Butz v. Murch Bros. Const. Co.

• Decision Date: 21 November 1906
• Citation: 97 S.W. 895,199 Mo. 279
• Parties: BUTZ v. MURCH BROS. CONST. CO.
• Court: Missouri Supreme Court

97 S.W. 895

199 Mo. 279

BUTZ v. MURCH BROS. CONST. CO.

Supreme Court of Missouri, Division No. 1.

November 21, 1906.

1. MASTER AND SERVANT—INJURIES TO SERVANT—NONSUIT.

In an action for injuries to a servant, a nonsuit cannot be sustained for failure to prove that defendant had charge of the construction of a building within an ordinance imposing certain duties on persons having charge of the construction of any building, where the answer

admitted that, at the time of the accident, defendant was engaged in erecting a building, and that plaintiff was in its employ on the third floor.

2. SAME—CONTRIBUTORY NEGLIGENCE—QUESTION FOR JURY.

In an action for injuries to a servant, whether he was guilty of contributory negligence in walking over girders and joists with occasional boards on them, but with large spaces between, in compliance with the command of the master's foreman, was a question for the jury.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Eugene W. Butz against the Murch Bros. Construction Company. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

A. R. Taylor, for appellant. Percy Werner, for respondent.

BRACE, P. J.

This is an action to recover damages for personal injuries. At the close of the plaintiff's evidence the court instructed the jury that, under the pleadings and evidence, the verdict should be for the defendant. The plaintiff excepted, took a nonsuit with leave, and in due time moved to set the same aside; which motion having been overruled he appeals.

The petition charges "that, on the 9th day of June, 1903, the plaintiff was engaged in erecting a four-story building at or near the corner of Randolph street and Jefferson avenue, in the city of St. Louis, and had charge of the construction of said building; * * * that the plaintiff was in the service of the defendant as a laborer on the third story of said building, and whilst in the due discharge of the duties of his employment he fell through the girders of said building at the third story, and fell to the basement on the concrete, and sustained great and permanent injuries upon his head, face, nose, and body. His right leg was crushed and the bones thereof broken, and the sinews and ligaments crushed and injured, and also sustained great internal injuries. And the plaintiff avers that the defendant negligently failed to have the girders or joists on the third floor, and above the second floor, of said building covered with boards or other suitable material, as said building progressed, so as to sufficiently protect workmen and this plaintiff from falling through such girders or joists, and sustaining injury thereby, as required by section 165 of the Revised Ordinance of the city of St. Louis, which violation of said ordinance was the direct cause of plaintiff's injury as aforesaid. And plaintiff further avers that the defendant was further negligent in providing such place for him to work, in discharge of the duties of his employment, without having said girders or joists covered to prevent him from falling through said girders and sustaining injury thereby, which negligence of the defendant directly contributed to cause plaintiff's said injuries." The answer of defendant, omitting caption, is as follows: "Comes now the defendant, and for answer to plaintiff's petition admits that it is a corporation organized as therein alleged, and that it was at the time mentioned therein engaged in erecting a building at or near the corner of Randolph street and Jefferson avenue, in the city of St. Louis, and admits that, on the 9th day of June, 1903, plaintiff was in its employ as a laborer on the third floor of said building, and that he fell therefrom and received certain personal injuries, but defendant denies each and every other allegation in said petition contained. And for further answer defendant says that the extent to which said third floor and the girders and joists thereof at the time in question, were covered or uncovered was plainly open and visible and obvious to plaintiff at said time, and that he assumed all the risks of injury to himself in working on or walking about said floor in its said condition. And for further answer defendant says that the said injuries were sustained by plaintiff as the direct result of his own want of ordinary care in going upon and walking over the uncovered portion of said floor. Wherefore, having fully answered, defendant asks to be dismissed hence with its costs." The reply was a general denial. The ordinance pleaded and given in evidence is as follows: "It shall be the duty of the person or persons having charge of the construction of any building hereafter erected to have joists or girders of each floor above the second floor covered with scaffold boards or other suitable material as the building progresses, so as to sufficiently protect the workmen, either from falling through such joists or girders, or to protect the workmen or others who may be under or below each floor from falling bricks, tools, or other substances whereby accidents happen, injuries occur and life and limb are endangered." The evidence tended to prove that on the 9th of June, 1903, the plaintiff was in...