Gerber v. Kansas City

• Decision Date: 10 June 1924
• Docket Number: No. 24224.,No. 23564.,23564.,24224.
• Citation: 263 S.W. 432,304 Mo. 157
• Parties: GERBER v. KANSAS CITY et al.
• Court: Missouri Supreme Court

263 S.W. 432

304 Mo. 157

GERBER v. KANSAS CITY et al.

No. 23564.

No. 24224.

Supreme Court of Missouri, Division No. 1.

April 7, 1924.

Opinion Modified and Motion to Modify Denied June 10, 1924.

Appeal from and Error to Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by William Leroy Gerber, by his next friend, William L. Gerber, against the City of Kansas City, Mo., the W. D. Boyle Construction Company, and others. From that portion of a judgment denying relief against the city and the sureties on the contractor's bond, plaintiff appeals; and to review that part of the judgment for plaintiff against the contractor, the defendant contractor brings error. Reversed and remanded as to defendant city, and affirmed as to other parties.

Atwood, Wickersham, Hill, Levis & Chilcott, at Kansas City, for appellant and defendant in error.

McCune, Caldwell & Downing, of Kansas City, for plaintiff in error.

John B. Pew and flu M. Lee, both of Kansas City, for respondent Kansas City.

Ball & Ryland, of Kansas City, for respondents United States Fidelity & Guaranty Co. and another.

LINDSAY, C.

The proceeding here upon appeal and the proceeding upon writ of error arise out of the judgment, diverse in effect, rendered by the circuit court in the suit of William Leroy Gerber, by his next friend as plaintiff, and against W. D. Boyle Construction Company, Kansas City, United States Fidelity & Guaranty Company, and J. L. Cross, as defendants, to recover damages for injuries sustained by plaintiff, and alleged to have been caused by the negligence of the Construction Company and its employees, and also by the negligence of the city.

The Boyle Construction Company contracted with Kansas City to construct a district sewer along a portion of Prospect avenue in Kansas City. On the 7th day of October, 1919, an instrument constituting a contract and bond for the construction of the sewer was executed by the construction company, as party of the first part, by the Fidelity Company and J. L. Cross as sureties, parties of the second part, and by Kansas City, party of the third part.

On the 11th day of February, 1920, the plaintiff, then about 12 years of age, and residing with his father at 5611 Prospect avenue, picked Up a fuse with an explosive cap attached, of the kind used by the construction company in blasting, and found by the boy in and upon the dirt thrown out from the excavation made for the sewer, and near the front of his place of residence. In handling this fuse for his own purposes he caused the cape to explode, whereby he was severely injured, and the suit followed. Upon the trial the court, under the pleadings and the evidence, directed a verdict for the city, and also for the sureties. From the judgment rendered upon the verdict so returned, the plaintiff has appealed. A verdict was returned for plaintiff against the construction company in the sum of $10,000, and from the judgment thereon the construction company prosecutes its writ of error. The proceedings have been consolidated for hearing and determination.

The petition alleges that the contract or bond was executed "for the use and benefit of Kansas City and plaintiff and all persons sustaining injuries and damage resulting from and through negligence and carelessness in the performance of said undertaking," and that thereby "said "defendant construction company and said defendant J. L. Cross and said defendant surety company undertook and bound themselves to pay all damages accruing to plaintiff or any other persons for personal injuries or damage to property occurring from said undertaking or from negligence in performing said work." It sets out certain provisions of the contract relied upon, which, with some others, will be noticed further on.

The petition alleges that, pursuant to said employment and to the contract or bond, the "defendant Kansas City, by and through its servant and agent, said defendant construction company, and the construction company, pursuant to said employment," proceeded to do the work, and in excavating used large quantities of fuses, caps, and explosive agencies, and negligently allowed large quantities of these to be and remain in the street, about the place of work, and thereby rendered said street dangerous and highly unsafe to children and other persons; that the district along the street was thickly populated, and many children, including plaintiff, were accustomed to play about said street and place of work, and that the leaving of said explosive agencies in the manner alleged was a private and public nuisance. It charges that the "presence of the dangerous explosives and said fuse and cap and the dangerous condition of the same and of said street existed at said time and long enough prior thereto for defendants, and each of them, by the exercise of ordinary care, to have known of all of said facts, and to have, by the exercise of ordinary care, removed said danger and made street reasonably safe before said injury, but defendants negligently and carelessly, and with joint negligence and carelessness, and in violation of their legal duties and obligations herein set out, wholly failed and omitted so to do."

