Turner v. Thomas

• Court: United States State Supreme Court of Missouri
• Writing for the Court: HENRY
• Citation: 71 Mo. 596
• Parties: TURNER v. THOMAS et al., Appellants.
• Decision Date: 30 April 1880

71 Mo. 596

TURNER
v.
THOMAS et al., Appellants.

Supreme Court of Missouri.

April Term, 1880.

Appeal from Jasper Court of Common Pleas.--HON. E. O. BROWN, Judge.

REVERSED.

W. H. Phelps for appellant.

B. F. Garrison for respondent.

HENRY, J.

The petition in this case alleges that defendants caused to be made a large excavation and hole in the earth on their premises, known as the “Globe Mills Lot,” and negligently and carelessly failed to cover the hole or put a fence around it; that there was no fence around the lot, and that plaintiff's horse fell into the said hole and was killed, and asks judgment against defendants for $100. The answer denies all the allegations, and avers that the accident occurred in the city of Carthage, and that the plaintiff's horse was blind, and that the plaintiff negligently permitted him to run at large in said city, in violation of an ordinance prohibiting animals from running at large in said city. Plaintiff replied, denying the

[71 Mo. 597]

allegations in the answer. On a trial, the plaintiff obtained a judgment for $50, from which defendants have appealed.

No instructions were given by the court to the jury. The defendants asked and the court refused one to the effect that, if the horse was running at large in the city in violation of a city ordinance prohibiting it, plaintiff could not recover. Without any reference to that ordinance, or its violation, plaintiff could not recover. The petition does not state a cause of action, and the motion in arrest of judgment should have been sustained. The case of Hughes v. The H. & St Jo. R. R. Co., 66 Mo. 325, directly settles the question presented by this record adversely to plaintiff. With the conclusion reached in that case we are entirely satisfied. The able opinion of Gibson, C. J., in Knight v. Abert, 6 Penn. St. 473, which is embodied in the opinion of HOUGH, J., in Hughes v. H. & St. Jo. R. R. Co., is an unanswerable argument against the liability of defendants in such a case as is made by this petition. The judgment is reversed.

All concur.