Fischer v. Edward Heitzeberg Packing & Provision Co.

Bond, J. 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. [113] EmonyTquaiifications of expert. [112] The first error assigned by appellant relates to the reception over its objection, of the testimony of Charles Parkinson, as to the safety and unsafety of the grease tank, whose explosion caused the accident sued for. [113] The question was put to the witness as an engineer, and he was required to give an opinion as such, whether or not it (the tank or machine) was safe or unsafe, for the purposes for which it was used. In the light of the previous testimony of the witness, that he was a mechanical engineer of seven years experience — four and one half of which were spent in the employ of the defendant, and that it was a part of his duty to examine the tank in question and others provided by defendant; that he did examine the first shortly before the accident and found it to be defective; that he thinks it was only one eighth of an inch thick; that he could tell whether it was thin or not by a stroke on its sides; that when he struck the sides of the one it caved in, which would not happen in the case of one that was sound — we can not see how any valid objection could be made to the expression of opinion by the witness as to the safe or unsafe condition of the machine. In order to qualify a witness to speak as an expert it is only necessary that ., ,. . «tp* i . n the matter inquired ot involves special knowledge or skill, and that he should satisfy the court that he is possessed of these qualities, either by actual experience or study. Rogers on Expert Testimony, sec. 19, p. 45; Helfenstein v. Medart, 136 Mo. loc. cit. 615; Lawson on Expert Evidence, p. 70, rule 22. Camp Point Mfg. Co. v. Ballou, 71 Ill. 417. Such evidence is merely advisory. Hull v. St. Louis, Trustee, 138 Mo. loc. cit. 618. Its purpose is to throw light upon questions which the witness is better able to solve than a jury of ordinary men. Rogers on Expert Testimony, p. 33, sec. 12. It is self-evident that such a jury could not in the case at bar, upon a mere description of the machine at the time of the explosion, form as correct a judgment of its likelihood to burst as an experienced [114] mechanical engineer. The point under review is therefore ruled against appellant. 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. [115] Fev“eTce?rvant: [114] It is next insisted that instruction number 1 for' plaintiffs by a misnomer called the father of the plaintiffs Charles Fischer, instead of referring to him by his real name of John Fischer. There is no merit in the contention that this constituted reversible error. The entire record shows that the correct name of the [115] deceased was John Fischer. Such a mere. clerical inadvertence could not have misled or confused the jury. Complaint is also made of the elision from one of the instructions given on behalf of the defendant of the hypothesis that the deceased met his death by reason of the act of a fellow workman. We are unable to see any warrant in the testimony for the submission of such an issue. As there was no substantial evidence that the explosion was caused by the act of a fellow servant, the court was warranted in refusing to submit that issue to the jury. [116] STs=RJcon- [117] Ac“stM™G cir" [115] The next instruction complained of, is to wit: “The court instructs the jury that if their finding should be for the plaintiffs, they can not, by their verdict allow to them more than the pecuniary damages necessarily resulting to said plaintiffs from the 'death of their father, to wit: such an amount, if any, as the jury may believe the deceased could have, out of his probable earning, devoted to the maintenance, training and education of his said children until the time of their majority, and no longer; and in assessing such damages, if any, the jury must likewise have regard to any aggravating or mitigating circumstances attending the alleged wrongful act, neglect or default of defendant, whereby Fischer’s death was caused, if any such you find from the evidence.” This instruction, except the italicized words “aggravating or,” was requested by appellant. The objection now made rests upon the insertion of these words by the court. The present action arises under the second section of our damage act, which, and the damages recoverable thereunder, are set forth in the present revision, to wit: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to [116] maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.” “All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner as provided in section 4425, and in every such action the jury may give such damages, not exceeding five thousand dollars, as they may deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue, and also having regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or default.” (R. S. 1889, secs. 4426 and 4427). From an inspection of the foregoing act it will be seen that the last clause of the last section expressly provides that in estimating the damages the jury may have ‘ ‘regard to the mitigating or aggravating circumstances attending such wrongful act, neglect or defaultIf, therefore, there is in this record any fact or legislative inference therefrom which tends to show a circumstance of aggravation in the injury to plaintiff’s father, it was the clear duty of the court, under the above statute, to permit the jury to pass upon such evidence. The testimony of Parkinson tended to prove that the representative of defendant was told of the dangerous character of the machine and advised that unless it was remedied there would be an explosion, resulting in the death of some of the employees; that notwithstanding such warning, the person to whom this report was made, replied that “it would have to last until the fall.” In other words, with actual knowledge of the danger of its use he [117] decided to expose the workmen to such danger until the fall of the year. This evidence warranted the trial court in following the words of the statute in the instruction complained of. This was all that was done when the words “aggravating or” were inserted in defendant’s instruction. Haehl v. Railway, 119 Mo. 325-342. Finding no reversible error, the judgment is affirmed. All concur.