Overholt v. Vieths

• Decision Date: 28 November 1887
• Citation: 93 Mo. 422,6 S.W. 74
• Parties: OVERHOLT and Wife v. VIETHS.
• Court: Missouri Supreme Court

6 S.W. 74

93 Mo. 422

OVERHOLT and Wife v. VIETHS.

Supreme Court of Missouri.

November 28, 1887.

1. DEATH BY WRONGFUL ACT — TRESPASSER — INADEQUACY OF DAMAGES.

Where in an action for damages caused by the death of plaintiff's son by drowning in a pond formed in an excavation on defendant's lot, it appeared that deceased approached the pond across a private lot and fell into it from a side not on a public street or public grounds, and the jury rendered a verdict of $10 damages for plaintiff, held, upon plaintiff's appeal on the ground of inadequacy of damages, that, as plaintiff had no ground of recovery at all, the verdict would not be set aside.

2. SAME — EVIDENCE.

In an action for damages caused by the drowning of plaintiff's eight-years-old son, in an excavation upon a lot from which stone had been taken, and in which water had collected, the testimony showed that the excavation had existed about 12 years; that defendant had owned the lot only about four months; that deceased approached from the eastern side of the excavation, across an adjoining lot. Held that, conceding that it was defendant's duty to fence in the pond, it was not error to allow defendant to show that the nature of the soil on the eastern side was so rocky that it was almost impossible to set posts therein for a fence.

3. SAME — ACTION BY PARENT — EVIDENCE OF FINANCIAL CIRCUMSTANCES.

In an action by a mother for damages for the death of a child it was shown that she was a widow, having one daughter besides the child who had been killed; that she and her daughter did the housework; that she had no servant, and at the time of the accident was engaged in the housework. Held, that this evidence showed her financial circumstances as fully as was proper, and that a direct question as to what was her financial condition was properly excluded.

4. SAME — EXCLUSION OF EVIDENCE — TRANSCRIPT ON APPEAL — PRESUMPTION.

In an action for negligence for leaving an excavation exposed in a private lot, certain city ordinances were excluded as evidence, one of the objections thereto being that other sections of the ordinance modified and changed the effect of the sections sought to be introduced. As the transcript upon appeal did not show what those other sections were, held, it would be presumed that the decision of the trial court was proper.

Appeal from St. Louis circuit court; GEORGE B. LUBKE, Judge.

Jas. P. Dawson and G. M. Stewart, for appellants. Hitchcock, Madill & Finkelnburg and David Goldsmith, for respondent.

NORTON, C. J.

This suit is to recover damages for the death of plaintiffs' eight-year-old son, who was drowned, as alleged, in a pond of water which had been formed in consequence of rock having been quarried on a lot, in the city of St. Louis, owned by the defendant. The jury returned a verdict for plaintiffs, and assessed the damages at $10, and from the judgment rendered thereon they have appealed, and among other errors argued is the action of the court in refusing to admit in evidence the following section of an ordinance of the city of St. Louis: "Sec. 16. All holes, depressions, excavations, or other dangerous places, within the city of St. Louis, that are below the natural or artificial grades of the surrounding or adjacent street, shall be properly inclosed with fences or walls, or be filled up so as to prevent persons and animals from falling into them." This ordinance was objected to on the ground that it had not been pleaded, and on the further ground that the other sections of the ordinance showed that said section related to highways. Inasmuch as one of the grounds of objection is based upon the fact that other sections of the ordinance showed that the section in question related to public highways, and inasmuch as those other sections are not preserved in the record, we must indulge in the presumption that the ruling of the court was proper. City of Kansas v. Clark, 68 Mo. 588.

During the examination of Mrs. Overholt, and after she had stated that she was the mother of the child, and a widow at the time of the accident; that she had one other child, a daughter, about 15 years old; that she and her daughter did the housework; that she had no servant, and at the time of the accident she was engaged in housework, — she was asked what her financial condition was, and, this being objected to by defendant as being immaterial, the objection was sustained, and plaintiffs excepted. In view of what she had been allowed to state as to her condition in life, we are of the opinion that the objection was properly sustained. The court, in receiving her statements as to her circumstances and surroundings at the time the child was drowned, went as far as this court has gone in the case of Winters v. Railroad, 39 Mo. 468-475, and others to which we have been cited.

The court allowed a witness to state, over the objection of plaintiffs, that along the eastern line of defendant's lot a fence could not be built without drilling post-holes in the rock. It appears from the evidence, that the excavation in the lot had been made by quarrying, 12 or 15 years before the accident; that defendant had acquired the lot about four months only before it occurred; that the said excavation extended up to and across the eastern line between d...