O'Brien v. Heman

177 S.W. 805, 191 Mo. App. 477, 1915 Mo. App. LEXIS 380
CourtMissouri Court of Appeals
DecidedJune 8, 1915
StatusPublished
Cited by2 cases

This text of 177 S.W. 805 (O'Brien v. Heman) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Brien v. Heman, 177 S.W. 805, 191 Mo. App. 477, 1915 Mo. App. LEXIS 380 (Mo. Ct. App. 1915).

Opinion

NORTONI, J.

This is a suit under the wrongful death statute for damages accrued to plaintiffs because of the fault of the several defendants. Plaintiffs recovered and defendants prosecute the appeal.

Defendants are August Heman, John C. Heman, the Heman Construction Company, a corporation, and the Burroughs Adding Machine Company, a corporation. The ITemans and the Construction Company prosecute a separate appeal jointly, while the Bur[485]*485roughs Adding Machine Company does likewise. Such distinct appeals will, therefore, he considered separately, hut, in the interest of brevity, the same statement of facts will be employed to portray the general outline of the case. Such facts as are relevant and essential to the understanding of the arguments presented in the different appeals will sufficiently appear in the opinion concerning each.

Plaintiffs, the father and mother of Francis O’Brien, sued, as above stated, for damages occasioned as the result of his death, which occurred by his falling from an alley into the rock quarry situate on the property of the Hemans, but the immediate opening through which he was precipitated into the quarry was across the corner of a lot owned by defendant Burroughs Adding Machine Company which adjoined the Hemans. The several defendants are, therefore, sued as joint tortfeasors in rendering the highway dangerous, as if each contributed in part to the death of the little boy.

We copy from plaintiffs’ brief the statement of facts prepared by their counsel, which sufficiently sets forth the situation as to both appeals.

“There is very little conflict of testimony presented by the record in this case. The facts shown by respondents were, that on the 9th day of August, 1912, the minor child of plaintiffs, a boy named Francis O’Brien, aged twelve years, slipped into the quarry owned and operated by the Hemans, appellants here, and was drowned. At the time of the fatal accident the boy was walking eastwardly in the alley, which is between Laclede avenue and Forest Park boulevard, two public streets in a populous center in the central district of the city of St. Louis, Missouri.

‘ ‘ The alley in question is one hundred and eighty-two feet north of Forest Park boulevard and one hundred and eighty-two feet south of Laclede avenue, running parallel with both streets, and is built up [486]*486solidly on the north line by a row of sheds and fences inclosing the rear of a solid block of flat buildings facing Laclede avenue. Also on the north side of the alley, some seventy-five feet east of the quarry, was the factory building of the Johansen Bros. Shoe Company, where a force of from four hundred to five hundred workers were employed daily. Across the alley from these sheds and this line of fences the Hemans excavated to a depth of about one.hundred and fifty feet, operating a quarry for several years, and, the quarry business having been terminated some time prior to the accident, they were at the time using it as a public dumping hole, for which they charged a fee for dumpage by the load, and for the convenience of which they had erected platforms upon the east and west side of the quarry. Having quarried up to the alley line, the north wall of the quarry presented a perpendicular surface of solid rock, on top of which the soil had slid into the hole in the process of time and through the beating and washing of rains, so that the line upon the surface representing the northernmost edge of the incline was nine feet and four inches into the alley, which, as dedicated and laid out, was twenty feet wide. Along that line the Hemans had erected a rude-two-plank fence, beginning at the west wall of the quarry and running east to a point three and one-half feet west of their eastern line and terminating with the last post eleven feet west of a point where the corner had washed into the quarry.

“The northeast corner of the quarry and all of the eastern side of the quarry were exposed and were not fenced or guarded in any way.

“At said northeast corner the ground had caved in in such a manner as to form a sharp incline or chute or slide, as it was variously called by the witnesses, into which it appeared the residents of the neighborhood had been accustomed, for many years, with the knowledge of the Hemans and without any [487]*487objection from them, to dump ashes and refuse.. This chute ran at a sharp angle in a southwesterly direction .to a point where it attained the corner of the perpendicular rock wall of the quarry proper and then dropped straight down to the water constituting the quarry .pond. The hole was about' one hundred and fifty feet deep, the water about sixty-five feet deep.

“ Along the two-plank fence erected by the He-mans, and principally on the quarry side thereof, had grown grass, high weeds, sunflowers and vines overhanging the edge of the quarry-hole, and having their branches and leaves protruding over and through the fence into the alley. Also along the row of fence and sheds, on the northern boundary of the alley, grass had grown several inches high. In the floor of the alley, where wagons traveled, were packed dirt, ashes and imbedded rocks.

“The. alley was dedicated by the recording of a plat in the office of the recorder of deeds in the year 1892, and in May of that year the Board of Public Improvements certified to the fact that the dedication of said alley was in due and legal form and accepted the same.

“The defendant August Heman acquired his interest in the quarry property, which was an undivided one-half, on January 5, 1891, from the same person who had dedicated this alley and filed the plat of dedication above mentioned. In deeding the property to Mr. Heman it was described and the title conveyed: £to an alley twenty feet wide, bounded north by said alley.’ This deed referred to the recorded plat which had been accepted by the city two years before. The other undivided half interest in this property was acquired by J ohn C. Heman in 1896, by deed from the same grantor, and similarly described the northern boundary of the property. A short time thereafter the property immediately to the east of the ITemans’ property, and contiguous to the same alley, [488]*488was purchased by the Burroughs Adding Machine Company, and was similarly described and bounded in the deed. The business of operating the quarry, and thereafter of operating the dumping-hole, was conducted by the appellant Heman Construction Company, a corporation composed of the two Heman brothers, and Mr. August Heman, when called to the stand, testified on the point of use and occupation of the premises, as well as the operation of the quarry and the dumping-hole, as follows:

“ ‘Q. Who dug the quarry-hole this testimony is about? A. Heman Construction Company. Q. With your and Mr. Heman’s knowledge and consent — Mr. John Heman? A. Yes, sir. Q. After the rock was quarried out of it, what did you use it for? A. Use it as a dump. Q. How long have you been using it as dump ? A. About three years, I guess. Q1. Lid you hire it as a dump? A. Well, I don’t know what you mean by the term “hire.” Charge so much to let them dump in there, that is all. Q. Has the Heman Construction Company got a written lease? A. No, sir. Q'. Just operate it by consent of you and your brother? A. Yes,'sir. Q. It-was your and your brother’s enterprise and this corporation carried it on? A. Yes, sir. Q. Luring all the time- taking out and filling in, too? A. Yes, sir.’-

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rose v. Gunn Fruit Co.
211 S.W. 85 (Missouri Court of Appeals, 1919)
O'Brien v. Burroughs Adding Machine Co.
177 S.W. 811 (Missouri Court of Appeals, 1915)

Cite This Page — Counsel Stack

Bluebook (online)
177 S.W. 805, 191 Mo. App. 477, 1915 Mo. App. LEXIS 380, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-heman-moctapp-1915.