| Mo. Ct. App. | Jan 24, 1910
This is an action for damages alleged to have been caused to plaintiff’s residence and furniture therein by a falling wall which had been standing on defendant’s property. The plaintiff prevailed in the trial court.
The defense is that the wall was. blown down by a windstorm of such unprecedented severity as to properly be designated.'' the act of God, as that term is known to the law; and that defendant believed it to be safe. While the act of God would protect defendant, yet such facts should be shown as to bring the cause of the injury within that term and we do not think it was done in this case. The wind blew down the wall, but the evidence shows that while it was of some severity, yet it was not such as should not have been expected to occur and which frequently did occur. It is clear that the class of storm shown in evidence was not of such extraordinary character as to permit it to be designated as the act of God, and we will therefore leave out of further consideration that part of the contention between the parties.
The record discloses that defendant considered that if he was advised and believed the wall was secure and safe enough to be left standing then he should not be held liable for consequences resulting from his mistake. This was an erroneous theory. We said of a like contention in Orr v. Bradley, 126 Mo. App. 146" court="Mo. Ct. App." date_filed="1907-06-24" href="https://app.midpage.ai/document/orr-v-bradley-6622570?utm_source=webapp" opinion_id="6622570">126 Mo. App. 146, that it was not what the owner of the wall believed from advice of an architect. That “that was not a proper way to dispose of the question whether defendant was negligent. The question was one for the jury, who were to judge of his conduct as measured by that of an ordinarily prudent inan in the same circumstances.”
An owner of property, of course, has a right to erect a building upon it, but he. must so use his own as not to injure his neighbor. He is not an insurer of his neighbor, and therefore is not liable for hidden defects in his structure that examination, care and prudence would not disclose. So, if, as in this case, he leaves standing a wall remaining from his burnt building, intending to use it as part of a new structure, though it may have been a part of a thoroughly secure building, yet he must see to it that in its less supported condition and its probable injury, more or less, from the fire, it is safe. He must use every endeavor to see that it is safe, or that it is made safe, that a prudent and careful man would use in a like situation, having in view all the time the dangerous character of such a structure, unless it is made secure. It is therefore apparent that the belief or good faith of the owner or his reliance upon what others told him is not the sole criterion by which the question shall be decided. The standard is, what would a careful and prudent man, in such situation, in charge of such a dangerous agency have done? [Cork v. Blossom, supra; Beidler v. King, supra; Steppe v. Alter, supra.]
What we have written covers all proper question made of the instructions. Those offered by defendant and modified by the court over his protest, were properly altered.
The effect of those given for the plaintiff was that in the wall falling upon plaintiff’s property it would be presumed that it was unsafe and that the burden was upon defendant to exculpate himself; one of the instructions so stated in terms. This we think was proper and is supported by Turner v. Haar, 114 Mo. 335" court="Mo." date_filed="1893-02-27" href="https://app.midpage.ai/document/turner-v-haar-8010815?utm_source=webapp" opinion_id="8010815">114 Mo. 335; Scharff v. Construction Co., 115 Mo. App. 157" court="Mo. Ct. App." date_filed="1905-12-12" href="https://app.midpage.ai/document/scharff-v-southern-illinois-construction-co-8264022?utm_source=webapp" opinion_id="8264022">115 Mo. App. 157, and the authorities .above cited. It is not inapt to say that
We have stated above that we did not consider the proof was sufficient to make a question whether there was an act of God. But the court in liberality towards defendant submitted the matter in proper form to the jury and we would accept the verdict even though the evidence in defendant’s behalf had been of greater strength.
It is urgently insisted that errors were made to defendant’s prejudice in the rulings on evidence, and defendant has furnished us samples of the character of evidence offered. It consists greatly in effort to substitute the judgment of the defendant and of the witnesses, for that of the jury. This is true both as to the questions concerning the nature of the wind and the character of the wall. The record discloses a continuous effort by counsel, resisted by the court, to have (in effect) the defendant and his witnesses instead of the jury, decide the question whether he was culpable. We think the rulings were based upon abundant authority. Jones on Evidence, vol. 2, p. 830, lays down the following rule: “Whatever liberality may be allowed in calling for the opinions of experts or other witnesses, they must not usurp the province of the court and jury by drawing those conclusions of law or fact upon which the decision of the case depends. Hence it would be improper to inquire whether, in view of the testimony given, a party had acted negligently or prudently, or with ordinary care, or whether certain acts constituted negligence.” And this is supported by a long line of decisions in the supreme and appellate courts of this State, many of which will be found in plaintiff’s brief.
There were a number of other suggestions made why the judgment should not stand, including an objection to the measure of damages; but an examination