Harff v. Green

• Decision Date: 29 March 1902
• Citation: 67 S.W. 576,168 Mo. 308
• Parties: HARFF v. GREEN et al.
• Court: Missouri Supreme Court

67 S.W. 576

168 Mo. 308

HARFF v. GREEN et al.

Supreme Court of Missouri, Division No. 1.

March 29, 1902.

NEGLIGENCE — BUILDING — FALLING BRICK — ASSUMPTION OF RISK.

Where a carpenter employed under the contracting carpenter in a large building objected to working in a certain place because there was no covering to protect him from bricks which the bricklayers under the brick contractor were laying some two stories above him, and, on being told either to go to work or quit the job, he went to work, and was injured by the fall of a brick, he had assumed the risk, and could not recover against the brick contractor or the general contractor; there being no evidence of a custom to erect a covering in such a case.

Error to St. Louis circuit court; L. B. Valliant, Judge.

Action by Louis P. Harff against Frank S. Green and others. From a judgment for defendants, plaintiff appeals. Affirmed.

On the 17th of September, 1892, there was in process of construction at the corner of Ninth street and Washington avenue, in St. Louis, a certain nine-story brick building. Defendant Green was the contractor for the whole work, and Patrick McCarthy was his superintendent or foreman. Defendant Baker was the subcontractor for the doing of the brickwork, and defendant Seger was the subcontractor for the doing of the carpenter work. The plaintiff was employed by defendant Seger. On the day stated the bricklayers were at work carrying up the walls of the fifth story, and the carpenters were at work laying the floors on the third story. The bricklayers had erected a scaffold five or six feet above the joists of the fifth story to stand on. This scaffold extended five or six feet out from the wall. From the scaffold, on which the bricklayers stood while working, to the elevator, which was about fifteen feet distant, there was a gangway, composed of two planks laid side by side, over which the laborers wheeled brick in wheelbarrows from the elevator to the place on the platform where the bricklayers were at work. When the plaintiff and William Schneider, a carpenter also employed by Seger, went to work on the morning in question, McCarthy directed them to lay the flooring on the third floor, directly under the gangway aforesaid between the elevator and the platform. They objected to working there, and Schneider told McCarthy it was dangerous to work there, because there was no covering for safety over them, and the bricks were liable to fall on them and hurt them. McCarthy answered: "If you don't want to work there, you have to pick up your tools and go home. I can hire some other men." There were a couple of boards belonging to the bricklayers lying there, and McCarthy told Schneider and the plaintiff to take them and make a covering as well as they could, and they did so. The testimony showed, however, that it was not a sufficient or safe covering, and that, while the carpenters were at work laying the floor on the third story, in some manner a wheelbarrow loaded with bricks fell over or through the said gangway, and some of them struck the plaintiff and injured him; and he brought this action for $10,000 damages against Green, the general contractor, Baker, the brick subcontractor, and Seger, the carpenter subcontractor. Green and Baker answered separately by a general denial and a plea of contributory negligence. Seger made default. The testimony showed that it was the custom for the brick contractor to ask the general contractor to put up a covering for safety, to keep bricks from failing and injuring the carpenters who were working on the lower floors, and that it was custom for the general contractor to do so. It also appeared that McCarthy, the superintendent or foreman for Green, the general contractor, gave orders to any or all of the men, by whomsoever employed, as to where they should work, and they were obliged to obey such orders. Upon this showing the circuit court sustained a demurrer to the evidence as to defendants Green and Baker on the ground that there was no contractual relation between them and the plaintiff, and that the relation of master and servant did not exist between them, or either of them, and the plaintiff, and that they had not violated any duty they owed to the plaintiff. The plaintiff then took a nonsuit as to all of the defendants, and, after an unsuccessful motion to set it aside, appealed to this court.

Virgil Rule and Charles & Lackey, for plaintiff. A. & J. F. Lee and T. J. Rowe, for defendants.

ROBINSON, J. (after stating the facts).

The petition bases a right to recover against Baker and Green upon the ground that it was their duty to so carry on the brickwork as not to create a nuisance on the premises that would injure any person lawfully upon the premises, and that they were negligent in doing the brickwork, which negligence caused the injury to the plaintiff; and the petition bases a right to recover against Seger and Green upon the ground that it was their duty to furnish plaintiff a reasonably safe place in which to work, and they failed to do so. The petition states that the proximate cause of the injury was the negligence of one of the servants of the defendant Baker in letting bricks fall from a wheelbarrow he was wheeling across the gangway between the elevator and the platform on which the bricklayers were working. There was no evidence introduced to show any custom or duty that required Baker to construct safety coverings to prevent bricks falling upon the carpenters or other workmen below. It is too plain to admit of serious discussion that, if such a safety...