Salmon v. Kansas City

• Decision Date: 29 February 1912
• Parties: SALMON v. KANSAS CITY.
• Court: Missouri Supreme Court

145 S.W. 16

SALMON v. KANSAS CITY.

Supreme Court of Missouri.

February 29, 1912.

Rehearing Denied March 1, 1912.

1. MUNICIPAL CORPORATIONS (§ 751)—SEWER IMPROVEMENTS—INJURY TO CONTRACTOR'S EMPLOYÉ—LIABILITY OF CITY.

A municipal sewer construction contract, reserving to the city powers of supervision and control as to the quality of material and the mode of construction, to secure satisfactory performance of the contract, did not make the city liable to the contractor's employé for injury caused by his foreman negligently directing him to drill new holes in rock near unexploded blasts.

2. MUNICIPAL CORPORATIONS (§ 751)—SEWER IMPROVEMENTS—INJURY TO CONTRACTOR'S EMPLOYÉ—LIABILITY OF CITY.

A city is not liable for injury to a sewer contractor's employé caused by his foreman negligently directing him to drill new holes in rock near unexploded blasts, on the theory that blasting is so intrinsically dangerous that the city was bound to protect the employé from the incidental danger.

3. MUNICIPAL CORPORATIONS (§ 751)—SEWER IMPROVEMENTS—INJURY TO CONTRACTOR'S EMPLOYÉ—PLEADING.

In an action against a city for injury to a contractor's employé caused by his foreman's negligence, allegation that the city was negligent in contracting, in that the contractor was insolvent, irresponsible, and not fit or suitable for such work, must be referred to the contractor's pecuniary condition, and is insufficient to show that the contractor was incompetent.

4. MUNICIPAL CORPORATIONS (§ 751)—CONTRACTOR'S EMPLOYÉ—DUTY OF CITY.

A city owes no duty to an employé of a municipal contractor to provide him a competent and skillful employer.

5. MUNICIPAL CORPORATIONS (§ 735)—ORDINANCES —NONENFORCEMENT—LIABILITY.

Not being liable for failure to enforce an ordinance, a city is not responsible for injury

to a municipal contractor's employé for failing to enforce an ordinance requiring a license to qualify one to do blasting.

In Banc. Error to Circuit Court, Jackson County; H. L. McCune, Judge.

Action by John Salmon against Kansas City. Judgment for defendant, and plaintiff brings error. Affirmed.

N. F. Heitman, for plaintiff in error. J. G. Park, A. F. Smith, and F. M. Hayward, for defendant in error.

FERRISS, J.

Appeal from a judgment of the circuit court of Jackson county sustaining a demurrer to the petition filed by plaintiff charging negligence resulting in personal injuries. The petition was filed on the 15th day of July, 1905, and covers nearly 30 printed pages. The suit was filed against Kansas City and Robert J. Boyd Paving & Construction Company, but subsequently dismissed as to the Construction Company.

It appears from the petition that on the 13th day of May, 1901, Kansas City entered into a contract with the Construction Company for constructing a district sewer in said city by said company. In the course of the ensuing work plaintiff was employed by the Construction Company as a common laborer, and was engaged in drilling holes for blasting rock which was encountered in the work of excavation. The petition charges that the method of preparing the blasts was as follows: The drillers, of whom plaintiff was one, would drill a series of holes about two feet apart, after which such holes would be loaded with giant powder or dynamite by one Kelleher, foreman, and one Moriarity, designated as the powder man, employés of the Construction Company, who would then shoot said holes by means of fuses; that it was usual and customary to count the number of holes in a given series before exploding same, then count the explosions to see whether they corresponded with the number of holes, and afterwards to inspect and examine the holes so exploded for missed shots; that the plaintiff and his gang had nothing to do with the loading or exploding of the holes, nor with the subsequent inspection, but that after the holes had been exploded and inspected plaintiff and his gang would be ordered to drill another series of holes; that on the afternoon of Saturday, July 13, 1901, a series of holes which had been drilled by plaintiff were attempted to be exploded by the said foreman and powder man; that on the following Monday plaintiff and his gang were ordered by Foreman Kelleher to go back to the place where such series of holes had been exploded to drill a new series; that one hole of the former series remainded unexploded; and that while at work drilling the new series a driller who was working near plaintiff caused said unexploded shot to be exploded with such force and violence as to seriously injure the plaintiff.

