Chute v. Moeser

Citations

• 77 Kan. 706
• 95 P. 398
• 1908 Kan. LEXIS 326

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>Personal Injuries — Material Falling on a Pedestrian — Independent Contractor — Unforeseen Accident. In an action brought by one who while passing in front of a building was-injured by the falling of a cornice in the process of construction, against the owners of the property, to recover for such injury, based upon two grounds of negligence, namely: (1) that an improper method of construction was used, not being one inherent in the plan, and (2) that sufficient precaution was not taken to protect passers-by against possible injury during the progress of the work, held-. (1) That the defendants were relieved of liability upon the first ground of negligence by findings that the work was being done by a contractor, the owners having nothing to do with it except* to see that it was completed in accordance with the plans, notwithstanding it also appeared that the cornice was a part of a number of improvements being made, including the erection of a new story, only the brickwork and stonework being covered by this contract, and that the owners furnished all the material and made payments upon estimates from time to time at an agreed price per cubic foot; (2) that irrespective of any question regarding the relation of independent contractor the defendants were relieved of liability upon the second ground of negligence by findings that the cornice was of the usual kind; that its fall was occasioned jpy a workman accidently stumbling against it while it was green, and that otherwise it would not have fallen; that a scaffold had been built below the cornice to intercept the fall of material, and thus protect persons using the sidewalk, which was sufficient to catch anything that might naturally be expected to fall and made the walk reasonably safe for passers-by; that this was the usual mode of affording such protection; and that the falling of the cornice was not naturally to have been anticipated as the result of making the improvements.</p>