90 Mo. App. 588 | Mo. Ct. App. | 1901
Plaintiff was injured by falling into a coal-hole in the sidewalk in front of the premises belonging to the defendant.
The principal defense to this áetion for damages is that the premises, were, at the time and had long been, in the possession of defendant’s tenants under a written lease; that the covering of the coal-hole was in good condition when the lease was executed, and defendant made no covenant to repair.
A coal-hole in a sidewalk, properly constructed and covered, is not a nuisance per se, but a lawful use of the soil of the street and consistent with the easement of the public to travel over it. Gordon v. Peltzer, 56 Mo. App. 599; Adams v. Fletcher, 17 R. I. 137; Fischer v. Tirkeld, 21 Mich. 1. Liability for an injury sustained by a passenger who falls into one, depends, therefore, on whether there was negligence in constructing or maintaining it.
Appellant invokes the doctrine that a landlord is exempt from responsibility for injuries arising from the unsafe condition of a leasehold, provided it was in good condition when let and he gave no covenant to repair; in which case the duty devolves on the tenant to make repaira, who is therefore answerable for harmful results which follow his failure to do so. Gordon v. Peltzer, supra. The facts fail to bring appellant
. There was evidence to prove the dangerous condition of the coal-hole had existed for some time previous, and that the defendant’s agent, Barrett, had been actually notified of the fact at least a month, and probably longer, before the accident happened. Under these circumstances, there can be no doubt about the jury’s right to pass on the defendant’s liability; for a landlord is responsible for injuries arising from the bad repair of leased premises if they were'in that state when let. Mancuso v. Kansas City, 74 Mo. App. 138; Kirkpatrick v. Knapp, 28 Mo. App. 427; Todd v. Flight, 9 B. C. (N. S.) 377. As defendant, or her agent, had notice of the dangerous state of the coal-hole before she demised to Sander, it was her duty to make it safe. Timlin v. Standard Oil Co., 126 N. Y. 514.
Plaintiff recovered a verdict for more than three thousand ope hundred dollars. Complaint is made that it is excessive and so manifestly unjust that it must-have been the result of passion or prejudice on tire part of the jury. The evidence shows one of plaintiff’s legs was scraped and bruised and he was slightly bruised in the side. A physician was with him at the time, who gave him a prescription and told him to go home and apply it, which he did. A day or two afterwards he sent for the doctor and it was found erysipelas had set in, presumably from an unclean condition of the wound. Plaintiff was confined to the house or kept from his business three weeks and claimed to suffer pain in his limb from the injury long after. No bones were broken and there was no permanent injury, though some discoloration remained and painful
With such proof before us, we are unwilling to let the verdict stand, while conceding the widest latitude to a jury in estimating damages, which is compatible with a fair and honest judgment upon the testimony. The object intended to be secured in awarding damages for personal injuries, is to afford just and reasonable compensation for the suffering endured by plaintiff, his loss of time, diminished ability to support himself and family, and expenses incurred for treatment. This latter item amounted to fifty-five dollars. The plaintiff in this case was a butcher and occupied a stall at the city market. He was detained from his business only a short while, nor does the testimony disclose that he underwent severe suffering. The damages awarded by the jury were wholly inordinate and out of all proportion to what he really sustained. As was said by our Supreme Court, in a similar case; “It bears the impress of passion or prejudice upon its face.” Haynes v. Town of Trenton, 108 Mo. 123.
For this reason the judgment is reversed and the cause remanded.