Schip v. Pabst Brewing Company
| Decision Date | 29 January 1896 |
| Docket Number | 9647--(250) |
| Citation | 66 N.W. 3,64 Minn. 22 |
| Parties | STEPHEN SCHIP v. PABST BREWING COMPANY |
| Court | Minnesota Supreme Court |
Appeal by plaintiff from an order of the district court for Ramsey county, Otis, J., denying a motion for a new trial. Affirmed.
S. P Crosby and M. R. Tyler, for appellant.
Flandrau Squires & Cutcheon, for respondent.
Defendant was the owner of an old stone building, which had been built on the steep side of a bluff at the corner of Wabasha and Third streets in St. Paul. The rear of the building, facing the Mississippi river, was five stories high, while the front was only two stories above the grade of said streets. The building was in a decayed and dangerous condition to such an extent that it became necessary to have it torn down. The defendant advertised for bids for taking down the building, and one Gorton being the lowest bidder, a contract was let to him, whereby he agreed to take down and remove the building in 30 days for the sum of $ 100. Gorton commenced the work, and employed the plaintiff, a common laborer, to assist him. A few days afterwards, plaintiff was injured while so at work by the giving away of the floors and brings this action to recover damages for the injury.
It is alleged in the complaint that the work of taking down the building was of a dangerous character, requiring special skill and care in order to do it safely and without injury to employes; that Gorton was not a careful, skillful, or competent man, which defendant at and before the time it contracted with him knew, "or could readily have ascertained by the exercise of reasonable and ordinary care and prudence." It is further alleged that plaintiff was injured by reason of the incompetency of Gorton, who overloaded the floors with the material taken out of the walls; that plaintiff had no knowledge of the dangerous and defective character of the building, or of the incompetency and unskillfulness of Gorton.
When the character of the case was stated to the court below on the trial, the judge directed that evidence be first given of the relations between defendant and Gorton in the taking down of the building. Plaintiff then introduced the evidence of two witnesses to the effect that Gorton was a total stranger to defendant's agent, Miesen, when the contract was let by Miesen to Gorton, and that Miesen at that time knew nothing about his competency to do such work. The second witness also stated that Miesen (who was defendant's representative) was not around the work during its progress, but that he drove by several times, and stopped once as he was going by. Thereupon plaintiff's counsel stated: Then defendant moved for a dismissal, and thereupon plaintiff offered to prove, among other things, the dangerous character of the building, the incompetency of the contractor, Gorton, and knowledge of all of the same by defendant when the contract was let to Gorton. The offer was refused, and the case dismissed. From an order denying a new trial, plaintiff appeals.
For the purposes of the case we will assume that plaintiff could have proved these offers, and was entitled to do so, if it would result in proving a cause of action against defendant. Counsel for appellant have cited no case which has held the owner liable to the servant of the contractor under such circumstances. There are many cases which hold that the owner of premises cannot, by employing a contractor, relieve himself from the continuing duty which he owes to the public and to the adjoining owners not to maintain a nuisance on his premises, or license any one else to do so. But we can find no case which holds that the owner owes any such continuing duty to the servant of the independent contractor, engaged in the very work of abating the nuisance.
Counsel quotes language from Deford v. State, 30 Md. 179 which, in the...
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