Brackett v. Masonry & Contracting Co.

• Decision Date: 13 October 1930
• Docket Number: No. 29226.,29226.
• Citation: 32 S.W.2d 288
• Court: Missouri Supreme Court
• Parties: JAMES BRACKETT v. JAMES BLACK MASONRY & CONTRACTING COMPANY, Appellant.

32 S.W.2d 288

JAMES BRACKETT v. JAMES BLACK MASONRY & CONTRACTING COMPANY, Appellant.

No. 29226.

Supreme Court of Missouri, Division Two.

October 13, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Frank Landwehr, Judge.

AFFIRMED.

W.E. Moser and Hensley, Allen & Marsalek for appellant.

(1) The court erred in refusing defendant's demurrers to the evidence and in submitting the case to the jury. (a) If Siegfrid's fall was due to his own act in going too near to the end of the unfastened footboard and causing it to tip up with him, the defendant is not liable therefor or for the consequent injury to plaintiff, because the evidence shows without dispute that it was not customary to fasten such footboards. 18 R.C.L. 547; 3 Labatt, Master & Servant, 2500; Williams v. Cold Storage Co. (Mo.), 214 S.W. 385; Spindler v. Am. Express Co. (Mo.), 232 S.W. 690; Brands v. Car Co., 213 Mo. 698; Coin v. Lounge Co., 222 Mo. 509; Gordon v. Railroad, 222 Mo. 536; Ryan v. Lea (Mo. App.), 249 S.W. 687. (b) Where the evidence shows that the injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result. Warner v. Railway, 178 Mo. 125; Weber v. Milling Co., 242 S.W. 985; State ex rel. v. Bland, 313 Mo. 246; Hamilton v. Railroad, 300 S.W. 787; Coin v. Lounge Co., 222 Mo. 488; Purcell v. Shoe Co., 187 Mo. 276; Swearingen v. Railway Co., 221 Mo. 644; Goransson v. Mfg. Co., 186 Mo. 300; Fuchs v. St. Louis, 133 Mo. 168; Patton v. Rys. Co., 179 U.S. 659, 45 L. Ed. 361. (2) The court erred in admitting evidence that the lumber used in the scaffold was used lumber which had laid out, in the field, in the sun and storm. There was no allegation in the petition to support such evidence. Waldheir v. Railroad, 71 Mo. 514; Buffington v. Railroad, 64 Mo. 246; Zasemowich v. Am. Mfg. Co. (Mo.), 213 S.W. 799; McCullough v. Lumber Co., 205 Mo. App. 15; Root v. Railroad, 195 Mo. 348. (3) The court erred in permitting plaintiff to read leading questions appearing in the deposition of witness Fisher, and the answers to such questions. As a general rule leading and suggestive questions, during the direct examination of a witness, should not be permitted. State v. Whalen, 148 Mo. 286. Evidence contained in a deposition should be read under the same conditions "as if the witness were present and examined in open court." Sec. 5467, R.S. 1919. (4) The court erred in giving plaintiff's Instruction 1. (a) The instruction went beyond the pleadings and enlarged the issues in permitting the jury to find that defendant failed to provide plaintiff with a safe place in which to work, in that the footboard of the scaffold was loose, uneven, unfastened and liable to tip and tilt, when there was no allegation in the petition that the defendant in such manner caused plaintiff's place of work to be unsafe. Sabol v. Cooperage Co., 313 Mo. 527; Zasemowich v. Mfg. Co. (Mo.), 213 S.W. 799; Bonnarens v. Lead Co., 309 Mo. 65; Allen v. Ry. Co. (Mo.), 294 S.W. 80; Mueller v. Shoe Co., 109 Mo. App. 506; Mitchell v. Brick Co. (Mo. App.), 266 S.W. 1013; Hopkins v. Am. C. & F. Co. (Mo. App.), 295 S.W. 841. (b) The instruction unduly restricts the issues made by the pleadings, and is erroneous as a matter of law, in directing a verdict without any finding, express or implied, that defendant could reasonably have anticipated that the alleged defective condition of the scaffold was likely to cause injury to plaintiff, who had no duty to perform thereon. Mansur v. Botts, 80 Mo. 658; State ex rel. v. Ellison (Mo.), 176 S.W. 13; Nephler v. Woodward, 200 Mo. 179; Edwards v. Railroad, 112 Mo. App. 656; American B. Assn. v. Talbot, 141 Mo. 674; State ex rel. v. Ellison, 272 Mo. 571; Howard v. Ry. Co., 173 Mo. 524; Burnes v. Ry. Co., 129 Mo. 41; Wojtylak v. Coal Co., 188 Mo. 260; Removich v. Const. Co. 264 Mo. 43; Hester v. Pack. Co., 84 Mo. App. 451; Manche v. Box Co., 262 S.W. 1023. (5) The court erred in giving plaintiff's Instruction 8. It erroneously tells the jury they may consider the amount sued for, to-wit $75,000, in determining the amount of plaintiff's damages. Applegate v. Railroad, 252 Mo. 201; Lessenden v. Railroad, 238 Mo. 247.

Jones, Hocker, Sullivan & Angert and Mosman, Rogers & Buzard for respondent.

