85 Mo. App. 237 | Mo. Ct. App. | 1900
— Plaintiff sued for alleged injuries to his residence lot by the cutting away of the soil and the closing up of drains or sewers, setting forth hi's cause of action, first, in a count for trespass; secondly, in a count for the negligent cutting and grading of a street, thus causing said injuries.
The defendants answered, one by a general denial, the other by a specific denial, and an averment that the work, for the doing of which the action was brought, was performed by plaintiff’s request and consented to by him upon its completion.
Issue was taken by a reply. On the trial the second count of the petition was withdrawn from the jury by an instruction of the court. The evidence showed that defendants, who were city officers, caused certain work to be done on the street in front of plaintiff’s residence. The witnesses for plaintiff testified that the work in question materially changed the grade of the street and caused substantial damage to plaintiff’s property. This was denied by the witnesses for defendants. There was no evidence of any street ordinance providing for this work. The jury returned a verdict for defendants. From a judgment thereon plaintiff prosecutes this appeal.
The errors complained of relate to the instructions given and refused. A sharp difference of opinion as to what instructions were given or refused and also as to the correct contents of the bill of exceptions arose between the court and counsel, resulting in the refusal of the court to sign the bill of exceptions tendered on plaintiff’s appeal and the subsequent filing of a bystanders bill of exceptions by leave of this court. The instructions chiefly complained of on the present appeal relates to a finding under the second count, which the jury had been told in other instructions was withdrawn from