242 Mo. 98 | Mo. | 1912
Lead Opinion
This cause is certified to this court from the St. Louis Court of Appeals because one of the judges of that court sitting therein deems its decision contrary to the decision of this court in the case of Loth v. Columbia Theatre Co., 197 Mo. 328. The opinion of the St. Louis Court of Appeals as well as the dissenting opinion of Norioni, J., is found in volume 134 of the Missouri Appeal Reports at page 121 and following. The judgment at the trial was for the plaintiff. It was reversed by the decision of the Court of Appeals.
The action is for damages suffered by plaintiff on account of personal injuries. The defendants were partners, doing a large retail dry goods business in a building of which they were tenants in possession, situated at the southwest corner of Washington avenue and Broadway, two of the most traveled streets in the city of St. Louis. Scott & Wolf Painting Company had a contract to paint, put up and remove all signs used by them. At the time of the accident, January 12,1907, there was a muslin sign stretched on a wooden frame
The petition upon which the case was tried contains two counts- upon the same injury. The first alleges that the ladder was, by the men working upon it, negligently permitted to fall, and that either the ladder or the man who was working on it fell onto and against the plaintiff. The second count charges that the “use of said street and sidewalk by the defendants under the circumstances mentioned was negligent and wrongful, and constituted a nuisance, and that it was defendants’ duty to have protected plaintiff in his rightful use of said public sidewalk at the time in question, and that by reason of such negligent and wrongful use of the public sidewalk and street, and the breach of said duty by the defendants at the time and place in question, plaintiff sustained the injuries mentioned.” The trial court being very properly of the opinion that upon the facts stated there was no question to submit to the jury other than the assess
The plaintiff in the two counts of his petition presents two separate phases upon either of which he might predicate his right to recover. (1) Negligence of the workman who fell upon him in causing the ladder to fall, and (2) negligence of the defendants in causing or permitting the work in question to be done in the time and manner indicated in the statement. We will for convenience present these questions in inverse order to that in which we have stated them.
I. It being admitted that “the work of removing the sign necessitated the occupancy of the sidewalk with ladders, ’ ’ the question is presented whether or not the defendants in directing the work to be done violated or infringed upon any right of the plaintiff as a traveler upon the street. The abutting proprietor has a right in the use of the street entirely distinct from that of the public. This is usually denominated “the easement of access,” and constitutes, the real foundation and consideration for those special burdens imposed upon them for the construction and improvement of such highways. This right is as much property as the land to which it pertains, and the Legislature can no more deprive a man of one than the other without compensation. [Lackland v. Railroad, 31 Mo. 180.] It has its foundation in a universal necessity, for of what public benefit would highways be unless in connection with the right of ingress and egress for the purpose of the traffic for which they are designed? It is true that the exercise of this right is, like the exercise of the right of the public to travel on the same highways, subject to the reasonable control
Judge Dillon in his excellent work on Municipal Corporations (4 Ed.), sec. 730, says: “But it is not every obstruction, irrespective of its character or purpose, that is illegal, even although not sanctioned by any express legislative or municipal authority. On the contrary, the right of the public to the free and unobstructed use of a street or way is subject to reasonable and necessary limitations and restrictions. The carriage and delivery of fuel, grain, g'oods, etc., are legitimate uses of a street, and may result in a temporary obstruction to the right of public transit. . . . Temporary obstructions of this kind are not invasions of the public easement, but simply incidents to or limitations of it. They can be justified when, and only so long as they are, reasonably necessary. There need be no absolute necessity; it suffices that the necessity is a reasonable one.” This passage is quoted with approval by this court in Gerdes v. Iron Co., 124 Mo. 347, 354, and Corby v. Railroad, 150 Mo. 457, 467.
There is no more useful purpose to which a street may be put in behalf of the abutting proprietor than that which contributes to the growth and material development of the communities which it serves. "While the public requires and demands the best facilities for travel, the necessity for these facilities is founded largely in the material growth and prosperity of the communities who maintain them. For this reason it has always been considered that the abutting proprietor was of right entitled, not only to transfer his materials for improving his premises from the street, but to hold it on the street or sidewalk for a reasonable time to enable it to be transferred directly to his structures. [Tolman v. Chicago, 240 Ill. 275, and cases cited.] The two classes of rights being co-existent
II. It is stipulated by the parties for the purposes of the trial and determination of this case that the muslin sign which was being removed from the front of the defendants’ store at the time and place of the accident belonged to them and was being removed on their behalf by the Scott & Wolff Painting Company, which had a contract to paint, put up and remove all signs used by the defendants. This evidently means that with reference to this work the painting company was an independent contractor employing its own servants and doing the work in its own way, being bound to the defendants only for the result, and that the servants engaged in the work were not the servants of defendants and that therefore the rule respondeat superior does not apply between them, unless there is something in the circumstances of this case to take it out of the general and well established rule. We have seen that in contracting to have this work done the defendants were clearly within their rights, because the use to which the street would be put in the proper performance of the contract was one
The plaintiff, however, insists that there is some thing in its nature which calls for the personal supervision of the owner for whose benefit it is being done so that he cannot relieve himself of personal responsibility for the acts of workmen with whom he has no contract relation whatever. This principle, carried to its logical conclusion, would probably extend to all classes of work involving the use of the streets, and we should be slow to adopt it unless under the compelling influence of a settled judicial policy of our own State.
