Voelker v. Hill-O'Meara Construction Co.

CAULFIELD, J. (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 — 8 — death of plaintiff’s husband. It is true, as asserted by defendant’s counsel, that plaintiff was bound to prove not only the negligence, but that her husband met his death by reason thereof, and this causal connection must be proved by evidence, as a fact, and not be left to mere speculation and conjecture. The rule does not require, however, that there must be direct proof of the fact itself. It is sufficient if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred. [Settle v. Railroad, 127 Mo. 336, 341, 30 S. W. 125.] It is an undisputed fact that plaintiff’s husband was found at the bottom of the excavation with his back broken, and no witness saw him fall. Over him the excavation was entirely open. He was close to the Locust street curb line, lying upon his back across a large wooden roller. His position and condition thus showfi were sufficient to justify the inference that he was precipitated into the excavation and broke his back by striking the roller. He stated to the officers who found bim that he had been shot and thrown into the excavation, but an examination of his body disclosed that he had not been shot. The jury were justified in attributing these statements to a disordered condition of mind due to the man’s terrible injury. They were fortified in this by the fact that his watch, money and papers wei*e upon his person when he was found, and there were no marks of violence visible except those palpably due to his fall. We think it a fair and reasonable inference from the surroundings and condition of the deceased when found, that he was not murdered. There is no presumption of law that deceased committed suicide, and if his surroundings when found do not indicate how he came to be there, the presumption is that it was without design. [Buesching v. Gas Light Co., 73 Mo. 219, 230.] Defendant insists that the evidence, justifies the inference that the deceased walked through the build — 9 — ing from Olive street seeking a toilet, and emerging on the Locust street side, walked out on some loose boards over the excavation until he reached a point near the Locust street curb, and there he fell in; and that this inference is more logical than that the deceased fell in while walking on Locust street, because the evidence shows the deceased got off a street car at Ninth and Pine streets to go to a toilet and had to pass Olive street in order to get to the excavation. Assuming this, defendant’s counsel argues that barriers and lights around the outer edges of the excavation would not have prevented the accident. It is possible that the inference thus insisted upon might fairly be drawn by the jury. . But the question we have to deal with here is whether there was evidence from which the jury could reasonably conclude the deceased fell in from the Locust street curb side. To say the least, it was more logical to infer that the deceased walked to the excavation along public streets where there were street lamps and where people usually walk, than that he committed a trespass and voluntarily chose to walk through a long dark building in the course of construction, between two and three o’clock in the morning. “In all questions touching the conduct of men, motives, feelings and natural instincts are allowed to have their weight and to constitute evidence for the consideration of courts and juries.” [Johnston v. Railroad, 130 S. W. 413.] Defendant suggests that the cinders formed a barrier to the excavation. On the contrary it was logical for the jury to infer from the evidence that the deceased stumbled over them into the excavation and thereby they aided in his fall. We conclude that there was sufficient evidence to connect the injury of plaintiff’s husband with the negligence of defendant. 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 — 10 — evidence will compensate plaintiff for the death of her husband, the verdict not to exceed the sum of $5000.” The second instruction contains the same direction. Defendant argues that this language is entirely too general and relies upon Coleman v. Land Co., 105 Mo. App. 254, 79 S. W. 981, and McGowan v. Ore & Steel Co., 109 Mo. 518, 19 S. W. 199. The latter case “is authority for the point suggested, but it has not been followed by the Supreme Court in later cases.” [Dunn v. Northeast, etc., Co., 81 Mo. App. 42, 45.] In the other case (Coleman v. Land Co.), which was a suit by the parents for the negligent killing of a minor son, the fault of the instruction appears *to have been that it was broad enough to authorize a recovery for the loss of the minor’s services after he had become of age. It was a case of misdirection and not of nondirection. But be that as it may, it is now established that an instruction is not to be held erroneous because general in the directions relating to the measure of damages if it is correct as far as it goes. [Browning v. Railroad, 124 Mo. 55, 71, 27 S. W. 644.] The instruction under consideration here limits the jury’s consideration to the injuries shown by the evidence and it is not suggested that there was evidence of anything not properly entering as an element into the measure of damages. We deem it similar in every essential feature to the one approved by the Supreme Court in the case of Browning v. Railroad, supra. 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 — 11 — the circuit court to refuse them or to fail to give a correct instruction of its own motion. [Barth v. Railroad, 142 Mo. 535, 556, 44 S. W. 778.] 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. 3. The defendant complains that the court erred in refusing an instruction, the pertinent part of which is as follows: “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 — 12 — earnings. As the instruction ignored tliis element of damage, it was properly refused. The instruction was further erroneous in that it limited the plaintiff to nominal damages unless she showed her deceased husband’s “habits of industry or sobriety, his treatment of his family and whether he ever contributed anything to the support of his family.” If the evidence failed to show these things, then the law presumes that the deceased was industrious and sober, treated his family tenderly and properly, and contributed sufficiently toward their support. The law in this, as in other instances, presumes that duty will be performed. [Brunke v. Telephone Co., 112 Mo. App. 623, 628, 87 S. W. 84.] And even if he had not theretofore performed such duties, she had a right to such performance, and is not to be limited to merely nominal damages for the negligent destruction of that right. [Sedgwick on Damages (8 Ed.), sec. 578.] 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. — 13 — [Orscheln v. Scott, 90 Mo. App. 352, 361; Bigelow v. Metropolitan St. Ry. Co., 48 Mo. App. 367, 375.] True, the losses mentioned were prospective in character and. their extent depends somewhat upon the life expectancy of the deceased, but from the very nature of these cases, the damage is largely, if not altogether, conjectural, not subject even to approximate admeasurement, and juries are not confined to any exact mathematical-calculation, but are vested with considerable discretion, with which the court will not interfere, unless it has been abused. [Parsons v. Railway, 94 Mo. 286; Brunke v. Telephone Co., supra; Stoher v. Railway, supra.] Even if the exact age of the deceased were shown, still the estimate must partake of the nature of conjecture. [Orscheln v. Scott, supra.] It must then be true that if any reasonable basis for the verdict can be inferred from the evidence, it is sufficient. Here it is shown that the deceased was employed as agent for an insurance company; that he had a child ten years old and another minor child whose age is not stated; that on the night of the injury he rode down town on a street car and was walking around at 2:30 o’clock in the morning and had been in a distant part of the city during the day. While it is true that the age and state of health of the deceased could not be inferred with any degree of accuracy from these facts, still it might fairly be inferred from them that the man was not extremely old or seriously disabled and had some degree of life expectancy. There was, then,'Something on which to base the verdict, and we do not feel that $3500 allowed to a wife for the loss of the personal attention, helpfulness and usefulness of her husband, and the casting upon her of the support and care of two minor children, one of whom was only ten years of age, is so large as to shock our sense of justice, even though the life expectancy of the deceased might not appear to be very great. The trial court correctly refused said instruction and the Verdict was not excessive. — 14 — 5. Defendant next contends that plaintiff’s instruction number 3 is erroneous because it went beyond the duties imposed by the ordinance in relation to the display and maintenance of lights. As the defendant has failed to bring the ordinance before us in the abstract, we will not pass upon this contention, but will accept the trial court’s construction of the ordinance as correct for the purposes of this review. [Hausmann v. Hope, 20 Mo. App. 193, 196.] 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. Reynolds, P. J., and Nortoni, J., concur.