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

• Decision Date: 01 March 1913
• Citation: 154 S.W. 478,248 Mo. 348
• Parties: LAFAYETTE WARD v. ELY-WALKER DRY GOODS BUILDING COMPANY, ALEXANDER M. and JAMES C. STEWART and the NATIONAL FIRE PROOFING COMPANY, Appellants
• Court: Missouri Supreme Court

154 S.W. 478

248 Mo. 348

LAFAYETTE WARD v. ELY-WALKER DRY GOODS BUILDING COMPANY, ALEXANDER M. and JAMES C. STEWART and the NATIONAL FIRE PROOFING COMPANY, Appellants

Supreme Court of Missouri

March 1, 1913

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Reversed as to National Fire Proofing Company; affirmed as to other appellants.

Watts Gentry & Lee for appellant National Fire Proofing Company.

The demurrer to the evidence should have been sustained because the undisputed evidence introduced by plaintiff shows conclusively that the fall of the crowbar upon plaintiff's head was a mere accident or misadventure without any negligence on the part of the master. Railroad v. Oldridge, 76 S.W. 581; Taylor v. Bush & Sons Co., 66 A. 236; Olson v. Andrews, 168 Mass. 261; O'Neil v. Railroad, 130 F. 204; Railroad v. Ryan, 82 Tex. 565; Boyle v. Fire Proofing Co., 182 Mass. 93; Feneff v. Railroad, 82 N.E. 705; Helmke v. Thilmany, 107 Wis. 216; McDonald v. Simpson-Crawford Co., 114 App.Div. (N.Y.) 859; Boldt v. Railroad, 18 N.Y. 432; Mele v. Del. & H. C. Co., 14 N.Y.S. 630; Walsh v. Cullen, 235 Ill. 91; Roland v. Tift, 63 S.E. 133; Willmarth v. Cordoza, 176 F. 1; Ewald v. Railroad, 70 Wis. 420; 5 Am. St. Rep. 178; Higgins v. Railroad, 36 Mo. 418; Kappes v. Shoe Co., 116 Mo.App. 154.

Seneca N. Taylor and S. C. Taylor for appellants Jas. Stewart & Company and Ely-Walker Dry Goods Building Company.

(1) The city ordinance pleaded by plaintiff did not enure to his benefit. Its sole object and purpose was to safeguard sidewalks kept open during the course of constructing the building for pedestrians to pass and repass on the street. Coal Co. v. Neal, 166 Ind. 458; Faris v. Hobers, 134 Ind. 269; Rohback v. Railroad, 43 Mo. 187; Evans v. Railroad, 62 Mo. 49. (2) The law is firmly settled that where the act of negligence complained of as causing injury is at most but the remote occasion of the injury and a subsequent act of negligence by a responsible person intervening was the immediate and proximate cause of injury there can be no recovery. 16 Am. & Eng. Ency. Law, pp. 428, 433, 436, 440; Wharton on Law of Negligence (1 Ed.), secs. 134, 137, 138; Shearman & Redfield on Negligence, sec. 26, on Contributory Negligence (2 Ed.), sec. 31; Hudson v. Railroad, 101 Mo. 14; Railroad v. Kellogg, 94 U.S. 469; Bishop on Non-Contractual Law, secs. 41 and 42; Foley v. McMahon, 114 Mo.App. 447; Powell v. Railroad, 76 Mo. 83; Henry v. Railroad, 76 Mo. 288; Reed v. Railroad, 50 Mo.App. 505; Steep v. Railroad, 85 Mo. 229; Stanley v. Railroad, 114 Mo. 606; Thompson v. Railroad, 14 Mo. 125; Tinsdale v. Norton, 8 Metc. 388; McIntire v. Roberts, 149 Mass. 450; Lewis v. Railroad, 54 Mich. 514; Welfare v. Railroad, 4 Q. B. 693; Mire v. Railroad, 7 So. 473; Railroad v. Powell, 41 S.W. (Tex. Civ. App.) 695; Kappes v. Shoe Co., 116 Mo.App. 171. (3) The judgment should be reversed because the court erred in sustaining the motion of plaintiff to strike out the affirmative defense pleaded by these defendants based on the special ordinance 41406 authorizing these defendants to excavate the entire space which had been used as a sidewalk and obligated them thereafter in due course to construct a sidewalk as specified in said ordinance. Campbell v. Railroad, 175 Mo. 166.

J. F. Merryman for respondent.

(1) The ordinance was passed for the benefit of the public -- for the benefit of every man, woman and child in the city of St. Louis. Dickson v. Railroad, 124 Mo. 140; Cooley on Torts, sec. 336. (2) This is an action founded on the concurrent negligence of three joint tortfeasors and either one of the three is liable if his negligence concurred with that of the other and was a part of the direct and proximate cause. A definition of joint tortfeasors and a citation of a few only of the many, many authorities bearing on the case at bar will suffice. Cooley on Torts, sec. 37, p. 92; 17 Am. & Eng. Ency. Law (1 Ed.), p. 604; Lore v. Mfg. Co., 160 Mo. 624; Harrison v. Light Co., 195 Mo.App. 606; Brash v. St. Louis, 161 Mo. 437; Smith v. Builder's & Trader's Exchange, 91 Wis. 365, 30 L.R.A. 504.

ROY, C. Blair, C., concurs. Graves and Bond, JJ., concur in result.

OPINION

In Banc.

ROY, C.

-- The plaintiff sued the Ely-Walker Dry Goods Building Company, the firm of James Stewart & Company, 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 $ 7000, and judgment was entered for $ 8000, 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 & Company 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 & Company 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 framework 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 dollars. (R. C. 1892, sec. 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 One. 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, as follows: Under the south sidewalk of Washington avenue from the east curb line of Robbins lane eastwardly three hundred and forty-three feet and four inches; under the east sidewalk of said Robbins lane from the south curb line of Washington avenue to the north curb line of St. Charles street; under the north sidewalk of St. Charles street from the east curb line of Robbins lane eastwardly three hundred and ten feet and seven inches; under the east sidewalk of Sixteenth street from the north curb line of Locust street northwardly one hundred and seventy-five feet and six and one-half inches, and under the north side of Locust street from the east curb line of Sixteenth street eastwardly, one hundred and sixty-six feet and ten inches, each such area to be equal in width to the width of the sidewalk over the same, measured from the building line to the curb line. Also to so construct and maintain the sidewalks over said areas, that for a width of not exceeding seven feet measured from the building line, each of said sidewalks adjacent to the building line shall be composed of illuminating or prismatic glass tiling so constructed as to sustain a uniform distributed weight of two hundred pounds for each square foot thereof. Also to excavate, build and maintain a tunnel seventeen feet wide under and across St. Charles street...