Canman v. City of St. Louis

• Decision Date: 04 March 1889
• Citation: 11 S.W. 60,97 Mo. 92
• Parties: CANMAN et al. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

11 S.W. 60

97 Mo. 92

CANMAN et al. v. CITY OF ST. LOUIS.

Supreme Court of Missouri.

March 4, 1889.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Leverett Bell, for appellant. Muench & Cline, for respondents.

BRACE, J.

In this case the plaintiffs sue for damages to their property for the same obstruction on Jefferson avenue for which damages were claimed in the case of Fairchild v. City of St. Louis, ubi supra, (decided at this delivery,) in which the judgment of the circuit court in favor of the plaintiffs was reversed. The property of the plaintiffs in this case is situate on said street, 125 or 130 feet north of the obstruction; in that the plaintiffs' property was situate on the same street, 350 feet south of the obstruction. The cases are "on all fours" with each other, except that in this case there was some evidence that, about the time the excavation was made in the street for the depression of the railroad tracks, the grade of the street at the crossing was temporarily adjusted to the lower grade of the tracks on each side thereof, before the street was finally closed for teams, and in making this grade some macadam was taken off the street in front of a few feet of plaintiff's property. The trial court properly excluded by instruction, without exception, from the consideration of the jury, any damages by reason of such disturbance of the material in front of the plaintiffs' premises, doubtless for the reason that it was not within the cause of action set out in the petition, the gravamen of which was that the defendant "did permit and cause a deep and dangerous excavation and cut to be made across and through said Jefferson avenue, about ____ hundred feet south of said premises, for the special use and benefit of said defendant's railways, and did thereby and thereupon, and by means of fences, entirely destroy, obstruct," etc., `said street." This peculiarity, interjected improperly into this case, cannot take it out of the operation of the principle which condemned the judgment in the case of Fairchild v. City of St. Louis, supra, and in the case of Rude v. City of St. Louis, 93 Mo. 408, 6 S. W. Rep. 257, for the reasons set forth in which the judgment in this case is also reversed. All concur, except BARCLAY, J., not sitting.