Miller v. W. E. Callahan Const. Co.

• Decision Date: 08 March 1932
• Docket Number: No. 21775.,21775.
• Citation: 46 S.W.2d 948
• Parties: MILLER v. W. E. CALLAHAN CONST. CO. et al.
• Court: Missouri Court of Appeals

46 S.W.2d 948

MILLER v. W. E. CALLAHAN CONST. CO. et al.

No. 21775.

St. Louis Court of Appeals. Missouri.

March 8, 1932.

Appeal from St. Louis Circuit Court; William H. Killoren, Judge.

"Not to be officially published."

Action by Milton Miller against the W. E. Callahan Construction Company and another. From judgment for plaintiff, named defendant appeals.

Affirmed.

Judson, Green, Henry & Remmers, of St. Louis, for appellant.

Foristel, Mudd, Blair & Habenicht, of St. Louis, for respondent.

BENNICK, C.

This is an action for damages for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants on August 26, 1929, when a truck in the control of one or both of the defendants ran into a portable, plank fence, and pushed it over upon him. Tried to a jury, a verdict was returned in favor of defendant Arrow Coal & Hauling Company, the owner of the truck, but in favor of plaintiff, and against defendant W. E. Callahan Construction Company, the hirer of the truck, in the sum of $7,500. Judgment was rendered accordingly; and following the overruling of its motion for a new trial, the construction company has duly appealed.

At and prior to the time in question, the construction company was engaged in some phase of the work incident to the completion of the River Des Peres sewer project in Forest Park, in the city of St. Louis. A part of the work to be done involved the hauling of liquid concrete and other materials from one portion of the job to another; and for the performance of this work, trucks and drivers, including the truck and driver in question, had been secured by the construction company from its codefendant, the hauling company.

With respect to the contractual relations existing between the two companies, the evidence showed that while the hauling company paid the wages of the drivers, took care of the repairs and maintenance of the trucks, and seemingly reserved some measure of control in regard to such incidents as the speed at which they should be operated, yet when the trucks and drivers were once actually put upon the job, they were under the supervision and control of the construction company, especially as regards the matter of directing where the materials should be hauled.

Ordinarily the precise nature of the terms and conditions upon which the trucks and drivers were hired to the construction company would not be thought to be of much importance at this stage of the case, in view of the judgment absolving the hauling company from liability, and plaintiff's failure to have appealed therefrom. However, in the course of its brief, the construction company, in arguing that no case was made for submission to the jury against it, suggests that plaintiff, having been injured in the manner aforesaid, not only failed to prove control of the truck and its driver on the part of the construction company, but indeed that his evidence affirmatively disclosed that control was at all times vested exclusively in the hauling company. If the question of the liability of the hauling company were still in issue on this appeal, we suspect that plaintiff would now be arguing the sufficiency of the evidence to have shown at least the right of joint control on the part of both defendants; but with no such question in the case, it suffices for our purposes to say that the evidence amply warrants the conclusion that the truck and driver, though in the general service of the hauling company, were at the time so far under the control of the construction company itself as to render it liable to respond for the negligence of the driver in the operation of the truck while employed on the job. Karguth v. Donk Bros. Coal & Coke Co., 299 Mo. 580, 253 S. W. 367; Holloway v. Schield, 294 Mo. 512, 243 S. W. 163; Grothmann v. Hermann (Mo. App.) 241 S. W. 461; Gorman v. A. R. Jackson Kansas City Showcase Works Co. (Mo. App.) 19 S.W.(2d) 559.

At the time involved in this proceeding, the work undertaken by the construction company was being done in the section of the park immediately west of the Jefferson Memorial, and closely adjacent to Lindell boulevard, which forms the northern boundary of the park. To bar the public from the region set apart for and occupied by the construction company in the prosecution of the work, a solid, portable, plank fence, about seven feet in height, had been erected, beginning at the west edge of the Memorial, and thence following the general course of the excavation westwardly for several hundred feet, and standing somewhat parallel to, and approximately one hundred feet south of, Lindell boulevard.

At a point about two hundred fifty feet west of the Memorial, a gap had been left in the fence, through which a board walk led southwardly into the park towards the golf links. Along the south side of Lindell boulevard is a bridle path constructed of cinders; and there was evidence, though it was disputed, that the board walk extended northwardly from the fence to the bridle path. However the truth of this matter was, it did appear that the course directly to the north was unobstructed by anything save some trees and shrubbery which stood within the park, though it would have been unsafe for pedestrians, if they had followed such route outside the park, to have attempted to cross Lindell boulevard at that particular point on account of the heavy traffic which was constantly upon it. Rather their choice was to walk eastwardly to the intersection of Lindell boulevard with De Baliviere avenue, where there were "stop" signs both to the east and the west on the former thoroughfare.

On the day in question, plaintiff had been in the park upon the golf links, having entered from De Baliviere avenue by the route which took him through the gap in the fence, and thence over the board walk to the region beyond the excavation. About 5 o'clock in the afternoon he started to retrace his steps, and in due course emerged through the gap, his immediate destination being the intersection of the two streets some little distance to his right, where he would have protection against the late afternoon traffic in making his way northward across Lindell boulevard, as we have shown before.

According to plaintiff's testimony, a path, which had been made or beaten down by pedestrians, ran east and west just north of and alongside the fence, and extended from the gap in question down to within some twenty-five feet of the Memorial, and thence out to the point of the street intersection. Plaintiff had customarily used this path in entering or leaving the park during the whole of the time that the improvement had been under construction therein, and he had invariably seen numbers of other people following the same route.

As he came through the gap on this occasion, he turned to his right, and started down the path alongside the portable fence. All that plaintiff himself knew of the accident was that after he had walked some little distance, he was struck by the fence, which suddenly toppled over upon him; that he was knocked backwards against a tree, and rendered unconscious; that when he regained his senses, he found that a boy was stooping over him and pouring water upon his face; that he observed a truck standing near him with its front bumper against the fence, which had lodged upon and was leaning against the tree; and that this particular truck was of the type that he had seen in operation around the improvement in question while he had been in the interior of the park.

The actual details of the accident are to be gathered wholly from defendant's evidence. It seems that the trucks which the construction company had hired from the hauling company were being operated at the time just inside the fence, and between it and the excavation. One of the trucks, which was filled, with wet concrete, was being driven from the mixer in an easterly direction to the point where the concrete was to be dumped. In order for the driver to get his truck in the proper position for the load to be emptied at the desired point, it was necessary for him to make a left turn between two trees which stood so closely together as to leave him but barely enough space to pass between them, and then to back his truck upon a bridge or platform which had been built across the excavation. In pulling between the trees, he watched very closely to see that the sides of his truck did not come in contact with either of them, and thus neglected to watch ahead as he might otherwise have done. As a result, he permitted the truck to run up against the fence, and to strike it with the bumper, thus causing the fence to fall over upon plaintiff, who chanced to be passing on the outside just at the moment.

Suffice it to say that according to the evidence for plaintiff, he was very seriously and painfully injured; and such facts as are essential upon this feature of the case will be stated in their proper...