Hall v. Brown

• Decision Date: 05 February 1924
• Docket Number: No. 17566.,17566.
• Citation: 259 S.W. 871
• Parties: HALL v. BROWN.
• Court: Missouri Court of Appeals

259 S.W. 871

HALL v. BROWN.

No. 17566.

St. Louis Court of Appeals, Missouri.

February 5, 1924.

Rehearing Denied March 18, 1924.

Appeal from St. Louis Circuit Court; Charles B. Davis, Judge.

"Not to be officially published."

Action by Charles M. Hall, administrator of the estate of Oliver Hall, deceased, against William Brown, doing business under the style and firm name of the Ben Hur Erection Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Samuel M. Rinaker, of Chicago, Ill., and Charles E. Morrow, of St. Louis, for appellant.

W. H. Douglass, of St. Louis, for respondent.

BRUERE, C.

This action was instituted in the circuit court of the city of St. Louis, Mo., by the plaintiff, as administrator of the estate of Oliver Hall, deceased, to recover damages for the death of the deceased, who was in defendant's employ and who was killed in a fall from the fourth floor of a building which was being erected in the city of St. Louis, Mo. The case was tried before the court and a jury, and resulted in a verdict and judgment in favor of the plaintiff, in the sum of $3,000, and defendant has appealed.

The petition counts upon two grounds of negligence—one based on common-law negligence, because of alleged failure to furnish the plaintiff a reasonably safe place in which to work as an employee of the defendant, in that defendant failed to furnish sufficient boards to cover the fourth floor of the building, at the place where deceased was at work, and failed to cover said floor at said point; the other rests on the alleged violation of an ordinance of the city of St. Louis, Mo., in that defendant failed to provide and lay upon the upper side of the beams or girders of the said fourth floor of said building a temporary floor for the protection of the deceased.

The answer is a general denial, coupled with a plea that the deceased's fall was due to the usual hazards of his employment, as a steel worker on the building mentioned in plaintiff's petition, which were patent and obvious to him, and of which he assumed the risk. The reply is a general denial.

The ordinance pleaded and given in evidence is as follows:

"It shall be the duty of every contractor or his agent, who, by such contract shall have been given the supervision and control of the construction or remodeling of any building more than four stories in height above the established street grade, to provide and lay upon the upper side of the joists, beams, girders, or both, of the first floor below the riveters and structural steel setters, a plank floor, which shall be so laid as to form a substantial temporary floor for the protection of the employees and all persons above, below, or on such temporary floor in such building. * * *"

It appears from the evidence, adduced by the plaintiff, that at the time of the accident the deceased was in the employ of the defendant as a structural iron worker and was at work on the fourth floor of an 11-story building under construction in the city of St. Louis, Mo. The defendant, as subcontractor, had the contract for the erection of the steel framework of said building. This framework was built of steel pillars about 16 feet apart, which were fastened together, at each floor of the building, by steel beams running across and at right angles to said pillars, so as to form sections between the beams about 16 feet square. At the time of the accident, this framework had been finished for the fourth floor of the building above the street level and deceased and others were engaged in placing a derrick on said floor. This derrick sat on the second floor during the time the steel framework was being erected for the third and fourth floors, and was being taken up to the fourth floor, through an opening left for that purpose, to hoist the steel and lift material in continuing the construction of the building. At the time the deceased was injured, the mast, the boom of the derrick, and one of the timbers used in installing it had not been raised to the fourth floor, but the shoe of the derrick, to which was bolted two cross timbers, was suspended above two large timbers extending east and west, which had been placed across the steel beams of the fourth floor and on which the shoe of the derrick rested when in position. It became necessary to move one of the large timbers closer to the other in order to lower the shoe of the derrick and set the timbers, fastened thereon, crossways on top of the two large timbers. The fourth floor was not covered with a temporary flooring but some boards had been laid across the steel beams of this floor and around the place where the raising of the derrick was being done. Two of these boards, each 12 inches wide, had been placed across the steel beams and along the south side of the large timber sought to be moved. Said timber had been moved about 3 feet north of these boards when the deceased was ordered by defendant's foreman to assist in moving it further north. In compliance with said order deceased stepped upon one of said boards and started to get hold of said timber to push it north, when his hold slipped, and he fell through the space between the board on which he was standing and said timber.

Plaintiff's evidence further tended to show that it was usual and customary to cover the last floor as the building went up, when the men were engaged in raising the derrick to said floor, except the opening through which the derrick is raised and materials are hoisted.

The evidence on the part of the defendant tended to show that it was necessary to have the space open through which the deceased fell in order to move the derrick and hoist the material used in installing it, and that the derrick and timbers used in installing it were hoisted through said space.

In rebuttal, plaintiff adduced evidence to the effect that the space through which the deceased fell was not used by defendant in hoisting any part of the derrick or any material used in erecting it.

The errors assigned here go to the refusal of the trial court to direct a verdict for the defendant at the close of the whole case, to the admitting of the ordinance in evidence, over defendant's objection, and to the giving of plaintiff's instructions.

In support of the first assignment of error, it is contended that the uncontradicted evidence was that the defendant only left so much of the floor uncovered as was necessary to perform the task in hand, and that therefore the plaintiff was not entitled to recover either at common law or under the ordinance. This contention is based upon a false premise. It will be noted from the above statement of facts that plaintiff's evidence showed that the space through which the deceased fell was not used by defendant in installing the derrick or in hoisting any material.

Counsel for defendant next urge that no recovery can be had bottomed on the ordinance, introduced in evidence, because the deceased was injured while said fourth floor was being prepared for covering and while the defendant was installing the appliances which were necessary to hoist the material used to cover said floor. This contention disregards the evidence, adduced by the defendant, which was to the effect' that the boards that were on the fourth floor, at the time of the accident, were landed there by the derrick from the second floor of the building and before defendant started to raise the derrick to the fourth floor. It was therefore not first necessary to take the derrick to the fourth floor before the work of covering said floor could be done.

It is next contended that the evidence adduced does not bring this case within the terms of said...