Bidwell v. Grubb

REYNOLDS, P. J. Action by plaintiff for damages for injuries sustained by the giving away of a wall on which plaintiff was partly resting while engaged in laying a subfloor on a building, the outer walls of which had reached to the third story, the top about — 660 — forty feet from the ground. Plaintiff’s employer, the defendant, was the contractor for doing the carpenter work in connection with the erection of an addition to Lindenwood College in St. Charles. The general contractor for the .work was the Westlake Construction Company and one Reinschmidt was contractor for erecting the walls. Plaintiff, who was an experienced carpenter, had been working on the building some six weeks or more at. the time of the accident. As the work progressed on the building it was necessary for the carpenters to lay joists, these joists resting on the brick walls. The building in question ran east and west, the front to the east. Its width was from north to south. The joists ran north and south parallel to each other and about sixteen inches apart and were inserted in the north and south walls. At the time of the accident to plaintiff the joists for the third floor were in position, and plaintiff and other carpenters were engaged in laying a subfloor on them. This subfloor started at the southeast corner of the building and the boards composing it were laid diagonally, one end resting on the west wall, the other on the south wall. The planks' of this subfloor were six inches wide. It was necessary to saw off the south end of each plank at right angles in laying them. At the time in question about fifteen of these boards in this subfloor had been laid, covering about ten feet of the joists from the corner. The usual way of laying these boards, it seems, was to nail them down, then mark off a line just inside the wall and saw off the ends. That was the way plaintiff had been doing the work, when the foreman of the job, who was immediately over plaintiff, came up to him and told him that he should saw the boards as he went along, where he was leaving them to. just stick over the wall. To quote the exact language of the foreman, as testified to by plaintiff, the foreman told him not to lay the boards in the way he was doing it, but to go ahead and saw off each, board as he went. Plaintiff testified that before that he had been leaving them stick over the wall and after a section of them — 661 — was laid lie would then saw them off, but the foreman changed this by directing him to saw each board as he went along. A witness for plaintiff, who was assisting plaintiff in the work, testified to practically the same thing, that is, that the foreman came around and told them to saw the hoards as they went along, and after that they sawed one board at a time,. holding it up and sawing it. This witness further testified that the usual way they had worked before the foreman had given them this direction, was to run it over and cut it after it was laid, standing on the top of the floor and cutting it; that doing it the way the foreman directed, however, plaintiff being right-handed, was obliged to rest his left foot or leg on the wall','kneeling with his right knee on the boards in place, as we understand it. It is very difficult to understand from the testimony whether plaintiff, when he.was sawing off this board, had nailed it, or whether it was loose, but in the view we take of it we do not think that that is very material. The material fact in the case is, that the evidence on the part of plaintiff tends to show that in order to saw the board in the manner directed' by the foreman, it was necessary for him to place one foot on the top of the wall so that his weight rested partly on that and partly on the knee of his right leg, which it appears was on the flooring. As to that the evidence is not very clear. At any rate, while the plaintiff was so engaged the top of the wall gave way, and he was precipitated to the ground, receiving the injuries of which he complains and on account of which he brought this action. There are two acts of negligence charged in the petition in the following language: “1. The defendant negligently failed to furnish and provide the plaintiff with a suitable, proper and safe place in which to work, in that said place, where plaintiff was sent to do the said work, as aforesaid, was not a suitable, safe and proper place in which to carry on the work of sawing the boards as aforesaid, — 662 — inasmuch as the brick wall on which it was necessary, as aforesaid, for plaintiff to stand or kneel or rest was loose and unsafe, which the defendant knew, or by the exercise of ordinary care and diligence, could have known. “2. Plaintiff further states that said place where he was ordered to work by defendant was dangerous, to the safety of plaintiff, by reason of the fact that plaintiff while in the exercise of ordinary care for his own safety, in doing said work, as directed by the defendant, was likely to fall from said wall, a great distance to the ground and to be injured by. losing his balance on said wall, or slipping therefrom, or by the bricks on top of said wall 'turning