Ellis v. Kansas City, St. Joseph & Council Bluffs R.R. Co.

• Decision Date: 31 October 1876
• Citation: 63 Mo. 131
• Parties: MARGARET E. ELLIS, Plaintiff in Error, v. KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS RAILROAD COMPANY, Defendant in Error.
• Court: Missouri Supreme Court

63 Mo. 131

MARGARET E. ELLIS, Plaintiff in Error,

v.KANSAS CITY, ST. JOSEPH AND COUNCIL BLUFFS RAILROAD COMPANY, Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Jackson Special Law and Equity Court.

F. M. Black, with Chas. 1. Thomson, for Plaintiff in Error.

For injuries to the wife, two causes of action accrue, one to the wife, for personal injuries and physical suffering that she has sustained, and the other to her husband, for expenses and loss of services incurred by reason of the injuries. In the former the husband is joined, as a nominal party only, if living. (Smith vs. City of St. Joseph, 55 Mo. 456.) On the death of the husband, the cause of action in favor of the wife survives to her. (Johnson vs. Dickens, 25 Mo. 583.) This is an action for damages arising from injuries to the health of plaintiff. (Vanderburg vs. Truax, 4 Den. 464; Higby vs. Hewitt, 5 Exch. 243; People vs. Corporation of Albany, 11 Wend. 539.) Injuries to health, occasioned by an infected atmosphere or otherwise, are placed in the same category with injuries to the body or limbs, and are equally actionable. (3 Chit. Blackst. Com., marg. pp. 119-123.)

This being an action for injuries to the person, and not to the property, it is unnecessary to determine whether they belong to the class of public or private nuisances, as defined by the common law. When the result of the nuisance is special damage, such as injury to the health, the party suffering the injury has an action for damages, whether the nuisance be such as is termed public or private. (Story vs. Hammond, 4 Ohio, 376; Welton vs. Martin, 7 Mo. 307; Lansing vs. Smith, 4 Wend. 9; Smith vs. McConalty, 11 Mo. 517; Ray vs. Sellers, 1 Duv. [Ky.] 254.)

The second and third instructions given for the defendant seem to have proceeded on the theory that the cause of action was for damages to realty, instead of personal injuries to the wife.

B. F. Stringfellow, for Defendant in Error.

The only private nuisances known to the law are such as affect property. (2 Greenl. Ev. §§ 465, 470.) And none but the one in lawful possession of the property can complain. The possession by the husband as tenant from a stranger, is not the possession by the wife living with her husband.NORTON, Judge, delivered the opinion of the court.

This was an action brought by plaintiff in the special law and equity court of Jackson county, to recover damages for a nuisance. It is alleged in the petition that the plaintiff and her husband and their children were living in a certain house in Platte county, of which her husband had the possession, situated about forty yards from the railroad track of defendant; that during their occupancy of said house the defendant, by their locomotive, ran against and killed a horse, directly opposite the house occupied by plaintiff, and permitted the same to remain on the side of their railroad track for about two weeks, during which time, by the decomposition of the carcass, the surrounding atmosphere became so noxious and offensive as to render the house occupied by the plaintiff unwholesome, and caused her to become seriously sick. The answer denies all the material allegations of the petition.

Upon the trial of the cause plaintiff offered evidence which tended to prove that in July, 1872, defendant, by its engine, killed a horse opposite to the house in which plaintiff, with her husband and family, lived, and about forty yards therefrom; that the carcass was permitted to lie on the side of the track of defendant's road, unburied, for about eight days, during which time it became so offensive as to render the occupancy of the house unwholesome, and caused sickness to the occupants thereof: that plaintiff, during the continuance of the nuisance, suffered from headache and nausea, and that in September following she was taken bed-fast and lay in bed some weeks; that plaintiff's husband died the 31st of October, 1872, of some disease of the lungs.

Defendant offered evidence tending to show, that before the horse was killed plaintiff's husband was suffering from a disease of the lungs, and also the evidence of a physician, who testified that he had devoted himself to the study of the effects of animal decomposition; had heard the evidence of plaintiff; that from the symptoms described by her, her sickness was not produced by the effects of animal decomposition, but was of a malarial character, irregular remittent or intermittent fever.

The plaintiff asked six instructions, all of which were refused by the court, to which plaintiff excepted. The court gave three instructions for defendant, and to the giving of the second and third of them plaintiff excepted, and thereupon took a non-suit, with leave to move to set the same aside. A motion for that purpose was filed and overruled, to which plaintiff excepted, and brings the case here for review by writ of error.

The court refused the following instructions asked for by plaintiff:

“If the jury believe from the evidence, that plaintiff and her husband were, in the months of July and August, 1872, living and residing in the house some thirty or forty yards from the line of defendant's railroad track; that said husband deceased before the commencement of this suit; that in the month of July, 1872, the defendant, by its cars or engines, ran over and killed a certain horse at or near said house, and that defendant permitted said horse to lie where thrown on the side of the track in the sun, and there decompose; that thereby the surrounding atmosphere and said house were filled with stenches...