Rose v. City of St. Louis

• Decision Date: 12 December 1899
• Citation: 152 Mo. 602,54 S.W. 440
• Parties: ROSE v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

54 S.W. 440

152 Mo. 602

ROSE v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

December 12, 1899.

NEGLIGENCE — EVIDENCE.

The negligence charged being the building of a cornice with rotten stones, plaintiff may prove the condition of the stones in the cornice, other than the one which fell out and hit him, which he could not identify.

Appeal from St. Louis circuit court; P. R. Flitcraft, Judge.

Action by John Rose against the city of St. Louis. Judgment for defendant. Plaintiff appeals. Reversed.

J. E. & J. F. Merryman, for appellant. B. Schnurmacher and Chas. C. Allen, for respondent.

VALLIANT, J.

This is a suit for damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendant city. The substance of the petition is that in 1883-84 the city, as a part of its waterworks system, constructed a large boiler and engine house, and a brick and stone building attached, the first story of which was used for storing coal to be used in its business, and the upper story for other purposes; that in the erection of the coalstorage building the city negligently used rotten, defective, and unsafe stone, and constructed its walls, and especially the cornice, of such stone; that the cornice extended over and beyond the main wall, without support, and the stones of which were rotten and defective, and subject to break and crumble; that on or near the south side of the building the defendant had constructed a railroad track for the purpose of switching cars loaded with coal to be unloaded into the building; that on the 10th of April, 1896, plaintiff was employed by a person, not the defendant, but with its consent, to unload a car of coal standing on that track, by shoveling the coal through a window into the building, and while so engaged one of the stones of the cornice fell and struck plaintiff on the head, and inflicted very serious injuries, the particular nature of which is specified. The petition prays judgment for $8,000. The answer is a general denial, and a plea of contributory negligence. Upon the trial there was no direct proof that the waterworks belonged to the city, or that the buildings, railroad switch, and other appurtenances were erected by the city; but these facts were assumed, and the general expressions of the witnesses were to the effect that the premises were the city waterworks, and no point of that kind was attempted to be made by defendant's counsel. The evidence on part of plaintiff tended to show: That he was employed by a man named Sachs, who had a contract with the city to deliver coal at the waterworks, and on the day of the accident plaintiff was in a coal car on the...