Bidwell v. Grubb
| Citation | 201 S.W. 579,198 Mo.App. 655 |
| Parties | ROBERT BIDWELL, Respondent, v. C. N. GRUBB, Appellant |
| Decision Date | 05 March 1918 |
| Court | Court of Appeal of Missouri (US) |
Argued and Submitted February 7, 1918
Appeal from the Circuit Court of St. Louis County.--Hon. Gustavus A Wurdeman, Judge.
AFFIRMED.
Judgment affirmed.
Holland Rutlege & Lashly for appellant.
(1) The obligation of the master to furnish a reasonably safe place does not apply where the servant is upon premises that are under the exclusive control of a third party. Powell v Walker, 185 S.W. 532; Troth v. Norcross, 111 Mo. 634; 26 Cyc., p. 1,109; Channon v. Sanford Co., 70 Con. 573; Hughes v. Gas Co., 168 Mass. 395; American Bridge Co. v. Bainum, F. Rep. 367; Robinson v. Railroad, 88 Vt. 129; Hallon v. Sprague Elevator Co., 37 N.Y.S. 175. (2) The obligation of a master to furnish a reasonably safe place does not apply where a building is in course of erection and conditions are constantly shifting. Armour v. Hahn, 111 U.S. 311; Meehan v. Railroad, 114 Mo.App. 396; Holloran v. Union Iron & Foundry Co., 133 Mo. 470. (3) It is incumbent upon the servant to establish that the danger of which he complains was known to the master, or, by the exercise of ordinary care, would have been known to him; and that the said danger could reasonably have been anticipated by the master. Brewing Assn. v. Talbot, 141 Mo. 674; Goodrich v. Railroad, 152 Mo. 222; Meifert v. Union Sand Co., 124 Mo.App. 491. (4) It was incumbent upon plaintiff to show that it was necessary for him to use the brick wall in question in order to do his work. This he failed to do. (5) The court erred in giving instruction number 1 at the instance of plaintiff. Said instruction is erroneous for the following reasons: (a) It requires a finding from the jury that it was necessary for plaintiff to stand or rest on the top of the brick wall in question, when there was no testimony to that effect. It is erroneous to predicate a finding upon matters in reference to which there is no testimony. Stone v. Hunt, 114 Mo. 166; State v. Hope, 102 Mo. 110; Evans v. Interstate Co., 106 Mo. 50; State v. Brown, 145 Mo. 680; Wilkerson v. Eilers, 114 Mo. 245. (b) Because it requires a finding that defendant's foreman knew, or, by the exercise of ordinary care, ought to have known of the danger of the bricks in question giving way. There was no evidence upon which to base such a finding. See authorities cited under heading 3, supra. (c) Said instruction is erroneous because it ignores the testimony to the effect that the brick wall in question was under the control of the brick contractor and not under the control of the defendant. See authorities cited under heading 1, supra. (d) Said instruction is erroneous because 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. See authorities cited under heading 2, supra. (6) The court erred in giving instruction number 2 at the instance of plaintiff. Said instruction is erroneous for the following reasons: (a) Because it requires a finding that it was necessary for plaintiff on the occasion in question to step or rest on the top of a brick wall. It is erroneous to predicate a finding where there is no testimony upon which to base it. See authorities cited under heading 5 (a) supra. (b) Said instruction is erroneous because it requires a finding that the brick wall at the place in question was loose and insecure, and defendant's foreman knew, or by the exercise of ordinary care would have known of its said condition. See authorities cited under heading 3, supra. (c) Said instruction is further erroneous because it disregards the testimony to the effect that the brick wall in question was erected by the brick contractor and was under his control, and not under the control of the defendant. See authorities cited under heading 1, supra. (d) Said instruction is further erroneous because it ignores the testimony to the effect that the plaintiff was working upon an unfinished building, amid shifting conditions. See authoriites cited under heading 2, supra. (7) The court erred in giving instruction number 3 at the instance of plaintiff. Said instruction is erroneous because it requires a finding that it was necessary for plaintiff to rest or step on the brick wall, when there was no testimony upon which to base said finding. See authorities cited under heading 5(a), supra. (8) The court erred in refusing to give instruction B offered by defendant. See authorities cited under heading 1, supra. (9) The court erred in refusing to give instruction C requested by defendant. See authorities cited under heading 1, supra. (10) The court erred in refusing to give instruction E requested by defendant. See authorities cited under heading 3, supra.
Breckinridge Long and Frank A. Thompson for respondent.
(1) It is elementary law that it is the duty of the master to exercise ordinary care to furnish a servant a reasonably safe place in which to work. Clark v. Iron & Foundry Co., 234 Mo. 436, 449; Dayharsh v. Railroad, 103 Mo. 569; Herdler v. Buck's Stove Company, 136 Mo. 16; Doyle v. Trust Co., 140 Mo. 10; Burkard v. Rope Company, 217 Mo. 481; Bennett v. Lime Co., 146 Mo.App. 573; Morgan v. Railroad, 136 Mo.App. 342. A. "The greater the hazard the greater the care." Woods v. Wabash R. R. Co., 188 Mo. 229. (2) It is equally academic that this duty of the master was imposed upon his vice-principal, Tom Reed, the foreman in charge of the work, and whose orders respondent was obeying in doing the sawing as he was doing it, and his orders to do the sawing as directed were assurance that the wall was reasonably safe for that purpose. Sullivan v. Railroad, 107 Mo. 66; Bane v. Irwin, 172 Mo. 317; Baxter v. Lumber Company, 186 Mo.App. 361; Clark v. Iron & Fdy. Co., 234 Mo. 436; Morgan v. Railroad, 136 Mo.App. 342; Shortel v. City of St. Joseph, 104 Mo. 120; Bradley v. Railroad, 138 Mo. 306; Bennett v. Lime Co., 146 Mo.App. 575. (3) The duty of the master to exercise ordinary care to furnish the servant a reasonably safe place in which to work applies even though the premises where the servant is required to work are not owned by the master or under his authority or control. Clark v. Iron & Foundry Co., 234 Mo. 436, 451; Near v. St. Louis & San Francisco Railroad Company, 261 Mo. 80. (4) The duty on the part of the master to exercise reasonable and ordinary care applies particularly in this case, and the conditions are not constantly shifted in the erection of a building so as to relieve the master of this primary duty. Rowden v. Mining Co., 136 Mo.App. 387. (5) There was testimony that the defendant knew, or by the exercise of ordinary care, under the circumstances, could have known, that the mortar on the brick wall was defective. (6) In answer to point 4 of appellant's brief we contend that there was positive evidence to the effect that it was necessary for plaintiff to stand on the brick wall to do the sawing. (7) In answer to point 5 made in appellant's brief, we contend that there was abundant testimony to the effect that it was necessary for plaintiff to stand on the wall to do the sawing in the manner in which he was directed to do the sawing. There was also evidence that the brick wall was loose and insecure and that the mortar had no adhesive part to it, which was discovered upon a slight examination, by defendant, immediately after the accident. A minute examination of it, which we think ordinary care called for, under the circumstances, undoubtedly would have disclosed it before the accident. Woods v. Wabash R. R. Co., 188 Mo. 229.
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 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...
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