Forbes v. Dunnavant

• Decision Date: 30 June 1906
• Parties: FORBES v. DUNNAVANT, Appellant
• Court: Missouri Supreme Court

95 S.W. 934

198 Mo. 193

FORBES v. DUNNAVANT, Appellant

Supreme Court of Missouri, Division One

June 30, 1906

Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.

Reversed.

Seddon & Holland, McKeighan, Wood & Watts and Wm. R. Gentry for appellant.

The court erred in overruling appellant's demurrer to the evidence. (a) Because there was no case made by merely showing the happening of the accident, as the doctrine of res ipsa loquitur does not apply in this case. Kimmer v Webber, 151 N.Y. 417; Bowen v. Railroad, 95 Mo 268. Before respondent was entitled to have his case submitted to the jury, it was incumbent upon him to show some negligence on the part of appellant. Harper v. Railroad, 187 Mo. 575; Chandler v. Glass Co., 174 Mo. 321. (b) Respondent proved the breaking of the board, and introduced some testimony to the effect that the board was worm-eaten, but he did not introduce a scintilla of evidence showing, or tending to show, that the breaking of the board was caused by the worm-eaten condition thereof. The burden of proof was upon respondent to show, not only that the board was defective, but also to show that the breaking of the plank was directly due to such defect. (c) But even had there been testimony that the breaking of the plank was due to its worm-eaten condition, the respondent was not entitled to recover because the evidence clearly shows that the duty of selecting timber from a large mass was placed upon the respondent's fellow-servant, Redford, who was charged with the duty of taking out suitable pieces and passing them up to respondent. If, then, this piece which Redford selected out of the mass and passed up to respondent was defective and unfit for use, the negligence, if any, in selecting same and passing it up, was the negligence of a fellow-servant and not the negligence of the master. McCone v. Gallagher, 44 N.Y.S. 697; Herbert v. Wiggins Ferry Co., 107 Mo.App. 288; Richards v. Hayes, 45 N.Y.S. 234; Jones v. Packet Co., 43 Mo.App. 203; Kennedy v. Spring, 160 Mass. 203; Oelschiegel v. Railroad, 73 Minn. 327; Ferguson v. Galt, 27 Ont. App. 489; Ross v. Walker, 139 Pa. St. 42; Colton v. Richards, 123 Mass. 484; Kelly v. Norcross, 121 Mass. 508; Beesley v. Wheeler & Co., 103 Mich. 196; Howard v. Hood, 155 Mass. 391; Dewey v. Parke, Davis & Co., 76 Mich. 631; Adasken v. Gilbert, 165 Mass. 443; Fraser v. Lumber Co., 45 Minn. 443; Armour v. Hahn, 111 U.S. 313; Peschel v. Railroad, 62 Wis. 338; McGinity v. Athol Reservoir Co., 155 Mass. 183; O'Connor v. Rich, 164 Mass. 560; Johnson v. Boston Tow Boat Co., 135 Mass. 209; Miller v. Railroad, 175 Mass. 363; Allen v. Iron Co., 160 Mass. 557; Hoar v. Merritt, 62 Mass. 386; Cregan v. Marston, 120 N.Y. 568; Pfeiffer v. Dialogue, 8 Am. Neg. Rep. 90; Hayes v. Railroad, 17 Am. Neg. Rep. 542; Callahan v. Trustees, 180 Mass. 183. (d) Even if the board broke on account of a defect, and even if this particular board was supplied by appellant, appellant would not be liable unless he had failed to furnish sufficient suitable timbers. But there was no evidence in this case that appellant failed to furnish sufficient suitable timber.

