Powell v. Walker
| Decision Date | 13 January 1917 |
| Citation | 185 S.W. 532,195 Mo.App. 150 |
| Parties | HARRY K. POWELL, Respondent, v. ALFRED H. WALKER, and JOSEPH W. O'BYRNE, Composing the Firm of WALKER-O'BYRNE ELECTRICAL COMPANY, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court. Division Number One.--Hon Guy D. Kirby, Judge.
REVERSED.
Judgment reversed.
Sebree & Orr for appellants.
J. T White for respondent.
--The plaintiff recovered a judgment for $ 300 on account of personal injuries sustained by reason of alleged negligence on the part of the defendants by whom he was employed at the time of his injuries.
The petition, after alleging that plaintiff was in the employ of the defendants, pleads that he was sent to hang some electrical fixtures which he took with him from defendant's place of business in the city of Springfield to the editorial room of the Springfield Missouri Republican in the Republican Building, and that the defendants furnished him a stepladder with which to do his work which was old and weak and rickety and unsafe, and that the defendants therein were negligent in respect of their duty to him. A further ground of negligence pleaded is that the place in which plaintiff was sent to stand upon this stepladder was where many persons were crossing the room and were likely to push against the ladder while plaintiff was upon it doing his task. Further, that it was unsafe and dangerous to hang fixtures without a helper to hold and protect the ladder and prevent it from toppling, and that defendants were negligent in that they failed in the duty they owed him to furnish a helper.
The answer was a general denial, coupled with a plea of assumption of risk and contributory negligence.
I. The judgment must be reversed because under the most favorable view of the plaintiff's evidence there fails to appear a neglect of any legal duty owing by defendants to the plaintiff.
Plaintiff testified that he was twenty-one years of age, had worked in this line of business of hanging electrical fixtures, wiring, and the like, for about three years, and had been in the employ of the defendants about three weeks doing this line work in residences where the ceilings were about nine feet high; that in such work he was a helper, and that the duty of a helper was to go with a journeyman and to hand him the materials to be worked with and to stay at the bottom of the ladder to steady it and keep it from toppling over. He says that he had done this line of work himself. He further testifies that he was told by one of the defendants to take some electrical fixtures from the shop and to go to the editorial room of the Republican Building and take down the fixtures that had been placed there by the defendants some time before and replace them with the fixtures taken along; that he and one of defendants looked about the shop for a stepladder, but finding that they were all in use and that none was there, the defendant sending him told him there was a stepladder at the Republican Building which they had used when they had done the work there before, and plaintiff was told to get that ladder and use it in taking down the old fixtures and putting up the ones he was taking with him. Plaintiff went to the editorial room of the Republican Building and asked one of the employees there for a ladder and was told to go back to the composing room where he would find one. He found the stepladder, brought it to the editorial room, took down one of the fixtures, and then ascertained that the new fixture would not fit in the hole in the ceiling that the old one came out of, and saw that the use of a drill hammer was required. The drill hammer weighed fifteen or twenty pounds, and was operated by placing it on the shoulder while standing on the ladder and drilling the hole larger for the reception of the new fixture. Plaintiff then went back to the defendants' place of business and secured the drill. He saw one of the defendants when he went back but made no mention of the necessity to use the drill hammer, his excuse being that the defendant was busy with a customer. He returned to the place where he was doing his task, drilled the hole larger and put up the new fixture. It was then noon and he left his work and went by the shop and on to dinner, but did not see either of his employers. Coming from dinner, he went back to the shop and looked for another stepladder, because, as he said, the one he was working with was "walking" about on the floor as he was doing his work and that he didn't consider it exactly safe. Neither of his employers was at the shop at the time of this visit. He resumed his work, and while on the ladder drilling the second hole larger, his attention was called to the rickety and unsafe condition of the ladder by Mr. Barde, one of the editors employed in that room, to which the plaintiff replied (according to Barde and the plaintiff) that he had life insurance. While he was on the ladder drilling this second hole, a telephone in the room rang and one of the reporters who was talking with Mr. Barde started to the telephone and in doing so was required to pass the stepladder. The reporter's overcoat caught on something which pulled the ladder and caused it to begin to topple. The force that the reporter's overcoat exerted on the ladder is shown by the fact that a hole was torn in the coat where it caught on the ladder. While rocking back and forth from this pull that had been made on the ladder by the reporter in catching his coat, the plaintiff undertook to steady the ladder and it broke and the leg of the ladder broke and plaintiff with the ladder and drill fell to the floor, breaking his wrist and otherwise injuring him. The evidence of the plaintiff is that he was required while using the ladder in doing this work before it broke with him to get down three or four times and tie it to keep it from "walking" and swaying.
The uncontroverted testimony, put in by the plaintiff, is that it was not the duty of the defendants to furnish him with a helper to stand at the bottom of the ladder to steady it unless he (the man on the ladder) thought it was necessary to have a helper and asked for one. In other words, the whole testimony is that the man who is to work on the ladder determines for himself whether under the circumstances and surroundings it is necessary to have a helper to steady the ladder. In this case there is no contention made and in fact it is admitted that plaintiff did not ask for a helper. In this connection, plaintiff testified positively that had the reporter not run against this stepladder and started it to rocking it would not have turned over and he would not have been injured. There can be, therefore, no other conclusion than that it was error to have submitted the question in the principal instruction whether the defendants were negligent in failing to furnish a helper, because, as before stated, plaintiff's own testimony shows that the duty to furnish a helper never arose for the reason that he--the man to work on the ladder--never demanded one; and if a failure to furnish a helper in order to guard the ladder was a contributing cause of the injury, that failure was the negligence of the plaintiff in not calling for a helper, and therefore his own negligence in this respect would bar a recovery.
II. Now, did the plaintiff's evidence show a liability against the defendants on the charge that they had negligently...
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