Most v. Goebel Const. Co.

• Decision Date: 22 May 1918
• Docket Number: No. 15577.,15577.
• Citation: 199 Mo. App. 336,203 S.W. 474
• Parties: MOST v. GOEBEL CONST. CO.
• Court: Missouri Court of Appeals

203 S.W. 474

199 Mo. App. 336

MOST v. GOEBEL CONST. CO.

No. 15577.

St. Louis Court of Appeals. Missouri.

May 7, 1918.

Rehearing Denied May 22, 1918.

Appeal from St. Louis Circuit Court; Wm. M. Kinsey, Judge.

Action by Margaret Most against the Goebel Construction Company, a corporation. Judgment for plaintiff, and defendant appeals. Affirmed.

Leahy, Saunders & Barth, of St. Louis, for appellant. Bartley & Douglass, of St. Louis, for respondent.

BECKER, J.

This is an action by Margaret Most, widow of Fred Most, against the Goebel Construction Company, a corporation, for damages suffered by plaintiff as the result of the death of her husband, Fred Most, while employed by the defendant company as a cement finisher. Judgment resulted in favor of plaintiff, and against the defendant in the sum of $7,500, from which the defendant brings this appeal.

Plaintiff's second amended petition contains appropriate averments as to the relationship of plaintiff to her deceased husband, and charges that the Goebel Construction Company is a Missouri corporation. The petition further avers:

"On or about the 5th day of August, 1915, the defendant was engaged in repairing a building at or near 3757 Chouteau avenue in the city of St. Louis, and that on said date plaintiff's deceased husband was in the employ of the defendant and engaged in erecting or making repairs on said building, from a scaffold erected and furnished him by the defendant upon which to stand while doing said work; that said scaffold was about 60 feet high, and supported by chains or ropes, which swung from the roof of said building, and were attached to said scaffold; that said chains or ropes which supported the scaffold were secured to the roof of said building by passing said chains or ropes through the holes in the roof, and fastening them to or around pieces of timber about 4×4×18 inches, which said timbers were of sufficient size to prevent being pulled through the holes in the roof through which said chains passed, and of sufficient strength to hold said scaffold."

"Plaintiff further says that on said date, while her deceased husband was at work upon said scaffold in the regular scope of his employment, that one of the chains or ropes became unfastened from the piece of timber to which it was fastened as aforesaid, and caused said scaffold to give way with her said husband and precipitate him to the floor below, from which fall he sustained injuries that caused his almost immediate death."

"Plaintiff further says: That the death of her deceased husband was directly caused by the negligence of the defendant in this, to wit, that on the 5th day of August, 1915, and for a long time prior thereto, there was in force in the state of Missouri, section 7843 of the Revised Statutes for the year 1909, as follows, to wit: `All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon. All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due caution and care so as to prevent injury or accident to those at work or near by.' That at the time the defendant negligently failed to have the scaffold upon which it directed plaintiff's deceased husband to work, and which fell and caused the death of plaintiff's deceased husband, well and safely supported and so secured as to insure the safety of her deceased husband while at work thereon, but had one of the chains or ropes which supported the scaffold so negligently fastened to or around the piece of timber aforesaid as to cause it to come loose, thereby causing the scaffold to give way and precipitate plaintiff's deceased husband to the floor, from which he received injuries that caused his death."

"Wherefore plaintiff prays judgment against the defendant for the negligent killing of her husband as aforesaid in the sum of $10,000, together with her costs."

Defendant's answer was a general denial. The case was tried before the court and jury. At the close of plaintiff's case the defendant offered an instruction in the nature of a demurrer to the evidence, which the court overruled. The defendant stood on its demurrer and did not offer any testimony.

Plaintiff's evidence shows: That she is the widow of Fred Most, and that there were four children born of the marriage, living at the time of his decease—three boys, aged, respectively, 2, 13, and 18 years, and a girl aged 6 years. That on the day in question plaintiff's husband, together with three other men named Clark, Menschensky, and Propoulenis, were working on a so-called scaffold suspended from the ceiling of a building belonging to the St. Louis Independent Packing Company, which so-called scaffold was being used to take down the false work on which the concrete roof had been poured, and to smooth the cement work which formed the ceiling. The cement roof was sustained by large iron beams, the concrete forming the ceiling in between the several iron beams being referred to as panels. The so-called scaffold was first erected and swung from the roof at the east end of the building, and as each panel, namely, the space between the big iron beams, was finished the so-called scaffold was moved to the next panel west. The so-called scaffold was made of heavy planks, one end of the planks resting on poles running along the side of the building, and the other part of the planks being supported by three ropes attached to three block and tackle arrangements which were suspended from three chains, each of which ran through an iron pipe, for which an appropriate opening had been left in the concrete which formed the roof. Each of these chains were tied around a piece of wood 4×4×18 inches, which rested for its support on the roof. This so-called scaffold had been built by a carpenter named Clark, assisted by one Cordes, and up to the time it fell it had been moved four or five times, each time by said Clark and his helper. There was abundant testimony that the deceased, Most, had nothing to do either with the original constructing of the so-called scaffold, nor with the fastening of same to the roof, nor the moving thereof from one panel to another. This so-called scaffold was about 13 feet in width and 35 feet in length, and was suspended at a height of about GO feet above the...