Appel v. Eaton & Prince Co.
| Decision Date | 23 December 1902 |
| Citation | 71 S.W. 741,97 Mo.App. 428 |
| Parties | MARGARETHA APPEL, Respondent, v. EATON & PRINCE COMPANY et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Jas. E. Withrow Judge.
AFFIRMED.
Judgment affirmed.
Jno. F Shepley and Percy Werner for appellant Eaton & Prince Company; Valle Reyburn for appellant Mississippi Valley Trust Company.
(1) Defendant, the Mississippi Valley Trust Com-owed no legal duty to deceased who was the servant of an independent contractor, by violation of which it could be charged with negligence and subsequent liability to plaintiff therefor. Shearman & Redfield, Negligence (5 Ed.), secs. 3, 5 and 25; Herzer v. Mfg. Co., 110 Mo. 605; Gurley v Railway, 104 Mo. 211; Roddy v. Railway, 104 Mo. 234. (2) Defendant, the Mississippi Valley Trust Company, is not legally responsible for the injury resulting from the action of Loewenstein, towards whom it bore no relation, over whose conduct it had no control, and whose careless conduct it could not reasonably anticipate. McGrell v. Buffalo Office Building Co., 45 Cent. L. J. 133; Ziemann v. Krickhefer, 90 Wis. 497; American Brewing Assn. v. Talbot, 141 Mo. 674; Troth v. Norcross, 111 Mo. 630; Tuteen v. Hurley, 98 Mass. 211.
Daniel Dillon for respondent.
(1) Both defendants were guilty of negligence little less than criminal in failing to exercise care over or to give attention to the west elevator when they knew the perilous position of plaintiff's husband, and that the running of that elevator against the scaffold on which he was working would result almost certainly in his instant death. The term "negligence" is relative, and its application depends on the situation of the parties and the degree of care and vigilance which the circumstances reasonably impose. That degree is not the same in all cases; it may vary according to the danger involved in the want of diligence. Cooley on Torts (2 Ed.), p. 752. (2) "Negligence is no more nor less than this; the failure to preserve, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury." Id. Vaughn v. Scade, 30 Mo. 605; Frick v. Railway, 75 Mo. 609; Dowell v. Guthrie, 99 Mo. 663; Hanlon v. Railway, 104 Mo. 390; Quirk v. St. L. U. El. Co., 126 Mo. 279. (3) In order to give a cause of action for negligence it is not necessary that there should have been any contractual relation between defendant and the person injured; nor is it necessary that the relation of master and servant should have existed between them. Morgan v. Cox, 22 Mo. 373; Totten v. Cole, 33 Mo. 138. (4) Even in the case of a trespasser or of one guilty of negligence, when he is seen or known to be in a position of danger, it is negligence not to use care to avoid injuring him. 1 Shearman & Redfield on Negligence (5 Ed.), secs. 99-100; Rinne v. Railway, 100 Mo. 228; Guenther v. Railway, 95 Mo. 286; 108 Mo. 18; Fiedler v. Railway, 107 Mo. 645; Reardon v. Railway, 114 Mo. 384; Hicks v. Railway, 124 Mo. 115; Bunyan v. Railway, 127 Mo. 12. (5) Even if this court should believe that any reversible error was committed in the trial court against one of these defendants and not against the other, this court will not reverse the entire judgment, but would reverse it as to the defendant against whom error had been committed, and affirm it as against the other. Kleiber v. Railroad, 107 Mo. 240; State ex rel. v. Tate, 109 Mo. 269; Neenan v. City of St. Joseph, 126 Mo. 89; Wiggins v. St. Louis, 135 Mo. 558; O'Rourke v. Railroad, 142 Mo. 342.
We adopt the greater part of the lucid statement of the facts and of the proceedings in the trial court submitted by the learned counsel for the trust company, one of appellants, making some changes therein to conform to our views upon certain of the controverted points.
This is an action under the statute (R. S. 1899, sec. 2865) brought by plaintiff, the widow of George Appel, against Eaton & Prince Company, and the Mississippi Valley Trust Company.
In November, 1897, defendant, the trust company, was owner of a ten-story office building on Olive street between Eighth and Ninth streets in the city of St. Louis, commonly known as the Burlington Building, which was undergoing a course of general repairing, each department of the work being performed by a contractor. R. P. McClure was the general contractor for a portion of the repairs, including the carpenter work, and the deceased Mr. Appel was a carpenter in his employ.
