Nogalski v. Foundation Co.

Citation199 S.W. 176
Decision Date03 December 1917
Docket NumberNo. 18773.,No. 18771.,18771.,18773.
PartiesNOGALSKI v. FOUNDATION CO. et al.
CourtUnited States State Supreme Court of Missouri

Appeal from St. Louis Circuit Court; George C. Hitchcock, Judge.

Action by Edward Nogalski, a minor, by Josephine Nogalski, next friend, against the Foundation Company, the United Railways Company, of St. Louis, and another. A demurrer to the evidence of the Foundation Company having been sustained, and verdict having been entered in favor of the United Railways Company and the other defendant, plaintiff moved for new trial, which was sustained as to the Foundation Company, and overruled as to the other defendant, whereupon plaintiff appeals, as also does the Foundation Company, the appeals being consolidated. Affirmed.

Joseph A. Wright and R. P. & B. C. Williams, all of St. Louis, for appellant Nogalski. Watts, Gentry & Lee, of St. Louis, for appellant Foundation Co. T. E. Francis and W. M. Hezel, both of St. Louis, for respondent United Rys. Co. of St. Louis. Schurmacher & Rassieur and W. M. Hezel, all of St. Louis, for respondent Union Electric Light & Power Co.

GRAVES, J.

Plaintiff, a minor, by his next friend sued the three defendants for personal injuries received by him through the falling of a small piece of iron, called a "shim," upon his head. In the trial of the case it appears that at the close of the plaintiff's case each of the three defendants interposed demurrers to the evidence. The record recites:

"And thereupon the court did give to the jury said instruction as asked by the defendant the Foundation Company."

The demurrers as to the other defendants were overruled. The record then recites:

"Thereupon the defendants United Railway Company and Union Electric Light & Power Company, respectively, to support the issues in their behalf, offered and introduced the following testimony."

It should be noted that the record does not disclose that the court took the verdict of the jury as to the Foundation Company at the time the peremptory instruction was given, but it does appear, inferentially at least, that the Foundation Company dropped out of the proceeding at this juncture. The verdict of the jury, when finally taken, was in this language:

"We, the jury in the above cause, do find the issues herein joined in favor of the defendants."

In due time the plaintiff filed a motion for new trial, which motion was sustained as to the Foundation Company, and overruled as to the other two defendants. Plaintiff appealed from this latter ruling, and the Foundation Company from the first ruling. By stipulation the two cases on our docket were consolidated and a joint abstract of record filed. The amount sued for is $15,000. The negligence charged in the petition is thus stated:

"That on and prior to the 25th day of June, 1912, defendants had erected and were jointly using a certain wooden pole on and over Olive street, an open public street in the city of St. Louis, Mo., between Sixth and Seventh streets; that on said 25th day of June, 1912, plaintiff was a pedestrian on said Olive street, and while walking along the north side thereof, at, near, and adjacent to said pole, and while legally and properly on said Olive street at said point, a piece of solid iron fell from the top of said pole, by reason of the carelessness and negligence of the defendants, as herein alleged, striking plaintiff with great force and violence on his head, lacerating and fracturing his skull, and greatly and permanently injuring plaintiff, as hereinafter alleged; that said piece of iron fell, struck, and injured plaintiff by reason of the carelessness and negligence of the defendant in this: That prior to and on the said 25th day of June, 1912, the said defendants had placed and were using at or near the top of the said pole said piece of iron next to the wooden surface of said pole and underneath the wire cable which was wrapped around said pole, for the purpose of supporting the trolley wires of the defendant United Railways Company of St. Louis erected along and over Olive street, and for the purpose of supporting the electric wires of the defendant Union Electric Light & Power Company, which were used by the said Union Electric Light & Power Company and the said Foundation Company to furnish current for the arc lights which were used by the said Foundation Company to furnish light for the building site of the Famous-Barr Company's building near and adjacent to said pole, while the said Foundation Company was making and constructing the foundation therefor; that the said defendants were guilty of carelessness and negligence in placing and using said iron piece on said pole, without securely fastening the same to said pole in this: The said iron piece was made with two holes therein, which were intended to have nails driven through them to fasten the said iron piece securely to said post; that the said iron piece also had two iron prongs thereon, which were intended to be driven into the said wooden post to further securely fasten said iron piece to said post.

