O'Brien v. Heman

• Decision Date: 08 June 1915
• Docket Number: No. 14053.,14053.
• Citation: 177 S.W. 805,191 Mo. App. 477
• Parties: O'BRIEN et al. v. HEMAN et al.
• Court: Missouri Court of Appeals

177 S.W. 805

191 Mo. App. 477

O'BRIEN et al. v. HEMAN et al.

No. 14053.

St. Louis Court of Appeals, Missouri.

June 8, 1915.

Rehearing Denied June 22, 1915.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Action by James O'Brien and another against August Heman and others. Judgment for the plaintiffs, and August Heman and two of his codefendants prosecute a joint appeal. Affirmed.

Rodgers & Koerner, of St. Louis, for appellants. Holland, Rutledge & Lashly, of St. Louis, for respondents.

NORTONI, J.

This is a suit under the wrongful death statute for damages accrued to plaintiffs because of the fault of the several defendants. Plaintiffs recovered, and defendants prosecute the appeal.

Defendants are August Heman, John C. Heman, the Heman Construction Company, a corporation, and the Burroughs Adding Machine Company, a corporation. The Hemans and the construction company prosecute an appeal jointly, while the Burroughs Adding Machine Company likewise separately appeals. Such distinct appeals will therefore be considered separately, but, in the interests of brevity, the same statement of facts will be employed to portray the general outline of the case. Such facts as are relevant and essential to the understanding of the arguments presented in the different appeals will sufficiently appear in the opinion concerning each.

Plaintiffs, the father and mother of Francis O'Brien, sued, as above stated, for damages occasioned as the result of his death, which occurred by his falling from an alley into the rock quarry situate on the property of the Hemans, but the immediate opening through which he was precipitated into the quarry was across the corner of a lot owned by defendant Burroughs Adding Machine Company, which adjoined the Hemans. The several defendants are therefore sued as joint tort-feasors in rendering the highway dangerous, as if each contributed in part to the death of the little boy.

We copy from plaintiffs' brief the statement of facts prepared by their counsel, which sufficiently sets forth the situation as to both appeals:

"There is very little conflict of testimony presented by the record in this case. The facts shown by respondents were that on the 9th day of August, 1912, the minor child of plaintiffs, a boy named Francis (O'Brien, aged 12 years, slipped into the quarry owned and operated by the Hemans, appellants here, and was drowned. At the time of the fatal accident the boy was walking eastwardly in the alley, which is between Laclede avenue and Forest Park boulevard, two public streets in a populous center in the central district of the city of St. Louis, Mo. The alley in question is 182 feet north of Forest Park boulevard and 182 feet south of Laclede avenue, running parallel with both streets, and is built up solidly on the north line by a row of sheds and fences inclosing the rear of a solid block of flat buildings facing Laclede avenue. Also on the north side of the alley, some 75 feet east of the quarry, was the factory building of the Johansen Bros. Shoe Company, where a force of from 400 to 500 workers were employed daily. Across the alley from these sheds and this line of fences the Hemans excavated to a depth of about 150 feet, operating a quarry for several, years, and, the quarry business having been terminated some time prior to the accident, they were at the time using it as a public dumping hole, for which they charged a fee for dumpage by the load, and for the convenience of which they had erected platforms upon the east and west sides of the quarry. Having quarried up to the alley line, the north wall of the quarry presented a perpendicular surface of solid rock, on top of which the soil had slid into the hole in the process of time and through the beating and washing of rains, so that the line upon the surface representing the northernmost edge of the incline was 9 feet and 4 inches: Into the alley, which, as dedicated and laid out, was 20 feet wide. Along that line the Humans rad erected a rude, two-plank fence beginning at the west wall of the quarry and running east to a point 3% feet west of their eastern line, and terminating with the last post 11 feet west of a point where the corner had washed into the quarry.

