Long v. Moon

• Decision Date: 07 December 1891
• Parties: LONG et ux. v. MOON et al.
• Court: Missouri Supreme Court

17 S.W. 810

107 Mo. 334

LONG et ux. v. MOON et al.

Supreme Court of Missouri, Division No. 1.

December 7, 1891.

NEGLIGENCE OF INDEPENDENT CONTRACTOR — REVIEW ON APPEAL.

1. In an action for personal injuries it appeared that defendants contracted with one R. to place an elevator in their building; that defendants reserved no right to direct the work; that R. employed workmen to put in the elevator, and that through their negligence a plank fell from a fourth-story window, and injured plaintiff's wife, who was in the adjoining yard. There was evidence that on the day of the accident defendants' engineer got up steam for the workmen to use in moving the elevator, and that after the accident, and while a number of people, including the workmen, were in the yard, one of the defendants remarked, "Go back to your work. You can do no good here," although there was also evidence that this remark was made by another by-stander. Held, that the workmen were the servants of R., who was an independent contractor.

2. In an action at law the court on appeal will not consider the question of the preponderance of evidence, although it will decide whether a verdict has any evidence to sustain it.

Appeal from St. Louis circuit court; GEORGE W. LUBKE, Judge.

Action for personal injuries by Edward B. Long and wife against Joseph W. Moon and others. Judgment for plaintiffs. Defendants appeal. Reversed.

E. A. B. Garesche, for appellants. Robt. W. Goode, for respondents.

BRACE, J.

This is an action for personal injuries, in which the plaintiffs recovered judgment, and the defendants appeal. The undisputed facts are that the defendants, engaged in the business of carriage manufacturers in the city of St. Louis under the firm name of Moon Bros., in April, 1887, entered into a contract with one H. J. Reedy, of Cincinnati, Ohio, who agreed to construct and put up for them one of the said Reedy's improved gear-power elevators in their new building, then being erected, and approaching completion, on the south-west corner of Seventeenth and Morgan streets in said city. The terms of the contract are embraced in a written proposal of the said Reedy of date April 11, 1887, accepted by Moon Bros., containing detailed specifications of the machine to be furnished, complete for $476, "guarantied, and to be kept in repair for one year." Prior to the 4th of July, 1887, the material of the elevator was shipped from Cincinnati to St. Louis; and one Holtzman, an employe of Reedy, came on, to put it up. Holtzman employed one Turgin, a carpenter, to assist him; and on that day they were engaged in constructing the elevator. They were both on the elevator. Holtzman was engaged in putting on the casing, consisting of poplar boards, about 14 feet long, 4 inches wide, and 1 inch thick; Turgin assisting him, lowering and raising the elevator as Holtzman wanted it. One of the boards was standing on the platform, leaning against the beam of the elevator, and when the elevator was raised to the top of the building it struck the other beam that holds the pulleys of the elevator, and upset the board, which slipped off the platform through the fourth-story window of the shaft, and fell upon the left shoulder of Mrs. Long, who was sitting on the steps in her side yard, immediately adjoining the premises of defendant, reading a paper, fracturing her collar-bone. At the close of plaintiffs' evidence the defendants demurred. Their demurrer being overruled, they introduced evidence, and, upon the whole evidence being in, renewed their demurrer by way of an instruction, which the court refused. The case was submitted to the jury on the instructions, and a verdict returned in favor of the plaintiffs for $6,250. Motions in arrest of judgment and for new trial were filed and overruled, the latter on condition that plaintiff enter a remittitur for $3,125, which having been done, judgment was entered for plaintiffs for the sum of $3,125, and the defendants appealed.

1. In the view we take of the evidence in this case, it will not be necessary t notice the objections urged against the petition, to the action of the court on the admission of evidence, or upon the instructions that were given or refused, for, after a careful study of all the evidence, we fail to find anything therein tending to prove a cause of action against the defendants. The demurrer to the evidence, therefore, ought to have been sustained. While we have repeatedly said that in actions at law we cannot weigh conflicting evidence for the purpose of ascertaining whether the verdict is supported by a preponderance, if there be any evidence upon which it...