O'Hara v. Laclede Gas Light Co.

BLAND, P. J. (after stating the facts). — 1. The agreement for hauling the pipes, entered into between the Laclede Gas Light Company and the Uffman Coal & Teaming Company, is as follows: “Agreement entered into this twenty-second day of April, 1903, by and between the Uffman Coal and Teaming Company, party of the first part, and the — 433 — Laclede Gas Light Company, party of the second part, both of St. Louis, Mo. Witnesseth: “1st. The party of the first part hereby agrees to haul such quantities of cast-iron gaspipe from cars to streets or lots designated by the party of the second part or from storage lots to streets, and to distribute such pipe along the streets as required by the second party. “2nd. The quantities of pipe to he delivered under this contract shall not be less than eighty tons per day if the second party, requires that amount. “3rd. The first party to unload cars promptly and to protect the second party from all demurrage charges growing out of detention of cars in the railroad yards from any cause whatever, provided not more than five cars are placed on track for unloading in one day. “4th. The party of the first part to he responsible for any damage to pipe in unloading or delivering to lot on the street. “5th. In consideration of the above, the party of the second part hereby agrees to pay the party of the first part at the rate of one dollar and forty-five cents ($1.45) per ton of 2,000 lbs. for all pipe delivered as herein provided. Payments to he made on the tenth of each month for all pipe delivered the previous month.” At the close of all the evidence, defendant moved the court to instruct the jury that under the law and evidence plaintiff was not entitled to recover. The refusal to grant this instruction is assigned as error. Defendant’s contention is that the Uffman Company was an independent contractor for the delivery of the pipes and its servants were not defendant’s servants and for that reason defendant is not liable for their negligence in failing to block the pipes. It is argued that there — 434 — is no testimony that defendant designated any place for the delivery of the pipes, or the particular pipe that rolled upon the O’Hara boy. The first clause of the contract provides that the Uffman Company should distribute the pipes along the streets as required by defendant. This clause of the contract bound the Uffman Company to deliver the pipes to such streets as defendant should designate and distribute them along the streets as directed by defendant. It gave the defendant company the undoubted right to designate not only the street upon which pipes should be delivered, but to say what number of pipes should be delivered upon any particular street and the manner of their distribution, and in this respect left no independent judgment in the Uffman Company. In other words, the Uffman Company was obliged, under the contract, to deliver and distribute the pipe according to defendant’s orders. The evidence shows that the Abbott-Gamble Contracting Company (the company having the contract to place the pipes underground) was laying gas-pipes underground in Howard street for defendant at the time of the accident, and that the pipes were distributed on the street a little ahead of the excavation made by said company; and while there is no direct evidence to show defendant directed the Uffman Company to deliver the particular pipe where it was delivered, yet as' defendant reserved the right to designate where the pipes should be distributed, the fair inference is that it exercised this right and directed the Uffman Company to deliver pipes on the north side of Howard street and distribute -them as they were distributed. Was the Uffman Company an independent contractor as that term is understood in the law? In Fink v. Missouri Furnace Co., 82 Mo. l. c. 283, the Supreme Court adopted Judge Thompsons definition of an independent contractor, which is, “One who renders service in the course of an occupation represent — 435 — ing the will of his employer only as to the result of his work and not as to the means by which it is accomplished.” [1 Thompson’s Commentaries on Negligence, sec. 622.] In the same section the author says: “In every case, the decisive question is, had the defendant the right to control, in the given particular, the conduct of the person doing the wrong?” In Long v. Moon, 107 Mo. l. c. 339-40, 17 S. W. 810, the court said: “The law is well settled that ‘where a person contracts with another, exercising an independent calling, to do a work for him according to the contractor’s own methods and not subject to his control or orders except as to results to be obtained the former is not liable for the wrongful acts of such contractor or his servants.’ [14 Am. and Eng. Ency. Law, p. 830, and cases cited, note 3; Barry v. St. Louis, 17 Mo. 121, and cases cited; Morgan v. Bowman, 22 Mo. 538; Clark’s Adm’x v. Railroad, 36 Mo. 202; Hilsdorf v. St. Louis, 45 Mo. 94; Dillon v. Hunt, 82 Mo. 150; Fink v. Furnace Co., 82 Mo. 276; Blumb v. City of Kansas, 84 Mo. 112; Lancaster v. Insurance Co., 92 Mo. 460, 5 S. W. 23.]” In Crenshaw v. Ullman, 113 Mo. 639, 20 S. W. 1077, the court said: “An independent contractor . . . is one who renders service in the course of an. occupation, representing the will of his employer only as to the result of his work, and not as to the means by which.it is accomplished. The contractor must answer for his own wrongs and the wrongs committed in the course of the work by his servants.” In Gayle v. Missouri Car & Foundry Co., 177 Mo. 1. c. 446, 76 S. W. 987, Judge Thompson’s definition of an independent contractor and the case above cited are approved, and the same definition is given by the Court of Appeals in Burns v. McDonald, 57 Mo. App. 599. The accepted doctrine is, “In cases where the essential object of an agreement is the performance of — 436 — work, the relation of master and servant will not be predicated as between the party for whose benefit the work is to be done, unless the former has retained the right to exercise control over the latter in respect to the manner in which the work is to be done.” Now, while defendant retained the right to designate the streets upon which the Uffman Company should deliver pipes and how they should be distributed on the streets designated, it did not retain control over the manner in which they should be loaded or unloaded, nor had it the right to direct the haulers in what manner or by what means the pipes should be blocked, if blocking was necessary after they were unloaded on the street, and it cannot be said that the teamsters who unloaded the particular pipe were defendant’s servants as well as the servants of the Uffman Company. But the placing of the pipes on the street was by direction of defendant Company and for its exclusive benefit, and in the exercise of a power granted it' by the city, and the death of the O’Hara boy resulted directly from the acts called for in the contract between defendant company and the Uffman Company. The pipes were an obstruction in the street and could not have been lawfully distributed upon it except by permission of the city, hence it was the personal duty of defendant company, to whom the license had been granted to temporarily obstruct the streets with its pipes, to properly guard and block them to avoid injury to pedestrians and to children. Defendant should be charged with knowledge that children would play on the street and be attracted by the pipes. In these circumstances, with respect to the pipes while they were on the street, defendant company occupied the same relation to the public and was under the same obligation as would have been the city had it been engaged in putting the pipes underground. Its duty was a positive one, to guard the pipes to prevent injury to pedestrians and to children playing on the — 437 — street. It could not delegate or shift this duty to an independent contractor (16 Am. and Eng. Ency. of Law, p. 197). The case therefore falls within the exception to the general rule relieving an employer from liability for damages caused by the negligence of an independent contractor. This exception is well stated in the case of Village of Jefferson v. Chapman, 127 Ill. 438, as follows: “Where the party causing the work to be done is under a primary obligation, imposed by law, to keep the subject-matter of the work in a safe condition. The principle upon which this exception is predicated is, that when a duty is so imposed, the responsibility for its faithful performance can not be avoided, and that the party under such obligation can not be relieved therefrom by a contract made with another for the performance, of such duty.” In Woodman v. Metropolitan Railroad, 149 Mass. l. c. 340, it is said: “If the performance of a lawful contract necessarily will bring wrongful consequences to pass unless guarded against, and if, as in the present case, the contract cannot be performed except under the right of the employer, who retains the right of access to the premises, the law may require the employer at his peril to see that due care is used to prevent harm, whatever the nature of his contract with those whom he employs.” In Pettengill v. City of Yonkers, 116 N. Y. 558, it was ruled: “It is the duty of a municipal corporation to keep its streets in a safe condition for public travel, and it is bound to exercise reasonable diligence to accomplish that end;'this is so as well where an obstruction rendering travel unsafe is caused by a third person, as where it is the act of the corporation. “Where, therefore, public or private improvements are being made in a city street causing an obstruction, it is the duty of the city to guard them so as to protect — 438 — travelers on the street from receiving injuries therefrom. “The municipality is not absolved from liability by the fact that the obstruction was caused by a contractor with the city, who by his contract, is bound to properly guard it or to place warning lights.” In Russell v. Inhabitants of the