ies held not erroneous, as unduly emphasizing | feet in height. The west wall was 30 inches evidence.

10. Negligence 139 (7)-Instruction on owner's duty to inspect wall of burned building held not misleading.

thick at the base and 18 inches at the top; the west side was perpendicular; the east side was broken by steps or offsets about 20 feet apart where the wall was reduced in In an action against the owner of a burned | thickness. There were rows of windows in building for injuries caused when a wall fell the wall at the fifth and sixth floors. Adon a person on adjacent premises, an instruc- joining on the west was a 4-story brick tion relative to negligence in determining the building, leased by the St. Louis Seed Comsafety of the wall held not erroneous, as per- pany. The west wall of the defendant's mitting defendant to act upon its appearance, instead of requiring him to make a careful in- building extended about 40 feet above the seed company's building. It had a frontage of about 35 feet and a depth of about 100

spection.

11. Negligence 139 (7)-Instruction not erroneous as excusing owner of burned build-feet. ing from forecasting weather conditions.

In an action against the owner of a burned building for injuries caused when a wall fell on a person on adjacent premises, an instruction as to negligence in determining the safety of the wall held not erroneous, as excusing defendant from forecasting the condition of the weather likely to arise.

12. Trial 256(1)-If instructions cient, others should be requested.

Where instructions do not go far enough in plaintiff's favor, he should ask for others, presenting the theories of law contended for by him.

On Monday, March 9, 1914, the defendant's building was destroyed by fire, which started very early in the morning of that day, and was not extinguished until about 4:30 p. m. of the following day. On the first day of the fire the north end of the upper part of the west wall of defendant's building fell upon and damaged the rear part of the seed cominsuffi-pany's building. The fire gutted the interior of defendant's building, except the part occupied by the bank at the southeast corner of the building and a row of rooms and adjoining hallway on each floor at the south end of the building. The wreckage sank to the basement, forming a the basement, forming a mass of débris reaching, in some places, to the third story of the building. During the fire a large part of the east wall fell into Fourth street. The north, south, and west walls, excepting the portion above mentioned that fell, remained standing. It was known that many of the roomers in the building had perished in the fire, and that their bodies were buried in the wreckage.

13. Appeal and error 1031 (6)-Error presumed prejudicial, when trial results in favor of party requesting erroneous instruc

tion.

erroneous instruction is given, and the trial results in favor of the party at whose instance it was given, the presumption is that the error was prejudicial.

14. Appeal and error 1068(3)-Erroneous instruction for prevailing party no ground for reversal, where verdict correct.

When the verdict is manifestly for the right party, and a different result could not have been reached by the jury under the law, the verdict will not be disturbed, notwithstanding erroneous instruction for the prevailing party has been given.

Mr. Whitaker, president of the bank, during the afternoon of the first day of the fire, attempted to get into communication with several construction companies to arrange for the removal of the bodies and take care of the ruins of the building. James M.

Appeal from St. Louis Circuit Court; McKelvey, the building commissioner of the Thomas C. Hennings, Judge.

Action by Austin Moloney against Boatmen's Bank. Judgment for defendant, and plaintiff appeals. Affirmed.

city of St. Louis, testified that on Wednesday morning, after consultation with Henry Kiel, mayor of the city, he placed 30 men at work on the ruins of the building, removing débris and searching for bodies, and that on

Hudson & Hudson and Safford & Marsa- the afternoon of that day he told Whitaker lek, all of St. Louis, for appellant.

Lehmann & Lehmann, Abbott, Fauntleroy, Cullen & Edwards, and Curlee & Hay, all of St. Louis, for respondent.

HIGBEE, P. J. The defendant owned a 72-story brick building at the northwest corner of the intersection of Fourth street and Washington avenue in the city of St. Louis, fronting 100 feet on Washington avenue and extending north about 120 feet. The greater portion of it was occupied by the Missouri Athletic Club. This building was about 90

it was the duty of the building commissioner to take charge of the premises because of their dangerous condition, and that he already had men there removing portions of the east wall. Whitaker thereupon agreed that McKelvey should take charge of the building, and arranged to pay the necessary force to do the work required on the building and for the removal of the bodies. McKelvey was in charge of the work until the second section of the west wall fell on March 17. The bank sent a man to keep the time of the men employed on the ruins and

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

to pay them at the end of each day's work. It was admitted that McKelvey and the men under him took charge as representatives of the defendant.

