Witte v. Stifel

• Decision Date: 22 December 1894
• Citation: 126 Mo. 295,28 S.W. 891
• Parties: WITTE et al. v. STIFEL et al.
• Court: Missouri Supreme Court

28 S.W. 891

126 Mo. 295

WITTE et al. v. STIFEL et al.

Supreme Court of Missouri, Division No. 2.

December 22, 1894.

NEGLIGENCE — DANGEROUS PREMISES — INJURY TO MINOR.

Plaintiffs' son, seven years old, went up to one of the cellar windows of a building in process of construction in a large city, which was about three feet from the street line, and tried to draw himself up by taking hold of a stone placed across the top of the window frame. The stone, not being fastened, fell, and killed him. It was not shown that the owner of the building and the contractors knew of the dangerous position of the stone, or that children were in the habit of playing around the building. Held, that plaintiffs cannot recover, deceased having been a trespasser.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Arnold L. Witte and Annie Witte against Otto F. Stifel, John Schott, and others for the death of plaintiffs' minor son, through negligence of defendants. Judgment for defendants, and plaintiffs appeal. Affirmed.

Dodge & Mulvihill, for appellants. Lubke & Muench, J. H. Grimm, and F. A. C. McManus, for respondents.

BURGESS, J.

This action was instituted in the circuit court of the city of St. Louis, by plaintiffs, father and mother, to recover $5,000, statutory damages for the death of their son Robbe F. Witte, about seven years and nine months of age, alleged to have been occasioned by the negligence of defendants. Upon a trial had, at the close of the evidence, the court, at the instance of all of the defendants, sustained a demurrer thereto, and instructed the jury that plaintiffs could not recover; whereupon plaintiffs took a nonsuit, with leave to move to set the same aside, and, their motion to that end being overruled, they appealed to this court. The boy had gone to meet his father, who was a paper hanger, on his return home from his day's work, and did meet him about one-half block from home, in front of the building where the accident happened. The father met a gentleman at this point, and stopped to talk with him, during which time the boy went a short distance further on down the street, and the father went on home. As the boy returned, a few minutes after, he met some other boys in front of the building, and stopped to play with them in front of it, on a pile of sand. The cellar walls of the building were of stone, and about completed; the window frames were in, stones placed over them; and the joists were laid. The building stood about three feet back from the street or building line, and the top of the wall was about three or four feet above the surface of the ground. There were two windows in the wall fronting the street, and over each there was a large, flat, cut stone, which would weigh about 600 pounds, loose, not being placed in mortar. The lad went to one of the windows, placed his feet upon the sill, his hands upon the stone over the window, as if to pull himself up, when it fell upon him, and killed him almost instantly. His weight was about 65 pounds. The accident occurred near the sidewalk on one of the thoroughfares in the city of St. Louis. No brick had been laid on the building at the time of the accident. There was no fence to keep out persons, nor was there any warning of danger. The defendant Michael Kriesky had nothing to do with the building in any manner until several months after the accident, when he rented and began to occupy it. Defendant Otto F. Stifel, in writing, contracted for the erection of this house by defendant Schott, according to plans and specifications prepared by defendants Beinke & Wees, architects; and the contract provided that these architects should superintend the construction of the building in accordance with these plans and specifications. There was no evidence to show that defendant Stifel in any way took part in the construction of the building beyond the letting out of the contract therefor to defendant Schott, and the taking of the latter's bond, with satisfactory sureties, for the faithful performance of the contract. There was also no evidence to show that the architects did anything more about the construction of the building than the preparation of the plans and specifications, and the assumption of the duty of superintending the construction in accordance therewith. The evidence showed that defendant John Schott is a carpenter; that he undertakes the entire construction of buildings; that he was invited to the office of the architects Beinke & Wees, and there examined the plans and specifications; that he then took from different mechanics subbids for such of the work and material needed to put up the building as did not fall within the line of his trade as carpenter; and that, after he had all these subbids, he made one bid for the whole work, and was accepted as the original or principal contractor. Among these subbids were those of defendants Molitor & Schwarz, for the rubble or rough masonry, and of defendant John King for the cut stone work. These bids Schott accepted when he was awarded the entire contract. Defendants...