Grogan v. Broadway Foundry Co.

• Decision Date: 31 October 1885
• Citation: 87 Mo. 321
• Parties: GROGAN v. THE BROADWAY FOUNDRY COMPANY et al., Appellants.
• Court: Missouri Supreme Court

87 Mo. 321

GROGAN

v.THE BROADWAY FOUNDRY COMPANY et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Taylor & Pollard for appellant, Pope Iron & Metal Company.

(1) The court erred in giving plaintiff's instructions one and two. These instructions directed the jury to find for the plaintiff, if they believed from the evidence that the wall's falling was caused either by the removal of machinery, iron and lateral supports, or by the damage done by the fire. We insist that such is not the law. If the taking away the machinery, iron and debris did not tend to weaken the lateral support of the wall, and make it more liable to fall, then this defendant is not liable for the injuries complained of. This defendant did not cause the fire, nor was it responsible for it. Therefore, if the sole cause of the wall's falling was the damage done by the fire, this defendant was not liable for damages. (2) The trial court erred in refusing to give instructions numbered one, two, three and four, asked by defendant. (3) The court erred in giving contradictory instructions and for this reason the cause should be reversed. Stevenson v. Hancock, 72 Mo. 614; Staples v. Canton, 69 Mo. 594; State v. Simms, 68 Mo. 309; Turner v. Babb, 45 Mo. 387; Price v. Railroad, 77 Mo. 512. (4) The damages assessed are excessive. Porter v. R. R., 71 Mo. 83; Rains v. R. R., 71 Mo. 169.

Leverett Bell for appellant, the City of St. Louis.

(1) There was no evidence of the value of the loss of services of plaintiff's son during his minority, nor of expenses arising from medical or funeral expenditures, and the plaintiff's recovery should have been limited to nominal damages. R. S., sec. 2123; Porter v. Railroad, 71 Mo. 66; Rains v. Railroad, 71 Mo. 164. (2) The lower court erred in refusing the instruction asked by the city of St. Louis, to the effect that there could be no recovery against it because of the failure to join the owners of the property in the suit. 2 R. S. 1626. (3) There was no negligence on the part of the city government that would render the city liable. (4) The city ordinance, numbered 10,748, should not have been excluded when offered in evidence. It was a reasonable and valid ordinance and if its terms were complied with by the city, a complete defence for it was made out. Armstrong v. Brunswick, 79 Mo. 319.

G. M. Stewart for respondent.

(1) The Pope Iron & Metal Company was equally liable with the Broadway Foundry Company. Tate v Railroad, 64 Mo. 149; Pinney v. Berry, 61 Mo. 359; Rich v. Bastefield, 4 C. B. 783; Harris v. James, 45 L. J. [Q. B.] 545; Terry v. Ashton, 45 L. J. [Q. B.] 260; Broder v. Saillard, 45 L. J. [Ch. Div.] 414. Where one person erects a nuisance and places it in the possession and under the control of another, and it is by him continued, each is liable to answer in damages for an injury resulting therefrom. Staple v. Spring, 10 Mass. 77; Moon v. Dame Brown, 3 Dyer, 330; Bonnell v. Prior, 2 Salk. 460. (2) The court did not give inconsistent instructions. They are to be taken as a whole, and if, when taken together, they are inconsistent, they are, ex necessitate, erroneous, but not otherwise. Noble v. Blount, 77 Mo. 235; Edwards v. Cary, 60 Mo. 572; McKeon v. Railroad, 43 Mo. 405; Brown v. Ins. Co., 68 Mo. 133; Wilson v. Railroad, 71 Mo. 203. (3) The objection that there was no proof of damages is not well taken. Lottman v. Barnett, 62 Mo. 159; Owen v. Brockschmidt, 54 Mo. 285; Nagel v. Railroad, 75 Mo. 653. (4) The owners of the land were not necessary or proper parties to the suit, as claimed by appellant, the City of St. Louis. 2 R. S., p. 1626, sec. 9; Wood on L. & T., secs. 538, 541; Buesching v. Gas Light Co., 73 Mo. 219. (5) The court did not err in excluding ordinance numbered ten thousand, four hundred and seventy-eight, offered by the city.

NORTON, J.

This case is before us on the appeal of defendants from the action of the St. Louis court of appeals affirming a judgment of the circuit court of the city of St. Louis, rendered for plaintiff, in the sum of $3,500, for the killing of her son by the alleged negligence of defendants. The evidence shows that plaintiff's son, about ten years of age, was killed in Collins street, in the city of St. Louis, on the thirty-first day of March, 1881, by reason of the brick wall of a building adjacent to said street falling into said street and upon the son of plaintiff, while playing with two other boys. The evidence also shows that the lot of ground upon which the building, of which the falling wall was a part, stood, had been leased by the owners to Collins & Holliday for a term of ten years; that said Collins & Holliday erected the said building; that the leasehold interest having been encumbered by mortgage was sold under its provisions in 1876 to S. N. Holliday, who sold and conveyed the same to the defendant, the Broadway Foundry Company, in April, 1876; that said company owned and used the building as a foundry for working iron, from that time up to about the ninth of January, 1881, when the building was partially destroyed by fire, leaving the walls fronting on Collins street, in whole or in part, standing.

The evidence tended to show that in February, 1881, previous to the accident, the Pope Iron & Metal Company purchased of the Broadway Foundry Company the debris of the machinery and fixtures in the building; that the Pope Iron and Metal Company entered upon the premises soon afterwards for the purpose of removing the same, and in so doing weakened the wall so as to cause its fall. On the other hand there was some evidence tending to show that when the Pope Iron & Metal Company commenced removing the materials it had bought the wall was in an unsafe condition and in danger of falling, by reason of its having been weakened by the fire, and that it attempted to support the wall by means of ropes, etc. The evidence also tended to show that the wall after the fire was in a reasonably safe condition, and that public safety did not demand its immediate removal, and that it remained in that condition until within a short time before it fell. There was evidence tending to show that after the purchase of the debris by the Pope Iron & Metal Company it held joint possession and control of the building with the Broadway Foundry Company, and, on the contrary, evidence tending to show that the Broadway Foundry Company, after the date of the sale, surrendered entire possession and control of the building to the Pope Iron & Metal Company. There was evidence that on the day the wall fell there was an extraordinary and unusual windstorm; and also evidence that the windstorm was only such as usually prevailed at that season of the year.

There was evidence tending to show that the wall, eight or ten days before it fell, had become unsafe and was in a shaky condition, and that Mr. Rohan, who was doing business across the street from where the wall stood, observing its condition, notified, on the twenty-ninth of March, the proper authorities in writing of its dangerous character; that the next day the wall was inspected by an officer of the city, and that it fell on the thirty-first day of March. The City of St. Louis, The Broadway Foundry Company, The Pope Iron & Metal Company, as well as the owners of the ground, except one, on which the building stood and out of which the leasehold estate had been carved, were made parties defendant. Plaintiff recovered judgment against all the defendants, except the owners of the lots on which the building was erected. Each of the three defendants against whom judgment was obtained has appealed. The specific objections relied upon by the city of Saint Louis will be considered in the order in which they are made.

It is urged that error was committed by the court in refusing the following instructions:

“1. The court instructs the jury that there is no proof in this case touching the amount of damages sustained by plaintiff by reason of the matters stated in the petition, and the jury, if they find the issues for the plaintiff, will assess the damages at a nominal sum.”

“2. The court instructs the...