Howard v. S. C. Sacks, Inc.

• Decision Date: 04 December 1934
• Docket Number: No. 22939.,22939.
• Parties: HOWARD v. S. C. SACKS, Inc.
• Court: Missouri Court of Appeals

76 S.W.2d 460

HOWARD v. S. C. SACKS, Inc.

No. 22939.

St. Louis Court of Appeals. Missouri.

December 4, 1934.

Rehearing Denied December 18, 1934.

Appeal from St. Louis Circuit Court; Robert J. Kirkwood, Judge.

"Not to be published in State Reports."

Suit by Charles B. Howard against S. C. Sacks, Inc. From a judgment for plaintiff, defendant appeals.

Affirmed.

Ely & Ely, of St. Louis, for appellant.

Banister, Leonard, Sibley & McRoberts and Earl Susman, all of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for damages for personal injuries sustained by respondent, who was plaintiff below. There was a verdict and judgment in favor of plaintiff and against appellant, defendant below, in the sum of $3,938. Defendant brings the case to this court by appeal.

Plaintiff's petition alleged that on August 7, 1929, he was in the employ of the Kopman Construction Company engaged in the erection of the Mark Twain Hotel Annex in the city of St. Louis; that on the day named, while discharging his duties in assisting in the moving of a scaffold in the dining room of the hotel named, he was injured by the falling of a box of tile belonging to and under the control of defendant. It was averred that plaintiff's injury resulted solely and directly from the negligence of defendant, in "that the men employed by the defendant, without the knowledge or consent of the plaintiff, and by the permission and authority of the defendant, and all of which the defendant had full and complete knowledge, moved and placed the tile box standing on edge and in an insecure and unstable position, under a scaffold which was near the middle of the dining room, where it was likely to fall upon and against the men working in said room, and particularly the plaintiff."

The petition alleged that plaintiff sustained broken bones in his left foot from which he suffered great pain, and that he lost the earnings of his labor for a period of about ten weeks amounting to $850. It was also alleged that plaintiff will continue to lose wages and suffer impaired earning power in the future; that his left foot has been permanently weakened and impaired. Further allegations in the petition charged that plaintiff had expended large sums of money for medical aid, after which there was a prayer for damages in the sum of $7,500.

Defendant filed an answer containing a general denial coupled with a plea of contributory negligence, in which it was alleged that the tile box mentioned in plaintiff's petition was, at all the times complained of, in full, open, and obvious view of plaintiff, and that plaintiff knew, or by the exercise of ordinary care would have known, of its position and condition as to whether it was in an insecure and unstable position, and that, if said box was in an insecure and unstable position and was likely to fall against plaintiff by reason of its position, then plaintiff was guilty of negligence directly contributing to his injuries, in that he negligently failed to take notice of said box and of its condition and position and negligently failed to avoid it.

Counsel for defendant very earnestly contend that the court erred in refusing to give an instruction in the nature of a demurrer to the evidence, which they offered on behalf of defendant at the close of the whole case.

In support of this contention it is argued that plaintiff failed to make a case under the charge of negligence in his petition, in that he failed to show that the box, immediately before it fell, was unstable, wobbly, or insecure, or that defendant could reasonably have anticipated that it was likely to fall.

It appears from the evidence that plaintiff was a carpenter foreman working for the Kopman Construction Company. On the day he was injured he was supervising work being done by carpenters in paneling the walls of the main dining room of the Mark Twain Hotel, which was then being erected. At that time the defendant company was installing electrical work in the main dining room and an electrical oven in the basement of the hotel. At about 8 o'clock on the morning in question a box containing tile was delivered to the premises by a "heavy hauler." It was taken in charge and brought into the main dining room of the building from the sidewalk by defendant's employees, among whom was Herman Cuba, defendant's foreman.

According to plaintiff's testimony, the box was about five feet long, five and one-half feet high, and twelve inches in width. There was testimony showing that a band of wood ran around each end of the box, the bands being seven inches wide and seven-eighths of an inch thick; that the box rested on these bands, and that it weighed approximately one thousand pounds.