Town of Columbia, 74 Mo. 480, a gas company empowered by law to lay its gaspipes through the streets of a city with the consent of the city authorities, obtained such consent, agreeing on its part to leave the streets in good condition and not to allow* the ditches it might dig to be left open longer than should be necessary to lay or repair the pipes. In the prosecution of its work the company opened a ditch in one. of the streets, which, for want of pipe, was left open for several days. Whilst so exposed, plaintiff, passing at night, fell in and was hurt, “Held, that the city having given the company permission to occupy the street was liable to the same extent as if the ditch had been opened by its own servants, i. e., without proof of notice; that the fact that the city had obtained from the company an agreement for securing the safety of the streets did not do away with the city’s liability, and that the plaintiff, if free from fault or negligence on her part, might recover for the injuries sustained, though she knew of the existence of the ditch when she went into the street.” In Wiggin v. St. Louis, 135 Mo. 558, 37 S. W. 528, it was held that the fact that a building is being constructed by an independent contractor does not exempt the owner from liability for injury to pedestrians, arising from the negligence of the contractor to guard excavations adjacent to the sidewalk and required to be made by the contractor for the building. [See also Benjamin v. Street Railway, 133 Mo. 274, 34 S. W. 590.] The facts in the case of Loth v. Columbia Theatre — 439 — Co., 197 Mo. 328, 94 S. W. 847, were, the Columbia Theatre Company occupied a building fronting on the west side of Sixth street, in the city of St. Louis. Attached to the building and extending over the sidewalk was a balcony supported by posts at the outer edge of the sidewalk. On either side of this balcony, defendant suspended a large sign, from twelve to fourteen feet long and five feet ten inches wide, and weighing from two hundred to three hundred and fifty pounds, according to the number of letters placed thereon. The signs had the attractions of the theatre named and described by electric bulbs arranged in the form of letters. These letters were changed every Sunday morning between eight and eleven o’clock to correspond with the change in attractions. To change the letters it-was necessary to remove the signs from their fastenings and lower them. On Sunday morning, October 22, 1899, plaintiff walked north on the west side of Sixth street and passed under the balcony, at which time workmen were engaged in lowering one of the signs, which fell upon and struck- plaintiff, shattering his leg. The signs were changed under a contract with the Chase Electric Sign Company and it was claimed by the Theatre Company that it was not liable for plaintiff’s injury because the injury was caused by the negligence of an independent contractor. In respect to this defense, Burgess, P. J., writing the opinion of the court, at page 353, said: “The sign was not, we think, a nuisance per se, but that it was dangerous to pedestrians, while being lowered and replaced, no one will deny. The changing of the letters on the sign and the necessary lowering and replacing of said sign was by direction of the defendant company, and for its exclusive benefit;” commenting on and approvingly citing the case of Wiggin v. St. Louis, supra, and after stating the general rule in respect to the nonliability of the owner for the negligence of an independent contractor, at page 354, said: “But — 440 — the injury in the case at bar resulted directly from the acts called for and made necessary by the contract, that is, the changing and replacing of the sign, and not from acts which were merely collateral to the contract, and if by the negligence and carelessness of the men handling the sign it fell upon and injured plaintiff, the company is liable as if it had directly performed such acts. [16 Am. and Eng. Ency. Law (2 Ed.), 196.] In Robbins v. Chicago City, 71 U. S. l. c. 679, it is said: “Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party. [Bridge Co. v. Stenibrock, 61 Ohio St. 215; Deming v. Railroad, 169 N. Y. 1; Inhabitants of Lowell v. Railroad, 40 Mass. 24.]” In 16 Am. and Eng. Ency. of Law, p. 196, under the heading of “Independent Contractors,” it is said: “If the injury results directly from the acts called for or rendered necessary by the contract, and not from acts which are merely collateral to the contract, the employer is liable as if he had himsélf performed such acts.” Placing the pipes to be laid underground on the street was permissible and necessary under the contract and was not merely collateral to the contract; for this reason and for the further reason that defendant could not delegate its personal duty to properly secure the pipes to an independent contractor, it is liable as if it had placed the pipes on the street and left them without blocking. It is also contended by defendant that plaintiff and — 441 — her son, who