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FISCHER v. CITY OF ST. LOUIS. (Supreme Court of Missouri, Division No. 1.



In an action against a city for injuries caused by falling over a stone step leading to private premises and projecting under the street, evidence heid to justify submission to the jury of the question whether defendant was negligent. 2. SAME-CONTRIBUTORY NEGLIGENCE.

In an action against a city for injuries caused by falling over a stone step leading to private premises and projecting under the street, evidence held to justify submission to the jury of the question whether plaintiff was guilty of contributory negligence. 3. SAME—INADEQUATE DAMAGES.

Where plaintiff sustained a broken ankle, which, because of her age, failed to heal proper'ly, so that she could walk only by artificial aid, a verdict for $1 in an action for the injury should be set aside as the result of prejudice.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Damages, &$ 370, 396.)

Appeal from St. Louis Circuit Court; Selden P. Spencer, Judge.

Action by Mary Fischer against the city of St. Louis. From a judgment for plaintiff for less than her demand, she appeals. Revers. ed.

Hickman P. Rodgers, for appellant. Chas. W. Bates and Wm. F. Woerner, for respondent.

the report is confirmed and final action taken by the court the result shall be certified to the comptroller, and he report it to the assembly, which at its next session shall make the necessary appropriation, and a failure of the assembly "to make such appropriation shall operate as a dismissal of such proceedings, and no future action for such condemnation for a period of ten years," etc., showing that the framers of the charter had the subject in mind, and if they bad intended to make the failure to approve the report of the commissioners a dismissal of the suit they would have said so.

2. Appellant's next point is that the modi. fication by the court of the report of the second commissioners was a usurpation of appellant's constitutional right to have its damages assessed by a jury or a commission of freeholders, as declared in section 21, art. 2, of the Constitution. No suggestion was made to the trial court that appellant's constitutional rights in that particular were being disregarded, and if there had been the point would have been conclusively answered in the language of this court in St. Louis v. Buss, 159 Mo. 9, 59 S. W. 969. In that case, as in this, the award of the commissioners on the question of damages was not molested; but some changes were made in the benefit. assessments. The court construed the section of the charter (section 7, art. 6) above referred to, and held that, under its requirements “to make such order therein as right and justice may require," the court was authorized to modify the benefit assessments, and in so doing did not infringe on the party's rights under the clause of the Constitution specified.

Appellant dwells with earnestness on the general result, which gives it $1 for its compensation for a strip of land 30 feet wide and 100 or more feet long, and taxes its adjoining property more than $3,000 as for benefits. If that were all there was of it, no court would allow such an award to pass into judgment. But there was evidence tending to show that this 30-foot strip had been used as a public street or road from a date as far back as 1861, and that in this proceeding a strip on the north of it was taken from other property owners to make this street about 60 feet wide along the north boundary of a large tract of land belonging to appellant in an already thickly settled portion of the city. The modification of the report by the court was, as far as it went, entirely to the advantage of appellant. It reduced the benefit assessments against its property $1,200, and added that sum to the sum the city should pay. We do not see in the facts of the case anything so shocking to the sense of justice as to authorize an appellate court to invade the realm of the trial court on a question of fact.

There is no error in the record. The judg. ment is affirmed. All concur, except MARSHALL, J., not sitting.

LAMM, J. Action against respondent city for personal injuries predicated on its alleged negligence in permitting the half of a millstone or grindstone of considerable dimensions to be and remain in the fo way or sidewalk of one of its thoroughfares, Second street. Damages laid at $5,000. Tried to a jury. Verdict, $1.

Asserting dissatisfaction over this small verdict, appellant filed a motion for a new trial challenging the verdict, because, she says, it was the result of passion, prejudice, or misconduct on the part of the jury; because the verdict was inadequate, and not commensurate with the injuries received; and because the jury failed and refused to heed the instructions of the court, in that having found the issues in favor of plaintiff, it failed to fairly compensate her for her injuries. The court below disallowed this motion, and plaintiff duly appeals here, assigning said ruling as error.

