Mauerman v. Siemerts

• Citation: 71 Mo. 101
• Parties: MAUERMAN v. SIEMERTS et al., Appellants.
• Decision Date: 31 October 1879
• Court: United States State Supreme Court of Missouri

71 Mo. 101

MAUERMAN

v.SIEMERTS et al., Appellants.

Supreme Court of Missouri.

October Term, 1879.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

Lay & Belch and A. M. Hough for appellants.

Respondent not represented.

NORTON, J.

A reversal of the judgment in this case is sought because of alleged errors fommitted by the court in refusing to give an instruction asked by defendant that under the evidence plaintiff was not entitled to recover, and because the court gave improper and refused to give proper instructions.

The suit was instituted to recover damages for injuries sustained by plaintiff, and alleged to have been occasioned by the negligence of defendants while engaged in taking down a portion of a certain building known as the Sister's Hospital, and situated on the southeast corner of Fourth and Spruce streets in the city of St. Louis. The petition substantially avers that the negligence of defendants consisted in leaving the sidewalk in front of said building insufficiently guarded, and that plaintiff, a girl about eleven years old, in going to school and in passing along said sidewalk, without fault of her own, and without warning of impending danger was stricken to the earth by a brick falling on top of her head, which was precipitated from the upper portion of said building by defendants or their agents; that by reason thereof plaintiff's skull was fractured and she was permanently and for life crippled in body and mind, and disqualified from discharging duties incumbent upon her, and from earning a livelihood; that she had been damaged in the sum of $5,000. The answer is a specific denial of the matters alleged in the petition, and avers that the sidewalk was sufficiently guarded, and that if plaintiff was injured it was occasioned by her own negligence and not by fault of defendant. On the trial in the circuit court plaintiff had judgment for the sum of $3,000, from which defendants appealed to the St. Louis court of appeals, where the judgment was affirmed, from which defendants have again appealed to this court.

1. NEGLIGENCE, WHEN A QUESTION OF LAW, WHEN OF FACT.

It is not disputed but that the evidence adduced on the trial clearly shows that the plaintiff was injured by a brick precipitated from the top of the said building while the workmen of defendants were engaged in tearing it down, whether accidentally or otherwise does not appear, nor is it disputed, but that the injuries received by plaintiff were of the serious character alleged in the petition. The principal question brought to our attention for determination is as to the propriety of the action of the trial court in refusing to instruct the jury that under the evidence plaintiff could not recover, and whether the injury was occasioned because of the negligence of plaintiff in going on the sidewalk, or the negligence of defendants in not having sufficiently guarded the premises so as to give warning to those who might have occasion to use the sidewalk, especially to persons of the age of plaintiff, that it was dangerous to do so.

There is some conflict in the evidence in regard to the sufficiency of the barriers which were put up across the sidewalk in front of said building, to impart notice of danger in the use of it. The evidence tended to show that the barrier put up across the sidewalk on the end or side of the building, which plaintiff, on the morning of the accident, was approaching, consisted of a plank which was fastened to the window frame of the building and sloped from the building to the curb stone or edge of the pavement, at which place it was nailed to a tree; that the space between the...