was killed, were both guilty of contributory negligence. Plaintiff knew the pipes were on the street and knew they were not blocked and were dangerous for children to play about them and warned her son not to go near them. She sent him on an errand to a bakery. This evidence does not prove or tend to prove she was negligent. The boy was in the middle of the street when he was knocked down by the pipe and killed. Plaintiff’s evidence does not show or tend to show her son was on the pipe or near it when it started to roll across the street, nor does it sIioav that he had any agency whatever in starting the pipe to roll; on the contrary, it shows the pipe was put in motion by other children playing on and about it. This evidence refutes the charge that the boy Avas guilty of contributory negligence, therefore the court properly denied the instruction in the nature of a demurrer to the evidence. 2. The court gave the following instructions for plaintiff: “1. If the jury find from the evidence in this case that the plaintiff, Annie O’Hara, Avas the mother of Francis Desmond O’Hara mentioned in the evidence at the time of his death, and if the jury find from the evidence that the father of Francis Desmond O’Hara, Dennis O’Hara, has died since this action was brought, and if the jury find from the evidence that Dennis O’Hara and the plaintiff, the father and mother of Francis Desmond O’Hara, instituted an action in the circuit court of the city of St. Louis on the seventeenth day of September, 1903, against the defendant Laclede Gas Light Company, and others, to recover damages on account of the death of their said son, and if the jury find from the evidence that said action was transferred by a change of venue from the circuit court of the city of St. Louis to the circuit court of the county of St. Louis on the twenty-fourth day of May, 1905, by order of the circuit court of the city of St. — 442 — Louis, and if the jury find from the evidence that on the nineteenth day of June, 1906, the plaintiffs in said action suffered a nonsuit in said action in said circuit court of the county of St. Louis. “And if the jury find from the evidence, that the plaintiffs, Dennis Oi’Hara and Annie O’Hara, instituted this action again on the seventeenth day of July, 1906, against the Laclede Gas Light Company and others for the same cause of action, sued for in said first mentioned action. “And if the jury find from the evidence in this case that Francis Desmond O’Hara at the time of his death was a minor and unmarried. “And if the jury find from the evidence in this case that Howard Street at the time mentioned in the evidence was an open public street within the city of St. Louis. “And if the jury find from the evidence that the Uffman Coal & Teaming Company hauled the iron pipe mentioned in the evidence as injuring plaintiff’s child, and placed it on Howard street at the place mentioned in the evidence. “And if the jury find from the evidence that the said Uffman Coal & Teaming Company hauled said pipe and placed it' on Howard street under a contract with the defendant Laclede Gas Light Company, read in the evidence, for the Laclede Gas Light Company. “And if the jury find from the evidence that said Uffman Coal & Teaming Company by its servants, under said contract placed said pipe on said street, and left it in an insecure condition and so that it was on an incline and uneven surface of said, street, and in such position that it would roll from the place where so placed and injure persons upon said street. “And if the jury find from the evidence that said iron pipe was so placed upon said street to be laid by the Abbott-Gamble Contracting Company for defend — 443 — ant, Laclede Gas Light Company, under contract with the defendant, Laclede Gas Light Company. “And if the jury find from the evidence that said pipe as so placed by the Uffman Coal & Teaming Company was unpropped and unfastened, and would roll upon the surface of said street upon slight pressure or force. “And if the jury find from the evidence that said pipe as so placed upon said street was an attraction to children to be and play on and about said pipe. “And if the jury find from the evidence that defendant and its agents and contractor so placing said pipe upon said street knew or in the exercise of ordinary care, would have known that children would be attracted to play at and about said pipe so placed on. said street, and would be liable to be injured by said pipe rolling from said place when so placed. “And if the jury find from the evidence that defendant and its contractor so causing said pipe to be so placed upon said street and left in said insecure condition, did not exercise ordinary care in doing so. “And if the jury find from the evidence that on the seventeenth day of July, 1903, whilst said pipe was so upon said street, in said insecure condition, in which it was placed and left upon said street by defendant’s said contractors was caused to roll upon and over plaintiffs’ son and so injure him as to cause his