Putermann v. Simon

• Decision Date: 03 December 1907
• Citation: 105 S.W. 1098,127 Mo. App. 511
• Parties: PUTERMANN v. SIMON et al.
• Court: Missouri Court of Appeals

105 S.W. 1098

127 Mo. A. 511

PUTERMANN v. SIMON et al.

St. Louis Court of Appeals. Missouri.

December 3, 1907.

1. MUNICIPAL CORPORATIONS — ORDINANCE — VIOLATIONS—CIVIL LIABILITY.

St. Louis Mun. Code, art. 3, § 1473, punishing any person who shall leave a horse standing in a public place without being fastened or guarded to prevent its running away, was enacted to prevent injury by horses running away, not to prevent injury from horses biting persons; and an action for being bitten by a horse allowed to pass unguarded in a public street cannot be maintained on the theory of negligence in violating the ordinance.

2. APPEAL—HARMLESS ERROR—JUDGMENT CORRECT ON MERITS.

Where the verdict and judgment are for the right party, an order sustaining a motion for a new trial because of alleged errors in instructions will be reversed.

Appeal from Circuit Court, St. Louis County; Robt. M. Foster, Judge.

Action by Isaac Putermann against Jacob Simon and another. From an order granting a new trial after verdict for defendants, they appeal. Reversed, and judgment directed on verdict.

Henry H. Furth, for appellants. Benj. F. Reinberger, for respondent.

GOODE, J.

This is an action instituted to recover damages for a personal injury alleged to have been inflicted on the plaintiff, a minor, who sues by his next friend. Plaintiff was bitten by a horse belonging to the defendants, and demanded $500 damages for the injury. The action was originally instituted before a justice of the peace, and went by appeal to the circuit court. The statement or petition alleges that, while plaintiff was lawfully walking along a sidewalk in the city of St. Louis, "defendants' horse, which was carelessly and negligently allowed to pass on said sidewalk unhitched and unguarded (Ordinance 1473, V. & L.), the said horse acting in a vicious manner, sprang at plaintiff, biting him in a severe manner in the cheek, head, and arm, whereby he was torn, mangled, injured, and disfigured, and continued to remain in great pain and anguish in the hospital of the space of three months." The trial in the circuit court resulted in a verdict for the defendants, which was set aside on motion of plaintiff and a new trial granted. In the order granting a new trial the court held that it committed error in giving a certain instruction, which is as follows: "The court instructs you that the mere fact of defendants' horse having injured plaintiff (if you find such to be the fact) would not entitle him to...