38 Mo. App. 187 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This case was before this court on a former appeal, and is reported in 29 Mo. App. 332. After being remanded by this court to the circuit court, it went to trial before a jury on the same pleadings and substantially the same evidence, and the plaintiffs again had a verdict and judgment, — this time in the sum of eighteen hundred dollars. The defendant again- appeals to this court.
It will be remembered that John Little was the tenant of the defendant, and that the defendant, being required by the board of health of the city to clean out a privy vault upon the demised premises, through his agent- employed some contractors to do the work. In doing the work the contractors removed the seat of the privy, and when they were through with the work replaced it. But they' replaced it in such a condition that when, a few days afterwards the plaintiff, Priscilla Little, the wife of John Little, attempted to use the seat in the ordinary way, it broke under her weight and seriously injured her.
Our opinion on the former appeal substantially decides the questions which have been raised by the appellant on this appeal, unless there is a fatal variance between the case as averred in the plaintiffs’ petition and as established by her evidence.
We reversed the judgment on the-former appeal because of the giving of an instruction which contained the hypothesis that the defendant had agreed and undertaken to keep the premises in repair, of which agreement and undertaking there was no evidence. On the present trial substantially the same instruction was given after eliminating this hypothesis of fact. This instruction advised the jury that if John-Little was a tenant under the defendant of the premises described in the amended petition and evidence; and if the jury
The same may be said of so much of the petition as states, by way of inducement, the relation of landlord and tenant between John Little, the husband of Priscilla Little, and the defendant. The case, as submitted to the jury, does not proceed upon the theory of a duty, on the part of the defendant, to keep the privy in repair,' growing out of his relation of landlord. We, of course, concede, as we have frequently held, that there is no such duty resting upon a landlord, unless he has assumed it, by express contract. But the essential facts, stated in the petition, and established by the evidence, were that the plaintiff, John Little, was, with his family, in the possession of certain premises; that the defendant, by his employes, went upon the premises to cleanse the privy vault, and, in so doing, took up the seat, and replaced it in such a negligent manner
With the view of advising the trial court how to-proceed on another trial, we intimated, when the case was before us, on the former appeal, our opinion that an unavoidable inference of contributory negligence-did not arise out of the evidence adduced in favor of the plaintiffs, such as would have warranted the court in withdrawing the case from the jury, on that ground. We are now asked to reconsider that holding, and an able argument has been made, with the view of showing that we were wrong in that conclusion. The question of contributory negligence, then, as now, arose upon the-record; and our deliberate judgment upon the question became the law of the case, to control the trial judge on another trial, in case the evidence should present the-same state of facts. It would be contrary to a fundamental rule of appellate procedure for us, now, after the-case has been tried, in conformity with the judgment thus expressed, to change that judgment. We have, of course, power, — considered as mere power, — -to recall that judgment, if of opinion that it was erroneous; and appellate courts have sometimes, on a second appeal, taken a different view of the law from that announced on the former appeal. But we remain of the opinion, then expressed, and do not think it necessary to repeat our reasons for so holding.
But, it is argued on this point, that the evidence was not the same on this trial as on the trial reviewed on the former appeal, in that on that trial Mrs. Little-
The question of contributory negligence was submitted to the jury on instructions which were very favorable to the defendant. They presented the defendant’s theory fully to the jury in strong language, and two of them were argumentative.
The judgment will be affirmed.