Voelker v. Hill-O'Meara Const. Co.

Decision Date10 November 1910
PartiesVOELKER v. HILL-O'MEARA CONST. CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by Olga Voelker against the Hill-O'Meara Construction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This was an action against the Hill-O'Meara Construction Company, the general contractor erecting a building on Locust street in the city of St. Louis, for negligence in not guarding an excavation in the sidewalk in front of said building, and in not displaying and maintaining red lights as required by ordinance; it being alleged that plaintiff's husband was killed by falling into said excavation on or about March 1, 1907. The building in question occupied the entire west half of the block fronting on Locust, Tenth, and Olive streets. On the night in question the outside walls of the building had been finished up to the tenth story, except that the first or ground floor story was not inclosed with brick, but was entirely open from Olive to Locust street between the steel columns supporting the building. The floor of the first story inside the building had been completed. But it was planned that the basement was to extend outside the building line to the curb line of Locust street, and for this purpose the entire sidewalk on Locust street, from the alley on the east to Tenth street on the west, some 150 feet, and the earth thereunder, had been removed and excavated by the defendant to a depth of some 14 feet, and a retaining wall 150 feet long had been built at the outer curb edge of the excavation, but not above it. Steel girders or beams had been laid across the top of the excavation from the building to the retaining wall for the purpose of supporting a concrete sidewalk, but the concrete had not been placed between them and the entire excavation lay open, except for a few boards thrown across the beams near the building. There were no boards near the curb. A line of cinder piles extended from the alley up to near Tenth street and close to the outer edge of the excavation; the said cinder piles being from one to two feet high and the cinders being for use in concreting.

At about half past two o'clock in the morning of March 2, 1907, after the building had been deserted and was in darkness, two police officers and the night watchman of the building, being attracted thereto by a noise, found plaintiff's husband at the bottom of the excavation, close by the retaining wall and about 20 feet west of the alley, lying across a large wooden roller. His back was broken.

Plaintiff's evidence tended to show that there was no barrier, fence, guard, or warning light around or near the excavation or cinder piles for the entire distance between the alley and Tenth street. All along the curb line for 150 feet, the excavation was unguarded.

The testimony of the police officers was to the effect that when the man was found he moaned and said he was shot, and asked who had put him there; that there was no smell of liquor about the man and nothing to indicate whether he was drunk or sober; but that at the dispensary, and the next morning at the hospital, and while, according to the police officers, he was rational, he said that he had had a glass or two of wine out on Gravois Road during the day, could not stand much and had drunk more than he ought to, had come down town on a Cherokee car and had gotten off at Ninth and Pine streets to go to a toilet. As a matter of fact the man was not shot, and no one saw him fall into the excavation. The police searched his clothes at the dispensary and found five memorandum books, $16.47 in a purse, a nickel-plated watch and a pair of eye glasses. The man died at the City Hospital from his injuries.

The only evidence concerning the relationship of plaintiff and deceased, his employment, family and domestic life, was the testimony of plaintiff herself, as follows: "I live in the city of St. Louis. F. H. G. Voelker was my husband. We were married in 1881. I lived with him up to the time of his death. He met with the accident March 1st, and died March 3d, 1907. He was agent for the Prudential Insurance Company. When my husband, F. H. G. Voelker, died he left surviving him a minor child, 10 years old, still living." It was later admitted in the case that plaintiff had two minor children when her husband died—a boy and a girl.

The instructions given and refused are set forth or appropriately mentioned in the opinion proper.

There was a verdict and judgment for plaintiff for $3,500, from which defendant has prosecuted this appeal.

Collins & Chappell, for appellant. Phil H. Sheridan, A. R. Taylor, and Henry B. Davis, for respondent.

CAULFIELD...

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26 cases
  • Gordon v. Packing Co.
    • United States
    • Missouri Supreme Court
    • June 24, 1931
    ... ... (2d) 433. This duty of the master is a continuing one and cannot be delegated. Combs v. Const. Co., 205 Mo. 367; Prapuolenis v. Const. Co., 279 Mo. 358, 213 S.W. 792; Dixon v. Const. Co., 318 ... Voelker v. Const. Co., 153 Mo. App. 1; Barth v. Ry. Co., 142 Mo. 556; Linton v. Lightning Rod Co., 285 S.W ... ...
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    ... ... State. Fetter v. Fidelity & Casualty Co., 174 Mo ... 256; Volker v. Hill-O'Meara Const. Co., 131 S.W ... 907; Marriott v. Railroad, 126 S.W. 233; ... Briskell v. Ins. Co., 172 ... ...
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