Casey v. Wrought Iron Bridge Company

• Decision Date: 02 October 1905
• Parties: JOHN CASEY, Respondent, v. WROUGHT IRON BRIDGE COMPANY, Appellant
• Court: Kansas Court of Appeals

89 S.W. 330

114 Mo.App. 47

JOHN CASEY, Respondent, v. WROUGHT IRON BRIDGE COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

October 2, 1905

Appeal from Jackson Circuit Court.--Hon. Andrew F. Evans, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Haff & Michaels and L. W. McCandless for appellant.

(1) The bridge here in controversy was not a public nuisance: the builder of the bridge, therefore, cannot be charged in an action for nuisance with any liability to respond in damages for the injuries inflicted upon respondents by the collapse of the bridge. Tate v. Railroad, 64 Mo. 149, 155; 7 Am. & Eng. Ency. of Law (2 Ed.), 950; Smiths v McConathy, 11 Mo. 517, 522; Kirchgraber v Lloyd, 59 Mo.App. 59, 62; Cooley on Torts (2 Ed.) 670-671; Paddock v. Somes, 102 Mo. 226, 227; Transportation Co. v. Chicago, 99 U.S. (9 Otto) 635, 25 L. C. P. 336; Payne v. Railroad, 112 Mo. 6; Whitfield v. Carrollton, 50 Mo.App. 98; Thompson on Negligence, p. 1064, sec. 1188; Dickinson v. New York, 28 Hun 254, 256, 92 N.Y. 588; Campion v. Rollwagen, 43 A.D. 117; Babbage v. Powers, 130 N.Y. 281; Abbott v. Railroad, 83 Mo. 271; Benjamin v. Railroad, 133 Mo. 274, 283, 284; Matthews v. DeGroff, 13 A.D. 356; Anderson v. Caulfield, 60 A.D. 560; Stoetzele v. Swearingen, 90 Mo.App. 588; 21 Am. & Eng. Ency. of Law (2 Ed.), 701; 21 Am. & Eng. Ency. of Law (2 Ed.), 444; 4 Am. & Eng. Ency. of Law (2 Ed.) 927; Bielman v. Railroad, 50 Mo.App. 151, 154-155; Hastings on Torts, p. 225; Pach v. Geoffroy, 67 Hun 401, 143 N.Y. 661; Lamming v. Galusha, 135 N.Y. 239. (2) Respondents were neither parties nor privies to the contract whereunder the bridge here in controversy was erected; the builders of the bridge therefore owed no duty to respondents to build the bridge with care, or in accordance with the specifications of the contract providing for the erection of the bridge; for this reason, the builder of the bridge cannot be charged in an action for negligence with any liability to respond in damages for the injuries inflicted upon respondents by the collapse of the bridge. Roddy v. Railroad, 104 Mo. 234; Schade v. Gehner, 133 Mo. 252; Bank v. Ward, 100 U.S. 195, 25 L. C. P. 621; Zweigardt v. Birdseye, 57 Mo.App. 462; Mann v. Railroad, 86 Mo. 347; Gordon v. Livingston, 12 Mo.App. 267; Heizer v. Mfg. Co., 110 Mo. 605; Heaven v. Pender, L. R. 9 Q. B. Div. 302; (1883) L. R. 11 Q. B. Div. 503; Holland's Elements of Jurisprudence (9 Ed. 1900), p. 109; Bragdon v. Perkins-Campbell Co., 87 Fed. (3 C. C. A.) 109; Pollock on Torts (2 Ed.), p. 375, note E; Marquardt v. Engine Co., 122 Fed. (6 C. C. A.) 374; Winterbottom v. Wright, 10 M. & W. 109; Longmeid v. Holliday, 6 Exch. 761; Collis v. Selden, L. R. 3 C. P. Cos. 495; Railroad v. Mulholland, App. Cas. 216; Curtin v. Somerset, 140 Pa. St. 70; Necker v. Harvey, 49 Mich. 517; Daugherty v. Herzog, 145 Ind. 255; Sawyer v. Railroad, 38 Minn. 103; Burdick v. Cheadle, 26 Ohio St. 393; Burke v. De Castro, 11 Hun 354; Davidson v. Nichols, 93 Mass. (11 Allen) 514; Kahl v. Love, 37 N. J. L. 5; Safe Co. v. Ward, 46 N. J. L. (17 Vroom) 19; Williams v. Stillwell, 88 Ala. 333. (3) The bridge here in controversy was, when completed, accepted and approved by the board of county commissioners of Kingfisher county, and the bridge builder then relinquished to the county commissioners the possession and control of the bridge; respondents therefore cannot evade the general principle that no one not a party or privy to a contract can recover