under the weight of plaintiff’s bpdy; that defendant either knew or. by the exercise of ordinary care ought to have known, of the dangers of said place in which he had ordered said plaintiff to do said work, as aforesaid. Plaintiff further states that his fall from said wall to the ground, and his subsequent injuries, were directly caused by the carelessness and negligence of the defendant in ordering the plaintiff to do said work in said dangerous place, as aforesaid.” (Italics ours.) At the conclusion of the testimony defendant offered an instruction in the nature of a demurrer, which was refused, defendant excepting. At the instance of plaintiff the court gave five instructions and gave a number at the instance of defendant. It refused four asked by defendant and of its own motion gave the usual instruction as to the number of jurors necessary to-concur in a verdict. The jury returned a verdict in favor of plaintiff for $3500, judgment following. Defendant,, filing a motion for new trial, excepted to its being overruled and has duly appealed. There were no formal assignments of error made by learned counsel for appellant but they have made and argued ten points. The first and second are to the effect that the obligation of the employer to furnish a reasonably safe — 663 — place, does not apply where the employee is upon premises that are under-the exclusive control of a third party, and that the obligation of the employer to furnish a reasonably safe place, does not apply where a building is in course of erection and conditions are constantly shifting. Taking up the last proposition first, while that is good law, it is not applicable here, for there is no evidence that the conditions were constantly shifting while this work was going on. The brick-work in the wall had been laid on Friday; the accident happened, on the following Monday, so there was no change in the condition of the wall. If it is meant by this proposition that the conditions were changed by the fact that laying the several planks on this subfloor, that is not such a change in condition as is contemplated by the authorities cited and referred to. If it is meant by this that these were changed by the directions which the foreman gave, the answer is that it was in consequence of that order that the plaintiff was doing the work in the manner which resulted in the accident; As to the first proposition, our court had very much the same contention made before it in Greenstein v. Christopher & Simpson Architectural Iron & Foundry Co., 178 S. W. 1179, not to be officially reported. That was an action against the defendant for injury to a painter, who had been employed by the defendant to paint some girders. It was in evidence that one of these girders had not been set properly by the bricklayers, who had the contract for- the doing of the brickwork, and that in consequence thereof it had turned and thrown plaintiff, to liis injury. We there held that the fact that defendant had nothing to do with the brick-work and that the ends of beams were to be bricked in after the contractor had placed them in position, could not relieve the defendant of its duty to exercise ordinary care to make the plaee°reasonably safe for its employee engaged in painting such beams, as it' was bound to use reasonable care to discover the dangerous condition of the. beams, if any. — 664 — In Clark v. Union Iron & Foundry Co., 234 Mo. 436, 137 S. W. 577, our Supreme Court held it was the duty of the employer to inspect the premises about which his workmen were engaged under his direction and ascertain whether or not there were any dangerous agencies connected with or about the place where plaintiff was required to work that would render it unsafé. This duty to inspect for secret and hidden dangers rested upon the employer, and he is not absolved from liability to the workmen by the mere fact that the dangers were hidden and he knew nothing about them and they were not of his making, and that while it is the duty of the owner of the premises to notify the contractor employed to repair them, of hidden dangers, the contractor is not absolved from his duty to his workmen to inspect and notify him of such hidden dangers by the owner’s failure to notify the contractor. These decisions determine the first and second points made by learned counsel for appellant adversely to their contention. The third point made by learned counsel for appellant is that it was incumbent upon the plaintiff to establish that the danger which he complains of was known to the employer, or by the exercise of ordinary care would have been known to him, and that the danger could reasonably have been anticipated by the employer. The evidence in this case shows that even a casual inspection by the defendant of this wall which fell, would have demonstrated that it was not properly laid' and was unsafe. A witness for plaintiff, who was working with him at the time, testified that immediately after the accident to plaintiff, the defendant came to the witness and asked him if he knew why or how it happened that plaintiff fell. Witness told him he did not and defendant said to him, “There'may