Fink v. Missouri Furnace Co.

• Decision Date: 30 April 1884
• Citation: 82 Mo. 276
• Parties: FINK v. THE MISSOURI FURNACE COMPANY, Appellant.
• Court: Missouri Supreme Court

82 Mo. 276

FINK

v.THE MISSOURI FURNACE COMPANY, Appellant.

Supreme Court of Missouri.

April Term, 1884.

Appeal from St. Louis Court of Appeals.

REVERSED.

Henry Hitchcock, for appellant.

The question whether the relation which exists in a given case is that of master and servant, or of an independent contractor, does not depend upon whether the employer retains the power of terminating the work, or of directing it to be carried on at this or that place (if the place where it is carried on be indifferent) but depends upon the question whether such employer retains control, by the terms of the contract, over the mode and manner of doing the work. If it appear that the contract merely requires that the person employed thereunder shall bring about a given result by his labor, the manner of applying that labor being left to his own discretion, and his compensation being regulated by the results accomplished, then it is an independent contract of employment, and not a contract of service. Morgan v. Bowman, 22 Mo. 538; Clark v. Railroad Co., 36 Mo. 218; Hilsdorf v. St. Louis 45 Mo. 98, 99; 2 Thompson on Negligence, p. 899, § 22; Harrison v. Collins, 86 Pa. St. 153; Linton v. Smith, 8 Gray 147; Hilliard v. Richardson, 3 Gray 349; DeForrest v. Wright, 2 Mich. 368; Steele v. Railway Co., 32 Eng. Law and Eq. 366; Storrs v. Utica, 17 N. Y. 107; Pack v. Mayor, 4 Seld. 222; Milligan v. Wedge, 12 A. & E. 337. It was proved that the excavation was made upon the private property of the defendant, for a lawful purpose, and that it was at such a distance from the public highway that no person passing over the highway would be endangered thereby. Under these circumstances, it has been repeatedly decided and finally settled by this court that the owner of an unenclosed lot, whether in an open prairie or within the limits of an incorporated city, is not liable for damages to animals or persons trespassing thereon by reason of an unguarded pit or excavation upon said lot into which they fell. Hughes v. Railroad Co., 66 Mo. 326; citing Knight v. Abert,6 Pa. State, 473; affirmed in Turner v. Thomas, 71 Mo. 597. The cases in which an apparent exception to this doctrine is asserted in respect of injuries resulting to children trespassing upon private grounds, rest invariably upon the further proof or assumption that the defendant did know, or had good reason to believe, under the circumstances of the case, that children would resort to said premises, and also, that the absence of safeguards or preventive means they would be injured thereby. Stout v. Sioux City, etc., R'y Co., 2 Dillon, 298; affirmed in Railway Co. v. Stout, 17 Wall. 657, 662; Keffe v. Railroad Co., 21 Minn. 207; Hydraulic Co. v. Orr, 83 Pa. St. 332; Boland v. Railway Co., 36 Mo. 490; and see 2 Thompson on Negl., p. 1196, note 6. The court of appeals (10 Mo. App. 69, 70) erred in holding that the defendant was under a duty either to prosecute the work of excavating in a different manner than by undermining, or else to maintain a fence or other safeguard against trespassing children, and that Stevenson's conduct in partially undermining said bank, and leaving it in that condition when he went away to deliver a wagon-load of sand, was culpable negligence imputable to the defendant company. Straub v. Soderer, 53 Mo. 42; Hughes v. Railroad Co., 66 Mo. 326; Turner v. Thomas, 71 Mo. 596; White v. Phillips, 15 Com. B. (N. S.) 245; Sweeney v. Old Colony, etc. Railway Co., 10 Allen 372: 1 Thompson Neg., p. 303. The cases concerning children chiefly relied on by the court of appeals, were cases where the child itself was the plaintiff and not actions by the surviving parent for statutory damages. Railroad v. Stout, 17 Wall 657; Stout v. Railroad Co., 2 Dill. 294; Keffe v. Railway Co., 21 Minn. 207; Hagan's Petition, 5 Dill. 96. The court of appeals erred in its ruling on the question of contributory negligence, in holding that the evidence did not warrant the conclusion of the circuit court, that the plaintiff herself was guilty of contributory negligence, and the court of appeals, likewise erred in holding that the question of contributory negligence should have been submitted to the jury. Stillson v. Railroad Co.,67 Mo. 674; Waite v. Railroad Co., 96 Eng. C. L. 728; Koons v. Railway Co., 65 Mo. 592; Boland v. Railway Co., 36 Mo. 490; Maher v. Railroad Co., 64 Mo 275; Owens v. Railroad Co., 58 Mo. 393. The question of contributory negligence is a question for the jury only where either (1) the facts are disputed, or (2) where there is a dispute or reasonable doubt as to the inferences to be drawn from undisputed facts. Nagel v. Railway Co., 75 Mo. 665 and cases cited; Wyatt v. Citizens' R. R. Co., 55 Mo. 489, and cases cited. In this case there was no dispute about the facts. If the plaintiff's contention, which indeed is the very foundation of her case, that the sand bank was at once attractive and dangerous, be true, it is also true that her own negligence in permitting the child to go there under her very eyes, was the cause of its death.

