Grogan v. Broadway Foundry Co.

Norton, J. This case is before us on the appeal of defendants from the action of the St. Louis court of appeals affirming a judgment of the circuit court of the city of St. Louis, rendered for plaintiff, in the sum of $3,'500, for the killing of her son by the alleged negligence of defendants. The evidence shows that plaintiff’s, son, about ten years of age, was killed in Collins street, in the city of St. Louis, on the thirty-first day of March, 1881, by reason of the brick wall of a building adjacent to said street falling into said street and upon the son of plaintiff, while playing with two other boys. The evidence also shows that the lot of ground upon which the building, of which the falling wall was a.part, stood, had been leased by the owners to Collins & Holliday for a term of ten years ; that said Collins & Holliday erected the. said building; that the leasehold interest having-been encumbered by mortgage was sold under its provisions in 1876 to S. N. Holliday, who sold and conveyed the same to the defendant, the Broadway Foundry Company, in April, 1876'; that said company owned and used the building as a foundry for working iron, from that time up to about the ninth of January, 1881, when the building was partially destroyed by fire, leaving the walls fronting on Collins street, in whole or in part, standing. The evidence tended to show that in February, 1881, previous to the accident, the Pope Iron & Metal Company purchased of the Broadway Foundry Company the debris of the machinery and fixtures in the building; that the Pope Iron and Metal Company entered upon the premises soon afterwards for the purpose of removing the same, and in so doing weakened the wall so as to cause its fall. On the other hand there was some evi — 325 — dence tending to show that when the Pope Iron & Metal Company commenced removing the materials it had bought the wall was in an unsafe condition and in danger of falling, by reason of its having been weakened by the fire, and that it attempted to support the wall by means of ropes, etc. The evidence also tended to show that the wall after the fire was in a reasonably safe condition, and that public safety did not demand its immediate removal, and that it remained in that condition until within a short time before it fell. .. There was evidence tending to show that after the purchase of the debris by the Pope Iron & Metal Company it held joint possession and control of the building with the Broadway Foundry Company, and, on the contrary, evidence tending to show that the Broadway Foundry Company, after the date of the sale, surrendered entire possession and control of the building to the Pope Iron & Metal Company. There was evidence that on the day the wall fell there was an extraordinary and unusual windstorm ; and also evidence that the windstorm was only such as usually prevailed at that season of the year. There was evidence tending, to show that the wall, •eight or ten days before it fell, had become unsafe and was in a shaky condition, and that Mr. Rohan, who was doing business across the street from where- the wall stood, observing its condition, notified, on the twenty-ninth of March, the proper authorities in writing of its dangerous character ; that the next day the wall was inspected by an officer of the city, and that it fell on the thirty-first day of March. The City of St. Louis, The Broadway Foundry Company, The Pope Iron & Metal Company, as well as the owners of the ground, except one, on which the building stood and out of which the leasehold estate had been carved, were made parties defendant. Plaintiff recovered judgment against all the defendants, except the owners of the lots on which the building was erected. Each of the three defendants — 326 — against whom judgment was obtained has appealed. The specific objections relied upon by the city of Saint Louis will be considered in the order in which they are-made," It is urged that error was committed by the court in refusing the following instructions: “ 1. The court instructs the jury that there is no-proof in this case touching the amount of damages sus* tained by plaintiff by reason of the matters stated in the petition, and the- jury, if they find the issues for the plaintiff, will assess the damages at a nominal sum.” “2. The court instructs the jury that, under the pleadings and evidence in this case, there can be no recovery herein against the city of St. Louis.” “3. If the jury believe from the evidence that the owners of the property occupied ‘ by the Broadway Foundry, on March 1, 1881, or any of them, resided in. the state of Missouri on the fourteenth day of June, 1881, the day this suit wras commenced, and have continued since that day to be residents of said state,, then there can be no recovery in this case against the city of' St. Louis, because said owners so residing in Missouri are necessary parties defendant in this proceeding, and have not been joined as such.” As to the first instruction refused, it may be said, that while the only evidence touching the question of' damages was that the son of plaintiff was ten years of' age when killed, and showing the circumstances and condition in life