67 S.W. 576 (Mo. 1902), Harff v. Green
|Citation:||67 S.W. 576, 168 Mo. 308|
|Opinion Judge:||ROBINSON, J.|
|Party Name:||HARFF, Plaintiff in Error, v. GREEN et al|
|Attorney:||Virgil Rule and Charles & Lackey for plaintiff in error. A. & J. F. Lee and T. J. Rowe for defendants in error.|
|Judge Panel:||ROBINSON, J. Valliant, J., not sitting.|
|Case Date:||March 29, 1902|
|Court:||Supreme Court of Missouri|
Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant, Judge.
(1) Defendant Baker is liable. 1. (a) For the negligence of his servant in dropping the bricks from the wheelbarrow upon the plaintiff. Shepard v. Creamer, 160 Mass. 496; Rose v. St. Louis, 152 Mo. 602; Dohn v. Dawson, 90 Hun 271; 157 N.Y. 686. (b) For negligence in not placing sufficient planking on the joists where his servants were at work to prevent bricks from falling on the men below them. 2. Whether plaintiff was guilty of contributory negligence in not knowing that there was no covering over him, was, in any view of the case, a question for the jury, and he should not have been non-suited. Hamman v. Central C. & C. Co., 56 S.W. 1094; Swadley v. Railroad, 118 Mo. 268; Smith v. Day, 100 F. 244. 3. (a) This defendant, in prosecuting his work on the building, owed at least the same duty to persons lawfully on the premises at work below his men, that he owed to passers-by on the street below. And this is true, regardless of the fact that there was no contractual relation existing between plaintiff and this defendant. (b) He is liable for negligence in dropping the bricks, no matter whom they may have struck. 4. The well-established doctrine in this State is that, "the servant's claim should be barred only by contributory negligence, and that this should not, except in the clearest cases, be inferred, as a matter of law, from mere knowledge of the dangerous conditions." Swadley v. Railroad, 118 Mo. 278; Wake v. Price (Ky.), 58 S.W. 519; Deweese v. Iron Co., 54 Mo.App. 482; Smith v. Day, 100 F. 244; Hamman v. Central C. & C. Co., 56 S.W. 1091. 5. Defendant Baker is liable regardless of the lack of contractual relationship with plaintiff. Dohn v. Dawson, supra; Lottmann v. Barnett, 62 Mo. 159; Griffiths v. Wolfram, 22 Minn. 185. (2) Defendant Green is liable. 1. (a) Because he had general charge and management of all the work. Dettmering v. English (N. J.), 48 L. R. A. 106; Boden v. Demwolf, 56 F. 846; Murray v. Dwight, 161 N.Y. 301; Independence v. Slack, 134 Mo. 66. (b) Because he selected the place where plaintiff should work, and it was his duty to select a safe place for him. (2) When a contractor employs a subcontractor to do certain portions of the work, the contractor is bound to do his part of the work so as to render it safe for the employees of the subcontractor. Johnston v. Ott, 155 Pa. St. 17; Dettmering v. English, supra; Murray v. Dwight, supra; Jones v. Railroad, 125 Mo. 666; Boden v. Demwolf, 56 F. 848. 3. Defendant Green is liable regardless of the fact that the plaintiff sustained no contractual relation to him. Lottman v. Barnett, supra; Griffiths v. Wolfram, 22 Minn. 187; Coughton v. Globe, etc., Co., 56 N.Y. 124; Devlin v. Smith, 89 N.Y. 470.
[168 Mo. 310]
On September 17, 1892, there was in process of construction, at the corner of Ninth street and Washington avenue, in St. Louis, a certain nine-story brick building. Defendant Green was the contractor for the whole work, and Patrick McCarthy was his superintendent or foreman. Defendant Baker was the subcontractor for the doing of the brick work, and defendant Seger was the subcontractor for the doing of the carpenter work. The plaintiff was employed by defendant...
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