Wiggin v. St. Louis

• Decision Date: 11 November 1896
• Citation: 37 S.W. 528,135 Mo. 558
• Parties: Wiggin v. St. Louis, Appellant
• Court: Missouri Supreme Court

37 S.W. 528

135 Mo. 558

Wiggin v. St. Louis, Appellant

Supreme Court of Missouri, First Division

November 11, 1896

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Affirmed in part and reversed in part.

W. C Marshall for the city of St. Louis, appellant.

(1) The circuit court erred in refusing to give the instruction for a nonsuit offered by the city, both at the close of plaintiff's case and at the close of all the evidence in the case. The evidence is uncontradicted that at the close of business hours on the same evening the excavation was properly guarded and covered, and there is absolutely no evidence in the case that any of these safeguards were insufficient or had been removed, but whether they were removed or not it was not with the sanction or knowledge of the city. Myers v. City of Kansas, 108 Mo. 487; Ball v. Independence, 41 Mo.App. 469. (2) Plaintiff admits that he saw the danger, if there was any, of passing along the sidewalk at this point, and of stepping on the covering over the excavation and in going near the opening in the north wall of the building, and admits that he could have safely passed the point by walking in the street or by taking the sidewalk on the opposite side of the street. Knowing this he took all the risks incident to walking on that part of the sidewalk, and is wanting in due care and the circuit court should have so declared as a matter of law. Cohn v Kansas City, 108 Mo. 387. (3) The excavation which is alleged to have been the negligent cause of plaintiff's injuries was made by Mrs. Marshall, the owner of the property, or her agent. Primarily, therefore, Mrs. Marshall and her agent are responsible, and under section 9, of article 16, of the charter of the city of St. Louis, there can be no judgment against the city unless there is also a judgment for a like amount against them. (4) Counsel for plaintiff seek to avoid this conclusion by contending that as Mrs. Marshall had made a contract with Wittman to build the house, such independent contractor became alone liable. The court erroneously adopted this view. The law is that the principle of respondeat superior does not apply to cases of independent contracts, where the superior exercised no control over the manner of doing the work under contract, but this doctrine "does not apply where the contract directly requires the performance of a work intrinsically dangerous, however skillfully performed." 2 Dillon, Mun. Corp., sec. 1029; Robbins v. Chicago, 4 Wall. 657; Water Co. v. Ware, 16 Wall. 566; Brusso v. Buffalo, 90 N.Y. 679. (5) The court erred in giving instructions asked by plaintiff.

Charles F. Joy, B. D. Kribben, and C. M. Napton for respondent.

(1) Appellant urges that plaintiff might have taken to the street and that he "took the risk" of walking on the planks. This can not be so when he did the most natural thing for a sensible person to do under the circumstances. Halpin v. Kansas City, 76 Mo. 335; Squires v. Chillicothe, 89 Mo. 226; Bassett v. St. Joseph, 53 Mo. 290; Brennan v. St. Louis, 92 Mo. 482; Taubman v. Lexington, 25 Mo.App. 218. (2) Whether the given street is in such a safe condition is a practical question to be determined by the jury in each case. (3) There is no evidence that any third person had removed any safeguards placed there by the contractors, hence Meyers v. Kansas City, 108 Mo. 480, and Ball v. Independence, 41 Mo.App. 469, cited by appellant, are not in point. (4) The action of the court in releasing Marshall from liability is approved by the following authorities: Lancaster v. Ins. Co., 92 Mo. 460; Westliche Post v. Allen, 26 Mo.App. 181; 29 Am. Law Rev., p. 229, et seq. (5) But it is immaterial whether the court erred in releasing the owner Marshall or not. If it was error, it was error of which plaintiff alone could complain. Defendant, the city, lost nothing by the action of the court. There is no such community of proprietorship in a tort as to force a person to sue all those guilty of it. There is no "divinity which doth hedge" a municipal corporation and enable it to evade liability for its torts because some one else also liable is not sued with it. But the point has expressly been decided against the city in the case of Norton v. St. Louis, 97 Mo. 537; City v. Life Ins. Co., 107 Mo. 92.

Macfarlane J. Robinson, J., absent.

