Ward v. Ely-Walker Dry Goods Bldg. Co.

• Citation: 248 Mo. 348,154 S.W. 478
• Parties: WARD v. ELY-WALKER DRY GOODS BLDG. CO. et al.
• Decision Date: 01 March 1913
• Court: United States State Supreme Court of Missouri

154 S.W. 478

248 Mo. 348

WARD v. ELY-WALKER DRY GOODS BLDG. CO. et al.

Supreme Court of Missouri.

March 1, 1913.

1. MASTER AND SERVANT (§ 107) — INJURIES TO SERVANT — NEGLIGENCE — ANTICIPATION OF ACCIDENT.

While servants of a fire proofing subcontractor of a building were taking down false work which had supported concrete flooring on the sixth floor, a long board was loosened which caused a short board to fall, striking the projecting end of a crowbar, which was sent flying out of the front of the building where it struck a beam as it went out and fell to the street below, injuring plaintiff, another servant of the fire proofing company subcontractor, as he was entering the building. Held, that the falling of the bar, under such circumstances, could not have been anticipated by exercise of ordinary care, and that the fire proofing company was therefore not negligent.

2. PLEADING (§ 8) — CONCLUSIONS.

Where a special city ordinance was pleaded in plaintiff's petition, it was not essential that it be repeated in the answer; and hence mere statements of legal conclusions as to what defendants conceived to be their rights under the ordinance were unnecessary and superfluous.

3. APPEAL AND ERROR (§ 1042) — RULINGS ON PLEADINGS — REVIEW.

Defendants were not prejudiced by the striking of certain allegations from their answer, where all of their evidence on the subject was admitted.

4. MASTER AND SERVANT (§ 121) — SERVANTS OF SUBCONTRACTOR — INJURIES — CITY ORDINANCE.

A city ordinance requiring the construction of a roof over so much of the sidewalk in front of a building in process of erection as was required to be kept open for passage while material was being used on the street front of the building was not enacted for the sole benefit of travelers on the street, but was equally available for the protection of servants of subcontractors working on the building.

5. MUNICIPAL CORPORATIONS (§§ 808, 809) — DANGEROUS PREMISES — UNCOMPLETED BUILDING — ROOF OVER SIDEWALK.

Where a city ordinance required the roofing of the portion of a sidewalk in front of a building in process of erection that was required to be kept clear for passage while materials were being used on the street front of the building, the ordinance imposed a duty on the owner and contractor of the building for failure to perform, which rendered them liable for injury occurring by reason of such failure, or which would not have occurred had such duty been performed.

6. NEGLIGENCE (§ 56) — DANGEROUS PREMISES — INJURIES — PROXIMATE CAUSE.

Where the owner and general contractor for the construction of a building failed to roof the part of the sidewalk in front of the building required to be kept clear for pedestrians, as required by city ordinance, and plaintiff, a servant of a subcontractor, while passing over the sidewalk into the building, was struck and injured by a crowbar which had been struck by a falling plank on an upper floor and thrown out of the building, the failure to roof was the causa sine qua non, or the proximate cause of the injury.

7. MUNICIPAL CORPORATIONS (§ 808) — DANGEROUS PREMISES — UNCOMPLETED BUILDING — CITY ORDINANCE — CONSTRUCTION.

Where a city ordinance provided that during the progress of building operations at least one-third of the sidewalk in front of the premises shall be kept clear, and if the building is more than four stories high, and is set at or near the street line, a roof shall be constructed over the sidewalk, which shall be maintained as long as material is being used or handled on the street front and above the level of the sidewalk, it did not mean that its protection was to be limited to the hours when material was being used on the street front, and only against injuries caused by the fall of material which was being so used, but required the roofing of the sidewalk in front of such building while the front remained uncompleted, and was for the protection of persons lawfully on the sidewalk from substances falling from the building, whether from the front or hurled from the inside, and during all hours while work on the building was in progress.

8. DAMAGES (§ 62) — DUTY TO MINIMIZE — PERSONAL INJURIES — INSTRUCTIONS.

Where there was evidence that plaintiff's injuries might be benefited by a surgical operation, which was more or less dangerous, the court properly charged that plaintiff was required to take such steps as an ordinarily prudent man would have taken in the exercise of ordinary care to reduce his damages to the minimum; and if he had been advised by a competent surgeon that such operation was necessary, and the evidence showed it would have improved his health, then plaintiff could only recover such sum as plaintiff's damages

would have aggregated if he had had such operation performed.

