Forrester v. Walsh Fire Clay Products Co.

• Decision Date: 03 May 1921
• Docket Number: No. 16231.,16231.
• Parties: FORRESTER v. WALSH FIRE CLAY PRODUCTS CO.
• Court: Missouri Court of Appeals

231 S.W. 668

FORRESTER v. WALSH FIRE CLAY PRODUCTS CO.

No. 16231.

St. Louis Court of Appeals. Missouri.

May 3, 1921.

Rehearing Denied June 7, 1921.

Appeal from Circuit Court, Audrain County; E. S. Gantt, Judge.

"Not to be officially published."

Action by Daniel G. Forrester against the Walsh Fire Clay Products Company. From a judgment for plaintiff, defendant appeals,. Reversed and remanded for new trial.

R. D. Rodgers, of Mexico, and J. O. Barrow, of Vandalia, for appellant.

Robert A. May, of Louisiana, Mo., and W. Buffington, of Mexico, Mo., for respondent..

BIGGS, C.

This is a negligence case growing out of the relation of master and servant, wherein defendant appeals from a judgment against it for $2,900, contending in the main that the evidence convicted plaintiff of contributory negligence as a matter of law and hence its demurrer to the evidence should have been sustained, and that the court below committed error in instructing the jury on behalf of plaintiff.

The charge of negligence is a violation of defendant's duty to use ordinary care to furnish plaintiff a reasonably safe place to work, and it is not contended that the evidence was insufficient to warrant the submission of the cause to the jury on that charge. As stated, defendant asserts that the evidence shows plaintiff's contributory negligence beyond an inference to the contrary.

The plaintiff was employed to do rough carpenter work. For some time prior to July 3, 1917, defendant had been engaged in erecting, among other buildings, a brick structure known as a machinery room at its plant in Audrain county. This building was 36 feet wide and 125 feet long, and while the outer walls were being constructed of brick and before the laying of the joists and other inside work was begun, it was necessary to have or the inside of the building scaffolds and runways to enable the bricklayers to construct the walls. The runways were used for the purpose of conveying materials, such as brick and mortar, about the building for use by the brickmasons.

On July 3, 1917, at the time plaintiff received his injuries, the north wall of this building had been constructed some six feet above the top of what was known as the foundation wall, which foundation wall extended some seven feet above the level of the ground. A doorway seven feet wide was left in the north wall, the bottom of the door being the top of the foundation wall. Outside of the doorway and opposite thereof was a platform on a level with the top of the foundation wall. In order to get the material into the building, a runway built of boards was constructed from the ground to this platform. The laborers with wheelbarrows would wheel the material from the ground up the runway to the platform and then over the platform and through the seven-foot doorway in the north wall and then on to another runway on the inside of the building, and thence to the scaffolds or platforms where the bricklayers were at work. That part of the runway immediately adjacent to the said doorway and on the inside of the building is the source of contention between the parties, the plaintiff contending that it was negligently maintained by permitting a loose board to be and remain thereon.

Plaintiff, as stated, was a carpenter and had constructed this part of the runway about a week previous to the accident. By reason of the supports or horses which supported the runway being too short, the runway where same joined the doorsill was not high enough to make the same even or flush therewith, and resulted in there being a drop of from two to four inches from the doorsill to the runway. There is evidence tending to prove that this fact was called to the attention of defendant's foreman at the time by the plaintiff, and he accepted the runway as being sufficient, and stated those running the wheelbarrows could use it in that condition.

After the plaintiff had finished constructing this runway, he was required to work in other parts of the plant and was not again on the runway until July 3d, the date of the accident. At that time he was ordered by the defendant to go into the machinery room and construct a scaffold along the south wall thereof for the use of the brickmasons. After gathering up his tools, plaintiff started towards his place of work following the course of the wheelbarrow men by going up the runway onto the platform and over the platform to the doorway in the north wall. His view of the runway on the inside of the building was obstructed by the brick wall until he arrived at the doorway. After passing through the doorway and proceeding about two or three steps over the runway on the inside of the building, plaintiff observed a man with a wheelbarrow coming towards him on the runway. The runway being only 2 feet wide, there was not room for the two to pass, and plaintiff thereupon stepped back with an idea of getting onto the doorsill of the doorway and thereby allowing the wheelbarrow man to pass. As he did so and in making his steps backward, he stepped on the end of a loose board which had been placed just inside and next to the doorsill and across the runway. This loose board was about 3½ feet or 4 feet long, 12 inches wide, 2 inches thick, and had been placed against the doorsill on the inside to lessen the jar of the wheelbarrows as they passed from the doorsill to the runway. Plaintiff testified that the wheelbarrow could not pass him and he glanced back to see for a way to go back and get out of the way; that in glancing backward he noticed this board and intended to step onto the board and then onto the foundation wall at the doorway, where there was plenty of room. When plaintiff stepped on the board, it being loose, it tilted, and he fell to the ground some 7 or 8 feet, receiving injuries.

Plaintiff testified:

"Q. When you say you stepped on the board intending to step on the foundation, how many steps was necessary for you to take backwards? A. About a couple of steps. I just made one step backwards and noticed this board. I just made one step back with this foot. Q. Which foot? A. Right foot, and aimed to step on back with my left foot onto this board, and when I stepped back it gave way, and that is as far as I got."

The board was laying right inside the foundation wall across this two-foot runway. One end of the board was lying flush with one side of the runway, and the other projected over the east side of the runway, and on this projecting part plaintiff stepped, and naturally the board tilted, as it was not nailed or fastened in any way to the runway.

Plaintiff's witness Taylor testified that on the morning of the day plaintiff was injured this board was caused to be placed on the runway by two of defendant's foremen in order to lessen the jar of the wheelbarrows as they passed from the doorsill to the runway. Both of these foremen, however, testified that they knew nothing about the board being there until after the plaintiff was injured.

Plaintiff had no occasion to pass over this runway after he had constructed it, until at the time of his injury. The only opportunity he had to observe the condition of the board laying across the runway was on the one occasion as he passed over it, at which time he was carrying his tools in his arms, which consisted of nail bar, nails, saw, hammer, and square. Plaintiff noticed the board as he passed through the doorway and stepped over it, but did not observe whether or not it was nailed to the runway. Plaintiff...