Press v. Penny

• Decision Date: 01 December 1908
• Citation: 134 Mo. App. 121,114 S.W. 74
• Parties: PRESS v. PENNY et al.
• Court: Missouri Court of Appeals

114 S.W. 74

134 Mo. App. 121

PRESS v. PENNY et al.

St. Louis Court of Appeals. Missouri.

December 1, 1908.

1. MASTER AND SERVANT (§ 316)—INDEPENDENT CONTRACTORS—INJURY TO THIRD PERSON—LIABILITY.

A company having a contract to erect and remove signs on defendant's building, selecting its own time, tools, and employés to remove a sign without consulting defendant, was an independent contractor, and hence defendant is not liable for injury to a pedestrian caused by any negligence of the company's employé who, while removing a sign, fell from a ladder upon a pedestrian on the sidewalk below.

2. MUNICIPAL CORPORATIONS (§ 670)—REGULATION OF PUBLIC PLACES—LIABILITIES OF ABUTTING OWNER—USE OF SIDEWALKS.

A pedestrian injured by a workman falling from a ladder while removing a sign from a building cannot recover on the theory that the placing of the ladder on the sidewalk constituted a nuisance, where the ladder did not greatly interfere with the use of the walk, and where the injury was not caused by collision with the ladder.

3. MASTER AND SERVANT (§ 315)—INDEPENDENT CONTRACTORS—INJURY TO THIRD PERSON—LIABILITY.

One is not liable for negligent acts of an independent contractor resulting in injury to a third person, unless the acts were made necessary by the contract.

4. MASTER AND SERVANT (§ 315)—INDEPENDENT CONTRACTORS—NEGLIGENCE—LIABILITY.

One cannot devolve a legal duty upon an independent contractor so as to escape liability for nonperformance.

5. MUNICIPAL CORPORATIONS (§ 670)—SIDEWALKS—DUTY OF ABUTTERS.

The occupant of a building abutting upon a sidewalk in a public street must not use the sidewalk so as to interfere with rightful and proper use by the public.

6. MASTER AND SERVANT (§ 319)—INDEPENDENT CONTRACTORS—NEGLIGENCE—LIABILITY.

Where injury to a pedestrian on a sidewalk results directly from acts called for by a contract between the tenant of abutting property and an independent contractor, and not from acts merely collateral to the contract, the negligence of the contractor's employés is the negligence of the tenant, who is liable for the injury the same as if he directly did the negligent act himself.

Nortoni, J., dissenting.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Personal injury action by Otto Press against Alexander Penny and another. From a judgment for plaintiff, defendants appeal. Reversed. Cause certified to Supreme Court on dissenting opinion.

McKeighan & Watts and Wm. R. Gentry, for appellants. Percy Werner and A. M. Dobie, for respondent.

BLAND, P. J.

The action is to recover damages on account of a personal injury. Succinctly stated, the facts are as follows: Defendants, Alexander Penny and John Gentles, on January 1, 1907, were partners, doing a large retail dry goods business in the building located on the southwest corner of Washington avenue and Broadway, in the city of St. Louis. These streets are public ones and the most traveled of any streets in said city. The Scott & Wolff Painting Company had a contract with defendants by the terms of which they agreed to paint, put up, and take down all signs required by defendants. Under this contract, the painting company put up two canvas signs on the outside of the building about 12 feet from the ground, one on the Washington avenue side, and the other on the end of the building fronting Broadway. The sign on the Washington avenue side was about 12 feet long and 5 feet wide, and was nailed to a frame made of narrow strips of wood and fastened by nails to the wall of the house, just under the second-story windows. On January 12, 1907, defendants requested the painting company to remove the signs. In response to this request, the painting company sent two of its employés (Phillips, a boss, and Rule) to the premises with ladders to remove the signs. On arriving at the premises, Phillips raised his ladder at the west end, and Rule placed his at the east end of the sign fronting Washington avenue. The foot of each ladder rested on the sidewalk about five feet from the building wall, and the top rested against the wall just beneath the lower edge of the sign. Phillips and Rule each ascended his ladder and proceeded to release the canvas by drawing the nails by which it was held to the framework and walls. Rule found the nails at his end well driven in and hard to remove. After loosening the end of the sign, he descended to the pavement and moved his ladder to the west three or four feet, so as to be in a position to draw the nails driven into a cross-strip. Anticipating that the nails in the cross-piece would be as hard to remove as those in the end, he gave a strong pull on the first nail he got hold of with his hammer, and the nail gave way so easily as to cause him to lose his balance. Fearing that he would fall to the ground, he jumped down the ladder, intending to land on a rung several feet below him. Only one foot caught on the rung. This foot was twisted to one side, and Rule continued on down the ladder, falling on plaintiff, who, in passing, happened to be under the ladder at the time. Plaintiff was severely injured. The accident happened about 11:30 a. m. Plaintiff was walking east on the sidewalk and saw the ladder and Rule on it as he approached the place where he was injured; but he did not discover Rule in the act of falling from the ladder, nor did he come in contact with the ladder itself. Contributory negligence is not pleaded, nor is it claimed that plaintiff was guilty of any contributory negligence. The ladder rocked as Rule fell from it, but it was caught by a bystander and prevented from falling. Rule testified that the wind caught the east end of the sign which he had loosened and caused it to "flop," but that the "flopping" did not interfere with his attempt to draw the nails. The act of negligence stated in the petition is as follows: "On the 12th day of January, 1907, the defendants employed certain persons to remove from the front of its said building a certain large muslin or canvas sign attached to a frame from 12 to 15 feet long and about 4 feet wide, which said sign was attached with nails to said building, and that said persons so employed attempted to remove same by setting up two ladders at either end of said sign, extending from the sidewalk up to the front of said building, and whilst...