Foster & Creighton Co. v. St. Paul Mercury Indem. Co.

• Decision Date: 30 June 1956
• Docket Number: 6 Div. 567
• Citation: 88 So.2d 825,264 Ala. 581
• Parties: FOSTER & CREIGHTON COMPANY v. ST. PAUL MERCURY INDEMNITY COMPANY.
• Court: Alabama Supreme Court

Page 825

88 So.2d 825

264 Ala. 581

FOSTER & CREIGHTON COMPANY v. ST. PAUL MERCURY INDEMNITY COMPANY.

6 Div. 567.

Supreme Court of Alabama.

June 30, 1956.

Spain, Gillon & Young and John P. Ansley, Birmingham, for appellant.

Taylor, Higgins, Windham & Perdue and Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.

PER CURIAM.

This suit was filed by St. Paul Mercury Indemnity Company for its benefit and for the benefit of Mrs. June Fulton Robinson and her minor son, dependents of Robert Harold Robinson, Sr., deceased, against Foster & Creighton Company and others, under the provisions of the Workmen's Compensation Act, Title 26, § 312, Code of Alabama 1940, as amended. The complaint was in one count and alleged that Robert Harold Robinson, Sr., died as the result of injuries sustained in a fall through an opening in the third floor of the Phoenix Building Annex on July 27, 1950, due to the negligence of Foster & Creighton Company, a corporation, and the other defendants.

Pleading was in short by consent. Defendants pleaded the general issue, contributory negligence, assumption of risk, incurred risk of the deceased, and contributory negligence of the subcontractor, Shook & Fletcher Supply Company. The case was tried before a jury and a verdict rendered in favor of the appellees and against the defendant, Foster & Creighton Company, in the amount of $28,000.

Motion for a new trial was duly filed and was overruled. This appeal was perfected on March 27, 1953.

Appellant assigns as error, among others, the trial court's refusal to give the affirmative charge on behalf of the defendant. Appellant contends that the hole through which Robinson fell was an open and obvious danger which was well known to Robinson, whereas the duty which the appellant, Foster & Creighton Company owed to take was reasonable measures to prevent his injury due to a hidden danger only.

Appellees contend that the appellant was negligent in not erecting a barrier around the hole or providing a cover over the hole, and that the case was properly submitted to the jury on the issue of contributory negligence.

At the time of his death, Robinson was journeyman sheet metal worker and had been employed by Shook & Fletcher on the Phoenix Building job from six to eight weeks. During that time, he worked installing air conditioning ducts on the first, second and third floors, with most of the work being done in the northwest corner of those floors.

At the time he fell, Robinson was moving in a backward manner while he and two other men maneuvered a 12 or 14 foot length of duct into a position to pushed up through one of the small holes to the fourth floor.

On original submission, this cause was assigned to Livingston, C. J., who prepared an opinion holding, in effect, that the plaintiff's evidence was insufficient to take the case to the jury. Upon consideration by the full court, Justices Lawson, Simpson, Stakely, Goodwyn, Merrill and Spann were of the opinion that the evidence did make a case for the jury. It is, therefore, necessary to state the evidence in its most favorable light to the plaintiff-appellee. This we have done by taking appellee's statement of the facts contained in brief, and which is fully supported by the record. For a better understanding, we reproduce here a rough sketch not drawn to scale, showing the opening in the third floor of the Phoenix Building Annex. The opening designated '2' is the hole through which Robinson fell.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

'It is undisputed that the appellant, Foster & Creighton Company, as contractor, entered into an agreement with the Phoenix Building Corporation, as owner, on December 27, 1949, under the terms of which appellant was to erect an addition to the then existing Phoenix Building, located at Second Avenue and 17th Street, North, in Birmingham, Alabama. The agreement contained the following pertinent provisions:

"The Contractor, being fully responsible for the general management of the building operation, shall have full directing authority over the execution of the Sub-Contracts, and shall pay the cost of all approved Sub-Contracts, for reimbursement under Article 5 hereof.

"The Sub-Contractors shall not only cooperate with each other, as provided in Article 35 of the General Conditions of the Contract, but they shall conform to all directions of the Contractor in regard to the progress of the work.'

