Dammann v. City of St. Louis

• Citation: 152 Mo. 186,53 S.W. 932
• Parties: DAMMANN et ux. v. CITY OF ST. LOUIS.
• Decision Date: 14 November 1899
• Court: Missouri Supreme Court

53 S.W. 932

152 Mo. 186

DAMMANN et ux. v. CITY OF ST. LOUIS.

Supreme Court of Missouri, Division No. 1.

November 14, 1899.

MUNICIPAL CORPORATIONS — DEFECTIVE WATER MAINS — NEGLIGENT CONSTRUCTION — DAMAGES TO PROPERTY — EXCESSIVENESS — REPAIR OF INJURY — ESTOPPEL TO DENY LIABILITY — EVIDENCE — ADMISSIBILITY — INSTRUCTIONS — APPEAL — HARMLESS ERROR.

1. Plaintiff sued a city for damages occasioned by a leaking water main alleged to have been negligently constructed. The main was laid in filled soil, and rested on loose earth. The earth with which the fill was made was dry. The main was bent down and broken. Held, that whether the city was negligent in laying the main in such soil without other foundation to support it was for the jury.

2. In an action against a city for damages occasioned by a leaking water main, alleged to have been caused by its negligent construction, defendant is not estopped from denying its liability by having undertaken to repair plaintiff's property.

3. In an action against a city for damages occasioned plaintiff's property by a leaking water main, an instruction to find for plaintiff if the injury was caused by the leak and the leak was directly caused by the unskillful laying of the pipe is not objectionable as assuming that the pipe was unskillfully laid.

4. In an action for damages to a building occasioned by defendant's negligence, evidence that the building was about two years old, of its cost, of its material, and its condition at the time of and just after the injury, and the cost of restoring it to its original condition, is sufficient basis for an instruction that, if the jury find for plaintiff, they will allow him the difference in the value of the building before and just after the injury.

5. In an action for damages occasioned plaintiff's dwelling and furniture by a leaking water main, the admission of evidence as to the damage to the furniture over objection that witness did not qualify as an expert, and could not state whether the furniture was injured by the water or otherwise, is not reversible error where the jury allow only an amount within the damage suffered as shown from the unquestioned evidence.

6. A judgment will not be reversed for a ruling on the introduction of evidence to which no exception is reserved.

7. In an action for damages occasioned a building which defendant had attempted to repair, it is not error to refuse to allow a witness, who examined it after the repairs, to state that he found everything perfectly satisfactory, for it was immaterial that it was repaired satisfactorily to the witness, the sufficiency of the repairs being for the jury.

8. It is not error to refuse to allow the witness, after stating the condition in which he found certain parts of the building, to give his opinion as to how long such conditions had existed, since, from the facts, a correct conclusion could be drawn by the jury as well as by the witness.

9. An owner sued a city for damages to his property, occasioned by a leaking water main. The building was about two years old, and cost about $1,700. The cost to repair the damage was estimated at from $700 to $1,100. Held, that a verdict for plaintiff for $900 was not excessive.

Appeal from St. Louis circuit court; John A. Talty, Judge.

Action by Albert and Caroline Dammann against the city of St. Louis to recover for damages to their property, occasioned by a leaking water main. From a judgment for plaintiffs, defendant appeals. Affirmed.

B. Schnurmacher and Chas. C. Allen, for appellant. Lubke & Muench, for respondents.

BRACE, P. J.

