Otto Press v. Penny

• Decision Date: 29 March 1912
• Citation: 145 S.W. 458,242 Mo. 98
• Parties: OTTO PRESS v. ALEXANDER PENNY and JOHN GENTLES, Appellants
• Court: Missouri Supreme Court

145 S.W. 458

242 Mo. 98

OTTO PRESS v. ALEXANDER PENNY and JOHN GENTLES, Appellants

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from the St. Louis City Circuit Court. -- Hon. C. C. Allen Judge.

Reversed.

Watts Williams & Dines, W. R. Gentry and James C. McBaine for appellants.

(1) The finding and judgment should have been for defendants. 1st. Because there was no negligence on the part of any one proven in this case which caused, or contributed to cause, the plaintiff to be injured. The undisputed facts show that the injury to plaintiff was the result of an unforeseen accident for which nobody was liable. 2d. The defendants are not liable in this case for the acts of Rule, even if the court should find that Rule's negligence injured the plaintiff. Rule was employed by an independent contractor and the defendants had no control whatever over him. Independence v. Slack, 134 Mo. 66; Loth v. Theater, 197 Mo. 354; Richmond v. Sitterding, 111 Va. 354; Crenshaw v. Ullman, 113 Mo. 633; Williamson v. Fischer, 50 Mo. 178; Homer v. Nicholson, 56 Mo. 220; Benjamin v. Railroad, 133 Mo. 274; Long v. Moon, 107 Mo. 334; Strauss v. Louisville, 55 S.W. 1075; McCarty v. Parish, 36 Am. Rep. 320; Hexamer v. Webb, 101 N.Y. 577; Johnson v. Helbing, 92 P. 360; Geist v. Rothschild, 90 Ill.App. 324; Boomer v. Wilbur, 176 Mass. 482; Smith v. Exchange, 91 Wis. 360; Symonds v. Directors, 105 Md. 254; DeForest v. Wright, 2 Mich. 368; McNulty v. Ludwig, 100 N.Y.S. 703; Massey v. Oates, 39 So. 142; Neumeister v. Eggert, 52 N.Y.S. 481; Francis v. Johnson, 127 Iowa 391; Sanford v. Railroad, 33 L.R.A. 564; Hilliard v. Richardson, 63 Am. Dec. 743; Scammon v. Chicago, 25 Ill. 424. (2) The action of the court in ruling on the declarations of law submitted, showed that the court tried the case on the wrong theory.

Percy Werner and A. C. Dobie for respondent.

(1) There are three theories, on either of which a finding for plaintiff can be sustained: First, negligence of the contractor's servants in handling the ladder on the public sidewalk; second, the necessary use of the sidewalk at the place and time in question for the purposes for which Scott and Wolff Painting Company was employed by appellants; third, the creation of a nuisance on the public sidewalk. (2) The rule that one employing an independent contractor is not himself liable for an injury to a third person is subject to the qualification that the work which the independent contractor is to do is neither unlawful in itself nor dangerous to others. Independence v. Slack, 134 Mo. 75; Peters v. Railroad, 131 S.W. 917; Thompson on Negligence, sec. 621; Curtis v. Kiley, 153 Mass. 123. (3) Defendant was liable for injuries caused by the servants of the Scott and Wolff Painting Company, in removing the sign from in front of the building in question. Loth v. Theater, 197 Mo. 328; O'Hara v. Gas Co., 131 Mo.App. 428; French v. Coal Co., 81 N.E. 265; McHarge v. Newcomer, 117 Tenn. 595; Bridge Co. v. Steinbrock, 61 Ohio St. 215. It being necessary to place the ladders on a public sidewalk in the busiest part of the city, defendants' contract with the painting company was to do that which was not only dangerous to the public, but also unlawful. Pollock on Torts (Webb's Am. Ed.), p. 624; Ellis v. Gas Co., 2 El. & B. 767; 2 Cooley on Torts (3 Ed.), pp. 1088-93. The above propositions are supported by the very authorities cited by appellants. See, also, 16 Am. and Eng. Ency. Law (2 Ed.), 196-7; Houghton v. Lumber Co., 14 L.R.A. (N.S.) 913; Water Co. v. Ware, 16 Wall. 566. (4) Setting up two ladders on a sidewalk in midday on a busy thoroughfare and allowing two men to mount these ladders and attempt to handle a large, cumbersome, unwieldy muslin sign, in windy weather, constituted a nuisance. Waller v. Ross, 100 Minn. 7. (5) The exceptions to the rule exempting an employer from liability for the negligence of the servants of an independent contractor, include cases, first, where the employer contracts to have something done which obviously exposes others to peril; second, where the work contracted for directly results in a nuisance flowing therefrom; and, third, where the party engaging the independent contractor is under a legal duty to see that the work is properly performed. 2 Cooley on Torts, pp. 1088-1097; Woodman v. Metr. R. Co., 149 Mass. 335; Curtis v. Kiley, 153 Mass. 123; Robbins v. Chicago, 71 U.S. 657; Kampman v. Rothwell, 107 S.W. 120. (6) Work on or over a public highway is intrinsically and necessarily dangerous to the traveling public, and the duty rests on the principal to see that due care is observed for their safety. Cooley on Torts, p. 1095; 1 Thompson on Negligence, secs. 648-652; Wiggins v. St. Louis, 135 Mo. 558; Davis v. Whiting, 87 N.E. 199; Gray v. Gas Co., 114 Mass. 149.