of plaintiff, the instruction, under the ruling of this court in the case of Nagel v. Mo. Pac. R. R. Co., 75 Mo. 653, in which a similar question was considered, was properly refused. See, also, cases of Ihl v. Railroad, 47 N. Y. 317; City of Chicago v. Mayor, 18 Ill. 349 ; Owen v. Brockschmidt, 54 Mo. 289. The-second instruction was also properly denied, because, there was evidence tending to show that ten or more — 327 — days before the wall in question fell it was in an unsafe condition, and that its dangerous condition, by the exercise of ordinary care, could have been discovered in time, either to have been taken down, or secured so as to have prevented its falling. The third instruction is based upon section nine of the charter (2 R. S., p. 1626), which provides that whenever the city shall be made liable to an action for damages, by reason of the negligence or carelessness of any person or corporation, and such person or corporation shall also be liable to an action on the same account, the party injured, if he sue the city, shall also join such other person or persons, or corporation so liable, if residing in the state so process can be served upon them as defendant or defendants, and no judgment shall be rendered against the city unless judgment is also rendered against such other person or corporation, so liable to be sued ; but no person shall be liable under this act to be sued jointly with the city who would not be liable to be sued separately, irrespective of its provisions. The evidence establishes the fact that the owners of the ground on which the building stood had, in 1873, leased the same for a period of ten years ; this lease had not expired, and the owners had accepted the Broadway Foundry Company as lessees in receiving rent according to its terms. Under this state of facts, during the life of the lease, they were not owners, and inasmuch as the nuisance was neither created nor maintained by them, but by the lessees, we know of no principle upon which an action could have been upheld against such owners, either jointly or severally. Wood on Landlord and Tenant, secs. 538, 541. In the case of Buesching v. Gaslight Co., 73 Mo. 219, the nuisance existed on the property at the time the lease was executed, and it does not, therefore, apply to the facts of this case. The instruction was properly refused. During the pro.sxess of the trial the city offered to read in evidence an ordinance io the eiiecu that ix the — 328 — mayor shall believe, either from the report of the chief of the fire department, or any other reliable information, that any building or structure is in a condition to endanger the lives of persons, he shall notify the owner or agent of such building or structure to have the same removed or otherwise properly secured within three days thereafter, and should such owner or agent fail to comply with the notice it shall be the duty of the fire department to proceed forthwith to have the same demolished. This evidence was excluded and, we think, properly. Whenever it- is discovered by the officers of the city that a structure exists in the sides of one oi its streets, so unsafe as to endanger the lives or persons of those passing over and along the street, the duty, either to remove it or to make it safe and secure, at'once arises, and this duty cannot be shifted from the city to another so as to relieve it from liability for injuries occasioned by it. See City of Kansas v. Huling, ante, 203. It is insisted by the Pope Iron & Metal Company that error was committed in giving the first and second instructions for plaintiff. The first of these instructions predicated the right of plaintiff to recover, both against the Broadway Foundry Company and the Pope Iron & Metal Company, upon the evidence showing to the satisfaction of the jury that said companies had joint possession and control of the ground and building and property thereon, and did remove therefrom machinery and iron, and in so doing, or from the fire, the walls of said building were deprived of necessary support, in consequence of which the wall fell upon and killed the son of plaintiff. The objection urged to this instruction is that it authorized a recovery against the Pope Iron & Metal Company if the wall had been so weakened by the fire as to cause it to fall. If the wall had been so weakéned by the fire as to make it dangerous, and the Pope Iron & Metal Company thereafter had joint possession — 329 — ánd' control with the Broadway Foundry Company, either or both were liable, because in such case the nuisance was continued and maintained by both. Tate v. R. R., 64 Mo. 149 ; Pinney v. Berry, 61 Mo. 359 ; Staple v. Spring, 10 Mass. 77; Rogers v. Stewart, 5 Vt. 215 ; Wood on Nuisances, 869. The only difference between the first and second instructions is, that in the second instruction plaintiff’s right to recover is predicated on an exclusive, instead of, as in the first, on a joint control of the building and this difference in no way affects the principle above stated. The instructions given by the court covered every phase of the case presented by the record, and, -perceiving no error, the judgment is hereby affirmed with the concurrence of all the judges.