24 Mo.App. 288 (Mo.App. 1887), Torpey v. The City of Independence

Citation:24 Mo.App. 288
Opinion Judge:PHILIPS, P. J.
Party Name:JOHN TORPEY, Respondent, v. THE CITY OF INDEPEND ENCE, Appellant.
Attorney:GATES & WALLACE, for the appellant. A. COMINGO, with CHAS. S. CRYSLER, for the respondent.
Case Date:January 10, 1887
Court:Court of Appeals of Missouri
 
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Page 288

24 Mo.App. 288 (Mo.App. 1887)

JOHN TORPEY, Respondent,

v.

THE CITY OF INDEPEND ENCE, Appellant.

Court of Appeals of Missouri, Kansas City.

January 10, 1887

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

The case is stated in the opinion.

GATES & WALLACE, for the appellant.

I. The petition does not state a cause of action against defendant, and its objection to the admission of any testimony under it should have been sustained; and also its motion in arrest of judgment; and its instruction in the nature of a demurrer to the evidence should have been given. See Imler v. City of Springfield, 55 Mo. 119; Benson v. Railroad, 78 Mo. 504; Stewart v. City of Clinton, 79 Mo. 603; Abbott v. Railroad, 83 Mo. 272.

II. The court erred in giving the instruction asked by plaintiff, and the one given of its own motion, fixing the measure of damages. ( a ) Because the damages are not limited to the amount claimed in the petition, viz: one thousand dollars. ( b ) Because " this is an action for damages consequent upon the flooding of plaintiff's land." " The plaintiff can only recover for damages done up to the institution of the suit." Benson v. Railroad, 78 Mo. on page 511.

III. The record not only fails to show that the grade of Pacific street had ever been established by ordinance, or that any change in its grade as used was ever made by ordinance, but it shows affirmatively that there is no such ordinance. See testimony of the city clerk, Armstrong. Therefore, the defendant's demurrer to the evidence, at close of plaintiff's evidence in chief, ought to have been sustained, and instruction number five, asked by defendant, should have been given. See Stewart v. City of Clinton, 79 Mo. 604. It was certainly error to have refused instruction number seven, asked by defendant.

IV. It was an unusual and extraordinary storm by which plaintiff's premises were flooded. Instruction number nine, asked by defendant, should have been given. Wharton on Negligence, sections 114, 115 and 558; Flori v. City of St. Louis, 69 Mo. 341; Elliot v. Railroad, 76 Mo. on page 534.

V. Even if this had been an action for negligently constructing the switch, there was no evidence to support such a charge. In Abbott v. Railroad (83 Mo. 286), it is held that a railroad company is not required " to provide water ways or culverts across the road-bed or through its embankments so as to allow surface water to pass off in that direction."

A. COMINGO, with CHAS. S. CRYSLER, for the respondent.

I. The instructions, taken as a whole, fairly and correctly present the issues under the pleadings and the evidence. The verdict and judgment will not be disturbed by this court, unless it appear that competent and material evidence has been excluded, or that which was incompetent and immaterial was admitted at the trial. Karle v. Railroad, 55 Mo. 482. And if the instructions given fairly present the issues and correctly declare the law it is not error to refuse others of similar import. This rule is without exception. Newton v. Curran, 77 Mo. 326; Brown v. Ins. Co., 68 Mo. 139; Martin v. Smyler, 55 Mo. 577.

II. Defendant had no authority to damage, or to...

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