Stone v. Hunt

• Decision Date: 19 March 1888
• Parties: STONE v. HUNT.
• Court: Missouri Supreme Court

7 S.W. 431

94 Mo. 475

STONE v. HUNT.

Supreme Court of Missouri.

March 19, 1888.

1. NEGLIGENCE — CARELESS TEARING DOWN OF WALLS.

In an action for injury caused to the goods in plaintiff's store by negligence in tearing down the walls of defendant's adjoining building, an instruction charging that if defendant owned the adjoining building, and knew its walls to be unsafe, and "knew, or by the exercise of reasonable care might have learned, that persons were engaged in taking down said walls, then the defendant is liable for such damage to plaintiff as resulted to him by reason of the carelessness or negligence of said persons so engaged in taking down said walls," is erroneous, as assuming that damage resulted to plaintiff, and that the persons tearing down the walls were careless or negligent.

2. SAME.

In such case, an instruction charging that if defendant "suffered and permitted third persons to go upon said walls, and if, in consequence of the acts of such third persons, the walls were thrown upon the building occupied by the plaintiff, and plaintiff's property injured, the defendant will be liable in this action," is erroneous, because not stating that such acts, in order to make defendant liable, must be negligent acts.

3. SAME — PLEADING — GENERAL DENIAL — CONTRIBUTORY NEGLIGENCE.

Evidence of contributory negligence is inadmissible, when the answer consists simply of a general denial.

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

This action was brought by Henry M. Stone against Mary C. Hunt, executrix of the estate of Charles L. Hunt. Plaintiff obtained judgment, and defendant appeals.

Napton & Frost, for appellant. Dyer, Lee & Ellis, for respondent.

SHERWOOD, J.

Action for damages caused by the falling of the walls of the building of Charles L. Hunt. "The petition charges that about the 14th day of November, 1877, the interior and combustible portions of the defendant's building were destroyed by fire, leaving certain interior and exterior walls and chimneys standing; that from the time of said fire until the 17th day of November, 1877, said walls and chimneys were, as the defendant well knew, in an unsafe, insecure, and dangerous condition, and were a nuisance, and liable at any time to fall over and upon the adjoining premises, and cause injury to the property of others; that the defendant was in possession of said premises, and had full and exclusive control thereof; that on or about the 17th day of November, 1877, the defendant allowed and permitted certain persons to enter upon said premises for the purpose of removing said walls and chimneys, and abating said nuisance; and that said persons tore down said walls and chimneys, and that in doing so they negligently and unskillfully pushed or caused the same, or portions thereof, to fall over and upon the house occupied by the plaintiff, thereby crushing and destroying said house, and covering and breaking the said personal property of the plaintiff contained therein with the debris of the defendant's premises; that defendant knowingly and negligently suffered and permitted said persons to go upon his said premises, and tear down said walls and chimneys, and that their action inured to the defendant's benefit; that it was the duty of the defendant to abate said nuisance, and remove said walls and chimneys in a proper manner, and without detriment to the plaintiff; that the defendant knew, or had good reason to know, that said persons who undertook to tear down said walls intended to adopt, and did adopt, an improper, unsafe, and dangerous method of removing and tearing down the same; and that the defendant, in neglecting to do his duty as the owner...