It is true that an owner who contracts for the creation of a condition on his own property which is dangerous to third persons will be liable for injuries resulting therefrom, for it is evident that one has no more right by contract to set traps for his neighbors than to set them with his own hand. Therefore one who digs or causes to be dug upon his own premises a pitfall so near to the street that travelers in the exercise of their right to pass along it are liable to fall in and be injured, must take care at his own peril to see that it is protected. This he may do personally or by contract, as best suits his convenience; if by contract, however, he is still responsible for the result. But if the contractor, while building a fence to protect it, should carelessly throw a stick or board upon a passer-by or negligently fall upon him himself, the owner would not be liable for a resulting injury, because it would not be caused by the pitfall, nor by the contract to protect it, but by a collateral act done in performance of a contract which does not contemplate, and gives no sanction to, carelessness.
This principle with its limitations is well illustrated by the late Massachusetts case of Davis v. Whiting, 202 Mass. 91. In -that case the defendant, who, like these defendants, was the owner of a large store,
On the trial the following question was asked the jury and answered by them affirmatively in the verdict: “Was the work of painting the shutters necessarily attended with danger to persons passing along Belcher Lane?” There was a verdict for the plaintiff and in its opinion reversing it the Supreme Judicial Court said: “If the question meant, ‘Was there such risk of accident from the probable negligence or want of skill of some of the workmen, as necessarily to involve an appreciable danger of injury to persons passing below,’ there was evidence to warrant the finding. But the finding of this fact would not create a liability on the part of the defendant.” Referring to the same line of Massachusetts cases cited in the plaintiff ’s brief in this case the court said: “It seems that the danger which the jury were permitted to find sufficient to create a liability on the part of this defendant was that which is incident to doing difficult work, where an injury may result from the lack of the exercise of skill and care, or even from pure accident. This is a different kind of danger from that which was made a ground of recovery in the cases above cited.”
The light shed by this opinion upon the very question we are now considering will have to be our excuse for quoting a synopsis of the decision upon this point from the syllabus, as follows: “Where the owner of a building, who employed an independent contractor to paint the shutters thereon, had no right to, and did not, exercise control over the contractor, the mere fact
One phase of this question is illustrated by the decision of this court in Wiggin v. St. Louis, 135 Mo. 558. A traveler fell into an unprotected excavation along the margin of the street, which had been dug as a cellar by a contractor in the performance of a contract to erect a building for the owner. This court reversed a judgment founded on a directed verdict for the owner, on the sole ground that her contract required the contractor to dig a cellar in tjiat place and that, having caused the dangerous condition, the duty was upon her to protect it.
In the City of Independence v. Slack, 134 Mo. 66, the other phase of the same question is illustrated. In that case also there was a directed verdict for the owners, the judgment upon which was sustained by this court. They were engaged in the construction of buildings abutting on the street and of a stone sidewalk on the street in front of the building and had made an excavation and prepared the street for laying the sidewalk. The excavation was guarded so as to prevent persons from falling therein and large stones were brought for use in the construction of the sidewalk. For the purpose of fitting and dressing these stones they were placed upon the street, leaving a passway three or four feet wide between them and the curbing, where they remained for two weeks or more. The owners had contracts with one Stewart to furnish the stones and construct the sidewalks in front of their respective buildings. In holding that the owners were not liable, this court said: £ £ There are some old Eng
The general rule, together with exceptions to its universal application, is well illustrated by the three cases from which we have already quoted. These so-called exceptions, it will be noted, refer to cases in which a primary duty rests upon the owner which he fails to perform. The foundation of his liability is his own failure to perform this duty and not the negligence of the independent contractor or his servants. Different aspects of the same question are also interestingly discussed in the following cases: Long v. Moon, 107 Mo. 334; Crenshaw v. Ullman, 113 Mo. 633; Benjamin v. Railroad, 133 Mo. 274; Williamson v. Fischer, 50 Mo. 198; Richmond v. Sitterding, 101 Va. 354; Hexamer v. Webb, 101 N. Y. 577.
Holding, then, as we do, that the use to which the street was being put in removing the sign in question was a lawful one, founded upon the easement of access incident to .the abutting property, it necessarily follows that such use and the general use of the public are mutual and interdependent. Had the plaintiff negligently knocked down the ladder and thus injured the man working on it, he would have been liable to respond in- damages for the injury, and we can see no reason why a distinction should be made with respect
We do not think Loth v. Columbia Theatre Company, 197 Mo. 328, is an authority against the view we have taken. The judgment against the defendant in that case was reversed and the case remanded by this court on the sole ground that it had been submitted upon the theory that the electric sign there in question was a nuisance per se, when in fact and in law it was not. It is true that the court, in its opinion, stated that under the pleadings and evidence the defendant would, had the case been properly submitted upon' that issue, have been liable, but this statement was founded upon the record in that case, and should be disregarded in this.
It follows that upon the stipulation in this case the finding and judgment of the trial court should have been for the defendant, and its judgment for the plaintiff is accordingly reversed and the decisions of the St. Louis Court of Appeals affirmed.
Bond, C., concurs in the result for the sole reason that the work in question is not such as is ordinarily “attended with danger,” and hence the owner incurred no liability by letting it to a competent contractor.
PEE CURIAM. — The foregoing opinion of Broivn, G., is adopted as the opinion of • the court.
Concurrence Opinion
I concur with the opinion in this case for two additional reasons to those stated therein : first, because the record fails to show that the respondent was injured in consequence of negligence on the part of any one. His injuries were the result of an accident pure and simple (Zeis v. Brewing Association, 205 Mo. 638); and second, even though it be conceded that his injury was the result of negligently pulling the nail, yet it cannot be said that the appellants or the contractors could have reasonably foreseen the result thereof, namely, that the employee pulling the nail would fall from the ladder and upon the respondent.
If the result could not have been reasonably foreseen then there is no liability. [Zeis v. Brewing Assn., supra; Dean v. Railroad, 199 Mo. 386.]
