Harff v. Green
| Decision Date | 29 March 1902 |
| Citation | 67 S.W. 576,168 Mo. 308 |
| Parties | HARFF, Plaintiff in Error, v. GREEN et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leroy B. Valliant Judge.
Affirmed.
Virgil Rule and Charles & Lackey for plaintiff in error.
(1) Defendant Baker is liable. 1. (a) For the negligence of his servant in dropping the bricks from the wheelbarrow upon the plaintiff. Shepard v. Creamer, 160 Mass. 496; Rose v. St. Louis, 152 Mo. 602; Dohn v Dawson, 90 Hun 271; 157 N.Y. 686. (b) For negligence in not placing sufficient planking on the joists where his servants were at work to prevent bricks from falling on the men below them. 2. Whether plaintiff was guilty of contributory negligence in not knowing that there was no covering over him, was, in any view of the case, a question for the jury, and he should not have been non-suited. Hamman v. Central C. & C. Co., 56 S.W. 1094; Swadley v. Railroad, 118 Mo. 268; Smith v Day, 100 F. 244. 3. (a) This defendant, in prosecuting his work on the building, owed at least the same duty to persons lawfully on the premises at work below his men, that he owed to passers-by on the street below. And this is true, regardless of the fact that there was no contractual relation existing between plaintiff and this defendant. (b) He is liable for negligence in dropping the bricks, no matter whom they may have struck. 4. The well-established doctrine in this State is that, "the servant's claim should be barred only by contributory negligence, and that this should not, except in the clearest cases, be inferred, as a matter of law, from mere knowledge of the dangerous conditions." Swadley v. Railroad, 118 Mo. 278; Wake v. Price (Ky.), 58 S.W. 519; Deweese v. Iron Co., 54 Mo.App. 482; Smith v. Day, 100 F. 244; Hamman v. Central C. & C. Co., 56 S.W. 1091. 5. Defendant Baker is liable regardless of the lack of contractual relationship with plaintiff. Dohn v. Dawson, supra; Lottmann v. Barnett, 62 Mo. 159; Griffiths v. Wolfram, 22 Minn. 185. (2) Defendant Green is liable. 1. (a) Because he had general charge and management of all the work. Dettmering v. English (N. J.), 48 L. R. A. 106; Boden v. Demwolf, 56 F. 846; Murray v. Dwight, 161 N.Y. 301; Independence v. Slack, 134 Mo. 66. (b) Because he selected the place where plaintiff should work, and it was his duty to select a safe place for him. (2) When a contractor employs a subcontractor to do certain portions of the work, the contractor is bound to do his part of the work so as to render it safe for the employees of the subcontractor. Johnston v. Ott, 155 Pa. St. 17; Dettmering v. English, supra; Murray v. Dwight, supra; Jones v. Railroad, 125 Mo. 666; Boden v. Demwolf, 56 F. 848. 3. Defendant Green is liable regardless of the fact that the plaintiff sustained no contractual relation to him. Lottman v. Barnett, supra; Griffiths v. Wolfram, 22 Minn. 187; Coughton v. Globe, etc., Co., 56 N.Y. 124; Devlin v. Smith, 89 N.Y. 470.
A. & J. F. Lee and T. J. Rowe for defendants in error.
On September 17, 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 brick work, 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 ten thousand dollars 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 falling and injuring the carpenters who were working on the lower floors, and that it was the 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.
I. The petition bases a right to recover against Baker and Green upon the ground that it was their duty to so carry on the brick work 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 brick work, 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 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 covering was so manifestly necessary to the safety of the carpenters as to make it negligence for the brick contractor not to construct it, the danger to the carpenters of working without such a safety covering was so obvious and imminent as to make it contributory negligence for them to work there. Hence, if the brick contractor was negligent, the carpenters were equally negligent, and therefore there could be no recovery by any of the latter against the former.
For the law is well settled that one who has failed to exercise ordinary care to insure his own safety, can not recover against one who owed him only a duty of ordinary care to protect him from the effects of his negligence. [Barton v. Railroad, 52 Mo. 253; Doss v. Railroad, 59 Mo. 27; Carroll v. Trans. Co., 107 Mo. 653, 17 S.W. 889; O'Donnell v. Patton, 117 Mo. 13, 22 S.W. 903.]
The evidence introduced by the plaintiff to establish a custom, so far as it applied to the brick contractor, only tended to show that it was his duty to call upon the general contractor...
To continue reading
Request your trial