Horner v. Nicholson

• Decision Date: 31 March 1874
• Citation: 56 Mo. 220
• Parties: WILLIAM H. HORNER, Administrator of PATRICK MCDONOUGH Respondent, v. DAVID NICHOLSON, Appellant.
• Court: Missouri Supreme Court

56 Mo. 220

WILLIAM H. HORNER, Administrator of PATRICK MCDONOUGH Respondent,

v.DAVID NICHOLSON, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Geo. P. Strong, for Appellant.

W. H. Horner, for Respondent.

I. Defendant was liable for any injury resulting to plaintiff from the dangerous manner of erecting the buildings, if the falling thereof occurred either from the inherent danger attending the use of the old wall and floors as directed in the contract, or from the doing of the extra work, or day's work, as done, or directed, or permitted, by defendant or his agents, in a careless, dangerous or negligent manner. (Shearm. & Red. on Neg. [2d Ed., 1870], 98; City of St. Paul vs. Steitz, 3 Minn., 297; Storrs vs. Utica, 17 N. Y., 104; Ellis vs. Sheffield Gas Co., 2 Ellis & B., 767, [cited in Shear. & R. on Neg., p. 106, N. 3]; Hill. on Torts, [3d Ed., 1866], 423, § 3; 437, §§ 11, 12, 13; 445, 446, § 14; Garretzen vs. Duenckel, 50 Mo., 111, citing Howe vs. Newark, 12 Allen 49; Thames Steamboat Co. vs. Hous. R. Co., 24 Conn., 53, 55; Gregory vs. Piper, 17 Eng. C. L., 455; O'Rourke vs. Hart, 7 Bosw., 513, 514; Gilbert vs. Beach., 4 Duer., 430; Carman vs. Steubenville & R. Co., 4 Ohio, St., 416-17; Hill. on Torts, Vol. 1, [3d Ed.] p. 116 et seq., §§ 38, 39, 42, 47.)

NAPTON, Judge, delivered the opinion of the court.

This action was to recover damages alleged to have been occasioned by the falling in of a floor and wall in a building which the defendant was putting up at the corner of Fifth and Walnut Streets in the City of St. Louis. The plaintiff was injured by the fall of this wall and floor, and alleges that it was occasioned by the unskillful, negligent and careless construction of the building, under the directions of defendant or his agents.

The defenses set up in the answer were of two kinds, first, that the work was good and substantial and safe and not done in the careless or negligent manner alleged, and second, that if the work was insecure, its insecurity arose from the carelessness of contractors or their employees, and occurred after the defendant had let out the entire work to different contractors, to be done in conformity to certain plans and specifications furnished by his architect, and that after this his responsibility for the work ceased.

It appears, that in the Summer of 1868 the defendant purchased the church building and parsonage attached thereto at the corner of Fifth and Walnut, with a view to convert it into a large business house now called “The Temple;” that in the course of the Summer months, he caused the south wall of the church to be taken down, at least partially, and an iron front substituted, and he also had the north and south walls of the parsonage removed, and the lower floor raised two or three feet, so as to be on a level with the proposed floor of the church building, and the second floor raised, and the joists of course removed from their original position and placed in the west wall in holes cut for that purpose, also a new wall of 9 inches, built up against the old west wall of the parsonage building, up to the second floor; and he intended to have it fastened into the old wall by anchors, for the reception of which holes were also perforated in the old wall. All this work was done, as the plaintiff alleges, and attempts to prove, by men employed by defendant, and before any contracts were made; though there is no proof to the contrary on this point.

The disaster occurred a day or so after this nine inch wall was completed, and whilst the west wall was left standing some eight or ten feet above the second floor. The contracts were all designed to authorize and require the contractor to make use of the old walls and other materials, so far as they were safe and proper, of the safety and propriety of which the architect was to judge. The defendant sought to establish that the west wall of the parsonage was sound and strong and better than a new one; that the changes in the floor and joists did not diminish or impair its strength; that the falling of the floor and wall was occasioned by the removal of a prop or brace by one of the carpenters employed by the contractor, and for which defendant was in no wise responsible.

Upon this point the evidence was conflicting. Whether the old wall was a good and sound one, whether the removal of the joists contributed to weaken it, whether the addition of a new nine inch wall to it operated to drag it down-- whether the only cause of its falling was the removal of a prop under the joists--are questions of fact, which the jury were more competent to decide than we are.

The testimony of the defendant was mainly directed to throw the responsibility of the downfall of the floor and wall upon an employee of one of the contractors after the defendant had ceased to have any control over the work, and had turned over the work to the contractors. The accident certainly occurred after this--but if the defendant's plans of re-building, as recommended by his architect, required the use of materials and structures that were unsafe, his responsibility, for any injury accruing by reason of such plans, was not transferred to the contractors.

The instructions given were as follows: Instructions for plaintiff--No. 1:

The jury are instructed, that the fact, that the building in question was built under contracts between defendant and other parties, will constitute no defense to this action, if the jury find from the evidence, that the said building fell upon and injured plaintiff, without negligence or fault on his part, and that the falling thereof was occasioned by its construction in accordance with certain specifications and plans contained in said contracts, and that the manner of building the same, as required in said plans and specifications, was a dangerous and negligent manner. And in determining whether the manner of building the said building, as required or permitted by said plans and specifications, was a dangerous and negligent manner, the jury should consider the materials to be used and the...