Wiese v. Remme

• Decision Date: 22 June 1897
• Citation: 41 S.W. 797,140 Mo. 289
• Parties: WIESE et ux. v. REMME.
• Court: Missouri Supreme Court

41 S.W. 797

140 Mo. 289

WIESE et ux. v. REMME.

Supreme Court of Missouri, Division No. 1.

June 22, 1897.

DEATH — PROXIMATE CAUSE — NEGLIGENCE OF LANDLORD — INDEPENDENT CONTRACTOR — CONTRIBUTORY NEGLIGENCE OF PARENTS.

1. In an action for the death of a child, alleged to have been caused by his falling into a hole filled with water, where it might reasonably be inferred from the circumstances that the death resulted from the accident, it was not proper to take the case from the jury on the ground that his death did not occur till three days afterwards, and that there was no direct evidence as to its cause.

2. Where a landlord employed a builder, who was not subject to his orders, except as to the result to be obtained, to build a privy on premises occupied by plaintiffs, he was not liable for the negligence of the builder in leaving an excavation filled with water, which caused the death of plaintiffs' child.

3. Where the death of plaintiffs' child was caused by his falling into an unguarded hole filled with water on premises occupied by them, and they knew of the danger, and could have removed it by covering the hole, they were guilty of contributory negligence.

Appeal from St. Louis circuit court.

Action by Christian Wiese and wife against Charles Remme. From a judgment in favor of defendant, plaintiffs appeal. Affirmed.

H. A. Loevy, for appellants. J. M. Holmes and B. D. Kribben, for respondent.

BRACE, J.

Plaintiffs are husband and wife, and sue in this action to recover the sum of $5,000, damages for the death of their infant son Walter, aged 2 years and 2 months at the time of his death. At the close of the plaintiffs' evidence the court instructed the jury that under the law and the evidence the plaintiffs could not recover. Thereupon the plaintiffs, after saving their exceptions, took a nonsuit, and, failing to have the same set aside upon proper motion, bring the case here by appeal. The material facts disclosed by plaintiffs' evidence are as follows: On the 1st of August, 1892, the defendant, being the owner of certain premises on the southeast corner of Shaw avenue and Edwards street in the city of St. Louis, rented the same to the plaintiff Christian Wiese, who thereafter continued to occupy the premises as defendant's tenant, with his family, consisting of his wife, five boys, and two girls, of whom Walter was the youngest; using two of the rooms that connected with each other for business purposes, — one for a saloon and the other for a grocery store, — and the remainder of the building as a residence. In the back yard, and distant about 40 feet from the building, and used in connection therewith, was a privy, which some time in the fall of 1892 defendant was notified by the city authorities was a nuisance which must be abated. Thereupon he contracted with one Volmer to construct a new privy and vault for the premises, who, in pursuance of such contract, about the middle of December, 1892, by his servants, entered upon the premises, and made an excavation for the vault of the new privy, distant 10 or 15 feet from the old one, about 6 feet long, 4 feet wide, and 7 feet deep, and in the meantime constructed a frame privy, and placed it on the premises near the excavation, ready to be put in place when the excavation was walled up. He did not proceed, however, to have the vault walled, and the privy put in place, but left the work in this condition, excusing himself from proceeding with the brickwork on account of the state of the weather, and so it remained until some time in January, 1893, or later, when the attention of the defendant was called to the condition of the work and the premises by the plaintiffs, in the presence of Volmer, who, upon being rebuked by the defendant for his delay in completing the job, promised that he would at once go on and finish it. This he did not do, however, though frequently importuned by the plaintiffs to do so, but some time thereafter placed a temporary barrier. loosely constructed, of barrels and boxes found in the yard, and belonging to the plaintiffs, around the unprotected sides of the excavation, in which condition it remained until the night of the 12th of April, 1893, when a wind and rain storm arose which filled the excavation with water, and either disarranged or blew aside the materials of the barrier, so as to leave the hole in place practically unguarded. This was the condition in which the premises were on the morning of the 13th of April, 1893, and as they were known to the plaintiffs and every member of their family then, and as they had been known to them during the four months preceding the accident. Plaintiff Christian Wiese, the father, testified: "We had a big rain shortly before this accident. Then it [the hole] got full. On the day my son fell in it was level full. There was no guards or protection or fence around it on that date. There was nothing there to prevent a child or grown person from falling in." That he had looked at the hole often, and considered it dangerous. That the barrier constructed by Volmer was not sufficient to keep a two year old boy out of there. That during the whole four months he (Wiese) took no precaution to protect it. That he "had nothing to do with the hole," and "never did one solitary thing to protect it all that time." Plaintiff Sophie Wiese testified: "I had no servants. Louisa [her daughter] helped me with the housework. She took care of the children, — Rona, five years old, and Walter. * * * Not quite two sides of the hole were in the yard; only a corner. Any child could crawl between the barrels and boxes. * * * I told him [Volmer], when he put them there, they were no good. `Leave them away. They will do more harm than good.' * * * On the afternoon of the day when Walter was drowned, my daughter, me, and the little girl Rona were at home. At that time of day there is not much doing, — business, — so the oldest son went down town, and I took care of the business, and the oldest girl and the two little ones were out in the yard sweeping up the yard after the rain, and hay and such as that was around in the yard, and she raked it up, and brought the rake into the saloon rear door, and set the rake in the corner, for I always kept it in this certain corner; and no more than she had put it there, she was going to take a drink, to take the glass up, she never touched anything in it — the little girl come in the rear door, and hollered, `Mamma! mamma!' and of course I knew what was up then. I ran out, and all I seen of him was just a part of his sleeve, and I kneeled down and pulled him out, and brought him in the house, and called help. When I pulled him out of the water there was no life to be seen in him. The hole was level full of water, level to the top." And in the course of her cross-examination she testified: "He [Volmer] did nothing about protecting the place until a week before...