Combs v. Rountree Const. Co.

Decision Date01 July 1907
Citation205 Mo. 367,104 S.W. 77
PartiesCOMBS v. ROUNTREE CONST. CO.
CourtMissouri Supreme Court

Appeal from Circuit Court, St. Charles County; H. W. Johnson, Judge.

Action by Jesse Combs against the Rountree Construction Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Wise & McNulty and Seddon & Holland, for appellant. A. R. Taylor, for respondent.

GANTT, J.

This action was originally instituted in the circuit court of the city of St. Louis, and on change of venue was sent to the circuit court of St. Charles county, where it was tried. The petition alleges that on the 7th day of July, 1902, plaintiff was in the employ of the defendant, the Rountree Construction Company, in the capacity of a carpenter, and was engaged for said company in assisting in constructing a wall for the Industries Building at the World's Fair grounds in the city of St. Louis, on which building the defendant was a contractor. That on the last-mentioned day, whilst plaintiff was in the due discharge of the duties of his employment, he was engaged in taking a rope off of a brace about 35 feet above the ground, and, whilst so doing, a cleat or step on said brace designed by the defendant, and furnished by the defendant for the plaintiff to be upon and to support him whilst doing said work, broke, and caused the plaintiff to fall to the ground, breaking his right leg between the knee and the ankle, crushing and breaking the bones, and so injuring said leg as to necessitate its amputation on the 14th of July, 1902, and he was otherwise bruised and permanently injured. The charges of negligence in the petition are that the defendant was negligent in providing for the plaintiff's use a cleat or step which was improperly and insecurely nailed and fastened to said brace, and was too weak to sustain plaintiff's weight thereon whilst engaged in doing said work. That defendant was negligent in providing plaintiff said appliance to be upon in the discharge of said duty of his employment, and defendant's foreman in charge of said work was negligent in ordering and commanding plaintiff to do said work when said cleat was in such defective and insecure condition, as he knew, or by the exercise of ordinary care would have known, in time to have averted said injury to plaintiff, which negligence of defendant and its foreman directly caused and contributed to cause plaintiff's said injury. That, by reason of said injuries, plaintiff has suffered great pain of body and mind, and has been disabled from labor permanently, and is maimed and crippled for life, and has incurred large expense for medical attention and for medicine to the sum of $15,000. The answer of the defendant was a general denial and general plea of contributory negligence and a general plea of assumed risk. The trial resulted in a verdict and judgment for the plaintiff for $7,500. After an unsuccessful motion for new trial, the defendant perfected its appeal to this court.

The testimony tends to show that the defendant company on the 7th of July, 1902, and for some months prior thereto, had been engaged as a contractor in the erection of the Varied Industries Building at the World's Fair grounds in the city of St. Louis, and for several months plaintiff had been working for the defendant in connection with this work in the capacity of a carpenter. His work called upon him to do considerable climbing and to work at considerable heights. Plaintiff was 29 years old at the time, and had been a carpenter for 13 or 14 years. On the day in question, the wall had been raised in skeleton form about 50 feet high, and about quitting time a windstorm threatened, and the foreman in charge, wishing to secure the unfinished wall against the danger from the wind, requested the plaintiff, when the whistle blew to stop work, to remain on the wall to fasten the upper end of a brace, which the foreman directed to be put up against the pillar to secure and strengthen it. This brace, when in position, rested with one end on the ground and the top end against the pillar, and stood up about an angle of 45 degrees. The brace was about 35 feet long. The foreman selected this brace, and caused his other employés on the ground to bring it to the wall, and directed two carpenters, who were working in the same gang with the plaintiff, to nail two cleats on the brace for plaintiff to stand on while removing the rope therefrom. The cleats were ordered to be nailed near the top end of the brace when it should be erected, and were nailed on while it lay on the ground and before it was hoisted, in the immediate presence and sight of the foreman. These cleats were made out of a piece of plank 18 inches long and about 7/8 of an inch thick and 6 inches wide. One of the carpenters on the ground split this piece into two pieces to make the two cleats, and the plaintiff testified that Mr. Christofell, the foreman, stood there and instructed them to nail it on. The foreman was standing about five feet away from the cleats while the two carpenters were nailing them on the brace. On cross-examination, he testified as follows: "Q. He continued to look at them until they had nailed both cleats on, did he? Ans. I could not say that. I had to attend to my work. I was not watching him all the time. Q. You do not remember whether he continued to watch them and saw them nail the cleats on? Ans. At the time I seen him, he was standing about five feet from the cleats and watching them put them on. Q. But whether his attention was called to something else before he finished you do not know? Ans. No, I do not know." The brace was then hoisted by means of a rope at the top end and placed against the wall. After the brace had been so raised and was in position, the plaintiff testified that the foreman told him to let the rope down, and he would send him up a block of wood to nail over the top of it. To do this plaintiff had to step out on one of the cleats that had been fastened to the brace in order to get the rope. He stepped on the top cleat to unfasten the rope, and, as he stepped on it and got his hand pretty near the rope, the cleat gave away, and he fell about 35 feet to the ground. Several witnesses testified that they examined the brace and cleats immediately after plaintiff fell and found one cleat broken off on one side. One side had pulled out; that is, the nail had pulled out. The cleat was fastened to the brace by two eight-penny nails. These witnesses, one of whom was a superintendent of construction for the defendant at that time, and another carpenter, testified that in the ordinary course of business, where a cleat was to be nailed on under such circumstances, to support the weight of a man, not less than four nails should be put in the cleat in order to make it reasonably safe.

On cross-examination, plaintiff stated that, during the time he worked for defendant, he did a good deal of climbing to get the 6×6 timbers up that constitute the wall. It was necessary to tie a rope around them to raise them up. They were raised by steam power. Plaintiff's work in this connection was mostly to untie them. He knew that the brace was a 6×8 timber. One end of the rope was fastened to the brace, and the other end was on the ground. When the brace was in position, witness was to fasten it by nailing cleats along its side from the brace to the upright. He testified that, from his position on the wall, he saw the two carpenters, whose names he did not know, nailing the cleats onto the brace. He stated that, if he had known how many nails were in it, he never would have got on it. He saw them in the act of nailing, but did not see how many nails they put in it. He stated, also, that the foreman pointed out the piece of timber out of which the cleats were made to the carpenters. The brace was yellow pine. He testified also that he weighed about 155 pounds; that in his opinion, as a carpenter, it would take four eight-penny nails to hold that weight. Two such nails would not hold his weight. The strength depends also on the different ways of driving the nails in. On the part of the defendant, the evidence tended to contradict the plaintiff's evidence, and to show that two nails in the cleat were sufficient. Mr. J. C. Settle testified that he was in the contracting and building business, and had had about 15 years' experience as contractor and engineer in the construction of buildings, and gave it as his opinion that two eight-penny...

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