BROWN, C. Bond, C., concurs in the result. WOODSON, J., concurring.

OPINION

BROWN, C.

This cause is certified to this court from the St. Louis Court of Appeals because one of the judges of that court sitting therein deems its decision contrary to the decision of this court in the case of Loth v. Columbia Theatre Co., 197 Mo. 328, 94 S.W. 847. The opinion of the St. Louis Court of Appeals as well as the dissenting opinion of Nortoni, J., is found in volume 134 of the Missouri Appeal Reports at page 121 and following. The judgment at the trial was for the plaintiff. It was reversed by the decision of the Court of Appeals.

The action is for damages suffered by plaintiff on account of personal injuries. The defendants were partners, doing a large retail dry goods business in a building of which they were tenants in possession, situated at the southwest corner of Washington avenue and Broadway, two of the most traveled streets in the city of St. Louis. Scott & Wolf Painting Company had a contract to paint, put up and remove all signs used by them. At the time of the accident, January 12, 1907, there was a muslin sign stretched on a wooden frame about twelve feet long and five feet wide, tacked over the water table above the first story of the defendants' building, on which was painted some advertisement relating to their business. It having served its purpose, they had telephoned the Scott & Wolff Painting Company to take it down. The company sent two men for that purpose with two ladders, one of them fourteen feet and the other sixteen feet in length, which they set up against the building so that they stood on the sidewalk about five feet from the wall, and went up to draw the nails from the sign so that it could be handed down. One of the men, in extracting a nail, misjudged the amount of force necessary for that purpose, and the nail unexpectedly gave way, causing him to lose his balance, and he fell upon the plaintiff, who was then passing along the sidewalk near the foot of the ladder, inflicting the injuries for which this suit is brought. The method adopted for removing the sign by the use of the ladder resting upon the sidewalk was a usual one.

The petition upon which the case was tried contains two counts upon the same injury. The first alleges that the ladder was, by the men working upon it, negligently permitted to fall, and that either the ladder or the man who was working on it fell onto and against the plaintiff. The second count charges that the "use of said street and sidewalk by the defendants under the circumstances mentioned was negligent and wrongful, and constituted a nuisance, and that it was defendants' duty to have protected plaintiff in his rightful use of said public sidewalk at the time in question, and that by reason of such negligent and wrongful use of the public sidewalk and street, and the breach of said duty by the defendants at the time and place in question, plaintiff sustained the injuries mentioned." The trial court being very properly of the opinion that upon the facts stated there was no question to submit to the jury other than the assessment of damages, peremptorily instructed them that their finding must be for the plaintiff and against the defendants. The propriety of this instruction and the refusal of a peremptory instruction in their favor asked by defendants, fully present the only questions in the case.

The plaintiff in the two counts of his petition presents two separate phases upon either of which he might predicate his right to recover. (1) Negligence of the workman who fell upon him in causing the ladder to fall, and (2) negligence of the defendants in causing or permitting the work in question to be done in the time and manner indicated in the statement. We will for convenience present these questions in inverse order to that in which we have stated them.

I. It being admitted that "the work of removing the sign necessitated the occupancy of the sidewalk with ladders," the question is presented whether or not the defendants in directing the work to be done violated or infringed upon any right of the plaintiff as a traveler upon the street. The abutting proprietor has a right in the use of the street entirely distinct from that of the public. This is usually denominated "the easement of access," and constitutes the real foundation and consideration for those special burdens imposed upon them for the construction and improvement of such highways. This right is as much property as the land to which it pertains, and the Legislature can no more deprive a man of one than the other without compensation. [Lackland v. Railroad, 31 Mo. 180.] It has its foundation in a universal necessity, for of what public benefit would highways be unless in connection with the right of ingress and egress for the purpose of the traffic for which they are designed? It is true that the exercise of this right is, like the exercise of the right of the public to travel on...