Huber v. Ehlen

• Decision Date: 10 July 1923
• Docket Number: No. 17881.,17881.
• Citation: 253 S.W. 184
• Parties: HUBER v. EHLEN.
• Court: Missouri Court of Appeals

253 S.W. 184

HUBER v. EHLEN.

No. 17881.

St. Louis Court of Appeals. Missouri.

July 10, 1923.

Appeal from St. Louis Circuit Court; Wilson A. Taylor, Judge.

"Not to be officially published."

Action by Andrew Huber against Edward C. Ehlen. Judgment for plaintiff, and defendant appeals. Affirmed.

Charles E. Morrow, of St. Louis, and Samuel M. Rinaker, of Chicago, Ill., for appellant.

Earl M. Pirkey, of St. Louis, for respondent.

DAVIS, C.

Action for negligence in throwing some hard material from a building, causing it to drop on plaintiff. The circuit court jury returned a verdict for $2,000 in favor of plaintiff, on which judgment was entered, and from which defendant appeals.

I. The trial court refused to give defendant's instruction in the nature of a demurrer to the evidence. It is charged that the record is void of legal evidence on which to base the verdict and judgment, and that they are unsupported by the evidence. Of these two assignments of error defendant complains, and, as one necessarily comprehends the other, we discuss them as one. To do so a résumé of the evidence is called for.

On February 4, 1921, plaintiff, a bricklayer employed by Fruin-Colnon Contracting Company as foreman, in pursuance of his duties, was working on the south wall of a so-called old building in the areaway at the Rallston Mills at Eighth and Gratiot streets, walling up an opening. The deposition of defendant offered by plaintiff as an admission shows that the defendant was the subcontractor under Fruin-Colnon Contracting Company doing the plastering work on the aforesaid building, and on the morning of February 4, 1921, left Mr. Bremrich in charge of the work. Defendant's brother was doing the plastering work, a part of his duty being to clean up the rubbish and dispose of it in some way. Plaintiff testified that while working there some one threw plaster, hitting, cutting, and bruising him on the head, and knocking him senseless; that at that time there was no one in the building but the plasterers, Walter Ehlen, and the foreman. During the cross-examination of plaintiff by defendant the following occurred:

"Q. Now, Mr. Huber, you were working there, and somebody threw some lime and plaster out of the window, didn't they? A. Yes, sir. Q. And a piece of it hit you on the head? A. Several pieces. Q. Now, where did it hit you on the head? A. Right across the head here (indicating)."

Walter Ehlen was made a party defendant by plaintiff, but at the close of the whole case the cause was dismissed as to him. It is contended that "the admission and declarations of Walter Ehlen (which we do not find it necessary to recite herein), admitted in evidence while he was a party, were no evidence against defendant Edward C. Ehlen." That contention we need not decide, and, for the purposes of this discussion, his admission and declarations are out of the case, for we think the history of the evidence, as narrated above, is sufficient to fix defendant's legal responsibility.

The above evidence, that defendant was in charge of the plastering work as subcontractor, that, while plaintiff was lawfully working, some one threw some lime and plaster out of the window or from the building, hitting him on the head, and that no one but the plasterers, Walter Ehlen and the foreman, employed by defendant, and doing the work there, was at that time in that building, unquestionably furnishes sufficient proof to make defendant's liability a matter for the jury's inquiry. While plaintiff stated that he did not know, as a matter of fact, who threw that bucket of lime, and that he did not see anybody throw it, defendant nevertheless tried the cause on the assumption that some one did throw some lime and plaster out of the window or from the building, and, as defendant's employés, according to the evidence, were the only ones within that building, the evidence is not lacking in that respect. There is plenteous circumstantial evidence to show that either Walter Ehlen or the...