3 Mo.App. 231 (Mo.App. 1877), Flori v. City of St. Louis

Citation:3 Mo.App. 231
Opinion Judge:BAKEWELL, J.
Party Name:EDWARD FLORI et ux., Respondents, v. CITY OF ST. LOUIS, Appellant.
Attorney:E. T. Farish and E. P. McCarty, for appellant, Daily & Adams and H. A. Clover, for respondents, Defendant asked the court to give the following instructions, which were refused: No point is made here as to any other instruction given, and the instructions given for plaintiffs and defendant, taken...
Case Date:January 23, 1877
Court:Court of Appeals of Missouri

Page 231

3 Mo.App. 231 (Mo.App. 1877)

EDWARD FLORI et ux., Respondents,

v.

CITY OF ST. LOUIS, Appellant.

Court of Appeals of Missouri, St. Louis.

January 23, 1877

1. In an action for damages against a municipal corporation it is not error to introduce as testimony ordinances which establish defendant's possession and control of the house by the falling of which plaintiff was injured.

2. Where the roof of a market-house, by the falling of a part of which plaintiff was injured, was one connected frame, it is not error to admit evidence of notice to defendant of the unsafe condition of another part.

3. The contributory negligence of the husband will not bar the action of the wife, she being the injured party. His negligence cannot be imputed to her.

4. Where there is any evidence to sustain the affirmative of an issue, it is error to take the cause from the jury.

5. A cause will not be reversed because of a refusal to give an instruction which has been substantially given in other instructions.

APPEAL from St. Louis Circuit Court.

Affirmed.

E. T. Farish and E. P. McCarty, for appellant, cited: Dill. on Mun. Corp., sec. 790 and cases cited in note 1; Taylor's L. & T., 6th ed., sec. 381; Pibbs v. Brown, 2 Grant Cas. 42; Wein v. Simpson, 2 Phila Rep. 158; Howard v. Doolittle, 3 Duer 464; Hart v. Windsor, 12 Mee. & W. 68; Moffit v. Smith, 4 Comst.; Mudford v. Brown, 6 Cow. 126; Killeurberger v. Foresman, 14 Ind. 476; Joyce v. DeGiverville, 2 Mo App. 596; Woelper v. City of Philadelphia, 38 Pa.St. 203; City of Dubuque v. Miller, 11 Iowa 583; Smith v. City of St. Joseph, 45 Mo. 449; Thomas v. Western Union Telegraph Co., 100 Mass. 156; Mahoney v. Metropolitan R. R. Co., 104 Mass. 73.

Daily & Adams and H. A. Clover, for respondents, cited: Meyer v. Pacific R. R. Co., 40 Mo. 151; Singleton v. Pacific R. R. Co., 41 Mo. 465; Claflin v. Rosenberg, 42 Mo. 448; Bowen v. Lazalere, 44 Mo. 338; McFarland v. Bellows, 49 Mo. 311; Routsong v. Pacific R. R. Co., 45 Mo. 236; Dill. on Mun. Corp., sec. 780, notes and cases cited; The State v. Wissmark, 36 Mo. 592; The State v. King, 44 Mo. 238; Chouteau v. Searcy, 8 Mo. 733; McKeon v. Railway Co., 42 Mo. 79; Ewing v. Goss, 41 Mo. 492; Emerson v. Sturgeon, 18 Mo. 170; Mead v. Brotherton, 30 Mo. 201; Clarke v. Hammerle, 27 Mo. 55; Sawyer v. Hannibal & St. Joseph R. R. Co., 37 Mo. 240; Chappell v. Allen, 38 Mo. 213; Rose v. Spies, 44 Mo. 20; Meyer v. Pacific R. R. Co., 45 Mo. 137; Shear. & Redf. on Neg., secs. 27, 52; Winters v. Hannibal & St. Joseph R. R. Co., 39 Mo. 474; Sess. Acts 1875, p. 61; Street et ux. v. Holyoke, 105 Mass. 82; Savannah v. Collins, 38 Ga. 334; Cowley v. Sunderland, 6 N.H. 565.

OPINION

BAKEWELL, J.

This was an action by plaintiffs, who are husband and wife, for damages by the falling of a building upon plaintiff Mary.

It appeared from the evidence that defendant owned a building in the city of St. Louis, called the Center Market-house. This building was nearly 400 feet long, by about forty feet wide, extending from Spruce Street, on the north, to Poplar Street on the south, and having Seventh Street on the east and an open space called Lucas Place on the west. The central part of the building was used as a fish-market. From the fish-market, for about 175 feet in each direction, north and south, stretched the roof and walls of the meat-market. The comb of the roof over the meat-market ran north and south, the slope of the roof being towards Seventh Street, on the east, and Lucas Place to the west; but, over the fish-market, the comb of the roof ran east and west, the slope being north and south, and the gable-ends towards Seventh Street and Lucas Place. The space thus roofed and occupied as a fish-market seems to have been about fifty feet square. The meat-market was rented out in butchers' stalls, being divided into spaces of about ten feet for each stall. Plaintiff Edward Flori, on March 13, 1872, the date of the occurrence which is the foundation of this action, was a butcher, renting from the city, and occupying stall fifteen in Center Market, between twenty and thirty feet north of the fish-market and on the west side of the market-house. His wife had been marketing, and, about half-past seven o'clock on Saturday evening, went to her husband's stall to leave her market-basket, that he might bring it home. She had left the front of his stall, and was passing along the meat-market towards Spruce Street, going north, when the roof was lifted from the whole northern part of the market-house, for 175 feet, from the fish-market to Spruce Street; the western wall, on which this roof had rested, fell in for its whole length, and, with others, her husband and herself were buried under a mass of falling bricks. Her husband was knocked senseless, and did not recover his senses until after he was carried away. She retained her consciousness, but her leg was crushed; the bone was fractured in four places...

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