Goins v. Chicago, Rock Island & Pacific Railroad , 47 Mo. App. 173 ( 1891 )

Gill J.

This case is here now on a second appeal. 'The decision on the former hearing will be found reported in 37 Mo. App. 676, to which we refer for an understanding of the nature of the controversy. The judgment was then reversed, and the cause remanded, because of an error in giving a certain instruction. On the second trial in the circuit court this error was avoided, the jury found for the plaintiff in the sum of $1,000, and from a judgment thereon defendant has again appealed.

I. The first point made in defendant’s brief relates to the sufficiency of the petition. It is claimed- that it fails to allege facts sufficient to entitle the plaintiff,. Mrs. Goins, to maintain this action for loss of services-of her minor son, Albert, in that'it is not stated therein that Albert’s father was dead, etc. We regard this-objection more technical than substantial. The petition states “ that plaintiff is a widow and entitled to the services, assistance and support of her son, Albert Goins, and is dependent upon his services and assistance for her support, plaintiff being old, and without-property or means of support, and her son Albert being-a minor, and at the commencement of this action seventeen years of age, and until injured in the manner hereinafter stated living with her and’ contributing by his-labor and services to her maintenance and support, ” etc. The plain import of this'language is that, when Albert was injured, he was the minor son of plaintiff, who was and is a widow, and that he was living with and supporting her. It does not in express terms-allege that Albert’s father is dead, but inferentially does so state. She is alleged to be a widow, and this with other facts stated is such as to advise defendant-of plaintiff’s relation to Albert, and such as would entitle her to the benefit of his services.

More than this, it appears that, though this case was- ' instituted quite three years before the last trial, and has been tried once before in the circuit court, then, appealed here, reversed and the evidence again heard, yet it was only on a motion in arrest after the last verdict rendered, that defendantmade known the petition’s-defect and then only in such general terms that it would probably escape the attention of the trial court. Here are the grounds set out in the motion in arrest:

“First. That upon the pleadings in this cause the-judgment should be for the defendant. Second. Because the pleadings in this cause are not sufficient to authorize or support a judgment for plaintiff upon the verdict. Third. Because, under the statements and admissions-■contained in the pleadings and evidence, the judgment should be for the defendant, notwithstanding- the verdict.”

It is made our duty “to so construe the provisions ■of the law relating to pleadings, and so adapt the practice thereunder as to discourage, as far as possible, negligence and deceit, to prevent delay, * * * and to •distinguish between form and substance,” etc. R. S. 1889, sec. 2117. And, further, we are enjoined not to reverse the judgment of the lower courts unless we “shall believe that error was committed * * * materially affecting the merits of the action.” R. S. 1889, sec. 2303. Prompted, then, by these considerations we should feel constrained to hold this point against the defendant, even were we convinced that the petition was defective as claimed.

What is here said applies with equal force to the objection that the verdict is not supported 1 by the evidence for the alleged reason that it was not shown that Albert’s father, this plaintiff’s husband, was ■dead. The testimony clearly shows that Mrs. Goins was a widow, and the common understanding of this language is that her husband, this boy’s father, was dead.

II. It is next insisted that the verdict should have been set aside as contrary to the following instruction, given by the court at the defendant’s instance: “ 1. The court instructs the jury that, when the said Albert Goins entered into the service of the defendant as a brakeman, he contracted to assume all the risks of said employment, and if the said Goins, at the time he received the injury, knew of the defective condition of said link and pin, and, knowing such fact, made, or attempted to make, such coupling, then the jury will find for the defendant.” In this connection, it is said, that the boy Albert admitted that he knew, several days before the accident, of the defective coupling by which he was injured, and that, as he had such knowledge and made no complaint, lie thereby assumed the risk, andino recovery, therefore, could be had. If this was all there is of this case then defendant’s contention would seem well grounded. But there is another feature not mentioned in the above instruction. This element appears in another instruction given at the request of plaintiff. Plaintiff’s number 2 reads as follows: “2. If the jury find that the coupling apparatus' of the car which plaintiff’s son was coupling to the train when injured was defective by reason of the link and pin being bent and misshapen and fast in the drawhead of said car, and that said defect rendered the coupling of said car to the train dangerous, then, although such defect was visible, and the.danger of coupling said car was apparent to one of mature years, or one accustomed to the coupling of cars ; yet, if the jury find that plaintiff ’ s hon was, at the time, young and inexperienced, and, by reason of his youth and inexperience, he was not aware of the danger to himself from the use of such coupling apparatus, then.plaintiff’s right to recover in this action will not be defeated by the fact that said defect was visible and apparent and known to the-plaintiff’s son Albert.”

This last instruction was drawn in harmony with our views when the case was here before, and is, therefore, the law of this case. It should be regarded as a modification, or rather qualification, of defendant’s-instruction, numbered 1, quoted above. Taken and read together, as they should be, the jury was advised that, even though Albert had knowledge of the defective-appliance, yet the plaintiff might recover if, because of his youth and inexperience, he did not know of the increased danger of making the coupling. Mere knowledge, then, of the defect would not- destroy the right to recover, if there existed the further element of ignorance of danger occasioned by the boy’s youth and inexperience. Here, too, we may as well notice the last matter suggested in defendant’s brief. It is claimed that the evidence conclusively shows that plaintiff’s son well knew of the danger to which he was exposed in handling the defective coupling. We do not so read this testimony. The boy, it is true, on cross-examination does say, in effect, that he knew there was some danger in making these couplings, that he should be careful to avoid getting his fingers caught between the drawheads, etc. But he was testifying in relation to the danger generally, and. not to any increased peril of using the particular defective link and pin. As to this, he testified that he did not know of any danger in using it.

III. At the trial two witnesses, old and experienced brakemen, were permitted, over the objection of the defendant, to give their opinions as to the safety of coupling one car to another, where the pin was so bent that the pin could not be taken out, and the coupling' would have to be made with the link fast in the draw-head of the standing car. This testimony was objected to for the alleged reason that this was not a matter for expert evidence; that the condition of the appliances only should be stated, and the jury left to form an opinion as to whether or not such work was hazardous. We think there was no error in the admission of this evidence. Notwithstanding the decisions cited by defendant’s counsel, some of which seem to hold the contrary, we are of the opinion that these witnesses were qualified as experts to testify in relation-to the matter about which they were questioned. As to experts and expert testimony, when allowed and when denied, there have been various and conflicting rulings, and it would be entirely useless and unprofitable to attempt an intelligent discussion of them.

An expert is said to be “one who, by practice or observation, has become experienced in any science, art or trade.” Rogers on Expert Testimony, sec. 1. “One instructed by experience in a course of previous habit, practice or study, so as to be familiar with the subject.” 71 N. Y. 453; 1 Greenl. Ev., sec. 440. Again, “ It may be laid down as a general rule that the opinion of a witness possessing peculiar skill is admissible whenever the subject of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance.” Davidson v. Railroad, 34 Minn. 55.

After a careful consideration of every point presented, we discover no reason for disturbing the judgment, and the same is, therefore, affirmed.

All concur.