Casey v. Hoover

• Decision Date: 02 October 1905
• Citation: 114 Mo. App. 47,89 S.W. 330
• Parties: CASEY v. HOOVER et al.
• Court: Missouri Court of Appeals

89 S.W. 330

114 Mo. A. 47

CASEY v. HOOVER et al.

Kansas City Court of Appeals. Missouri.

October 2, 1905.

1. APPEAL — REVIEW — QUESTION FOR JURY.

Where there is nothing in plaintiff's contention under the evidence incompatible with reasonable probability or physical law, and the facts have been resolved by the jury in favor of plaintiff, the appellate court is bound to assume as proven the facts most favorable to plaintiff, and draw therefrom every reasonable inference that might be indulged in support of his position, in determining whether he was entitled to have the case submitted to the jury.

2. NEGLIGENCE — PERSONS LIABLE — INDEPENDENT CONTRACTORS.

Where defendant bridge company contracted with county commissioners to construct a bridge, by the fall of which plaintiff was injured, and it appeared that the structure was so defective as to be essentially and imminently dangerous, that the defects were so concealed that a reasonably careful inspection would not have discovered them and the danger resulting therefrom, and that such defects, though known to the contractor, were not known to the commissioners, the contractor was liable to plaintiff for negligence, though the bridge did not fall until after it had been accepted.

3. NUISANCE — NEGLIGENT CONSTRUCTION OF BRIDGE.

Where the building of a bridge, by the fall of which plaintiff was injured, was ordered and contracted for by county commissioners in the manner provided by law, plaintiff was not entitled to recover against the contractor who built it on the theory that the bridge, by reason of its negligent and improper construction, constituted a nuisance.

4. SAME — ACTION FOR INJURIES — COMPLAINT.

In an action for injuries to plaintiff by the collapse of a bridge, plaintiff charged in the first count certain sections of foreign statutes prescribing the powers of the county commissioners to erect a bridge and certain other sections defining "nuisance," and alleged that defendant constructed the bridge under contract with the commissioners, and, when completed, it was opened by defendant for public use shortly before the accident, but had not been accepted or approved by the commissioners. The specifications of the contract were then alleged, followed

by a charge that defendant negligently constructed the piers, etc., of insufficient and improper materials, by reason of which the structure then was and thereafter continued to be a public nuisance. The second count was in substance the same, except that the allegations that the bridge was a nuisance were omitted, and additional averments were made that the structure was imminently dangerous to all persons attempting to cross, which conditions were known to defendant, etc. Held that, though the bridge was not a nuisance, both counts contained sufficient allegations of negligence to withstand a demurrer.

5. NEGLIGENCE — TRIAL — INSTRUCTIONS.

Where, in an action for personal injuries, the only instruction asked on plaintiff's behalf was that, if the jury found a verdict in plaintiff's favor, they should assess his damages at such sum as would reasonably compensate him for whatever injuries, if any, the jury found from the evidence he had sustained as a direct result of the defendant's negligence, etc., the giving of such instruction, without instructing what facts, if found, would constitute negligence, was reversible error, as permitting the jury to determine the law, as well as the facts.

Appeal from Circuit Court, Jackson County; Andrew F. Evans, Judge.

Action by John Casey against J. W. Hoover and another. From a judgment in favor of plaintiff against defendant Wrought Iron Bridge Company, it appeals. Reversed.

Haff & Michaels and L. W. McCandless, for appellant. John C. Tarsney and C. F. Mead, for respondent.

JOHNSON, J.

Plaintiff, while traveling upon a public highway in Kingfisher county, Okl., was injured by the collapse of a bridge over which he and his companions were driving at the time. This action is to recover damages for injuries sustained. The defendants are alleged to be contractors who built the bridge under contract with the board of county commissioners of Kingfisher county. During progress of the trial plaintiff suffered a compulsory nonsuit as to the defendant Hoover. This appeal is prosecuted by the remaining defendant, the Wrought Iron Bridge Company, against which plaintiff recovered judgment in the sum of $4,000.

