St. Louis & S. Ry. Co. v. Stewart

• Decision Date: 02 June 1916
• Docket Number: No. 17854.,17854.
• Citation: 187 S.W. 836
• Court: Missouri Supreme Court
• Parties: ST. LOUIS & S. RY. CO. v. STEWART et al.

187 S.W. 836

ST. LOUIS & S. RY. CO. v. STEWART et al.

No. 17854.

Supreme Court of Missouri, Division No. 1.

June 2, 1916.

Motion for Rehearing and to Transfer to Court in Banc Overruled July 3, 1916.

Appeal from St. Louis Circuit Court; William T. Jones, Judge.

Action by the St. Louis & Suburban Railway Company against Alexander M. Stewart and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This suit was brought by the plaintiff against the defendants to recover the sum of $25,412.85, the amount of a judgment one Clark recovered against it, in a suit brought by him against the present plaintiff and the Union Iron & Foundry Company, of the city of St. Louis, a subcontractor of the present defendants, who were the original contractors with this plaintiff to construct for it certain coal bins and chutes in said city for the consideration of $7,000; the defendants, by written contract assuming all accidents to materials, workmen, or persons engaged in or about the structure.

The facts of the case, as disclosed by this record, are practically undisputed, and are stated by counsel for defendants substantially as follows:

On August 19, 1904, the plaintiff and the defendants entered into a contract, whereby defendants undertook the work of constructing certain coal bins and chutes for plaintiff at or near its power house, just inside the western limits of the city of St. Louis. The contract price to be paid to the defendants (appellants) for this work was $7,000. The defendants sublet the structural steel work under this contract to the Union Iron & Foundry Company, as an independent contractor. Clark was an employé of the Union Company. On January 17, 1905, at a time when the only persons engaged on the work were those employed by the Union Company, Clark, under the directions of a foreman of the Union Company, one Samuel Armstrong, ascended a pole on which the plaintiff company maintained heavily charged feed wires, leading from its power house to the trolley wires, which furnished the power for the movement of its cars. While undertaking to pass a guy rope over the top of the pole, Clark was shocked and severely injured by the electric current passing through the wires. Plaintiff's evidence shows that these wires carried a current of 6,600 volts, a very powerful and deadly voltage.

The pole upon which Clark climbed and was injured was not upon the immediate premises upon which the coal chute was being erected, but was removed about 20 or 25 feet from the place where the buildings were to be erected, which were in possession of the plaintiff. The pole was in such close proximity to the site of the building as to be considered a part thereof, for certain purposes to be later noted. The poles and wires carrying the electric current were indispensable instrumentalities in the operation of plaintiff's street car system, and were used and operated by plaintiff exclusively for that purpose; and plaintiff owned and had exclusive control over them and over the premises upon which Clark was injured, subject to the implied rights the defendants and their subcontractor had to work around and about them in the performance of certain portions of their said contract, which will be specially considered later.

Clark sued both the plaintiff, the railway company, and his employer, the Union Iron & Foundry Company, to recover for the injuries which he sustained. The appellants herein were not a party to that suit. Upon a trial in the circuit court of the city of St. Louis, there was a verdict and judgment in his favor against the plaintiff railway company for $20,000, but a verdict was returned in favor of the Union Iron & Foundry Company, and judgment was entered against Clark as to that company. Plaintiff appealed from the judgment against it, and Clark appealed from the judgment in favor of his employer, the Union Iron & Foundry Company. In this court Clark's judgment against the plaintiff company was affirmed (Clark v. St. Louis & Suburban Ry. Co., 234 Mo. 396, 137 S. W. 583), and the judgment in favor of the Union Iron & Foundry Company and against Clark was reversed and remanded (234 Mo. 436, 137 S. W. 577, 45 L. R. A. [N. S.] 295). As to the Union Iron & Foundry Company, this court held that it, as Clark's employer, owed Clark a reasonably safe place in which to perform his work; that the dangerous condition of such place may be the result of acts of a third person over whom the master has no control, and yet leave the master liable; and that therefore Clark had established a prima facie case against his employer. Thereafter, on May 29, 1911, Clark dismissed his case in the circuit court as to the Union Iron & Foundry Company, and the judgment was entered in favor of Clark against the plaintiff company for $25,300. This amount represented the original judgment and interest, and the plaintiff company paid same on June 2, 1911, together with $112.85, accrued costs. Having paid the judgment and costs, plaintiff brought this suit against the defendants to reimburse it for the sum so paid to Clark.

The petition of plaintiff against defendants proceeds on the theory that, in their contract of August 19, 1904, for the construction of the coal bins and chutes, the defendants insured or agreed to indemnify the plaintiff against liability for accidents and injuries to all persons or property, arising during the construction of the work, even if such injuries were due to the wrongful act of plaintiff; that the contract was an ordinary builder's contract for the construction of a coal chute upon a certain portion of the property of the plaintiff. The particular provision of the contract which is construed by plaintiff as a liability insurance undertaking is found under the head of "General Conditions" in the specifications forming a part of the contract, and reads as follows:

"The contractor shall assume all risk of accident to materials, workmen or persons engaged in or about the building, and where the building adjoins or fronts on a public thoroughfare shall assume all risk of damage to persons passing the said building, and shall also make good any damage to adjoining property, whether public or private, caused by him or his employés during the construction of the building herein specified, before a final settlement is made and prior to the acceptance of the finished structure."

Upon the trial the plaintiff called Clark as a witness, and he testified that upon the orders of his foreman, Armstrong, employed by the Union Iron & Foundry Company, he climbed the pole in question, to get a guy rope over the wires, which was necessary in the construction of the bins, and that while on top of the pole he was suddenly shocked by the current, thrown from the pole, and severely injured. Clark testified that he did not know when he ascended the pole that the feed wires which caused his injuries were not insulated; that there was a black covering on them, but he did not know what it was, and the moment he came in contact with the wires he was shocked and burnt. He also testified that Armstrong, his foreman, represented the Union Iron & Foundry Company, for which he himself was working, and had no connection with the defendants James Stewart & Co. Clark also testified that the pole where he was injured was not upon the premises where he was putting up the iron work, but was about 20 or 25 feet away therefrom on the property of the St. Louis & Suburban Railway Company, the plaintiff.

Julius Walsh, who was the vice president and general manager of the plaintiff company at the time this work was going on and when Clark was hurt, testified in substance that the wires were...