Brannock v. Elmore

• Citation: 21 S.W. 451,114 Mo. 55
• Parties: BRANNOCK v. ELMORE.
• Decision Date: 06 February 1893
• Court: Missouri Supreme Court

21 S.W. 451

114 Mo. 55

BRANNOCK v. ELMORE.

Supreme Court of Missouri, Division No. 1.

February 6, 1893.

NEGLIGENCE — MASTER AND SERVANT — ORDINANCE — INSTRUCTIONS — EVIDENCE.

1. It is actionable negligence to violate an ordinance which forbids blasting without first covering the rock with timber.

2. Where a lot owner makes a contract for its excavation by persons whom he knows to be in the habit of blasting in violation of said ordinance, he is responsible for damage caused

by their blasting on his lot without covering the rock, even though he retains no control over them in the execution of their work, since his implied permission to them to blast as they have been blasting is equivalent to a direction to do so.

3. In an action against such lot owner for damages caused by such blasting it is error to leave the jury to determine whether defendant had under the contract any control over the work as to the manner of its execution, since the interpretation even of oral contracts is for the court.

4. In such action the defendant may show that the plaintiff knew that blasting was done in disregard of that ordinance, since such knowledge is material in determining what would be due care on the part of plaintiff.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Lydia Brannock against William Elmore for personal injuries. Plaintiff obtained judgment. Defendant appeals. Reversed.

The facts appear in the following statement by MACFARLANE, J.:

This is an action by plaintiff to recover damages for personal injuries caused by the alleged negligence of defendant in blasting rock on a lot in Kansas City, near a public street. The petition charges that defendant, in May, 1889, was in possession of certain lots on Perry avenue, in Kansas City, by his servants and employes making excavations thereon. That the following ordinance was in force in said city at the time: "No person shall blast or cause to be blasted any rock without having the rock covered at the time of setting off of the blast, and all sides of the orifice protected with good sound plank or timber sufficient in length, width, and thickness, and so placed as to effectually prevent fragments of rock from ascending into the air." That on said day, while she was in the lawful use of said street, the servants of defendant, without observing the requirements of the said ordinance, negligently, and without notice to plaintiff, discharged a blast of powder or other explosives, by which a stove was violently thrown against her, by which she was greatly injured. The answer was a general denial, a plea of contributory negligence, and the further plea that the men engaged in excavating were not servants or employes but mere independent contractors with defendant to remove the rock from the lots at a certain price per yard, by means and methods of their own, independent of order, direction, or control of defendant. That, when the blast was made, the rock was not covered or protected as required by the ordinance, and that plaintiff was severely and permanently injured by a fragment of rock thrown into the air by the blast, is unquestioned. The other facts will sufficiently appear from the opinion.

Scammon, Stubenrach & Pence, for appellant. Fyke & Hamilton, for respondent.

MACFARLANE, J.

1. At the conclusion of the evidence of plaintiff in chief, and again at the close of all the evidence, the defendant asked an instruction to the effect that the evidence was not sufficient to authorize a verdict against defendant. This was refused, and the action of the court in so doing is the first error assigned. The only undisputed negligence shown was in the omission to obey the requirements of the ordinance. The ordinance was a wise and valid regulation, made for the protection of persons and property from injury. If its provisions had been observed, this injury to plaintiff would not probably have occurred. The disregard of the ordinance was in itself an omission of duty, sufficient to justify a verdict for plaintiff against the person who was guilty of the negligent omission. Shear. & R. Neg. § 13; Murray v. Railway Co., 101 Mo. 236, 13 S. W. Rep. 817; Dickson v. Railway Co., 104 Mo. 501, 16 S. W. Rep. 381.

2. But it is insisted that the omission was not that of defendant himself, and that no such relationship existed between him and the persons who set off the blast without taking the required precaution as would render him liable for the result. The evidence shows that defendant was preparing for the erection of a building on his lot on Perry avenue. That to prepare the ground for cellar and basement an excavation into underlying stone was necessary. This excavation was being done by two colored men, Railey and Crowberger, under a verbal agreement between defendant and them. That agreement we must gather from the evidence, and by it determine the relation of the parties to each other. Railey, as a witness for plaintiff, testified as follows: "When Crowberger and I made our contract with Elmore to excavate his cellar at 40 cents a perch, nothing was said about blasting it out. Of course, we were to blast it out if it was necessary. Nothing was said about the methods we were to adopt, whether it was quarrying, or blasting, or by prying it up. Both parties expected we would have to quarry, just as I did on Mr. Brannock's lot adjoining there. We expected, Mr. Crowberger and I, to adopt the methods according as we found it most useful. We furnished our own tools, powder, fuses, and all that sort of thing. * * * When we made the agreement with Mr. Elmore nothing was said about how the work was to be done. We knew we would have to blast. I supposed Mr. Elmore knew it. We generally drew a little money nearly every Saturday night. We got our powder and stuff with the money." Defendant himself testified in his own behalf as follows: "My arrangements with Railey and Crowburger were that they were to take the rock out of the cellar at so much a perch. They were to take out what we wanted for the basement and what we wanted for the cellar. This was indicated by being staked off. It was staked out in the shape of a cellar, Mr. Dolson did that. I think I helped to stake it off. It was to go down about five feet. They were to blast it down so it would be five feet. They were to take the rock all out down that depth, and I was to take off the dirt and the loose rock. The dirt and loose rock was taken off by plowing the dirt, and took it off with a scraper. I gave Mr. Schriver and Mr. Jarboe eighteen cents a yard for doing that. My arrangements with these parties were to take off the loose rock that came in the dirt. I was to pay them by the day for hauling off the loose rock; but the ledge rock was contracted to Railey and Crowburger at forty cents a perch. They furnished everything themselves. I had nothing to do with it. I gave them no directions whatever. I never exercised any control over them as to the methods or means they should use for getting it out. I settled with them after they got through, and the rock was put in the...