death. “And if the jury find from the evidence that the father and mother of said child exercised ordinary care according to their means and station in life to guard said son from said danger by which he was injured. “And if the jury find from the evidence that the deceased son of the plaintiff was at the time of his said injury exercising ordinary care according to his age, discretion and experience, and such care as a boy of his age, discretion and experience would ordinarily use under the same or similar circumstances, then the plain — 444 — tiff is entitled to recover such damages as the jury believe from the evidence will be a fair pecuniary compensation to her for the death of her said son. “2. The court instructs the jury that if the defendant Laclede Gas Light Company, employed the Uffman Goal & Teaming Company to have the iron pipe, mentioned in the evidence as rolling upon and causing the death of plaintiff’s son, hauled and placed in Howard street. Then if the jury find from the evidence that said Uffman Coal & Teaming Company did haul and place said iron pipe in said street and leave it there in the insecure condition set forth in the instruction number one given at instance of the plaintiff. “And if the jury find the facts to be as set out in said instruction number one, defendant Laclede Gas Light Company is liable for the acts of Uffman Coal & Teaming Company in so leaving said pipe in said insecure condition on said street. “And if plaintiff’s son was injured and died from such injury by reason of said pipe rolling upon and over him, and if said pipe was insecure in the position in which it was placed and left by Uffman Coal & Teaming Company as set out in said instruction number one, and if by reason of said insecure condition of said pipe it rolled upon and over plaintiff’s son and killed him as set out in said instruction number one. “And if the father and mother of said child exercised ordinary care, such as parents of their means and station in life ordinarily use to guard their children from danger under the same or similar circumstances, to guard said child from .said danger. “And if the deceased child was exercising ordinary care according to his age, discretion and experience in life, and such care as boys of his age, discretion and experience ordinarily use under the same or similar circumstances at the time of his injury. Then plaintiff is — 445 — entitled to recover against the Laclede Gas Light Company. “3. The court instructs the jury that if they find from the evidence that defendant, Laclede Gas Light Company, employed the Uffman Coal & Teaming Company to haul the iron pipe mentioned in the evidence as killing plaintiff’s son, and place the same on Howard street, and if the jury find from the evidence that Uffman Coal & Teaming Company did haul said iron pipe and place it on Howard street in pursuance of said employment. “And if the jury find from the evidence that the employees of said Uffman Coal & Teaming Company placed said iron pipe on an incline and uneven surface on Howard street, where it was liable to roll upon slight force or pressure, and did not block or fasten said pipe to prevent its rolling from the place where so placed; and if the jury find from the evidence that said servants of Uffman Coal & Teaming Company did not exercise ordinary care in so placing said pipe at said place and leaving it in said insecure condition. “And if the jury find from the evidence that on the seventeenth day of July, 1903, the plaintiff’s son, Francis Desmond O’Hara, was on said street near said iron pipe, and that whilst he was on said street, said iron pipe, by reason of its said insecure and unfastened condition on said street rolled from the place where so placed and killed plaintiff’s said child: “And if the jury find from the evidence that the parents of said child, plaintiff and her deceased husband, exercised ordinary care according to their station and circumstances in life, to guard said child from said danger; “And if the jury find from the evidence that said deceased child was exercising ordinary care according to his age, discretion and experience, ordinarily used under the same or similar circumstances, then the plain — 446 — tiff is entitled to recover and the verdict should be for the plaintiff. “4. If the jury find for the plaintiff, they should assess her damages at such a sum as they believe from the evidence will be a fair pecuniary compensation to her for the loss of the services, care and support to her of her said son from the time of his death until he would have arrived at the age of twenty-one years.” The objections and criticisms to instructions numbers one and two are disposed of by what is said in the first paragraph of the opinion, as is also the objection to the third instruction, except the following: “(c) Said instruction is further erroneous in that it allows a recovery without requiring a finding that the suit was brought in time. There was evidence tending to show that one suit was brought within a year and