The work of searching for the bodies and the removal of the débris was carried on unremittingly by a force of men working in two shifts starting with about 30 men and increasing from day to day to about 200 men in each shift by March 17. McKelvey personally supervised the work by day, and George Frederick, his chief deputy, at night. Seven inspectors from the building commissioner's office acted as foremen. These were paid by the city. Thirty bodies were recovered from the débris, the last one being taken out at about noon of March 17.

During my long experience in the fire department I observed measures taken to protect I know of no walls and things of that sort. practicable, reasonable way in which that wall could have been braced to have rendered it more safe than it was after the fire, without building scaffolding, which would have required a great deal of time. That scaffolding would have had to rest on this débris and the building as a foundation, unless it was removed to get a solid foundation for it. I do not think it could have been braced with any degree of strength and stability without getting down bebasement of the building. The very work that neath the débris and resting the braces on the was being done at the time the wall fell would have been necessary to have a proper basis and foundation for the scaffolding to brace the wall. It would have required three or four About the second day after the fire, the days anyway to have built the scaffolding that Wimmer Construction Company was employ- would have properly braced this wall; I don't ed by the lessor of the seed company to know whether they could have done it that repair the damage to its building caused by removing this wall in any reasonable time, taksoon. There was no way, that I know of, of the fall of the north part of the west wall ing it down, without throwing it on the wreckof defendant's building during the fire. It age or débris of the building and the bodies employed plaintiff and other laborers in this therein. I examined it with reference to work. Shortly before 2:10 p. m. on March whether or not it could be removed or could 17 a strong wind arose, and blew over anoth-be braced. There was a conference in which er section of the west wall of the bank I participated, along with other gentlemen, as building. The top part of the section fell to to the proper course to be followed in the matbuilding. The top part of the section fell to ter of the removal of the bodies, the wreckthe east, while the lower part buckled and age of the building, and of their condition and fell to the west upon the seed company's the caring for the walls." building, causing the entire four floors of the north third of the building to collapse. Plaintiff, who was working in the basement, was buried under the wreckage, and after several hours was rescued by the city firemen. He sustained serious, permanent injuries, the gravity of which is not questioned. He brought this action on March 21, 1914. The third amended petition charges that the defendant negligently caused and permitted the west wall of said building to collapse and fall upon said building while plaintiff was so on said premises, to his damage in the sum of $50,000. The cause was tried to a jury, resulting in a verdict for defendant.

Charles E. Swingley, chief of the fire department of the city of St. Louis, called by plaintiff, testified in substance: He had 45 years' connection with the fire department, and had continuous active experience in handling and extinguishing fires, examination of buildings, and in observing buildings after fires and noting their condition as to strength and durability; that he arrived at this fire about five minutes after it started, and that it burned nearly two days: He made a close, ocular inspection of the west wall with one of his assistants, together with the mayor and Mr. McKelvey, for the purpose of arriving at an opinion as to the reasonable safety of the wall under ordinary conditions that might prevail at that time of the year. He further testified:

"I noted the condition of the wall in question after the fire. I am familiar with buildings and walls as to their vitality and durability.

It was his opinion that the wall had sufficient strength to stand without any wind; that a high wind would blow it over; a 30mile gale would endanger the lives of persons near the wall.

Louis R. Lindley, called by plaintiff, testified that he was employed in the removal of the wreckage; that he had 25 years' experience in wrecking dangerous walls, and was familiar with the manner of bracing them; that he saw two cracks in the west wall, 10 or 15 feet apart at the bottom; the part of the wall between the cracks fell March 17 on the seed company's building; the wind was blowing 20 to 25 miles per hour. The fall could have been prevented by bracing the wall with guy lines to the east and west and timbers; in this way the wall could have been pulled down without its falling to the west; it could be broken off at any story; it would take 8 men 8 hours to brace the wall in the manner described; a fire has a tendency to cause brick to crumble and weaken, and "a man takes chances in my business; it is all a game of chance; I never mentioned this to a living soul connected with it that I could do it, and that I would brace up the wall and do it differently from them."

Harry Moran, plaintiff's witness, who characterized himself as a steeplejack, stack painter, hobo traveler, rigger and laborer for 25 years, said, in substance, that he saw the west wall shortly after March 9; it could have been rigged at that time so as to prevent it from falling, by placing timbers in

side the wall, and outside from the seed com- [ing for the bodies, preparations were being pany level, lashing the timbers through the made for taking down the walls." windows, and then guying the wall east and west. With the guys the wall could be thrown either way. When so braced it could not fall if there were a 50 mile wind, and could not buckle. It would have taken 4 men a good day to do the work spoken of by the witness. He knew the wall was dan

gerous.

