Smith v. Union Electric Light & Power Co.

148 Mo. App. 572 | Mo. Ct. App. | 1910

Lead Opinion

REYNOLDS, P. J.

(after stating the facts). — The errors assigned in this court by counsel for appellant are, first, that the court erred in refusing to give an instruction in the nature of a demurrer to the evidence asked by appellant; that it erred in refusing to give the instruction marked “Instruction C;” and that the court erred in giving the first instructions asked for the defendant. The objections urged to the first instruction are to the words which we have italicized, that is to say, to the words in that instruction which told the jury that they could find for plaintiff if they found that he had been hurt and “that defendant provided and furnished said plank for use in said platform,” and the words further along in that instruction, “and if the jury further find from the evidence that defendant in furnishing and providing said plank for use in said platform failed to exercise ordinary care.” It is objected to these clauses or phrases in this instruction that they assume that the defendant had provided and furnished the plank, the breaking,of which was the cause of the accident, and it is insisted that there is no evidence in the case that the defendant had provided and furnished said plank for use in this platform. We think that this criticism of the instruction is valid and that the presence of these words in this instruction was harmful error. The evidence shows very clearly that plaintiff and his fellow-workmen, pipefitters, picked out and selected these planks themselves. Neither of the vice-principals, Tenney or Saffley, was present when they selected these boards. All the direction that these fitters had from either of these men was when they were through working at one place to go to another where there was scaffolding and work there. The selection of the boards to go on the west scaffolding Avas left to them. They Avere not told by any one what boards to take nor where to take them from. When they got to this south scaffolding they found no platform and that the carpenters were about to remove the boards from the west scaffold and carry them to another platform or scaffolding. Gallagher, who, while apparently the head of this particular gang of fitters — plaintiff and Altman being fitters’ helpers, all of them practically fellow-workmen — asked the carpenters to leave them a couple of those planks which had been in use in the west scaffold. The carpenters did so and let them have two, which the fitters took from the carpenter as he was canying them away and placed them in position on this south scaffold. One of them broke. There is no evidence that anyone who can be said to have been the representative of defendant furnished these particular planks to these fitters, with which to build this platform on which they were to work. So that these words, as used in this instruction, in leading the jury to believe that under the law and the facts they had a right to assume that the employer had furnished the defective board, were without evidence to support them, were misleading and should not have been used. Moreover, the employer is responsible only when either actual knowledge of the defective tool or appliance is brought home to him, or such facts are in evidence as warrant the jury to assume that he has or should have such knowledge. The employer is chargeable -with notice and knowledge of those things which he ought to know. No such actual or constructive knowledge is, in this case, brought home to the employer. No one authorized by his position or employment to represent the employer knew that these men were about to use this board. Nor is any knowledge of its defective condition brought home to defendant. Its selection and use were one act — no time intervening in. which any one representing the defendant could know either fact. [Burnes v. Kansas City, Ft. S. & M. R. Co., 129 Mo. 41, 1. c. 52, 31 S. W. 347.] The defect in the board was one that plaintiff himself has testified could have been discovered on inspection; inspection would have shown it to have been defective and unsafe and unfit to bear the weight proposed to be put on it. It was a cross-grained, knotty plank. Plaintiff and his fellow-workmen selected it. Counsel on either side refer to and quote from Bowen v. Chicago, B. & K. C. Ry. Co., 95 Mo. 268, 8 S. W. 230, in support of their position. Learned counsel for appellant quote from it that portion which is on page 277, commencing with the words, “A servant is not a mere machine, employed to drive a nail here or a spike there,” and ends the quotation with the authorities cited in support of that proposition ; while the equally learned and industrious counsel for the respondent quotes from the same case, commencing exactly where counsel for respondent left off on page 277, but quoting only the rest of it on that page. On the very next page, however, page 278, the court says: “Now in this case it is no part of the duty of the plaintiff to build or to keep the bridge in repair. Neither he nor his foreman had anything to do with it. It was held out to him as reasonably safe for the passage of construction trains, by the very act of taking him back and forth. The bridge was planned and built under the supervision of foremen, employed for that purpose. The acts of these foremen were the acts of their principal, and not the acts of a fellow-servant of the plaintiff.” This language, taken in connection with the facts of the case, shows that the point in decision does not meet the case at bar. Here plaintiff and his fellow? workmen selected these boards themselves and put them into position. It is true, and necessarily so, that they selected them from material furnished by the master, the employer, but the evidence shows that there was a large quantity of boards available and serviceable for use and that the selection of the particular board was a matter in which neither the employer nor any of the foremen directly in charge of the work had anything whatever to do. It falls in a measure under the principle announced in that part of the opinion in the Bowen case which is quoted by counsel for appellant, to the effect that where the master employs competent workmen and provides suitable material for staging and entrusts the duty of erecting it to the workmen, as a part of the work which they are engaged to perform, the employer is not liable to the workman for injuries resulting from falling off of the staging. “The negligence in such cases,” says the court, “resolves itself into negligence of a fellow-servant.”