be gravel under this brick,” and he called the witness over and together they examined the mortar where three or four bricks had fallen out, but found no gravel in it “Just crumbled it up in oui- fingers, and it was nothing much — 665 — more than sand,” said the witness; could not find any gravel on top of the brick. The mortar was lime mortar. Said this witness, “You could pick it up in your fingers and crumble it up as you would that much sand. There was very little adhesive part to it than there would have been in the pure sand.” This is certainly evidence sufficient to show that even the most casual examination would have developed the fact that the mortar with which these bricks were laid in this wall was not of the proper quality to make the wall safe. We therefore hold this third point made by learned counsel for appellant untenable. The fourth proposition made by those learned counsel is, that it was incumbent upon the plaintiff to show that it was necessary for him to use the brick wall in question in order to do his' work, and it is claimed that he had failed to do this. In connection with this same claim are the fifth, sixth and seventh points, which attack the first, second and third instructions given at the instance of plaintiff. The gravamen of the attack on the instructions is, that they required a finding by the jury that it was necessary for the plaintiff to rest ’ or step on the brick wall in doing the work in which he was engaged, when there was no evidence to support this. We cannot agree to this. There was very substantial evidence to the effect that to carry out the instructions of the foreman as to the manner in which he should do this work, that is saw! off the ends of the boards as laid or as being laid, and considering the situation, that it was necessary for plaintiff to rest his foot on 'this wall, and that to do the work as required by the foreman in any other way, would have involved the consumption of more time, or would have required plaintiff to place himself in such an awkward position that it would have been almost impracticable for him to have done the work. Learned counsel for appellant lose sight of the fact that in the second ground of negligence alleged, it is charged that “by reason of the fact that plaintiff while in the exercise of ordinary care for his own safe — 666 — ty, in doing said work, as directed by the defendant, was likely to fall from said wall, a great distance to the ground,” etc. Both' in their argument and. in their quotation of this second ground of negligence these counsel have inadvertently overlooked the above words which we have italicized in the second assignment of negligence, namely, that plaintiff was- doing the work in the manner directed by the defendant. There was very substantial evidence that in doing it, as so directed, it was necessary for him to brace himself against this wall with one leg. We therefore hold that this point is not tenable. , It is further argued as against the correctness of the first instruction, that it requires the finding that the defendant’s foreman, by the exercise of ordinary care ought to have known of the danger of the bricks in question giving way. This, it is argued, was erroneous because there was no evidence, it is claimed, upon which to base such finding. We have disposed of this contention above. It is further argued against this instruction that it ignores the fact that the plaintiff, at the time of his accident, was Working on a building in the course of construction, amid shifting conditions. This, we have also disposed of adversely to the claim of learned counsel. The other points urged against the first and second instructions have been disposed of by what we have said before. The eighth and ninth propositions or points made are to the refusal of the court to give three instructions asked by the defendant. The points sought to be covered by the first and second of these instructions are, that they asked the court to instruct the jury that if they believed and found from the evidence that the brick wall mentioned in the evidence was not designed or erected by the defendant, but was designed by the owner of the premises and erected by a brick contractor, and if they further believe and find from the evidence that the brick wall was not in possession — 667 — or control of the defendant then and in that case plaintiff is not entitled to recover and they should find their verdict for the defendant. Another, instruction covered this same proposition in different language. • We have disposed of both of these points adversely to the claim of counsel for appellant in what we have said when referring to the point first' made. The third instruction which was refused, and on which refusal error is assigned’, is to the effect that there was no evidence in the case that defendant either knew or by the exercise of ordinary care would have known that the brick wall mentioned in the evidence was defective. We have disposed of this adversely to the claim of learned counsel for appellant. . Finding no reversible error the judgment of the circuit court is affirmed. Allen and Becker, JJ., concur.