26 Mo. App. 75 | Mo. Ct. App. | 1887
Lead Opinion
delivered the opinion of the court.
The plaintiff, a widow, brings this action for the damages which she has sustained through an injury received by her minor son, William, in consequence of being driven, while riding in a wagon, in the city of East St. Louis, Illinois', against a structure composing the approach to the Illinois and St. Louis bridge, alleged to be operated by the defendant. The answer is a general denial, merely. There, was evidence tending to show that an elder brother of the boy, for whose injury this action was brought, named, Michael, was a driver of a baggage wagon of the St. Louis Transfer Company; that his brother and another boy were riding with him, on the seat of the wagon, about eight o’clock at night; that it was dark, and that there were no lights of any kind at, or near, the place of the accident; that the driver of the wagon attempted to drive under the structure known as the “approach” of the Illinois & St. Louis Bridge, where it crosses Brooklyn street; that the frame work of this structure was so near the- surface of the street that it struck the boy, William,, and his brother, Michael, breaking the leg of William, and fatally injuring Michael; that Brooklyn street had been used as a public highway of East St. Louis for twenty-six years; that the defendant is the lessee of the Illinois & St. Louis Bridge, jointly with another railway company, under a lease made abo ut three years prior to the accident, and extending for the term of ninety-nine years; that the plaintiff was put to an expense of between two and three hundred dollars in nursing and caring for the two sons, in consequence of their injuries ; that he always had, since able to work; lived with her, worked out, and given his earnings to her, and that his earning capacity
“Q. What amount could the said William Matthews earn, from the time of the accident until he attained the age- of twenty-one, per month, if said accident-had not happened ? A. Average fifty dollars.
“Q. What amount could the said William Matthews earn, from the date of the accident, per month, until he reaches the age of twenty-one years, after the injury? A. Average twenty-five dollars.”
The court refused to submit to the jury a special interrogatory, requested by the defendant, as to how much it would cost per month to board, lodge, clothe, and maintain the said William Matthews, from the date of the accident until he should reach the age of twenty-one years. This ruling is not properly presented for decision on this appeal, because it is not assigned for error in the appellant’s statement. It is, however, involved in the question of damages, and must unavoidably be considered under that head.
- I. We are of opinion that the court committed no error in overruling the demuri’er to the evidence. We
Nor is the doctrine that, in order to make a land owner liable for damages happening to another land owner, from a nuisance existing upon the land of the
Whether it was practicable for the defendant to maintain the framework of its bridge approach at a greater height from the street, or to guard the danger, without totally obstructing the street, does not appear,
II. The objection to the first instruction given for the plaintiff, that it assumed the existence of a controverted fhct, namely, tfiat Brooklyn street was a public highway, is regarded by my learned brethren as a good objection, but I am of opinion that it is not tenable. My colleagues are of opinion that no authority can be found in this state, for the doctrine that the court may, in instructing juries, assume facts which are controverted by the pleadings, but which are not controverted by the evidence. They reason that, in this case, the fact was denied by the answer, and not admitted by the defendant ; that the burden of proof was upon the plaintiff; and that, if the view which I take is correct, the court may instruct the jury to find for the plaintiff upon any point, simply because the evidence upon that point is not contradicted. But, as in this case, the fact, though controverted on the pleadings, stood uncontroverted on the evidence, and, as there was nothing, whatever, to impugn the credibility of the witness who testified to the fact, or to cast suspicion on her testimony, the court, in my opinion, committed no prejudicial error in framing the instruction, in assuming it as proved, and in not submitting the question specially to the jury ; nor do I at all agree that the law is in accordance with the view of my learned associates. On the contrary, in my opinion, the law in this state, and elsewhere, is, that it is not prejudicial error for the court, in instructing juries, to assume facts which are not controverted by the evidence. Caldwell v. Stephens, 57 Mo. 589, 594; Barr v. Armstrong, 56 Mo. 577, 589; Mansfield v. Pollock, 74 Mo. 185, 189; Fields v. Railroad, 80 Mo. 203, 206; Carroll v. Railroad, 88 Mo. 239, 248 ; Hughes v. Monty, 24 Ia. 499; Heirn v. McCaughn, 32 Miss. 17; Lamar v. Williams, 39 Miss. 342; Farquhar v. Toney, 5 Humph. 502.