"Plaintiff says that the said defendants carelessly and negligently failed to fasten said iron piece to said post with nails driven through said holes, as was intended, and that said iron prongs, which were intended to be driven into said pole, were broken off, all of which rendered said iron piece insecure and liable to become detached from said post and fall therefrom on passing pedestrians, and plaintiff avers that the said defendants knew at and before the time of said injury that the said iron piece was defectively and insecurely placed upon and attached to said pole, as above alleged, or that the said defendants, by the exercise of ordinary care and caution, could have known before said injury, and in time to prevent the same, that the said iron piece was defectively and insecurely attached to said pole and was liable to fall upon passing pedestrians, and failed to use reasonable and ordinary care to prevent said iron piece from falling; that the said defendants were guilty of carelessness and negligence in sending and directing one of their servants or agents to go upon said pole while said piece of iron was insecurely fastened thereto, as above alleged, which said agent and servant, in obedience to said direction, climbed upon said pole, and while acting within the scope of his duties so carelessly and negligently shook and jarred said pole that the said iron piece was shaken therefrom and fell upon the plaintiff; that the said defendants and their said agent and servant at the time of said injury knew, or by the exercise of ordinary care and caution could have known, that the said iron piece was defectively and insecurely attached to said pole and was liable to fall therefrom, with slight shaking and jarring of said pole, and failed to use reasonable and ordinary care to prevent said iron piece from falling from said pole."

The seriousness of the injury to plaintiff is not a matter of grave import on this record. The questions are as to liability, and as to which, if any, of the defendants are liable.

I. The case as to each defendant had better be taken separately. Plaintiff's counsel do not seem to be very insistent in the case against the defendant United Railways Company. In their assignment of error they do say as to this defendant:

"(5) The court erred in giving the instruction requested by the defendant United Railways Company of St. Louis.

"(6) The court erred in declaring that the United Railways Company of St. Louis was not liable for the injury to plaintiff, if such company did not place the shim which injured plaintiff on the post mentioned in the evidence."

The instruction complained of is this:

"The court instructs the jury that, if you find and believe from the evidence that the piece of iron mentioned in the evidence as falling from the pole mentioned in the evidence and striking the plaintiff was not placed on said pole by the agents or servants of defendant United Railways Company of St. Louis, then your verdict should be for the United Railways Company of St. Louis."

The pertinent facts are few. At the time construction began on the Railways Exchange Building in St. Louis it became necessary for the United Railways Company to put up for temporary use a pole on the north side of Olive street near Seventh street. To this pole the Railways Company attached the guy wire which held its trolley wire. A "shim" is a thin piece of iron about six inches long and one inch wide, and they are placed around a pole in order to keep the wire from cutting into the pole when the strain is placed upon the wire. In excavating and constructing the foundation for this immense building it became necessary to have two electric arc lights in the block where the work was being done. After defendant Railways Company had put up the pole above mentioned, and placed its guy wire thereon, the defendant Union Electric Light & Power Company in the course of its business was called upon to put in these arc lights. In doing so said defendant attached a guy wire to this pole on the street and stretched it across the block to a pole on the street on the opposite side of the block. From this guy wire the lights were suspended. There were also current wires to the lights by which the electricity was furnished. The evidence tends strongly to show that the guy wire of the Union Electric Company was placed above the guy wire of the Railways Company.

After the foundation of the building was practically finished further work on the building required the removal of these wires across the block of ground. One Taylor, an...

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8 cases
  • Taylor v. Railroad Co.
    • United States
    • United States State Supreme Court of Missouri
    • August 12, 1933
    ...S.W. (2d) 1026; McGurry v. Wall, 122 Mo. 614; Chandler v. Gloyd, 217 Mo. 394; State v. Trimble, 311 Mo. 139; Nogalsky v. Foundation Co., 199 S.W. 176; Parker v. Britton, 32 Mo. App. 270; Lamb v. Stubblefield, 245 S.W. 351; Pullen v. Eugene, 77 Ore. 320; Hartman v. Viera, 133 Ill. App. 216; ......
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