It is disclosed by the record that the pleadings are unexceptionable, and the instructions are unassailed; that at the close of appellant's case respondent challenged the sufficiency of her evidence to make a case, and the trial court overruled a demurrer thereto; and that the jury was commanded by the court, inter alia, as follows: “That if you find for the plaintiff you will assess her damages in such a sum as, from the evidence, you believe will be a fair and reasonable re

compense for the injuries received by her. pression, nor did her injuries heal kindly, In ixing the amount of such damages, you but she remained crippled, and, so late as vill take into consideration the nature and October, 1902, at the trial, was obliged to extent of the physical injuries received, the walk with artificial aid. No question whatpain and mental anguish endured, as well ever is raised about the extent or characis the pain and inconvenience, if any, which ter of her injuries and resulting pains. The you believe from the evidence will reason- old lady told her story on the stand in a able result from said injuries in future.” broken way, with the idioms and phrasing

The undisputed facts follow: Second or of her German mother-tongue, and with a Colcrobus street is a public street of St. consequent lack of clearness on cross-examiLouis. At a certain place in this street, close nation, needing and appealing for a touch of to its junction with Duchoquette street, there sympathetic intelligence to clear away obis a sidewalk or a footway of cinders, which scurity. Substantially and briefly she testiFalk at other points along the street was fied that as she was walking that night on Dade of other material. One Smith owns the street, she, in a general way, had the a tenement abutting on this cinder walk. stone in mind, but that in the darkness she Tbe street line of his premises is about 18 was confused as to its location, and as to icebes higher than the level of the walk. her proximity to it, and her distance from Smith's house stands back from the street, the street line, and that in this condition of and is approached from the street by a gate things, while intending to avoid the obstrucway. In front of this gate, at the outer tion, and thinking she was well outside the street limit, is a half of a grindstone or mill- line of danger, she fell over it, and suffered stone extending along the outside street lino said hurts. 3 or 4 feet, and projecting therefrom over The foregoing is the whole story in small into the sidewalk, in extreme limit, 21/2 feet. compass, and presents the only facts and isTtis stone, because of the uneven lay of the sues for our adjudication. And on this recFalk, or for some other cause only to be ord it is self-evident that, if appellant was guessed at, is flush with the plane of the not guilty of such want of care as would, Fals at the gate, but 5 inches above the as a matter of law, be contributory negliplane of the walk at the point of farthest gence, and if, under the evidence, as a matprojection into the footway, so that a per- ter of law, it cannot be said that respondent son walking in the footway close to the gate was not guilty of negligence in permitting migbt meet with little or no obstruction, but the character of obstruction indicated to be the same person walking 2 feet 4 inches and remain in the footway for. pedestrians away from the gate would meet an obstruc- in one of its streets, we must avow judicial top 5 inches high. Defendant introduced sympathy with the contention of appellant; evidence, not controrerted, that this mill- and that sympathy has its root in the folstone bad been there for 27 years, and filled lowing condition of things: The jury found the office of a stepping stone to enter the the issues for appellant. Now, the only alpremises of Smith. The evidence indicated lowable meaning of that finding when logthat the walk was of considerable width, ically analyzed and interpreted is (1) that and that there was ample room for pedes- the jury found that respondent was neglitrians between the millstone and the curb. gent; (2) it found that appellant was using Tbe evidence also indicated the nearest city due ca re; and (3) it found that her injuries light was 200 feet away. The character resulted from respondent's negligence. There of this light was not shown, but it appears is one other allowable hypothesis, and that that at the point in question at the time in is that the jury under the facts intended to question the stone was obscured by dark- and did, in all but name, find for defendant, Dess.

