Searcy v. Noll Welty Lumber Company
| Decision Date | 27 July 1922 |
| Parties | HUGH SEARCY, Appellant, v. NOLL WELTY LUMBER COMPANY |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. Willard P. Hall, Judge.
Affirmed.
E. C Hamilton for appellant.
(1) The court erred in giving the one and only instruction in the nature of a demurrer to the evidence requiring the jury to return a verdict in favor of the defendant. (a) The act of the defendant Lumber Company in placing an obstruction, in the nature of a pile of coal, in a public street, and leaving the same there after dark in violation of the ordinance requiring warning, lights and barriers, was a negligent act for the consequences of which it could not defend by claiming that the duty to remove said obstruction had been delegated to a third person. Cedarland v. Thompson, 200 Mo.App. 618, 624; Daneschocky v. Sieben, 195 Mo.App 473; Brady v. Public Service Ry. Co., 79 A. (N. J.) 288. (b) Where defendant's negligence, and but for which the accident would not have occurred, combined with some other cause or causes, has occasioned an injury, the defendant is still liable, unless such other cause or causes were under the control of the plaintiff in the action, or are the outgrowth of his own conduct. Buckner v. Horse & Mule Co., 221 Mo. 700, 711; Harrison v. Electric Light Co., 195 Mo. 625; Newcomb v. Ry. Co., 169 Mo. 409, 426. (c) Proof of the ordinance requiring those who place obstructions upon the street to place about them warning, lights and barricades, and of failure to conform thereto, made out a prima-facie case. Schlinki v. St. Joseph, 170 Mo.App. 380, 388; Ryan v. Kansas City, 232 Mo. 471, 485; Merritt v. Telephone Co., 215 Mo. 299, 310.
Marley & Reed for respondent.
(1) Bowen had the right to use the street as a place of delivery of the coal. Gerdes v. Iron & Foundry Co., 124 Mo. 354; Hesselbach v. St. Louis, 179 Mo. 523; Press v. Penny and Gentles, 242 Mo. 103. (2) The delivery of the coal at the place shown by the evidence, as requested by Bowen, and the taking of his receipt therefor, as shown by the evidence, constituted a delivery of the ownership and control of the coal from the respondent to Bowen. Poplin v. Brown, 205 S.W. 414; Boyer v. Lumber Co., 174 S.W. 114; Kendall Boot & Shoe Co. v. Bain, 46 Mo.App. 594; Saxon v. Transfer Co., 145 Mo.App. 693. (3) The respondent's leaving the coal at the place designated by Bowen, was not the proximate cause of the injury sustained by the appellant and that the appellant's injury is the result of two intervening agencies: First, that in Bowen failing either to take the coal out of the street before dark or failing to put a light on the coal pile as a warning when he failed to remove the coal from the street or, second, the negligent act of the driver Welch in coasting down grade at a speed of twelve to fifteen miles per hour on the wrong side of the street with no lights throwing rays in front of his car so that he could see the coal pile in time to stop when he admitted that he could have stopped the car within ten feet. Solomon v. Duncan, 194 Mo.App. 517.
Action for personal injuries. On September 22, 1917, plaintiff, while riding in an automobile truck along one of the public thoroughfares of Kansas City, was thrown from the vehicle and injured by its running against a pile of coal. It was after dark, about 8:30 p. m., when the accident occurred. The truck was at the time coasting down hill, with the power shut off, causing the headlights to be so dim that they threw but little if any light on objects ahead. The coal was piled in the street along the curb adjacent to the premises of one Bowen. No barriers were placed about it; on account of shade trees rays from the street lights did not reach it; and no warning lights were displayed.
The coal belonged to Bowen, but it had been deposited in the street by defendant. On the morning of the day on which the accident occurred Bowen gave defendant, which was engaged in selling coal at retail, an order for five tons. Two loads of 5,000 pounds each were hauled to Bowen's residence during the day, the last one reaching there about 2:30 in the afternoon. The first load was deposited in the street at the place heretofore indicated, under Bowen's direction, and the second was piled on top of the first under his further direction. Upon the delivery of each load, in the manner just stated, he gave defendant's driver a receipt therefor. An ordinance of Kansas City provided: "Every person who shall . . . leave any part (of any street) obstructed with rubbish, building or other material during the night time, shall cause the same to be enclosed with good, substantial and sufficient barriers not less than three feet high, and shall cause one red light to be securely and conspicuously posted in or near such . . . obstruction."
The petition counted on both common-law negligence and a violation of the ordinance. The gist of the first was: the placing of the pile of coal in the street and allowing it to remain there after dark without having erected barriers and posted warning signals. The ordinance violation alleged was merely the leaving of the obstruction in the street during the nighttime without having erected barriers and displayed the prescribed signal.
The answer tendered the general issue and that of contributory negligence.
There was a directed verdict for defendant. From the judgment rendered thereon plaintiff appeals.
I. The claimed negligence on which appellant predicates a right of recovery was the placing of the pile of coal in the highway and leaving it there after dark unguarded and without warning lights. Defendant's liability depends upon its connection with these two distinct acts, the one of omission and the other of commission, and the legal consequences flowing from such connection. With respect to the first there can be no...
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