Johnson v. J. I. Case Threshing Mach. Co.

• Decision Date: 08 February 1916
• Docket Number: No. 14024.,14024.
• Citation: 182 S.W. 1089
• Parties: JOHNSON v. J. I. CASE THRESHING MACH. CO.
• Court: Missouri Court of Appeals

182 S.W. 1089

JOHNSON v. J. I. CASE THRESHING MACH. CO.

No. 14024.

St. Louis Court of Appeals. Missouri.

February 8, 1916.

Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.

Action by W. D. Johnson against the J. I. Case Threshing Machine Company. From a verdict for plaintiff, defendant appeals. Affirmed.

E. S. Gantt, of Mexico, Mo., for appellant. David H. Robertson, of Mexico, Mo., for respondent.

ALLEN, J.

This is an action to recover the value of certain hay belonging to plaintiff alleged to have been destroyed by fire originating from a spark or sparks negligently allowed to escape from a traction engine of defendant which was being propelled along a highway adjacent to plaintiff's farm in Audrain county, Mo. There was a verdict and judgment in plaintiff's favor for $290, and the defendant prosecutes the appeal.

It appears that a certain traction engine and "separator" had been sold by the defendant to one Mitchell, but the latter defaulted in payments to be made by him to defendant therefor, and defendant, through an agent, took possession of the property which was then upon a farm about 3½ miles from the town of Molino, Mo., and caused the same to be brought to the latter place and sold under a chattel mortgage held by defendant thereon. At this sale defendant became the purchaser thereof, and thereupon caused the engine and separator to be moved to Mexico, Mo. The engine, propelled by its own power and drawing the separator, was moved along a public road adjoining plaintiff's farm upon a day, according to the evidence, when the weather was quite dry and when a very strong wind was blowing in the direction of plaintiff's meadow, which was covered with dry grass. A fire started in this meadow near the road shortly after the engine had passed, and the evidence tends to show that it originated from a spark or sparks thrown therefrom. The engineer in charge of the engine testified that fire was discovered in plaintiff's meadow by a man accompanying him, and that they stopped and, as they thought, extinguished the same. It appears, however, that the fire was not completely extinguished, and that it later burned across the meadow and reached and destroyed plaintiff's ricks of hay on the farther side thereof.

It is admitted, for the purposes of this appeal, that the fire was set out by a spark or sparks from the engine, and it is also conceded that the verdict is not excessive. The negligence charged in the petition is as follows:

"First, said engine was negligently constructed and defective as aforesaid, in that it did not have a spark arrester sufficient to prevent the escape of sparks; second, that it was negligence in the defendant to cause said engine to be moved through the country under the conditions aforesaid; third, it was negligence in the defendant to furnish the persons in charge of said engine with an implement from the construction of which necessarily fire was used in moving said engine and thresher along the public road; and, fourth, said engine was negligently handled, managed, and controlled by those in charge thereof and in the employment of the said defendant in moving said engine and thresher."

The answer is a general denial, coupled with a plea to the effect that defendant contracted with a competent engineer, one Williams, to take this property to Mexico and there load it upon cars for shipment; that in moving said "threshing outfit" Williams "was acting as an independent contractor without instructions or directions as to details of said work"; and that if plaintiff suffered any damages in the premises "it was from the acts of negligence of said Eugene Williams in the performance of his contract for the moving of said machinery, and not otherwise."

There are no assignments of error, as such, in appellant's brief. One point made by appellant is that the evidence conclusively showed that Williams, the engineer in charge of the engine, was an independent contractor, and that the court erred in refusing to direct a verdict for defendant on this ground. It is true that the testimony of Williams, called as a witness for plaintiff, tended to show an agreement between him and defendant's representative whereby he was to move the threshing outfit to Mexico and load it upon cars there, furnishing the necessary help, a team to draw the water tank, the fuel, oil, etc; but we are not prepared to say that the evidence taken as a whole was conclusive as to the relation existing between Williams and defendant. In any event it is unnecessary to dwell upon the matter, in the view which we take of the case.

The evidence showed that the spark arrester upon this engine had a very large hole in it, through which sparks and burning embers freely passed and were emitted and scattered broadcast. It had been in this condition for many months, and was furnished to Williams in this condition to be driven across the country. The evidence shows that it was customary for sparks or burning embers to be thrown out by the engine both when operated to run a separator for threshing purposes and when driven along by its own power. More of these were emitted, it is said, when wood was used as fuel than when coal was burned, but in any event when the engine was "laboring" it appears that sparks and "fire" were cast out through the smokestack by the force of the "exhaust" in great quantity. The distance to which such burning particles would fly depended of course, to a considerable extent, upon wind and weather conditions. The former owner testified that the engine had thus set fire to the separator when the latter was 160 feet from it. At the precise time here in question coal, it is said, was being used as fuel, though pieces of wood had been picked up along the road from time to time and used to supplement the coal. And it seems that the fire originated near a hill, and, evidently, while the engine was laboring to ascend the same. The instrumentality therefore with which the alleged independent contractor was required to work was defective, and its condition such as to render its operation along a highway, where, as here, there was much inflammable matter near at hand, one attended with grave danger to the property of others, unless special precautionary measures were taken in the premises. In our opinion the facts of the case fall within the rule that where the work is "attended with danger to others," and mischievous consequences will result from the performance thereof, unless special precautionary measures are adopted, a duty rests upon the employer, or proprietor, to see that such precautionary measures are duly employed, which duty he cannot shift to another and escape liability for its nonperformance by having the latter perform the work as an "independent contractor." And this rule we believe to be sound upon principle and supported by the great weight of authority.

It is frequently said that this exception to the rule of nonliability for the acts of an independent contractor obtains where the work let to the contractor is "necessarily," "inherently," or "intrinsically" dangerous. But what is meant appears to be well stated in 26 Cyc. p. 1559, as follows:

"Another exception to the general rule, closely related to the one just considered, is that where the work is dangerous of itself, or as often termed is "inherently" or "intrinsically" dangerous, unless proper precautions are taken, liability cannot be evaded by...