Prapuolenis v. Goebel Construction Company
| Decision Date | 16 July 1919 |
| Parties | JOSEPH PRAPUOLENIS v. GOEBEL CONSTRUCTION COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. William T. Jones Judge.
Affirmed.
Leahy Saunders & Barth for appellant.
(1) Defendant's instruction in the nature of a demurrer to the evidence should have been given. (a) Sec. 7843, R. S 1909, does not cover a swinging and shifting platform such as shown in the instant case. This doctrine is known as the "shifting" or "transitory" device doctrine. Livergood v. Lead & Zinc Co., 179 Mo. 229; Anderson v. Missouri Granite & Const. Co., 178 S.W. 737; Deiner v. Sutermeister, 266 Mo. 514-19 (b) Sec. 7843, R. S. 1909, does not preclude the legal effect of a negligent act of a fellow servant, when such act is the direct and proximate cause of plaintiff's injury. Williams v. Ransom, 234 Mo. 55. (c) It devolves upon the plaintiff who relies upon the absence of the relationship as fellow servants to prove its non-existence. McGowan v. Railroad, 61 Mo. 528; Blessing v. Railroad, 77 Mo. 410; Ryan v. McCully, 123 Mo. 636; Shaw v. Bambrick-Bates Construction Co., 102 Mo.App. 666; Sheehan v. Prosser, 55 Mo.App. 569; Ryan v. Christian Board of Publication, 199 S.W. 1032. (d) By plaintiff's allegation and evidence the direct and proximate cause of his injury was the negligent manner in which the particular chain in question was secured, when the platform was changed by the workmen during the progress of the work. (e) When plaintiff's evidence is uncontradicted, the question whether other workmen are fellow servants of the plaintiff is a question of law for the court alone to decide. McGowan v. St. Louis & Iron Mountain R. Co., 61 Mo. 528; Marshall v. Schricker, 63 Mo. 308. (f) In the case at bar the other workmen were fellow servants of the plaintiff. Richardson v. Mesker, 171 Mo. 666; Ewan v. Lippincott, 47 N.J.L. 192; O'Brien v. American Dredging Co., 53 N.J.L. 291. (g) When the evidence is uncontradicted that the negligent act of a fellow-servant is the direct and proximate cause of plaintiff's injury, a verdict should be directed for defendant. McDermott v. Pac. Railroad, Co., 30 Mo. 115; Brothers v. Carter, 52 Mo. 372; Higgins v. Mo. Pac. R. R. Co., 104 Mo. 413; Warmington v. Railroad, 46 Mo.App. 159. (2) This case in its last analysis rests upon the res ipsa loquitur doctrine which does not apply in master and servant cases. Sec. 7843, R. S. 1909; Deiner v. Sutermeister, 266 Mo. 514; White v. Montgomery Ward & Co., 191 Mo.App. 270; Williams v. Ranson, 234 Mo. 75; Forbes v. Dunnavant, 198 Mo. 210; Hedrick v. Kahmann, 174 Mo.App. 57; Removich v. Construction Co., 264 Mo. 43.
Joseph A. Wright, for respondent.
(1) The testimony leaves no doubt that the scaffold "was not well and safely supported," as required by Sec. 7843, R. S. 1909. This was sufficient evidence to warrant a finding of negligence, particularly in view of the obvious peril to the workmen from failure to exercise proper care in supporting the scaffold. Reber v. Tower, 11 Mo.App. 199; Denker v. Wolff Milling Co., 135 Mo.App. 340; Mayer v. Atlantic Refining Co., 254 Pa. 544; Blohm v. Boston Elevated Railway Co., 221 Mass. 390; Bartlett-Hayward Co. v. Maryland, 121 Md. 1. (2) Plaintiff had nothing whatever to do with the erection of the scaffold, and therefore he cannot be regarded as the fellow-servant of Clark, who constructed it. Stapleton v. Hummel Mfg. Co., 202 S.W. 369; Koerner v. St. Louis Car Co., 209 Mo. 141; McGrath v. Vogel, 182 S.W. 813; White v. Montgomery Ward & Co., 191 Mo.App. 268; Lang v. Bailes, 19 N.D. 582. (3) The statute (Sec. 7843, R. S. 1909) is mandatory, and imposed the non-delegable duty on defendant to have the scaffold "well and safely supported." Deiner v. Sutermeister, 266 Mo. 505. Manifestly, if it had been well and safely supported, and the statutory mandatory observed, plaintiff would not have been injured. It is a case of statutory negligence made negligence per se by the law-making authority. Thompson Law of Negligence, par. 10; Burt v. Nichols, 264 Mo. 1; Johnson v. Snow, 201 Mo. 450; Yall v. Snow, 201 Mo. 511; Turner v. Railroad, 78 Mo. 580; Sluder v. St. Louis Transit Co., 189 Mo. 107; Stewart v. Ferguson, 164 N.Y. 553, 556; Cady v. Interborough Rapid Transit Co, 195 N.Y. 415, 30 L.R.A. (N. S.) 30; Madden v. Hughes, 185 N.Y. 466; McDonald Co. v. Manns, 177 F. 203; Steel & Masonry Contracting Co. v. Reilly, 210 F. 437; New York R. R. Co. v. Mooney, 223 F. 626. (4) The fact that defendant erected a separate and complete scaffold for each section of the building cannot defeat liability. Since each scaffold at the particular section was a separate and complete place to work, its erection carried with it the duty to make each scaffold safe. Murray v. Paine Lumber Co., 155 Wis. 409; Feldman v. Mackey Co., 161 N.Y.S. 564; Swenson v. Wilson Mfg. Co., 102 A.D. (N.Y.) 