Bennett v. Himmelberger

• Decision Date: 27 February 1906
• Citation: 93 S.W. 823,117 Mo. App. 58
• Parties: BENNETT v. HIMMELBERGER.
• Court: Missouri Court of Appeals

93 S.W. 823

117 Mo. App. 58

BENNETT v. HIMMELBERGER.

St. Louis Court of Appeals. Missouri.

February 27, 1906.

1. MASTER AND SERVANT—INJURY TO SERVANT —CONTRIBUTORY NEGLIGENCE — EVIDENCE— SUFFICIENCY.

In an action by an employé for injuries, evidence examined and held to show that plaintiff's act in leaning against an insecure balustrade to do work ordered by defendant without first testing its stability by a shake or push with his hand to learn whether or not it would yield was negligence on his part preventing recovery.

2. SAME—NEGLIGENCE OF MASTER.

Though a safety device so constructed that it invites a person to use it in a manner which may result in harm to him will make a case of negligence, the essential question always is whether there was reason to anticipate the use of a contrivance in a dangerous manner, whether its appearance would allure or repel such a use.

Error to Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Action by James E. Bennett against J. H. Himmelberger. From a judgment in favor of defendant, plaintiff brings error. Affirmed.

R. G. Ranney, for plaintiff in error. Oliver & Oliver, for defendant in error.

GOODE, J.

This plaintiff suffered an injury to his leg by a fall due to the giving away of a balustrade on the porch of the defendant's house. The present action was instituted to recover the consequent damages. Defendant owned an old residence in the city of Cape Girardeau, which he was having remodeled. Plans had been drawn by an architect for the work and the work itself was being carried on under the superintendency of George W. Kirgen, a builder. Bennett was working for Kirgen as a carpenter. At the time of the accident Bennett was 50 years old or upwards, and had been a carpenter since he was 18. A porch of two storys in the rear of the house was undergoing reconstruction. The plans according to which the house was to be remodeled provided for utilizing a portion of this porch for a room or library and removing the rest of it. When the accident occurred the upper, or second-story floor of the porch had been taken up, leaving nothing but the joists or girders on which the floor had rested. The stairway leading from the lower floor to the upper one had also been removed. A small balustrade surrounded the opening or wellhole at the head of the stairway on the upper floor. Though the floor had been removed, this balustrade was left standing, but the intention was to remove it. Meanwhile it was held in place by a lath or board which ran down from one of the roof joists of the porch and was "tacked" to the railing of the balustrade. Hence the balustrade itself was loose, or "rackety" as one of the witnesses expressed it. The accident occurred on September 13th when plaintiff had been working on the house since the latter part of July, and on any part of it where he was directed to work. In the course of his employment he had been on the upper floor of the rear porch and knew the condition it was in. He swore that he did not know the balustrade was loose, but supposed it was nailed to the joists. In the afternoon of the day of the accident he was told by Kirgen to go upstairs and get some pieces of lumber composing part of a scaffolding which had been erected around the upper porch. One of the pieces wanted was about two feet higher than his head. To knock this piece loose from the timber to which it was nailed, he had to strike an overhead blow. There being no floor, he stood on one of the girders. He was a right-handed man, but delivered this blow with a hatchet held in his left hand. Plaintiff was six feet tall, and weighed nearly or quite 170 pounds. To support himself on the girder, he put his hand on the balustrade, which was 3½ to 4 feet in front of him, leaned forward, and struck the overhead blow against the board he wished to knock loose. His pressure and the impulse of the blow overthrew the balustrade, and plaintiff fell, and, by one of his ankles catching under a railing, his leg was hurt. The charge of negligence against defendant is that the balustrade had been left insecurely attached to the floor joists of the porch, and...