but shrunk from meeting the issues, and put Appellant is an old washerwoman, bur- its verdict in the form it did on the question dened with the weight of 68 years. Her of costs. In the evolution of a trial a verdaugbter lived adjacent to the premises of dict of a jury may be likened to a correct Smith, and had resided there for three years. conclusion in a syllogism, and, if the conShe had visited her, say, a dozen times, and clusion be not correct, it would put the law a few timessay threehad passed by this to open shame if a court, having due regard stone on said visits. It stands confessed always for the independence of the jury and that she was familiar with the location and its power within bounds, did not apply a character of the obstruction. On the even- correcting hand to see that a perverted coning of January 5, 1902, appellant visited her clusion was corrected. Here we have a vendaughter. On returning home, accompanied erable woman coming into a court of justice by her husband, after 9 o'clock p. m., in the for redress. Her very simplicity and humbledark, she fell over this stone, thereby break- ness and age bespeak tenderness at the ing and dislocating her left ankle, where- bands of the law. It is adjudged that her from she was confined to her bed for several serious injuries were the result of respondDontbs, suffered the pains and distress nat- ent's negligence, and were suffered without Irally incident to such injuries, and, as rea- her fault; and yet for a broken and dislosonably to be expected at her time of life, cated ankle and a long period of mental and the broken bones did not knit by first im- bodily distress she is given a bagatelle.

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Courts should be diligent to see that the inches to the stone, and when that step law, which is itself reason and common was taken he would be practically on the sense, be applied with the aid of right rea- level of the sidewalk at that immediate son to produce a reasonable result in the point. He would then take a forward step everyday affairs of life. The gravity neces- on the stone, and would be at the edge of sary in the administration of justice to en- the step off of five inches to the sidewalk at title the law to respect necessitates that that point. So that, while we are not called mere caprice and practical jokes have no upon to decide that a suitable stepping stone part or parcel therein, and it results that, if might not have been legally placed to enthere was substantial unimpeached evidence ter Smith's premises, we are prepared to say upon which the jury could find that appel- that the character of stepping stone permitlant was exercising due care and that re- ted in that sidewalk, projecting, as it did, spondent was negligent, this verdict, con- an unnecessary distance into the walk, presidering the grievous hurts of appellant, dis- sents a case where the question of negligence turbs the moral sense, and should be brushed was properly sent to the Jury. Indeed, the aside.

stone might well be considered more of a Respondent recognizes the delicacy of the snare than a stepping stone; for, if it were situation, and insists (1) that there was no not there, a person entering or leaving evidence of negligence, and hence plaintiff Smith's gateway would have practically no should have been nonsuited; (2) that appel- more or no less of a step up or down to lant's evidence affirmatively shows that she enter or leave than he would have with the was not exercising due care, and hence she stone in place. The long period of time that should have been nonsuited; and (3) that the this condition of things was allowed to exverdict, fairly considered, is a verdict for re- ist does not tend to render it sacred in the spondent on all the issues, and was the re- eyes of the law, for an original sin of neglisult of blandness on the jury's part in the gence will not ride into the wilderness on a matter of costs. Of these in their order. scapegoat of mere time; and it must not be