9. MUNICIPAL CORPORATIONS (§ 822) — DANGEROUS PREMISES — TOOLS FALLING FROM BUILDING — INSTRUCTIONS.

Where plaintiff was injured by a tool falling from the front of an uncompleted building, and there was a conflict in the evidence as to whether the sidewalk had been completed and as to whether it was so blocked by material piled thereon as to be out of use as a sidewalk, and was uncovered in violation of a city ordinance, an instruction on defendant's liability for failure to construct a roof over the sidewalk, leaving it to the jury to find whether, at the time of the injury, plaintiff was walking on the sidewalk was proper.

In Banc. Appeal from St. Louis Circuit Court; J. Hugo Grimm, Judge.

Action by Lafayette Ward against the Ely-Walker Dry Goods Building Company and others. Judgment for plaintiff, and defendants appeal. Affirmed as to defendants Ely-Walker Dry Goods Building Company and James C. Stewart & Co., and reversed as to defendant National Fire Proofing Company.

The plaintiff sued the Ely-Walker Dry Goods Building Company, the firm of James Stewart & Co., composed of Alexander and James C. Stewart, and the National Fire Proofing Company for damages for personal injuries; the amount claimed being $15,000. The verdict was against all the defendants for the full amount claimed. The trial court forced a remittitur of $7,000, and judgment was entered for $8,000, from which the Fire Proofing Company took a separate appeal, and the other defendants took a joint appeal. This opinion covers both appeals.

The Ely-Walker Company, as owner of the premises in November, 1906, contracted with James Stewart & Co. for the construction of a building of seven stories and a basement on the south side of Washington avenue between Sixteenth and Seventeenth streets in the city of St. Louis. The Fire Proofing Company subcontracted with Stewart & Co. to do the fire proofing. The principal contract called for the construction of some other buildings; the total consideration being $1,156,047, and the amount to be paid the subcontractor being $128,000.

There was, at the time of the making of those contracts, an ordinance of the city, the material parts of which were as follows:

"Sec. 925. Extent of Occupation of Street and Sidewalk. The extent of occupation of sidewalk and street to be covered by the terms of a permit for street obstruction or building, shall be as follows: Such permit shall not authorize the occupation of any sidewalk or street or part thereof other than that immediately in front of the premises of the building upon which said permit is issued. During the progress of building operations at least one-third of the permit granted shall at all times be kept free and unobstructed for the purpose of passage and clear of rubbish, dirt and snow. Such sidewalks must, if there are excavations on either side of the same, be protected by substantial railings, which shall be built and maintained thereon so long as such excavations continue to exist. It is not intended hereby to prevent the maintenance of a driveway for the building site. It shall be permitted, for the purpose of delivering material to the basements of the buildings, to elevate such temporary sidewalk to a height not exceeding four feet above the curb level of the street; and in case the sidewalk is so elevated it shall be provided with good and substantial steps on both ends of the sides thereof. If the building to be erected is more than four stories in height, and is set at or near the street line, there shall be built over such sidewalk a roof having a frame work and covering, composed of supports and stringers of three by twelve timbers, not more than eight feet from centers, covered by two layers of two inch planks. Said roof shall be maintained as long as material is being used, or handled on said street front, and above the level of such sidewalk."

"Sec. 927. Penalty. Any person who shall himself violate the provisions of the said next two preceding sections, or by another cause the provisions of the said next two preceding sections to be violated, shall be deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined not less than twenty-five ($25) dollars nor more than one hundred ($100) dollars. (R. C. 1892, § 278.)"

Those sections were re-enacted on March 19, 1907, with the following addition thereto:

"And where excavations are made under or across any sidewalk, the street commissioner is hereby authorized to require such elevated temporary sidewalks to be erected so as to afford safe and convenient passage."

On March 1, 1907, preceding said re-enactment, and while the work was in progress, a special ordinance was enacted, of which the material portion is as follows:

"Section 1. That Ely-Walker Dry Goods Building Company, a corporation under the laws of Missouri, its successors and assigns be and they are hereby authorized and empowered to excavate, build and maintain areas under the sidewalks in city blocks eight hundred and twenty-seven and eight hundred and thirty-two, adjacent to the buildings being erected, or to be erected, on the properties leased to said Ely-Walker Dry Goods Building Company,...