Haney v. City of Kansas

Decision Date05 March 1888
Citation94 Mo. 334,7 S.W. 417
PartiesHANEY v. CITY OF KANSAS.
CourtMissouri Supreme Court

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Albert Young, for appellant.

BLACK, J.

This is a suit for damages to the foundation walls of the plaintiff's building, and for the loss of the use of his cellar, and for the destruction of property stored therein, occasioned, it is alleged, by negligence on the part of the defendant in allowing the curbing, guttering, and sidewalk near the premises to become and remain out of repair, and by reason of which water ran into the cellar. The verdict was for defendant, and the plaintiff appealed.

Error is assigned only in the refusal of the court to give the plaintiff's third and fourth instructions. The third, in substance, told the jury to find for the plaintiff, unless they believed the damage complained of was occasioned by the act of God as the sole and proximate cause. There was evidence that the damage resulted from a rain-storm of extraordinary and unusual violence; but this was not the only defense. Evidence was offered, it is said in the bill of exceptions, tending to disprove all the allegations of the petition. This instruction resolves all other issues in favor of the plaintiff; and that, too, in the face of the evidence, and regardless of the pleadings. For these reasons it was properly refused. The fourth instruction is that "if you believe the damage complained of was caused by the act of God, or inevitable accident, in which the negligence of the defendant concurred and contributed to said damage, then you must find for the plaintiff." It is the settled law in this state, in respect of the liabilities of common carriers, that the act of God which will excuse them must be the sole cause of the loss or injury. If the negligence of the carrier mingles with the act of God, and is an active and co-operative cause, the carrier is still liable. Wolf v. Express Co., 43 Mo. 421; Read v. Railroad Co., 60 Mo. 199; Pruit v. Railroad, 62...

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22 cases
  • Willson v. Boise City
    • United States
    • Idaho Supreme Court
    • June 28, 1911
    ...v. Northern P. R. Co., 9 Idaho 392, 74 P. 1075; Lamb v. Licey, 16 Idaho 664, 102 P. 378; Chicago v. Rustin, 99 Ill.App. 47; Haney v. Kansas, 94 Mo. 334, 7 S.W. 417.) Puckett & Hawley, for Respondent. This court, in a case where the present litigants were the parties, held the city liable fo......
  • Newcomb v. New York Central & Hudson River Railroad Company
    • United States
    • Missouri Supreme Court
    • June 28, 1902
    ... ...           Appeal ... from St. Louis City" Circuit Court. -- Hon. Franklin Ferris, ...           ... Reversed and remanded ...  \xC2" ... (6) ... The court below committed no error in its rulings on the ... evidence. Goble v. Kansas City, 148 Mo. 470. (7) ... Under the pleadings and plaintiff's own testimony, the ... court ... 199; Pruitt v. Railroad, 62 Mo. 527; ... Davis v. Railroad, 89 Mo. 340, 1 S.W. 327; Haney ... v. Kansas City, 94 Mo. 334, 7 S.W. 417; Am. Brew ... Ass'n v. Talbot, 141 Mo. 674, 42 ... ...
  • Fleddermann v. St. Louis Transit Company
    • United States
    • Missouri Court of Appeals
    • November 17, 1908
    ... ... LouisNovember 17, 1908 ...           Appeal ... from the St. Louis City Circuit Court.--Hon. Chas. Claflin ... Allen, Judge ...           ... Judgment ... 276; Grier v. Railroad, 108 Mo.App. 565, ... 570; Nagel v. Railroad, 75 Mo. 653; Haney v ... Kansas City, 94 Mo. 334, 7 S.W. 417; Benjamin v ... Railroad, 133 Mo. 274; Brash v. St ... ...
  • Fleddermann v. St. Louis Transit Co.
    • United States
    • Missouri Court of Appeals
    • November 17, 1908
    ...53 Mo. App. 276; Grier v. Railroad, 108 Mo. App. 565, 570, 84 S. W. 158; Nagel v. Railroad, 75 Mo. 653, 43 Am. Rep. 418; Haney v. Kansas City, 94 Mo. 334, 7 S. W. 417; Benjamin v. Railroad, 133 Mo. 274, 34 S. W. 590; Brash v. St. Louis, 161 Mo. 433, 61 S. W. 3. Plaintiff's injuries were thu......
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