Fink v. Missouri Furnace Co.

• Citation: 10 Mo.App. 61
• Parties: MATHILDA FINK, Plaintiff in Error, v. MISSOURI FURNACE COMPANY, Defendant in Error.
• Decision Date: 08 March 1881
• Court: Missouri Court of Appeals

10 Mo.App. 61

MATHILDA FINK, Plaintiff in Error,

v.MISSOURI FURNACE COMPANY, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Mar. 8, 1881.

1. The mere fact one works by the piece or job, and not by the day or week, is not conclusive as to whether he is a servant or an independent contractor.

2. In an action for damages against an employer for the negligence of an employee, any evidence tending to throw light on the question whether the former exercised control over the latter, is competent, where the employment is not such as establishes, as matter of law, the relation of master and servant.

3. One who owns land in a populous neighborhood is bound to use reasonable care not to leave exposed upon his premises any dangerous agency attractive to children.

4. Evidence that children resorted, in large numbers, to a sand-pit so excavated, in a populous neighborhood, as to be liable to cave in from time to time, and that two children were killed by the bank caving in, is competent, in an action for the death of one of the children, as tending to show that the owner ought reasonably to foresee that children would be attracted to the pit.

5. The question of contributory negligence is ordinarily a question for the jury.

6. Unless such a strong inference of contributory negligence on the part of the plaintiff or the injured party arises from the plaintiff's testimony that fair-minded men could not differ about it, it is error to take the case from the jury on that ground.

7. A child four years old cannot be guilty of contributory negligence.

ERROR to the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

KLEIN & FISSE, with O. G. HESS, for the plaintiff in error: A land-owner who has reason to know that dangerous agencies on his premises are attractive to children, is bound to use reasonable diligence to protect them against the danger; and if, as a result of his failure to exercise such care, a child, although trespassing at the time, suffers injury without being guilty of contributory negligence, the child or its representatives may maintain an action against him to recover damages.-- Stout v. Railroad Co., 2 Dill. 294; s. c. sub nom.; Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railroad Co., 21 Minn. 207; Kansas City R. Co. v. Fitzsimmons, 22 Kan. 686; Whirley v. Whitman, 1 Head, 610; Birge v. Gardiner, 19 Conn. 507; Lynch v. Nurdin, 1 Q. B. 29; Frick v. Railroad Co., 5 Mo. App. 435; Clark v. Chambers, 3 Q. B. Div. 327-339; Boland v. Railroad Co., 36 Mo. 484, 490. See also Crafton v. Railroad Co., 55 Mo. 580. Whether in any given case the owner has exercised due care, is a question for the jury.-- Railroad Co. v. Stout, 17 Wall. 657; Lane v. Atlantic Works, 107 Mass. 104; Hydraulic Co. v. Orr, 83 Pa. St. 332; Mullaney v. Spence, 15 Abb. Pr. (N. S.) 319; Callahan v. Warne, 40 Mo. 131-136; Norton v. Ittner, 56 Mo. 351. The court errs in taking the case from the jury unless the evidence clearly shows that the injury is attributable solely to the plaintiff's want of care.-- Morrissey v. Ferry Co., 43 Mo. 380; O'Flaherty v. Railroad Co., 45 Mo. 70; Smith v. Railroad Co., 61 Mo. 588; Dale v. Railroad Co., 63 Mo. 455; Frick v. Railroad Co., 5 Mo. App. 435; Railroad Co. v. Long, 75 Pa. St. 265. The relation existing between Stevenson and the defendant was that of master and servant.-- Morgan v. Bowman, 22 Mo. 538; Darmstaedter v. Moynahan, 27 Mich. 188.

HITCHCOCK, LUBKE & PLAYER, for the defendant in error: The child injured was a trespasser, and the plaintiff was not bound to enclose or fence the lot as a protection to such.-- Hughes v. Railroad Co., 66 Mo. 327; Straub v. Soderer, 53 Mo. 38; 1 Thomp. on Neg. 303, sect. 3; Knight v. Albert, 6 Pa. St. 472; Hargreaves v. Deacon, 25 Mich. 1 (per Graves, J.); Sweeney v. Railroad Co., 10 Allen, 368, 372. The plaintiff was guilty of contributory negligence.-- O'Flaherty v. Railway Co., 45 Mo. 74; Craig v. Sedalia, 63 Mo. 420. Plaintiff having failed, either by allegation or proof, to show that the injury complained of resulted from any legal negligence on the part of defendant, under any view of the pleadings and evidence, it was the duty of the court below to withdraw the case from the jury.-- Langan v. Railway Co., 5 Mo. App. 315; Wetjen v. Lead Co., 5 Mo. App. 598.

