152 Mo. 602 | Mo. | 1899
This is a suit for damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the def endant city.
The substance of the petition is that in 1883-84 the city, as a part of its waterworks system, constructed a large boiler and engine house, and a brick and stone building attached, the first story of which was used for storing coal to be used in its business, and the upper story for other purposes; that in'
Upon the trial there was no direct proof that the waterworks belonged to the city or that the buildings, railroad switch and other appurtenances were erected by the city, but these facts were assumed, and the general expressions of the witnesses were to the effect that the premises were the city waterworks and no point of that kind was attempted to be made by defendant’s counsel.
The evidence on part of plaintiff tended to show that he was employed by a man named Sachs, who had a contract with the city to deliver coal at the waterworks, and on the day of the accident plaintiff was in a coal ear on the track close to the building shoveling coal from the car through a window into the coal storage building, when a stone from the cornice fell, striking him on the head and inflicting injuries of the kind specified in the petition. The plaintiff fell unconscious and never knew what hit him. He never saw the stone that fell, as it was carried away by some one unknown to him before he was able to return to the scene of the accident. As to the
The only act of negligence charged was the building of the cornice with rotten stone, but when the plaintiff came to that part of his testimony the court ruled that he could prove only the condition of the stone that struck him, and as he was unable to identify that stone he was at the end of his ease. If that ruling were correct, then if all the stones in the cornice were rotten except this one, and this one fell because the rotten stones with which it was joined in the cornice crumbled so that they could not hold it, then there was no negligence. Of course it would not be conclusive proof of negligence, in the construction of the building in 1883, to show only that the stones in 1896 were in a defective condition, because they might have become defective after they were put into the wall
When the plaintiff offered his evidence on that point and the court refused to hear it, we are to presume for the purpose of determining the correctness of the ruling of the trial court, that if he had been suffered to introduce his evidence it would have sustained his case as far as that fact, and as far as legitimate’inference therefrom can be drawn, would go.
We are of the opinion that the circuit court erred in excluding that evidence, and for that reason the judgment is reversed and the cause remanded to that court, to be tried again.