10 Mo. App. 61 | Mo. Ct. App. | 1881
delivered the opinion of the court.
This is an action to recover statutory damages from the defendant for its negligence resulting in the death of Charles Fink, the plaintiff’s son, a child of tender years. Under appropriate pleadings, there was evidence tending to show, at the trial, that the defendant is a corporation, and owned and occupied the premises upon which the accident happened. The plaintiff is a widow, and has a family of small children depending upon her for support. She gains a livelihood by washing, scrubbing, whitewashing, and such other like work as she can get to do, and has no income except her earnings. On August 27, 1879, she went to the house of Mr. Williams, in Carondelet, to do some washing, taking with her her youngest child, the deceased, who was but four years old, there being no one at home with whom to leave him. Adjoining the lot on which Mr. Williams’s house stands is
Three errors are complained of by the plaintiff, which we shall speak of separately.
1. The foreman of the defendant was permitted to testify— and properly, we think— against the plaintiff’s objection, that Stevenson was hauling sand at so much per load. This raise<| the question whether he was an independent contractor or the servant of the defendant. The same witness having testified that Stevenson had quit hauling sand from another lot owned by the defendant, the plaintiff asked by whose orders he quit. This question the court ruled out. The plaintiff also asked the same witness whether, at the time of the accident or at any previous time, the defendant could have directed Stevenson to stop hauling from that place. This question the court also ruled out. In these rulings we think the court erred. Whether the relation between the person sought to be charged for an alleged wrong and the immediate actor by whom the alleged wrong was done, was that of master and servant, or proprietor
2. While the general rule must be conceded that a proprietor of land is under no obligation to trespassers who are sui juris — able to take care of themselves — to keep his premises in a safe condition for their benefit (Straub v. Soderer, 53 Mo. 43), yet the law is too well settled to admit of question that such a proprietor is under the duty of using ordinary or reasonable care not to expose unguarded upon his premises any dangerous instrument, or agency, attractive to children, which is likely to kill or injure them when brought into contact with it. Railroad Co. v. Stout, 17 Wall. 657 (affirming s. c. 2 Dill. 202); Keffe v. Railroad Co., 21 Minn. 207; Birge v. Gardiner, 19 Conn. 507; Whirley v. Whiteman, 1 Head, 610; Hydraulic Co. v. Orr, 83 Pa. St. 332. Nay, such a proprietor may not thus attract his neighbor’s dog upon a dangerous instrument (Townsend v. Wathen, 9 East, 277), nor his cattle upon his railway track (Crafton v. Railroad Co., 55 Mo. 580), whereby they are killed, without paying damages for them.
3. When the plaintiff’s evidence was in, the court in
(1.) Upon the first question we are clear of doubt, upon principle and authority, that the defendant was under a duty either to prosecute the work' of excavating in a different manner than by undermining, or else to maintain a fence or other safeguard against trespassing children. Persons who carry on a dangerous work in a neighborhood where there are many small children are fairly bound, we think, to take notice of the habits of small children. The managing agents of the defendant were bound to know that nothing is more attractive, or more tempting, to small children than an excavation in a sand bank, or a pile of loose sand in which they can play. They were bound to know that in a populous neighborhood where there were many small children, the work of excavating such a pit by undermining would be highly dangerous to them, unless some measures were taken to keep them away from it. And while it is true that no person is bound to take better care of his neighbor’s children than his neighbor is bound to take of his own children; while it is not negligence in one person not to anticipate and guard against the future negligence of another person (Kellogg v. Railway Co., 26 Wis. 223; Fox v. Sackett, 10 Allen, 535; Damour v.
(2.) If we examine the question, whether the defendant was guilty of a want of reasonable care in the discharge of this duty of excavating this sand-pit by excavating into the horizontal bank three or four feet, and then leaving it exposed to trespassing children during the interval between the time when the defendant’s servant departed with one load and returned for another, We shall have no difficulty in answering the question upon principle. It was certainly a most dangerous dead-fall. It presented an appearance of solidity and permanency, such as would convey no suggestion of danger to the infantile mind till the superincumbent mass was upon him. If we look at the question in the light of analagous cases, we find that this case is much stronger for the plaintiff than several in the books which have been quoted as authority. Thus, in Lynch v. Nurdin, 1 Q.B. 29, the dangerous thing which the defendant’s servant left exposed was a horse and cart in the streets of London. There was no evidence that the horse was not an ordinarily gentle one; but the negligence consisted in leaving it exposed unguarded and unhitched. The plaintiff, a child of tender years, was injured by climbing upon the cart, and by the circumstance that another boy led the horse forward. It was held proper to put these facts to a jury as evidence of negligence. This case was decided in 1839. It has been greatly quoted as authority both in England and in this country, and has seldom been questioned. See, for a confirmation of this fact, the table of cases in Thomp. on Neg. ci, sub nom. “Lynch v. Nurdin.” In the leading American case on the same subject — Birge v. Gardiner, 19 Conn. 507 — the dangerous thing was nothing more than
The recent case of Hydraulic Company v. Orr, 83 Pa. St. 332, was somewhat similar to those preceding. The place of the injury was a private alley-way of a manufacturing establishment in a populous city, Philadelphia. The thing which caused it was the platform of an elevator weighing about eight hundred pounds, which when not in use was leaned up against the wall, at such an inclination that it sometimes fell down of its own weight. The gates of the alley-way having been left open, a child six years old, with several other companions, strayed into the alley-way, and while at play under the platform, it fell on them, injuring all' of them, and the child of the plaintiff so badly that he died. It was held that this case was properly put to the jury. In giving the judgment of the court in this case, Agnew, J., used the following strong language: “ Now, can it be right
In the argument it was insisted by counsel for the defendant, that the children were not in the pit when the earth fell, but on top, at the edge of the excavation. We have
But the foregoing principles may not operate to charge the defendant in the present case, if the defendant’s contention is true, that the colored man Stevenson, who left the sand-pit in this dangerous condition,'was an independent contractor, not subject to the defendant’s control as to the manner of prosecuting the work of excavating. If the peremptory instruction given by the learned judge can be supported on this ground, then the plaintiff is entitled to fall back on the error which we have already pointed out, of excluding testimony which she offered tending to show that Stevenson was in fact subject to the defendant’s control, and in either case she is entitled to a reversal of the judgment. But we do .not wish to be understood as holding that the testimony which was admitted as to the relation between the defendant and Stevenson, was not sufficient to warrant the jury in finding that that relation was the relation of master and servant. On the contrary, we are of opinion, in view of the cases on this point which we have already cited, that where it is shown that a common laborer is working for the proprietor upon his land at an employment which does not involve any special art or skill, and the precise relation between him and the proprietor is not shown, the relation between them is presumptively that of master and servant, and that this presumption is not conclusively rebutted by the circumstance that he was not working by the day, week, or month, but by the piece, or even by the job. We therefore think that, in the state of the evidence, the learned judge could not have rightfully withdrawn the case from the jury upon this ground.
Reversed and remanded.