272 Mo. 266 | Mo. | 1917
The city of St. Louis appeals from an adverse judgment in an action instituted against it and others to recover damages for injuries to certain residences from an explosion of dynamite in the posses-sion of a contractor who was constructing a sewer. Judgment went against the contractor, also, but it did not appeal. The finding for respondent was upon twelve' counts, the first of which is typical of the rest and al-. leged, substantially: that respondent owned certain realty and the buildings thereon, in St. Louis City; that certain defendants had contracted with the city to build a sewer; that the city,' prior to letting the contract, had tested the ground along the line of the proposed sewer in order to ascertain the nature thereof and thereby discovered that in the process of construction it would
The other counts were based upon injuries from the same explosion to the properties of other persons who had assigned their causes of action to respondent Holman.
The city’s answer consisted of (1) a general denial; (2) a plea.of misjoinder; (3) a plea that contractor was an independent contractor; (4) a specific denial that the sewer contract required the bringing, and storing in the street or elsewhere, near the property of respondent or his assignors, “any large quantity of dynamite;” and (5) that the “explosion, if any, . . . did not occur in and was not incident to the performance of anything required, to be done by the contract of this defendant, with its said contractors, but oc
The briefs proceed upon the theory that the relation between the city and the corporation constructing the sewer was that of contractee and independent contractor. Respondent does not contend the relation was any other, and our attention has been called to nothing in the contract which discloses anything warranting a different conclusion.
The evidence tends to show the plans disclosed it would be necessary, in the construction of the sewer, to remove large quantities of rock, and tends to show that, in the circumstances, the only practical method of removing such rock involved blasting operations, and that dynamite was customarily employed for such purpose, being the safest explosive available therefor. It further tends to show the contractor had installed in a shed erected in Canterbury Avenue, near appellant’s residence, a gasoline engine, equipped to operate an air-compressor, a device employed in drilling into the rock in preparation for blasting; that a small gasoline tank was connected with the engine and directly supplied it with fuel, while a larger tank, containing a reserve supply of gasoline, was placed a few feet from the engine; that dynamite, in a box or boxes, once or twice previously had been seen in the same shed. There was also evidence that one of appellant’s policemen two days before the explosion had observed a box marked “dynamite” just outside of the shed; and that boxes simi larly labeled had once before the explosion been seen in the shed, and at least one box containing dynamite was seen in the shed about an hour .before the explosion; that just before nine o’clock A. M., November 18, 1910, the shed mentioned was observed to be on fire and soon thereafter there was an explosion which demolished the shed, destroyed the large gasoline tank, broke the muffler of the engine, created a hole in the ground about two feet deep and four or five feet across, broke an iron pipe and injured dwellings for several blocks
(a) That rule imposes upon a plaintiff, so far as any question of law is concerned, the duty of offering substántial evidence tending to show that the cause for which defendant is liable produced the injury. The trier of the facts, under proper instructions, passes upon the question of fact involved just as upon any other such question, and the quantum of evidence necessary to sustain a finding thereon differs not at all from that required on other issues of. fact. We can no-more weigh conflicting evidence on such an issue than on any other.
(b) Even if appellant’s apparent view, that this court will weigh the -evidence on this issue, were correct, we have no hesitancy in saying that the record discloses the evidence preponderates in favor of the conclusion that there was an explosion of dynamite.
III. Is the city liable for failure to put an end to the use of the street in the manner which resulted in the damages sued for!
These facts, if found, taken most strongly against appellant, warranted-the conclusion that the contractor had created a nuisance in the street. “In determining the question [whether or not a nuisance] the locality, the quantity and manner of keeping will all be considered, as well also as the nature of the explosive and its liability to accidental explosion.” [1 Wood on Nuisances, sec. 140.] In some eases, negligence of a character to make
Waiving for the moment the question whether there was any evidence of such “storing” and “keeping” of dynamite in the shed, we shall assume a finding bringing the case within the rule quoted.
In Smyth v. New York, 203 N. Y. l. c. 111, the city was held not liable for damages resulting from the explosion of an excessive amount of dynamite kept by contractors in a city street, without proper precautions being-taken to prevent an explosion. It was held the street, in