96 Mo. App. 479 | Mo. Ct. App. | 1902
The suit was commenced before a justice of the peace, on account, for a balance of $11.25 due plaintiff as wages earned while in the employ of defendant as a journeyman painter. The correctness of the account is admitted.
Defendant filed a counterclaim alleging in substance that prior to May 21, 1901, he contracted with the owner to do certain painting on the building known as No. 1008 on Pine street in the city of St. Louis;
Plaintiff recovered judgment in the justice’s court from which defendant appealed to the circuit court. On a trial anew in the circuit court the issues were submitted to the court without a jury. After hearing' the evidence the court found against the defendant on his counterclaim and rendered judgment for plaintiff for the sum sued for. The defendant duly appealed.
The evidence is that the defendant had a contract with the owner to do certain painting on the building known as 1008 Pine street, city of St. Louis, and on May 21, 1901, sent plaintiff, and Sparks, Oppenheim and Vaughn, other men in his employ, to do the-painting on the building, with the necessary tools and appliances for the-work; that when the painters arrived at ■the building they proceeded to raise to the roof of the building, which is flat, outriggers for the purpose of supporting a swinging stage on the outside of the building for the painters to stand on to do the painting and to lower or raise themselves as the work required. That the outriggers were timbers four inches square and from twelve to sixteen feet long and weighed.from sixty to seventy pounds each. On one end of each outrigger there was an iron band with an eye in which was hooked (after the outriggers had been secured on the roof) blocks, on which were suspended the ropes to support the swinging stage.
The outriggers were to be laid upon the roof of the building with the banded end projecting over the
Sparks and Oppenheim both testified that the outrigger was in a perfectly horizontal position when they let go of it. Vaughn and plaintiff testified that when the signal was given to haul away, they pulled together evenly on the ropes in raising the outrigger. The day was a calm one and there is no cause assigned by the witnesses, or explanation given, as to the cause of the accident. Two persons who heard the crash of the glass when struck by the outrigger testified that they looked and saw one end of the outrigger on the sidewalk, but this is denied by the painters. Plaintiff quit work when the accident occurred.
It is admitted that $57.82 is a reasonable charge for replacing the broken glass with a whole one, and that defendant replaced it.
“If the court, sitting as a jury, believes and finds from the evidence that on the twenty-first day of May, 1901, the plaintiff was in the employ of the defendant as a journeyman painter, and further finds that on said twenty-first day of May the plaintiff with others in like employment was engaged in painting for the defendant a building known as No. 1008 Pine street, in the city of St. Louis, Missouri; and further finds that while so engaged, and while plaintiff and such others with him were raising a timber known as an ‘outrigger’ from the ground to the roof of said building, a glass window or transom in said building was broken by said outrigger striking the same, then the court declares the law to be that the mere breaking of the window affords reasonable evidence that it was broken by reason of the failure of the plaintiff and those working with him to exercise proper or ordinary care in raising said ‘outrigger,’ and the burden of proof is upon the plaintiff to establish to the satisfaction of the court, sitting as a jury, by a preponderance -of evidence that the breaking of said window was not caused by his failure to exercise proper care in raising said ‘outrigger.’
“By the term ‘preponderance of evidence’ as used in this instruction is meant evidence which in the judgment of the court sitting as a jury is entitled to greater weight in respect to its credibility.”
The refusal to give this declaration of law is the only error assigned.
The general rule is that the mere fact of loss or injury occurring by the act or omission of another,'' ■does not raise the presumption of negligence on the part of either party. But this rule does not apply in circumstances- where the occurrence would not have ordinarily happened if due care and diligence had been used by those who had the management of the instrumentality by which the occurrence was brought about. Och v. Railroad, 130 Mo. 1. c. 52, and cases cited. This
In Kaples v. Orth, 61 Wis. 531, plaintiff was sitting on a doorstep when the servant of defendant, an ice dealer, carrying a cake of ice, dropped it upon plaintiff. It was held that negligence might be inferred from the accident. To the same effect are Blanton v. Dold, 109 Mo. 1. c. 74; Minster v. The Citizens' R’y Co., 53 Mo. App. (St. L.) 276; Hill v. Scott, 38 Mo. App. (St. L.) 370; Cummings v. National Furnace Co., 60 Wis. 603; Mulcairn’s Admr., etc., v. Janesville, 67 Wis. 24; Carroll v. Railroad, 99 Wis. 99; Inland & Seaboard Coasting Co. v. Tolson, 139 U. S. 551.
In Mullen v. St. John et al., 57 N. Y. 567, it was held that negligence might be inferred from the falling-of a house into the street, in the absence of explanatory circumstances, it being the duty of the owner to use due care to prevent the house from so falling. In Judson v. Giant Powder Co., 29 L. R. A. 718, it was held that negligence is prima facie presumed from the fact of the explosion of a nitroglycerine factory in the absence of evidence showing care on the part of the employees.
Numerous other authorities, both English and' American, might be cited to support this doctrine but we deem it unnecessary as all the authorities, both English and American, without a respectable exception,, support the doctrine announced in Scott v. London & St. Catherine Dock Co., supra. The application of the doctrine to a given state of facts and not the doctrine itself presents the principal difficulty in most of the
The declaration of law asked by the defendant declared that the happening of the accident was prima facie negligence on the part of both plaintiff and Vaughn. The law makes no such inference where the accident may have been the result of the wrong of the one, or the other, or both. If the accident was occasioned by the negligence of Vaughn alone then plaintiff was guilty of no wrong and he can not be held liable for the wrong-of his fellow-servant. If both had been guilty of negligence resulting in the’accident, then plaintiff would have been liable, notwithstanding Vaughn was not joined with him as defendant in the counterclaim. Zulkee v. Wing, 20 Wis. 408; Schouler on Domestic Relations (5 Ed.), 478. The instruction was therefore erroneous in that it sought to hold the plaintiff liable, independent of the fact that he may
The judgment is affirmed.