Boyd v. Graham

Decision Date12 March 1878
PartiesEDWARD BOYD, Respondent, v. WILLIAM H. GRAHAM ET AL., Appellants.
CourtMissouri Court of Appeals

1. To support a recovery on the ground of negligence in failing to comply with an alleged business custom, it must appear that the custom was general and well established, so as to raise a presumption that defendant knew it, or that he had actual knowledge of it.

2. One in the regular discharge of a duty, using proper care, and having taken ordinary precautions to prevent an accident, is not liable for damage resulting from the accidental breaking of a tool being used by him.

3. It is negligence to leave glass exposed in the lower story of a building in course of construction, in a position where workmen are carrying and using materials and tools over the unfloored rafters above.

APPEAL from St. Louis Circuit Court.

Reversed, and judgment.

J. M. & C. H. KRUM, for appellants: Admissibility and competence of evidence of custom.-- Cotton Press Co. v. Stanard, 44 Mo. 83; Hill v. Railroad Co., 55 Me. 438; Colton v. Colver, 1 Watts, 360; Miller v. Pendleton, 8 Gray, 547; Walsh v. Transportation Co., 52 Mo. 438. Negligence.-- Smith v. Railroad Co., 37 Mo. 292; Maher v. Railroad Co., 64 Mo. 275; Holman v. Railroad Co., 62 Mo. 564.

D'ARCY & NAGEL, for respondent: Where the objection that the pleadings do not raise an issue calling for testimony offered is not made below, the objection cannot be made in the appellate court.-- Brown v. Railroad Co., 50 Mo. 466. Negligence.--Shear. & Redf. on Neg. 16; Ware v. Gray, 11 Pick. 106; Carpur v. Railroad Co., 5 Q. B. 746; Feital v. Railroad Co., 109 Mass. 398.BAKEWELL, J., delivered the opinion of the court.

This is an action for damages for negligently destroying certain glass. The answer is a general denial. There was a verdict and judgment for plaintiff; and defendants appeal.

There is no contradiction in the evidence except as to one point, which will be mentioned. The testimony showed that in September, 1875, plaintiff was the owner of glass to the value of $800, which was then, and for four months previously had been, lying in a room in the building called the Chamber of Commerce, then in process of erection, placed there for the purpose of being used in the building. This glass was not in boxes, or otherwise protected. Defendants were doing the plumbing-work of the building, under a contract, and at the date of the accident were directed by the architect, in accordance with their contract, to cut off a flange of an iron girder about one inch and a half thick, to give passage to a pipe. Defendants employed a competent and skilful workman to do this job, and directed him to nail boards under the girder, in order that no injury might accrue to persons or property by any thing which might fall. The ordinary and proper way to do the work was to cut the iron half-way through with a small chisel and hammer, and then to break off the flange with a blow from a sledge-hammer. The workman was proceeding with the job, and was about to nail the boards as directed by defendants, when the superintendent of the building observed him, and directed him not to nail up boards, but to nail a gunny-sack under his work. This superintendent was in the employ of the owners of the building; his duty was to see that the contractors did their work properly, and he was authorized to suggest to workmen better ways of doing their work whenever it seemed to him necessary. He had no authority to control defendants' servant as to his way of doing the work, and he did not undertake to do so. At the time this superintendent gave the directions about the gunny-bag, the workman was using the small hammer and chisel; the superintendent thought he would continue to do so, and suggested the gunny-bag, because he considered it better calculated to prevent an injury than the boards would be. The owners of the building had previously directed this superintendent to lay boards upon the floor above, to prevent injury to the glass. The workman was not told by the defendants that the glass was under him. When he hit the flange with the sledge-hammer to break it off, he struck an ordinary blow; the hammer, which was apparently sound, broke off at the head, and the head of the hammer broke through the bagging and smashed the glass beneath, injuring it to the amount of $235.

A witness testified, against the objection of defendants, that it is customary in St. Louis for one contractor to notify others who had material in the same building that he was about to begin work in the building. One of the defendants testified that there was no such custom. This was the only contradiction in the testimony. It further appeared that plaintiff had no notice in accordance with the alleged custom. There were many workmen employed on the floor above the glass, and they were at work with various tools and all kinds of materials.

At the close of plaintiff's case, defendants asked an instruction in the nature of a demurrer to evidence, which was refused. The case was given to the jury upon instructions which we need not set out.

We think that, upon this evidence, ...

To continue reading

Request your trial
4 cases
  • Pankey v. Atchison, Topeka & Santa Fe Railway Co.
    • United States
    • Kansas Court of Appeals
    • 18 Mayo 1914
    ...was no negligence shown on the part of the defendant under the second ground of negligence. Shields v. Railroad, 87 Mo.App. 637; Boyd v. Graham, 5 Mo.App. 403; Adams v. Ins. Co., 76 Pa. St. 411; Hinton Coleman, 45 Wisc. 165; Power v. Kane, 5 Wisc. 265; Sweet v. Leach, 6 Ill.App. 212; In The......
  • Pankey v. Atchison, T. & S. F. Ry. Co.
    • United States
    • Missouri Court of Appeals
    • 18 Mayo 1914
    ...the parties, or so general and universal in its character that knowledge must be presumed. Shields v. Railway, 87 Mo. App. 637; Boyd v. Graham, 5 Mo. App. 403; Sweet v. Leach, 6 Ill. App. 212; C., M. & St. P. Ry. Co. v. Lindeman, 143 Fed. 946, 75 C. C. A. 18. There was no custom shown bindi......
  • McMiens v. United Rys. Co. of St. Louis.
    • United States
    • Missouri Supreme Court
    • 9 Abril 1918
    ...the parties, or so general and universal in its character that knowledge must be presumed. Shields v. Railway, 87 Mo. App.. 637; Boyd v. Graham, 5 Mo. App. 403; Sweet v. Leach, 6 Ill. App. 212; C., M. & St. P. Ry. Co. v. Lindeman, 143 Fed. II. Even if it was the defendant's custom, in stopp......
  • McMiens v. United Railways Company of St. Louis
    • United States
    • Missouri Supreme Court
    • 26 Abril 1918
    ...to the parties or so general and universal in its character that knowledge must be presumed. [Shields v. Railway, 87 Mo.App. 637; Boyd v. Graham, 5 Mo.App. 403; Sweet Leach, 6 Ill.App. 212; C. M. & St. P. Ry. Co. v. Lindeman, 143 F. 946.]" II. Even if it was the defendant's custom, in stopp......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT