Holman v. Clark

• Citation: 198 S.W. 868,272 Mo. 266
• Decision Date: 17 November 1917
• Docket Number: No. 17869.,17869.
• Parties: HOLMAN v. CLARK et al.
• Court: United States State Supreme Court of Missouri

198 S.W. 868

272 Mo. 266

HOLMAN v. CLARK et al.

No. 17869.

Supreme Court of Missouri. In Banc.

November 17, 1917.

Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Charles H. Holman against Patrick H. Clark and others. From an adverse judgment, defendant City of St. Louis appeals. Judgment reversed.

Charles H. Daues, Truman P. Young, and H. A. Hamilton, all of St. Louis, for appellant. James R. Van Slyke, of St. Louis, for respondent. A. E. L. Gardner, of Clayton, and John T. Fitzsimmons and Holland, Rutledge & Lashley, all of St. Louis, amici curiæ.

BLAIR, J.

The city of St. Louis appeals from an adverse judgment in an action instituted against it and others to recover damages for injuries to certain residences from an explosion of dynamite in the possession of a contractor who was constructing a sewer. Judgment went against the contractor, also, but it did not appeal. The finding for respondent was upon 12 counts, the first of which is typical of the rest, and alleged, substantially, that respondent owned certain realty and the buildings thereon, in St. Louis city; that certain defendants had contracted with the city to build a sewer; that the city, prior to letting the contract, had tested the ground along the line of the proposed sewer in order to ascertain the nature thereof and thereby discovered that in the process of construction it would be necessary to remove large quantities of rock by blasting near respondent's property; that the city knew, or had it exercised ordinary care could have known, that the use of high explosives would be necessary in order to remove the rock under the terms of the contract, and that the contractor would bring and store in or near the street in which the work was to be done quantities of high and dangerous explosives, and knew that portion of the city along the line of the proposed sewer was thickly settled and that the storing and using of said explosives necessary for the performance of the work under the contract would be "inherently dangerous" to persons and property in the vicinity of the proposed sewer, and that the city, during the progress of the work, knew, or by the exercise of ordinary care could have known, that the contractor was storing and using large quantities of dynamite, a high and dangerous explosive, in and near the city streets for the purpose of blasting rock in order to remove it, under the contract; that the contractor and other defendants, in the performance of the work, on November 18, 1910, and for a long time prior thereto, "used, kept, and maintained in the said city of St. Louis, near and upon a public street of said city of St. Louis, known as Canterbury avenue, and in the immediate vicinity of the property of plaintiff herein, high and dangerous explosives which were a menace and threatened danger to the persons and property in said vicinity, and that the keeping and maintaining of said high explosives in said city in said city street was an inherent danger and attended with danger to the persons and property in said vicinity, all of which facts plaintiff states were known to the city of St. Louis, or could have been known by the exercise of ordinary care;" that at the time it let the contract the city knew, or by the exercise of reasonable care could have known, that the contractor was inexperienced, unskilled, irresponsible, and incompetent to perform the contract work, and also knew, or in the exercise of ordinary care could have known, that the contractor was conducting the work in a dangerous manner, i. e., allowing quantities of dynamite to be collected and remain in a public street without any guard or watchman, and knew the contractor and other defendants had purchased dynamite, etc., for use in the sewer work, without making any affidavit as to the purpose for which it was to be used, in violation of the statute; that an ordinance of the city (pleaded) prohibited the keeping or storing of dynamite in the city in quantities greater than 30 pounds and the keeping of more than 25 pounds more than 30 minutes in a city street, and that the contractor, with the city's knowledge, violated this ordinance; that the defendants other than the city on November 18, 1910, and for a long time prior thereto kept and stored in or near Canterbury avenue, near respondent's property, high and dangerous explosives, which it was their duty to use a high degree of care to guard and safely keep and prevent danger by reason of the explosion thereof; that in "so keeping said dynamite and causing work to be done requiring the keeping of said dynamite in and near the city streets was an inherent danger and threatened danger to persons and property in said vicinity and more particularly to the property of plaintiff herein, and that on said date, said high and dangerous explosives did explode and as a result * * * plaintiff's property was damaged," etc. The other counts were based upon injuries from the same explosion to the properties of other persons who had assigned their causes of action to respondent Holman.

The city's answer consisted of (1) a general denial; (2) a plea of misjoinder; (3) a plea that contractor was an independent contractor; (4) a specific denial that the sewer contract required the bringing and storing in the street or elsewhere, near the property of respondent or of his assignors, "any large quantity of dynamite"; and (5) that the "explosion, if any, * * * did not occur in and was not incident to the performance of anything required to be done by the contract of this defendant with its said contractors, but occurred in a matter entirely collateral to the performance of said contract."

The briefs proceed upon the theory that the relation between the city and the corporation constructing the sewer was that of contractee and independent contractor. Respondent does not contend the relation was any other, and our attention has been called to nothing in the contract which discloses anything warranting a different conclusion.

The evidence tends to show the plans disclosed it would be necessary, in the construction of the sewer, to remove large quantities of rock, and tends to show that, in the circumstances, the only practicable method of removing such rock involved blasting operations, and that dynamite was customarily employed for such purpose, being the safest explosive available therefor. It further tends to show the contractor had installed in a shed erected in Canterbury avenue, near appellant's residence, a gasoline engine, equipped to operate an air compressor, a device employed in drilling into the rock in preparation for blasting; that a small gasoline tank was connected with the engine and directly supplied it with fuel, while a larger tank, containing a reserve supply of gasoline, was placed a few feet from the engine; that dynamite, in a box or boxes, once or twice previously had been...