1. On the issue of the negligence of re- lost sight of that to pedestrians the mere spondent in allowing the stone to remain in fact that a condition has existed for a long the street, it is insisted that the premises time is of no significance, except it speaks of Smith were higher than the level of the to the point of notice and knowledge, wbich sidewalk, that the stone was a proper step- necessarily varies as to each one. ping stone to reach these premises, and that We are cited to two cases by the learned the city was in no wise negligent in permit. counsel of respondent as sustaining its conting it to remain and be so used, considering tention, but neither, in our opinion, lays the width of sidewalk left unimpeded for pe- down any principle determinative of the isdestrians. We are not called upon to pass sues under this record, In one of them, a on the question whether or not in a wide Kentucky case (Teager v. City of Flemingssidewalk, where ample room is left for foot burg, 109 Ky. 746, 60 S. W. 718, 53 L. R. A. travelers, and where houses have been so 791, 95 Am. St. Rep. 400), a street was on built, flush with the street, that stepping a grade, and a step of a few inches was built stones become necessary for convenient in- or permitted by the city across a sidewalk gress and egress, because of the street grade to equalize this grade, and to serve as a or for other reasons, a suitable stepping stone watershed, throwing the surface water of permitted on the edge of the sidewalk would the street from the pavement; and the quescreate a nuisance in the street, and render tion was whether the building and maintea city responsible for injuries to a pedes- nance of a sidewalk with a step, which, trian stumbling thereon in the dark. This from the nature of the grade, the city gorcase is not such a case, and must stand on ernment deemed necessary and proper, is its own facts. The evidence shows that no of itself such negligence as will warrant a reason exists why the step should not have recovery by one injured in a fall caused by been inside the building line, for Smith's the step. It will be seen at a glance that house was not flush with the street, but set the Kentucky case is not on all fours with back; that there was a rise of 18 inches from the case at bar. There a city, using its best this stone to his premises; that the plane of engineering judgment, adopts a plan to level the sidewalk at the outside street line coin- the grade and to serve as a watershed, and cided with the plane of the stone, and that in so doing acted within its delegated discrethe maximum rise in the step, so called, was tion and power to subserve public ends, there in the street, over two feet away from the being no evidence the step was out of regateway, and thus it would bappen that a pair or unskillfully constructed. The same person stepping on this stone from the street, principle has been applied in this state by designing to enter Smith's premises, would this court and the other appellate courts in have to take practically another step before proper cases. In a New York case-Dubois he reached the gateway, and when he reach- v. City of Kingston, 102 N. Y. 219, 6 N. E. ed that point he would have to step up 18 273, 55 Am. Rep. 804–it appeared that at a inches to get into Smith's premises. Vice place brilliantly lighted at the time, Dubois, versa, a person leaving Smith's premises by running to a fire, in the nighttime, stumbled this gateway would step down eighteen over a stone that was placed along the curb

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85 FISCHER v. CITY OF ST. LOUIS. 3 street in front of the post office as a cogrenience to persons entering and alight

amounts to that, merely taking the peculiar 95 from carriages and having business at

form it did out of regard for appellant on be post office. In that case, as in this,

the question of costs. “Raking in the dead here was ample room for the use of pedes

ashes of antiquated cases," to borrow the triins left. The stone was 3 feet 4 inches

animated language of Chancellor Kent in Ó lernth, 20 inches wide and 14 inches high.

discussing the earlier cases pertaining to It laid lengthways with the curb, and at the

the rule in Shelley's Case, it may be found Sorth end of the stone was a lamp post of

that a notion once prevailed that in an ac& boot one balf the width of the stone. The

tion founded in damages sounding in tort most that can be said for the New York

the court might set aside a verdict excessive

ly great as indicating passion, prejudice, ose is that it was therein held that a step- or misconduct on the part of a jury, but I.Dg stone on the edge of a curb for the

would not meddle with a verdict immodereupfort and convenience of the public did

ately small. This doctrine was illogical, and, Dot constitute a nuisance, in the absence of

being based on no substantial reason, is exevidence justifying the conclusion that it

ploded. The true rule seems to be that a *as dangerous to travelers passing along the court with great hesitation will invade the street, and in the absence of evidence that provinces of a jury and interfere with a verthe city authorities were chargeable with dict for damages sounding in tort for perDegligence in allowing it to remain where it

sonal injuries, crim. con., seduction, slansas located. In that case, too, it was held

der, libel, and other cases; especially where that plaintiff was chargeable with negligence

malice is an element, and smart money or contributing to his injury. quainted with the locality, and, as said, it

He was well ac- exemplary damages are allowed. But judges

have never renounced their right, as an elewas brilliantly lighted at the time, and, it ment in the admistration of the law, to set be bad been careful in exercising bis facul

aside a verdict either excessive in bigness or ties, he would have avoided the accident.

ridiculous in littleness, where the result Tbe cause was reversed, and a new trial

reached shocks the understanding, and cauunted, with costs to abide the event.

