152 Mo. 615 | Mo. | 1899
This suit was instituted before a justice of the peace against the city of St. Louis and one Hellstern to recover damages which plaintiff claims to have sustained in injuries to his person and in the breaking of his buggy and harness and injury to his horse, occasioned as he asserts by the negligence of the defendants in suffering a dead horse to remain in one of the public streets of the city, which frightened plaintiff’s horse, causing it to run away.
Upon the trial before the justice there was a verdict for the defendant Hellstern, and for the plaintiff against the city for $62.45, from which the city appealed to the circuit court; there was no appeal by the plaintiff from the judgment of the justice in favor of defendant Hellstern. When the cause reached the circuit court plaintiff filed an amended statement in the form of a regular petition, stating a cause of action against the city alone.
Upon the trial in the circuit court the testimony on the' part of the plaintiff tended to show that about 2 o’clock in the afternoon- of April 18, 1895,' a horse belonging to Hellstern died on Michigan avenue, one of the public streets of the city, and Hellstern went immediately to a police station and re
“Q. Well, now, tell the court what condition your wagon was in after the mare broke loose from it ? A. Well, the wagon was completely wrecked. The springs were broke, the axles bent, and the front end of the box was broke out, and the sides in underneath the box was broke. The braces were broke, the seat was broke, and the cross-pieces of the shaft were broke, and quite a number of other articles too numerous to mention.
“Q. The harness? A. A new set of harness I had just purchased, didn’t have it but about a month, it was pretty well broken up.
“Q. Did you have the wagon repaired? A. Yes, sir.
“Q. What did you expend for that ?
“Defendant objected, and objection sustained.
“Q. What was the amount of damage done to the wagon and harness?
“Counsel for defendant objected, as calling for-a conclusion. Objection overruled, exception taken.
“A. Somewhere in the neighborhood of $33.
“Counsel for Defendant: I ask that that be stricken out*619 ■unless he shows, of his own knowledge, that he knows what was the reasonable value of such work.”'
Further questions and cross-questions elicited from the witness that he had never had just such a wagon broken in that particular way before, and repaired, but that he had used such a wagon for a long time, and had frequently had repairs of broken parts made, and in that way learned the cost of such work, and then, in answer to a question, stated that the reasonable cost to repair the wagon was from $28 to $30, and the harness from $3.25 to $1, to which defendant’s counsel . * objected.
Plaintiff then read in evidence over the defendant’s objection the city ordinance in relation to the removal of dead animals from the streets, from which it appears that the work is to be performed by a person who has contracted with the city to do so, and every one else is forbidden to interfere unless by express permit, and the contractor is required under penalty to remove the carcass within six hours of daylight after being notified. The ordinance is long, covering not only the matter of contract, but the mode of removal and disposal of dead animals, and safeguards to the- public health, etc., which is .unnecessary to set out here.
The defendant offered no evidence. The cause was tried by the court, jury waived and resulted in a finding and judgment for plaintiff for $105.50, from which the defendant city after due, course has prosecuted this appeal.
There are two assignments of error insisted on in the brief of appellant, first, permitting plaintiff to testify to “the amount of damage done” to the wagon and harness; second, admitting the ordinance in evidence. The alleged errors in overruling the motions for new trial and in arrest, are covered by the two assignments above specified.
I. The part of the testimony on the subject of the plaintiff’s damages appellant deems incompetent is contained in this question and answer: “Q. "What was the damage done
II. The defendant’s objection to the admission of the ordinance in evidence should have been sustained. There was one section of the ordinance, that one making it the duty of the contractor to remove the dead animal within six hours of daylight after being notified, was competent for one purpose, that is, as bearing on the question as to a reasonable time within which the city should cause the nuisance to be removed. But all the rest of the ordinance was irrelevant to the case. If
But this ordinance only tended to show that the city had undertaken to do that which it was bound under the law to do. The fact that the ordinance prohibited any one except the contractor to interfere in the matter, neither added to nor took from the character of the city’s obligation. The law makes it the absolute duty of the city to remove the nuisance within a reasonable time, and holds it liable for damage resulting from neglect of that duty. Therefore, the admission of the ordinance in evidence was not only irrelevant, but absolutely immaterial and could not possibly have prejudiced the defense.
The finding and judgment of the court were unquestionably for the right party, and there was no error committed materially affecting the merits of the action.
The judgment of the circuit court is affirmed.