7 S.W. 431 (Mo. 1888), Stone v. Hunt

Citation:7 S.W. 431, 94 Mo. 475
Opinion Judge:Sherwood, J.
Party Name:Stone v. Hunt, Executrix, Appellant
Attorney:Napton & Frost for appellant. Dyer, Lee & Ellis for respondent.
Judge Panel:Sherwood, J. Ray, J., absent.
Case Date:March 19, 1888
Court:Supreme Court of Missouri
 
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Page 431

7 S.W. 431 (Mo. 1888)

94 Mo. 475

Stone

v.

Hunt, Executrix, Appellant

Supreme Court of Missouri

March 19, 1888

Appeal from St. Louis City Circuit Court. -- Hon. George W. Lubke, Judge.

Reversed and remanded.

Napton & Frost for appellant.

(1) The plaintiff should have been non-suited. 82 Mo. 150. The case as established falls within the rule that the owner is not responsible for the damages done on or by the use of real estate when the relation of master and servant does not exist between him and the person causing the injury. Berry v. St. Louis, 17 Mo. 125; Morgan v. Bowman, 22 Mo. 546; Clark v. Railroad, 36 Mo. 228; Whart. on Neg., sec. 818; Thomp. on Neg., secs. 914-15; Blumb v. Kansas City, 84 Mo. 112. (2) The third instruction given by the court of its own motion is erroneous. Gorham v. Gross, 125 Mass. 232; Crawshaw v. Sumner, 56 Mo. 517. It is in conflict with other instructions given. Sullivan v. Railroad, 88 Mo. 169. (3) Hunt cannot be held liable unless he was in possession and control of the house. (4) There was abundant evidence of contributory negligence on plaintiff's part introduced without objection; therefore, the instructions asked by defendant on contributory negligence should have been given, although it was not pleaded. Bliss on Code Pleading, sec. 329, ad fin., and note 4; Jones v. Railroad, 42 Wis. 306; Jonesboro v. Baldwin, 57 Ind. 86; Hathaway v. Railroad, 46 Ind. 25; Railroad v. Rutherford, 29 Ind. 82; Schans v. Manhattan, 14 Abb. Pr. (N. S.) 371. A careful examination of the Missouri decisions shows that there is nothing in them to controvert this position, especially since the statute allowing general denials. Wheeler v. Tensley, 75 Mo. 458; Sparling v. Conway, 75 Mo. 510; Ellet v. Railroad, 76 Mo. 518; Cousins v. Railroad, 66 Mo. 572; Farner v. Simmons, 10 Mo.App. 596. Contributory negligence may be given in evidence under the general issue. 2 Col. 154; 3 M. & W. 244; 86 Mo. 104. (5) The court erred in admitting Stone's testimony as to value. Dunlap v. Snyder, 17 Barb. 561; 2 Sedg. on Dam. 585, 633-6.

Dyer, Lee & Ellis for respondent.

(1) The proof in this case fully supports the averments of the petition, which is drawn upon the same theory, and in substantially the same language, as the petition in the case of Dillon v. Hunt, which was held to be good by this court. 82 Mo. 150; Althorpe v. Wolfe, 22 N.Y. 359; Gray v. Boston, 114 Mass. 153. (2) The instructions given by the court to the jury...

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