205 Mo. 367 | Mo. | 1907
This action originally instituted in the circuit court of the city of St.- Louis, on change of venue was sent to the circuit court of St. Charles county, where it was tried. The petition alleges that on the seventh day of July, 1902, plaintiff was in the employ of the defendant, the Rountree Construction Company, in the capacity of a carpenter, and was engaged for said company in assisting in constructing a wall for the Industries Building at the World’s Fair grounds in the city of St. Louis, on which building the defendant was a contractor. That on the last-mentioned day whilst plaintiff was in the due
The answer of the defendant was a general denial and general plea of contributory negligence and a plea of assumed risk.
The testimony tends to show that the defendant company on the seventh of July, 1902, and for some months' prior thereto; had been engaged as a contractor in the erection of the Varied Industries Building at the World’s Fair grounds in the city of St. Louis, and for several months plaintiff had been working for the defendant in connection with this work in the capacity of a carpenter. His work called upon him to do considerable climbing and to work at considerable heights. Plaintiff was twenty-nine years old at the time, and had been a carpenter for thirteen or fourteen years. On the day in question, the wall had been raised in skeleton form about fifty feet high, and about quitting time a windstorm threatened, and the foreman in charge, wishing to secure the unfinished wall against the danger from the wind, requested the plaintiff, when the whistle blew to stop work, to remain on the wall to fasten the upper end of a brace, which the-foreman directed to be put up against the pillar to secure and strengthen it; this brace, when in position, rested with one end on the ground and the top end against the pillar and stood up about an angle of forty-five degrees. The brace was about thirty-five feet long. The foreman selected this •brace and caused his.other employees on the ground to bring it to the wall and directed two carpenters, who were working in the same gang with the plaintiff, to nail two cleats on the brace for plaintiff to stand on while removing the rope therefrom. The cleats were ordered to be nailed near the top end of the brace when it should be erected and were nailed on while it lay on the ground and before it was hoisted, in the immediate presence and sight of the foreman: These cleats were
On the part of the defendant, the evidence tended to contradict the plaintiff’s evidence and to show that two nails in the cleat were sufficient. Mr. J. O. Settle testified that he was in the contracting and building business and had had about fifteen years experience as contractor and engineer in the construction of buildings, and gave it as his opinion that two eight-penny nails would be ample to hold a cleat eighteen inches long and seven-eighths of an inch thick nailed to a
Mr. Henry Christofell testified that he was a carpenter and had been for twenty years and on the seventh of July, 1902, was foreman of carpenters and had charge of the gang of carpenters in which plaintiff was working; that plaintiff had been assisting in the construction of walls and in bracing walls. He had had a good deal of experience in that direction and was a good climber; that along in the evening about four o’clock it began to rain, and they were bracing the wall at the time the whistle blew. The whistle was a signal for the men to quit. They were all union men and obeyed the whistle. Witness looked up at plaintiff and asked him to remain upon the wall and fasten the timber. The brace at that time was up against the wall ready to be fastened. He also told Mr. Fritz, another one of the carpenters, that he had better stay and help fasten the timber; that thereafter witness turned and the plaintiff fell. He denied directing plaintiff to go out on the timber and unfasten the rope; he denied also that he told him to lower the rope, that he would send him up cleats or timbers to support the braces; that if plaintiff needed other cleats he could have used the other end of the rope. He also testified that two eight-penny nails were sufficient to secure the cleat. That when they were getting the rope to raise this brace witness had instructed one of the carpenters to nail the cleat so that when the timber was placed in position and fastened, they could get out on these cleats and loosen the rope. It was simply a foot rest and support in climbing down. He could not testify that he saw these cleats nailed on the timber. He ordered the carpenter to nail them on. He does not recall the name of the man he asked to nail the cleat on. He was one of
I. On the part of the plaintiff it is insisted that the testimony discloses that the master through its vice-principal and foreman, Mr. Christofell, negligently furnished plaintiff an insecure and unsafe appliance upon which to do the work which it required him to do and by reason thereof he was injured and hence it is liable; whereas on the part of defendant it is insisted, first, that fastening the cleats with two eight-penny nails was sufficient to make them safe, and, secondly, that assuming that the plaintiff’s theory is correct and that the brace was insufficiently nailed with two' eight-penny nails when there should have been at least four, and that the cleat broke off or gave way on that account, the negligence in the case was that of the two carpenters who nailed them and as they were members of the same gang with plaintiff and under the same foreman, they were fellow-servants with plaintiff and defendant is not liable to plaintiff for their negligence. It is urged that, as the foreman did not direct the carpenters in preparing the brace to use two nails only in attaching the cleats to the brace-timber or in what direction to drive them and did not restrict them in the use of nails of which there was an ample supply, the.carpenters alone were guilty of negligence and not the foreman. In our opinion this is a very narrow, view to take of the respective obligations of the defend
