Osborn v. Bros.

• Decision Date: 03 January 1884
• Parties: WILLIAM F. OSBORN v. WOODFORD BROTHERS, et al
• Court: Kansas Supreme Court

1 P. 548

31 Kan. 290

WILLIAM F. OSBORN v. WOODFORD BROTHERS, et al

Supreme Court of Kansas

January 3, 1884

[Copyrighted Material Omitted]

Error from Coffey District Court.

ACTION brought by William F. Osborn against J. E. Woodford and A. L Woodford, partners as Woodford Brothers, and two others, to recover damages alleged to have been sustained on account of the breaking of a plate-glass window in a building belonging to plaintiff. This breaking, the plaintiff alleged, was caused by the negligence of the defendants in removing a certain building owned by the Woodford Brothers, and in using defective machinery in doing the work. Trial at the July Term, 1882. The instructions given by the court to the jury are as follows:

"1. This is an action brought by the plaintiff to recover damages sustained by him on account of the breaking of a glass window, which breaking was the result of the negligence of the defendants, as the plaintiff alleges.

"2. The defendants Woodford Brothers admit that they are and were partners, and that plaintiff owns the building in which the glass is alleged to have been broken, and that said defendants owned a certain frame building as alleged in the 1st, 3d and 4th paragraphs of plaintiff's petition, and deny each and every other allegation in plaintiff's petition.

"3. Defendants Jones and Werts deny every allegation in plaintiff's petition contained.

"4. Under these issues the burden of proof is upon the plaintiff to establish all the allegations of his petition by a preponderance of the evidence in the case not admitted in defendants' answer.

"5. It is claimed by the plaintiff that defendants the Woodfords employed defendants Jones and Werts to assist them to move the frame building mentioned in paragraph 4 of plaintiff's petition, and that all the defendants, while moving said frame building, were guilty of negligence in using defective and insufficient appliances, and guilty of negligence in not using the appliances they did have with sufficient care and prudence; and that by reason of such negligence the plaintiff's glass window was broken.

"6. It is claimed by defendants the Woodfords that they contracted with defendant Jones to move said building, and that Jones agreed and undertook to move said building for a stipulated sum, and that said Woodfords had nothing whatever to do with moving the same; and that if there was any negligence in moving the same, it was the negligence of Jones only.

"7. If the Woodfords contracted with Jones to move the building in question for a stipulated price, and said Jones was to have exclusive control and management thereof, then the Woodfords would not be liable for any damages occasioned by the negligence of said Jones or of his partners or employes,--unless the moving of the building in question under the circumstances shown by the evidence in this case would necessarily be dangerous to adjacent property-owners however carefully done. In that case, all the defendants would be liable alike for any damages resulting from the moving of such building.

"8. The general rule of law is, that a person is not liable for the negligence of his contractor, however great it may be; but to this general rule there is this exception: when the thing contracted to be done is in its very nature necessarily dangerous to others, then such person, equally with the contractor, will be liable for whatever damage may result from such work.

"8 1/2. The defendants the Woodfords had a right to move their building, and in doing so would be required to use and exercise ordinary care, both in the selection of appliances and in the use and management thereof; and if they used such care they would not be liable for damages that resulted therefrom, and no greater care would be required of their contractor than from themselves. If, therefore, their contractor, if they had one, in the selection of appliances and in the use thereof exercised ordinary care, the Woodfords would not be liable for any damages resulting from such moving, unless such work was necessarily dangerous as aforesaid.

"9. Ordinary care is such care and caution as a man of ordinary prudence would exercise under similar circumstances, if all the property to be affected thereby was his own; and the want of such care is negligence. Any person who undertakes to do that which is from its very nature likely to injure others, however carefully performed, will be liable for any damage resulting therefrom, even though he use ordinary care in its performance.

"10. If at the time the alleged damage occurred, Jones and Werts were partners, and as such were the contractors of the Woodfords, and not mere employes thereof, then Jones and Werts would each be liable for such damage, if it was caused by the negligence of said Jones and Werts, or either of them, or their employes.

"11. If you find that ordinary care was used in moving the building in question, both in the selection of appliances and in the use thereof, or that the damage complained of was not caused by the negligence of the defendants, or either of them, you will find for the defendants, unless you further find the moving of said building dangerous, as hereinbefore stated.

"11 1/2. If you find for the plaintiff, you will return a verdict for him for the amount of damages sustained by him, as shown by the evidence in the case.

"12. You are the exclusive judges of the evidence, of its weight, and of the credibility of the witnesses.

"13. Before you can find against the defendants the Woodfords, the plaintiff must establish the following facts by a preponderance of the evidence in the case: (1) That the damages complained of were caused by the negligent manner in which the work of moving the building in question was done, or because of the defective condition of the appliances used; (2) that the Woodfords did not, in their contract with Jones, surrender to him the entire control and management of such work, or that they (the Woodfords), or one of them, assumed control of and did control such work at the time the damage complained of was done; (3) or that moving the building in question was of such a dangerous character as to necessarily endanger the property of adjacent owners, however carefully done.

"14. If the jury find that the defendants the Woodfords, or either of them, directed or caused or influenced the defendants Jones and Werts to procure of Davidson the tools or appliances with which the building in question was moved, and that said tools and appliances and the use thereof in the moving of said building was contemplated by said Woodfords at the time they employed said Jones to move said building, and that said tools and appliances were insufficient for that purpose, and such as a person of ordinary care would not use for such a purpose, and that the moving of such building with such tools and appliances would necessarily be dangerous to others, as hereinbefore stated, then said Woodfords would be liable for any damages resulting from the use of such tools and appliances, regardless of the nature of the contract existing between them.

"15. If the Woodfords employed Jones and Werts to assist them in moving said building, and they were the mere employes of the Woodfords, and not contractors, then neither Jones nor Werts would be liable, unless they, or one of them, were personally guilty of negligence which caused the injury complained...