness of her husband, and for having to assume the burden of a father’s care in the education, maintenance and support of the minor children, without showing his fortune, earnings or capacity to earn, or his habits or treatment of his family. [Tetherow v. Railway Co., 98 Mo. 74, 84, 11 S. W. 310; Haines v. Pearson, 107 Mo. App. 481, 485, 81 S. W. 645; Sipple v. Gas Light Co., 125 Mo. App. 81, 95, 102 S. W. 608; Brunke v. Telephone Co., 112 Mo. App. 623, 628, 87 S. W. 84.] Nor was it necessary to show with any degree of exactness, his age or state of health.
6. Likewise we do not find any error of which defendant can complain, in the fact that seven other persons and corporations were made parties to this action and that at the close of plaintiff’s evidence the cause was dismissed as to them. [Moudy v. St. Louis Dressed Beef Co., — Mo. App. —, 130 S. W. 476, 481.]
7. Defendant assigns as error the refusal of the court to instruct the jury that “if you find from the evidence introduced by plaintiff that the deceased F. H. G. Voelker, at the time he so fell into said cellar, was intoxicated, and that his intoxication actually contributed to his injury and death, then you are instructed that plaintiff is not entitled to recover, and your verdict should be for the defendant.” It is sufficient to say of this assignment that the salient features of the above quotation are embodied in the instruction which the court gave of its own motion and which we next consider. [Beatty v. Clarkson, 110 Mo. App. 1, 6, 83 S. W. 1033.]
8. Lastly defendant assigns as error that the court gave the following instruction of its own motion:
“The court further instructs the jury that if you find and believe from all the evidence that the defendant, F. H. G. Voelker, directly contributed to his injury and death by his own negligence or want of ordinary care at the time and place of falling into the excavation in question, then plaintiff cannot recover in this case, and your verdict should be for the defendant; and in this connection you are further instructed that the*15 law does not permit anyone to voluntarily incapacitate himself from the ability to exercise ordinary care for his own safety, and then to recover for an injury to which his own want of care, so caused, had directly contributed, nor can the widow of a man, injured while so incapacitated and through a want of care so caused, recover for his death brought about by such injury. If the jury do find from the evidence in this cause that said deceased fell into the excavation in question whi-le in a state of intoxication, and that such intoxication directly contributed to the happening of such injury, and that such injury would not have occurred hut for such intoxication, then your verdict will be for the defendant.” (Italies ours.)
Defendant insists that this, instruction was erroneous in the italicized part thereof. We must also rule this assignment against the defendant. The instruction properly declares the law. [Hicks v. Mo. Pac. Ry. Co., 46 Mo. App. 304, 312; Pinnell v. St. L. A. & T. Ry. Co., 49 Mo. App. 170, 172; Zumau.lt v. Railroads, 175 Mo. 288, 311, 74 S. W. 1015; Huss v. Bakery Co., 210 Mo. 44, 52, 108 S. W. 63.] In the last cited case an instruction was approved which, in the aspect mentioned, was substantially like the one under discussion.
We have considered all questions i*aised by this record, and it follows from what we have said, that the cause was fairly tried and submitted to the jury, and the judgment entered upon the verdict should be and is affirmed.