Schweickhardt v. City of St. Louis

• Decision Date: 03 July 1876
• Citation: 2 Mo.App. 571
• Parties: HENRY SCHWEICKHARDT, Respondent, v. CITY OF ST. LOUIS et al., Appellants.
• Court: Missouri Court of Appeals

2 Mo.App. 571

HENRY SCHWEICKHARDT, Respondent,

v.CITY OF ST. LOUIS et al., Appellants.

St. Louis Court of Appeals, Missouri.

Jul. 3, 1876.

1. When A employs B to do certain work for him, but does not in any way control or superintend him, he is not liable for injury to third persons, caused by the negligence of B.

2. If A, B, and C are sued by D, and a jury sworn to try the issues as to them all, a verdict finding the issues against A and B only, and saying nothing as to C, should not be received; and a judgment rendered upon such a verdict will be reversed.

3. When the city of St. Louis and an individual are sued jointly for damages occasioned by the negligence of the latter, and the suit is dismissed as to the individual, the record not showing that he is dead, a judgment taken thereafter against the city will be reversed.

4. To render a city liable for an injury occasioned by the dangerous condition of a street or sidewalk, resulting from the negligence or malfeasance of private persons engaged in erecting or repairing buildings, such dangerous condition must be known to the city authorities, and they must have neglected to enforce the municipal regulations respecting persons so engaged.

5. In general, a city is liable for injuries resulting from the dangerous condition of a street or sidewalk only when that condition constitutes a nuisance.

6. There is a legal distinction between a hole or pit occasioned by the subsidence of the soil, or the decay of the materials of which a street or sidewalk is composed, and an excavation which is a necessary part of an improvement.

APPEAL from St. Louis Circuit Court.

Reversed and remanded.James Taussig, for appellants Brown and Schneider, cited: Rev. Ord., ch. 13, Art. 3, sec. 2.

E. T. Farish, for appellant the city of St. Louis, cited: Adams v. Carlisle, 21 Pick. 146; Holmon v. Townsend, 13 Metc. 297; Horton v. Ipswick, 12 Cush. 488; Tuttle v. Holyoke, 6 Gray, 447; Seads v. Dennis, 105 Mass. 310; James v. San Francisco, 6 Cal. 528; Barry v. City of St. Louis, 17 Mo. 121; Green v. Portland, 32 Me. 431; Murphy v. Chicago, 29 Ill. 279.

Gottschalk, for appellants Brown and Schnaider, cited: Barry v. City of St. Louis, 17 Mo. 121; Morgan v. Bowman, 22 Mo. 538; Darnstadter v. Moynehan, 27 Mich. 188; Barbour v. White, 37 Ill. 164; Wood et al. v. McGuire, 17 Geo. 361.

H. N. Hart, and Jecko & Hospes, for respondent, cited: Blake v. City of St. Louis, 40 Mo. 569; Basset v. City of St. Joseph, 53 Mo. 290; Winship v. Enfield, 42 N. H. 197; Market v. City of St. Louis, 56 Mo. 189.

GANTT, P. J., delivered the opinion of the court.

Schweickhardt brought an action, on January 20, 1872, against James Lynch, the city of St. Louis, B. Gratz Brown, Philip W. Schneider, John D. Stone, and Thomas Allen. The amended petition showed that on or about December 11, 1871, the defendants caused to be dug at the intersection of Fifth and Market streets, in the city of St. Louis, a deep and dangerous excavation, and placed in the public street at that point large rocks and other obstructions, rendering the street unsafe, and without signals in the night-time, and plaintiff, walking there, fell, was gravely injured, etc.

Lynch answered, denying that the streets were rendered dangerous by any digging; denying the negligent leaving of the place without signals in the night-time; denying also the injury of plaintiff.

Brown and Schneider denied their negligence; denied that they dug a dangerous excavation, or left it unguarded, and without signals; ignored the injury of the plaintiff, and averred that they, being partners, contracted with James Lynch that he should cut and dress the flagging required to make a sidewalk at corner of Fifth and Market, of red granite, to be delivered to him by Brown and Schneider near Lesperance street, in St. Louis; that they did so deliver such granite to Lynch near Lesperance street, and Lynch did lay the sidewalk at Fifth and Market; but Brown and Schneider had no possession of the street nor sidewalk, nor of the work, and are not responsible for anything done or omitted by Lynch or other persons there.

The city of St. Louis answered, denying that it caused to be dug any such excavation, etc., or placed rock or other obstructions in the streets, or carelessly left any dangerous place unguarded; ignoring the injuries of plaintiff, but denying that, if injured, it was by any fault of the city.

