Brannock v. Elmore

• Decision Date: 06 February 1893
• Citation: 21 S.W. 451,114 Mo. 55
• Parties: Brannock v. Elmore, Appellant
• Court: Missouri Supreme Court

21 S.W. 451

114 Mo. 55

Brannock v. Elmore, Appellant

Supreme Court of Missouri, First Division

February 6, 1893

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Reversed and remanded.

Scammon Stubenrauch & Pence for appellant.

(1) A demurrer to the evidence ought to have been sustained. The firm of Railey & Crowburger contracted to take the rock out of appellant's cellar at forty cents per perch, using their own means and methods for accomplishing this result. The contract was completed without any interference on appellant's part. The contract constituted Railey & Crowburger independent contractors, and the relation of master and servant in no wise existed between them. Deering on Negligence, sec. 230; Wharton on Negligence, sec. 181; Schweickart v. St. Louis, 2 Mo.App. 571; Morgan v. Bowman, 22 Mo. 548; Barry v. St. Louis, 17 Mo. 105; McCafferty v. Railroad, 61 N.Y. 180; Blumb v. City of Kansas, 84 Mo. 113; Smith, Law of Negligence [2 Eng. Ed.] 84-85, et seq; Dillon v Hunt, 82 Mo. 150; Fink v. Furnace Co., 82 Mo 283; Gibbon v. Railroad, 66 Wis. 546; 2 Thompson on Trials, sec. 2319; Morgan v. Durfee, 69 Mo. 466; Field v. Railroad, 80 Mo. 203; Wentz v. Morrison, 17 Tex. 372. (2) The court erred in giving instructions 1, 2 and 3 of its own motion to the jury. They were unwarranted either by the law or by the evidence. Henry v. Bassett, 75 Mo. 89; Albert v. Besel, 88 Mo. 150; Railroad v. Clary, 77 Mo. 634; Peterson v. Lake, 24 Mo. 540; Matlock v. Dubreuil, 9 Mo. 477; Belt v. Goode, 31 Mo. 129; Hickey v. Ryan, 15 Mo. 63; Fugate v. Carter, 6 Mo. 267; 2 Thompson on Trials, sec. 1006; Peck v. Ritchey, 66 Mo. 114; Bank v. Lonnergans, Adm'x, 21 Mo. 46. (3) Instruction number 2, given on behalf of the plaintiff, was erroneous. It told the jury that: "If they found from the evidence that plaintiff had no notice that a blast was about to be made, and had no notice that the blast was not protected with plank or timber, then she was not guilty of contributory negligence." Peterson v. Lake, 24 Mo. 540; Matlock v. Dubreuil, 9 Mo. 477; Hickey v. Ryan, 15 Mo. 63; Fugate v. Carter, 6 Mo. 267; Leavitt v. La Force, 71 Mo. 356; Roan v. Winn, 93 Mo. 501; Cooley on Torts, 674. (4) The court erred in refusing to give the several instructions asked by the defendant. Gibbon v. Railroad, 66 Wis. 546; Thompson on Trials, sec. 2319; Morgan v. Durfee, 69 Mo. 466; Field v. Railroad, 80 Mo. 203; Morgan v. Bowman, 22 Mo. 548; Barry v. St. Louis, 17 Mo. 105; McCafferty v. Railroad, 61 N.Y. 190; Blumb v. City of Kansas, 84 Mo. 113; Smith, Law of Negligence [2 Eng. Ed.] 84.

Fyke & Hamilton for respondent.

(1) Railey & Crowburger were not independent contractors. Appellant not only had the right under the arrangement between him and Railey & Crowburger to control the work, but did in fact exercise control over them by telling them where to work, by hurrying them up, and by employing, without objection from them, other men to engage in the same work; and he had the undoubted right to discharge them at any time. "He had not parted with the whole control over the work and the workmen." Morgan v. Bowman, 22 Mo. 538; Booth v. Railroad, 17 N.Y.S. 336; Dressell v. City of Kingston, 32 Hun, 533; Water Co. v. Ware, 16 Wall. 566. (2) If the work was done upon defendant's premises in such a manner as to constitute a nuisance, in his presence and without objection, he is liable. Blasting is not a nuisance per se, but when the manner of doing it is prescribed by law, it is, when done contrary to the manner prescribed, a nuisance; and for so doing or permitting it to be done upon his premises defendant, we think, ought to be held. (3) It was defendant's duty to give notice that the blast was about to be fired, and his failure to do so was negligence. Driscoll v. Newark, 37 N. J. 637; St. Peter v. Dennison, 58 N. J. 416. (4) The violation of any statutory or valid municipal regulation, established for the purpose of protecting persons or property from injury, is of itself sufficient to prove such a breach of duty as will sustain a private action for negligence if the other acts of actionable negligence concur. 1 Shearman & Redfield on Negligence, sec. 13; Shipley v. Calclough, 45 N.W. 1106.

Macfarlane J. Barclay, J., concurring.

OPINION

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 persons 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 stone 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.

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.

I. 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. 1 Shearman & Redfield on Negligence, sec. 13; Murray v. Railroad, 101 Mo. 236, 13 S.W. 817; Dickson v. Railroad, 104 Mo. 491, 16 S.W. 381.

II. 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 Crowburger, 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: "When Crowburger and I made our contract with Elmore to excavate his cellar at forty cents a perch, nothing was said about blasting it out. Of course we were to blast it out if it was necessary. Nothing was said about the methods we were to adopt, whether it was quarrying or blasting or by prying it up. But both parties expected we would have to quarry, just as I did on Mr. Brannock's lot adjoining there. We expected, Mr. Crowburger and I, to adopt the methods according as we found it most useful. We furnished our own tools, powder, fuses, and all that sort of thing. * * * When we made the agreement with Mr. Elmore nothing was said about how the work was to be done. We knew we would have to blast. I supposed Mr. Elmore knew it. We generally drew a little money nearly every Saturday night. We got our powder and stuff with the money."

Defendant himself testified in his own behalf as follows: "My arrangements with Railey & Crowburger were that they were to take the rock out of the cellar at so much a perch. They were to take out what we wanted for the basement and what we wanted for the cellar. This was indicated by being staked off. It was staked out in the shape of a cellar. Mr. Dolson did that; I think I helped to stake it off; it was to go down about five feet. They were to blast it down so it would be five feet. They were to take the rock all out down that depth, and I was to take off the dirt and the loose rock. The dirt and loose rock was taken off by plowing the dirt and I took it off with a scraper. I gave Mr. Schriver and Mr. Jarboe eighteen cents a yard for doing that. My arrangements with these parties were to take off the loose rock that came in the dirt. I was to pay them by the day for hauling off the loose rock; but the ledge rock was contracted to Railey & Crowburger at forty cents a perch. They furnished everything themselves. I had nothing to do with it. I gave them no directions whatever. I never exercised any control over them as to the methods or means they should use for getting it out. I settled with them after they got...