Dunsmore v. Hartmann

• Citation: 256 S.W. 1031
• Decision Date: 05 October 1923
• Docket Number: No. 23473.,23473.
• Parties: DUNSMORE v. HARTMANN
• Court: United States State Supreme Court of Missouri

256 S.W. 1031

DUNSMORE v. HARTMANN

No. 23473.

Supreme Court of Missouri, Division No. 1.

October 5, 1923.

Rehearing Denied December 31, 1923.

Appeal from St. Louis Circuit Court; Franklin Miller, Judge.

Action by William M. Dunsmore against Henry Hartmann, Jr., and another, copartners doing business under the firm name of Hartmann & Schuermann. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

M. U. Hayden and John P. Griffin, both of St. Louis (W. D. Chapman, of St. Louis, of counsel), for appellants.

Charles W. Rutledge, of St. Louis, for respondent.

LINDSAY, C.

This case has been reassigned at the present term of this court.

The defendants were the general contractors for the construction of a building for Loose-Wiles Biscuit Company on the east side of Fifteenth street, in the city of St. Louis. The plaintiff was a journeyman carpenter employed by defendants, and in attempting to descend from his work upon the roof of said building by way of a ladder maintained by defendants, fell, and received the injuries on account of which he sues. The accident occurred at noon on the 18th day of May, 1918. Upon a trial, the plaintiff was given a verdict for $250, which upon motion of plaintiff was set aside by the trial court, and a new trial granted upon the ground that the verdict was so manifestly inadequate as to indicate prejudice on the part of the jury, or at best in disregard of the instruction upon the measure of damages. It appears that defendants appealed from the order granting a new trial, and afterwards dismissed their appeal. The second trial had in June, 1921, resulted in a verdict and judgment for plaintiff in the sum of $10,000, from which defendants have appealed. The building involved was of brick, was 150 feet in length running from east to west, and 50 feet wide, and about 20 east in height. A driveway extended east and west through the center. A balcony extended along the inner sides of the building, at a height of about 10 feet from the floor. There was at the time a ladder on the north side of the driveway which reached the roof. The ladder from which the plaintiff fell, and which he was accustomed to use, was on the south side of the driveway and east of the center of the building. It extended from the ground to about 1 foot above the roof. It stood upon a board lying upon the ground. It rested against the balcony and was fastened there by cleats on either side attached to the beam running along the balcony.

There was testimony that there were certain fastenings of the ladder where it reached the roof. The ladder was of the kind used by hodcarriers, and had been so used in erecting the walls of this building. It was strongly built, and stood somewhat nearer the perpendicular than ladders ordinarily used by carpenters. There is no question as to the strength of the ladder itself. The question is as to the character of the attachments or fastenings designed to hold it safe or steady in its place at the time plaintiff attempted to use it, and fell, arid la that regard the important question whether the defendant's foreman, a short time before plaintiff attempted to descend, had loosened or detached any of the fastenings which had theretofore held it In place. The ladder did not fall down when plaintiff stepped up it, but is described as having "pivoted" at the balcony. The petition alleges that "immediately upon stepping thereon said ladder suddenly and unexpectedly swung loose from said building and downward, causing the plaintiff to fall from the roof to the floor of said building," whereby he was injured. His injuries, it is alleged, "were directly due to and caused by the negligence and carelessness of the defendants, their agents and servants, in failing to have said ladder well and safely supported and so secured as to insure the safety of workmen using the same against the falling thereof; in failing to use due care and caution in attaching, and keeping safely attached, said ladder to said building, so as to prevent injury or accident to persons at work on said building, while using the same; in negligently detaching the wooden cleats holding said ladder to said building without taking down and removing said ladder from the position in which it had long been in use by workmen on said building; and negligently failing to provide a reasonably safe place for the plaintiff to work."

