Overholt v. Vieths
| Decision Date | 28 November 1887 |
| Parties | Overholt et al., Appellants, v. Vieths |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Geo. W. Lubke Judge.
Affirmed.
James P. Dawson and G. M. Stewart for appellants.
(1) The court erred in refusing testimony as to the financial condition of the plaintiff, Mrs. Eliza A. Overholt. Winters v. Railroad, 39 Mo. 468-475; Lottman v Barnett, 62 Mo. 159; Conroy v. Vulcan Iron Works, 75 Mo. 651; Frick v. Railroad, 75 Mo 542. (2) The court erred in refusing to admit the ordinance offered by the plaintiffs. Robertson v. Railroad, 84 Mo. 119; Karle v. Railroad, 55 Mo. 476; Keim v. Railroad, 90 Mo. 321, and cases cited. (3) The court erred in admitting testimony to show that defendant could not conveniently fence his lot on the east side; in other words, to show that it was not negligence in defendant to maintain this nuisance, because it could not be conveniently protected by fencing. Nagel v. Railroad, 75 Mo. 653. (4) The instructions given for the defendant were misleading and not warranted by the testimony. (5) The verdict should have been set aside by the court for misbehavior of the jury in failing to award substantial damages. Welch v. McAllister, 13 Mo.App. 89; 2 Sedgwick on Meas. of Dam. (7 Ed.) p. 660, note a.
Hitchcock, Madill & Finkelnburg and David Goldsmith for respondent.
(1) The petition does not state, and the evidence does not establish, a cause of action. 1 Thompson on Neg. 303; Shearman and Redf. on Neg., par. 505; Straub v. Loderer, 53 Mo. 38; Gallagan v. Manufacturing Co., 3 N.E. 705; Klix v. Nieman, 32 N.W. 223; Gillespie v. McGowan, 100 Pa. St. 144. (2) There was no error in admission of evidence of unfeasibility of enclosing pond. (3) The amount of the verdict furnishes appellants no ground for complaint. Pritchard v. Hewitt, 91 Mo. 547; Gregory v. Chambers, 78 Mo. 294; R. S., sec. 2123; Flanders v. Meath, 27 Ga. 358. (4) There was no error in rejection of evidence of plaintiffs' financial condition. (5) There was no error in rejection of evidence of ordinance. (a) Under the present record the rejection of the evidence cannot be reviewed. (b) The ordinance was irrelevant, unless it was the basis of the plaintiffs' charge of negligence. Railroad v. Erwin, 89 Pa. St. 71. (c) And if it was the basis thereof it was not admissible without being pleaded. Givens v. Van Studdiford, 86 Mo. 149; Nutter v. Railroad, 22 Mo.App. 328. (d) The evidence, on its face, related only to enclosure of excavation for the purpose of separating it from the highway, and thus protecting the highway. (e) And if it has any further import or effect the city council had no power to enact it. (f) The ordinance does not undertake to confer, and the city council had no power to confer, a civil remedy upon any person enjoined by non-compliance with it. Railroad v. Erwin, 89 Pa. St. 71; Hartford v. Talcott, 48 Conn. 525; Taylor v. Railroad, 45 Mich. 74; Van Dyke v. City of Cincinnati, 1 Desney, 532; Boston v. Railroad, 14 Gray, 253; City of Keokuk v. Ind. Dist. of Keokuk, 53 Iowa 352.
This suit is to recover damages for the death of plaintiff's eight-year-old son, who was drowned, as alleged, in a pond of water which had been formed in consequence of rock having been quarried on a lot in the city of St. Louis, owned by the defendant. The jury returned a verdict for plaintiffs, and assessed the damages at ten dollars, and, from the judgment rendered thereon, they have appealed; and, among other errors assigned, is the action of the court in refusing to admit in evidence the following section of an ordinance of the city of St. Louis:
This ordinance was objected to on the ground that it had not been pleaded, and on the further ground that the other sections of the ordinance showed that said section related to highways. Inasmuch as one of the grounds of objection is based upon the fact that other sections of the ordinance showed that the section in question related to public highways; and, inasmuch as those other sections are not preserved in the record, we must indulge in the presumption that the ruling of the court was proper. Kansas City v. Clark, 68 Mo. 588.
During the examination of Mrs. Overholt, and after she had stated that she was the mother of the child, and a widow at the time of the accident; that she had one other child, a daughter, about fifteen years old; that she and her daughter did the housework; that she had no servant, and, at the time of the accident, she was engaged in housework, she was asked what her financial condition was; and this being objected to by defendant as being immaterial, the objection was sustained, and plaintiffs excepted. In view of what she had been allowed to state as to her condition in life, we are of the opinion that the objection was properly sustained. The court, in receiving her statements as to her circumstances and surroundings at the time the child was drowned, went as far as this court has gone in the case of Winters v. Railroad, 39 Mo. 468, and others to which we have been cited.
The court allowed a witness to state, over the objection of plaintiffs, that along the eastern line of defendant's lot a fence could not be built without drilling post-holes in the rock. It appears, from the evidence, that the excavation in the lot had been made by quarrying twelve or fifteen years before the accident; that defendant had acquired the lot about four months only before it occurred; that the said excavation extended up to and across the eastern line between defendant's lot and a lot owned by one Hardy; that the eastern bank of the pond, which was precipitous and steep -- in some places fifteen or twenty feet high above the water -- was wholly upon the the lot of said Hardy, excepting the projection of an occasional rock, extending over the eastern line of defendant's lot. It also appears that the son of plaintiff approached and fell into the pond from the east side, and that he could not approach it from that side without passing over Hardy's lot.
It is clear, from the petition, that this is not an action to recover damages occasioned by the negligence of defendant in failing to fence his lot along a street or highway, to guard against accidents to travelers thereon, but it is based on the alleged negligence of defendant in not fencing on a line of his lot which did not about on a street or highway, but on the private property of another; and the statement of the witness as to the impracticability of making such fence (if any obligation whatever rested upon him to build a fence there), certainly had a bearing on the question of negligence, especially so in view of the short length of time he had owned the property.
It is next insisted that the amount of damages awarded by the jury is grossly inadequate, and that the trial court erred in not granting a new trial for that reason. The question of difficulty in this case is, whether the plaintiffs had, under the undisputed facts, any cause of action against defendant. It is neither claimed in the petition, nor is it shown by the evidence, that the son of plaintiff fell into this pond while passing along or over a street or highway, by reason of the failure of the defendant to put a fence along such street, to guard against such accident; but the petition avers that plaintiff's son fell into this pond on the east side thereof, and the evidence shows that the east bank of the pond was wholly on the lot of one Hardy, with the exception of an occasional rock jutting from said bank, one of which extended about eighteen inches over the line on to defendant's lot, and that plaintiff's approach to the pond was on Hardy's...
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