Thomas Allen answered, denying the digging of the excavation, the placing of the obstructions, or the neglect of the precautions stated in the petition, and ignoring the injuries of the plaintiff; alleging that he contracted with Stacey and Stone to build, complete, and deliver to him the building at Fifth and Market streets, and the sidewalks adjoining the same; and that, from the time of the contract until long after the occurrence of the injury complained of, he had no possession, control, or direction of the building, sidewalk, or street.

There was a reply denying the contract between Allen and Stacey and Stone; a reply denying the contract between Lynch and Brown and Schneider; a separate answer was filed by Stone, denying the making of a dangerous excavation, and negligence, and ignoring the injuries of plaintiff.

The cause was tried at the December term, 1874, and the suit was dismissed as to James Lynch. The jury found a verdict against the city of St. Louis, B. Gratz Brown, Thomas Allen, and Philip W. Schneider, in the sum of $3,500. Nothing was said in the verdict of Stone or Stacey. The court thereupon gave judgment against the city, Allen, Brown, and Schneider for $3,500 and costs.

A motion for a new trial, and a motion in arrest of judgment, were overruled, and an appeal was taken to the general term, where the judgment was affirmed.

By the bill of exceptions it appeared that Schweickhardt fell and hurt himself, at the corner of Fifth and Market streets, on December 11, 1871, in the afternoon, after six o'clock. There was no guard and no light.

The plaintiff read section 2, of Article 3, of chapter 13, pages 427 and 428, directing all persons who dig an excavation in or near a highway in St. Louis to cause it to be fenced by a substantial fence, not less than three feet high, the boards of which shall not be more than one foot apart, and cause red lights to be hoisted conspicuously near such excavation, and kept burning through the night.

Sharpenberg testified, for plaintiff, that large granite blocks were lying in the street, near the corner of Fifth and Market. There was an excavation of two feet; some logs. Two of the broad flag-stones were laid before plaintiff was hurt. Sometimes lights were there, sometimes not. Witness, who was a policeman, notified Lynch, to whom Schneider gave the contract of laying the pavement, that no lights were there; notified him three times. Reported him once. Witness had seen Mr. Allen about the building; also saw Schneider looking at the work as it was going on, giving no direction; saw Stone there bossing the men who were putting up the building; saw city officials passing there; no fence to the excavation; no light the night of the accident.

There was evidence tending to show the injuries sustained by the plaintiff.

On the part of the defendants, Heffner, assistant city engineer, was examined to show the width of the streets and of the sidewalks at the corner of Fifth and Market streets. Fruin, who assisted plaintiff into Schneider's saloon when he was hurt, testified to the width of the sidewalk along which plaintiff might have passed. Durgan testified that, on the evening of the accident, about four o'clock, P. M., he lit the lamp and put up guards at the place; witness and his father, whom he called James Lynch, and a man named Sweeney, were at work there. Lynch was laying the flagstones. Lynch has died during the pendency of the suit, and, when the plaintiff's case was closed and part of defendants' case put in, the plaintiff dismissed as to him. He seems to have had no administrator, and to have died wholly insolvent.

Defendants objected to the dismissal of the suit as to him, after the introduction of evidence which, it was alleged, but for his being a party, was inadmissible. The court permitted it, however.

Stone testified that he and Stacey were the contractors for Mr. Allen's building; that Stacey was dead before the injury complained of. Stacey and Stone had the contract for the building, but nothing to do with the pavement of the sidewalk. It was flagged with granite slabs. Mr. Allen testified that he contracted with Brown and Schneider for the flagging of the pavement, and did not know that they made a sub-contract with James Lynch. Witness paid Schneider for it. Barrett, the architect and superintendent of the building, testified. His testimony was not important. Murphy testified that he supervised, under Barrett, the carpenters' work; that Lynch did the flagging in fact, but how employed, witness did not know. Schneider was occasionally there; he took charge after Lynch left; Lynch worked about three weeks.

Evidence was given of the issue of a building permit to Thomas Allen, on the application of Stacey and Stone, contractors; and sections 1 and 2 of the city ordinances (pp. 350, 351, of Rev. Ord. 1871) were read by Mr. Allen's counsel. Also the contract between James Lynch and Brown and Schneider was read, dated November 7, 1871, for laying the flagging in front of Allen's building. Meahcagan, on behalf of Brown and Schneider, testified that Schneider took charge of the work after the making of the contract, and finished it towards the middle of January, 1872. That prior to that time they furnished rock to Lynch by virtue of a contract with him, but had nothing to do with laying the rock. Brown and Schneider had a contract with Allen, and Lynch made a sub-contract with Brown and Schneider.

The court instructed the jury as follows:

“If you believe from the evidence that if it even appears that the plaintiff, at...