158 Mo. App. 137 | Mo. Ct. App. | 1911
(after stating the facts). — The doctrine that one is not responsible for the negligence of an independent contractor, his servants, agents, or sub-contractors, in the execution of work, has no place in this case for the reason that the conduct complained of was not that of the independent contractors, etc., but was that of the hotel company’s own agent and servant, the chief engineer. The case should rather be governed by the broad doctrine “that whenever one person is by circumstances placed in a position with regard to another, that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such injury.” [Heaven v. Pender, 11 Q. B. D. 503, 509.] See Loehring v. Construction Co., 118 Mo. App. 163, 94 S. W. 747, where that doctrine is applied by this court in a carefully considered opinion written by Judge Nortoni. Now, here we have a situation wherfe, if plaintiff’s evidence is to be believed, the work of testing the new cable, which alone remained to be done to complete the job undertaken by the plaintiff’s employers, did not include the task or responsibility of turning on the water power, but was confined to watching and adjusting the new cable while the elevator was being operated by the power over which the defendant, Planters Hotel Company, retained control. But, however that may be, the defendant’s chief engineer was in a position of power and authority over the entire mechanical plant of the defendant and reasonably to be assumed to have su
Tbe order of tbe circuit court setting aside tbe verdict is reversed and tbe cause remanded with directions to reinstate tbe verdict and enter judgment for tbe plaintiff thereon as of tbe date when tbe verdict was returned.