The fundamental question then is, whose dnty was it to provide plaintiff a reasonably safe place upon which to stand while he carried out the foreman’s (Christofell) instructions to remove the rope and fasten the ton end of the brace to the upright pillar already in the wall, the foreman’s or the fellow-servants, the carpenters on the ground? We think it is too clear for contradiction, first, that it was the master’s duty to devise the appliance or support for the wall and to supply it, and if, as it did, it required plaintiff to stand upon it to remove the rope and' attach it by cleats to the wall, to see that it was reasonably safe for him to do so and the furnishing of this place for plaintiff to work was a personal duty which it could not delegate,
II. But the learned and industrious counsel for defendant insist that where a master supplies his servants suitable material and appliances to work with in their duties and entrusts to the servants the selection of the material which is to be used and the manner or mode in which it is used, then for the negligence of a servant in the selection of the material or the con
A reference to the cases cited by the defendant will accentuate the distinction between those cases and the case at bar. Thus, in Bowen v. Railroad, 95 Mo. 277, the facts appeared to be that the defendant in the construction of its road built a temporary bridge over Grand river in Chariton county. This bridge was used
In Arkerson v. Dennison, cited by this court in Bowen v. Railroad, supra, the plaintiff was injured by the falling of the staging upon which he was directed to go by the defendant for the prosecution of the work
The case of Forbes v. Dunnavant, 198 Mo. 193, is much relied upon by the defendant. In that case, Forbes was employed by Dunnavant, a contractor,, and. was injured while building a scaffold. It appeared from the evidence that one Redford worked as a carpenter with the plaintiff in building the scaffold. The scaffold broke and Forbes fell and was injured dangerously. It appeared that the cause of the injury was that one of the cross timbers under the plank on which he was standing broke. There was evidence that this cross timber was worm eaten and dozed, that is to say, had become soft, starting to rot. This cross timber was selected by Redford, the fellow-servant, who was engaged with the plaintiff in the erection of the scaffold. It was stated by the court that the evidence was uncontradicted that a mass of raw material was furnished by the master for the use of Forbes and Redford in erecting the scaffold. It was not contended that none of this timber was suitable. Redford selected a bad board from the lot which broke under the weight of the plaintiff and his helper, and badly injured plaintiff, and the question; was, who selected the board, was it the master or a fellow-servant? If the master could not delegate the duty of selecting that particular board'then he was liable; otherwise, not. The court reached the conclusion that where the master buys a mass of raw material, some bad and. some good, a result incident to all buying by the quantity in the market, and entrusted the selection out of this mass to carpenters employed to build the scaffold therewith, if one of said carpenters selected a bad board, it was the act of a fellow-servant for which the master would not be responsible. That is to say, that the master might trust the servant to perform the ordinary and
These cases sufficiently indicate the principles announced in all the other cases cited on this point by the learned counsel for the defendant. The contention of the learned counsel for the defendant that the negligence in this case resolves itself into the negligence on the part of the two carpenters who did the nailing of the cleats to the brace-timber, is not supported by the cases he cites. On the contrary, in Arkerson v. Dennison, 117 Mass. 1. c. 412, cited and approved by this court in Bowen v. Railroad, 95 Mo. 277, it is said: “When the preparation of the appliances is neither entrusted to nor assumed by them, the master may be held guilty of negligence, if defective appliances are furnished, even though the toorkmen themselves are employed in the preparation of them.” So that the mere fact that these two carpenters nailed the cleats to the brace under the direct supervision of defendant’s foreman will not relieve the defendant of liability for the defective' appliance, the preparation of which was in no manner entrusted to, nor assumed by them, but the latter appliance was planned and directed by the foreman in person.
III. The first instruction given for the plaintiff is challenged because the court submitted to the jury that if the cleat or slat upon which plaintiff was directed to stand in the performance of his labor, broke
IV. Instructions B and -0 are also assailed, but as they announce principles as to the respective obligations of master and servant, which have been approved by this court on numerous occasions and fall within the rules of law already announced in this opinion, it is unnecessary to discuss them further.
V. Error is assigned upon the refusal of the defendant’s eighth, ninth, tenth and eleventh instructions. These instructions submitted the defendant’s theory already noted that the defendant had discharged his entire duty to the plaintiff if it furnished sufficient and suitable timbers for the brace and cleats and sufficient nails and tools wherewith to fasten said-timbers and having done this that even though the fastening of the cleats was done in a careless and negligent manner, the plaintiff could not recover because the carpenters who nailed the cleats to the timber were fellow-servants of the plaintiff. The court modified and amended all of these instructions so as to conform them to those given for the plaintiff, on the theory that if the jury found from the evidence that the defendant was present in the person of its foreman and commanded and directed the said work to be done, and the manner in which it should be done, then plaintiff could recover.
VI. Finally, it is insisted that the court erred in allowing the plaintiff, over the objection of the defendant, to answer a question asked him as an, expert. While the- plaintiff was on the stand his counsel asked him the following questions: “Q. You are a carpenter, are you? A. I ain’t now, but I was. Q. Well, I
It will be observed no objection was made that the witness was not qualified to give an opinion, but simply that it was not a proper subject for expert testimony. It is assumed by counsel that it was a matter of such common knowledge that the jury needed no light on the subject or that an experienced carpenter such as the witness was shown to be, could not aid the jury by experience as to the number of eight-penny nails necessary to sustain the weight of a man. That it was