(1) The case was properly submitted to the jury. (a) The petition alleged, and the evidence showed, a violation of the "scaffolding statute" (Sec. 6802, R.S. 1919). Dyer v. Sutherland B. & C. Co., 13 S.W. (2d) 1056. (b) The petition alleged, and the evidence showed, defendant guilty of negligence, irrespective of the statute. The scaffold was negligently and dangerously constructed. Custom and practice cannot be used as a shield for negligent conduct. Rupp v. Railroad Co., 234 S.W. (Mo. App.) 1054; Johnson v. Brick & Coal Co., 276 Mo. 51, 205 S.W. 615; 39 C.J. 466; Fairfield v. Bichler, 195 Mo. App. 45, 190 S.W. 32; Fishell v. Am. Press, 253 S.W. (Mo. App.) 508; Curtis v. McNair, 173 Mo. 270; Brown v. Plate Glass Co., 251 S.W. (Mo. App.) 141; Dietzman v. Screw Co., 300 Mo. 196, 254 S.W. 59; Clark v. Eng. Co., 263 S.W. (Mo. App.) 500. (c) The scaffold was not constructed in the usual or customary way; Siegfried, an experienced carpenter, so testified. He did not retract that testimony on cross-examination. Counsel for defendant, in cross-examining the witness, did not interrogate him about the scaffold in question, but about a model or perfect scaffold, in respect to the custom or usage of nailing the footboard. If it be conceded that his testimony on cross-examination was contradictory of that given in direct, yet, it would be for the jury. Maberry v. Ry. Co., 83 Mo. 664; Wray v. Ry. Co., 141 S.W. (Mo. App.) 449. (d) Siegfried's fall was not caused by any negligent act upon his part, and even if it was, yet concurring, as it did, with the negligence of defendant, casts liability upon defendant. Johnson v. Am. Car & F. Co., 259 S.W. (Mo.) 442; Radtke v. Basket Co., 229 Mo. 15; Root v. Ry. Co., 195 Mo. 385. (e) The case should not be withdrawn from the jury unless it can be said that no recovery could be had upon any view of the facts. Stone v. Ry. Co., 293 S.W. (Mo. Sup.) 367. (2) No error was committed in permitting a description of the lumber used in the scaffold, or in accounting for the uneven, warped, and twisted condition of it. Mooney v. Gasoline & Oil Co., 298 S.W. 77; Campbell v. Aunt Jemima Mills Co., 211 Mo. App. 670, 245 S.W. 625. (3) No error was committed in admitting the deposition of the witness Fisher. The deposition was taken and filed by defendant and was for use in the trial by either party. It was the testimony of defendant's witness. The cross-examination was proper and no legal objection was made to it. Green v. Chickering & McKay, 10 Mo. 109; McClintock v. Curd, 32 Mo. 411; Watson v. Race, 46 Mo. App. 546; State ex rel. v. Gans, 72 Mo. App. 638; Jefferson Bank v. Refrigerating Co., 236 Mo. 407; Harrell v. Railroad Co., 186 S.W. 677; 18 C.J. 731, 735; Doggett v. Greene, 254 Ill. 134; Taylor v. Thomas, 77 N.H. 410, 92 Atl. 740. (4) Plaintiff's instruction was proper. (a) The petition inferentially alleges the failure to furnish a safe place in which to work. The mere statement of such failure is only a conclusion. Kramer v. Power & Light Co., 311 Mo. 369, 279 S.W. 43; Buffum v. Woolworth, 273 S.W. 176; Totman v. Christopher, 237 S.W. 822; Coulter v. Independence, 168 Mo. App. 710; Zasemowich v. Am. Mfg. Co., 213 S.W. 799; Otto v. Young, 227 Mo. 193. It is not necessary that instructions be in the exact language of the petition but only that they come within the purview of the pleading and the evidence. Barnes v. Elliott (Mo. App.), 251 S.W. 488. (b) By requiring the jury to find that the board upon which workmen were required to walk and stand was "loose, uneven, unfastened and likely to tip and tilt" while the petition merely alleged that the board "was uneven and was likely to and did tip and tilt and said plank was unfastened and insecure," we merely assumed an added burden of which defendant cannot complain. McKenzie v. Randolph, 257 S.W. (Mo. Sup.) 127. (c) The instruction was within the pleading and proof. Haggard v. Wire & Iron Co., 249 S.W. 712. (d) It was not necessary that the instruction require the jury to specifically find that defendant should have anticipated that its negligence would cause injury to plaintiff. Stegemann v. Packing Co., 2 S.W. (2d) 169. (e) "It is not essential that defendant could have anticipated the very injury complained of, or that it could have anticipated that it would have occurred in the exact manner in which it did occur, but it is sufficient if the negligence of the defendant was the proximate cause of the injury." Buckner v. Stock Yards Horse & Mule Co., 211 Mo. 700; McLeod v. Linde Air Products Co., 1 S.W. (2d) 126; Dean v. Railroad, 199 Mo. 411. (f) The instruction required the jury to find that the defendant was negligent and careless in the construction and maintenance of the scaffold, in the particulars there in set out, and that such negligence was the proximate cause of the injury. A finding by the jury that defendant was careless in the construction of the scaffold and that such carelessness was the cause of plaintiff's injuries, is equivalent to a finding that defendant knew the dangerous condition thereof and knew that it would likely cause injury to some one. Morton v. S.W. Tel. & T. Co., 280 Mo. 360, 217 S.W. 831; Peters v. Hooven & Allison Co., 281 S.W. (Mo. App.) 71; Goodin v. Fire Brick Co., 249 S.W. (Mo. App.) 736; Hall v. Ry. Co., 74 Mo. 298. (5) Plaintiff's Instruction 8 was proper. Lewellen v. Haynie, 238 Mo. 247; Stid v. Ry. Co., 236 Mo. 382; Knoche v. Knoche, 160 Mo. App. 257; Moran v. K.C. Rys., 232 S.W. 1114; Vaughn v. Hines, 230 S.W. 379, 206 Mo. App. 425; Gatty v. Rys. Co., 286 Mo. 503, 227 S.W. 1041; ...