Clark v. Long

• Decision Date: 21 May 1917
• Docket Number: No. 12484.,12484.
• Citation: 272 Mo. 571,196 S.W. 409
• Parties: CLARK v. LONG.
• Court: Missouri Court of Appeals

196 S.W. 409

272 Mo. 571

CLARK v. LONG.

No. 12484.

Kansas City Court of Appeals. Missouri.

May 21, 1917.

Rehearing Denied July 2, 1917.

Appeal from Circuit Court, Jackson County; William O. Thomas, Judge.

"Not to be officially published."

Action by Marguerita Clark against John C. Long. From an order granting a new trial, plaintiff appeals. Reversed and remanded, with directions to reinstate verdict for plaintiff.

Hogsett & Boyle, of Kansas City, for appellant. Rees Turpin, of Kansas City, for respondent.

BLAND, J.

Shortly after 1 o'clock of October 28, 1915, deceased was struck and killed by a 1×6 board falling from a building under construction by defendant. Subsequently the widow of deceased brought this suit, recovering for his death the sum of $10,000, which was afterwards reduced to $7,500 by reason of a voluntary remittitur of $2,500 being entered by plaintiff. The court granted a new trial, assigning as a reason therefor that it erred in giving instruction No. 1 on behalf of plaintiff, and plaintiff appealed.

We are required to sustain the action of the trial court in granting a new trial upon any ground that may appear, and for this reason we take up all the several points raised by respondent urging that the court properly granted the motion for a new trial.

Respondent makes the point that a demurrer to the evidence should have been sustained. Taking the evidence in its most favorable light to the plaintiff, it shows that the defendant was a building contractor constructing in the southern part of Kansas City, Mo., a residence located upon a high point in a thinly built up portion of the city, without obstructions to cut off the wind; that defendant's foreman, one Marrs, was in charge of all the men working upon the building at the time. About 11 a. m. of the day of the accident the foreman placed the deceased in an areaway on the north side of the building to lay stone, and deceased was performing the work assigned him at the time he was struck and killed. The framework of the building had been completed, and the siding on the north wall and the sheeting on the roof had been almost finished. There was a scaffold along the north side of the building over the place where the deceased was working 20 feet in height and 30 feet long and having a platform 20 inches in width. This scaffold naturally vibrated by reason of the fact that the lookouts composing the same, that is, the crosspieces upon which the platform rested, were not in any way fastened to the building. There had been a high wind blowing all that day and on the day previous. The wind was of such velocity that it was difficult for a man to end up a 1×6 board against it. This wind caused a considerable vibration of the scaffold. There were two dormer windows protruding north upon the roof, about 12 feet apart. The sheeting of this roof had been completed west of the west dormer window and between the dormer windows up to the tops of the same, but there had been no sheeting on the roof east of the east dormer window, which extended about 10 or 12 feet to the east edge of the roof. The material being used for the siding and sheeting was 1×6's, from 10 to 16 feet in length. This material, when taken on the scaffold to be nailed to the building, was sawed up into shorter pieces to be fitted into place, and this process of sawing was in frequent use in fitting the sheeting on the roof, as the joints had to be broken in order to give the roof stability and rigidity.

About 8 o'clock on the morning of the accident defendant's workmen Barnes and Warren went onto the scaffold and started to nail boxing onto the building. They worked there probably a couple of hours and possibly some longer. Barnes testified that the material they were using ran from 10 or 12 or 14 or 16 feet in length; that, as well as he could remember, the 1×6's they took up on the scaffold that morning were 16 feet, but that he did not charge his memory with it; that they might have been a couple of feet shorter. He stated that when they finished they left two pieces of 1×6's on the scaffold and he thought that one of them had not been sawed, and the other one had 2 or 3 feet cut off. The evidence shows that no one else worked upon this scaffold after Barnes and Warren left it about 10 a. m., or shortly thereafter.

