Flori v. City of St. Louis

• Decision Date: 30 April 1879
• Citation: 69 Mo. 341
• Parties: FLORI v. THE CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

69 Mo. 341

FLORI

v.THE CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

April Term, 1879.

Appeal from St. Louis Court of Appeals.

Leverett Bell for appellant.

Daily & Adams and H. A. Clover for respondent.

NORTON, J.

This is an action to recover damages for injuries inflicted on Mary Flori by the prostration of a building known as Center Market, in the city of St. Louis, and is brought before us on appeal from the St. Louis court of appeals. The cause is reported in 3 Mo. App. Rep. 231, where the case is fully stated as well as the action taken by the circuit court during the progress of the trial, and relieves us of the necessity of repeating here what is said there.

It is, however, proper to say that there was evidence on the part of plaintiff tending to show that the roof of the market house was blown off and the wall prostrated by a wind storm neither unusual nor uncommon, and only of ordinary force and violence; there was also evidence on the part of defendant tending to show that the building was thrown down by a storm of unusual force, amounting to a cyclone. The controlling and principal question in the case, therefore, is, whether the wall was thrown down by an ordinary and usual wind storm, or by an extraordinary and unusual one. If by the former, the city is liable, if by the latter, it is not. The correctness of this doctrine seems to be conceded and is fully recognized by the court of appeals, but the circuit court failed to declare it, by refusing the following instruction: “If the jury believe from the evidence that the storm which overthrew the Center Market house on March 30th, 1872, was one of unusual force and violence, they will find a verdict for defendant.” It is said that the error committed in the refusal of the above instruction is cured by the fact that the same principle was contained in the second instruction given for plaintiff, and the first instruction given for defendant. While the principle contained in the refused instruction was embraced in the first given for defendant, an examination of plaintiff's second instruction shows it to be inconsistent with the said first instruction. The jury are told in plaintiff's second instruction that “unless they should believe that the wall blown down was so cast down by the action of an unprecedented or extraordinary wind storm, which was not reasonably to have been anticipated by the city, they would find for plaintiff,” while they are told in defendant's second instruction...