So not be fairly justified on any hypothesis exthat the facts are dissimilar, and the case

cept misconduct or prejudice or willful disredoes not announce any

doctrine that might gard of instructions. In arriving at a consot be granted, and yet

leave this case a clusion, however, the presumption is in favor proper one for a jury, as, in our opinion, it

of the good conduct of the jury, and thereFas, on the issue of negligence.

fore, if, on the whole record, the case pre2. Was appellant guilty of such want of

ponderates in favor of the defendant, or is care as defeats her recovery as a matter of

evenly balanced in the scales, or where, as lar? On the facts set forth and they are

in a case of assault, there was strong provundisputed--we cannot so hold. The place ocation, and where, as in case of slander, Tis dark, and while she knew of the loca- etc., there were facts tending to prove miti. doo and character of

the obstruction, and, gation of damages, the courts have refused being not forgetful at the time that she was to interfere with nominal verdicts, although in proximity to it, made conscious effort and

on first blush they may appear illogical. It intended to avoid it, goestion for the jury

Yet it was clearly a would serve no useful purpose to collate the confused surrounding

Whether she, in the cases, or undertake to distinguish them, for with the prudence of

circumstances, acted they abound in nice refinements, and, after tile and in proceeding along that sidewalk a reasonable person all, each case depends upon its own merits,

and cannot be settled offhand on a mere genat that time. The danger was not known to ber as so obvious and glaring as to com

eral rule. The various propositions asserted pel ber to cease the use of the sidewalk and

above may be found discussed and applied

in Weinberg v. Ry. Co., 139 Mo. 286, 40 S. if it be allowed that the city was negligent,

to tbe other side; and, W. 882; Haven v. Ry. Co., 155 Mo. 216, 55 cannot be contended that it had the right

S. W. 1035; Dowd v. Westinghouse Air to piace upon appellant the hard necessity of

Brake Co., 132 Mo. 579, 34 S. W. 493; Overan absolutely infallible judgment in the

holt v. Vieths, 93 Mo. 422, 6 S. W. 74, 3 Am. darkness. The following cases, with many

St. Rep. 557; Leahy v. Davis, 121 Mo. 227, 25

S. W. 941; Watson v. Harmon, 85 Mo. 443; Graney v. St. Gregory v. Chambers, 78 Mo. 294; Pritchard 42 S. W. 941; Flynn v. V. Hewitt, 91 Mo. 547, 4 S. W. 437, 60 Am.

21 S. W. 903; Loewer Rep. 265; Boggess v. Ry. Co., 118 Mo. 329, properly sent to the jury on the issue of due

The case, then, was spre in appellant, and the jury had substan

23 S. W. 159, 24 S. W. 210; Goetz v. Ambs, 22 Mo. 170; Fairgrieve v. City of Moberly,

29 Mo. App. 141; Choquette v. Ry. Co., 152 which to base a finding Mo. 257, 53 S. W. 897. 3. But it is stoutly contended by respond

In Pritchard v. Hewitt, 91 Mo., loc. cit. at that on all the facts of the case the jury

550 et seq., 4 S. W. 437, 60 Am. Rep. 265, could have found forrespondent, and that general rule of noninterference from Graham

after quoting approvingly the reasons for the substance and effect and Waterman on New Trials, to the effect

ake to the street or

Lee, support this

Logis, 141 Mo. 180
Seosbo, 114 No. 568,
7. Sedalia, 77 Mo. 431.

al evidence upon
at due care was exercised.

1 dollar verdict


with directions to the lower court to set aside the order overruling appellant's motion for a new trial, to sustain that motion and grant appellant a new trial, and for further proceedings in the cause. All concur, except MARSHALL, J., not sitting.

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that: “The reason for holding parties so tenaciously to the damages found by the jury in personal torts is that in cases of this class there is no scale by which the damages are to be graduated with certainty. They admit of no other test than the intelligence of a jury governed by a sense of justice.