'Also made a part of the contract were certain 'General Conditions of the Contract.' Article 12 thereof provided, in part, as follows.

"The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building codes to prevent accidents or injury to persons on, about or adjacent to the premises where the work is being performed. He shall erect and properly maintain at all times, as required by the conditions and progress of the work, all necessary safeguards for the protection of workmen and the public and shall post danger signs warning against the hazards created by such features of construction as protruding nails, hod hoists, well holes, elevator hatchways, scaffolding, window openings, stairways and falling materials; and he shall designate a responsible member of his organization on the work whose duty shall be the prevention of accidents. The name and position of the person so designated shall be reported to the Architect by the Contractor.'

'The Shock & Fletcher Supply Company--the employer of Mr. Robinson--had a subcontract with appellant to install the air conditioning and heating system in the annex.

'The evidence is without dispute that Mr. Robinson, the deceased, was an employee of the subcontractor, Shook & Fletcher Supply Company, and was engaged in the performance of the duties of his employment at the time he was injured. It was stipulated by the parties that Mr. Robinson died as a result of the fall which he received on the occasion in question, and the death certificate was also received in evidence.

'The evidence was likewise without dispute that one J. B. Smith was Superintendent for appellant on the job, and was in charge of the whole job. He had a copy of the contract with the owner there on the job, and was familiar with its provisions giving the contractor full directing authority over the execution of subcontracts. It is further clear from the evidence adduced by appellant in the court below that appellant's superintendent exercised this authority with respect to the performance by Shook & Fletcher of its subcontract. When Shook & Fletcher first came upon the job, they started work on the first floor of the building. Their men worked on that floor a short time. But Smith stopped them from working on the first floor and directed them to work on the second, third, fourth, fifth, and then the first floor, in that order. Shook & Fletcher's men complied with these directions given by appellant's superintendent.

'The evidence further disclosed that appellant entered upon the performance of its duty to provide for the safety of workmen on the job. Without dispute, appellant provided a cover for the opening on the second floor, but the evidence on behalf of appellees was that this cover on the second floor had remained there about a week, and that no cover had been on the second floor for about two weeks, or longer, prior to the accident.

'The single witness for appellant testified that a cover had also been put on the opening at the third floor; but the evidence on behalf of appellees was to the effect that there never was a covering provided for the opening at the third floor. Every witness to the accident testified positively that at the time of the accident there was no cover, barricade or fence around the opening at the third floor. Appellant's witness Smith admitted on cross-examination that when he made an examination of the opening after Mr. Robinson had fallen, he found no covers on it from the third floor down. He did not know how long the opening had been without covers prior to the accident. It was possible for it to have been open for a week without him knowing about it, although he was on all floors of the building every day.

'The evidence on behalf of appellees also showed that shortly before the accident--according to one witness about twenty or thirty minutes before the accident occurred--a carpenter had come up to the opening at the third floor, with tools and materials, to build a railing around the opening, but he had been called away by the foreman before the railing was built. The evidence by appellant's witness disclosed that any person making covers or rails to go around the holes would be people working for appellant. The evidence further showed that the employees of Shook & Fletcher on that job talked about the carpenter going to build the barricade there.

'It is undisputed that in construction jobs of this character it is customary to have guardrails or covers around or over openings of the type through which Mr. Robinson fell. The appellees' witnesses Bridges, Coggins, Hagood and Mason, and the appellant's witness Smith so testified, including the fact that such was good safety practice.

'The evidence was without conflict that at the time Mr. Robinson suffered the fall he and two other employees of Shook & Fletcher (Coggins and McDowell) were engaged in moving a section of duct from a point on the third floor approximately 20 to 25 feet from the opening through which Mr. Robinson fell to a point approximately 6 feet from the opening. Immediately prior to this movement, three of the Shook & Fletcher employees (Bridges, Coggins and Robinson) had been putting the section together. Bridges had then gone to a scaffold to guide the section through the hole it was to go in. Robinson, Coggins and McDowell were handling the section. The section of duct...