| Mo. Ct. App. | Feb 6, 1912
This is a suit for damages accrued to plaintiff through the negligence of defendant. Plaintiff recovered and defendant prosecutes the appeal.
A jury was waived and the issue tried before the court. The subject-matter of the controversy relates to the manner in which defendant maintained a gutter on its building, causing water to flow therefrom upon a wall of plaintiff’s building. It appears plaintiff owns a lot and a brick building situate thereon at No. 4107 Olive street, St. Louis, and defendant owns the next adjacent building and lot on the west of plaintiff’s property, which is numbered 4109 on the same street. Both buildings are brick structures immediately adjoining. Plaintiff’s building protrudes to the north line of Olive street, but that of defendant stands to the north of the street line about fifteen feet. The evidence for plaintiff tends to prove that defendant constructed a gutter on its building, designed originally for the purpose of carrying the water which fell on its roof through a downspout on to its own premises ; but for more than a year prior to the institution of this suit, through the negligence of defendant, this gutter was out of repair, so that the water overflowed
For defendant, the evidence tended to prove that plaintiff’s gutter was both carefully constructed and maintained and that no damage whatever was entailed upon plaintiff from that source. But the court found the issue for plaintiff as though defendant were negligent in the manner stated. Though the testimony is highly conflicting, there is not only substantial evidence, but an abundance thereof as well, in support of the finding of fact, and, this being true, we are concerned only with the question of liability which the proof tends to suggest under the law.
Although it is true that every person has a clear legal right to protect his premises against the fall of rain or snow, even though incidental injury may result to his neighbor in consequence, it is likewise true that he must respond in damages to one injured through his negligent breach of duty with respect to the matter. The law casts upon the owner or every proprietor of land the duty to use his own so as not to restrict the enjoyment by others of corresponding rights in their
But it is argued that, though such be true, the judgment should be reversed for the reason the court refused defendant’s instruction No. 4 as follows: “The court declares the law to be that there can be no finding for plaintiff unless the court finds and believes from the evidence that the wall alleged to have sustained the injury complained of is in and upon the premises of plaintiff.” This instruction appears at one place in the bill of exceptions to have been refused; at another place, in the same bill, it is recited
Fnrthermore, this instruction was properly refused, because there is nothing in the case suggesting that plaintiff’s wall was not in and upon his premises; that it was upon his own is not controverted. Indeed, the record discloses that defendant expressly admitted plaintiff owned the title to the premises on which his building was situated. Moreover, the president of the defendarit corporation, when on the witness stand, testified in plain terms, concerning a coat of cemet plaster which plaintiff placed upon the outside of the west wall of his building, that “It runs up from our building line ‘straight up.’ ” From this alone, it appears that plaintiff ’s building was situate entirely on his own lot, for if the coat of cement on the west side of its west wall went “straight up” from the building line, then it could not be otherwise. As before said, there is nothing in the record to suggest
Aside from all of this, the bill of exceptions reveals that this instruction was actually given and not refused at all. The instruction at one place in the bill is set forth under a recital to the effect that it was refused, and to its refusal an exception appears to be saved. At a subsequent place in the same bill of exceptions, this indorsement on the instruction appears and is signed by the judge who presided at the trial: “This instruction was given and placed among the given instructions. The word ‘Refused’ was a clerical error. W. B. Homer, Judge.” Prom this it appears that though the instruction was inadvertently marked “Refused,” it was actually given in the case, and this appears, too, in the same bill of exceptions, which, at another place, says it was refused. But the latter indorsement by the trial judge is more recent and comes to us in the bill of exceptions as the truth of the matter, for no one can doubt the authority of the trial judge to settle mere matters of exception at the time the bill is signed and authenticated and cause them to be properly inserted in the bill according to the fact. Such is the province and duty of the trial judge. If either of the parties is not satisfied with the bill as the judge would make it read, the statute provides for a bystanders’ bill. When no such bill is taken, the one signed by the trial judge, properly authenticated, filed and made a part of the record, imports absolute verity, so that the truth of its statements is not to be doubted. [See. 3 Ency. PI. & Pr., 513 ; State v. Greenwade, 72 Mo. 298" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/state-v-greenwade-8006595?utm_source=webapp" opinion_id="8006595">72 Mo. 298;