Dyer v. W.M. Sutherland Building & Contracting Co.

• Decision Date: 08 January 1924
• Docket Number: No. 18032.,18032.
• Citation: 258 S.W. 48
• Parties: DYER v. W.M. SUTHERLAND BUILDING & CONTRACTING CO.
• Court: Missouri Court of Appeals

258 S.W. 48

DYER v. W.M. SUTHERLAND BUILDING & CONTRACTING CO.

No. 18032.

St. Louis Court of Appeals. Missouri.

January 8, 1924.

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

"Not to be officially published."

Action by Frank P. Dyer against the W. M. Sutherland Building & Contracting Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with leave to amend petition.

Leonard, Sibley & McRoberts, of St. Louis, for appellant.

Joseph T. Strubinger and Percy Werner, both of St. Louis, for respondent.

BECKER, J.

Plaintiff below recovered a judgment in the sum of $3,000 against the defendant as damages for alleged injuries received by him while working for the defendant as a carpenter, caused by being struck by a falling piece of timber which dropped from a scaffolding under which plaintiff was working at the time. Defendant in due course appeals.

The charge of negligence in the petition is that it was the duty of the defendant to provide plaintiff with a reasonably safe place in which to work, which said duty the defendant negligently failed to discharge, in this, in that it negligently failed to have the said lumber in use on said overhead platform so stacked and guarded as to prevent it from falling from said platform to the place where he was at work, on the ground underneath said platform; that as a direct and proximate result of defendant's negligence a piece of lumber was allowed to fall from said overhead scaffolding and plaintiff was struck and injured thereby. The answer was a general denial.

Since we have come to the conclusion, after a careful consideration of the record before us, that plaintiff failed to make out a case for the jury, and that the learned trial court therefore erred in overruling defendant's demurrer offered at the close of the entire case, we practically adopt the statement of facts set out by learned counsel for respondent here, plaintiff below, in his brief, as fairly stating what the evidence, considered in the light most favorable to plaintiff, tends to show.

Plaintiff was a carpenter, and at the time in question was at work at the bottom of a so-called "well," formed by the construction of two parallel rows of large circular silos, joined together with connecting walls. These silos and connecting walls were built by pouring concrete into wooden forms, which were built in sections 4 feet in height, which were raised from time to time as the building progressed. These silos were about 20 feet in diameter, and at the time of the accident 6 sections, 24 feet in height, had been completed, and the seventh section was in progress.

The construction work was done by the aid of scaffolding or platforms held up by braces and supports of various kinds, resting on the ground and elevated a distance of 4 feet from time to time as each new section was begun. The scaffolding or platform used inside of the series of silos and over the so-called "well" was constructed of planks, loosely laid over ledgers or joists and not nailed down, and contained several large irregular openings, both because of the peculiar shape of the well—a sort of octagonal shape, made by the building walls of 4 circular silos and the connecting walls—and because openings were purposely left for passing up the lumber to be used in the new forms and for the men to ascend or descend.

This scaffolding, or platform, in addition to being used for storing of the lumber which was to be used for the construction of the new forms, was also used by the concrete workers, carpenters, iron workers, and laborers, stepping about and helping themselves to lumber and material. The lumber used in the construction of the forms into which the concrete was poured was of different sizes, lengths, and shapes. It became scattered about the scaffolding as the various men helped themselves to different pieces, and as they walked about the scaffolding or platform. Plaintiff was put to work by defendant's foreman at the bottom of the well, and was engaged in strengthening the braces below at the time of the accident. The work was being done under the supervision of the foreman, Melville, who, at the time of the accident, was on the top of the silos. He admits that no precaution was taken to prevent the loose lumber falling through the holes down the well. Plaintiff introduced some testimony tending to show that it was practicable for the loose pieces of lumber placed on the scaffolding to be so placed between standards that it could not be scattered about and fall through the openings. Plaintiff testified that two pieces of lumber fell at the time he was injured, and that the piece which struck him was a 2x4, about 5 feet long, and he further testified that there was no other place from which this piece of lumber could have fallen except from the scaffolding above him.

Plaintiff further testified that within 2 or 3 minutes after he had been struck he climbed up the ladder onto the platform and observed scattered about the platform a number...