• IV. In the light of the evidence, we do not regard the objection as tenable that the second instruction given for the plaintiff assumed that the defendant “maintained” the structure in question, and that it assumed that the ordinance read in evidence applied to this structure. We take it that there was no room for controversy upon this subject, under the' evidence.
V. It is objected that the petition states no cause of action. This objection is predicated upon the ground that, at common law, the mother of a minor son has no cause of action for the services of such a minor ;. that there is no obligation on the part of the mother to support the minor, and, hence, no corresponding legal right on her part to his services. The contrary we take to be the law. In Guion v. Guion (16 Mo. 52), Scott, J., in giving the opinion of the court, said : “By the common law, the father is bound to support his minor children, ■and, so long as he does,, he will be entitled to their services. On the death of the father, this duty and right devolve upon the mother, as succeeding to all the duties and obligations of her husband.” In Girls’ Industrial Home v. Fritchey (10 Mo. App. 344), the question ■of the obligation of a widowed mother to support her minor child was before this court for decision, and this court, speaking through Bake well, J., said: “The mother is the head of the family when the father is dead. She has the same control over the minor children as he had; and we see no reason why her duties to them should not be the same. The English policy on the subject is declared by the statute of 43 Elizabeth, chapter 2, which provides that the father and mother of poor persons ¿hall maintain them at their own charges, if of sufficient ability. Nor do we know any
VI. • My brethren instruct me to say that the court is of opinion, on the authority of Dunn v. Railroad (21 Mo. App. 188, 202), that the petition in this case states no ground of recovering damages in respect of loss of services, for the reason that it fails to allege that the child, William, was the servant of the plaintiff, at the time of the injury.- No such allegation is made directly in the petition, and the allegation that the plaintiff lost his services is regarded by my brethren as a mere conclusion. This being the view of the court, if the plaintiff expects to recover for loss of services on another trial,, it will be necessary for her to amend her petition, so as-to allege in direct terms that the child was her servant, and that, by reason of the injury, she was deprived of his services.
But, while adhering to the rule laid down in Dunn v. Railroad (21 Mo. App. 188, 202), I will say, for myself, that I am of opinion that the judgment in this
But this award of damages gives to the plaintiff the probable gross earnings of the minor son, without any abatement for the cost of his board, lodging, and clothing, during the period in question. The defendant asked the plaintiff, when she was testifying as a witness, what would be the cost per month for boarding, lodging, and clothing the boy, and the court excluded the question, and the defendant excepted. Moreover, the court, as already stated, refused to submit a special interrogatory to the jury, as to how much it would cost to board, lodge, clothe, and maintain the boy from the date of the accident until he should reach his majority. The evidence given by the plaintiff, as to the earnings of the boy, and as to the earnings of her other sons, referred to their gross earnings, without deducting the expenses of their living. And this was the evidence on which the award of damages, made by the jury, was constructed.
It thus appears that the award of damages is based
But where, as in this case, in consequence of errors of the court in antecedent rulings upon • evidence touching the measure of damages, the verdict, even if conformable to the evidence which was submitted to the jury, would, nevertheless, be unwarranted by law, our duty is still more clear.
VIII. At the request of the plaintifii, the court gave the following instruction :
“2. The court instructs the jury that, under the ordinance read in evidence, the defendant had no right to maintain the bridge approach over Brooklyn avenue, except at such height as to be no obstacle to ordinary travel upon the said highway, underneath the said structure.”
We do not see that this instruction could properly have been given, in the state of the evidence. In the first place, no power, in the city of East St. Louis, to pass the ordinance in question, was shown. It is an elementary principle, that municipal corporations have no powers except such as are granted by the legislature. It follows, that a person claiming rights, under an ordinance of such a corporation, must affirmatively show that the passage of the ordinance was within the power conferred upon the corporation by its charter. In the second place, we do not see any evidence in the record whether, or not, Brooklyn avenue was one of the intersecting streets named in the ordinance. It was neces
We must, therefore, reverse the judgment and remand the cause. In this result all the judges concur. In the different points considered, the judges concur and dissent as above stated.
Concurrence Opinion
delivered a concurring opinion.
We all concur in the result reached in the foregoing opinion. While the language used therein sufficiently separates those parts of the opinion, which express Judge Thompson’s individual views, from those wherein he expresses the views of his associates, or the court, yet there is one subject of great practical importance discussed therein, which requires a detailed comment.
