Smith v. Hardesty
| Decision Date | 31 January 1861 |
| Citation | 31 Mo. 411 |
| Parties | SMITH, Defendant in Error, v. HARDESTY, Plaintiff in Error. |
| Court | Missouri Supreme Court |
1. A. sued B. for damages to his house in excavating his lot in such manner that the bank fell and injured the wall of A.'s house. In such case an instruction that if defendant managed his excavating so carelessly that thereby he contributed to the injury of plaintiff, is erroneous.
Error to Kansas Court of Common Pleas.
This was an action for damages. Plaintiff was employed by one McCoy to build the brick walls of a house on a lot adjoining a lot owned by defendant. Before he had completed said walls, defendant had been excavating on his own lot, and managed so carelessly and negligently that the bank of defendant's lot fell and knocked down a part of plaintiff's wall. The following is the instruction given by the court at the instance of plaintiff: “That if the court believe that the defendant managed the excavation of his lot carelessly and that his carelessness contributed to the injury of plaintiff, that then defendant is responsible for the damages; and that the care ought to be commensurate with the danger.” The instruction asked by defendant and refused is in these words:
Hovey, for plaintiff in error.
I. There was no evidence upon which to hypothecate the instruction asked by defendant in error. (Craighead v. Wells, 21 Mo. 404.) The seventh and last instruction asked by defendant below is clearly the law arising upon the facts in evidence and ought to have been given.
The instruction which the court gave at the instance of the plaintiff is erroneous. To say nothing of the entire want of testimony to authorize it, so far as we have been able to discover, it is not the law that the defendant is responsible for a carelessness which merely contributed to an injury to plaintiff. It may be that the plaintiff's own conduct may have materially contributed to the same result, in which event the defendant would not be responsible.
We are unable to see why the seventh instruction asked by the defendant was not given. That instruction was, that if the bank on defendant's lot was caused to fall against...
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Krehmeyer v. St. Louis Transit Co.
...indicate how far I concur in the reasoning of the opinion in the present case. Such words were early condemned by this court. Smith v. Hardesty, 31 Mo. 411. So much for outside questions. Now to the reasons for my concurrence in the result reached by my Brother 1. Plaintiff asked and receiv......
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Schmidt v. St. Louis Transit Co.
... ... sole and proximate cause of his injury, operated only to ... contribute with plaintiff's own fault. [Smith v ... Hardesty, 31 Mo. 411.] In view of these principles, the ... Supreme Court, in Hof v. St. Louis Transit Co., 213 ... Mo. 445, 111 S.W. 1166, ... ...
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Krehmeyer v. St. Louis Transit Company
...the jury believed the negligent acts therein hypothesized only contributed to cause his injuries. Hof v. Railroad, 111 S.W. 1166; Smith v. Hardesty, 31 Mo. 411. (4) instruction 4 is erroneous because it permitted a finding for plaintiff if the jury believed the motorman could have averted t......
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Schmidt v. St. Louis Transit Co.
...negligence, instead of being the sole and proximate cause of his injury, operated only to contribute with plaintiff's own fault. Smith v. Hardesty, 31 Mo. 411. In view of these principles, the Supreme Court, in Hof v. St. Louis Transit Co., 213 Mo. 445, 111 S. W. 1166, denounced as misleadi......