477; Steel & Masonry Contracting Co. v. Reilly, 210 F. 437. If defendant's contention that although the ends rested on solid supports, it is relieved from liability because the center rested upon chains, then the law can be defeated by adopting the exceeding perilous method of suspending the scaffold with ropes and chains. In truth, this dangerous method, apparently adopted to save expense, is the cause of these workmen being injured and killed. It is the use, not the method of supporting the scaffold, that determines liability. If fastened by ropes or chains, it remains a scaffold within the meaning of the law. Deiner v. Sutermeister, 266 Mo. 505; Madden v. Hughes, 185 N.Y. 466; Flannigan v. Ryan, 89 A.D. (N.Y.) 624, 85 N.Y.S. 947; Frid v. Benton, 69 L. J. Q. B. 436, 82 L. T. 193.
WHITE, C. Railey and Mozley, CC., concur.
The plaintiff obtained judgment against defendant in the sum of fifteen thousand dollars for personal injuries received while employed by the defendant and alleged to have been inflicted through the negligence of defendant. Defendant appealed from that judgment.
The plaintiff was employed as a common laborer. The defendant had erected a concrete building to be used as a packing plant for the St. Louis Independent Packing Company. After its erection the plaintiff was injured while assisting in removing the forms which had been used in constructing the building.
The building was estimated to be between sixty and eighty feet in length and was fifty or sixty feet in width. It was sixty feet high. There had been built up along the walls on the inside of the building for the use of the workmen a framework for stationary platforms, extending to within a few feet of the ceiling. This left an open space in the centre of the building about thirty-five feet wide from the stationary framework of the scaffold on one side to the stationary framework of the scaffold on the other side. The gang of men with whom the plaintiff was working were taking down the forms from the top of the building. In order to do this a platform was constructed across the thirty-five feet of space between the stationary scaffolds on the sides in this manner: a swinging beam made of two-by-sixes about thirteen feet long, nailed together at the ends, running lengthwise of the building in the centre of this space, was suspended and supported by chains depending from the roof. In the concrete roof there were holes three inches in diameter, through which the chains were let down. Planks were then laid across from the fixed framework on each side of this swinging support, so that it made a platform thirty-five feet long and about thirteen feet wide, extending crossways of the building, supported on each end by the solid framework, and supported in the middle by the swinging beam mentioned. The chains which went through the holes in the roof to support this structure were double and fastened together at the top. There was a large knot in one end of each chain, while the other end was wired to that knot. A four-by-four block eighteen inches long was thrust through the loop thus made. Each end of the four-by-four block rested on a short plank about a foot long and five-eighths of an inch thick and five or six inches wide, perhaps to protect the concrete.
On the 5th day of August, 1915, the plaintiff and three other men were working on the platform described. One of the four was a man named Clark, a carpenter. It seems that Clark was engaged in detaching the lumber used in the forms and handing it to the plaintiff, who in turn handed it down to another laborer. While they were so engaged one of the chains became detached from its fastening on the roof, the support of the scaffold gave way, and the four men were precipitated to the bottom of the building sixty feet below. One of them was killed and the others severely injured. All of them or their representatives sued and recovered judgments against the Goebel Construction Company. The cases other than that of the appellant went to the St. Louis Court of Appeals, where they were affirmed.
The plaintiff was a common laborer. Clark, the carpenter who was working with him at the time of the injury, had constructed the scaffold upon which they were working at some time previous to that. The plaintiff had nothing to do with that part of the work and didn't know when it was done.
There was some evidence indicating that the ends of the chain had been insecurely fastened around the block which supported it on top of the building, or had become insecurely fastened in the progress of the work, so that it slipped through the hole and let down one end of the cross-piece which supported the platform. The building extended in an easterly and westerly direction, and as described by one of the witnesses "the farthest chain west had become unfastened and the...
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