Gamache ex rel. St. Louis Union Trust Co. v. Johnston Tin Foil & Metal Co.

GOODE, J. The plaintiff, Catherine Gamache, a child thirteen years old, snes by her curator. She is a daughter of Alphonse Gamache, who was killed in the defendant's factory bn August 4, 1904. The factory is in St. Louis and among the articles manufactured is tinfoil. The plates of tinfoil were made by running ingots of metal some ten inches long between heavy revolving rollers. The rollers were turned by a steam engine to which was attached an eight-foot flywheel of great weight and revolving one hundred and seventy-five times per minute! When one of the ingots was passed through -the rollers, the load on the rollers required more power from the engine to rotate them than when there was no ingot between them. To give the increased power, more steam was required in the steam chest or cylinder of the engine. Hence, if the same head of steam was kept on all the time, the flywheel would revolve much more rapidly when the rollers were running light than when they were loaded. To control the revolutions' of the machinery, an appliance called a governor was attached to it. The operation of this appliance regulated the quantity of steam which passed into the cylinder of the engine, letting in more when the rollers were loaded and less when -they were not; thus making the revolutions uniform ahd preventing the flywheel from revolving too rapidly. The testimony that such an appliance is necessary and that 600 it is practically impossible to run an engine in safety without one, is very strong and we may say convincing. The governor worked automatically and controlled a valve which admitted steam into the cylinder. On July 21st, which was fourteen days before the accident, the governor broke and was removed, and from that time to* the day of the accident the engine was operated without a governor. A new governor was ordered from Salem, Ohio, and reached St. Louis about a week before the tragedy, but for some reason was not attached to the engine. The testimony for the plaintiff tends to show it was not attached because the company owning the factory didn’t wish to shut down the machinery long enough and were waiting for an idle Sunday in which to put on the new governor. The testimony for the defendant indicates that it was not put on because it was not ready for use. After the old governor broke, the revolutions of the machinery were regulated by the engineer sitting at the throttle and, with his hand, opening it wide to admit the steam into the cylinder when the rollers were loaded and partially closing it when they were not. In other words, the engineer acted as a governor. Occasionally he would call some other employee to the throttle to do the work. Gamache’s business was running ingots through the rollers; but on the day he was killed, he had been placed at the throttle to act as governor. It is impossible to run the machine with safety without an automatic governor, because the opening and closing of the thx’ottle which is necessary in order to keep the proper amount of steam in the cylinder as the rollers run first heavy and then light, requires such instantaneous action by a man, that the nerve tension becomes too great and brings about irregular control of the throttle. One of the experts said a man would have to open and close -it at the “psychological moment,” and another one, who is the city inspector of boilers, that it was only a matter of time until the machine would run away if it had no automatic governor on it; that no man could long control the engine, which 601 should he shut down at once whenever the governor broke. While Gamache was regulating the throttle, the motion of the flywheel became so rapid that the wheel burst and one of the fragments struck Gamache, almost decapitating him and producing instant death. This action is to recover damages for that accident; The negligence alleged is in running the machine without a governor when the defendant knew it was dangerous to do so. Plaintiff obtained judgment for $4,200 and the defendant appealed. Beyond all doubt, the evidence made a case for the jury on the main question of whether the defendant had been guilty of negligence which caused the death of Gamache. There was no' evidence that Gamache was guilty of any negligence which contributed to his death, and probably the trial court would have been justifiable in directing a verdict for the plaintiff. We overrule the contention that a demurrer to the plaintiff’s evidence should have been sustained. It is strenuously insisted that the verdict was excessive and the judgment should be reversed on that account. In this connection, the defendant’s counsel cites the instruction given on the measure of damages, which was of a general character and similar to an instruction approved by the Supreme Court in the case of Barth v. R. Co., 142 Mo. 535, 44 S. W. 778. The instruction the court gave is admitted to be correct but the contention is that because of its generality, the jury were too much influenced by sentiment in fixing the plaintiff’s damages. The defendant requested no instructions pointing out the particular elements of damage which the jury should consider in assessing the amount of plaintiff’s recovery, as should have been done if more definite advice on the measure of damages was desired. Plaintiff was entitled to recover for the loss of support, education and maintenance and also the loss of intellectual and moral instruction from her deceased parent. It appears plaintiff’s mother was living at the time of the death of the father, 602 but the two were separated and the child lived with her father, who was shown to be a man of exemplary character in all respects. As to the character of the mother and whether she would fill the place of the dead father, the record is silent. In Stoher v. R. Co., 91 Mo. 518, 4 S. W. 389, it was said that a parent’s care in educating’, maintaining and supporting a child has, in addition to its moral value, an appreciable pecuniary value because it aids in fitting the child for the struggles and duties of life. It is said, too, that in cases where minor children sue for damages for the death of a father, juries are not confined to an exact calculation of the amount of the child’s loss, but are vested with considerable discretion which the courts will not interfere with unless it is abused. That decision of our Supreme Court approved the opinion in Tilley v. Hudson River Company, 29 N. Y. 252, in which it was pointed oiit that the physical, mental and moral training of a child by a conscientious parent, were to be considered as having pecuniary as well as a moral value, in estimating the loss sustained by the child from the death-of a parent.- In that case, a verdict for f5,000 for the death of a mother was allowed to stand; We think the evidence regarding Gamache’s character proves that he was well fitted to train his child along right lines and mould her into a good woman. To be deprived of the affectionate guidance and admonition of such a parent, is an element to be considered by a jury in making up the amount of damages which a plaintiff ought to receive. [13 Cyc. 371; St. Louis, etc., R. Co. v. Haist, 71 Ark. 258; Searle v. R. Co., 32 W. Va. 370.]. We cannot say conscientiously that the jurors who tried this cause were not as competent to estimate the dam-, ages sustained by the plaintiff from the loss of her father as'we are. There is no certain criterion for fixing such damages, and the question is one within common knowledge and experience and peculiarly suited for determin-; ation by a jury. Unless the amount assessed as damages in a cause like this one, was so enormous as either 603 to show passion and prejudice on the part of the jury or leave no doubt that it was unjust, we would not interfere' with it. Moreover, as the defendant requested no instruction defining the elements of damages, it chose to leave' the matter largely to the jury’s discretion; It was conceded on the argument in this court, that defendant’s counsel refused to argue the case before the jury. An argument presenting the defendant’s side of the question in a favorable light, would have assisted the jury in their effort to ascertain the damages which ought to be given. In view of the fact that the defendant neither asked instructions defining the elements of damage nor discussed the subject to the jury, we think it would be manifestly unfair to reverse the judgment on the ground that the verdict was excessive, unless the point was perfectly clear. We are far from confident that it was excessive. It received the approval of the trial judge and that circumstance is entitled to weight. The judgment is affirmed. Bland, P. J., and Nortoni, J., concur.