Waters v. Brown

• Decision Date: 31 August 1869
• Citation: 44 Mo. 302
• Parties: ELMORE WATERS, Defendant in Error, v. WM. W. BROWN, Plaintiff in Error.
• Court: Missouri Supreme Court

44 Mo. 302

ELMORE WATERS, Defendant in Error,

v.WM. W. BROWN, Plaintiff in Error.

Supreme Court of Missouri.

August Term, 1869.

Error to Fifth District Court.

Hall & Oliver, for plaintiff in error.

I. Whether plaintiff was guilty of negligence in not refencing the land, was a question of fact for the jury to determine. (18 Mo. 365; 14 U. S. Dig. 150, § 2; 12 Metc. 415; 7 Greenl. 42.)

II. There was no evidence that the land was necessarily burned out in consequence of the fire. For all that appears in the evidence, the plaintiff made no effort to refence it. It was not sufficient for plaintiff to prove that his rails were burnt by the act of defendant, but the burden of proof was on him to show that his land lay idle in consequence of said burning, without any negligence on his part. (1 Hill. on Torts, 124.)

Asper & Pollard, and Hoskinson, for defendant in error, cited Newman v. Lawless, 6 Mo. 301; Finney & Finney v. Allen, 7 Mo. 416; Vaulx v. Campbell, 8 Mo. 224, 707; Maston v. Fanning, 9 Mo. 302; Chouteau v. Uhrig, 10 Mo. 62; Walter v. Cathcart, 18 Mo. 256; 28 Mo. 360.WAGNER, Judge, delivered the opinion of the court.

This was an action brought by the plaintiff for damages sustained by him in consequence of the willful firing, by defendant, of a prairie in Caldwell county, in violation of the statute of this State. Plaintiff claimed damages for 6,400 rails burnt up, forty young peach trees which were destroyed, and also for being deprived of the use of sixty-five acres of land under cultivation during the year 1864 and subsequent thereto. On the trial, the court, of its own motion, gave the following instruction: “If the jury find for plaintiff, they will assess the damages at the value of the peach trees destroyed by the fire, the value of the use of the premises thrown out for one season, and the amount of money it would require to replace the rails in the fence as they were before destroyed by fire.”

This instruction was objected to by defendant, but his objection was overruled. The plaintiff had judgment in the Circuit Court, which was affirmed by the District Court, and the cause is now brought here for review on writ of error.

It requires no argument to show that a portion of the instruction asserts a wrong proposition of law. The court committed manifest error in telling the jury that they should find for the plaintiff “the value of the use of the premises thrown out for one season.” Whether the plaintiff was damnified to that extent was a question of fact to be determined by the jury from the evidence before them, and not a matter to be passed upon by the court. The measure of damages in such a case will depend on circumstances. If a party can, by a trifling expense or by reasonable exertions, avert the damages caused by the wrongful act of another, it is his duty to do so; and if he fails in performing the full measure of his duty in this regard, he will be only entitled to recover such damages as were not the result of his negligence or omission. He can charge the delinquent party only for such damages as, by reasonable endeavors and expense, he could not prevent. (Douglass v. Stephens, 18 Mo. 362.) When the plaintiff's rails were burned and his lands left uninclosed, in consequence of fire set out by the defendant,...