The northeast corner of the quarry and all of the eastern side of the quarry were exposed, and were not fenced or guarded in any way. At said northeast corner the ground had caved in such a manner as to form a sharp incline or chute or slide, as it was variously called by the witnesses, into which it appeared the residents of the neighborhood had been accustomed, for many years, with the knowledge of the Hemans, and without any objection from them, to dump ashes and refuse. This chute ran at a sharp angle in a southwesterly direction to a point where it attained the corner of the perpendicular rock wall of the quarry proper, and then dropped straight down to the water constituting the quarry pond. The hole was about 150 feet deep, the water about 65 feet deep. Along the two-plank fence erected by the Hemans, and principally on the quarry slide _hereof, had grown grass, high weeds, sunflowers, and vines overhanging the edge of the quarry hole and having their branches and leaves protruding over and through the fence into the alley. Also along the row of fence and sheds, on the northern boundary of the alley, grass had grown several inches high. In the floor of the alley, where wagons traveled, were packed dirt, ashes, and imbedded rocks.

"The alley was dedicated by the recording of a plat in the office of the recorder of deeds in the year 1892, and in May of that year the board of public improvements certified to the fact that the dedication of said alley was in due and legal form and accepted the same.

"The defendant August Heman acquired his interest in the quarry property, which was an undivided one-half, on January 5, 1894, from the same person who had dedicated this alley and filed the plat of dedication above mentioned. In deeding the property to Mr. Heman it was described and the title conveyed `to an alley 20 feet wide, bounded north by said alley.' This deed referred to the recorded plat which had been accepted by the city two years before. The other undivided half interest in this property was acquired by John C. Heman in 1896 by deed from the same grantor, and similarly described the northern boundary of the property. A short time thereafter the property immediately to the east of the Hemans property, and contiguous to the same alley, was purchased by the Burroughs Adding Machine Company, and was similarly described and bounded in the deed. The business of operating the quarry, and thereafter of operating the dumping hole, was conducted by the appellant Heman construction Company, a corporation composed of the two Heman brothers, and Mr. August Heman, when called to the stand, testified on the point of use and occupation of the premises, as well as the operation of the quarry and the dumping hole, as follows: Q. Who dug the quarry hole this testimony is about? A. Heman Construction Company. Q. With your and Mr. Heman's knowledge and consent—Mr. John Heman? A. Yes, sir. Q. After the rock was quarried out of it, what did you use it for? A. Used it as a dump. Q. Bow long have you been using it as dump? A. About three years, I guess. Q. Did you hire it as a dump? A. Well, I don't know what you mean by the term "hire." Charge so much to let them dump in there; that is all. Q. Has the Heman Construction Company got a written lease? A. No, sir. Q. Just operate it by consent of you and your brother? A. Yes, sir. Q. It was your and your brother's enterprise, and this corporation carried it out? A. Yes, sir. Q. During all the time taking out and filling in, too? A. Yes, sir.'

The alley was dedicated more than 20 years before, and was used, according to the testimony, during that time, and for more than 10 years, as a driveway and public alley. The fence and line of sheds marking the north line of the alley was in direct line with the fence and line of sheds continuing westwardly on the other side of Spring avenue. Delivery wagons, express wagons, coal wagons, ragmen, automobiles, and wagons going and coming from the Johansen Bros. Shoe Company's factory, which was situated north of the alley and some 75 or 100 feet further east of the quarry hole, were accustomed to drive up and down the alley, and had been for many years, according to the testimony of all of the witnesses in this case, with the sole exception of Mr. August Heman, who expressed himself as `surprised' at the great volume of testimony which he heard to this effect.

"In 1907 the city of St. Louis granted permission to the Bell Telephone Company to erect seven poles on the north side of the alley, and at that time an investigation and recommendation was made with reference to the granting of this franchise by the city lighting department of St. Louis. These poles were thereupon erected, and a telephone line is at present located in the alley and by virtue of that permission from the city.

"In 1894 the city of St. Louis established,, by ordinance, a sewer district in this territory, and thereafter let a contract and laid a sewer main in the alley past the point where the boy fell into the quarry. The evidence showed that there was a portion of the alley running east from Spring avenue a distance of 93 feet which had never been dedicated by any recorded plat, but that it was defined between the sheds and fence line, and the property contiguous to it was bought and sold with its lines for a boundary, and the public had used it for many years the same as it had used that part of the alley which had been formally dedicated. In fact, appellant August Heman himself formerly owned, and at one time sold, the property contiguous to that strip, and in his deed conveyed and described the property on the south as `bounded on the north by a proposed alley 20 feet wide.'

"East of...