115 Mo. App. 157 | Mo. Ct. App. | 1905
(after stating the .facts). — 1. The mere falling of the wall was presumptive evidence that it had been negligently constructed (Tower v. Haar, 114 Mo. 335), but it is insisted that the appellant was not ah independent contractor and for this reason, if for no other, its demurrer to the respondent’s evidence should have been given.
In Larson v. Railway, 110 Mo. 234, 19 S. W. 416, the defendant contracted in writing for the excavation and masonry necessary for the erection of an .engine house. The contract provided that the excavation should be carried “to such general depth as may be indicated by the engineer” of the railway company, which was done. A house slipped into the excavation made as the engineer directed. On this state of facts, in a suit by the owner of ’ the house against the railway company, the court at page 241, Barclay, J., writing the opinion, said: “It is now an accepted rule that supervision of such work may be retained without interfering with the independent action or liability of contractors who have engaged to perform it or subdivisions of it.” It was held that the supervision in question went further and that the defendant was liable.
In Gayle v. Missouri Car & Foundry Co., 177 Mo. l. c. 446, 76 S. W. 987, the court said:
“The legal test for the determination of this question is stated by Judge Thompson, in his work on Negligence, vol. 2, p. 899, sec. 22, as follows: ‘The general rule is, that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work, not in itself unlawful or attended with danger to others, according to the contractor’s own methods, and without his being subject to control except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractor, or his servants, committed in the prosecution of such work. An independent contractor is one who renders service in the course of an occupation, representing the will of
Appellant contracted to erect the hotel. It hired and discharged its employees at will, pursued its own methods and was not subject to the control of its employer, except as to the results of the work, and we think it was clearly an independent contractor.
The above paragraph applies to appellant’s refused instructions, which for the reason herein stated, we think, were properly refused.
2. Appellant argues that, instruction No. 1 given for respondent, is erroneous on the ground that after the word “and” connecting the,two clauses of the instruction, the jury were not told that they should find “from the evidence/’ that the appellant negligently, etc., that as it reads the jury were authorized to find negligence from any source outside of the evidence. It was ruled in Baker v. Railway, 52 Mo. App. 602; and Rogers & Powers v. Warren, 75 Mo. App. 271, that the omission of the words “from the evidence” in an instruction is not fatal to it when it is seen from the reading they are implied. That those words are implied in the second clause of the instruction, we think admits of no doubt. This clause is joined to the first one by the copulative “and” and admits of no other interpretation than that the jury, to find for respondent, were directed to find two facts from the evidence: first, that appellant was engaged in building the hotel under a contract, and, second, that it negligently and unskillfully constructed and erected the
3. In respect to the windstorm, the court gave the following instruction on behalf of appellant:
“1. The court instructs the jury that if you believe and find from the evidence that the building of the defendant, Buckingham Investment Company, was on the twenty-fifth of December, 1903, being constructed and erected with prudence, diligence, skillfulness and care by the defendant, Southern Illinois Construction Company, under the contract with the Buckingham Investment Company shown in evidence, and that said east wall was properly and sufficiently braced and if you further find from the evidence that on said December 25, 1903, a portion of the east wall of said building fell as the sole and immediate result of a windstorm of unusual and extraordinary violence, then raging in the place where said building was in process of erection, if yqu find from the evidence such a windstorm was then raging, then plaintiff cannot recover in this action, and your verdict must be for the defendant.”
No complaint is made that this instruction did not properly submit the issue of vis major to the jury.
4. A part of two days of the trial was taken up in hearing evidence (over the objection of the appellant) in regard to the quality of the bricks used in the construction of the east wall of the hotel. Their tensile strength had been tested by expert engineers and they had been chemically analyzed by a competent chemist. The evidence of these experts tended to show that the bricks were of inferior quality, that the material in them was no sufficiently bonded, and that the bricks were porous and would crumble under a pressure that good bricks would easily resist. The chemical analysis showed that they would fuse at a temperature that would not affect good bricks. On the second day of the trial, proceeding along this line of testimony, the trial court,
“As I told you this morning, I think that the ruling of yesterday was an incorrect one. I think that extends to the use of improper mortar if there was such used, as well as to the use of improper or defective brick, if there was such used. I think your petition charges two grounds of negligence, one negligent construction and erection, and the other negligent bracing or insufficient bracing, negligence in respect of there being not sufficient bracing, and the words, ‘construction’ and ‘erection’ must under the authorities which I have examined since adjournment yesterday, be held to mean the putting together of the materials that were used, putting together the brick and mortar and wood and the other materials that went to make the construction of the Avail. The objection to this question therefore is sustained.”
Appellant’s counsel contends that while this ruling excluded the incompetent evidence, yet the evidence was of such a nature that no amount of caution on the part of the court could, by a possibility, remove the impression made by it on the minds of the jury. We appreciate the force of this argument, but think that the proper place to make it was to the trial court on the motion for new trial. That court, on account of having both seen and heard the witnesses and marked the effect, if any, the objectionable evidence had on the minds of the jury, was in a much better position than we are to determine whether or not the incompetent evidence influenced the verdict of the jury. For this reason the rule of practice in civil cases (though different in criminal cases) in this State, is that where incompetent evidence is withdrawn from the jury, the verdict will not be set aside on account of the error in admitting it in the first instance. [Anderson v. Railway, 161 Mo. 411, 61 S. W. 874; O’Mellia v. Railway, 115 Mo. 205, 21 S. W. 503; McGinnis v. Loring, 126 Mo. 404, 28 S. W. 750; Stephens v.
We approve the instruction given, and discovering no reversible error in the record, affirm the judgment.