Reeves v. Larkin

• Court: Missouri Supreme Court
• Writing for the Court: GAMBLE
• Citation: Reeves v. Larkin, 19 Mo. 192 (Mo. 1853)
• Decision Date: 31 October 1853
• Parties: REEVES, Respondent, v. LARKIN, et al., Appellants.

19 Mo. 192

REEVES, Respondent,

v.LARKIN, et al., Appellants.

Supreme Court of Missouri.

October Term, 1853.

1. A party may recover for damages caused by the negligence of another in performing a duty unless his own negligence contributed to the loss.

2. A variance between the petition and the evidence, as to the manner in which the negligence of the defendant operated to occasion the loss sued for, is not material under the new practice.

Appeal from St. Louis Court of Common Pleas.

Action to recover the value of a mule alleged to have died from injuries received in hauling a loaded dray across a sewer constructed by the defendants, and negligently covered. The facts sufficiently appear in the opinion of the court.

J. A. Kasson, for appellants.

H. N. Hart, for respondent.

GAMBLE, Judge, delivered the opinion of the court.

1. The instructions given by the court, on its own motion, require that the jury, before finding for the plaintiff, shall be satisfied that the defenddants so negligently and improperly filled up the sewer made by them across the levee, that by reason thereof the plaintiff's mule was injured, and that the plaintiff was not guilty of any negligence or carelessness in the management of his dray and mule, at the time of the injury. In the instructions given by the court, on its own motion, as well as in the instructions given at the request of the defendants, the rule is placed prominently before the jury, that the plaintiff is not entitled to recover if he could have passed the sewer or drain in safety, at the time of the accident, by the exercise of reasonable care and attention in passing it. These instructions seem to place the law of the case as favorably before the jury as the defendants could ask it. They had, for their own convenience and advantage, placed a sewer from the cellar of their building across a public thoroughfare in the city,...