Calcaterra v. Iovaldi
| Decision Date | 05 March 1907 |
| Citation | 100 S.W. 675,123 Mo.App. 347 |
| Parties | CALCATERRA et al., Respondents, v. IOVALDI et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St Louis City Circuit Court.--Hon. Robt. M. Foster Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Kehr & Tittmann for appellants.
(1) Where specific acts of negligence are alleged, evidence of other acts is inadmissible. Atchison v. Railroad, 80 Mo. 213; McCarty v. Hotel Co., 144 Mo. 397; Fuchs v. St. Louis, 167 Mo. 640; Garven v Railroad, 100 Mo.App. 617; Spiro v. Transit Co., 102 Mo.App. 250. (2) Negligence and wantonness or willfulness cannot coexist. Boyd v. Transit Co., 108 Mo.App. 303; Maggioli v. Transit Co., 108 Mo.App 416; Ruebsam v. Transit Co., 108 Mo.App. 437. (3) The "necessary injury" spoken of in the statute means the necessary pecuniary loss of the parents resulting from the death of the child, and the court's instruction must point out the elements of damage which the jury may take into consideration. Rains v. Railway Co., 71 Mo. 164; Parsons v. Railway Co., 94 Mo. 287; McGowan v. Ore & Steel Co., 109 Mo. 519; Leahy v. Davis, 121 Mo. 227; Hickman v. Railroad, 22 Mo.App. 344; Stumbo v. Zinc Co., 100 Mo.App. 639; Coleman v. Land & L. Co. 105 Mo.App. 272; Brunke v. Telephone Co., 112 Mo.App. 626.
Alexander Rahm and Willis H. Clark for respondents.
(1) Evidence of other acts is admissible where such acts are in a sense collateral to that which is charged in the pleading, tending to draw an inference upon the particular act or omission, that the same was not a mere accident, and also the habits of certain of the employees. Franklin v. Railroad, 97 Mo.App. 480; Rose v. St. Louis, 152 Mo. 602; Golden v. Railroad, 84 Mo.App. 59; Golden v. Clinton, 54 Mo.App. 115; Brunke v. Telephone Co., 90 S.W. 753; 11 Am. and Eng. Ency. Law (2 Ed.), p. 512. (2) It is proper to include words "having due regard to the mitigating or aggravating circumstances" in an instruction where the evidence warwants. McCarty v. Transit Co., 91 S.W. 132; Rains v. Railroad, 71 Mo. 164; Nagel v. Railroad, 75 Mo. 653; Nichols v. Winfrey, 79 Mo. 544; Parsons v. Railroad, 94 Mo. 286. (3) Where there were aggravating circumstances the jury should not be restricted to a mere question of dollars and cents. Morgan v. Durfee, 69 Mo. 469. (4) It was the duty of counsel for defendants to ask instructions limiting the elements of damages, and court did not err in the giving of instructions for plaintiff. Geisman v. Electric Co. , 173 Mo. 679; Barth v. Railroad, 142 Mo. 556; McGowan v. Ore & Steel Co., 109 Mo. 541.
This appeal was taken from a judgment for four thousand dollars 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, to recover $ 5,000 damages for the death of the child. Suffice to say as to the evidence, that it has a tendency to prove the accident was caused by the gross negligence of an employee of appellants. The petition contains no direct allegation of wantonness or recklessness, but avers that appellants, by an agent, servant or employee, carelessly and negligently and without regard to the safety of the deceased or other persons passing, caused a beer barrel to fall out of a 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 appellant's 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 he 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 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; Darling v. Westmoreland, 52 N.H. 401.] 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, 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 injury to other persons before, is held by some courts to be competent, while others hold the contrary; as will be seen by comparing the following authorities. In this State the admissibility of previous accidents at a defective place in a sidewalk was considered in Goebel v. Kansas City, 148 Mo. 470, 50 S.W. 84, and such evidence ruled to be inadmissible; in effect overruling Golden v. Clinton, 54 Mo.App. 100. In the opinion in the Goebel case the Supreme Court noticed the conflict in the decisions and said the weight of authority was that such evidence should be excluded as tending to divert the minds of the jury from the question to be decided to collateral issues, create a prejudice in their minds against the defendant and surprise him with an issue the pleadings did not present. Those, in substance, are the grounds on which text-writers state that such testimony is held inadmissible in most jurisdictions. [1 Greenleaf, Evidence (16 Ed.), sec. 14a.] The competency of a collateral fact in a given case turns, as we have said, on whether or not the court deems its bearing on the main issue to be so intimate and valuable as proof of the main fact that the objections to collateral evidence may be disregarded. Obviously there will often be a diversity of views on such a matter; hence the conflict in the opinions dealing with the subject. Likely proof of a negligent custom is admissible as tending to show negligence in an alleged instance of the custom. [1 Wigmore, Evidence, sec. 97; Brunke v. Telephone Co., 115 Mo.App. 36, 90 S.W. 753.] In the present case the...
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