E. M. Hubbard, cashier of the bank, plaintiff's witness, testified: The building commissioner (McKelvey) was in active charge, superintending and directing the work of removing the bodies and taking out the wreckage and caring for the premises be

66

Ross Halleck, an architect, and Henry Rufch, a structural engineer, both connected with the building commissioner's office, were of the opinion that the wall would stand a reasonable length of time under the condition it was in. The latter's conclusion was it would stand a wind of 30 and probably up to 50 miles per hour.

that he had been a builder, bricklayer, and Henry Kiel, mayor of the city, testified contractor for 25 years. He examined the west wall after the fire. He saw no overhanging of the wall which he would consider a dangerous condition, and no bulges. It was tween the 9th and 17th of March. not damaged to any great extent by the fire, What we did immediately after the fire was and witness commented upon the wall being to confer with men experienced in hand- in good condition at the time. Witness statling that sort of work, and when the build-ed he was familiar with the manner in ing commissioner took charge, we put those which a wall is kept from buckling when bethings in his hands, and rendered whatever ing pulled, by lashing timbers to it, but in assistance we could."

Plaintiff testified:

his opinion neither lashing timbers to the wall in question nor shoring it would have strengthened the wall or prevented it from falling to the west.

"When I came in the seed company gate from Lucas avenue, I could see those walls standing there in the bank building. I knew those McPheeters, chief of the board of police walls were there, and that a fire had gutted commissioners, testified the streets in the that building, and went in to work in the seed company's store immediately next to the wall vicinity of the bank were at first roped off. that fell, and worked there until it fell. I Several days before the 17th he had the ropes looked at the wall several times during the changed so as to permit people to enter the five days I worked in that vicinity; looked at buildings on the north side of Washington them every day mostly. The wall that fell was street, including the seed store. After that the only one to be seen. I saw that every people entered the seed store, and there was day. I don't know whether it was safe or dan-a natural flow of people going to the seed gerous. During the time I worked there I saw some of the men working in the débris and wreckage of the bank building. knew there were dead bodies in there, and that they were hunting for them and bringing them out, but did not see any of them carried out. The foreman of the Wimmer Construction Company was there, in charge of us men, all the time I worked in the seed company's building."

* I

store and the one next to it all the time.

Edward M. David, a house building contractor for 15 years in St. Louis, whose business was shoring and bracing walls, testified: "I saw the wall also from the seed company's yard and from the inside of the building. was my opinion that with the present weather conditions the wall would probably stand, but I would not care about being in there if we had any high winds, any extreme or unusual conditions. From my experience as a shorer and rigger, in my judgment, there wasn't any practical way in which that wall could have been shored or braced so as to contribute to any extent to the safety of the wall without endangering the lives of the workmen put on the wall, which was leaning in six inches at * You could have built a scaffold

McKelvey, the building commissioner, and other officials in charge, inspected the walls, and not only concluded that there was no practicable way to brace the west wall, but that it would stand for a reasonable time, and that it was reasonably safe to proceed with the rescue of the bodies in the débris. Referring to the west wall, McKelvey tes-above the seed company's building, but it would

tified:

"The only reason we did not wreck the walls sooner was because we wanted to remove the dead bodies first. I devoted all my attention at all times to work in the Boatmen's Bank building. I had 400 men under my supervision during 24 hours. The men who had supervision and control were under me as officers of the city, and were paid by the city. *** When the thirtieth body was recovered, I took the word of the chairman of the committee that they were all out of the building. If I remember properly, we had cables over the walls, ready to commence taking them down when the wall gave way. While we were look

least.

not have extended back as far as the break.
You could build it up with 6 by 6's just as high
as you might want up to the top of the wall,
but I don't know whether the roof would have
carried a load like that. You could not get
6 by 6's 35 feet long to extend across from
one wall of the seed company. They are not
carried in stock here. I would not have a man
put a 40-foot ladder up the side of this wall and
climb up that ladder on account of weather con-
ditions.
For that reason I think men
couldn't have gotten up there and put any rig-
ging on the wall. They couldn't put cables that
high. Cables are pretty heavy to pull up. We
tried it on the south wall, the east corner, and

(232 S.W.)

couldn't do it.
I wouldn't care to send
men up.
After I inspected the wall I
worked in and about the wall until the 17th,
when the wall fell."