for a negligent violation thereof, and so cannot maintain an action for negligence, on any theory that the bridge here in question had not, at the time of its collapse, been accepted by the county commissioners. Wharton on Negligence (2 Ed.), chap. 1, Book 2, pp. 364-370; Boswell v. Laird, 8 Cal. 469; Losee v. Clute, 51 N.Y. 494; Read v. Fire District, 20 R. I. 574; Cross v. Koster, 17 A.D. 402; Smith v. Railroad, 201 Pa. St. 131; Fitzmaurice v. Fabian, 147 Pa. St. 199; Albany v. Cunliff, 2 N.Y. 165; Congregation v. Smith, 163 Pa. St. 561; Salliotte v. Bridge Co., 122 Fed. (6 C. C. A.) 378; Elliott on Roads and Streets (1890), pp. 21-23; Boggs v. Caldwell County, 28 Mo. 586; Dillon's Municipal Corp. (4 Ed.), secs. 300, 301; O'Malley v. Lexington, 99 Mo.App. 695; Walker v. Point Pleasant, 49 Mo.App. 244; New York v. Sheffield, 71 U.S. 189, 18 L. C. P. 416; Schenck v. Butler, 50 Mo.App. 108; Maus v. Springfield, 101 Mo. 613; Hill v. Sedalia, 64 Mo.App. 494; Baldwin v. Springfield, 141 Mo. 205; Downend v. Kansas City, 156 Mo. 60; Johnson v. St. Joseph, 96 Mo.App. 663. (4) The bridge here in controversy was not an "imminently dangerous" structure, and was not known to the bridge builder to be dangerous in any degree; respondents therefore cannot evade the general principle that no one not a party or privy to a contract can recover for a negligent violation thereof, and so cannot maintain an action for negligence, on any theory that the bridge was dangerous. Roddy v. Railroad, 104 Mo. 234; Heizer v. Mfg. Co., 110 Mo. 605; McCaffrey v. Mfg. Co., 23 R. I. 381; Thomas v. Winchester, 6 N.Y. 397; Loop v. Litchfield, 42 N.Y. 351; Losee v. Clute, 51 N.Y. 494; Burke v. De Castro, 11 Hun 354; Wright v. Canal Co., 40 Hun 343; Swan v. Jackson, 55 Hun 194; Knelling v. Mfg. Co., 88 A.D. 309; Vosburg v. Railroad, 94 N.Y. 374; Rice v. Smith, 171 Mo. 331; Bragdon v. Perkins-Campbell Co., 87 Fed. (3 C. C. A.) 109; Mill Co. v. Oil Co., 63 Fed. (7 C. C. A.) 400; Railroad v. Ballentine, 84 Fed. (7 C. C. A.) 935; Oil Co. v. Murray, 119 Fed. (7 C. C. A.) 572; Marquardt v. Engine Co., 122 Fed. (6 C. C. A.) 374; Bailey v. Gas Co., 4 Ohio Cir. Ct. Rep. 471; Zieman v. Mfg. Co., 90 Wis. 497; Talley v. Beever & Hindes, 78 S.W. (Tex. Civ. App.) 23; Curtin v. Somerset, 140 Pa. St. 70; Glynn v. Railroad, 175 Mass. 510; Davidson v. Nichols, 93 Mass. (11 Allen) 514; Norton v. Sewall, 106 Mass. 143; Peters v. Jackson Co., 50 W.Va. 644; Davis v. Guarnineri, 45 Ohio St. 470; Balm Co. v. Cooper, 83 Ga. 457; Bishop v. Webber, 139 Mass. 411; Langridge v. Levy, 2 M. & W. 519, 4 M. & W. 337; Lewis v. Terry, 111 Cal. 39; Woodward v. Miller, 119 Ga. 618; Slattery v. Colgate, 25 R. I. 220, 55 A. 639. (5) The giving of respondent's instruction which submitted to the jury the question of negligence or no negligence, without defining the term, was reversible error. Magrane v. Railroad, 81 S.W. (Mo. Sup.) 1158; Gessley v. Railroad, 26 Mo.App. 156; Goodwin v. Railroad, 75 Mo. 73; Yarnall v. Railroad, 75 Mo. 575; Ravenscroft v. Railroad, 27 Mo.App. 617; Gurley v. Railroad, 83 Mo. 445; Senate v. Railroad, 41 Mo.App. 295. (6) The verdict for each respondent was a general verdict covering two separate and distinct causes of action, and was therefore bad. Owens v. Railroad, 58 Mo. 386; Sturgeon v. Railroad, 83 Mo. 391; Speer v. Burlingame, 61 Mo.App. 75; Pomeroy's Remedies & Remedial Rights (2 Ed.), sec. 453, 455, 456, 519; Holland's Elements of Jurisprudence (9 Ed.), pp. 142-163; Maltbie v. Bolting, 6 Misc. 339; Lamming v. Galusha, 63 Hun 32; s. c., 135 N.Y. 239; Martin v. Petitt, 117 N.Y. 118; Brunsden v. Humphrey, 14 Q. B. Div. 141; Welsh v. Stewart, 31 Mo.App. 376.

