61 S.W. 808 (Mo. 1901), Brash v. City of St. Louis

Citation:61 S.W. 808, 161 Mo. 433
Opinion Judge:BRACE, J.
Party Name:BRASH v. CITY OF ST. LOUIS, Appellant
Attorney:B. Schnurmacher and Chas. Claflin Allen for appellant. Clinton Rowell and J. H. Zumbalen for respondent.
Judge Panel:BRACE, J. Marshall and Valliant, JJ., not sitting.
Case Date:March 26, 1901
Court:Supreme Court of Missouri
 
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Page 808

61 S.W. 808 (Mo. 1901)

161 Mo. 433

BRASH

v.

CITY OF ST. LOUIS, Appellant

Supreme Court of Missouri

March 26, 1901

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant, Judge.

Affirmed.

B. Schnurmacher and Chas. Claflin Allen for appellant.

(1) Instructions 1 and 2, given for plaintiff, were erroneous in authorizing the jury to find against defendant, although the sewer in question burst in consequence of an extraordinary and unusual rainfall. The city was not bound to provide against a danger of this character; its obligation was merely to maintain a sewer of sufficient capacity and strength to withstand the force and power of ordinary storms. Flori v. St. Louis, 69 Mo. 341; Turner v. Haar, 114 Mo. 335. (2) Instruction 1 is not consistent within itself. (a) It declares to the jury that the city is not bound to construct its sewers so as to withstand extraordinary rainfalls, or an act of God, and immediately adds, "yet it is the duty of the city to guard, as far as reasonable foresight and prudence can, against dangers from extraordinary rainfalls." (b) The same instruction, while charging that the city's duty is to construct and maintain its sewers in accordance with ordinary and usual methods, yet instructs the jury to find for plaintiff "notwithstanding the unusual rainfall" if the city failed to perform "its full duty" in the construction, repair and covering of the sewer. (3) Defendant's instruction 6, to the effect that the verdict should be for defendant if the jury found from the evidence that the bursting of the sewer was caused by a storm of unusual force and violence, should have been given. (4) The instructions defining negligence should have been given. The term was used in the instructions and should have been defined; particularly in view of the vagueness and indefiniteness and uncertainty of plaintiff's instruction 1, which left the jury utterly at sea as to what constituted negligence in law.

Clinton Rowell and J. H. Zumbalen for respondent.

(1) Although the sewer may have burst in consequence of an extraordinary and unprecedented rain storm, nevertheless the defendant is liable, if its negligence contributed to and became an active agency with the act of God in producing the damage. Shearman & Redfield on Negligence (5 Ed.), sec. 39; Haney v. City of Kansas, 94 Mo. 334; Woods v. City of Kansas, 58 Mo.App. 272; Am. Brew. Co. v. Talbot, 141 Mo. 680; Vanderslice v. Philadelphia, 103 Pa. St. 102. (2) The plaintiff's instructions are not open to the objections made against them, and correctly apply the foregoing rule to the particular acts and omissions complained of. (3) (a) Defendant's sixth instruction was properly refused, because it ignored entirely the question of defendant's negligence as an active agency with the act of God in producing the injury, and because the definition was misleading. (b) Defendant's seventh instruction, defining negligence, was properly refused, because the instructions given sufficiently defined the degree of care. Sweeney v. Railroad, 150 Mo. 385. (4) (a) The evidence fails to show that the rainfall in question was an extraordinary or unprecedented one; but does show affirmatively that it was such as ordinary care and prudence should have anticipated. Powers v. Council Bluffs, 50 Iowa 197; Mayor of New York v. Bailey, 2 Denio 433. (b) The verdict and judgment are for the right party, and should therefore be affirmed. R. S. 1899, sec. 865...

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