O'Hara v. Lamb Construction Co.

The argument advanced by counsel in support of this assignment of error is predicated upon evidence, adduced by defendant upon this trial, to the effect that prior to O'Hara's injury, either on the day of the casualty or on the previous day, defendant's manager sent down a note to O'Hara, while the latter was upon this ledge in the quarry, telling him that there was "a bad spot in the rope" and to "keep the men out from under the box." And defendant's manager says that he had also told O'Hara orally, before the latter entered the quarry on the morning of the day upon which he was injured, that the rope had a bad spot in it.

Taking this evidence at its full face value, for our present purposes, we think that it cannot be said, as a matter of law, that under the circumstances a reasonably prudent man would not have continued in the work in which O'Hara was engaged, so far as the evidence discloses the manner in which he performed such work and his movements at the time of his injury. No witness who testified actually saw the box fall upon O'Hara, or saw his position or movements immediately prior thereto. The injuries which he sustained, which proved fatal, were to his legs, both of which were crushed. It appears that to draw the box to the ledge, O'Hara used a rope, one end of which was fastened to the chain upon the box at the bottom of the quarry; but that when the box had been brought to the ledge he "steadied" it with his hands. It was not necessary or customary for one to stand directly under the box to thus "steady" it, but to stand at the side thereof, near enough to reach it. Apparently O'Hara did not place himself directly beneath the box; though in some manner not explained by the evidence. (whether by the toppling of the box to one side, in falling, due to the nature of its load, or otherwise) it appears that he was thrown down and that his legs were caught beneath the box and crushed. Evidently defendant's manager did not anticipate danger to O'Hara in performing this work upon the ledge; though by his note he cautioned the latter,

O'Hara v. Lamb Construction Co.

who was a foreman, to see that the men below were kept from under the box. In the state of the record before us, we cannot say that O'Hara was negligent, as a matter of law, in attempting to perform this work at all under the circumstances. And in the absence of any evidence tending to show that he unnecessarily exposed himself to danger by the position which he assumed or his movements in performing the work, we think that the question of his negligence was one to be referred to the jury.

III.

The first instruction given in plaintiff's behalf is assailed upon the ground that it fails to require a finding on the part of the jury that plaintiff was damaged as a result of the death of her husband. As said above, we think that the law will imply a pecuniary loss to plaintiff by reason of the negligent killing of her husband, and that consequently this instruction does not omit any element necessary to be found by the jury in order to entitle plaintiff to a verdict in some amount; and an instruction was given on the measure of damages, to be noticed later, under which the jury were required to find that plaintiff suffered a pecuniary loss, and the extent thereof, in order to return a verdict for substantial damages. We consequently rule this assignment of error against the appellant.

IV.

Plaintiff's instruction No. 2 is challenged. This instruction begins by telling the jury that "even though Michael O'Hara did know that the steel wire hoisting rope furnished by the defendant was old, weak and worn out, still the plaintiff is entitled to recover," etc. The point made against the instruction is that it assumes that the cable in question was "old, weak and worn out." Whether the wording of this portion of the instruction is such as to bring it under the ban of the rule invoked by appellant, it is scarcely necessary

O'Hara v. Lamb Construction Co.

for us to say. The fact that the cable was in bad condition, or "old, weak and worn out," was not really a matter in controversy at all, though plaintiff's main instruction required the jury to so find. There was no dispute whatsoever at the trial as to this. Indeed the testimony of defendant's manager constitutes a full and complete admission as to the defective condition of the cable and the witness's prior knowledge thereof. Under the circumstances the error, if any, in the wording of this instruction cannot be said to have been prejudicial. [See Hartpence v. Rogers, 143 Mo. 623, loc. cit. 636, 45 S. W. 650; Bell v. United Rys. Co., 183 Mo. App. 334, 166 S. W. 1100; Gillogly v. Dunham, 187 Mo. App. 551, loc. cit 559, 174 S. W. 118; Sotebier v. Transit Co., 203 Mo. 702, loc. cit. 714, 102 S. W. 651; Owens v. Fanning, 205 S. W. 69.]

V.

Plaintiff's instruction on the measure of damages is also assailed. This instruction is as follows:

"The Court instructs the jury that if they find for the plaintiff they will give her a verdict for such damages, not exceeding ten thousand dollars ($10,000), as you may from the evidence deem a fair and just compensation to the plaintiff for the pecuniary loss, if any, resulting to plaintiff by the death of her husband, Michael O'Hara."