The evidence further shows that defendant's workmen Berry and Harper first began nailing the sheeting on the roof between 11 and 11:30 a. m., and that in working they laid their pieces of 1×6 on the east dormer window, and when they quit at noon there were about 12 pieces of 1×6 8 feet in length and one piece 16 or 18 feet long lying loose across this dormer window. The evidence shows that the east dormer window, while not completed, was of a substantial frame construction about 3 feet 8 inches in width, and that it was 5½ feet in height at its extreme north end, and the top ran back into the roof and adjoined the same some distance below the comb of the roof. The length of this dormer is not given. The evidence shows that the deceased worked directly under the east dormer window where the 1×6's were piled, and directly under the place where the 1×6's were piled on the scaffold. No witness saw where the 1×6 which struck plaintiff came from; the only testimony on this point being that of a witness who stated that he saw the piece in the air immediately before it struck the deceased. The piece that struck the deceased was estimated by some witnesses from 6 feet to 6 feet 4 inches in length, and by another witness from 8 to 9 feet in length, and the evidence shows that it was a new piece of timber without any nail holes in it or anything else about it to indicate that it had been used.

There were nine persons working upon the building, and the presence of all were accounted for at the trial, and none of them dislodged the piece of timber that struck the deceased. At the time of the accident there were two persons upon the north roof of the building. One was the witness Berry, who had his back turned toward the north and was going up the roof toward the south, and had reached at least the top of the dormer window, if he had not proceeded further. He did not see anything fall from the dormer window, nor is it reasonable to presume that he was in a position where he could see a piece fall from there if it did, as he had his back to the dormer window.

The witness Harper was standing on the floor of the attic on the east side of the dormer window with his head protruding through the rafters about 18 inches above them. He testified that he did not see any timber fall from the dormer. However, he stated that he thought he was facing the north when the accident occurred, but he did not state positively that he was so facing. The evidence is not conclusive that he would have seen a timber fall from the top of the dormer had one so fallen at the time, as from the exhibits that appear in the record it would seem that the top of his head would have been below the top of the dormer window, aside from the fact that the evidence is not positive that he was looking toward the north at the time.

Between the time that Barnes and Warren had quit work upon the scaffold, about 10 a. m., or shortly thereafter, and the time plaintiff was injured, no one had worked upon the scaffold. The testimony further shows that the duties of the foreman, Marrs, took him over the building constantly, and he testified that he was on the scaffold about 10:30 of the morning of the accident when Warren and Barnes were working upon it. He also stated that at that time the two dormer windows were in full view. The foreman again went to the north side of the building at 11 a. m., at which time he put deceased to work. At this time we conclude from the testimony that Barnes and Warren had left the scaffold leaving the 1×6's thereon, which were in full view of the foreman. The evidence further shows that the defendant himself came on the work about 10 a. m. on the morning of the accident. Defendant testified that he "looked the job over inside and out," but he stated that he did not get up on top of the building or the scaffold; "that in a general way he took notice of the work the men were doing on the roof and how far the work had progressed; that he saw a pile of 1×6's lying across both dormer windows." However, he contended that there were no short pieces of 1×6 lying across the east dormer, but said, if there had been any there, that it would have been dangerous, as they would have been liable to blow off and injure anybody that might be working on the ground below.

In urging that a demurrer to the evidence should have been sustained, respondent makes the point that there is no evidence to show where the timber that struck deceased came from. It is not necessary that there be any direct evidence as to where the timber came from, that is, that some witness saw it blow or fall off from some particular place and strike the deceased. Where the circumstances of a case are like this plaintiff is entitled to every reasonable inference that the evidence, taken in its most favorable light to plaintiff, shows. There is no evidence that there were any 1×6's at any place on this building except upon the scaffold and the two dormer windows. Therefore there is but one inference to be drawn from the facts, and that is that the 1×6 that struck the deceased came from one of these places.

Respondent says that the dimensions of the 1×6 that struck the deceased do not correspond with the dimensions of the pieces of timber lying on the scaffold or on the east dormer window. However, we are unable to agree with respondent on this point. One witness testified that the piece of timber that struck the deceased was 8 or 9 feet in length, and there was other testimony that there were 12 pieces of 1×6 upon the dormer window that were 8 feet in length. Witness Barnes testified that when they quit work on the scaffold...