Steffenson v. Roehr Co.

136 Mo. App. 225 | Mo. Ct. App. | 1909

ELLISON, J.

Plaintiff was an employee of defendant as a carpenter. He was injured while engaged in such service and brought this action for damages. He recovered a judgment for two thousand dollars.

The work consisted in putting on finish in the interior of a large banking building in Kansas City, and it was in charge of one Kincaid as defendant’s representative and foreman of the work. Plaintiff was a witness in his own behalf. He stated that he and one Beals worked together. He called him his “partner,”— and that he, Beals and another were engaged in putting on some finish lumber around a hallway up near the ceiling and that it required scaffolding, for them to stand upon, of between seven and eight feet in height. This scaffolding was constructed by placing two “horses” or trestles near the wall about fifteen feet apart, and then putting two boards thereon about sixteen feet long, ten to twelve inches in width and two inches thick. These were braced or strengthened near the center by putting under them a piece of pine timber, one inch thick and six inches wide, one end being tacked to the boards and the other resting on the floor. All three were on the scaffold, Beals near one end, the other man near the other end and himself in the center. They were endeavoring to get a piece of lumber, about fourteen feet long, in a place prepared for it to fit into. It was a little too large, or, as expressed by plaintiff, it fit too tight near the center, and plaintiff was endeavoring to force it in place. He placed a large chisel under it by which he “pried it up” with one hand, and hammered it with a hammer with the other hand. In thus prying with the chisel it threw more pressure on the scaffold, and the brace and one of the boards broke, whereby he fell to the floor, the other two falling on top of him, seriously injuring him. The board broke in the center where there was a defect made by a knot, which could not be seen by casual examination on account of being covered with dry plastering. ■ The plank, though defective by reason of the knot, could not have given way but for the breaking of the small support or brace underneath it, and that also was found to have a small knot in it.

According to Beals, who was a witness for plaintiff, several days before, when the foreman set them to work, he said to them (speaking directly to Beal) that there was scaffold material, — “you gentlemen select your own material and build these scaffolds for the work.” Plaintiff endeavors to show that there was not enough proper material; but that there was plenty with which the scaffold could have been made perfectly secure there can be no doubt. An additional “horse” or trestle under the center would have done it. And so would a better support of a larger piece of timber, or more of them, have done it. That these could readily have been had is apparent. With lumber that was either right at hand or just outside the building, additional trestle could have been built or timber for additional or better support could have been had. Beals testified that he could have made the trestle, but that he didn’t want to carry them upstairs, — but admitted the lumber could have been sawed downstairs, then carried up and built upstairs.

We feel clear that the evidence in plaintiff’s behalf, without looking to that for defendant, leaves him without a legal claim. “A servant is not a mere machine employed to drive a nail here or a spike there, where directed by the master, or some one representing him. Many things involving the exercise of judgment may properly be left to the servant. Hence it has been held, where the master employs competent workmen, and provides suitable material for staging and intrusts the duty of erecting it to the workmen, as a part of the work which they are engaged to perform, that he is not liable to one of the workmen for injuries resulting to one of them from the falling of the staging. [Bowen v. Railroad, 95 Mo. 268, 277; Herbert v. Wiggins Perry Co., 107 Mo. App. 287, and authorities therein cited; Kelly v. Narcross, 121 Mass. 508; Killea v. Faxon, 125 Mass. 485; Ross v. Walker, 139 Pa. St. 42.]

But plaintiff testified that it was not said to him by the foreman, for him, or those working with him, to build their own scaffolding. It was however said to the others, as Beals, plaintiff’s companion, or, as plaintiff termed him, “partner,” in the work, testified. It is not to be expected that the master or his representative will go to each employee individually and tell him that the servants are constructing the Scaffolding. About most work on a building or other structures, different servants are engaged from time to time,— they are continuously being engaged and quitting, and it would be impracticable to tell each one that the master has or has not, himself, constructed the scaffolding. The judgment should have been for the defendant, and it is accordingly reversed.

All concur.