The case of Forbes v. Dunnevant, 198 Mo. 193, 95 S. W. 934, is more nearly analogous in its facts to the facts in the case at bar. In that case it is said that the master may trust the servant to perform the intermediate, the ordinary and simple duties incident to the servant’s employment and rest upon the servant’s knowledge and skill. “The .master buys a mass of raw material — some bad, some good.” But says the court, “must he be present in person, or constructively, at every precise moment of time to select and deliver to that carpenter a sound board, so that the carpenter will not hurt himself or fellow-craftsmen or may he trust that carpenter to select a good board from the mass of raw material? We think there can be but one answer to this question.”

We are referred to the cases of Combs v. Rountree Const. Co., 205 Mo. 367, 104 S. W. 77, and Kennedy v. Laclede Gas Light Co., 215 Mo. 688, 115 S. W. 407. On an examination of those cases, we do not think th'at the facts in them are applicable to the case at bar.

Our conclusion upon the whole case is that the demurrer to the evidence at the close of the case should have been given, on the ground that there was no • evidence in the case on which the liability of the employer, defendant in the case, can be attached to make it responsible for the selection of the board, the breaking of which was the cause of the accident. Plaintiff’s own testimony fails to establish knowledge of the defect on his employer, and further shows that he and his fellow-workmen — without direction from the employer, selected this defective board; that without any examination of its condition he used it, and that the slightest inspection on his part would have shown him that it was -unsafe. So that by his own carelessness he caused his hurt.

The judgment of the circuit court is reversed.

Goode, J., concurs; Nortoni, J., dissents.

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Dissenting Opinion

DISSENTING OPINION.

NORTONI, J.

The question in this case is a close one but I incline to the opinion it was for the jury. The facts in proof do not disclose a case where the master has furnished a considerable quantity of lumber out of which the servants are to select boards for scaffolds but, instead, it appears there were several scaffolds theretofore constructed by the carpenters and then standing. Further, plaintiff testified he and his companions were neither expected nor required to build the scaffolds.

It is conceded defendant’s foreman, Tenney, instructed plaintiff and his companion steamfitters to use the standing scaffolds in performing their task of fitting steam pipes. Tenney was not a fellow-servant of plaintiff but, on the contrary, was the master’s representative, and it seems to me that his direction to plaintiff and his companions to use the scaffolds then standing involved an assurance of the master to the effect that they were reasonably safe for the purpose intended. This, of course, involved the idea that the boards on top of such scaffolds on which the men were to stand and walk were reasonably safe for the purpose as well. It is true plaintiff was not injured by falling from a scaffold pointed out by Tenney, but he was injured by the breaking of a board in use on such scaffold though it had been removed a few feet away by plaintiff and his companions to another scaffold where they were then at work. Having completed the task on the scaffold immediately west, they removed the boards from it to the theretofore uncovered scaffold on the south of the coal tower, and it was on this scaffold.the board broke which resulted in plaintiff’s injury. But the hoard was one in use on the scaffold pointed out by Tenney.

It seems there were scaffolds intact, that is, properly covered with boards, and others standing without such covering at the time Tenney gave the general order to the steamfitters to use the same. Of course, the only way the steamfitters could use the uncovered scaffolds would be to cover them with the lumber from those on which they had been working, and it is clear that Tenney, the foreman, directed the use of such lumber on the scaffolds where it then was. Besides, plaintiff testified that it was no part of the duty of himself or companions to build the scaffold. It seems to be a fair construction of Tenney’s order that the steamfitters should remove the covering boards from the other scaffolds and place them upon the one from which plaintiff fell, otherwise the order was insufficient to the end in contemplation. Thus viewing the testimony, I am of opinion that it was for the jury to answer whether or not defendant furnished the board in question.

