Sullivan v. Hannibal & St. Joseph Railroad

107 Mo. 66 | Mo. | 1891

Sherwood, P. J.

Action for damages for injuries resulting to plaintiff in consequence of the falling of a portion of a scaffold or staging, upon which plaintiff and other carpenters under Prather, their foreman and the agent of the defendant, were engaged in removing an icehouse of the latter, which was to be erected at another place.

The work was begun by sawing the roof into sections of seven or eight feet in width and letting them down upon a staging then being erected by some of the carpenters while plaintiff and Lauffer were upon the roof engaged in sawing the roof into sections. This staging was formed by placing posts under the center of each of the tie-beams, which theretofore had been employed to keep the building from spreading, so that the tie-beams would sustain the sections of the roof when let down upon them, and two rows of plank, two Jby twelve, were placed on and spiked to the tie-beams down through the center to work from. Planks which had been used as collar-beams were thrown by the workmen across the tie-beams as they were taken down.

About ten a. m., as they let down the first section at the northeast corner, which was about seven by sixteen feet, a cracking was heard below it, and plaintiff says he felt the staging sinking, and the foreman went below and reported to the men including plaintiff, that there was a knot in the beam, 'and that it was all right if they would put the section of the roof over it as a staging, which was done. The broken tie-beam was under about the center of the section. They took down the entire roof by sections and then proceeded to take them off by pushing them over the sides of the building. In the afternoon, between two and four v. m., and after all the sections but the one in question had been taken down, they reached the section which covered the broken tie-beam and attempted to remove it as the others. Plaintiff and several others were on top and raised the inner end of that section, and were pushing it to get it over the plate onto skids placed on the outside against the building. While so doing, and after the section had been moved two or three feet, plaintiff says something gave way under him, and he went down and was injured.

Prather was present at the time of the removal of this last section and gave orders for its removal, as he himself testifies, and there is other testimony to the same effect, and there can be no question from the testimony but that the fall of the plaintiff was owing to the broken tie-beam, and that plaintiff was not aware that a portion of the defective tie-beam had fallen out, leaving the other portion wholly unsupported, and of this the foreman Prather was aware. Prather stood in the attitude, not of a fellow-servant of plaintiff, but as the vice-principal, the alter ego, of the defendant company. Moore v. Railroad, 85 Mo. 588; McDermott v. Railroad, 87 Mo. 285.

That company was bound to use due care in the erection of reasonably safe staging on which plaintiff could work, especially as he was not engaged in the construction of that staging; and, failing to do this, the company which was represented by Prather became responsible for the injury resulting to plaintiff therefrom. This is not a case like the Armour case, 111 U. S. 315, where the question turns upon the liability of the master to one fellow-servant resulting from injuries inflicted through the negligence of a co-employe, but the original negligence of the master manifested in a variety of ways by the defendant company through its appointed representative. It was the clear duty of that representative to have repaired the broken tie-beam or never to have used it in the first instance without making the necessary repair thereto.

And having given the plaintiff the original assurance-that the staging was safe, the fact that Prather was present and ordered and superintended the removal of the last section of the- roof when the accident occurred was tantamount to a tacit assertion that it was safe for plaintiff to proceed with the removal of that section, and plaintiff was not bound to search for danger, but had a right to rely upon the judgment and discretion of the defendant’s foreman that he would fully perform the measure of his duty towards him.

The plaintiff, indeed, knew to a certain extent of the defect in the tie-beam, but he did not know of the danger to which he was subjected by reason of the defect, which Prather did or would have known, had he discharged his duty in this regard. These principles are recognized in the somewhat recent case of Bowen v. Railroad, 95 Mo. 277, although they were not directly involved. See the cases there cited, especially Arkerson v. Dennison, 117 Mass. 407; also, Wood, Mas. & Ser. [ 2 Ed.] secs. 354, 376.

The instructions given and refused will accompany this opinion and, as we are not able to see that any material error in regard to their being given or refused has occurred, we affirm the judgment.

All concur.