Flori v. City of St. Louis

Norton, J. This is an action to recover damages for injuries inflicted on Mary Elori by the prostration of a building known as Center Market, in the city of St. Louis, and is brought before us on appeal from the St. Louis court of appeals. The cause is reported in 3 Mo. App. Rep. 231, where the case is fully stated as well as the action taken by the circuit court during the progress of the trial, and relieves us of the necessity of repeating here what is said there. It is, however, proper to say that there was evidence on the part of plaintiff tending to show that the roof of the market house was blown off and the wall prostrated by a.wind storm neither unusual nor uncommon, and only of ordinary force and violence; there was also evidence on the part of defendant tending to show that the building was thrown down by a storm of unusual force, amounting to a cyclone. The controlling and principal question in the case, therefore, is, whether the wall was thrown down by an ordinary and usual wind storm, or by an extraordinary and unusual one. If by the former, the city is Liable, if by the latter, it is not. The correctness of this doctrine seems to be conceded and is fully recognized by the court of appeals, but the circuit court failed to declare it, by refusing the following instruction : “If'the jury believe from the evidence that the storm which overthrew the Center Market house on March 30th, 1872, was one of unusual force and violence, they will find [342] a verdict for defendant.” It is said that the error com•mitted in the refusal of the above instruction is cured by the fact that the same principle was contained in the second instruction given for plaintiff, and the first instruction given for defendant. While the principle contained in the refused instruction was embraced in the first given for defendant, an examination of plaintiff’s second instruction shows it to be inconsistent with the said first instruction. The jury are told in plaintiff’s second instruction that “ unless they should believe that the wall blown down was so east down by the action of an unprecedented or extraordinary wind storm, which was not reasonably to have been anticipated by the city, they would find for plaintiff',” while they are told in defendant’s second instruction that “ if they believe from the evidence that the market house in question was overthrown by a storm of unusual force and violence, or if they believe from the evidence that the Center Market house, at the time of the accident, was fit and able to withstand a storm of ordinary power, then, in either case, they will find for defendant.” These instructions are antagonistic to each other, and cannot be reconciled. The vice of the second instruction is to be found in the words “ which was not reasonably to have been anticipated by the city.” There was no obligation on the city in the construction and maintenance of the market house to anticipate unprecedented wind storms, as required by the instruction. It would be strange doctrine to require defendant to anticipate such a storm as had never before occurred, and provide against it in the erection and maintenance of a market house. The utmost requirement that could be exacted would be that they should keep the building in such condition as would enable it to withstand the ordinary force and power of ordinary and usual wind storms. The interpolation or addition of the words above quoted in plaintiff’s second instruction was calculated to mislead the jury and deprive defendant of the full benefit [343] of the declaration asked, viz.: that if the storm which overthrew the market house was one of unusual force and violence, they would find for defendant. Because of the misleading character of plaintiff’s second instruction and its irreconcilability with defendant’s first instruction, the judgment will be reversed and cause remanded, in which all concur. Goetz v. Hannibal & St. Joseph R. R. Co., 50 Mo. 472; Henschen v. O’ Bannon, 56 Mo. 290. Reversed.