As to the contributory negligence of plaintiff, I think that, too, was a question for the jury. In the circumstances of the case, the particular board involved presented no such features of danger as to threaten imminent peril. Others having used it in the scaffold then standing, an ordinarily prudent person would not scan it for defects as closely as he might on selecting it in the first instance. Then, too, it seems to have been rough on one side and discolored by use on’ the other so the knot which occasioned its breaking was concealed. I am persuaded the defect in the board was one not likely to be disclosed upon such an inspection as an ordinarily prudent, wrorkman would make in the light of the circumstances that he and others had immediately theretofore safely used it in the standing scaffold for the same purpose. It is entirely clear to my mind that plaintiff should not be adjudged guilty of contributory negligence as a matter of law.

Though it may be conceded., the question as to whether defendant furnished plaintiff and his companions the plank for scaffold purposes is a close one, I believe there is sufficient in the proof to send it to the jury. Entertaining this view, I respectfully dissent.

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Rehearing

ON MOTION FOR REHEARING.

May 31, 1910.

REYNOLDS, P. J.

In his motion for rehearing, counsel for appellant relies mainly upon the dissenting opinion of our learned and careful associate, Judge Noetonl, as grounds for sustaining that motion. While recognizing the great care of our learned associate in all matters coming under his observation, we are compelled to say that we think he has misunderstood or inadvertently overlooked very material facts in evidence. To demonstrate that, we consider it not out of place to supplement the statement of facts set out in the prevailing opinion in the case by the substance of a part of such of the evidence as covers the matter of these scaffoldings and the boards and flooring a little more fully than we did in that opinion. We use for this the respondent’s additional abstract of the record, in which he has set out verbatim the testimony of the plaintiff and of most of his witnesses. It is to be understood that there were two sets of scaffolding in place, one on the west side of a coal chute, which is hereafter called the west scaffolding, the other on the-south side of that chute, and hereafter called the south scaffolding. It is to be understood that in speaking of the scaffolding, reference is made to the uprights and crosspieces that composed the scaffoldings and not to the flooring upon them which had to be placed on the scaffolding, if not already there when the men went to work. The selection of boards, when there were none on the scaffolding, was left to the men themselves. It is important to keep the distinction in mind between the scaffolding as in place and as it would be when used. That is, the scaffolds themselves were mere skeleton’ frames, composed of uprights and supports — the latter such as joints in buildings, the scaffolds not capable of use until flooring was laid on them on which the workmen, who would use them from time to time, were to stand. This flooring Consisted of loose boards, not nailed on to the scaffolding. The practice, the usage, as clearly appears by the testimony, was that when a gang were to work on a scaffolding which had no flooring, the gang put down the flooring. No one directed them where to get the boards for the flooring. The gang of which plaintiff was one of the members had been working on the west scaffold. They had been told by Saffley, their immediate superior, that when they finished their work on the west scaffold, to move around on to the south scaffold and do certain work there. When the men went to this south scaffold they found it without flooring. It then became their duty to find and put on floor boards. Neither Saffley nor any one else told the gang where to get flooring. Plaintiff’s own testimony is, to give his exact words, “When we got through on the west side we threw the two boards around and put the pipe on the south side.” Asked what boards they had thrown around, he said, the boards they had been using that were on the west scaffolding. These were two' of the six boards the carpenters were in the act of removing, in fact it appears they had removed them, and not knowing that the fitters or others would want to use the west scaffold any more, were in the act of carrying them away, and as stated before, on the request of the fitters, let them have the two they had in their hands. These boards were two inches thick, six inches wide and fourteen feet long. They were loose boards. Asked after they got through on the west side what they then did, plaintiff answered, “We shoved the two planks that were lying on top around to the south side, to get on, and put up that pipe.” That is. they took two of these boards that had been on the west scaffold for use on the south scaffold. There were only two supports (joists) in the scaffolding to the south. The distance between these two supports on the south side, according to the plaintiff’s testimony, was between seven, eight or nine feet, not over nine feet, about nine feet, he said on cross-examination. The supports on the west scaffolding were between seven and eight feet apart. On the west scaffolding there were three supports or joists. That is, when these boards, fourteen foot planks, were in place on the west side, they rested on three supports, seven or eight feet apart, but when they were carried around to the south scaffolding, they rested on only two supports, which were from eight to nine feet apart. When these planks were in place on the west side, the two boards selected appear to have been on top of other boards,— plaintiff speaks of taking them “from the top,” of that west scaffolding, and were supported in the middle by the third support or joist which that scaffolding had, the other two supports, of course, being at either end of the planks. When these two boards were removed from the west to the south scaffolding, there were but two supports under them, one on each end and none in the middle. So that it is very evident that the two supports on the south scaffolding, on which the boards rested, were farther apart by at least a foot, possibly as much as two feet, than were the three supports in the west scaffolding. Plaintiff himself testifies that when the boards were laid on the south scaffolding they projected over the supports about two feet on one end and about three or three and a half feet on the other. When the plank broke which had been taken from the west and put on the south scaffolding, plaintiff was about the middle of it, consequently standing where there was the most strain and the least support to the plank, which before that had not only been supported in the middle by the middle joist, when it was on the west scaffolding, but when as there used had apparently-been on top of other boards. With this statement of the facts, as testified to by the plaintiff himself, which facts have evidently escaped the attention of our learned associate, a very different situation and use is presented as to this plank when on the west scaffold from that which arose when it was put to use in the south one. It cannot be argued that the plank which was the cause of the accident was used in the same manner that it had been used when on the west scaffolding. It may have been and was safe as used in the west; it broke when used under entirely different conditions in the south. In other words, when it was in place on the west scaffolding, it appears to have been on top of other planks and it certainly was supported through or under the middle, by a joist; w'hen it was in place on the south scaffolding it was unsupported in or under the middle and rested on but two supports or joists. And plaintiff and his fellow-workmen selected and put it in place themselves, knowing how it had been before then used and supported. It follows from this, in our judgment, that because plaintiff and his fellow-workmen had used it with safety on the west scaffolding, they had no right to assume and it did not follow that they could use it on the south scaffolding, aware as they were of the difference in the construction of the two scaffoldings; differing in so far as strength was concerned and so far as support of the plank or flooring was concerned, and, according to plaintiff’s own testimony, as we understand it, when this plank was in use on the west scaffolding it was given the added support and strength afforded by another plank under it. Hence, the inference sought to be drawn from the fact that because it had been safely used in one scaffolding plaintiff was warranted in using it in the other, falls, as the conditions were entirely different.

