Carpenter v. Burmeister

• Decision Date: 18 June 1925
• Parties: RICHARD CARPENTER, Appellant, v. WILLIAM A. BURMEISTER, Respondent.
• Court: Missouri Court of Appeals

273 S.W. 418

217 Mo.App. 104

RICHARD CARPENTER, Appellant, v. WILLIAM A. BURMEISTER, Respondent.

Court of Appeals of Missouri, St. Louis

June 18, 1925

Appeal from the Circuit Court of the City of St. Louis.--Hon. George E. Mix, Judge.

AFFIRMED.

Judgment affirmed.

Foristel Mudd, Hezel & Habenicht for appellant.

(1) The structure on which defendant's bricklayers were working when plaintiff was injured, as shown in all the evidence consisting of sheathing boards laid on the third-floor joists along the west wall, was a "scaffold," within the letter and intendment of the scaffold statute, although intended thereafter, with proper and needed readjustments to be made by the carpenters, to become a permanent part of the roof. R. S. 1919, sec. 6802; Forbes v. Dunnavant, 198 Mo. 193; Loehring v. Construction Co., 118 Mo.App. 163; Deiner v. Sutermeister, 266 Mo. 505; Most v. Goebel Const. Co., 199 Mo.App. 336; Bennett v. Tractor Co., 209 Mo.App. 619 (2) The falling of the brick under the circumstances shown in the evidence, there being no work going on above the door and between the door and the scaffold, nor any other conditions shown to account for the fall of the brick, was sufficient to make a prima-facie case that the brick fell from the scaffold and that the scaffold was not "so secured as to insure the safety of persons passing under the same" as against the falling off of the scaffold of materials and articles thereon. Huber v. Ehlen, 253 S.W. 184; Bennett v. Tractor Co., 209 Mo.App. 619; Johnson v Railway, 104 Mo.App. 588. (3) Defendant's instruction No. 4 stands condemned as an improper reference to the pleadings by the principles of decision, as declared and applied in the following cases: Boyd v. Transit Co., 108 Mo.App. 303; Webb v. Carter, 121 Mo.App. 147; Dassler v. Wisley, 32 Mo. 498; Williams v. Tucker, 224 S.W. 27. (4) The charge in the petition is negligence in failure to have a scaffold constructed as required by the statute. The evidence of that negligent failure was fully adduced and was before the jury. Direction, therefore, in an instruction either that there were or that there could be no presumptions for consideration of the jury, was erroneous, there being evidence before the jury of facts on which the law raises a conclusive presumption of the negligence charged in the petition. Haycraft v. Grigsby, 88 Mo.App. 354; Moberly v. Railroad Co., 98 Mo. 183; State v. Swarnes, 241 S.W. 934; McCune v. Daniels, 251 Mo.App. 362. Error to submit abstract proposition of law. Moran v. Railroad, 255 S.W. 331.

Fordyce, Holliday & White for respondent.

(1) The demurrer to the evidence should have been sustained because these sheeting boards, referred to in the evidence as forming a scaffold or a structure, were part of the permanent building and not "false work" within the meaning of section 6802 of the Revised Statutes of Missouri 1919. Deiner v. Sutermeister, 266 Mo. 505; Most v. Const. Co., 199 Mo.App. 336. (2) Instruction No. 4 was proper in view of plaintiff's proof of specific negligence and plaintiff's instruction No. 2, which submitted specific negligence to the jury. Under these facts the rule of res ipsa loquitur does not apply. Gibson v. Wells, 258 S.W. 1, 3; Heckfuss v. Am. Packing Co., 224 S.W. 99, 101.

DAUES, P. J. Becker and Nipper, JJ., concur.

OPINION

DAUES, P. J.--

This is an action for damages for personal injuries alleged to have been sustained by plaintiff while in the employ of defendant because of defendant's negligence. There was a verdict and judgment in favor of the defendant, from which the plaintiff has appealed.

The petition relies upon the res ipsa loquitur doctrine and pleads that the defendant failed to comply with the provisions of the statute on scaffolding, section 6802, Revised Statutes Missouri 1919, whereby plaintiff received injuries.

The answer is a general denial.

There is little dispute on the facts. It appears from the record that the defendant was a bricklaying contractor and had a number of bricklayers engaged in erecting a certain brick building. Four walls had gone up to a point where the bricklayers were "topping off," that is, they were placing the last course on the top of the wall. There were no floors or partitions within the building, but joists had been laid for the first and second floors and for the third floor, or roof. The joists were uncovered, except that on the top joists for the roof sheathing boards had been laid to serve as a scaffold for the bricklayers. This platform, or scaffolding, made with loose sheathing boards, was five or six feet in width and ran approximately the length of the west wall. Bricks and mortar were being deposited upon the boards and the bricklayers would stand upon same to do their work Plaintiff was a hodcarrier, wheeling bricks from the outside through the door in the west wall and up to a hoist. The hoist would then convey the bricks up to the platform or scaffold where the bricklayers were working. Plaintiff adduced proof that the board next to the wall was left away as much as three inches; that the boards were allowed to lap, and one witness stated that "it looked like there must have been a board moved away right over the door." At any rate, it is undisputed that the sheathing boards were not nailed down, but were used at the time solely as a platform for the bricklayers. These boards were the regular sheathing boards for the roof and were to be used thereafter by the carpenters as the boards for making the permanent roof, but in order to save labor the boards were hauled to the roof joist and used as a platform for the bricklayers, and plaintiff while moving a wheelbarrow of bricks through the door of the west wall was struck by a brick falling from above and was injured. At that time the bricklayers were at work on the scaffold immediately above him on the third floor. One witness testified for plaintiff that he saw the brick fall from above the door and strike the plaintiff on the head.

Plaintiff relies upon but one assignment of error, and that is that the court erred in giving defendant's requested instruction No. 4. The respondent insists that the defendant's demurrer to the evidence should have been sustained because there was no proof of any violation of section 6802, supra, and hence the propriety of defendant's instruction No. 4 need not be considered.

The argument is made by respondent that since the sheathing boards used by the bricklayers were part of the permanent building, laid on the third floor joists inside of the building where they were to be ultimately nailed down permanently, that therefore such sheathing boards could not be considered false work within the meaning of the statute, and that the statute did not apply in any event. Section 6802, Revised Statutes Missouri 1919, is as follows:

"All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon. All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due caution and care so as to prevent injury or accident to those at work or near by."

This statute required a building to have and maintain scaffolds as to insure the safety of persons working upon same or passing under it. These sheathing boards, though subsequently to be used permanently, and though laid on permanent joists, merely constituted at that time a temporary scaffold for the bricklayers. That such was a scaffold within the meaning of the statute we have no doubt. [Forbes v. Dunnavant, 198 Mo. 193, 95 S.W. 934; Deiner v. Sutermeister, 266 Mo. 505, 178 S.W. 757; Most v. Goebel Const. Co., 199 Mo.App. 336, 203 S.W. 474.]

Instruction No. 4 is as follows:

"This action is based upon the alleged negligence of the defendant viz., plaintiff claims that the defendant was negligent and careless in certain particulars. That alleged negligence cannot be assumed or presumed, but the plaintiff, before he can recover, must prove by the preponderance or greater weight of the evidence that the defendant was negligent in the particular manner alleged. If he has failed to meet this burden, he cannot recover.

"If in your judgment the weight of the evidence is evenly balanced or preponderates in favor of the defendant,...