Bothe v. Chicago, Burlington & Quincy Railroad Co.

• Decision Date: 28 February 1913
• Citation: Bothe v. Chicago, Burlington & Quincy Railroad Co., 154 S.W. 98, 248 Mo. 36 (Mo. 1913)
• Parties: WILLIAM BOTHE et al. v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant
• Court: Missouri Supreme Court

154 S.W. 98

248 Mo. 36

WILLIAM BOTHE et al. v. CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY, Appellant

Supreme Court of Missouri, First Division

February 28, 1913

Appeal from Lincoln Circuit Court. -- Hon. J. D. Barnett, Judge.

Transferred to St. Louis Court of Appeals.

R. H Norton for appellant.

Creech & Penn for respondents.

BOND J. Woodson, P. J., Lamm and Graves, JJ., concur.

STATEMENT BY THE COURT.

Plaintiffs state that they own a store building in the town of Old Monroe; that in 1905 defendant built and erected across the street from plaintiffs' storehouse, and about sixty feet distant, a large coal bin or chute, which, by its operation and the uses made of it by defendant and on account of its close proximity to plaintiffs' property, has become, and is, a noisome and continuing nuisance, injurious to the use of plaintiff's property, which was erected by plaintiffs at great expense to be used as a store building and long prior to the building of said bin or chute by defendant. The petition then alleges the particulars of the nuisance complained of and prays judgment for $ 800 as the damage thereby caused to plaintiffs' property.

Defendant answered, denying all the allegations of plaintiffs' petition except its corporate existence and that it owned and operated a railroad in the county of Lincoln, State of Missouri, which passed through the town of Old Monroe; and for further defense alleged that it was engaged in the use of its property for the purposes of interstate commerce, which required the use of the coal bin or chute in question; and that it was entitled to that appliance under the Constitution of the United States; and pleaded the same as giving it a right, privilege and immunity "against any attempt to assert the claim set forth in plaintiffs' petition."

Upon the issues thus joined evidence was adduced upon which the jury returned a verdict for defendant. Plaintiffs filed a motion for new trial on the ground, among others, of error in the instructions given by the court. This motion was sustained by the court for assumed error in giving, at defendant's request, instruction numbered 1, to-wit:

"If the jury believe from the evidence that whatever annoyance or injury of which plaintiffs make complaint in this case is not different in kind from that to which other persons (residing on or using real property in the vicinity of plaintiffs) are likewise subject from the same cause complained of herein then your verdict should be rendered for the defendant; and such a verdict for defendant shall be rendered, even if you also find from the evidence that plaintiffs may be...