THOMPSON, J., delivered the opinion of the court.

This is an action to recover statutory damages from the defendant for its negligence resulting in the death of Charles Fink, the plaintiff's son, a child of tender years. Under appropriate pleadings, there was evidence tending to show, at the trial, that the defendant is a corporation, and owned and occupied the premises upon which the accident happened. The plaintiff is a widow, and has a family of small children depending upon her for support. She gains a livelihood by washing, scrubbing, whitewashing, and such other like work as she can get to do, and has no income except her earnings. On August 27, 1879, she went to the house of Mr. Williams, in Carondelet, to do some washing, taking with her her youngest child, the deceased, who was but four years old, there being no one at home with whom to leave him. Adjoining the lot on which Mr. Williams's house stands is an unfenced lot of ground belonging to the defendant. The streets surrounding this lot are well built up with dwelling-houses; these houses are occupied by families, and there are many children in the neighborhood. For many years the defendant has been engaged in excavating sand from this lot of ground and removing it to the defendant's furnaces. On the day of the accident two colored men, Stevenson and Jones, were engaged in this work of digging and hauling away sand. Stevenson had been engaged in this digging and hauling away sand from this lot for the defendant for seven or eight years. At this time he was hauling at a price of fifty-five cents per load, and Jones, who was helping him, had no connection with the company. There was no stipulation with Stevenson as to how he should do the digging. In consequence of this long-continued removal of the soil, there was a deep pit, the bottom of which was two or three feet below the grading of the surrounding streets. At the time of the accident, the outline of this excavation had assumed the shape of a horseshoe, opening towards St. Denis Street. The height of the bank around this pit varied with the inequalities of the ground, the highest point being six or eight feet from Mr. Williams's lot, where the height was from seven to ten feet. Upon the sand which was thus being excavated was superimposed a stratum of clay, or loam, from two to four feet in thickness. The men thus engaged in excavating took the easiest way to accomplish their purpose. They dug into the pit, took out the sand from beneath the superincumbent clay, or loam, and removed the latter as it would fall into the pit, from time to time, of its own weight. It appears that when the defendant purchased this property some years before, there was a fence around this lot, which the defendant twice repaired, but for two years prior to the accident there had been no fence around it, except the one which Mr. Williams had erected along the line of his own lot. On the day of the accident the colored men, Stevenson and Jones, were digging and hauling away sand as usual. They were excavating at the point where the wall of the excavation was highest, and where it was but six or eight feet from Williams's fence. In so doing they had, before the accident, dug a cave in the perpendicular wall, three or four feet deep. The plaintiff, as before stated, was at Mr. Williams's house, washing, and the deceased was with her. He played around the yard during the forenoon. At about a quarter past twelve she ate lunch, and gave him a piece of bread and told him not to go away, that she could not attend to him; and he promised that he would not. The last she saw of him he was sitting just outside the fence with the other children, eating his bread, at which time she resumed her work. Soon afterwards he was missed, and also a boy of Mr. Williams's, about six years old. A search revealed the fact that the excavation had caved in, and the bodies of the two boys were found lying near each other, with their faces downward, and their heads from the pit, buried under the mass of earth which had fallen, and near its outer edge.

Three errors are complained of by the plaintiff, which we shall speak of separately.

1. The foreman of the defendant was permitted to testify--and properly, we think--against the plaintiff's objection, that Stevenson was hauling sand at so much per load. This raised the question whether he was an independent contractor or the servant of the defendant. The same witness having testified that Stevenson had quit hauling sand from another lot owned by the defendant, the plaintiff asked by whose orders he quit. This question the court ruled out. The plaintiff also asked the same witness whether, at the time of the accident or at any previous time, the defendant could have directed Stevenson to stop hauling from that place. This question the court also ruled out. In these rulings we think the court erred. Whether the relation between the person sought to be charged for an alleged wrong and the immediate actor by whom the alleged wrong was done, was that of master and servant, or proprietor and independent contractor, is frequently a question of fact for the jury, the solution of which depends upon a variety of circumstances. Kimball v. Cushman, 103 Mass. 194; Crockett v. Calvert, 8 Ind. 127; Kellogg v. Payne, 21 Iowa, 575; Whatman v. Pearson, L. R. 3 C. P. 422. Upon this question the contract between the defendant and the immediate actor must generally speak with conclusive force; but this is not so where, as in this case, the terms of the contract are not clearly shown, or where, so far as shown, they are not defined. In every case the conclusive test to be sought after, by which to...