Perry v. Ford
| Decision Date | 30 March 1885 |
| Citation | 17 Mo.App. 212 |
| Parties | HENRY PERRY, Respondent, v. SMITH M. FORD, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Jackson Circuit Court, HON. F. M. BLACK, Judge.
Reversed and remanded.
Statement of the case by the court.
This is a suit for personal injury. The petition is in words as follows (omitting the caption):
Said plaintiff, Henry Perry, for cause of action against defendant, the said Smith M. Ford, states that heretofore to-wit; on or about the 30th day of October, 1881, the said defendant and one ______ Brown were, and for a long time prior thereto had been, ever since the date aforesaid have been, and now are, the owners of two certain store-rooms and buildings, known and numbered 503 and 505, fronting on Delaware street, between Fifth street and Missouri avenue, in the City of Kansas, county of Jackson, and state of Missouri and the ground on which the same are situated, extending eastwardly to what is commonly known as and called The Times Building, which fronts on Fifth street, in said city, is situated. At the east end of said buildings of defendant Smith M. Ford and said Brown, there is an area of land or ground belonging to them not covered by their said building but planked and covered over by an elevated plank floor. During all the time aforesaid, certain of the basement ground floor, or other rooms of said building of said defendant and said Brown, opened upon and were accessible from said elevated plank floor, by means of doors, and a room in the east end of the building of one J. Feld, next north of and adjoining to the ground and buildings first aforesaid, fronting both on said Delaware and Fifth streets. That prior to and on the day of the wrongs and injuries hereinafter mentioned, said defendant Smith M. Ford and said Brown had owned, kept, and maintained on said elevated plank floor awater-closet and privy, for the use, in common, of their said buildings, and that of said Feld, and the occupants thereof respectively, as also all other persons who should have occasion to visit or frequent either of said buildings, or any of the rooms of either thereof. That during all the time aforesaid, and on the day of the happening of the wrong and injury hereinafter mentioned, the east basement room of said Feld building, which so fronted and opened upon said Fifth street as aforesaid, was used and occupied by one ______ Alms, as tenant of said Feld, for the purpose of carrying on, and he was carrying on thereat, a public saloon or dramshop, to which the whole public were invited to resort at pleasure. During all said time there was a door on said Fifth street opening and leading into said saloon or dramshop, and another door in the rear or back part of said saloon or dramshop room, opening to and leading out upon said elevated plank floor to said water-closet and privy, and to certain of the rooms of said defendant Smith M. Ford and said Brown, which said rooms were then occupied, and access to and egress therefrom were had by passing through said saloon or dramshop. During all said times, and on the day of the happening of the injury hereinafter mentioned, there existed between said defendant Smith M. Ford and Brown, and said Feld, an agreement that all the persons occupying any of the rooms in either of said buildings, and all their customers and all others who should feel inclined to frequent any of said rooms, either on business or pleasure, should pass through said doors and over said elevated floor to, and use said water-closet and privy at pleasure. During all said time, and on the day of the happening of the injury hereinafter mentioned, such persons and the plaintiff were in the habit of passing through said doors, back and forth, to and from the said rear rooms of said defendant and said Brown, over and upon said elevated plank floor, and to and from and to use said water-closet and privy, pursuant to said agreement and the authority and license thereby and otherwise afforded them. On or about the 30th day of October, 1881, said defendant Smith M. Ford and said Brown undertook and did, under the immediate supervision and direction of said defendant, remove, remodel, and reconstruct said water-closet and privy, and in doing so left the privy vault open, uncovered, and exposed, without guards of any kind or any light or signal to notify or warn those who should have occasion to pass over said elevated plank floor, or to resort to and use said water-closet, of its condition. That said privy vault was then and there a dangerous and unsafe place, but defendant, disregarding his duty, negligently left the same in the exposed condition aforesaid. That afterwards, on or about the night of the 30th day of October, 1881, when it was quite dark, the plaintiff having occasion to resort to and use said water-closet and privy, being ignorant of its unprotected and dangerous condition, attempted to do so, using necessary care, caution and prudence, not being guilty of any negligence, and then and there, by the negligence aforesaid of said defendant before mentioned, fell into said privy vault, and was then and thereby greatly bruised and incurably injured and hurt in his body and limbs, and became sick and unable to attend to his ordinary labor and business, and was confined to his room for a long space of time, and incurred and paid large sums of money in and about having himself properly treated by physicians and for medicine; by reason of all whereof he has sustained damages to the amount of three thousand dollars, for which and his cost of suit he asks judgment.
The answer was, first, a general denial; second, contributory negligence on the part of plaintiff directly contributing to the injury complained of.
The reply was a general denial of the averments of the answer.
At the trial both sides adduced evidence tending to support the issues on their parts respectively.
One exception was saved by defendant as to the evidence of which he complains. The following question was put by plaintiff to his witness, Evans.
Q. Do you know of any other person having fallen in there about this time; just before or after?
The court: If you know of your own knowledge you may say so.
Q. Have you not?
A. It is just the same as I have heard of Mr. Perry's. I heard his statement. I did not see him fall. It was spoken of there about the same time by some person. I did not see anybody fall. I did not know there was a water-closet there.
The court below gave numerous instructions which it is unnecessary for us to notice. The jury found for the plaintiff. The case is here on appeal by defendant.
C. O. TICHENOR, for the appellant.
I. Upon what ground can defendant be held liable? 1. Not on the ground that the water-closet was a nuisance, To hold him liable, notice of the fact must be shown. It is not claimed that he knew of it.-- Pennay v. Berry, 61 Mo. 359; Grigsby v. Clear Lake Co., 40 Cal. 409; Pillsbury v. Moore, 44 Me. 156.2. Not on the ground of neglect in reference to the persons who did the work, for it is not claimed that they were not experienced and skilful. By the petition the liability is put solely on the ground that defendant left the privy vault open, uncovered, and exposed. The evidence shows such facts did not exist. The demurrer to the evidence should have been sustained, by giving 5th instruction for defendant.
II. Defendant was not liable for the neglect of the employe, if there was any, of the man to whom he gave the contract to pull down and re-build the water-closets. He notified tenants that closets were about to be repaired and posted a notice to that effect. Defendant is not liable to third parties for injuries by the contractor's negligence. Wharton on Negligence, sect. 181. The...
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