Jackson v. Butler

• Decision Date: 28 March 1913
• Citation: 155 S.W. 1071,249 Mo. 342
• Parties: JACKSON v. BUTLER et al. SAME v. UNIVERSAL ADDING MACH. CO.
• Court: Missouri Supreme Court

155 S.W. 1071

249 Mo. 342

JACKSON v. BUTLER et al.

SAME v. UNIVERSAL ADDING MACH. CO.

Supreme Court of Missouri.

March 28, 1913.

1. MASTER AND SERVANT (§ 330) — INDEPENDENT CONTRACTOR — PRESUMPTION AND BURDEN OF PROOF — RES IPSA LOQUITUR.

The fact that lockers taken out by an independent contractor during construction and leaned against a platform or runway in the rear of premises fell of their own accord and injured plaintiff, who was eating lunch on the platform, was presumptive evidence that they were dangerous.

2. MASTER AND SERVANT (§ 89) — MASTER'S LIABILITY — UNSAFE PLACE TO WORK.

It is the duty of a master to exercise ordinary care to furnish a servant with safe premises and places to work, such places not being restricted to the identical place of work but extending to means of egress and ingress, water-closets, and to all places about the premises known to the master to be used, or which might by ordinary care be so known to be used by servants; and where a servant was eating his lunch on a platform in the rear of the premises with the knowledge and implied consent of the master, and was struck and injured by a falling locker which had been taken out by an independent contractor during alterations, and leaned up against the platform, the master, in the absence of contributory negligence, was liable.

3. MASTER AND SERVANT (§ 89) — RELATION — SERVANT EATING LUNCH ON PREMISES.

The relation of master and servant subsists as to a servant who had but a short time for lunch and was in the habit of eating his lunch on a platform in the rear of the premises with the master's knowledge and implied consent.

4. LANDLORD AND TENANT (§ 165) — REGULATIONS — PLACE FOR WORK — DUTY OF EMPLOYER'S LANDLORD.

Rev. St. 1909, § 7857, providing that employers of five or more persons in a factory shall provide sufficient and separate closets for male and female employés, is limited to employers and has no application to the landlord of the employer.

5. MASTER AND SERVANT (§ 315) — INJURIES TO THIRD PERSONS — INDEPENDENT CONTRACTOR — LIABILITY OF OWNER.

The owner of property, employing a contractor, is liable for injuries to third persons where the contractor is his servant, where the injury was occasioned by the omission of some duty imposed upon him, where the acts performed create a public nuisance, and where he is bound by statute to do a thing efficiently, and an injury results from inefficiency.

6. MASTER AND SERVANT (§ 319) — INJURIES TO THIRD PERSONS — INDEPENDENT CONTRACTOR — NECESSARY CONSEQUENCES.

The owner of property, employing an independent contractor, is liable for injuries thereon to a third person, where the contractor's act is authorized by a contract necessarily producing the injury.

7. MASTER AND SERVANT (§ 320) — INJURIES TO THIRD PERSONS — INDEPENDENT CONTRACTOR — DEFECTIVE PLAN OR METHOD.

The owner of property, employing an independent contractor to perform work thereon, is liable for injuries to third persons where defects inhere in the plan or method of work.

8. MASTER AND SERVANT (§ 321) — INJURIES TO THIRD PERSONS — INDEPENDENT CONTRACTOR — DEFECTIVE MEANS OR APPLIANCES.

The owner of property, employing an independent contractor to work thereon, is liable for injuries to third persons when he fails to furnish proper appliances therefor.

9. MASTER AND SERVANT (§§ 319, 323) — INJURIES TO THIRD PERSONS — INDEPENDENT CONTRACTOR — WORK WRONGFUL OR DANGEROUS IN ITSELF.

An owner of property, employing an independent contractor to do building work thereon, is liable for injuries to a third person where the work to be done is wrongful or dangerous in itself, or where its performance ordinarily becomes dangerous, however carefully done.

10. NEGLIGENCE (§ 56) — PROXIMATE CAUSE OF INJURY.

The mere fact of negligence will not create a liability against the negligent person, unless a person injured thereby shows that his injury accrued as a proximate result of such negligence.

11. MASTER AND SERVANT (§ 318) — INJURIES TO THIRD PERSONS — INDEPENDENT CONTRACTORS — CONTROL OR INTERFERENCE OF EMPLOYER.

An employer of an independent contractor may make himself liable for injuries to third persons by retaining the control of the work, or by interfering with the contractor and assuming control of the work, or some part of it, so that the relation of master and servant arises, or so that an injury results therefrom; but merely taking steps to see that the contractor carries out his agreement, as having the work supervised by an architect, or retaining the right to dismiss incompetent workmen, does not render the employer liable.

