Flori v. City of St. Louis

• Decision Date: 23 January 1877
• Parties: EDWARD FLORI et ux., Respondents, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Court of Appeals

3 Mo.App. 231

EDWARD FLORI et ux., Respondents,

v.CITY OF ST. LOUIS, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 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.BAKEWELL, J., delivered the opinion of the court.

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, and it was found necessary to amputate the leg above the knee.

Flori and his wife knew nothing of danger until it was too late. They both swear that they knew nothing of any unusual wind. From the whole testimony of the witnesses on the spot at the time of the occurrence it is clear that the wind was high, but not unusually so, up to the moment of the prostration of the market-house; at which moment, and for some time afterwards, all the witnesses present were in a condition of such mental excitement that they have no clear recollection of the state of the weather. The market-house was a low structure, its walls about twenty feet high; the houses opposite, on the east side of Seventh Street--many of which were three stories high, and old buildings of a cheap construction--were not at all injured by the wind. The blow came, apparently, from the south-west, and carried the roof of the market-house, weighing, as the city engineer testified, 50,000 pounds, into the street, in a north-eastwardly direction. Mr. Tice, a gentleman who has made the subject of storms a matter of special study for many years, was called as an expert, and testified that, from examination of the spot next day, he was satisfied the market-house was blown down by a cyclone; though he said that, in that case, the vortex of the storm must have been too small to give any positive evidence of cyclonic or rotary action. Another witness, an engineer in the employ of the city, professed to trace the course of the wind in a north-eastwardly direction from the south-western limits of the city to the river bank, by injuries said to have been done to buildings which lay in the supposed course of the assumed tornado. It does not appear, however, that any other building was seriously damaged by the storm. The weather was warm for the season, and rain fell after the wind storm; but there was no evidence of any sudden or marked fall of the thermometer. Altogether, there was evidence from which the jury might have found that the market-house lay in the course of a cyclone; but they might also find that the roof was blown off and the wall prostrated by a very high wind, such as occurs in this latitude always at the equinoctial periods. Unless the testimony of Mr. Tice, as an expert, is to be allowed to outweigh that of all the persons who were on the spot, the weight of the evidence is entirely against the theory of a hurricane, or any extraordinary disturbance of the elements against which human prudence cannot guard.

There was testimony that, for some time prior to the date of the accident, the roof of the fish-market had been in an unsafe condition; that any high wind would raise it six inches from the wall, at times, and cause the bricks to fall. The wind would sometimes raise the whole roof as far as Spruce Street, and cause the butchers to run from their stalls. The roof of the fish-market, in consequence of representations made by the market-master on the complaint of tenants, was anchored down, in 1871, but the roof over the meat-market was still loose, and liable to be moved by a heavy wind. The roof was constructed with eaves projecting about five feet, and was kept in place merely by its own weight. There was no wall-plate to fasten it to the wall. The wall itself was strong and of good materials, well put together, and, if the roof had remained in place, would have resisted any wind to which it was likely to be exposed. The roof over the fish-market, which had been fastened to the wall, was not disturbed by the wind which carried away the roof from the meat-market to its north. Witnesses were introduced by defendant to show that no ordinary wind could lift this roof, and that it was safe by its own weight; but against this theory was the positive testimony of the market-master, Burchy, and the butchers Lipphardt and Helsiger, and other eye-witnesses, that the roof, up to the time of the accident, was loose, and constantly lifted by heavy winds, not only at the corner of the fish-market, but north of it, and over the butchers' stalls.

Doyle, the market-master at the time of the accident, and a builder of twenty-seven years' experience, testified, as to the construction of the building, that the principals of the roof were laid in the wall without any wall-plate; and that a wall without a wall-plate cannot be considered a strong job. In answer to a question whether the laying of the principals into the wall without a wall-plate, to secure the roof to the wall, was proper or improper, his statement, as preserved in the bill of exceptions, is: “I never saw it done before; I never saw such a building put up before.” Counsel for plaintiffs interpret this as meaning that he never saw a roof put on any building without a wall-plate; and counsel for defendant insist that he meant that he never saw a market-house built.

The building was erected by defendant in 1856, under plans and specifications prepared by the city architect in the office of the city engineer.

There was a verdict and judgment for plaintiffs, and...