Howard v. Fred Schmitt Realty & Investment Co.

• Decision Date: 19 June 1928
• Docket Number: No. 20136.,20136.
• Citation: 7 S.W.2d 448
• Court: Missouri Court of Appeals
• Parties: HOWARD v. FRED SCHMITT REALTY & INVESTMENT CO.

7 S.W.2d 448

HOWARD v. FRED SCHMITT REALTY & INVESTMENT CO.

No. 20136.

St. Louis Court of Appeals. Missouri.

June 19, 1928.

Rehearing Denied July 6, 1928.

Appeal from St. Louis Circuit Court; A. B. Frey, Judge.

"Not to be officially published."

Action by Charles B. Howard against the Fred Schmitt Realty & Investment Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Banister, Leonard, Sibley & McRoberts, of St. Louis, for appellant.

Laughlin, Frumberg, Blodgett & Russell, of St. Louis, for respondent.

DAUES, P. J.

This is a damage suit for personal injuries. Plaintiff recovered a verdict and judgment for $2,500, from which defendant appeals.

The petition is in usual form, charging unsafe place to work. In substance, it alleges that plaintiff, while employed by defendant company as a carpenter, and while working on a building located in the city of St. Louis, fell from a scaffold, and in so falling he was severely injured. It is alleged that an iron beam and wooden timber, described in the petition and on which plaintiff was required to stand while working, constituted an unsafe place to work from, because such standing room or surface was too small to give a secure footing to plaintiff while working, and scienter of defendant is duly alleged.

The answer is a general denial, contributory negligence, and assumption of risk. The reply is a general denial. We set out the evidence, under the rule that the most favorable evidence on the side of the verdict must be taken to test the demurrer to the evidence.

Plaintiff's testimony tended to show that he had been a carpenter for 18 years; had been in the employ of defendant on this particular building for 3 or 4 days before the injury. Defendant was altering the building, converting same from a one-story to a two-story structure. The roof of the old building was raised, and the walls of the second story were being built in. The roof, during that process, was being supported by cribbing or needle work, and I-beams were placed in position to the level of the floor on the second story, and plaintiff and others were engaged in suspending false work from the steel beams, in order to make forms for the concrete floor. This arrangement was resorted to, so the owner of the building could continue his business on the first floor, and it became impossible, under the situation, to place supports or braces on the first floor of the building to carry the false work for the concrete work. The 3-inch iron beams were put in position, running both the length and the width of the building, and the false work was then to be suspended from these beams. This was done by hanging a "soffet" from the beams, and the joists fastened to the "soffet" to form a base for the sheeting, which would constitute the bottom of the form for the slab.

Plaintiff testified that he was working on the east side of the building, a north and south wall, and was placing 2×6 joists, which were 10 feet long, from the steel I-beams, which ran lengthwise of the building to a support on the east wall of the building. His scaffold or footing consisted of an 8×8, which was a part of the needle work. The 8×8 extended about 18 inches out from the cribbing, so that the surface as a scaffold consisted of a protruding piece of timber 8 inches wide and 18 inches long. There was an I-beam, running at right angles to this timber, some 18 inches away. At the time of the injury plaintiff was engaged in placing the joists in place. In order to make the joist fit, it was necessary for him to saw off about an inch. The iron beam, which he says was 18 inches from where he was standing, was behind him, and the next beam was about 20 feet away to the north. Plaintiff says that, as he made the last cut on the joist, the joist moved sufficiently, not being fastened at the other end, that it "shook off," throwing him off balance, and caused his fall. He said he did not have time to make a leap to safety. Plaintiff said that a few days prior to the accident, and while working on this job, he discovered that some of the joists were too long to fit; that he went to the foreman of defendant company, one Ben Heitz, and complained about this condition, and told the foreman that he wanted the joists cut off on the ground, before they were handed up, and that the foreman told him to go ahead and cut them off as best he could. He said that, when this particular joist was being adjusted, he again told the foreman that it was too long, and he was again told to do the best he could. He said, in doing this work, he was required to stand on this 8×8 timber, and then hold the 2×6 joist in one hand, and saw it with his right hand, holding the joist flatwise.

He testified, further, that it would have been possible for defendant to have laid two 2×12 planks lengthwise from one I-beam to another, for the carpenters to work on, but that by so doing the work it would have impeded or interfered with the work to the extent of about 5 per cent. By making such a scaffold, it would have provided a space 27 inches wide for the men to stand on; however, the planks would have to be moved whenever the joists were hung in position.

This is a sufficient recital of the facts to determine the first point made on this appeal, as to whether the demurrer to the evidence should have been sustained. So much of the record as comes into play on the other points will be set out later on in the opinion. Though there are several assignments of error, and on questions which are not entirely free from debate, respondent's counsel have not cited a single authority to support plaintiff's position. Had they done so, our labors would have been somewhat lightened.

We think the demurrer to the evidence was properly overruled. We think a case was made for the jury as to whether defendant exercised ordinary care to furnish this workman a reasonably safe place in which to work. We must view plaintiff's evidence in the light most favorable to him, and give him all favorable inferences that may fairly and legitimately be drawn therefrom. The contradictory evidence, though it may be strong, must now be disregarded. Whiteaker v. Railroad, 252 Mo. 438, loc. cit. 452, 160 S. W. 1009. And this is even so where we feel that the verdict is against the weight of the evidence.

The master owes his servant the duty to exercise reasonable care to furnish him a reasonably safe place to work as the conditions reasonably permit, and to keep it so, and is liable for injuries occasioned by his negligence in this regard. Hall v. Railroad, 165 Mo. App. 114. 145 S. W. 1169; Clark v. Iron & Fdy. Co., 234 Mo. 436, loc. cit. 449-450, 137 S. W. 577, 45 L. R. A. (N. S.) 295.

And where the work is...