151 Mo. App. 640 | Mo. Ct. App. | 1910
Action for damages for the death of plaintiff’s husband alleged to have been caused by the negligence of defendant in not furnishing sufficient men to help the deceased in his work. Trial by jury, verdict for plaintiff for two thousand dollars, and defend-' ant has appealed.
The evidence shows the defendant to have been engaged in preparing a foundation on which to build a mining jig. This foundation was prepared by building concrete piers, some six feet long*, with a surface ten inches wide at the top and by putting sills across from one pier to another; then a floor was to be laid on top of these sills and the jigs placed thereon. Plaintiff’s husband was on top of the east pier f<3r the purpose of putting the sills in place when he fell off and was killed. While no one was able to explain the circumstances under which he fell with any degree of ac- - curacy yet the evidence indicates that at the time of
There was evidence that it was usual in placing the sills in position on the piers to have one man at each end and that if there were one man at each end they could, in moving the sills endwise, balance against each other and thus move the sill with more safety, but just how this would be so is not explained.
The deceased was sixty-two years old, a carpenter by trade, a man of experience, and had worked for several, years at similar work to that in which he was engaged at the time of his death.
Numerous errors are assigned but we shall only give attention to one, and that is, the refusal of the court to sustain a demurrer to the testimony.
The negligence alleged in the petition, and on which the case went to the jury, is the failure of the defendant to furnish a sufficient number of men to perform the work in which plaintiff was engaged. If this allegation was sustained by the proof it was sufficient. [McMullen v. The M., K. & T. Ry. Co., 60 Mo. App, 231, and cases cited.]
Looking to the testimony in this case we find that the deceased was sixty-two years of age, hut strong and in good health. He was a carpenter of several years’ experience in the kind of work in which he was engaged at the time of his death. He and two or three other men were assigned to the work of carrying pine sills, six inches square and from twelve to sixteen feet long, and placing them upon concrete piers which at the point where deceased received his injury were some eight or nine feet high and six feet long with a ten inch surface on top. The deceased was directed to a position on one of these piers and his work was to-place the sills in place when they were put upon the piers by the other men. Giving the plaintiff the most liberal construction which the testimony will bear in her favor we find that at the time of the accident her husband was standing on one of these piers astride of a sill, six inches square and from twelve to sixteen feet long, one end resting on the pier on which he was standing, the sill then extending from him over another pier some seven or eight feet distant, and he was in the act of shifting this sill endwise in the direction away from the pier on which he was standing. While engaged in this work he fell. This is all that we know from the testimony of the circumstances of the fall The evidence clearly shows that the work of placing the sills upon the piers was done in the usual and ordinary way, and that the deceased was entirely familiar with the work, and while there was some evidence that ordinarily two men should be used on the piers — one at each end of the sill — yet it does not ap
It is also clear to us that the evidence wholly fails to show that the failure to have another man to assist the deceased in placing this sill did, in fact, cause the injury.
For the reasons stated the defendant’s demurrer to the testimony should have been sustained. The judgment is, therefore, reversed.