28 S.W. 891 (Mo. 1895), Witte v. Stifel

Citation:28 S.W. 891, 126 Mo. 295
Opinion Judge:Burgess, J.
Party Name:Witte et al., Appellants, v. Stifel et al
Attorney:Dodge & Mulvihill and Charles F. Joy for appellants. Lubke & Muench, F. A. C. MacManus and J. Hugo Grimm for respondents.
Case Date:January 09, 1895
Court:Supreme Court of Missouri
 
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Page 891

28 S.W. 891 (Mo. 1895)

126 Mo. 295

Witte et al., Appellants,

v.

Stifel et al

Supreme Court of Missouri, Second Division

January 9, 1895

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher, Judge.

Affirmed.

""Dodge & Mulvihill and ""Charles F. Joy for appellants.

This case is one of that class of cases which hold proprietors liable for injuries resulting to children, although trespassing at the time, where from the peculiar nature and open and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such an injury to flow therefrom as actually happened. In all such cases the question of negligence is for the jury. 1 Thompson on Neg., 304, 305 and cases cited; ""Bransom's Adm'r v. Labrot, 81 Ky. 638; ""Birge v. Gardner, 19 Conn. 507; ""Stockstill v. Railroad, 24 Ohio St. 83; ""Barrett v. Railroad, 27 P. 666; ""Schmidt v. Co., 90 Mo. 284; ""Dwyer v. Railroad, 12 Mo.App. 597; ""Nagel v. Railroad, 75 Mo. 653; ""Curley v. Railroad, 98 Mo. 13; ""Koons v. Railroad, 65 Mo. 592; ""Fink v. Co., 75 Mo. 276; ""Earl v. Crouch, 61 Hun, 624; ""Welsh v. St. Louis, 73 Mo. 71; ""Russell v. Columbia, 74 Mo. 424. Issues as to the existence of negligence and contributory negligence and as to the proximate cause of an injury are for the jury to determine, where the evidence as to the facts is conflicting. ""Water Works Co. v. Dougherty, 37 Neb. 373; ""Hydraulic Works Co. v. Orr, 83 Pa. St. 332. If plaintiffs' testimony makes out a case of negligence, though uncorroborated, it must be submitted to the jury. ""Railroad v. Alvord, 128 Pa. St. 42; ""Crogan v. Schiele, 53 Conn. 186; ""Railroad v. Collarn, 73 Ind. 261; ""Vinton v. Schwab, 32 Vt. 612.

""Lubke & Muench, F. A. C. MacManus and ""J. Hugo Grimm for respondents.

(1) Plaintiff's are not entitled to recover against defendant Otto F. Stifel, because of the doctrine which protects an owner where there is an independent contractor. The petition did not allege, and there is no evidence to show, any defects in the plans or in the materials to be furnished for the new structure; and the work to be done was not in any sense inherently dangerous. It also appeared that Stifel took no part whatever in the execution of the work. Under these circumstances there can be no liability upon him in this case. ""Barry v. St. Louis, 17 Mo. 124; ""Morgan v. Bowman, 22 Mo. 538; ""Horner v. Nicholson, 56 Mo. 220; ""Lancaster v. Ins. Co., 92 Mo. 460; ""Long v. Moon, 107 Mo. 334. (2) Defendants Beinke & Wees, are not liable because of the doctrine ""respondeat superior. They were mere servants charged with the duty of observing that the building was put up in compliance with the contract, plans and specifications, and with the duty of requiring that it be so put up. For the faithful performance of this service they were liable only to their employer -- not to strangers, such as the plaintiffs. ""Douglas v. Stephens, 18 Mo. 362; ""Garretzen v. Duenckel, 50 Mo. 104; ""Harriman v. Stowe, 57 Mo. 93; ""Mound City, etc. Co. v. Conlon, 92 Mo. 221. (3) Defendants Michael Kriesky and Molitor and Schwarz are not liable, because not one of them had anything, directly or indirectly, to do with the furnishing or setting of this piece of cut stone. Kriesby first came upon the scene three months after the accident, when he rented and moved into the completed building. And Molitor and Schwarz left the scene before the accident, when they completed the rubble masonry. (4) Defendant Schott is not liable, on two grounds, viz: ""First. Because the work of furnishing and setting this stone...

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