Whittington v. Westport Hotel Operating Co.

• Decision Date: 20 December 1930
• Citation: 33 S.W.2d 963,326 Mo. 1117
• Parties: J. M. Whittington v. Westport Hotel Operating Company and George H. Siedhoff Construction Company, Appellants
• Court: Missouri Supreme Court

33 S.W.2d 963

326 Mo. 1117

J. M. Whittington v. Westport Hotel Operating Company and George H. Siedhoff Construction Company, Appellants

Supreme Court of Missouri

December 20, 1930

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge;

Affirmed.

Henry S. Conrad, L. E. Durham, Hale Houts and Ilus M Lee for appellants.

(1) The court erred in not directing a verdict for the Siedhoff Company. (a) There was a failure of proof of the allegations of the plaintiff's petition connecting it with plaintiff and the work. National Bank of Commerce v. Morris, 125 Mo. 343; First Nat. Bank v. Equipment Co., 285 S.W. 782; Stenson v. Lancaster, 178 Mo.App. 346; Debord v. Penalton, 262 S.W. 395; Bibber v Swift & Co., 286 Mo. 317; Guthrie v. Holmes, 272 Mo. 215; State ex rel. v. Daues, 219 S.W.2d 705. (b) The verdict of the jury against both defendants requires the reversal of the judgment as to the defendant Siedhoff Company. Standard Oil Co. v. Anderson, 212 U.S. 220; Holloway v. Schield, 294 Mo. 523; Karguth v. Coke Co., 299 Mo. 597; Reeder v. Lead Co., 260 S.W. 551; McGinnis v. Railway, 200 Mo. 347. (2) The court erred in not directing a verdict for both defendants. No case of actionable negligence was made. The plank was a simple appliance and the conditions obvious and known to plaintiff. As a matter of law he could not and did not rely upon any assurance of safety by Gatlin. Chrismer v. Tel. Co., 194 Mo. 189; Mathis v. Stock Yards Co., 185 Mo. 434; State ex rel. Koenen v. Daues, 288 S.W. 15; Korpall v. Atlas Co., 253 S.W. 508; Emory v. Railway, 296 Mo. 681; Harbock v. Iron Works, 289 Mo. 491; Wulfert v. Construction Co., 232 S.W. 243; Osborne v. Railway, 1 S.W.2d 181; Knorpp v. Wagner, 195 Mo. 664; Hearon v. Lumber Co., 206 Mo.App. 460; Knoles v. Telephone Co., 255 S.W. 1010. (3) The court erred in the admission of testimony and the failure to instruct it out of the case. (a) Testimony as to the statements in regard to the Siedhoff Company. National Bank of Commerce v. Morris, 125 Mo. 343; First National Bank v. Equipment Co., 285 S.W. 782; Stenson v. Lancaster, 178 Mo.App. 346; Debord v. Penalton, 262 S.W. 395. (b) Testimony by plaintiff as to what was the custom on other work in respect to the bridging of open spaces with planks. Koons v. Railroad, 65 Mo. 597; Hoyt v. Stock Yards, 188 S.W. 108; Glenn v. Railway, 167 Mo.App. 118. Judgment should be reversed because of improper argument of counsel for plaintiff. Stanton v. Jones, 19 S.W.2d 510; Courter v. Mercantile Co., 299 S.W. 625. The verdict was excessive. Lewellen v. Haynie, 287 S.W. 634; Page v. Paine, 293 Mo. 600; Roggles v. Railway, 232 S.W. 95; Rigley v. Prior, 290 Mo. 27; Meyers v. Wells, 237 S.W. 118; Young v. Rust, 268 Mo. 625; Morris v. Cement Co., 19 S.W.2d 878; Boyer v. Railroad, 293 S.W. 386; Kleinlein v. Foskin, 13 S.W.2d 648; Spencer v. Railroad, 317 Mo. 492; Nelson v. Boiler Co., 20 S.W.2d 906.

Cowgill & Popham for respondent.

