O'Hara v. Laclede Gaslight Co.

Decision Date31 May 1912
PartiesO'HARA v. LACLEDE GASLIGHT CO.
CourtMissouri Supreme Court

Gaslight Company. From a judgment for plaintiff, defendant appealed to the St. Louis Court of Appeals, which court being unable to agree (131 Mo. App. 428, 110 S. W. 642), the case was certified to the Supreme Court. Reversed.

Seddon & Holland, for appellant. A. R. Taylor, for respondent.

GRAVES, P. J.

This cause reached this court upon a divided opinion of the St. Louis Court of Appeals. 131 Mo. App. 428, 110 S. W. 642. There are three opinions in the case, one affirming the judgment nisi, another concurring in such affirmance, but upon a slightly different course of reasoning, and one dissenting opinion, with the formal request for certification to this court as required by the Constitution.

The vital portions of the petition are:

"The plaintiffs, who are the father and mother of Francis Desmond O'Hara, who, at the time herein mentioned, was a minor and unmarried, state: The defendants, and each of them, are, and at the time herein mentioned were, corporations by virtue of the law of Missouri. That on the 12th day of July, 1903, Howard street at the place herein mentioned was an open public street within the city of St. Louis. That on said day there was placed on said street near house No. 2031 by the defendant Uffman Coal & Teaming Company for the defendant Laclede Gaslight Company a large iron gas pipe to be put under ground in said street for the purpose of conveying gas. That said gas pipe was placed on said street by defendant Uffman Coal & Teaming Company under a contract of employment with defendant Laclede Gaslight Company, and defendant Abbott-Gamble Constructing Company received said iron pipe on said street so placed for the purpose of laying same in said street under the contract of employment with defendant Laclede Gaslight Company. That said iron pipe as so placed upon said street by the defendant Uffman Coal & Teaming Company was upon an incline and uneven surface of said street, and was in such position as to roll from the place where so placed, and injure persons on said street, especially children, as defendants and each of them in the exercise of ordinary care would have known. * * * That defendant Abbott-Gamble Constructing Company received said iron pipe so placed on said street in said insecure condition. That it was the duty of the defendants and each of them to have caused said pipe so placed upon said street to be secured or propped to prevent its rolling and injuring persons on said street especially children, yet they negligently failed to do so, and left said iron pipe upon said street in such insecure condition, without props or fastening to prevent it from rolling. That said pipe as so placed upon said street was an attraction to children to be about same and play thereon, as defendants and each of them, in the exercise of ordinary care, would have known, yet they and each of them negligently left said pipe on said street in said insecure condition without props or fastenings to secure same. That on said day plaintiffs' said child with other children were attracted by said iron pipe to be on and about said pipe at play, and, when plaintiffs' said child was on or about said pipe at play, owing to said insecure, unpropped, and unfastened condition of said pipe, it rolled upon and so injured plaintiffs' child that it died from said injuries on said day. And plaintiffs aver that said negligent acts of the defendants directly caused and contributed to the injury and death of their child. And plaintiffs aver: That on the 17th day of September, 1903, they instituted an action in the circuit court of the city of St. Louis, having jurisdiction for the same cause of action as herein claimed. That said cause was removed by change of venue to the circuit court of St. Louis county, and that on the 19th day of June, 1906, in said court having jurisdiction of said cause plaintiffs suffered a nonsuit in said cause. That by the death of their son as aforesaid the plaintiffs have lost his services and care, to their damage in the sum of $5,000, for which sum they pray judgment."

The petition is thus fully set out because a question as to the nature of the cause of action therein stated is made in the briefs, as well as in the dissenting opinion. Whilst originally the suit was against three defendants, yet by voluntarily dismissing as to two of them the plaintiffs can proceed as below as against the Laclede Gaslight Company alone, and it, of course, is the sole appellant. The Laclede Gaslight Company, being desirous of putting in gas mains in certain named streets in the city of St. Louis, entered into two contracts, one with the Abbott-Gamble Constructing Company, which company was to put the mains into the ground, and one with the Uffman Coal & Teaming Company, which company was to haul the mains to the ground. The latter contract becomes material and reads: "Agreement entered into this 22d day of April, 1903, between the Uffman Coal & Teaming Company, party of the first, and the Laclede Gaslight Company, party of the second part, both of St. Louis, Mo., witnesseth: 1st. The party of the first part hereby agrees to haul such quantities of cast iron from cars to streets or lots designated by the party of the second part, or from storage lots to streets, and to distribute such pipe along the streets as required by the second party. 2d. The quantities of pipe to be delivered under this contract shall not be less than eighty tons per day if the second party requires that amount. 3d. The first party to unload cars promptly and to protect the second party from all demurrage charges growing out of detention of cars in the railroad yards from any cause whatever, provided that not more than five cars are placed on track for unloading in one day. 4th. The party of the first part to be responsible for any damage to pipe in unloading or delivering to lot or the street. 5th. In consideration of the above the party of the second part hereby agrees to pay the party of the first part one dollar and forty-five cents ($1.45) per ton of 2,000 pounds for all pipe delivered herein provided. Payments to be made on the 10th of each month for all pipe delivered the previous month. In witness whereof the parties hereto have subscribed their names the day and year above written."

Other facts are well stated by the St. Louis Court of Appeals thus: "This action is to recover damage for the death of plaintiffs' minor son, Francis Desmond O'Hara, alleged to have been caused by the negligence of defendant. Pending the suit in the circuit court the father of the deceased, Dennis O'Hara, died, and the cause was revived in the name of Annie O'Hara, his mother. The action was dismissed as to all the defendants except the Laclede Gaslight Company, and was prosecuted to a final judgment against said company, from which judgment it appealed. The testimony shows defendant is a corporation engaged in the business of furnishing and distributing gas for illuminating and fuel purposes in the city of St. Louis, and had a contract with a construction company to lay underground gas pipes on Howard street in said city. It appears the gas company undertook to deliver the pipes to be laid under the street, and to that end contracted with the Uffman Coal & Teaming Company to haul the pipes from cars and deliver them to it on such streets as it should direct. Plaintiff resided with her family at No. 2031 Howard street, near a brewery stable. The house and stable are on the north side of the street where the pipes were being laid. The street is unimproved. From the north line to its center there is a downgrade of about 2½ feet. From the center south to the south line of the ground is level. On July 17, 1903, the teamsters of the Uffman Coal & Teaming Company delivered three or four gas pipes on the north side of Howard street, unloading...

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