Carson v. Blodgett Construction Company

• Decision Date: 20 March 1915
• Parties: CHARLES CARSON, Respondent, v. BLODGETT CONSTRUCTION COMPANY, Composed of A. M. BLODGETT, L. G. BLODGETT and JOHN A. BLODGETT, Partners, and C. M. KNIGHT, Appellants
• Court: Missouri Court of Appeals

174 S.W. 447

189 Mo.App. 120

CHARLES CARSON, Respondent, v. BLODGETT CONSTRUCTION COMPANY, Composed of A. M. BLODGETT, L. G. BLODGETT and JOHN A. BLODGETT, Partners, and C. M. KNIGHT, Appellants

Court of Appeals of Missouri, Springfield

March 20, 1915

Appeal from Greene County Circuit Court.--Hon. Guy D. Kirby, Judge.

AFFIRMED.

Judgment affirmed.

Sebree & Orr for appellants.

(1) There was an entire failure of proof of the allegations of the petition as to the Blodgett Construction Company, or any of its members and the trial court should have sustained the demurrer interposed at the close of plaintiff's evidence as to said defendant. Plaintiff must recover if at all upon the cause of action pleaded. Compton v. Railroad, 126 S.W. 821, and cases cited. (2) The court erred in giving instruction number 1 on the part of the plaintiff. Because (1) It is not based on the evidence or any evidence that the Blodgett Construction Company were in any way guilty of the negligence charged; (2) It allows the jury to construe the written contract read in evidence and to reach conclusions of law. Brannock v. Elmore, 21 S.W. 451, and cases cited.

Watson & Page for respondent.

(1) Under the very fundamental principles of all law, he who employs another to do a given thing, does it himself. The maxim, "Qui facit per alium, facit per se," is as old as the common law. If the Blodgett Construction Company hired McFarlane and Knight to do the work, they did it themselves, and a statement that they were doing the work, so far as the demurrer to the evidence is concerned, is supported by proof that they hired McFarlane and Knight to do it. Bank v. Lumber Co., 121 Mo.App. 324; Ingwerson v. Railroad, 116 Mo.App. 144-7. (2) The fact that the petition in this case alleges that defendants were doing the work, while the evidence shows that they hired McFarlane and Knight to do it, at most constitutes only a variance. No complaint was made at the trial that defendants were surprised or misled. No affidavit was filed as required by our statutes (R. S. 1909, sec. 1846). In fact, the very point here made as to the variance between the allegations and the proof was waived by defendants' answer, in which he alleges that McFarlane and Knight were employed by plaintiffs to do the work. Carson v. Quinn, 127 Mo.App. 535; Jackson v. Powell, 110 Mo.App. 252; citing many other cases. (3) The work of excavating with dynamite was intrinsically dangerous and attended with great danger to others and defendant cannot escape liability on the independent contractor theory. Salmon v. Kansas City, 241 Mo. 14, 41; 4 Dillon on Municipal Corporations, sec. 1723; Brannock v. Elmore, 114 Mo 55, 62, 63; Loth v. Theatre Co., 197 Mo. 354; Wiggin v. St. Louis, 135 Mo. 568; citing many cases; Press v. Penny, 114 S.W. 76; Fitzsimmons & Connell Co. v. Fitts, 199 Ill. 394; Chicago v Murdock, 212 Ill. 12. (4) The instructions complained of are not properly before this court for review, because no timely objection was made to the giving of them or any of them. No objection was made to the giving of the instructions at the time, and the first objection shown by the record was shown in the motion for new trial. This was too late. It is elementary that an objection to the giving or refusing of instructions made for the first time in the motion for new trial, will not avail. The objection must be made at the time. Lefkow v. Allred, 54 Mo.App. 143; Welch v. Mining Co., 151 Mo.App. 444; State v. Reed, 143 Mo.App. 583; R. S. 1909, sec. 2081.

STURGIS, J. Robertson, P. J., and Farrington, J., concur, the latter filing a separate opinion.

OPINION

STURGIS, J.

--This case is here on appeal of the Blodgett Construction Company, a copartnership, herein designated as the defendants. The personal injury for which plaintiff sues grew out of blasting done in excavating for the basement of a building being erected on a street corner in Springfield, Missouri. The defendants had a contract to erect this building for the owners. It in turn contracted with the firm of McFarlane & Knight to do all the excavating, which carried with it the duty to do considerable blasting as the excavation was largely in solid rock. The plaintiff was injured on the public street, along which he was driving in a buggy, by reason of a heavy blast being discharged, resulting in rocks, pieces of timber, etc., being hurled high in the air and falling in such street. There is no question as to the cause or extent of plaintiff's injury.

