Brannock v. Elmore
Citation | 21 S.W. 451,114 Mo. 55 |
Parties | BRANNOCK v. ELMORE. |
Decision Date | 06 February 1893 |
Court | Missouri Supreme Court |
Appeal from circuit court, Jackson county; John W. Henry, Judge.
Action by Lydia Brannock against William Elmore for personal injuries. Plaintiff obtained judgment. Defendant appeals. Reversed.
The facts appear in the following statement by MACFARLANE, J.:
This is an action by plaintiff to recover damages for personal injuries caused by the alleged negligence of defendant in blasting rock on a lot in Kansas City, near a public street. The petition charges that defendant, in May, 1889, was in possession of certain lots on Perry avenue, in Kansas City, by his servants and employes making excavations thereon. That the following ordinance was in force in said city at the time: "No person shall blast or cause to be blasted any rock without having the rock covered at the time of setting off of the blast, and all sides of the orifice protected with good sound plank or timber sufficient in length, width, and thickness, and so placed as to effectually prevent fragments of rock from ascending into the air." That on said day, while she was in the lawful use of said street, the servants of defendant, without observing the requirements of the said ordinance, negligently, and without notice to plaintiff, discharged a blast of powder or other explosives, by which a stove was violently thrown against her, by which she was greatly injured. The answer was a general denial, a plea of contributory negligence, and the further plea that the men engaged in excavating were not servants or employes but mere independent contractors with defendant to remove the rock from the lots at a certain price per yard, by means and methods of their own, independent of order, direction, or control of defendant. That, when the blast was made, the rock was not covered or protected as required by the ordinance, and that plaintiff was severely and permanently injured by a fragment of rock thrown into the air by the blast, is unquestioned. The other facts will sufficiently appear from the opinion.
Scammon, Stubenrach & Pence, for appellant. Fyke & Hamilton, for respondent.
1. At the conclusion of the evidence of plaintiff in chief, and again at the close of all the evidence, the defendant asked an instruction to the effect that the evidence was not sufficient to authorize a verdict against defendant. This was refused, and the action of the court in so doing is the first error assigned. The only undisputed negligence shown was in the omission to obey the requirements of the ordinance. The ordinance was a wise and valid regulation, made for the protection of persons and property from injury. If its provisions had been observed, this injury to plaintiff would not probably have occurred. The disregard of the ordinance was in itself an omission of duty, sufficient to justify a verdict for plaintiff against the person who was guilty of the negligent omission. Shear. & R. Neg. § 13; Murray v. Railway Co., 101 Mo. 236, 13 S. W. Rep. 817; Dickson v. Railway Co., 104 Mo. 501, 16 S. W. Rep. 381.
2. But it is insisted that the omission was not that of defendant himself, and that no such relationship existed between him and the persons who set off the blast without taking the required precaution as would render him liable for the result. The evidence shows that defendant was preparing for the erection of a building on his lot on Perry avenue. That to prepare the ground for cellar and basement an excavation into underlying stone was necessary. This excavation was being done by two colored men, Railey and Crowberger, under a verbal agreement between defendant and them. That agreement we must gather from the evidence, and by it determine the relation of the parties to each other. Railey, as a witness for plaintiff, testified as follows: Defendant himself testified in his own behalf as follows: ...
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