1 S.W. 865 (Mo. 1886), Schmidt v. Kansas City Distilling Co.

• Date: 15 November 1886
• Docket Number: .
• Citation: 90 Mo. 284,1 S.W. 865
• Parties: Schmidt et al. v. The Kansas City Distilling Company, Appellant
• Court: Missouri Supreme Court

Page 865

1 S.W. 865 (Mo. 1886)

90 Mo. 284

Schmidt et al.

v.

The Kansas City Distilling Company, Appellant

Supreme Court of Missouri

November 15, 1886

Rehearing Granted 90 Mo. 284 at 295.

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Reversed and remanded.

Gage, Ladd & Small for appellant.

(1) The petition failed to state a cause of action and the court erred in overruling defendant's objection to the hearing of evidence under it. It does not state any case of wilful or wanton injury, or of interference with the rightful use by individuals of any public place, or any fact whatever, except that the defendant's premises and its use of them for blowing off its boilers was dangerous, and that the child was injured. Keffe v. Railroad, 21 Minn. 210. (2) The court erred in refusing to instruct the jury that upon the evidence the plaintiffs could not recover and that the verdict must be for the defendant. The evidence utterly failed to sustain the very defective charge of negligence contained in the petition. No duty is imposed on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not expressly invited to enter, or induced to come upon them by the use for which the premises are appropriated and occupied, or by some preparatory adaptation of the place for use by customers or passengers, which might naturally and reasonably lead them to suppose that they might properly and safely enter. Straub v. Soderer, 53 Mo. 38; Hughes v. Railroad, 66 Mo. 325; Turner v. Thomas, 71 Mo. 596. (3) In cases of recovery for injuries resulting from turn tables, spring guns and the like, the defendants had knowingly constructed and maintained devices dangerous to children and liable to do them serious injury. In the case at bar the defendant had not knowingly made or maintained the pool of water; it did not know it was likely to attract children, for it did not know of its existence. (4) The court erred in instructing the jury as to the measure of damages; the instruction should specify the particular kind of loss which the case shows. (5) The verdict is clearly and grossly excessive.

Wash Adams and H. Stubenrauch for respondent.

(1) The petition was sufficient; having stated the facts that were necessarily in the knowledge of the defendant, the proximity of the inhabited dwelling houses, the public road, etc., it was hardly necessary to plead the mere inference and conclusion that "defendant had knowledge, or ought to have had, that children were likely to resort to them." These inferences follow from the facts stated, and were expressly embodied in the instructions given by the court. The rule in this state is, that it is not necessary to set out the facts constituting negligence. The act complained of may be alleged generally as negligently done. Mack v. Railroad, 77 Mo. 232; Schneider v. Railroad, 75 Mo. 295; Edens v. Railroad, 72 Mo. 213; Bailey v. Culver, 12 Mo.App. 168. (2) The defendant by its own instruction caused the court to submit the issue as to the negligence of defendant in keeping premises which were "so attractive and alluring to children of the age of the deceased as to induce them to go about them," and the finding of the jury on said issue being adverse to defendant it is too late for it to complain of the defectiveness of the petition in respect to said issue. Jones v. White, 90 Ind. 255; 67 Mo. 313; 64 Mo. 255. (3) Even if the petition were defective in its charges of negligence the point could not be raised by an objection to the evidence, nor by an instruction; the only question which could be raised in such manner was whether the petition was fatally and wholly defective as to some element constituting a cause of action. Roberts v. Walker, 82 Mo. 206. (4) The trial court did not err in refusing defendant's instructions numbered two and three. 81 Mo. 483; Zimmerman v. Railroad, 71 Mo. 491. (5) The evidence sustains the verdict; the pipe discharging water was attractive to children, and this was not all, for the pipe was also "a dangerous thing," "a concealed source of mischief," and "in the nature of a trap." Wharton on Negligence, secs. 851, 860, 350; Hydraulic Co. v. Orr, 2 Norris, 432; McGarry v. Loomis, 63 N.Y. 104; Whirley v. Whiteman, 1 Head. (Tenn.) 610; Birge v. Gardner, 19 Conn. 507; Beck v. Carter, 68 N.Y. 283; Kefte v. Railroad, 21 Minn. 211; Lobenstein v. McGraw, 11 Kan. 645; K. C. W. Co. v. Fitsimmons, 22 Kas. 691; Copner v. Pa. Co., 12 Brad. (Ill.) 680; Crafton v. Railroad, 55 Mo. 580; Fink v. Furnace Co., 10 Mo.App. 61; 1 Thompson on Neg. 304; Branson v. Labiot, 81 Ky. 638. (6) The court did not err in instructing as to the measure of damages. Nagel v. Railroad, 75 Mo. 653; Owen v. Brockschmidt, 54 Mo. 289. (7) The verdict is not excessive. Houghkirk v. Co., 92 N.Y. 223; Iba v. Railroad, 47 N.Y. 321; Railroad v. Keller, 67 Pa. St. 306; Owen v. Brockschmidt, 54 Mo. 289; Railroad v. Shannon, 43 Ill. 340; Grotenkemper v. Harris, 25 Ohio St. 510. The verdict should not be disturbed for excessive damages. Goetz v. Ambs, 27 Mo. 34; Graham v. Railroad, 68 Mo. 544.

OPINION

Page 866

[90 Mo. 288] Henry, C. J.

The plaintiffs are husband and wife and parents of a child three years old, Louisa, whose death occurred November 2, 1883, upon the premises of the defendant, and plaintiffs allege that it was caused by the negligence of the defendant.

The petition is as follows: "Plaintiffs state that they are now, and were, at and prior to the date hereinafter mentioned, husband and wife, and father and mother of Louisa Schmidt, their child, born on the twenty-ninth day of October, 1879. Said Louisa Schmidt was killed in the manner hereinafter stated, and at the time of her death was a minor and unmarried. That the defendant now is, and was, at and prior to the dates hereinafter mentioned, a business corporation, duly organized as such under and by virtue of the laws of the state of Missouri, and engaged in the business of buying and selling and refining grain, and for that purpose kept and still keeps and maintains distillery buildings, and in connection with said buildings, and in its business, defendant erected and maintained, and was, at the time hereinafter stated, using a large number of steam engines and boilers, to-wit, six, in the county of Jackson, and state of Missouri, east of and near the City of Kansas; that the defendant, on and prior to the second day of November, 1882, kept and maintained an escape pipe in connection with said boilers for the purpose of blowing off hot water, debris and steam from the same; said pipe extended from the distillery, where the boilers were, under and across a traveled public road and highway,...