Isnard v. The Edgar Zinc Company

• Decision Date: 12 February 1910
• Docket Number: 16,335
• Citation: 106 P. 1003,81 Kan. 765
• Parties: DELLA ISNARD, Appellee, v. THE EDGAR ZINC COMPANY, Appellant
• Court: Kansas Supreme Court

106 P. 1003

81 Kan. 765

DELLA ISNARD, Appellee, v. THE EDGAR ZINC COMPANY, Appellant

No. 16,335

Supreme Court of Kansas

February 12, 1910

Decided January, 1910.

Appeal from Montgomery district court; THOMAS J. FLANNELLY, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. INSTRUCTIONS--Exceptions Not Sufficiently Specific. Where instructions are given to a jury in numerous paragraphs involving several propositions, and the only exception to any or the whole of such instructions is the following: "To each and every instruction given by the court to the jury adverse to the defendant, and to each and every part thereof and to the instructions as a whole, the defendant at the time duly excepted and excepts"; held, that this exception amounts only to a general exception, and is insufficient to challenge the attention to any specific paragraph, and insufficient to bring to the consideration of this court any separate paragraph, and will not avail as an exception unless the whole charge is erroneous or unless the charge in its general scope or meaning is erroneous.

2. NEGLIGENCE--Failure to Furnish Safe Place to Work--Personal Injury--Employee--Independent Contractor. Where the owner of a building contracts with another to make therein condensers and tiling, at a stipulated price per hundred for the condensers made and a stipulated price per hundred pounds for tiling made, the owner to furnish the building, machinery, tools, molds and all material for the making of such articles, which are to be made according to the specifications of the owner, the other party to the contract to do the work and employ such assistants as he may need, to be paid by him out of such gross price, but to have no control over the building or place where the work is to be done, held, that the owner is responsible to the next of kin if the building is blown up and the life of the contractor is lost through the negligence of the owner, and this whether the deceased be regarded as having been an independent contractor or an employee of the owner.

O. P. Ergenbright, for the appellant; Stanford & Stanford, of counsel.

S. D. Bishop, A. C. Mitchell, and T. E. Wagstaff, for the appellee.

OPINION

SMITH, J.:

The appellant was engaged in 1902, at Cherryvale, Kan., in the smelting of zinc from ores, and employed in and about the business natural gas, owned and operated its own gas plant, and had a number of accessory enterprises and a number of buildings for different parts of its work. It appears from the evidence that part of this business was manufacturing condensers and tile, and that it had a building for that special purpose. The building was one story high above the basement, which was five and one-half or six feet deep, and the building was about sixty-five by one hundred feet in dimensions.

Joseph Isnard, the husband of the appellee, at the time of the accident which resulted in his death was employed by the appellant to make condensers and tile. He was paid by the piece for making the condensers and by the hundred feet for making tile. The material, molds and tools to do the work were furnished him, and the place in which to work. He employed such assistants as he needed, and paid the assistants out of the price that he was paid for the product. It appears that he furnished only the manual labor.

In 1902 the appellant had laid a gas pipe, which ran about one foot below the surface, from some of its gas works across the site where the "condenser house" (as the building is called where the condensers and tile are made) was afterward built, about the year 1905. It seems that the site of the condenser house, after the laying of the pipe, had been buried with cinders and ashes, and perhaps clay and earth, so that although the basement, or cellar, had been excavated four or five feet the gas pipe was still about one foot below the surface, or floor, of the cellar.

On the morning of September 27, 1906, it was discovered that water was escaping from a hydrant in the condenser room, and had flooded the floor thereof to the depth of from one to three and one-half inches, and that the water was melting down the condensers that had been made and placed on the floor. To remove the water a large number of holes were bored through the floor, through which the water flowed into the basement, and from thence escaped through a drainpipe. The water falling upon the dirt floor of the cellar of course saturated it. Some workmen were sent to the basement to fix some steam pipes which were immediately under the floor covering the basement. One of the workmen carried a torch, and as he started to enter the basement through a manhole gas was ignited and an explosion occurred, which demolished the building, killing some workmen and so injuring Isnard that he died the following day.

After the explosion it was discovered that the gas pipe running under the building had rusted through; that the gas did not escape so long as the earth and clay above it were hard and compact, but that it immediately escaped upon the softening of the earth and clay by the water. Before the erection of this building the appellant had discovered that its pipes, laid at about the time this pipe was laid and in substantially the same kind of soil, were being injured by rust, and undertook to encase all of its pipes with cement to preserve them. But for some reason the superintendent or engineer of the appellant, who was attending to that business, forgot and overlooked the fact that the pipe in question had been laid, and it was not encased in cement. He testified that if he had known the pipe was there he would have torn it out and would not have erected the building over it.

The petition of the appellee, as next of kin, sufficiently alleged a cause of action on the ground of negligence of the appellant. The answer was a general denial and a plea of contributory negligence on the part of the deceased. The reply was a general denial. The case was tried to a jury, and judgment was rendered upon the verdict in favor of the appellee for $ 10,000 damages.

The evidence shows the facts as above recited, without contradiction....