The plaintiff makes the proper averments to negative any contributory negligence on his part. There seems to have been no controversy as to the liability of the Construction Company for the negligence of its superintendent. The real controversy in the case is whether Kansas City is liable. The petition proceeds upon the theory that, because of the power of control reserved in the contract to the city's engineer, the Construction Company was not an independent contractor, and hence the city is liable. In stating below the substance of the petition, we adopt the italics as they appear in the abstract filed by plaintiff. We do not apprehend that these italics appear in the original contract, but use them because they indicate the parts of the contract on which the plaintiff particularly relies.

Plaintiff alleges that the city ordered the construction of the sewer; sets out certain ordinances of the city which provide for the appointment of a city engineer whose duty it should be "to supervise the construction of public and district sewers," also to prepare plans, specifications, and estimates of the cost of all public and district sewers ordered by the council, to report to the board of public works all violations of any contract, to sign all contracts on behalf of the city for public improvements, and to superintend their execution. The petition sets out section 883 of the Revised Ordinances of Kansas City for 1898, as follows: "Permit for Blasting.—No person shall do or cause to be done any blasting within the city limits without first obtaining from the city engineer a permit therefor, which shall be issued only on condition that the city engineer is satisfied that the applicant is in every particular a safe, careful and suitable person to use, and an expert in the use of, all explosives used in blasting, but no permit shall, under any circumstances, be issued to any one until the applicant therefor has entered into a bond to Kansas City in the sum of not less than one hundred dollars or more than ten thousand dollars, as the city engineer may require, with at least two securities, to be approved by the city comptroller, conditioned that such person will carefully and prudently use such explosive, and will pay any and all damages caused any person by the use thereof. And any person can sue on such bond in his own name for any damage caused him by the use of such explosive."

The petition sets out in hæc verba the contract between the city and the Construction Company. This contract is extremely lengthy, is in the usual form of municipal contracts for public works, giving specifications as to the character of the work to be done, materials to be used, all under the supervision of the city engineer. The contract provides that the party of the first part (the Construction Company), having made the lowest bid, agrees to complete the work in a substantial and workmanlike manner, "in conformity with the plans of such work on file in the office of the city engineer of Kansas City, in strict obedience to the directions which may from time to time be given by said city engineer or his authorized agents, in accordance with the following specifications." The specifications provide: "The contractor shall not blast any rock or allow the same to be done on this work without taking such precautions by covering or otherwise as shall prevent damage or injury to person or property." That streets and alleys shall be restored "to the satisfaction of the engineer," surplus earth to be removed to such distance "as may be designated by the engineer," the foundations of the sewer to be either of broken stone, plank, concrete, or masonry, as shall be "ordered by the city engineer," the location of manholes and catch-basins to be changed, or omitted altogether, "if deemed best by the city engineer," no broken bricks to be allowed, "except for closures, or as shall be otherwise specially directed." Then follows a specification as to the character of cement to be used, providing certain tests to be conformed to, "except in such portions of the work as the city engineer may otherwise direct." The character of the concrete is specified, also the manner of preparing it, "unless otherwise ordered by the city engineer." House connections to be worked into the brickwork "in such manner as the engineer may direct." The masonry work to be suspended during freezing weather. "But the city engineer shall have the right to direct that the work shall be continued under such conditions as he shall prescribe." Also that during a suspension of the work from any cause, the same shall be suitably covered and the trenches filled "if the engineer so directs"; the syphon trap used to be satisfactory "in the opinion of the city engineer." Then follows a specification as to maintenance. The sunken trenches to be immediately filled, and if on a paved street, the pavement to be repaired by the contractor at his expense. "on receipt of notice from the city engineer so to do." That if the contractor fails to comply with said "notices from the city engineer for two days, then the city may cause the work of grading" to be done. Then follow some general specifications: "(2) The first party shall commence work at such points as the engineer may direct, and shall conform to his directions as to the order of time in which the different parts of the work shall be done, as well...