To the jury, therefore, as a favorite and almost sacred tribunal, is committed, by unanimous consent, the exclusive task of examining the facts and circumstances and valuing the injury and awarding compensation in damages. The law that confers on them this power and exacts of them the performance of this solemn trust favors the pre sumption that they are actuated by pure motives, * * and it is not until the result of the deliberation of the jury appears in a form calculated to shock the understanding and impress no dubious conviction of their prejudice and passion, that courts have found themselves compelled to interpose”-Brace, J., speaking to the point, says: “Of course, it goes without saying that actions ex delicto, wherein the damages may be measured with some degree of certainty, are not within the rule, and that those cases where the damages, under the circumstances, are such as to shock the 'understanding,' and induce the conviction that the verdict was the result of either passion, prejudice, or partiality, are exceptions to this rule."

In Haven v. Ry. Co., supra, the court nisi set the verdict aside for inadequacy, and its action was sustained by this court. Marshall, J., discussing the matter now in hand, said: “In other words, where a jury has returned a verdict for nominal damages in a case where the plaintiff is not entitled to any damages, the verdict will not be set aside in the appellate court at the instance of the plaintiff.”

When it is determined, as it must be in the case at bar, that there was persuasive evidence of the negligence of respondent city, and when it is determined, as it must be, that there was little or no evidence showing a want of care on the part of appellant, and that all the evidence in that behalf fell from her own lips, and, when fairly considered, does not show want of due care, and when the serious character of the injuries of appellant stands confessed, as here, it follows, we think, that the verdict of the jury in this case ought not to be attributed to a benevolent disposition on the jury's part toward appellant in the matter of costs, and as a finding for respondent city based on the substantial evidence, but must be attributed to whim and arbitrariness and a disposition to play fast and loose with the law and the substantial rights of appellant, and should be explained alone as the product of prejudice or some kindred motive.

Holding these views, we conclude the learned circuit judge erred in not sustaining appellant's motion for a new trial, and therefore the cause is reversed and remanded,

STEVENSON et al. v. SMITH et al. (Supreme Court of Missouri, Division No! 1.


In a suit by heirs to declare and establish a resulting trust in land, evidence held to show that defendant purchased the land partly with money furnished by plaintiffs' intestate, taking the title in his own name, and that intestare had, and died with, an interest therein corresponding to the amount of her payment. 2. SAME.

Where land is purchased by one in his own name with money of another, a resulting trust is created by implication of law, which follows the ownership of the money; and where only a part of the purchase money is furnished by the beneficiary the trust is for a proportionate share of the land bought.

[Ed. Note.--For cases in point, see vol. 47, Cent. Dig. Trusts, 88 102, 111.) 3. LACHES-DEFENSE.

The court will refuse to apply the doctrine of laches to dealings of an old mother with her son, who was her confidential business manager, and with whom she resided, except in a pronounced case; and, not being allowable as a defense against her, it may not be available against her heirs suing timely on her demise.

[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, $8 191-195.]

Appeal from Circuit Court, Linn County; Jno. P. Butler, Judge.

Action by George Stevenson and others against William Smith and others. From a judgment for defendants, plaintiffs appeal. Reversed.

West & Bresnehen, for appellants, cited, inter alia, Richardson v. Champion, 143 Mo. 538, 45 S. W. 280; Rice et al. v. Shipley et al., 159 Mo. 399, 60 S. W. 740; Crawford v. Jones, 163 Mo. 577, 63 S. W. 838; Jones v. Elkins, 143 Mo. 647, 45 S. W. 261; Bowen v. McKean, 82 Mo. 594; In re Ferguson's Estate, 124 Mo. 574, 27 S. W. 513.

E. R. Stephens and A. W. Mullins, for respondents.

LAMM, J. Rebecca Smith died intestate in October, 1901, in Linn county, owning no property in her own name, and leaving the respondent William Smith, a son, and certain other sons and daughters, and the descendants of those dead, her only heirs at law. Certain of her surviving children, together with certain of her adult grandchildren, and certain minors of the same blood kin through their curator, brought this suit in August, 1902, against William Smith and certain minor nonresident grandchildren, and one Jackson Fyke and one J. C. Meacham, the object and general nature of which was to

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