Golden v. Heman Const. Co.

• Decision Date: 03 February 1903
• Citation: 71 S.W. 1093,100 Mo. App. 20
• Parties: GOLDEN v. HEMAN CONST. CO.
• Court: Missouri Court of Appeals

71 S.W. 1093

100 Mo. App. 20

GOLDEN v. HEMAN CONST. CO.

Court of Appeals at St. Louis, Missouri.

February 3, 1903.

INJURIES TO PROPERTY—DAMAGES—EVIDENCE —INSTRUCTIONS—BURDEN OF PROOF —REQUEST.

1. Where, in an action for damages to furniture by dust from a quarry, plaintiff testified what it was worth before defendant began the work which injured it; that she knew what it was worth, as she had recently bought it; and that the effect of the dust was to scratch and mar it and rot the curtains,—the evidence of damage was sufficient to justify a recovery.

2. Where the court had given no instructions at plaintiff's instance, a requested charge that the burden was on plaintiff to establish, by a preponderance of the evidence, the facts necessary to a verdict in her favor, "under her instructions," was properly refused.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Martha M. Golden against Heman Construction Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Hickman P. Rodgers, for appellant. John J. O'Connor, for respondent.

GOODE, J.

The petition was in two counts, the first for injuries to plaintiff's residence, and the second for injuries to the furniture it contained; but we are not concerned with the first count, as to which a nonsuit was taken.

The defendant, for three years before the institution of this action, operated a rock quarry and rock crushing machine about 300 feet in the rear of plaintiff's home, which is on the south side of Laclede avenue, in the city of St. Louis. The conduct of that work is alleged to have raised clouds of white lime dust, which constantly drifted into the plaintiff's house, settled on her furniture and curtains, and injured them, and there was testimony to support the case stated in the petition.

Complaint is made that the trial court refused to direct a verdict for the defendant on the ground that no damage was proven or definitely proven, inasmuch as plaintiff, who testified concerning the extent of the damage to the furniture, was not an expert. She swore she knew what the furniture was worth before defendant began the injurious work, as she had but recently bought it. She swore, too, as did other witnesses, what the effect of the dust was; how it scratched and marred the furniture and rotted the curtains. The damages were therefore proven in the best way possible, by showing facts from which the jury could form an opinion as to their amount. Kennedy v....