12. EVIDENCE (§ 9) — JUDICIAL NOTICE — SAFETY OF CONTRACTING OPERATIONS.

The court cannot judicially notice how far modern science has advanced in rendering contracting operations safe, nor how far the customs and usages of carpenters, architects, contractors, and builders may have caused that to be considered ordinarily safe now which before would have been held highly dangerous.

13. NEGLIGENCE (§ 56) — PROXIMATE CAUSE.

The act of an independent contractor, employed by the owner of premises to make an addition thereto, in taking out lockers, etc., the personal property of a tenant, and placing them in the rear of the premises leaning against a platform or runway, was not such proximate cause of an injury to the tenant's servant from the falling of such lockers, while he was eating lunch on the platform, as to make the owner liable, but was merely a casual or collateral tort of the contractor.

14. MASTER AND SERVANT (§ 330) — ACTION FOR INJURIES — CONTRIBUTORY NEGLIGENCE — INSUFFICIENCY OF EVIDENCE.

Evidence, in a servant's action for injuries from being struck while eating his lunch on a platform in the rear of premises by the falling of lockers which an independent contractor had taken out and leaned against the platform, held to establish contributory negligence, if the conduct of plaintiff, a minor, was to be measured by that of an adult.

15. NEGLIGENCE (§ 4) — CONTRIBUTORY NEGLIGENCE — "ORDINARY CARE."

"Ordinary care" is that care which an ordinarily prudent person would exercise under similar conditions and circumstances.

16. NEGLIGENCE (§ 85) — CONTRIBUTORY NEGLIGENCE — MINORS.

The same standards of contributory negligence do not apply in the case of an infant of tender years and an adult, but an infant is free from contributory negligence if he exercises that degree of care which, under like circumstances, would reasonably be expected of one of his years and capacity.

17. NEGLIGENCE (§ 122) — ACTION — PRESUMPTIONS — CONTRIBUTORY NEGLIGENCE — MINORS.

An infant of the age of 14 years is presumed to have sufficient capacity to be sensible of danger or to have power to avoid it by due care, and this presumption holds until overthrown by clear proof of the absence of such discretion; and infant between the ages of 10 and 14 years must be shown to have capacity in the particular instance to understand and avoid danger.

18. NEGLIGENCE (§ 136) — ACTIONS — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE OF MINORS.

Whether an infant has been guilty of contributory negligence so as to defeat an action for injuries to him is ordinarily a question for the jury.

19. MASTER AND SERVANT (§ 289) — ACTION FOR INJURIES — QUESTION FOR JURY — CONTRIBUTORY NEGLIGENCE OF MINOR.

On the evidence, in an action by a servant, between 17 and 18 years of age, for injuries from the master's negligence in failing to provide reasonably safe premises and places for

work, held, that his contributory negligence was for the jury.

Brown, J., dissenting in part.

In Banc. Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Floyd D. Jackson, a minor, by Edward Z. Jackson, his curator, against James J. Butler and the Mercantile Trust Company, as executors of Edward Butler, deceased, and the Universal Adding Machine Company. A demurrer to plaintiff's evidence was sustained, whereupon plaintiff took an involuntary nonsuit, which was later set aside and new trial granted, and defendants appeal. Reversed as to defendants executors, and affirmed and remanded as to defendant the Adding Machine Company.

The plaintiff, a minor, through his curator, filed this action in the circuit court of the city of St. Louis for personal injuries. The court, at the close of plaintiff's evidence, sustained a demurrer thereto, whereupon plaintiff entered an involuntary nonsuit, which nonsuit was, upon the motion of plaintiff, subsequently made, set aside, and a new trial granted as to all the defendants, except Baker & Knell. Said Baker & Knell were original defendants, made such on the theory that they were joint tortfeasors, arising from their being, as architects, in charge of the repair work hereinafter referred to.

Edward Butler was a party defendant at the trial below, but, having since died, the cause was revived against James J. Butler and the Mercantile Trust Company, as executors of his estate. One Daniel Evans, a building contractor for the repairs in question, and employed by a contract with Edward Butler to make the same, was also a party defendant. From the order granting a new trial, defendant Universal Adding Machine Company (hereinafter for convenience called the machine company) and Edward Butler took separate appeals to this court. For convenience, since the case was tried below as a unit, these appeals will be considered here together. Defendant Evans did not appeal from the order granting a new trial and need not have further place in the case here, except in so far as his his acts may affect others.

It is alleged in plaintiff's petition, and shown by the evidence, that on the date on which plaintiff was injured, to wit, August 9, 1907, and for some months prior thereto, defendant machine company was operating a factory in a building owned by defendant Edward Butler in the city of St. Louis, and that in July, 1907, while defendant machine company was thus as tenant...