James Smythe testified when the wall fell there were 3 or 4 men on the top floor of the Missouri Athletic Club building. They were then wiring the walls. They were going to pull the walls that evening after 6 o'clock. They had put cables all over the walls.

M. J. Montgomery testified in rebuttal that he was a carpenter, and had had extensive experience in bracing walls; that the west wall could have been prevented from falling over on the seed company by bracing it from the seed company's roof. In half a day it could have been braced by 3 men in such a way that it would not have fallen to the west. "I went to work there on the west side of the wall, considering that the wall was safe enough to warrant my going to work if they let it alone."

Instructions.-The first instruction for the plaintiff was:

"That the law presumes the falling of the wall was due to some negligence of defendant, and you will find in favor of the plaintiff, unless in view of all the evidence in this case you find that the defendant has shown by a fair preponderance of the evidence that said wall did not fall as the result of any negligence on its part. Second, that you cannot find against plaintiff on the ground of contributory negliThird, even though you find the Wimmer Construction Company, the St. Louis Seed Company, its lessor, or either of them, were guilty of negligence, such negligence cannot be attributed to plaintiff so as to preclude a recovery."

jured plaintiff, then your verdict should be for the defendant.

"(9) The jury are instructed that, even though you may believe from the evidence that the wall in question, and which fell on March 17, 1914, and injured plaintiff, was in fact in a weakened condition, yet, if you find that in the wreckage of the bank building, a number of human bodies were buried in the ruins of said bank building, and that from the date of said fire defendant had, with reasonable diliof trying to locate and recover such bodies, gence and prudence, been engaged in the work and removing the wreckage so as to locate and remove the dead, and that from the time of the fire to the time that plaintiff received his injuries a reasonable time for the recovery of said bodies had not elapsed, and that in the doing of such work, and in what defendant did, if anything, as shown by the evidence, in regard to the removal of the wreckage and the care of walls of the building, the defendant acted as a reasonably prudent person would have acted under like circumstances, then your verdict should be for the defendant.

"(10) The jury are instructed that although you may find from the evidence that the wall in question was so damaged and weakened by fire as to be unsafe as a permanent structure, yet if you find that it was in such a condition as to appear to a reasonably prudent man to be reasonably certain to stand for a sufficient time to enable defendant, by the exercise of reasonable diligence, to remove the bodies from the ruins of said building, and if you further find that a reasonably prudent man would have permitted said wall to stand for such time, and that the defendant undertook, with reasonable diligence, to remove such bodies, and was so engaged between the date of said fire and the date on which said wall fell, and if you further find that the said wall fell before defendant had had time, by the exercise of reasonable diligence, to remove said bodies, then your

Appellant complains of the following in- verdict should be for the defendant. structions given for the defendant:

"(7) The jury are instructed that the defendant had the legal right to have and maintain the wall in question upon its own property, and that it was not an insurer of its safety, provided you find from the evidence that in suffering such wall to stand upon said property it exercised such care as an ordinarily prudent person would exercise under the same or similar circumstances, and, if you so find, your verdict should be for the defendant.

"(8) If the defendant, within a reasonable time after the fire, arranged with certain persons to recover the bodies in the ruins of the building, and if you further find that the said persons were competent and reputable workmen for the task for which they were engaged, and if you further find that said persons examined the wall which fell and the premises with reasonable care, and believed that the said wall was sufficiently sound and stable to reasonably warrant them in undertaking the recovery of the dead bodies before removing said wall, and if you further find that with reasonable diligence and prudence they entered upon the work of recovering said bodies, and that while they were so engaged, and before they had had time, by the exercise of reasonable care and diligence, to complete said work of removing said bodies, the wall fell and in

"(11) In determining the condition of the west wall of the building in question and defendant's duty with regard to the same before the said wall fell, defendant could consider only the facts and conditions which existed at the time, and was not able to take into consideration any facts or conditions which subsequently developed; hence if you find from the evidénce that defendant examined and considered said wall and its duty with regard thereto with the care and prudence which a reasonably careful and prudent man would have exercised under the same circumstances, and did in the premises what such a man would have done under the same circumstances, and that notwithstanding such fact said wall fell as a result of conditions and elements over which defendant had no control, then your verdict should be for the defendant."

1.

The defendant's building was destroyed by fire on March 9 and 10. Large numbers of anxious people congregated about the ruins until the bodies were rescued. The relatives of persons known to have been in the building and their sympathizing friends were overwrought by the dire tragedy. one knew who or how many had perished in this awful holocaust. Confronted by these

No

appalling conditions, the great and compell- [ or shored, it would have been defendant's