thereafter that a nonsuit was sustained in it and a second suit brought, but this instruction did not require a finding of these facts as a prerequisite to recovery. “(b) Said instruction is further erroneous because it does not require a finding that plaintiff’s son was an unmarried minor. “(e) Said instruction is erroneous because it does not require a finding that Howard street was a public street.” These objections are supercritical. Objections 0 and D are cured by the first instruction given for plaintiff. In regard to objection E, the evidence of both parties shows that the street had a name (Howard) and that houses fronted on it and were numbered, and that defendant was having pipes laid underground in it. These facts clearly indicate that the street was a public street. Instruction numbered 4, on the measure of damages, is erroneous. Plaintiff was not entitled to recover only on the theory of loss of the services of her child as a corollary to her obligation to support him. Her — 447 — right was to recover in tort and was the same right which the child would have had had he survived the injury. Her right, under the statute, is a transmissible one. [Hennessy v. Baravian Brewing Co., 145 Mo. l. c. 112, 46 S. W. 966, and cases cited; Sharp v. National Biscuit Co., 179 Mo. l. c. 559, 78 S. W. 787; Calcaterra v. Iovaldi, 100 S. W. l. c. 677.] The amourt of damages should have been left to the sound discretion of the jury. The error was therefore prejudicial to plaintiff and furnishes no ground for complaint on the part of defendant. Defendant’s refused instructions C, D, E, F, G, H, and I, proceed upon the thory that defendant was not liable for the negligence of the Uffrnan Company or its agents and servants for the reason it was an independent contractor, and were properly refused. 4. Error is assigned in the refusal of the court to give the following instruction ashed by defendant: “A. The court instructs the jury that if you believe and find from the evidence that the pipe mentioned in the evidence started to roll, not because it had been left on the street mentioned in the evidence without sufficient blocking, but because of interference therewith by children in the neighborhood, then and in that case, the plaintiff is not entitled to recover and your verdict must be for the defendant.” The evidence shows that children in the neighborhood where the pipe was laid were in the habit of playing on the streets and sidewalks in the evening, and it further shows they were playing on and about the pipe when it was put in motion; and also shows that the ground where the pipe was laid was so slanting that the least force would put it in motion, in fact, defendant’s evidence tends to show that it would not remain stationary without blocking. Thus it appears that the pipe left in the street without blocking was not only extremely dangerous but was indeed a death trap for — 448 — children playing upon the street. Wharton says: “So with regard to leaving a dangerous instrument on the highway. It is negligence to leave such an instrument on a place of public access, where persons are expected to be constantly passing and repassing, and where such persons are not required to be on their guard, or where children are accustomed to play.” [Wharton on Neg., sec. 112.] In Dwyer v. Missouri Pacific Ry., 12 Mo. App. 597, it is said: “In an action by a parent for the death of his child, evidence that the defendant erected upon uninclosed ground near its track a low trestle, to which children habitually resorted to play, and placed thereon irons in such a manner that the weight of a child would unset them and that a child threw off one of these irons and was killed by its fall, is competent as tending to show culpable negligence of the defendant. It is immaterial whether the defendant had actual knowledge that children resorted to the trestle in numbers to play thereon; it was bound to take notice of the habits of children, the character of the place, and the natural consequence of so placing the irons.” And in Nagel v. Railway, 75 Mo. 653 (a turntable case), the court at page 661, said: “If defendant was negligent in not securing the turntable, so that it could not be revolved by children, to their injury, the mere fact that it -was revolved by other children who were playing upon it at the time the child was injured, will not excuse defendant, if such act ought to have been foreseen or anticipated by it. That it ought to have been foreseen and provided against is shown by the case of Koons v. Railroad Co., 65 Mo. 592.” The case of Nagel v. Railroad, supra, is approvingly cited in Newcomb v. Railway, 169 Mo. l. c. 428, 69 S. W. 348; Kelley v. Parker-Washington Co., 107 Mo. App. l. c. 494, 81 S. W. 631, and Houck v. Railroad, 116 Mo. App. l. c. 568, 92 S. W. 738. That the case at bar comes — 449 — within this doctrine, there can he no donbt and we think the court was clearly right in refusing the instruction. No reversible error appearing, the judgment is affirmed. Goode, J.j dissents.