OPINION

Macfarlane, J.

The action is to recover damages for bodily injuries received by plaintiff by reason of falling into an excavation on Easton avenue.

One Angelina Marshall was the owner of a lot on said avenue on which one W. H. Wittman, as contractor, was constructing a house for her. At the time of plaintiff's injury the walls of the house, which abutted on the street, had been completed. An excavation about six or seven feet in length, seven feet in depth, and extending out in the street about two feet, had been constructed for the purpose of making a way into the basement. Along this excavation the wall of the building had been left open with a view of putting in a bay window. The walls of the excavation had been built of stone and came above the surface of the ground for five to twelve inches. The space left for a sidewalk was about fifteen feet wide. Mud and ice had accumulated between the curbing and the wall of the excavation.

On the afternoon of March 4, 1893, before Wittman, the contractor, left the building, he covered this excavation with two planks ten inches wide and two inches thick, and put a like plank on edge next the opening in the wall. Plaintiff in passing along the street that evening after dark, in order to avoid the mud and ice, stepped upon these planks and while walking along them stumbled or slipped and fell through the opening in the wall to the floor of the basement, by which he was bruised and otherwise injured, and was confined to his room six days, and was not able to work for fifteen days.

The suit was against the lot owner and her husband, the contractor, and the city of St. Louis.

The petition, after stating the facts, charged that: "all the defendants so carelessly and negligently conducted themselves in reference to the said excavation, that the same was left unguarded, uncovered, open, and without sufficient barriers to prevent persons passing by from falling into the same; and that plaintiff, while lawfully and properly passing along said sidewalk and street, and by reason of the negligence aforesaid, fell, and was precipitated into said excavation and was thereby wounded, bruised, maimed, and permanently injured, to his damage in the said sum of $ 5,000."

The answer of the city of St. Louis was a general denial and contributory negligence.

The answer of Mrs. Marshall and husband was a general denial, a plea of contributory negligence, and a special plea to the effect that the contract for the work was let to Wittman, who was an independent contractor, and they were not responsible for his negligence.

Defendant Wittman made default.

After the introduction of all the evidence the court directed a verdict in favor of defendants Marshall and her husband. The court refused to direct a verdict for the city of St. Louis, though requested. The case was submitted to the jury on instructions, and a verdict for plaintiff for $ 750 was returned, upon which a judgment was rendered, and defendant, the city of St. Louis, appealed.

I. Was the demurrer to the evidence properly overruled as to the city of St. Louis? It is insisted that the ruling of the court was improper, and a nonsuit should have been ordered for the reason that the evidence shows conclusively that the negligence of plaintiff directly and proximately contributed to his injury. A consideration of this question requires a more detailed statement of the evidence.

The sidewalk along that side of the street, that is, the space between the curb line and the building line, was fifteen feet in width. A plank walk, the width of which is not shown, extended up to the lot in question. No sidewalk of any kind was in front of the lot. The ground was muddy and partly covered with ice. The street outside the curb line was open and unobstructed, but whether paved or otherwise improved, does not appear. An electric arc light was hung on each side of the lot about three hundred feet distant from it. When plaintiff reached the lot he was able to see the mud and ice on the street and the two planks lying next the wall of the building. It may also be fairly inferred that he could and did see the opening in the wall. There is no evidence that he saw, or by reasonable care ought to have seen, the excavation inside the building line or the danger of making a misstep while walking on the plank.

It is true plaintiff could have walked out in the street, or through the mud and over the ice, but it was not conclusively negligence for him to choose rather to walk upon the plank which naturally appeared to him to have been placed there for that purpose. He was ignorant of the locality and had no knowledge that the planks had been placed on the sidewalk space for the purpose of covering a dangerous excavation, except what he might have inferred from the fact that they were there. Had he walked on the ice and fallen, we might as reasonably inquire why he did not walk upon the plank which appeared to afford a safe way.

It is true it does not clearly appear, indeed, plaintiff himself does not know, how he came to fall from the plank. He says "There seemed to be an open space in front where it was cut out. It came out and projected from the building and there were two boards to cover this that projected, and in order to keep out of the mud I had to step up probably five or six inches to get up onto those boards, and in making that step, about the second...