Our learned associate is also under a misapprehension as to the testimony in the case when he states that there were no other planks or hoards that could have been selected by this gang of fitters. It is true that other planks were not upon the floor upon which they were working, but it is also admitted by plaintiff himself that on the floor beknv was a large quantity of material at their use and from Avhich they could select flooring, and Avhich they could easily have hoisted up to the floor where they were, as the appliance for hoisting seems to have been there, plaintiff himself admitting this. The fact that the plaintiff and his fellow-workmen selected these tAVO particular planks obviously was because they happened to be nearest and easiest. No one directed them to take them. All that the foreman told them was when they finished at one scaffold to go to another. Neither he nor any one else said a word by Avay of direction as to the building or placing the floors. In point of facts the boards about to be removed from the west scaffolding by the carpenters, who intended using them in another place, were being carried away by the carpenters, Avhen plaintiff and his co-workers, obviously to save themselves labor and to save time, asked the carpenters to turn them over to them, — to let them have them. Whereupon they took them and put them in place or were putting them in place themselves, when the accident occurred. With these facts in the record, other facts being as stated in the first opinion of the majority, we see no reason to change the conclusion before announced. In addition to the cases cited in the first opinion we refer to Fraser v. Red River Lumber Co., 45 Minn. 235 and Hoar v. Merritt, 62 Mich. 386, as applicable in many of their features to the facts in the case at bar and the decisions in which are in line with what Ave have announced.

The motion for rehearing is overruled, Goocle, J., concurring, Nortoni, J., dissenting. '