Newman v. St. Louis & Iron Mountain R.R. Co.
| Decision Date | 10 June 1876 |
| Citation | 2 Mo.App. 402 |
| Parties | SOCRATES NEWMAN, Respondent, v. ST. LOUIS & IRON MOUNTAIN RAILROAD COMPANY, Appellant. |
| Court | Missouri Court of Appeals |
Where a trespass has been willfully committed, and persisted in after earnest remonstrance, with circumstances of aggravation, it is not error to instruct the jury that they are at liberty to give exemplary damages.
APPEAL from St. Louis Circuit Court.
Affirmed, with 10 per cent. damages.
Thoroughman & Warren, for appellants, cited: Shear. & Redf. on Neg. 656; Miller v. St. Louis & Iron Mountain R. R. Co., 31 Mo. 262; Buckley v. Knapp, 48 Mo. 152; Franz v. Hilterbrand, 45 Mo. 122; Conrad v. Pacific Ins. Co., 6 Pet. 268; McKenn v. Citizens' Ry. Co., 42 Mo. 87; Fisher v. Goebel, 40 Mo. 475; Waters v. Brown, 44 Mo. 302; Sedgw. on Dam., title Exemplary Damages, Appendix No. 1, p. 609 et seq.;Goetz v. Ambs, 27 Mo. 28; Green v. Craig, 47 Mo. 90.
Farish & Griffin, for respondent.
The action in this case was brought in May, 1872. It was tried in the Circuit Court in January, 1875. The petition charged an aggravated and most lawless and malicious trespass upon the land of plaintiff, occupied by him and his family at the time as a residence; the violent, forcible invasion on Sunday morning of his premises, the doing of very great damage to the property, the terrifying and disturbance, and the endangering of the lives, of himself and his family, by blasting with gunpowder, throwing down and disfiguring valuable property. He laid his damages at $20,000. The answer of defendant consisted in a denial of each particular outrage stated in the petition.
The jury before which the cause was tried found for the plaintiff, and awarded to him $3,000 as damages, of which they declared $1,500 to be for compensation for injury done to the property, and $1,500 as exemplary damages.
The testimony fully sustained the allegations of the petition. The plaintiff had occupied his residence, on the yard of which the trespass had been committed, for nearly twenty years. His family consisted of himself, his wife, her mother, and seven children--the youngest of whom was two years old, and the oldest eighteen. Mrs. Newman was at the time in delicate health. Without warning, without any attempt to obtain by permission of the proprietor, or by legal proceedings, the right to enter upon his land and remove a part of an impending rock above the track of the railroad, a party of men employed by the defendant, and “imported” from below to do the job, perpetrated on the morning of Sunday, in the month of May, 1872, the outrage complained of. Their number was six or seven. They had on the Saturday, and perhaps on the Friday, previous, prepared for the work, by drilling holes in the rock to receive the charge of powder. When remonstrated with by Mr. Newman, they replied by threatening to take him to the calaboose. When he thereupon sought the assistance of the police, he was told by these guardians of public order that they would arrest him if he attempted to stop the work of the trespassers, who were invading and destroying his property; and, on Sunday morning, he was awaked by the noise of the blast by which the rock was blown to pieces. Several other blasts followed in the course of the day. The work of drilling holes and putting in charges of powder went on in the face of all the protests which he could make--and he seems to have protested earnestly, but fruitlessly, against the wrong--but no assistance was rendered him by the police, and, for the greater part of the day, the premises of the plaintiff were the scene of disturbance, violence, tumult, and danger. The fragments of the rock burst by the blasting flew in various directions, and the beauty of the lot of plaintiff, and its value as a building site, were materially impaired by the work of the invading party.
At the instance of the plaintiff the court instructed the jury that, “if the defendant entered upon premises actually in possession of plaintiff, and, by blasting rock thereon, did the injuries complained of in plaintiff's petition,” they must find for plaintiff.
2. “That if the injury complained of was the blasting away of an overhanging mass of rock suitable for an out-look, and if the surface of it was inclosed so as to form part of plaintiff's homestead and premises, then the same was in the exclusive possession of plaintiff, although defendant was in possession of a railroad track directly below.”
3. “That, if they find for plaintiff, they will assess his damages at such sum as will compensate him for the injury done to his possession by reason of blasting off the said projecting rock; and the fact that the defendant persisted in blasting said rock against the earnest protestations of plaintiff will not be taken into consideration by the jury in assessing plaintiff's damages.”
4. “If, however, the jury find for plaintiff, and believe that the defendant, its servants and agents, in blasting off said rock, were guilty of gross negligence and recklessness, and a disregard for the safety, peace, health, and comfort of plaintiff and his family, the jury may, in addition to compensation, allow also exemplary damages.”
5. “Exemplary damages are damages over and above the loss sustained, and are intended for the double purpose of punishing the defendant and as an example to retain [ Q. restrain?] others from a like violation of law.”
To the giving of these instructions defendant excepted.
The defendant asked, and the court gave, the following instructions:
1. “If, at the time of the happening of the injury complained of, and from then to the institution of this suit, defendant was in the actual possession and occupancy upon...
To continue reading
Request your trial