(1) The court did not err in refusing a directed verdict as to both defendants. (a) The evidence and admissions show plaintiff was employed by both defendants. Barz v. Fleischman, 271 S.W. 361; State ex rel. v. Daues, 19 S.W.2d 705. (b) Under the evidence of both sides defendants were guilty of actionable and inexcusable negligence. Dodds v. City, 260 S.W. 1012; Lunsford v. Co., 260 S.W. 781; Gerinzza v. Co., 252 S.W. 417; Williams v. Pryor, 200 S.W. 53; State ex rel. v. Reynolds, 200 S.W. 58; Edmondson v. Statler Hotel Co., 267 S.W. 612; Guldner v. Shoe Co., 293 S.W. 431; Dobromilsky v. Co., 293 S.W. 451; Spencer v. Railroad, 297 S.W. 353; Spinnell v. Goldberg, 275 S.W. 775; Doody v. Woolen Mills, 274 S.W. 692; Stuart v. Standard Oil Co., 244 S.W. 970; Webster v. Shoe Co., 18 S.W.2d 131; Minter v. Gidinsky, 228 S.W. 1075; Reese v. Biscuit Co., 224 S.W. 63; Hayes v. Sheffield Ice Co., 221 S.W. 705; Downing v. Loose-Wiles, 8 S.W.2d 884; Kiefer v. St. Joseph, 243 S.W. 108; Hayden v. Gravel Co., 186 S.W. 1193; Gilbert v. Hilliard, 222 S.W. 1029; Farley v. Lehrack, 272 S.W. 987; Stewart v. Light Co., 241 S.W. 909; Craven v. Milling Co., 241 S.W. 658; McCarver v. Lead Co., 268 S.W. 687. (2) The court did not err in rulings on admission of evidence. (a) The existence of a general usage and settled method of doing similar work under similar circumstances is competent, and no valid objection was made thereto, no motion to strike out the answer was made, and the point is not reviewable. Kirkland v. Bixby, 222 S.W. 465; Hogan v. Fleming, 297 S.W. 404; LaBatt on Master & Servant (3 Ed.), 2528, 2555. (b) The statements of plaintiff relating to employing superiors were competent statements of fact, no objection was made thereto, and the motion to strike same after cross-examination and after the witnesses were excused came too late. Cox v. Ins. Co., 19 S.W.2d l. c. 299. Roland v. Anderson, 282 S.W. 755; Bank v. Kriegshauser, 273 S.W. 766. (3) The verdict is moderate in amount and is scant compensation for the injuries, disability and losses sustained. Stein v. Rainey, 286 S.W. 53; Taylor v. Railroad, 279 S.W. 115; Bond v. Railroad, 288 S.W. 77; Trowbridge v. Fleming, 269 S.W. 610; Hughes v. Railroad, 274 S.W. 703.

Davis, C. Henwood and Cooley, CC., concur.

OPINION

DAVIS

This is an action for damages for personal injuries alleged to have been suffered by plaintiff on August 12, 1925, while working as a carpenter's helper in the construction of the President Hotel in Kansas City. The jury returned a verdict for $ 20,000 against both defendants, and defendants appealed from the judgment entered thereon.

Hereinafter we speak of the Westport Hotel Operating Company as Westport Company and the George H. Siedhoff Construction Company as Siedhoff Company. Both plaintiff and defendants introduced evidence.

The evidence in behalf of plaintiff warrants the finding that plaintiff, then aged twenty-three years, on August 12, 1925, about three o'clock in the afternoon, while working as a carpenter's helper on the President Hotel, was injured as the result of a board, laid across an opening from beam to beam, tilting and causing him to fall from the ninth floor, a height of ten or twelve feet, to the concrete comprising the eighth floor of the building. The hotel as planned was twelve stories in height. It was being constructed of structural steel incased in concrete and with concrete floors. The vertical pillars throughout the structure and on each floor were spaced about fourteen feet apart in each direction. Plaintiff was working on the ninth floor with and as the helper of carpenter Gatlin. The concrete comprising the eighth floor had been completed, as had the ninth floor, except a strip or open space extending the length of the building from north to south, fourteen feet in width, the distance between the second and third row of pillars or columns from the west side of the building, there being completed the concrete on the east of the opening and also an area of concrete fourteen feet wide on the west side of the opening. The concrete floors rested on steel beams. In order to bridge this opening, the erector of the building placed a plank, eight inches wide, eighteen feet in length and two inches thick, running diagonally across the opening. Plaintiff was walking on this plank over the opening when he fell to the eighth floor.

On the day in question, Gatlin, on the ninth floor, was constructing wooden forms, on the east side of the opening, to inclose the steel and into which to pour concrete. Plaintiff was working under Gatlin's orders as a helper, and at the time in question he was supplying Gatlin with lumber for the forms. Plaintiff had crossed from the east to the west and returned before attempting to walk the board at the time of injury. The ends of the board rested at each end on the completed concrete of the ninth floor. The center of the board hung two inches immediately above an I-beam connecting the pillars. The board was not fastened at either end, nor were railings provided. When walking over the board, it sprang down and rested on I-beam. Plaintiff, on going and returning across the board empty-handed, noticed that it was springy and wobbly, and told Gatlin, his boss, that he did not think it was very safe. Gatlin ordered him to carry a wooden trestle or sawhorse, weighing forty to fifty pounds, over the board telling him to hurry up, that he was needing the material, saying, "The board is all right; go ahead." Plaintiff did not pay particular attention to the board or make an inspection. The purpose in taking the sawhorse from one side of the opening to the other was to break or saw the material for the forms into lesser parts, as the lumber in its condition was too heavy or cumbersome to traverse the board safely with it. As plaintiff was in the act of carrying the sawhorse over the opening, walking the board, the board tilted when he was about three steps or six feet on it, and he fell, striking the concrete floor below with his left foot and suffering injuries. On crossing over and back prior to his fall, he noticed the board spring down to the beam and did not consider it very safe, but he had no difficulty or trouble in crossing on it and believed he could use it safely by being careful. Plaintiff said, "I did not think the board was very safe, but I thought if I was extremely careful I could get across there." He testified that it was light and he could see the situation before him, and that in crossing when he fell, he was extremely careful, more careful than ordinarily, because of the narrow board. Upon being asked the universal custom and practice in regard to boards of that width in a place like that, plaintiff answered, "The usual practice on construction jobs is to build a wide, thick platform with a railing across it, so there...