Egan v. United Rys. Co. St. Louis

• Citation: 227 S.W. 126
• Decision Date: 04 January 1921
• Docket Number: No. 16308.,16308.
• Parties: EGAN et al. v. UNITED RYS. CO. ST. LOUIS.
• Court: Court of Appeal of Missouri (US)

227 S.W. 126

EGAN et al. v. UNITED RYS. CO. ST. LOUIS.

No. 16308.

St. Louis Court of Appeals. Missouri.

January 4, 1921.

Rehearing Denied February 4, 1921.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

"Not to be officially published."

Action by John P. Egan and another against the United Railways Company of St. Louis. Judgment for defendant, and plaintiffs appeal. Affirmed.

Earl M. Pirkey and John T. Manning, both of St. Louis, for appellants.

T. E. Francis and W. M. Hezel, both of St. Louis,' for respondent.

NIPPER, C.

This is an action for damages brought by plaintiffs, husband and wife, on account of alleged injury to plaintiffs' property, located in the city of St. Louis, caused by the defendant's cars being operated over a defective track located in front of the premises of plaintiffs. The defects in the track consisted of broken places in the rails, and holes in the surface of the street under the rails, so that when the street cars were operated over this track they would strike the end of the rails, jump up and down, and jar the premises of plaintiffs. The petition seeks to recover for such damages occurring between July 20, 1916, and January 20, 1917.

Plaintiffs introduced evidence tending to show that these damages, consisting of cracks in the walls, ceilings, and foundation of the house, and the separation of the steps from the porch, were caused by the vibration and shaking produced by defendant's street cars while being operated over its defective tracks in front of their premises. The evidence offered on the part of the defendant was to the effect that the damages to plaintiffs' property were caused by the natural shrinkage in the material used in the building located on these premises, and the settling of the foundation. There was a verdict for defendant, and plaintiffs appeal.

The first assignment of error urged for our consideration is that there was error in the modified instruction No. 1 given for the plaintiffs, and particularly in that portion which reads as follows:

"* * * And that when defendant, during the period between July 20, 1916, and January, 1917, operated cars over said rails, at said places, they caused the street and said building of plaintiff to be jarred and shaken, and the house to be damaged."

The objection urged to this is that it erroneously confined the plaintiffs' right to recover to the period between July 20, 1916, and January 1, 1917, while the petition alleged, and the proof showed, damages occurring up to January 20, 1917. When this instruction is read as a whole, and in connection with the other instructions given in the case, we do not think that such was reversible error, because in the same instruction the jury were instructed that, if they found that plaintiffs were the owners of the property, and the defendant was operating a street railway line along Broadway, on which these premises were located, between July 20, 1916, and January 20, 1917, and that for a time or times between those dates the rails of said street railway were broken in places, and there were holes in the street, etc.

The instruction on the measure of damages, which was instruction No. 3, told the jury that if they found for plaintiffs they should assess their damages at such sum as equals the difference, if any (caused by said injuries mentioned in the first instruction, and sustained between July 20, 1916, and January 20, 1917), between the value of the house immediately before and immediately after said injuries were sustained. We do not think these instructions are conflicting, as contended by appellants. Mere is no question here as to the amount of the verdict being insufficient or excessive, because the jury found the issues for the defendant. If the jury had found for plaintiffs, and they were here complaining on account of the amount of the verdict, we would be confronted with a different Proposition.

Objection is also made to instruction No. 5 given for the defendant, which was as follows:

"The court instructs the jury that defendant was entitled to operate its cars upon the tracks in question, and if you find and believe from the evidence that said cars were operated in a reasonably careful...