It has always been a rule of practice, in this state, that the court can not assume, in its instructions to the jury, the existence of controverted facts, whether such facts are controverted by the pleadings, or by the evidence. Thompson v. Botts, 8 Mo. 710; Chouquette v. Barada, 28 Mo. 491; Merritt v. Given, 34 Mo. 98; Turner v. Loler, 34 Mo. 461; Moffatt v. Conklin, 35 Mo. 453; Sawyer v. Railroad, 37 Mo. 240; Washington Ins. Co.v. St. Mary's Seminary, 52 Mo. 480; Gerren v. Railroad, 60 Mo. 405; Peck v. Ritchey, 66 Mo. 114; The State v. Wheeler, 79 Mo. 366; Wilkerson v. Thompson, 82 Mo. 317; Comer v. Taylor, 82 Mo. 347; The State v. Hecox, 83 Mo. 531; Maxwell v. Railroad, 85 Mo. 95; Bank of North America v. Crandall, 87 Mo. 208.
This proposition is the logical sequence of the further rule, well established, that the triers of the fact, and not the judge, have to déterlnine the question of the credibility of witnesses in the first instance. Were it otherwise, the judge would be authorized, in every case, to instruct the jury to find an issue for the party on whom the burden of proof rests, simply because the testimony-bearing on that issue is not opposed by countervailing
The cases cited by Judge Thompson fail to establish a contrary proposition. In Barr v. Armstrong (56 Mo. 577), the instruction for the defendant assumed that a certain notice had been given. This was complained of as error. Judge Tories, in delivering the-opinion, says: ‘ ‘ Even the instructions asked for by the 'plaintiffs assume that notice had been given, and presented no issue in reference to that fact. The case seems to have been tried after the notice had been admitted in evidence, with the assumption that notice-had been given, and this, I presume, is the reason why the court framed the instructions as it did. This court, therefore, notwithstanding that the instructions given by the court were erroneous in that particular, not being able to see how the plaintiffs were injured thereby, and the verdict seeming, from the evidence, clearly fox the right party, will not reverse the judgment for that technical error.”
In Caldwell v. Stevens (57 Mo. 589), the instructions complained of assumed the fact that A was the child oí B, concerning which the court says the evidence was-clear and conclusive; there being no pretense of any contrary evidence. “Under these circumstances,” says Judge Tories, “we might not reverse the judgment for that error alonef and cites his former opinion in Barr v. Armstrong. The judgment, however, was reversed.
In Mansfield v. Pollock (74 Mo. 185), which was' an action of ejectment, the plaintiff testified “that he had never occupied the lands in controversy,” and the court (Norton, J.), held that the trial court in its instructions might have well assumed that fact against him as established since the plaintiff himself admitted it.
In Fields v. Railroad (80 Mo. 203, 206), the evidence was riot preserved in the bill of exceptions, and the court (Norton, J.), say: “ When testimony is clear and conclusive, an instruction may assume the truth of the facts sworn to, and it will not be reversible error.” But
In Carroll v. Railroad (88 Mo. 248), the court (Ray, J.), in speaking of the instructions complained of, say: “There was no controversy, as we gather from the record, as to the terms upon which the deceased was received, and was being carried, at the time, upon the train ; but the controversy was only as to the legal effect of the stock contract, * * * and an assumption of such fact, about which, as a matter of law, there could be no dispute, under such circumstances, was not error, or prejudicial to the defendant.”
In the case at bar, the fact assumed in the instruction of the court was, not only that Brooklyn street was a highway, but, also, that such street existed, and was a public highway, for vehicles, at the point where the accident occurred. The testimony on that subject was that of user alone — was given by one witness, and was far from clear and conclusive on the second branch of this inquiry. No just claim can be advanced, that the case can be brought, even within the dictum in Fields v. Railroad (80 Mo. 203, 206), much less within the facts of any decided case. The assumption of that fact in the instruction would, under the uniform, uninterrupted, and unquestioned decisions in this state, of itself, necessitate a reversal.
It is important to make this statement, because the question of properly framing instructions is one which trial courts have to encounter daily. As the proper administration of justice requires that cases should be tried free from error, the practice to encourage trial courts to commit them, in causes remanded for new trial, by informing them that such errors, if re-committed, will not be treated as reversible errors, is not to be commended in any case.