Washington University v. AALCO Wrecking Co.

487 S.W.2d 487, 1972 Mo. LEXIS 839
CourtSupreme Court of Missouri
DecidedNovember 13, 1972
DocketNo. 55193
StatusPublished
Cited by5 cases

This text of 487 S.W.2d 487 (Washington University v. AALCO Wrecking Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Washington University v. AALCO Wrecking Co., 487 S.W.2d 487, 1972 Mo. LEXIS 839 (Mo. 1972).

Opinion

HENLEY, Judge.

This is an action for damages in the amount of $850,000 for the destruction of and damage to plaintiff’s buildings by fire allegedly resulting from negligence of defendant. Trial to a jury resulted in a verdict and judgment for defendant. After an unavailing motion for new trial, plaintiff appealed. The appeal was properly pending in this court on January 1, 1972, the effective date of the August, 1970, amendment to Article V, § 3, Constitution of Missouri, V.A.M.S., and we retain jurisdiction to decide the case as required by § 31, |f 4, of the amendment.

The fire occurred in the early morning hours of August 4, 1965, and involved buildings located in a two-block area bordered on the north by Spruce street, on the south by Poplar, on the east by Seventh street and on the west by Ninth. Most of the buildings within this area were constructed in the 1890’s as an integrated railway warehouse complex known generally as Cupples Station. The complex was divided into two groups of buildings by a railroad yard consisting of several sets of tracks of the Terminal Railroad Association. These tracks exited from a tunnel and entered the area from the north at Spruce and what would be Eighth street extended and spread out into several sidings as they ran in a southwesterly direction. Six buildings were in a group on the west side of the railroad yard and thirteen in a group on the east side. The two groups of buildings were connected by two covered bridges (of steel frame and wood construction) above the tracks at about the second floor level of the buildings. Plaintiff owned the land and the six buildings on the west side of the yard; most of plaintiff’s buildings were occupied by tenants. The land and buildings on the east side of the yard were taken by the State Highway Commission sometime prior to April, 1965, for use in connection with the construction of a highway through the near-downtown area close by what is now Busch Stadium.

In that month, defendant, under a contract with the Highway Commission, began demolition of all buildings and other improvements on the east side of the yard, [489]*489except the two bridges. The method of demolition was for the “wreckers” to knock out one brick wall to expose the outermost supporting columns of the building; then a “headache ball” was used to knock out the columns at the bottom; when the last supporting column was thus removed, the area formerly supported by the removed columns would “ * * * shear from the top of the building and fall to the ground.” At the time of the fire, nine of the eastside buildings had been completely demolished; the four remaining were those closest to the tracks. Three of these were still intact and the covered bridges were also still intact with the east ends connected to the two most southerly of the remaining four buildings. Demolition work had commenced on the third building north of Poplar “ * * * and had proceeded to the point where only the westernmost bay and brick wall remained standing.”

Prior to the beginning of demolition the buildings on both sides of the railroad yard were equipped with fire deterrent sprinkler systems and an electrical system which would warn when the sprinkler system had been activated by fire. The method of demolition would not permit continued use of the sprinkler system, hence the system was deactivated in the buildings on the east side of the yard, but was maintained and operable in plaintiff’s buildings. A portion of the electrical alarm system, monitored by Potter Electric Alarm Company, continued to be maintained after demolition was begun and on the night of the fire was in operation in plaintiff’s buildings and from plaintiff’s buildings across the northernmost bridge over the tracks to the second and then north to the third building north of Poplar street on the east side of the railroad yard. At about 2:10 a. m. on August 4, Potter’s control panel recorded a “ground” signal, indicating that the insulation on its wire had been destroyed and the bare wire was touching a pipe or other conductor which ran to the ground. The evidence does not show the location of the point at which the wire was grounded, but it appears to be agreed that the fire caused the “ground.” It also appears to be agreed that, although the sprinkler and alarm systems in plaintiff’s buildings were operable, there was no alarm received that the sprinkler system in the buildings had been activated by fire, and that this was the result of the “ground” of the alarm signal wire.

Plaintiff’s theory of recovery is that the fire started in the area of the buildings being demolished by defendant and, as a result of negligence of the defendant, was permitted to spread to plaintiff’s buildings causing them to burn. The negligence pleaded by plaintiff is, in the alternative, (1) that defendant failed “ * * * to perform its work in accordance with acceptable standards of the demolition and wrecking industry * * * ” in that, inter alia, it failed “ * * * to provide a watchman during the hours when actual wrecking was not being accomplished * * * ”, as a result of which there was such delay in discovery and reporting of the fire as to permit it to grow and spread to plaintiff’s buildings; or, (2) that defendant violated an ordinance of the City of St. Louis which required, inter alia, that during the hours when demolition work was not in progress it secure its buildings against entry by transients or vandals, but if security is not possible, it provide a watchman.1

It is agreed that defendant did not provide a watchman during the hours when actual demolition work was in progress.

Plaintiff contends that the evidence is that on the night of the fire the buildings were not secured against transients or vandals, that it was not possible to so secure [490]*490them, and, since defendant did not provide a watchman, it violated the ordinance and its violation constituted negligence as a matter of law; that it tendered and the court refused to give its instruction A2 which would have submitted the case on the theory that the violation was negligence per se and did not require a finding of negligence by the jury; that the court erred in refusing to give this instruction.

Defendant’s immediate response to this point is, by way of argument, that plaintiff “ * * * chose to proceed on the theory of common law negligence * * * ” by its verdict directing instruction No. 2,3 given by the court, and in discussions with court and counsel regarding the instructions and how the case was to be argued, waived any right it may have had to claim and convict the court of error for its refusal of instruction A. Plaintiff’s proffer of instruction 2 was not by “choice”; it was tendered only after the court had refused to give its first choice, instruction A. We have reviewed the record of the discussions between counsel and the court regarding the instructions and arguments to which defendant refers and do not agree with the conclusions defendant draws. We conclude that plaintiff did not waive or abandon its position that it was entitled to have the court give instruction A.

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Bluebook (online)
487 S.W.2d 487, 1972 Mo. LEXIS 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-university-v-aalco-wrecking-co-mo-1972.