Klein & Fisse and O. G. Hess for respondent.

( a) Where a land-owner knows, or has reason to know, that his premises are attractive to children, so that they are likely to resort thereto, and that in consequence of his own acts thereon, children who enter upon the premises are exposed to danger, he is bound to use reasonable care to protect them against that danger; and if, as a result of his failure to exercise such care, a child, although trespassing at the time, suffers injury, the child, or its representatives, may maintain an action against him to recover damages for such injury. Boland v. Railway Co., 36 Mo. 484, 490; Frick v. Railway Co., 75 Mo. 542; Nagel v. Railway Co., 75 Mo. 653; Stout v. Railroad Co., 2 Dill. 294; s. c., sub. nom., Railroad Co. v. Stout, 17 Wall. 657; Keffe v. Railroad Co., 21 Minn. 207; Kansas City R. R. Co. v. Fitzsimmons, 22 Kas. 686; Whirley v. Whitman, 1 Head (Tenn.) 610; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Birge v. Gardiner, 19 Conn. 507; Lynch v. Nurdin, 1 Q. B. 29; Clark v. Chambers, 3 Q. B. Div. 327, 339. ( b) Whether in any given case the owner has exercised due care, is a question for the jury. Railroad Co. v. Stout, 17 Wall. 657; Lane v. Atlantic Works, 100 Mass. 104; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Mullaney v. Spence, 15 Abb. Pr. (N. S.) 319; Kansas City R. R. Co. v. Fitzsimmons, 22 Kas. 686; Boland v. Railway Co., 36 Mo. 484, 491; Callahan v. Warne, 40 Mo. 131, 136; Norton v. Ittner, 56 Mo. 351; Mauermann v. Siemerts, 71 Mo. 101; Nagel v. Railway Co., 75 Mo. 653. It is for the jury to determine to what extent the plaintiff's negligence, if any existed, contributed to the injury; and the court is not justified in withdrawing the question from their consideration, except in cases where the evidence clearly shows that the injury is attributable solely to the plaintiff's want of care. Morrissey v. Wiggins Ferry Co., 43 Mo. 380; O'Flaherty v. Railroad Co., 45 Mo. 70; Smith v. Railroad Co., 61 Mo. 588; Dale v. Railway Co., 63 Mo. 455; Frick v. Railway Co., 75 Mo. 542. The relation existing between Stevenson and the defendant was that of master and servant. Morgan v. Bowman, 22 Mo. 538; Darmstaedter v. Moynahan, 27 Mich. 188; Whitney v. Clifford, 46 Wis. 138. Consequently the defendant is responsible for his acts upon the premises, if they are of such a character as would justify a jury in finding that they were negligent. But even if Stevenson was not a servant, the defendant is liable. It cannot avoid its legal duty by permitting irresponsible persons, over whose actions it does not reserve any control, to endanger the lives of children, innocent of wrong, by the creation on its property of such traps and fatal agencies as was shown in this case.

NORTON, J.

This suit was instituted in the circuit court of the city of St. Louis, to recover $5,000 statutory damages for the death of plaintiff's son, about four years old, alleged to have been occasioned by the negligence of defendant. Upon a trial had in said court, at the close of the evidence the court, at defendant's instance, instructed the jury that, under the evidence, plaintiff could not recover; whereupon plaintiff took a nonsuit with leave to move to set the same aside, and her motion made in that behalf being overruled, the cause was taken by writ of error to the St. Louis court of appeals, where the judgment of the circuit court was reversed and the cause remanded, and from this judgment defendant prosecutes his appeal to this court.

It appears from the record, that defendant was the owner of the lot on which the accident, resulting in the death of plaintiff's child occurred; that the lot was located in Carondelet in the city of St. Louis, and was bounded on the north by St. Dennis street, on the east by an alley, on the south by a lot belonging to one Williams, on which he had a house fronting on Seventh street, which street was on the west of defendant's lot; that said lot was about 120 feet deep eastwardly from Seventh street and fronted on said street between 75 and 100 feet; that the natural grade of the lot was such that next to the Williams lot, the ground was higher by seven or eight feet than it was at St. Dennis street, and that neither one of said streets was macadamized or curbed; that there were quite a number of houses in the vicinity of said lot which were occupied by families with a number of children; that for several years previous to the accident, a colored man by the name of Stevenson had been hauling sand from said lot for the use of defendant in their furnace, some distance from the lot; that the soil of said lot consisted of a layer of loam on top two or three feet in depth, underneath which was the sand that said Stevenson had been engaged in digging and hauling; that the method pursued by said Stevenson in procuring the sand, was such as to cause the superincumbent soil to fall of its own weight; that...