It charges that the defendant construction company was an insolvent and irresponsible corporation, "of habitually reckless habits in performing its work, and wholly incompetent to do said work with reasonable safety to the public," and that the defendant city at the time of making the contract and throughout its performance so knew, or by the exercise_ of ordinary care could have known. It charges that the city maintained supervision over the manner of doing the work, and in regard to the safety of the public, and supervision over the manner of handling said explosive agencies used in blasting, a character of work alleged to have been "attended with great danger to others and to the public;" alleged plaintiff's inexperience and ignorance of the dangerous character of the fuse and cap found by him, and that his injuries resulted from the negligent acts and omissions of defendants construction company and Kansas City, their servants and agents, and that they and defendant sureties are jointly liable for the same. The answer of the construction company was a general denial, as was the answer of the sureties. The city pleaded the contributory negligence of plaintiff in addition to its general denial

Under the plaintiff's case as presented the several defendants sustain different relations, and the contentions made require consideration appropriate to the several relations sustained; but, since the construction company is the agency most directly involved, and since also the construction company is earnestly insisting here that its peremptory instruction in the nature of a demurrer to the evidence should have been given, a review of the evidence bearing directly on the manner in which plaintiff was injured is required.

Work on the sewer was begun about the middle of November, 1919, and continued until the latter part of December; 1919, when the work was suspended on account of freezing weather, and remained so until after the time plaintiff was injured. Prospect avenue runs north and south, and the sewer extended from a point north of Fifty-Sixth street south to Fifty-Ninth street. The ditch or excavation was along the east side of the street, in the space between the sidewalk and the' curb. The plaintiff's father lived on the east side of the street, and a driveway extended along the south side of the residence to the street. At the time plaintiff was injured the open sewer ditch and the embankments of dirt on either side extended along immediately in front of plaintiff's home, and throughout the length of the block. Dirt and rock from the excavation were piled along the east or inner side of the ditch so as to cover in places the sidewalk, and extended up to the rock wall which constituted the property line. There was a pile of dirt over the sidewalk and extending up to the rock wall, immediately south of the line of the driveway. The fuse and cap by which plaintiff was injured was found by him partly sticking out of this pile of dirt, which was about 2½ feet high, it was found about a foot from the rock wall. Upon the occasion under consideration the plaintiff, playing with a little wagon coasted down the driveway. The guiding handle of his wagon was or became loose. The plaintiff pulled the fuse out of the dirt pile to use it in tying the handle of his wagon. The fuse was a little smaller than a pencil, and had somewhat the appearance of a piece of rope, and was about 15 inches long. About one-half of it was sticking out of the dirt. The cap, about VA inches long, was on the exposed end. The plaintiff referred to it as "a rope with a piece of copper on the end."

The cap interfered with his purpose, and he undertook to remove the cap with his pocket knife, and the explosion resulted. This fuse had been sticking out of the pile of dirt for approximately two months, according to the testimony of the plaintiff's father, but plaintiff himself said he was not positive he had seen this one before. Plaintiff's father testified that while the work of excavation was going on he had been obliged several times to shovel dirt and rock out of the driveway entrance, and that he had seen the fuse in question sticking out of the dirt, and saw it afterward as he would drive his car into the driveway; that it was covered with snow part of the time; that he did not remove it, and said nothing about it to any one. The testimony shows that there were or had been many fuses or pieces of fuse scattered along the line of the work, but that nearly all of these were fuses whose caps had been exploded. The testimony of the plaintiff is fairly definite that he only saw two having a cap—the one which injured him and the one upon which he "rammed" his heel—found near Fifty-Sixth street. Another witness, a boy of 14 living near...