The petition contains these allegations: "Plaintiff further states that in making the excavation for the building aforesaid, the defendants, their employees, agents and servants, made use of large quantities of high and dangerous explosives in blasting the stone in said excavation, and that the use of said high and dangerous explosives at the said place, made dangerous the use of the streets aforesaid adjacent to the said place, for the reason that the explosion of blasts at said place was likely to frighten horses on said streets, adjacent thereto, and was likely to throw into said streets, large quantities of rock, timbers and other debris from the said blasts, and thus cause injury to those persons using the said streets, all of which the defendants, and each of them, well knew, or by the exercise of due care might have known. . . . Plaintiff further states that his injuries were caused solely by the negligence and carelessness of the defendants, in that they negligently and carelessly failed and neglected to warn plaintiff of his danger in time for him to reach a place of safety before the discharge of the said blast, and by the negligence of the defendants in so managing the said blasting as to cause large quantities of stones, rocks, timbers and other debris to be thrown into and upon said North Campbell street, at and about the place where plaintiff was at the time, thereby frightening the horse which plaintiff was at the time driving, and thus causing the injuries of plaintiff herein complained of."

Besides a general denial, the answer pleads that, while defendants were the contractors for erecting the building including the excavation, they sublet the work of excavating for said building to the firm of McFarlane & Knight, who became and were independent contractors as to such work. There is no question but that this latter firm was in sole charge of and did the blasting which caused plaintiff's injury. The contract between these parties is in evidence and it is hardly controverted, and we have no difficulty in holding, that, so far as the contract is concerned, the blasting was done by independent subcontractors. The jury found, and defendants accept such finding as conclusive on this appeal, that the subcontractors were guilty of actionable negligence in not giving plaintiff sufficient and timely warning of the impending danger and in discharging the blast before plaintiff had time or opportunity to leave the danger zone.

The case here turns largely on the question of defendants' liability for the acts of these subcontractors. The defendants seeks to escape liability on the well known principle which exonerates the owner or other employer from the negligent acts of an independent contractor. A statement of this rule will be found in Loth v. Columbia Theatre Co., 197 Mo. 328, 354, 94 S.W. 847, and in Neumann v. Real Estate Co., 73 Mo.App. 326, 329. The plaintiff in turn invokes the equally well established exception to that rule, that where the work to be done under the contract is inherently dangerous, especially to the public, then the responsibility cannot be shifted or delegated to an independent contractor. This exception to the rule is stated in 26 Cyc. 1559, thus: "Another exception to the general rule, closely related to the one just considered, is that where the work is dangerous of itself, or as often termed is 'inherently' or 'intrinsically' dangerous, unless proper precautions are taken, liability cannot be evaded by employing an independent contractor to do the work. Stated in another way, where injuries to third persons must be expected to arise unless means are adopted by which such consequences may be prevented, the contractee is bound to see to the doing of that which is necessary to prevent the mischief. The injury need not be a necessary result of the work; but the work must be such as will probably, and not which merely may, cause injury if proper precautions are not taken. This rule is most often applied to work which is dangerous to persons using streets or highways, such as excavations in or adjacent to streets, including the construction of a street railway or other like work." The same rule is announced in 1 Thompson on Negligence, secs. 645, 652 and 771.

It seems to be well established that the use of high explosives in blasting, especially in a populous neighborhood or near a public highway, is so fraught with danger that the person using same for that purpose is held liable for injury done thereby to either the person or property of another without proof of negligence. [Hoffman v. Walsh, 117 Mo.App. 278, 93 S.W. 853; Blackford v. Heman Const. Co., 132 Mo.App. 157, 112 S.W. 287; 1 Thompson on Negligence, secs. 770, 771; Sullivan v. Dunham, 161 N.Y. 290, 47 L.R.A. 715, 55 N.E. 923.] In 19 Cyc. 8, the law is stated thus: "It has been held that where one is injured by falling stones or other debris, caused by blasting, while traveling upon the highway, the persons conducting the work are liable therefor, regardless of the care used in its prosecution and a recovery cannot be defeated by the fact that there was no negligence in the prosecution of the work. "

The fact is conceded in the present case that defendants employed the firm of McFarlane &...