This case is before us on the appeal of defendants from the action of the St. Louis court of appeals affirming a judgment of the circuit court of the city of St. Louis, rendered for plaintiff, in the sum of $3,'500, for the killing of her son by the alleged negligence of defendants. The evidence shows that plaintiff’s, son, about ten years of age, was killed in Collins street, in the city of St. Louis, on the thirty-first day of March, 1881, by reason of the brick wall of a building adjacent to said street falling into said street and upon the son of plaintiff, while playing with two other boys. The evidence also shows that the lot of ground upon which the building, of which the falling wall was a.part, stood, had been leased by the owners to Collins & Holliday for a term of ten years ; that said Collins & Holliday erected the. said building; that the leasehold interest having-been encumbered by mortgage was sold under its provisions in 1876 to S. N. Holliday, who sold and conveyed the same to the defendant, the Broadway Foundry Company, in April, 1876'; that said company owned and used the building as a foundry for working iron, from that time up to about the ninth of January, 1881, when the building was partially destroyed by fire, leaving the walls fronting on Collins street, in whole or in part, standing.
The evidence tended to show that in February, 1881, previous to the accident, the Pope Iron & Metal Company purchased of the Broadway Foundry Company the debris of the machinery and fixtures in the building; that the Pope Iron and Metal Company entered upon the premises soon afterwards for the purpose of removing the same, and in so doing weakened the wall so as to cause its fall. On the other hand there was some evi
There was evidence tending, to show that the wall, •eight or ten days before it fell, had become unsafe and was in a shaky condition, and that Mr. Rohan, who was doing business across the street from where- the wall stood, observing its condition, notified, on the twenty-ninth of March, the proper authorities in writing of its dangerous character ; that the next day the wall was inspected by an officer of the city, and that it fell on the thirty-first day of March. The City of St. Louis, The Broadway Foundry Company, The Pope Iron & Metal Company, as well as the owners of the ground, except one, on which the building stood and out of which the leasehold estate had been carved, were made parties defendant. Plaintiff recovered judgment against all the defendants, except the owners of the lots on which the building was erected. Each of the three defendants
It is urged that error was committed by the court in refusing the following instructions:
“ 1. The court instructs the jury that there is no-proof in this case touching the amount of damages sus* tained by plaintiff by reason of the matters stated in the petition, and the- jury, if they find the issues for the plaintiff, will assess the damages at a nominal sum.”
“2. The court instructs the jury that, under the pleadings and evidence in this case, there can be no recovery herein against the city of St. Louis.”
“3. If the jury believe from the evidence that the owners of the property occupied ‘ by the Broadway Foundry, on March 1, 1881, or any of them, resided in. the state of Missouri on the fourteenth day of June, 1881, the day this suit wras commenced, and have continued since that day to be residents of said state,, then there can be no recovery in this case against the city of' St. Louis, because said owners so residing in Missouri are necessary parties defendant in this proceeding, and have not been joined as such.”
As to the first instruction refused, it may be said, that while the only evidence touching the question of' damages was that the son of plaintiff was ten years of' age when killed, and showing the circumstances and condition in life of plaintiff, the instruction, under the ruling of this court in the case of Nagel v. Mo. Pac. R. R. Co., 75 Mo. 653, in which a similar question was considered, was properly refused. See, also, cases of Ihl v. Railroad, 47 N. Y. 317; City of Chicago v. Mayor, 18 Ill. 349 ; Owen v. Brockschmidt, 54 Mo. 289. The-second instruction was also properly denied, because, there was evidence tending to show that ten or more
During the pro.sxess of the trial the city offered to read in evidence an ordinance io the eiiecu that ix the
It is insisted by the Pope Iron & Metal Company that error was committed in giving the first and second instructions for plaintiff. The first of these instructions predicated the right of plaintiff to recover, both against the Broadway Foundry Company and the Pope Iron & Metal Company, upon the evidence showing to the satisfaction of the jury that said companies had joint possession and control of the ground and building and property thereon, and did remove therefrom machinery and iron, and in so doing, or from the fire, the walls of said building were deprived of necessary support, in consequence of which the wall fell upon and killed the son of plaintiff.
The objection urged to this instruction is that it authorized a recovery against the Pope Iron & Metal Company if the wall had been so weakened by the fire as to cause it to fall. If the wall had been so weakéned by the fire as to make it dangerous, and the Pope Iron & Metal Company thereafter had joint possession
The only difference between the first and second instructions is, that in the second instruction plaintiff’s right to recover is predicated on an exclusive, instead of, as in the first, on a joint control of the building and this difference in no way affects the principle above stated. The instructions given by the court covered every phase of the case presented by the record, and, -perceiving no error, the judgment is hereby affirmed with the concurrence of all the judges.