J. C. Tarsney and C. F. Mead for respondents.

(1) If the appellant carelessly and negligently constructed the bridge in question and the plaintiff was injured by reason of such careless and negligent construction, and the bridge had not been accepted by the commissioners at the time of the injury, then the appellant was liable for such injuries whether it knew of such careless and negligent construction or not. Appellant was liable as the independent contractor in charge of the work. 1 Thompson's Com. on Neg., 685; Imp. Co. v. Rhoads, 116 Pa. St. 377, 382; Bast v. Leonard, 15 Minn. 305. (2) The bridge had not been accepted by the county at the time of the injury. It required a formal action in regular meeting on the part of the commissioners to constitute such an acceptance. O. K Statutes; 1797, App. Abst. 30; Medlin v. Platte Co., 8 Mo. 235; Milan v. Pemberton, 12 Mo. 598; Dennison v. St. Louis, 33 Mo. 168; Maupin v. Franklin Co., 67 Mo. 327-329; Riley v. Pettis Co., 97 Mo. 321; Reppy v. County, 47 Mo. 66; Johnson v. School Dist., 67 Mo. 319; Taylor v. Wayne, 25 Iowa 451; Kane v. School Dist., 48 Mo.App. 408; State ex rel. v. Sackett, 54 Mo.App. 202; State ex rel. v. Uray, 55 Mo.App. 653; State v. Lawrence, 77 S.W. 497; Murphy v. Albina, 22 Oregon 106; Railroad v. Comrs., 16 Kan. 310; State ex rel. v. Comrs., 36 Kans. 240; Williams v. Comrs., 28 Mont. 362, 72 P. 755; Phelan v. San Francisco, 6 Cal. 532-540; Taft v. Montague, 14 Mass. 282; Read v. Statuate, 87 Mass. 120; Pratt v. Swanton, 15 Vt. 147; Downend v. Kansas City, 156 Mo. 60-70. (3) If the appellant knowingly constructed the bridge in a manner which rendered it dangerous to those who might use it then it is liable in this case whether the bridge was or was not accepted by the county commissioners. Huser v. Mfg. Co., 110 Mo. 605, l. c. 617; Lewis v. Terry, 111 Cal. 39; Woodward v. Miller, 119 Ga. 618; Slattery v. Colgate, 25 R. I. 220; Schubert v. Clark, 49 Minn. 331; Huset v. Machine Co., 120 F. 865. (4) The bridge as constructed was a nuisance under the Oklahoma statute and under such statute anyone injured by such nuisance has an action therefor. Oklahoma Statute, par. 3433, 3434-3442 (see appellant's abstract, p. 30). (5) There was no prejudicial error in the giving in the instruction asked for by plaintiffs in which negligence was not defined for the reason that upon the appellant's evidence the plaintiffs were entitled to an instruction that the bridge was negligently constructed. Fullerton v. Fordyce, 121 Mo. 7; Fullerton v. Fordyce, 144 Mo. 528. (6) The respective second counts not duplications. Hill v. Railroad, 49 Mo.App....