Wiese v. Remme

• Decision Date: 22 June 1897
• Citation: 41 S.W. 797,140 Mo. 289
• Parties: Wiese et al., Appellants, v. Remme
• Court: Missouri Supreme Court

41 S.W. 797

140 Mo. 289

Wiese et al., Appellants, v. Remme

Supreme Court of Missouri, First Division

June 22, 1897

Appeal from St. Louis City Circuit Court.

Affirmed.

H. A Loevy for appellant.

(1) Respondent could enter the demised premises to make repairs appellants consenting. 12 Am. and Eng. Ency. of Law, sec 683. He is liable for such damage as is the natural consequence of his wrongful act. Christy, 24 Mo.App. 277, 278. (2) It being his duty to provide a vault, respondent can not escape liability on ground that the work was being done by his contractor. (3) The landlord is liable to his tenants for a nuisance he creates notwithstanding tenants in possession. (4) The landlord is required to keep the property free from nuisance; the tenant is not under obligation to do so. (5) No precise relationship between defendant and the contractor being shown, except that of employment, presumption is that it is that of master and servant. (6) Respondent as employer is liable for his incompetent or negligent contractor or workman, even if latter is an independent contractor. (7) Appellants were not guilty of contributory negligence so far as taking care of the child's person was concerned. It was not their duty to cover the pit, and they can not be condemned for the slightest failure to do so.

J. M. Holmes and B. D. Kribben for respondent.

(1) The evidence shows that the excavation in question was made by an original contractor, and respondent is not answerable for his negligence. Ray on Negligence of Imposed Duties, p. 39, and cases cited. (2) No evidence was offered tending to prove negligence on the part of the contractor. (3) Respondent is not liable as owner of the ground. The primary duty of care and protection of the premises is imposed by law upon the occupants thereof, the plaintiffs in this case. 2 Wood's Landlord and Tenant [2 Ed.], pp. 1286-1295, and cases cited; Leonard v. Storer, 115 Mass. 86; Mellon v. Morrill, 126 Mass. 545; Irvine v. Wood, 51 N.Y. 224. (4) Plaintiffs were guilty of contributory negligence, which clearly appeared from their own testimony, and hence can not recover. 2 Thompson on Negligence, p. 1191; Isabel v. Railroad, 60 Mo. 475; Vogg v. Railroad, 36 S.W. 646. (5) There was no proof tending to show that plaintiffs' child died from the causes set forth in the petition.

OPINION

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 two years and two 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 first 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 Weise, 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 bank yard and distant about forty 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 ten or fifteen feet from the old one, about six feet long, four feet wide, and seven 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 brick work 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 plaintiff, 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 plaintiff 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 twelfth 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 places practically unguarded. This was the condition in which the premises were on the morning of the thirteenth 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 house work. 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 business doing, 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 came 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 the accident. I did not either. The yard was full of mud from the hole, and the new privy house was standing in the middle of the place, and the lumber was there that was torn off the fence and other lumber that he had been using for building purposes. The hole was about (indicating four by six feet) that big."

"Q. It would have been a very easy thing to have covered that over with boards? A. I suppose it would, but it was none of my business to cover it over. There was not plenty of lumber lying around that could be used for that purpose. That from the fence was only scantling; you could break it. It wouldn't even reach over the hole. The boxes and barrels would not stand up on that ground. Only two sides of the hole were within the yard.

"Q. It would have been very easy to have pulled that dirt away and have put a barrier around it? A. (screaming) Oh, man, if I knowed that child would have died I would have covered it up myself.

"Q. Undoubtedly, you could have done so very easily? A. I would have before he would have been drowned.

"Q. Of course, I am only inquiring about it, Mrs. Wiese. A. Oh, you hurt my feelings too much you brute (crying). . . . I considered it dangerous all the time. That is the reason I have been taking care of my child myself. I watched him as I did my own eye, but...