Frick v. Kansas City

• Decision Date: 02 April 1906
• Citation: 117 Mo. App. 488,93 S.W. 351
• Parties: FRICK v. KANSAS CITY et al.
• Court: Missouri Court of Appeals

93 S.W. 351

117 Mo. App. 488

FRICK v. KANSAS CITY et al.

Kansas City Court of Appeals. Missouri.

April 2, 1906.

1. EVIDENCE—EXPERTS—QUALIFICATIONS.

Where, in an action for damages for a nuisance, plaintiff testified that she knew what it would cost to repair the damage done to the foundation wall of her house, such evidence, uncontradicted, was sufficient to entitle her to testify to such cost as an expert.

2. APPEAL—HARMLESS ERROR—INSTRUCTIONS.

Where, in an action for a nuisance, the instructions expressly excluded any damage that accrued after plaintiff signed a petition requesting the city to permit certain street dirt, of which plaintiff complained, to remain in the street, the admission of evidence that at the time plaintiff signed the petition it was represented to her that the dirt would be left there for two or three weeks was not prejudicial to defendant.

3. SAME—THEORY OF CAUSE—OBJECTIONS.

Where, in an action for nuisance, the case was tried by both parties and by the court on the assumption that an affirmative defense by defendant city was in issue, defendant could not object on appeal that such defense was admitted by plaintiff's failure to reply thereto.

4. MUNICIPAL CORPORATIONS—STREETS—LAWFUL USE.

A city contractor, in the construction of a sewer in a street, may temporarily use the same in a reasonably careful manner for the piling thereon of dirt taken from the excavation.

5. NUISANCE—INJURIES TO PROPERTY.

Where a city sewer contractor, in an unreasonable and oppressive manner, wantonly piled dirt from the sewer excavation in the street and on a vacant lot adjoining plaintiff's property, so as to entirely deprive her of ingress and egress, and so as to precipitate surface water in large volumes onto her property and into her cellar, and failed to remove the same with reasonable diligence, such acts constituted a private nuisance, for which plaintiff was entitled to recover.

6. MUNICIPAL CORPORATIONS—STREETS—NUISANCE—CITY'S LIABILITY—NEGLIGENCE.

Where a city had control of its public streets, the right of supervision over the same, and power to abate private nuisances erected therein, the city was liable to an adjoining property owner for a private nuisance erected and maintained in the street opposite her property, which the city failed to abate, without proof that the city was guilty of negligence.

7. NUISANCE—PRIVATE NUISANCE—DAMAGES.

Where, in an action for damages from a private nuisance, the damage to the rental value of the property inflicted by the nuisance during its continuance would be wholly inadequate to compensate plaintiff for the special damages alleged and proved, plaintiff was entitled to recover adequate compensation for the damages actually sustained up to the commencement of the suit as the direct result of the nuisance

8. SAME—GENERAL AND SPECIAL DAMAGES.

The fact that, in an action for injuries from a private nuisance, damages naturally and necessarily resulting therefrom may be recovered under a general allegation of damage, does not preclude the recovery of special damages which are the natural, but not the necessary, result of the nuisance.

9. SAME—SUFFICIENCY OF EVIDENCE.

Where, in an action for a nuisance, plaintiff claimed as special damages that surface water and mud were caused to flow onto her premises and into her cellar, and that she herself removed the mud deposited in the cellar at various times, it was proper for the court to submit the value of her services to the jury, without opinion evidence as to what her services were worth.

10. SAME.

In an action for damages caused by a nuisance, the amount of damages resulting from the unsanitary and unfavorable condition of plaintiff's house, and from the closing of plaintiff's means of ingress and egress from her house to the street, not being susceptible of arithmetical computation, but resting solely in opinion, was properly submitted to the jury without the aid of opinion evidence.

Appeal from Circuit Court, Jackson County; A. F. Evans, Judge.

Action by Lena Frick against the city of Kansas City and another. From a judgment in favor of plaintiff, the city appeals. Affirmed.

Edwin C. Messervey and W. H. H. Platt, for appellant. Ralph E. Scofield and W. W. Garnhart, for respondent.

JOHNSON, J.

Action for damages alleged to have been caused by a private nuisance. In October, 1902, the defendant Youmans, as contractor with the defendant city and under its direction, began the construction of a public sewer along the midway of Mersington avenue, in Kansas City. Plaintiff owned and occupied, as her residence, property fronting on that thoroughfare situated on the west side thereof between Sixteenth and Seventeenth streets. The lot was 48 feet wide and about 125 feet deep, and at the time of injury was surrounded by a good picket fence, and was covered by blue grass turf, and adorned with shrubbery. The dwelling house situated thereon was a three-room cottage supported by a good foundation, and provided with a cemented cellar. The property was in good repair and the natural drainage was sufficient to preserve it from the inroads of surface water. The excavation made for the sewer in front of plaintiff's property was about 23 feet deep and 12 feet wide. Dirt removed from it was piled by the contractor along the west side of the street in front of plaintiff's property to a height of five or six feet. The embankment thus formed extended over the property line, practically destroyed the front fence, and entirely shut off the passageway between the property and the street. Immediately north of plaintiff's property was a vacant lot, upon which the contractor placed a large quantity of dirt taken from the trench. This raised an embankment near plaintiff's north line, and as the natural drainage of surface water was towards the north these banks on the east and north served to collect and throw back over plaintiff's lot surface water produced by rains. The water heavily charged with dirt received from the erosions of the banks deposited clay over the surface of the lot after every considerable rain and invaded the cellar depositing clay upon the floor thereof at times to a depth of six or eight inches. The turf and shrubbery on the lot were completely ruined; the foundation of the house damaged; the whole house made damp and unwholesome. Plaintiff was put to the trouble and annoyance of having to remove mud from the cellar after every rain, was deprived of its use and could reach the street from her house only by making a detour from the back end of her lot through a neighbor's yard. These conditions continued for a period of a year. There is evidence that plaintiff objected while the work was in progress to being thus hemmed in and as her annoyances and injuries developed made several ineffectual complaints to both defendants. After the...