The attack upon this instruction upon the ground that there is "no pleading upon which to base an instruction with reference to pecuniary loss," is disposed of by what we have said above. Likewise the argument that there was no evidence that plaintiff sustained any pecuniary loss, since there is no evidence that the deceased contributed to her support, is, in our judgment, without merit. The presumption is to be indulged, prima facie at least, that the deceased did that which it was his legal duty to do; and, as said above, the law will imply pecuniary loss arising by reason of the relationship of the parties. And the evidence in the case shows the earnings of the deceased, to-wit, $3.50 per

Green v. United Rys. Co. of St. Louis.

day, and that he was a sober, steady and reliable workman, having been long in defendant's employ.

Appellant further contends that this instruction is too general and furnishes no guide to the jury for the proper assessment of damages under the statute. As to this it need only be said that we regard the instruction as good in its general scope. And such being the case, if the defendant desired that the jury be more explicitly directed in the matter of determining the amount which could be properly allowed plaintiff, it was defendant's duty to ask a limiting or qualifying instruction. [See Browning v. Railroad, 124 Mo. 55, 27 S. W. 644; King v. City of St. Louis, 250 Mo. 501, 157 S. W. 498; Nelson v. United Rys. Co., 176 Mo. App. 423, 158 S. W. 446; State ex rel. United Rys. Co., v. Reynolds, 257 Mo. 19, 165 S. W. 729.]

VI.

The argument that the verdict is grossly excessive, warranting interference at our hands, does not impress

us.

A point is made regarding alleged improper remarks of plaintiff's counsel in argument to the jury; but it is. unnecessary to dwell upon this since we regard it as quite clear that the remarks in question could not be denominated prejudicial, warranting a reversal.

We perceive no reversible error in the record, and it follows that the judgment should be affirmed. It is so ordered. Reynolds, P. J., and Becker, J., concur.

CHARLES A. GREEN, Respondent, v. UNITED RAILWAYS COMPANY OF ST. LOUIS, Appellant.

St. Louis Court of Appeals. Opinion Filed November 6, 1918.

1. STREET RAILROADS: Carriage of Passengers: Duty to Pay Fare: Tender of Fare Must be Unconditional. A person boarding a street car has no right to remain upon the car without paying his fare or unconditionally tendering it.

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Green v. United Rys. Co. of St. Louis.

: Refusal to Pay Fare: Ejectment from Car: Right to Use Necessary Force. And when the fare is not paid or unconditionally tendered, such person has no cause of action as for a wrongful ejection from the car, provided no more force than was necessary was used in ejecting him, for the reason that he did not, on his part, accept the contract of carriage tendered him and perform the obligation resting upon him as the other party thereto. : Payment of Fare: Right to Transfer. However, had he paid his fare and had the conductor of the street car then refused to issue the transfer he would have had his remedy. -: Refusal to Pay Fare: Duty to Leave Car. Bu he chose not to pay his fare, under the circumstances, then it was his duty to leave the car at the first opportunity, i. e., when the car had been stopped at a safe place for him to alight, and seek other means of redress if he so desired; he was not entitled to continue to ride upon the street car without paying his fare. : Duty to Pay Fare: Conditional Tender: Ejectment from Car. Where a person on a street car conditioned his tender of fare on the issuance of a transfer to which he was entitled, the fact that the conductor refused to issue the transfer in any event, so that unconditional tender of fare would have been unavailing, as to obtaining the transfer, did not prevent the street railroad from justifying his ejection for failure to pay fare or unconditionally tender the same.

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: Ejectment from Car: Unnecessary Force. In such case though the street railroad was entitled to eject plaintiff who refused to pay fare or tender it unconditionally, if unnecessary force was used whereby plaintiff was injured, the street railroad is liable to respond in damages therefor.

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-: Question for the Jury. In an action against a street railroad for wrongful ejection from a car, though the conductor had the right to eject because plaintiff did not pay fare or unconditionally tender it, plaintiff was entitled to go to jury on the issue that unnecessary force was used.

Ejection from Car: Cannot Recover for Humiliation. Where plaintiff invited ejection from a street car in order to test his right to obtain a transfer, no recovery may be had for humiliation or disgrace by reason of being ejected in the presence of passengers or others.

-: Unnecessary Force: Punitive Damages. Plaintiff, who invited ejection from the street car which he had boarded to test rights in the matter of transfers, if ejected with unnecessary force on refusing to pay fare or make an unconditional tender thereof, is entitled to recover compensatory damages for his actual physical injuries, and likewise punitive damages in the discretion of the jury.