Greenstein v. Christopher & Simpson A. I. & F. Co.

• Decision Date: 15 July 1915
• Docket Number: No. 13983.,13983.
• Citation: 178 S.W. 1179
• Court: Missouri Court of Appeals
• Parties: GREENSTEIN v. CHRISTOPHER & SIMSON ARCHITECTURAL IRON & FOUNDRY CO.

178 S.W. 1179

GREENSTEIN v. CHRISTOPHER & SIMSON ARCHITECTURAL IRON & FOUNDRY CO.

No. 13983.

St. Louis Court of Appeals. Missouri.

July 15, 1915.

Appeal from St. Louis Circuit Court; Geo. C. Hitchcock, Judge.

Action by Henry Greenstein against the Christopher & Simpson Architectural Iron & Foundry Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

M. U. Hayden and H. H. Scott, both of St. Louis, for appellant. B. R. Brewer and Chas. W. Casey, both of St. Louts, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant, and alleged to have been occasioned by defendant's negligence. There was a verdict and judgment below for plaintiff for $2,500, and the defendant prosecutes the appeal.

The plaintiff is a painter by trade, and had been pursuing this vocation for a number of years prior to November 6, 1911, the day when he received the injuries for which he sues. At the time in question defendant had a contract to install the structural iron work in the building then being erected at No. 216 North Seventh street, in the city of St. Louis. Defendant had installed certain iron or steel beams therein, the uppersurfaces of which were a few inches below the level of the sidewalk, and which were approximately eight feet above tie floor of the basement of the building. It appears that while defendant was installing these beams plaintiff, who was passing along the street, stopped and spoke to defendant's superintendent, seeking employment as a painter; that as a result of this interview plaintiff, on November 3, 1911, was notified by mail that he could have the job of painting these beams. Plaintiff testified that on the following day, which was Saturday, he went to the building, and, not finding defendant's superintendent there, went to defendant's office, saw the superintendent, and, arranged to begin work on the following Monday morning. It seems that when plaintiff arrived at the building Monday morning to begin work he found no one there representing defendant. He proceeded with the work of painting the beams, and had painted all thereof, with the exception of Dne beam, which he was seated upon and painting, when it turned and rolled off of a brick pier upon which one end thereof rested, whereby plaintiff was precipitated to the basement floor below, the beam falling upon him and severely injuring him.

The building stood on the east side of Seventh street; its greatest length being from east to west. It was not a "steelframe" building. The outer walls, in process of erection, were of brick, and, together with certain brick piers and cast-iron columns, supported the beams installed by defendant. Three rows of beams extended east and west throughout the length of the building, upon which joists were to be laid to support the flooring. Each of these rows consisted of seven beams. The beams in the middle row were supported, in the interior of the building, by brick piers, while those in the other two rows were supported by cast-iron columns. At the front or west end of the building one row consisting of four beams extended north and south just inside of the building line. On a sketch or plat introduced in evidence these four beams are numbered respectively 1, 2, 3, and 4, beginning with the north beam, and are so referred to by counsel. The north end of No. 1 rested upon the north wall of the building, and the south end thereof upon a brick pier. The north end of No. 2 rested upon the brick pier last mentioned, and the south end thereof on a cast-iron column located at the center of the west line of the building. The north end of No. 3 rested on the cast-iron column last mentioned, and the south end thereof on a brick pier. The north end of No. 4, which plaintiff was painting when injured, rested upon the brick pier last mentioned, and the south end thereof upon the south wall of the building.

It appears that plaintiff began work at the northeast corner of the building, and first painted the three rows of beams extending through the building east and west; that he then began work upon the four beams extending north and south along the front of the building, commencing with what is above termed beam No. 1, and' working toward the south; that in painting a beam he sat astride of it and painted in front of him, moving back along the row of beams from time to time as the work progressed. In this manner he had painted the first three beams in this row, and was at work upon beam No. 4, when it turned with him, and he and this beam fell to the basement floor.

Plaintiff's evidence is to the effect that he found all of the beams, with the exception of the one that fell, "solid"; i. e., securely fastened in place by one means or another. As to the beams in the three rows extending east and west, it appears that, with the exception of those in the middle row extending through the center of the building, they were bolted to the cast-iron pillars supporting them. Those in the middle row, with the exception of the end beams, were not made secure; that is, these five beams merely rested upon plates placed on top of the brick piers. However, plaintiff testified that these five unfastened beams were "jammed up" to iron "foot plates" which were to hold columns extending from the first floor upwards, that certain planks were laid across them, and that some of the joists had been put in, and that the weight on these beams, and the manner in which they were fixed in place made them "solid," or firm, so that it was safe to work upon them. His further testimony is that of the four beams in the row extending north and south along the front of the building the beam farthest north, above termed beam No. 1, was made secure by having the north end thereof imbedded in the north wall, that the next two beams in this row, No. 2 and No. 3, were each bolted to the cast-iron column situated at the center of the front line of the building, but that the last beam to the south, No. 4, was not fastened in any way, the south end thereof not being imbedded in the south wall, and the north end resting loosely upon the brick pier which supported it. Plaintiff's evidence goes to show that, having found all of the beams in the other rows secure, and having found the other three beams in this particular row to be securely and permanently fixed in place, he proceeded upon the assumption that the last beam was likewise safe to work upon, and went upon it to his injury. He testified that he had observed that the brick wall had been built about the north end of beam No. 1, and that he assumed that the south end of the beam which fell was in like manner imbedded in the south wall. It seems that in painting the side of the latter beam plaintiff leaned slightly to one side, which caused the beam to turn with him.

It is insisted that the evidence adduced discloses no negligence on the part of the defendant; that it is not made to appear that defendant breached its duty to exercise ordinary care to furnish plaintiff a reasonably safe place to work; that plaintiff's injuries were due solely to his own negligence in not discovering that the beam in question was unsecured and in leaning over to paint it without ascertaining the facts in this regard; and that therefore defendant's demurrer to the evidence should have been sustained.

It is said that it was not defendant's duty to see to it that beam No. 4 was imbedded into the south wall, or otherwise secured. Defendant's evidence tends to show that it had nothing to do with the brickwork, or with other work upon the building than that of installing the structural iron or steel work, that defendant had completed the work of putting in the beams on the first floor by November 3d, three days before plaintiff received his injury, and did no work on the building for about a week thereafter, that it was not defendant's duty under its contract to "brick in" the end of any beam that rested upon one of the walls, and that it was customary to merely put such beams in place so that they might be "bricked in" by those doing that portion of the work, and that it was the custom also for the work of painting such beams to proceed, though they remained unsecured, and that any experienced painter would necessarily know that he must govern his conduct accordingly.

As to the so-called custom to put painters to work upon unsecured beams it is quite clear that it was not shown that plaintiff had any knowledge or notice thereof, or that such custom, if it existed, was so general and...