O'Hara v. Laclede Gaslight Co.

• Decision Date: 14 April 1908
• Citation: 110 S.W. 642,131 Mo. App. 428
• Parties: O'HARA v. LACLEDE GASLIGHT CO.
• Court: Missouri Court of Appeals

110 S.W. 642

131 Mo. App. 428

O'HARA v. LACLEDE GASLIGHT CO.

St. Louis Court of Appeals. Missouri.

April 14, 1908.

1. MASTER AND SERVANT — DEATH OF THIRD PERSON — EMPLOYER'S LIABILITY.

A gas company is liable for the death of a child, killed by a heavy pipe, which was placed along the side of a street preparatory to being laid underground, and which rolled across the street through the negligent failure of the company which contracted with the gas company to distribute pipes, to block it, regardless of whether the contracting company bore the relation of independent contractor to the gas company; since it was the personal duty of the gas company, which had been licensed to temporarily obstruct the streets with its pipes, to properly guard and block them, to avoid injury to pedestrians and to children playing in the street.

2. MUNICIPAL CORPORATIONS — NEGLIGENCE OF LICENSEES — CONTRIBUTORY NEGLIGENCE — PIPE ROLLING IN STREET.

That plaintiff knew that heavy gas pipes placed along the side of a street, preparatory to being laid underground, were dangerous to children playing about them, and warned her nine year old son not to go near them, that, when knocked down and killed by a pipe rolling across the street, he was in the middle of the street, and that the pipe was started rolling by other children, and without his fault, refutes a charge of contributory negligence on the part of plaintiff or her son.

3. SAME — EXISTENCE OF STREET — PROOF — SUFFICIENCY.

That a street was named, that houses fronted on it and were numbered, and that a gas company was having gas pipes laid under it, showed that it was a public street.

4. APPEAL AND ERROR — REVIEW — HARMLESS ERROR — INSTRUCTIONS.

Though an instruction, in an action for negligently killing plaintiff's minor child, limiting plaintiff's recovery to compensation for loss of the child's services, is erroneous, since her right to recover was the same right the child would have had had he survived the injury, and her right was transmissible, the amount of her damage being a matter which should have been left to the jury, defendant cannot complain of the error.

5. MUNICIPAL CORPORATIONS — NEGLIGENCE OF LICENSEE — PIPE IN STREET — ACTS OF CHILDREN — EFFECT.

That a heavy gas pipe, placed in a street preparatory to being laid underground, was started rolling by children playing around it does not relieve the gas company from liability for the death of another child struck by it, where it was insufficiently blocked on slanting ground.

Goode, J., dissenting.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action for negligent death, by Annie O'Hara against the Laclede Gaslight Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The action is to recover damages for the death of plaintiff's 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. 2301 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 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 them in front and near the brewery stable. The pipes were about 2 feet in diameter, from 24 to 25 feet long, and weighed from 2,400 to 2,500 pounds. Francis Desmond O'Hara was nine years and a few months old, had attended school for two years, and was a strong, healthy, intelligent boy. Plaintiff's evidence tends to show the pipes were unloaded about 5:30 p. m., and were not blocked or otherwise secured. There were a good many children in the neighborhood, who played in the street and on the sidewalks every evening. On the evening the accident happened plaintiff sent her son to a bakery on an errand, and either on his way there or on his return, and while standing in the middle of the street, a gas pipe laying in front of the brewery stable was started rolling, by some boys playing on or about it. It rolled into the middle of the street, struck the O'Hara boy, knocked him down, rolled on him, and crushed his skull, causing his death. Plaintiff, Mrs. O'Hara, testified she knew the pipes were in the street, and children would play about them, and that both she and her husband cautioned their son to keep away from them. On defendant's behalf the evidence tends to show the pipes were all blocked by the teamsters who unloaded them, that they would not remain in place unless blocked, that the deceased and other children were playing about the pipes, jumping on and running around and over them, and that deceased was standing or sitting on the pipe when it started to roll, and fell in front of it. As a special defense the answer pleads contributory negligence on the part of the deceased, and also on the part of his parents.

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

BLAND, P. J. (after stating the facts as above).

1. The agreement for hauling the pipes, entered into between the Laclede Gaslight Company and the Uffman Coal & Teaming Company, is as follows: "Agreement entered into this 22d day of April, 1903, by and between the Uffman Coal & Teaming Company, party of the first part, and the Laclede Gaslight Company, party of the second part, both of St. Louis, Mo. Witnesseth: First. The party of the first part hereby agrees to haul such quantities of cast iron gas pipe 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. Second. 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. Third. 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 not more than five cars are placed on track for unloading in one day. Fourth. The party of the first part to be responsible for any damage to pipe in unloading or delivering to lot on the street. Fifth. In consideration of the above, the party of the second part hereby agrees to pay the party of the first part at the rate of one dollar and forty-five cents ($1.45) per ton of 2,000 lbs. for all pipe delivered as herein provided. Payments to be made on the tenth of each month for all pipe delivered the previous month." At the close of all the evidence defendant moved the court to instruct the jury that under the law and evidence plaintiff was not entitled to recover. The refusal to grant this instruction is assigned as error.

Defendant's contention is that the Uffman Company was an independent contractor for the delivery of the pipes and its servants were not defendant's servants, and for that reason defendant is not liable for their negligence in failing to block the pipes. It is argued that there is no testimony that defendant designated any place for the delivery of the pipes, or the particular pipe that rolled upon the O'Hara boy. The first clause of the contract provides that the Uffman Company should distribute the pipes along the streets as required by defendant. This clause of the contract bound the Uffman Company to deliver the pipes to such streets as defendant should designate, and distribute them along the streets as directed by defendant. It gave the defendant company the undoubted right to designate, not only the street upon which pipes should be delivered, but to say what number of pipes should be delivered upon any particular street, and the manner of their distribution, and in this respect left no independent judgment in the Uffman Company. In other words, the Uffman Company was obliged, under the contract, to deliver and distribute the pipe according to defendant's orders. The evidence shows that the Abbott-Gamble Contracting Company (the company having the contract to place the pipes underground) was laying gas pipes underground in Howard street for defendant at the time of the accident, and that the pipes were distributed on the street a little ahead of the excavation made by said company; and while there is no direct evidence to show defendant directed the Uffman Company to deliver the particular pipe where it was delivered, yet as defendant reserved the right to designate where the pipes should be distributed, the fair inference is that it exercised this right, and directed the Uffman Company to deliver pipes on the north side of Howard street and distribute them as they were distributed. Was the Uffman Company an independent contractor, as that term is understood in the law?

In Fink v. Missouri Furnace Co., 82 Mo., loc. cit. 283, 52 Am. Rep. 376, the Supreme Court adopted Judge Thompson's definition of an independent contractor, which is: "One who renders service in the course of an occupation, representing the will...