Golden v. Heman Construction Co.

GOODE, J. The' petition was in two counts, the first for injuries to plaintiff’s residence and the second for injuries to the furniture it contained; but we are not concerned with the first count, as to which a nonsuit was taken. The defendant for three years before the institution of this action operated a rock quarry and rock crushing machine about three hundred feet in the rear of plaintiff’s home, which is on the south side of Laclede avenue in the city of St. Louis. The conduct of that work is alleged to have raised clouds of white lime dust which constantly drifted into the plaintiff’s house, settled on her furniture and curtains and injured them; and there was testimony to support the case stated in the petition. Complaint is made that the trial court refused to direct a verdict for the defendant on the ground that no damage was proven or definitely proven, inasmuch as plaintiff, who testified concerning the extent of the damage to the furniture, was not an expert. She swore she knew what the furniture was worth before defendant began the injurious work, as she had but recently bought it. She swore, too, as did other witnesses, what the effect of the dust wars;_ how it scratched and marred the furniture and rotted the curtains. The damages were, therefore, proven in the best way possible, by showing facts from which the jury could form an opinion as to their amount. Kennedy v. Holladay, 25 Mo. App. (St. L.) 503; Spencer v. Railway, 120 Mo. 154. The award was moderate; only three hundred dollars. Another error is assigned because the court refused an instruction requested by the defendant that the burden of proof was on the plaintiff and she must make out her case by a preponderance of the evidence. The only instruction of that kind presented was objectiona [23] ble because it was to the effect that the burden was on the plaintiff “to establish by a preponderance of the evidence the facts necessary to a verdict in her favor under her instructions.” The court gave no instructions at the instance of the plaintiff, all that were given being of the court’s own motion; and of these only one predicated the ground of recovery on the second count, the other two being formal charges about how many of the jury might find a verdict and about certain excluded testimony. A carefully-drawn instruction that the burden was on the plaintiff should have been given if requested, and we have no doubt would have been; but no error was committed in refusing the one requested, as it might have misled the jury. The judgment is affirmed. Bland, P. J., and Bey-burn, J., concur.