The co-defendant, Eaton & Prince Company, was the contractor for elevators in the building. The contract for that work, which was put in evidence by one of the defendants, recited that after the day of commencing work on the elevators, the repairing contractor should have the uninterrupted use of the hatchways and of so much of the building as might be necessary to get the machinery and the elevators in position, but he was to keep one elevator in operation for the use of tenants and material.
Other classes of repairs were delegated by other separate contracts to other contractors to the number of twenty-five or more.
A. E. Benoist had charge of the building, representing its owner, the trust company, and he occupied an office therein.
John H. Baird was the general agent in St. Louis of Eaton & Prince Company. Jacob Hirsch was the superintendent of the work being performed by that company. Both Messrs. Baird and Hirsch were at the building daily. E. R. Van Sickle was a workman in the employ of the last-named company. He was designated by Mr. Baird as an assistant superintendent. The Eaton & Prince Company had in turn sublet part of the elevator work (including the wiring) to Charles Briner.
November 24, 1897, the work upon the building was approaching completion. The elevators were nearly finished. On that day the east elevator was in operation for the convenience of the tenants of the building, but the west elevator was (and had been for a period of several days) not in common use. It was "dead" as styled by the witnesses. These were hydraulic elevators, that is, they were operated by water pumped to the roof by steam power from an engine in the cellar of the building.
W. A. Savage, an engineer in the employ of the trust company, operated and managed the steam engine and boiler. To stop the elevators it would have been necessary to turn off the steam and water entirely.
On the day mentioned, carpenters (including Appel) in the employ of McClure were engaged in casing the elevator shafts, to perform which work a scaffold was built across the west elevator shaft upon which workman stood as the work advanced from the top floors of the building downward, one shaft at a time. On the day of the accident the workmen were engaged between the seventh and eighth floors on the west elevator shaft. The higher floors had been finished.
During the day some of the carpenters, including deceased as well as the general contractor, McClure, applied to Benoist to have the east elevator cease running for passenger use, so that the work of casing the shaft could be transferred to the east elevator, but Benoist declined, replying that the east elevator was required for the convenience of the tenants of the building. The west, or "dead" elevator, while not in general use for passengers, had, on November 24, been operated eight or ten times by workmen employed by Briner, the sub-contractor of Eaton & Prince Company, engaged in wiring the annunciators of the west elevator and standing on the top for that purpose. These men assert that they had been cautioned against running the elevator so high or so far as to strike the scaffold of the carpenters working in this elevator shaft.
About 4 o'clock p. m. the men employed in wiring the west elevator ceased work, lowered the elevator to the basement, and told Savage, the engineer, to turn off the steam, but Van Sickle told Savage that he (Van Sickle) wanted to use this elevator a while and took charge of it to finish the elevator pit as he had been directed to do by both Messrs. Hirsch and Baird. At this time (about half-past four o'clock p. m.) Israel Loewenstein, formerly but not then in the employ of Eaton & Prince Company, entered the building and went to the west elevator where he saw Van Sickle at work putting in a casing of brickwork around the shafting. When he had finished, he asked Lowenstein to take the elevator out of his way, so that he (Van Sickle) could clean out the debris beneath. Loewenstein then ran the elevator to the second floor to find a friend, as he testifies, and then continued to the third floor in the same search; at that floor he stopped the elevator. An outsider then came along, unknown to Loewenstein, and asked the latter to take him upstairs. Loewenstein replied that the elevator was not in use but "dead," and to take the east elevator. The man said he was in a hurry. Loewenstein then took him in the elevator to the seventh floor, where the elevator struck the scaffold on which plaintiff's husband was at work, so injuring him that he died nine days afterwards.
The foregoing is a sufficient outline of the main features of the case. There was testimony tending, at least, to establish the facts recited above. Some further items of proof will be mentioned in the course of the opinion to give a complete view of the vital point of the litigation which is found in the acts of Messrs. Van Sickle and Loewenstein and their relation to the Eaton & Prince Company.
The learned trial judge refused an instruction in the nature of a demurrer to the evidence asked by each of defendants. He gave...
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Eaton & Prince Company v. Mississippi Valley Trust Company
... ... all said times, a corporation duly organized and existing ... under the laws of the State of Missouri ... "Plaintiff ... for cause of action states that heretofore, to-wit, on the ... 13th day of October, 1898, one Margaretha Appel, as ... plaintiff, obtained a judgment in the circuit court of the ... city of St. Louis against plaintiff and defendant jointly, ... for the alleged wrongful and negligent killing of her ... husband, in the sum of $ 3,000 and costs, said judgment ... bearing interest from date, at the rate of ... ...