A. R. Taylor for respondent.

(1) Upon this record there can arise but these material issues of fact: (a) The plaintiff affirms that the timber which broke and caused his injury was defective by reason of being worm-eaten and decayed. He supports this affirmation by the direct evidence of Redford, and the production of the timber before the jury, showing that the board was worm-eaten and doty or rotten. This the jury saw. This claim is also directly supported by the evidence of Joseph Eastman, an expert of wide experience, who, in substance, declares the timber unfit for use. The condition of the board was open and visible, and the same as when used. (b) The defendant denies that the board was unfit, but asserts that it was a proper board, and endorses its use -- and claims that it broke by reason of improper nailing alone -- thus taking out of the case all controversy as to any negligence of a fellow-servant in providing an unfit board when good ones were furnished by defendant. Defendant and his foreman both, in substance, say this board was one supplied by defendant for the very use to which it was applied. (2) If the above evidence for plaintiff were true the contention that a demurrer to the evidence should have been sustained is without any foundation. Appellant is mistaken in his statement of fact that plaintiff failed to show any evidence before the jury tending to prove negligence on the part of appellant. There was strong substantial affirmative evidence of negligence in providing this timber for such use, as set out above. The board before the jury, with the evidence of weakness it bore, was evidence of negligence of defendant when he admits he furnished it for the use to which it was applied. The case was then one properly for the jury. There was no question of a fellow-servant's negligence in the issue of providing the board when defendant and his foreman both say the board was one which was all right. If it passed through the hands of a fellow-servant this servant was doing their bidding. If the board was unfit, defendant assumes the responsibility. If appellant was negligent in providing this board and it broke by reason of its unfitness, and without negligence of plaintiff or others, it was no accident.

OPINION

LAMM, J.

Dunnavant was a contractor in the erection of the Textile Building for the World's Fair Association at its grounds in the city of St. Louis in 1902, and is sued by Forbes, his servant, employed with others in the building of a scaffold to be used in the erection of said building. While thus employed, the scaffold broke and he was so injured by his resulting fall that no complaint is made over the amount of his verdict, to-wit, $ 7,500.

The gist of the paper issues follows: Thus, by the petition it is set forth:

"That whilst the plaintiff was on said scaffold in the due discharge of the duties of his service, one of the cross timbers in said scaffold broke and the plaintiff was caused to fall a great distance, about thirty-two feet, breaking both of the plaintiff's feet and crushing the bones of his left ankle and leg, causing such injury as to necessitate the amputation of plaintiff's left leg nine inches below the knee, and otherwise causing great injury to the plaintiff, both externally and internally. And the plaintiff avers that said scaffold was caused to break and give way and injure the plaintiff through the negligence of the foreman of the defendant, and of the defendant, in failing to provide suitable material for the construction of said scaffold. That defendant provided for the construction of said scaffold timber, plank and cross timbers of inferior grade and entirely defective and insufficient for such purpose, being second grade lumber and weak and insufficient for said purpose; as the defendant and its said foreman well knew, yet negligently provided said material, lumber, plank and timbers for said purpose, which negligence directly caused and contributed to cause said scaffold to give way and break and cause said injuries to the plaintiff. And plaintiff avers that defendant was further negligent in failing to provide a suitable and safe place where the plaintiff was to work in the discharge of the duties of his employment, which negligence also directly contributed to cause the plaintiff's said injuries."

The last charge of negligence, to-wit, negligence in providing a suitable and safe place, was attacked, nisi, by a motion for a rule and order requiring plaintiff to make the same more definite and certain, for that (the motion says) it "is indefinite and uncertain and does not state in what respect the place furnished by defendant to plaintiff was not suitable and safe." This motion was sustained. Plaintiff, declining to further plead, stood on his petition, filing a term bill of exceptions. As plaintiff did not appeal, his exception is not here and the averment in question must be taken as out of the case.

And by an amended answer, the defenses set forth, were: (1) a general denial, (2) plaintiff's contributory negligence, (3) that the details of the surroundings were open and obvious, were known to plaintiff, and the dangers, if any, in working amid said surroundings were also known to him and he assumed the risk, and (4) that his injuries were the result of the negligence, carelessness or misconduct of other servants in the employ of defendant engaged in a common service with plaintiff.

The reply was a general denial.

On a trial to a jury, the verdict was as said. Thereat defendant filed his motion for a new trial, and, the same being overruled, excepted, and brought the case here by appeal.

The cause is here on assignments of error predicated of the giving of certain instructions for plaintiff, and of the refusing of an instruction for defendant in the nature of a demurrer to the evidence.

If it was error to refuse the demurrer, then a consideration of other assignments is in nubibus. In this view of the case, any evidence offered by defendant running counter to plaintiff's has no office; because plaintiff, on demurrer, is entitled to have his evidence taken as true, to have the evidence of defendant, where contradicted, taken as untrue, and is entitled to every reasonable and favorable inference of fact naturally deducible from his own testimony or the uncontradicted testimony of defendant.

One Redford was a "partner" of, i. e., worked as a carpenter with, plaintiff in building the scaffold. Evidence was introduced on the issue whether plaintiff and Redford were fellow-servants. This evidence needs no attention, because it not only...