The petition in this case, in substance, charges: That the plaintiffs are husband and wife, and owners as tenants in fee by the entirety of lot No. 5 in city block 2,717, "Gietner Place," in said city, on which was a substantial frame building, No. 2823 Neosho street, with rock foundation, as well as necessary fences and outhouses, and which was on the 5th of August, 1895, occupied by them and their family as a home. That prior to the injuries herein complained of the city of St. Louis did locate and place a main water pipe in the public street of said city in front of and adjoining the lot so owned by plaintiffs, but that the said water pipe or main was so carelessly and negligently, by the servants and employés of the said city in charge of the work of placing the same, laid or placed in and upon said street as that the same rested upon freshly-filled and soft ground, without any adequate support to prevent the same from sinking and becoming leaky at and near a point opposite to plaintiffs' said premises; and that the said defendant's officers and agents well knew, or by the exercise of ordinary care and caution could have known, that said water pipe, so placed by them, was in danger at any time of sinking, and springing leaks at the joints thereof or elsewhere. That the defendant did so carelessly and negligently maintain or keep the said water pipe, and did so carelessly and negligently fail to inspect or repair the same, as that on or about the 5th day of August, 1895, the said main water pipe did sink, become leaky, and burst, through the causes aforesaid, and thereupon large quantities of water were discharged from said pipe into the said loose and filled ground, which quantities of water did find their way and seep into the ground underlying plaintiffs' said house, and did completely soften and undermine the foundations thereof, so that on or about said 5th day of August, 1895, plaintiffs' said house did suddenly collapse and fall, almost entirely destroying the same, and also destroying the furniture hereinafter mentioned, and compelling plaintiffs and their family to suddenly flee therefrom to save themselves and some of their said property. That thereupon the said defendant, the city of St. Louis, admitting and recognizing its said carelessness in the premises, as well as its responsibility for the damage and injury inflicted upon plaintiffs, did attempt to replace, re-erect, and repair the said building and house of plaintiffs, and restore it to its former usefulness, but that said city entirely failed in its efforts so to replace the same, in that the foundation to said building was rebuilt in an entirely unsafe and unsecure manner, permitting the said house to still further sink, and become out of repair; in that the defendant failed to replace the chimney on said house as it had theretofore been, and failed to properly replace the plastering, painting, and other inside finish of said house, or to properly connect the walls, ceilings, and roof of said house, or to cause the doors or windows to properly work; so that the said building is now still damaged in the sum of $1,200. That the furniture and personal property of plaintiffs was, by and through the fall of said building and the enforced removal therefrom of plaintiffs in saving the same from entire destruction, injured to the extent of $95, and plaintiffs were compelled to pay, for so removing the same, the sum of $12. That plaintiffs, by reason of their inability to occupy their said home after the injury thereof as aforesaid, have been compelled to pay rent and reside elsewhere, to their damage in the sum of $100. That plaintiffs have often demanded from defendant their damages as aforesaid, but defendant has wholly failed and refused to pay the same. Wherefore they pray judgment against defendant for the sum of $1,407, together with interest thereon, and their costs. The answer was a general denial. In the course of the trial, exceptions were saved to some of the evidence introduced in support of the allegations of the petition, and at the close of plaintiffs' evidence a demurrer thereto was interposed, overruled, and exception saved. Exceptions were also saved to the action of the court in rejecting some evidence offered by the defendant. The case was submitted to the jury on instructions, to two of which defendant excepted. They are as follows: "(1) The court instructs the jury that if they find from the evidence that the flooding of plaintiffs' premises and the damage to their building and personal property was caused by a leak in a public water main laid by the city of St. Louis in one of its public streets, and that such leak was directly caused by the negligent and unskillful laying of said pipe by the persons in charge of said work, or the failure on the part of the officers of defendant to exercise ordinary care or prudence in keeping the same in a safe condition, then their findings must be for the plaintiffs." "(3) If the jury find for the plaintiffs, then they will assess to them the difference in value of the building as it stood before the injury and its value as the jury shall find the same to have been after said injury, less the actual value of any improvements or repairs made thereon by the defendant city. And the court further instructs the jury that, if they find for the plaintiffs under other instructions given, they should include in their finding such damage, if any, as they find to have been directly caused by reason of the bursting of the water pipe in question to any articles of personal property belonging to both plaintiffs together, as well as the reasonable expense of removing the same to a place of safety; and such expense, by way of rental, as you may find the plaintiffs were compelled to pay for quarters elsewhere until the delivery of possession of the plaintiffs' building by the defendant city." The jury returned the following verdict: "We, the jury, find a verdict in favor of the plaintiffs in the sum of $1,000, as follows: $24 for rent, $12 for removing furniture, $64 for damages to furniture, $900 for damages to the house;" and from the judgment thereon the defendant appeals. The errors assigned for reversal are: The refusal to sustain the demurrer to the evidence, the giving of instructions 1 and 3 for the plaintiffs, the admission of illegal evidence for the...