The defendants, following a general denial, pleaded contributory negligence on the part of the plaintiff, and in doing so set forth the particulars constituting the alleged contributory negligence:

"That the plaintiff was a man thoroughly experienced in the use of ladders and in the performance of his duties as a carpenter in and about the construction of buildings, and that on said occasion the plaintiff voluntarily selected the ladder mentioned in said petition for his use in descending from the roof of the building to the ground, and carelessly and negligently stepped upon said ladder without exercising ordinary care to ascertain whether the same was in such condition as to be likely to slip or fall with him, and without exercising ordinary care to test said ladder by way of ascertaining whether the same was firmly fastened or not, when he either knew or by the exercise of ordinary care could have known, of the condition of said ladder and whether the same was likely to slip or fall with him while so using it as aforesaid."

The defendants offered a demurrer to the evidence, and they insist here that—

"The evidence does not establish that they failed to exercise ordinary care either to furnish a reasonably safe ladder, or to maintain the ladder which they did furnish in a reasonably safe condition for plaintiff's use."

The ladder in question was in the place described when plaintiff began work for defendants. It is clear from the testimony that the ladder was not attached in any way at the foot. It rested against the balcony beam 10 feet above the ground and was fastened there by cleats on both sides. At the roof it did not lean or rest against the beam or girder. There was no beam or girder extending east and west at the point where the ladder reached the roof, but there was at that point a girder extending north and south, and the ladder came up immediately by this girder, so that the east rail or side of the ladder touched or was close to the west side of this girder.

Some of plaintiff's testimony tended to show that there were near this point certain pieces of lumber called sheeting lying upon this girder, and the nearby girders, and that there were cleats or fastenings connecting the ladder with this sheeting and with the north and south girder just mentioned. Defendants' foreman testified that there was some sheeting lying on these girders, but denied that the ladder was cleated to this sheeting. Charles Johnson, a witness for plaintiff, testifying as to the way the ladder was attached at the roof, said:

"Q. I will ask you if this ladder was six inches away from the beam at the roof? A. Well, six inches from the roof. Q. From the side of the beam? A. That was somewheres about—it may have been eight inches. Q. Away from the beam? A. Yes, something like that; close to it. Q. It was resting against what? A. On the center; it was resting against the balcony beam. Q. I mean at the roof? A. At the roof, against a temporary 3x6 flooring; laid lengthwise as a scaffold used by the bricklayers. Q. And cleated to that? A. Yes, sir; cleated to that."

The plaintiff himself testified, however, that the rail of the ladder was spiked or nailed to this girder, and his own testimony leaves it somewhat uncertain whether there were any wooden cleats attached to the ladder at the roof:

"Q. And there wasn't anything there, then, for it to be spiked to on the roof on the south side? A. Only alongside of the girder. Q. Your idea is it was spiked to the girder on the east side of it? A. On the west side of the girder; the east side of the ladder was spiked to the west side of the girder. Q. What you were asked awhile ago was whether that ladder was spiked to anything at the south of it, at the roof? A. No; I didn't notice anything spiked at the south of it at all; it was leaning against nothing only the— Q. Did you notice whether it was spiked to the girder or not? A. I saw the heads of spikes, but I supposed it was spiked there; it didn't move. Q. Did those spikes go through the side of the ladder into the girder? A. Yes. Q. There were no cleats at the roof? A. I never noticed any cleats there whatever."

The plaintiff testified that in going to his work on the roof he used this ladder, except upon one occasion when he used the ladder on the north side of the driveway; that the first time he used this ladder he noticed that it was solid and firm in its place, and thereafter it was used by him, and by his helper on the roof, and by others. On the morning he was injured he had occasion to descend to the ground three times, the last time about the middle of the forenoon, and used the ladder in question each time in going down and returning, and the ladder was firm in its place. The testimony for plaintiff shows that at some time before noon of that day the defendants' foreman caused to be detached and removed some sheeting which Was on the balcony near he ladder and also sheeting which was on the girders at the roof near the ladder, so that such sheeting might be used in connection with the laying of the roof; and this testimony tends also to show that in doing so he loosened or detached some of the fastenings which held the ladder. The foreman denied that he had detached the cleats or fastenings holding the ladder; but, aside from the testimony above mentioned, there is the undisputed fact that prior to the time when the plaintiff attempted to go down from the roof at 12 o'clock by this ladder, it had been used frequently on that morning and on the days previous, and had stood firm in...