The petition is in two counts. In the first, after pleading certain sections of the Oklahoma statutes prescribing the powers of the county commissioners and certain other sections defining nuisance, plaintiff charges, in substance, that defendant constructed the bridge in question under contract with the commissioners; that, when completed, it was opened by defendant for public use shortly before the accident, but had not been accepted or approved by the commissioners; that in the contract and specifications attached thereto the bridge was to be in eight spans, one of 80 and seven of 20 feet in length, the larger span to be supported by four tubular piers, 32 feet high and 30 inches in diameter, resting upon solid concrete foundations, and filled with concrete of designated composition. Then follow specific charges of negligence: "That defendants * * * negligently and carelessly filled said tubes with dirt, sand, twigs, and leaves, with insufficient quantities and poor quality of cement and rock, and neglected to mix, blend, and tamp said materials, so that they did not constitute a solid body, but were weak, loose, and brittle; * * * negligently and carelessly planted said tubes upon foundations of like material filling the tubes, rendering said foundations weak, soft, spongy, and unfit to support said bridge, * * * on account whereof said bridge was unable to support the lightest travel, and was utterly unfit for use; * * * by reason of the real conditions described, and the negligence of the defendants aforesaid, said structure at the time of its erection was, and thereafter continued to be, a public nuisance." The fall of the bridge, while plaintiff was crossing, was alleged to be the fault of the negligent construction described. The facts alleged in the second count are in substance the same as those in the first, with the exception that the allegations of the first relating to the charge that the bridge was a public nuisance are omitted, and additional averments are made that "said structure at the time of its erection was, and thereafter continued to be, imminently dangerous to all persons attempting to cross and use the same. All of said conditions were known to defendant, or could have been known by the exercise of ordinary care, in time to remedy said defects and prevent said injury." Defendant unsuccessfully demurred to both counts, on the ground that neither stated a cause of action, and at the conclusion of the evidence filed a motion that plaintiff be required to elect upon which count he would stand, and, upon the overruling of this motion, asked a peremptory instruction directing a verdict for defendant. The questions of pleading involved will be considered with those presented by the action of the court in refusing to give a demurrer to the evidence. Defendant in its answer, among other defenses, including a general denial, pleaded an acceptance of the bridge by the county commissioners before the injury. The affirmative defenses were put in issue in the reply filed by plaintiff.

Among the facts in evidence about which there is no dispute are these: The board of county commissioners was the lawfully constituted agent of the county, in charge and control of works of public improvement, and as such was authorized by law to build the bridge. Its proceedings leading to the making of the contract were regular and lawful. It decided to let the contract for the building of the structure, with the exception of the dirt approaches, which were to be built by the township in which the bridge was situated. General dimensions were furnished bidders. The Wrought Iron Bridge Company was at the time engaged in the business of manufacturing and constructing bridges, with its place of business at Canton, Ohio. J. W. Hoover, with headquarters at Kansas City, was its agent for Oklahoma. He caused a design for a bridge, together with plans and specifications, conforming to the dimensions furnished, to be prepared at Canton, and submitted them, together with a bid, to the board of commissioners. These were approved and accepted, and a contract was made between the board and Hoover, who at the time was acting for the defendant bridge company, and took the contract in his own name for convenience only. The contractor was required "to furnish all metal work * * * and all other materials, and to construct and complete, ready for travel, a bridge * * * to be built in accordance with the specifications," for which the contractor was to receive, when the work was completed and accepted, the sum of $1,800. The superstructure of the main central span was to be of wrought iron, supported at each end of its four corners by a metal tube about 30 feet in length and about 30 inches in diameter, to be filled with concrete; the idea being to support the superstructure upon four monolithic columns incased by metal sheeting. These columns in turn were to rest upon solid concrete foundations of sufficient depth to secure stable and unyielding support. The remaining seven spans were to be constructed of wood and supported upon wooden piles driven into the ground. So far as external appearances indicated, the bridge was built in substantial conformity to the requirements of the contract. Shortly after beginning work the board decided to lengthen the bridge by adding three additional bents or spans, each 16 feet long. A supplemental contract was made between the board and the contractor for the work. The additional spans, when completed, complied with the terms of the new...