Mallette v. City of St. Louis

• Decision Date: 31 December 1921
• Docket Number: No. 22396.,22396.
• Citation: 236 S.W. 63
• Parties: MALLETTE et al. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

236 S.W. 63

MALLETTE et al. v. CITY OF ST. LOUIS.

No. 22396.

Supreme Court of Missouri, Division No. 2.

December 31, 1921.

Appeal from St. Louis Circuit Court; Franklin Ferriss, Judge.

Suit by James A. Mallette and another against the City of St. Louis. Judgment for plaintiffs, and defendant appeals. Affirmed.

Henry S. Caulfield, Geo. F. Raid, and Oliver Senti, all of St. Louis, for appellant.

Garstang & Jones, of St. Louis, for respondents.

WALKER, J.

This is a suit brought by respondents to recover damages alleged to have been caused by cutting down or lowering the grade of an alley in the rear of their property in the city of St. Louis. Upon a trial before a jury, there was a judgment for respondents, from which this appeal has been perfected.

Under an ordinance of the appellant the alley was graded and paved. In this improvement the grade of the alley was lowered about two feet and nine inches below the level of the rear of respondents' lot. This change of grade, it is contended, rendered access to respondents' property difficult, and they have been compelled by reason of such change to build a retaining wall and granitoid steps leading up to the level of the lot in order to render the same reasonably accessible.

The errors assigned are the refusing to give instructions on behalf of the appellant, directing the jury to deduct special benefits, if any, accruing to respondents property from the damages thereto, modifying the instruction offered by the appellant on the measure of damages, and in refusing to instruct the jury, at the appellant's request, that the respondents could not recover unless there was a material change in the grade of the alley or such grade as was likely to reduce the value of respondents' property, taking into consideration all the circumstances of the case.

There was no sufficient evidence upon which to base an instruction authorizing the jury, in estimating the damages, to deduct special benefits to respondents' lot by reason of the grading and paving of the alley; the modification by the court, therefore, of the instruction asked by the appellant, eliminating the question of special benefits, was not error.

The extent of the damages and the weight to be given the testimony of experts were matters for the determination of the jury.

There was substantial evidence to support the finding, and, in the absence of prejudicial error, the judgment of the trial court will be affirmed. It is so ordered.

All concur.