Calcaterra v. Iovaldi

• Decision Date: 13 November 1906
• Parties: CALCATERRA et al. v. IOVALDI et al.
• Court: Missouri Court of Appeals

100 S.W. 675

123 Mo. App. 347

CALCATERRA et al. v. IOVALDI et al.

St. Louis Court of Appeals. Missouri.

November 13, 1906.

1. NEGLIGENCE — ACTIONS — ADMISSIBILITY OF EVIDENCE—SIMILAR OCCURRENCES.

In an action to recover damages for the death of a child who was struck by a barrel that fell from a second-story window in a building occupied by defendants, evidence that barrels had fallen out of the window previous to the accident is inadmissible, although one defense was that the falling was an accident.

2. SAME — WEIGHT OF EVIDENCE — NEGLIGENCE.

Evidence in an action to recover damages for the death of a child struck by a barrel falling from a window held to show negligence of defendants.

3. DEATH — ACTIONS — INSTRUCTIONS — DAMAGES.

In an action to recover damages for the death of a child, the court charged that the jury might give such damages, not exceeding $5,000, as they deemed fair and just with reference to the necessary injury resulting to plaintiffs, and having regard also to the mitigating or aggravating circumstances attending the neglect complained of. Held, that the instruction, though following in substance the language of the statutes, is erroneous as likely to be interpreted to allow damages for sorrow, or for benefits that might have accrued during the child's life.

4. SAME — DAMAGES — ELEMENTS OF COMPENSATION —MENTAL SUFFERING.

In an action to recover for the death of a child, damages cannot be awarded the parents for sorrow or for benefits that might have accrued during the child's life, but only pecuniary damages such as will compensate the parents for the value of the child's life during minority, and for the expense of caring for it after the injury and burying it, from which are to be deducted the reasonable cost, if shown, of keeping the child.

5. DAMAGES — INSTRUCTIONS — EXEMPLARY DAMAGES.

Where there is evidence in an action to recover for the death of a child caused by the falling of a barrel from a window that the barrel was thrown out or thrown recklessly on a box by the window, the jury should have been told that exemplary damages might be given if such facts were proved, but, if there was evidence that the accident was due to lack of ordinary care only, then they should have been instructed to give damages for pecuniary loss only.

Appeal from St. Louis Circuit Court; Robt. M. Foster, Judge.

Action by Carlo Calcaterra and others against Joe Iovaldi and others. Judgment for plaintiffs, and defendants appeal. Reversed and remanded.

Kehr & Tittmann, for appellants. Alexander Rahm and Willis H. Clark, for respondents.

GOODE, J.

This appeal was taken from a judgment for $4,000 against the appellants. Respondents were the parents of Rosa Calcaterra, a child seven years old at the time of her death. She was killed by the falling of a beer keg or barrel from a window in the second story of a building used as a dramshop by appellants. This building was at the southwest corner of Cooper street and Shaw avenue, two traveled thoroughfares in the city of St. Louis. While the deceased was walking along the west side of Cooper street on May 23, 1904, a heavy barrel fell out of the window, striking her on the head, and crushing her skull so that she died. This action was brought on sections 2864 and 2865 of the Revised Statutes of 1899 [Ann. St. 1906, pp. 1637, 1644] to recover $5,000 damages for the death of the child. Suffice to say as to the evidence that it had a tendency to prove the accident was caused by the gross negligence of an employé of appellants. The petition contains no direct allegation of wantonness or recklessness, but avers that appellants, by an agent, servant, or employé, carelessly and negligently, and without regard to the safety of the deceased or other persons passing, caused a beer barrel to fall out of the window of the premises occupied by appellants, striking the deceased on the head and inflicting such injuries that she died from them.

The court received testimony, over appellants' objection, tending to show that other barrels had been seen to fall from the upper window of the saloon within a week previous to the accident. One witness testified that he saw six or seven barrels drop into the street from the window at one time. This witness' testimony is not positive that the barrels were thrown out of the window, but the belief that they were can be derived from what is said. Another witness testified to seeing a barrel thrown out of the window previous to the accident in question, but at a date which was left indefinite. The reception of this testimony is assigned for error, and whether it was competent, considering that one of the defenses submitted was that the falling of the barrel was purely accidental, has proved to be a question of very great difficulty, both on principle and authority. After much research among the cases and text-writers, we have concluded that the weight of authority and the decisions in this state are against its competency. In an action like this exemplary damages may be given if there are circumstances of aggravation, and such incidents as the foregoing leave the impression that the barrel which killed the child was recklessly thrown into the street. Still it may not have been. In certain classes of negligence cases evidence of other negligent acts besides the one charged has been received as tending to prove negligence in the act charged. It is said the collateral act may be proved if the inference may be drawn from it that the act charged was or was not negligent; but a study of the cases reveals, we think, that the admissibility of proof of the collateral act depends finally on the cogency of the proof it affords regarding the main issue— on whether it is so closely related to the main issue that its value as evidence is high enough to justify disregarding the objections to the reception of proof of collateral acts. In cases for damages caused by the fright of horses at objects on a highway, testimony that other horses had taken fright at the same objects has been held competent on the issue of whether this happened in the particular case. Golden v. Railroad, 84 Mo. App. 59, 65; Crocker v. McGregor, 76 Me. 282, 49 Am. Rep. 611; Darling v. Westmorland, 52 N. H. 401, 13 Am. Rep. 55. This is on the theory that the disposition of horses to take fright is sufficiently uniform to raise a probability that what will frighten one will another. Yet likely the application of this rule would be qualified in some measure by a consideration of the accustomed environment of the horses drawn into comparison; because many objects in a city which would not alarm horses familiar with them frighten horses from the country. In Rose v. St. Louis, 152 Mo. 602, 54 S. W. 440, an action for damages caused by a stone falling from a cornice, the charge being that the cornice was loosely constructed of rotten stone, it was held proper to show other stones had fallen from it, for the reason that the loose state of the other stones might have caused the one which inflicted the injury to fall; and also as tending to show notice to the city of the unsafe condition of the cornice. In Evans v. Gas Co., 148 N. Y. 112, 42 N. E. 513, 30 L. R. A. 651, 51 Am. St. Rep. 681, an action for injury to the plaintiff's trees by escaping gas, it was held competent to show the condition of other trees in the vicinity. In those instances the collateral facts obviously had a very strong probative bearing on the issue to be tried. Evidence that a defect in a sidewalk, street, machinery, or appliance which is alleged to have caused an injury in suit had caused injuries to other persons before is held by some courts to be competent, while others hold the contrary, as...