Orr v. Bradley
| Decision Date | 24 June 1907 |
| Citation | 103 S.W. 1149,126 Mo.App. 146 |
| Parties | J. P. ORR, Respondent, v. T. C. BRADLEY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. William B. Teasdale, Judge.
AFFIRMED.
Judgment affirmed.
Scarritt Scarritt & Jones, for appellant, filed argument.
Robert O. McLin, for respondent, filed argument.
This action was instituted for the recovery of damages occasioned by a high brick wall, maintained by defendant, falling on plaintiff's house. The plaintiff prevailed in the trial court. There is no dispute between the parties as to the maintenance of the wall by defendant and of its falling on and demolishing plaintiff's house. But it is defendant's contention that he used and exercised proper diligence and care in ascertaining the safety of the wall and believing it to be safe, he allowed it to stand. And that its fall should be attributed to the act of God (as that term is known to the law) in the nature of an unprecedented windstorm.
The evidence showed that the building, of which the wall in question was a part, was located in Kansas City and was burned in July, 1901. In defendant's behalf it tended to show that some of the walls were left standing, which, with the exception of the one in question and a lower cross-wall were torn down by the firemen, or other authorized persons. The wall in question, after the fire, was left supported in the following way: An interior wall ran to it from a large smokestack left standing, and at the corners, the other walls had been torn down in such way as to leave sloping supports. There was also evidence in defendant's behalf that competent persons, including city inspectors and his architect, considered the wall to be safe and that he, being a civil engineer himself, believed it to be safe.
There was, however, evidence in plaintiff's behalf that the wall was from twenty-eight to thirty-five feet high and that the interior wall running over to this wall from the smokestack was only six or eight feet high and that the corners were practically without support, and that the judgment of the architect and others was based on the wall being safe to use as a part of a reconstructed building, but not to leave standing alone. The evidence in plaintiff's behalf also tended to show that the wind on the night the wall fell was not of extraordinary force and that although there were many other buildings nearby, frame and brick, high and low, yet none of them was blown down or injured. The evidence for defendant tending to show the extraordinary character of the storm related to its force in a different part of the city near two hundred feet higher than that part in which was this property. We therefore feel that the trial court did not err in refusing defendant's demurrer to the evidence.
We also think the trial court properly refused defendant's instructions numbered 2, 6 and 7. Numbers 2 and 6 amount to a peremptory instruction to find for defendant, if he was advised by the city officials and his architect that the wall was safe and he believed so. That was not a proper way to dispose of the question whether defendant was negligent. The question was one for the jury who were to judge of his conduct as measured by that of an ordinarily prudent man in the same circumstances.
Instruction numbered 7 as applied to the contest between the parties was liable to mislead. It declared "that the defendant had the legal right to have and maintain the wall in question upon his own property and that he was not an insurer of its safety, and if you find from the evidence that in maintaining such wall upon said property, he exercised such care as an ordinarily prudent person would exercise under the same or similar circumstances, your verdict must be for the defendant. As applied to the case, the effect of the instruction was that though the wall was in fact, unsafe and dangerous, yet defendant was not an insurer of its safety and he had a right to maintain it, if he exercised such care as an ordinarily prudent man would exercise, etc. The instruction would have been well enough if it had coupled the proposition of his right to maintain the wall with a proviso that it was safe; or that he took every means to ascertain its safety that an ordinarily prudent man would have taken in similar circumstances and so believed it to be safe. The word "provided," immediately following "safety," would have been an appropriate connection between the portions of the instruction. Connecting the instruction by the word "and" instead of an appropriate word which would with more certainty qualify his right to maintain the wall, left it quite open to misconstruction and misunderstanding. It was properly refused.
Another complaint against the judgment is based on an objection to a juror. The point made is that the juror could neither read nor write. The statute (Laws 1905, p. 176, secs. 10, 11) on the subject of qualification of jurors in cities between one hundred and fifty and four hundred thousand population, is as follows:
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