It is undisputed that the tile contained in the box was to be used by defendant in the basement of the building in installing an electrical oven.

There was testimony to the effect that, under the rules of the trades unions of the mechanics working on the job, the handling and moving of the box of tile was regarded as work which "belonged to the electricians," and that the carpenters "had no right" to handle it.

Plaintiff sustained his injury about 8:30 a. m. He testified that, when he first saw the box shortly after 8 o'clock that morning, it was in the west end of the dining room near the main entrance. He was not certain at first whether or not it was resting on rollers at that time, but said "to the best of my knowledge they had it on rollers." Later he testified it was off the rollers at that time. He testified that he spoke to Herman Cuba, who "was electrical foreman and had charge of handling this box," and told Mr. Cuba "the box was kindo' shaky and it was unsafe and I wanted him to lay the box down on its side on the floor." When asked if Mr. Cuba complied with his request to lay the box down on its side, plaintiff said that Mr. Cuba objected and told him it was too heavy to lay down.

Plaintiff further testified that the next time he saw the box it was right up against the door jamb at what was called the waiters' entrance to the dining room. He stated that he again spoke to Mr. Cuba about the box and "told him he put it right in our way in regard to our carpenter work"; that he asked Mr. Cuba to move the box, but that Mr. Cuba "objected to moving it on account of he wanted to put it in the basement and he said it was heavy and he didn't want to be moving it." Plaintiff testified that he did not see the position to which the box was moved after plaintiff had requested Cuba to move it away from the door-jamb because he (plaintiff), being foreman on the job, was in and out of the dining room.

The evidence shows that the carpenters in carrying on their work of paneling in the dining room were using a scaffold made of two trestles which, according to plaintiff, were about "six foot to seven foot high" with boards laid on the top; that the scaffold was about twelve feet long and about six feet wide. There were no windows in the dining room, and such light as there was in the room came from electric lights in the ceiling, one light being in the middle and one at each end of the dining room. From the testimony of various witnesses it appears that there was some débris, waste, and rubbish lying around on the floor of the dining room resulting from the carpenter and electrical work being done. The floor was made of concrete. The room was about twenty-four feet wide and sixty feet long according to plaintiff's testimony.

Plaintiff testified that at the time the accident occurred he was helping some of the carpenters to move the scaffold which was then on the north side of the dining room near the waiters' entrance. It appears that three other men and plaintiff each took hold of one of the corners of the scaffold for the purpose of moving it westwardly along the north wall of the room, plaintiff being on the southeast leg of it; that there was a brace halfway between the top and the bottom of that portion of the trestle which plaintiff took hold of so that he was not required to stoop over to assist in moving the scaffold. When asked what happened when he started to move with the scaffold, plaintiff answered: "Well, this box that we had, it fell over and caught me on the leg." Plaintiff said that the box knocked him down and remained on his left foot until the other men lifted it off. He testified that he did not see the box and did not know it was under the scaffold at the time it fell on him; that the first knowledge he had of the box being under the scaffold was when he and the other men started to move the scaffold.

On cross-examination plaintiff testified that he had been superintendent on the job, but at the time of the accident was carpenter foreman; that Herman Cuba was foreman of the electrical workers for defendant company; that he (plaintiff) had nothing to do with the installation of electrical work. In this connection plaintiff testified: "Mr. Cuba was foreman for the electrical work, and I didn't have any control over his work." Plaintiff stated that at the time of the accident he had only taken a few steps in the moving of the scaffold when the box fell on him; that when it fell over it hit him on the right leg first, turned him around, and fell on his left foot. When asked if he knew whether one of the men assisting in moving the scaffold had knocked against the box, or if he knew what had caused it to fall, plaintiff answered: "I couldn't say; no, sir."

Defendant argues that there was no proof that the box was unstable or insecure in its last position under the scaffold immediately before it fell, and that, in view of the specific charge in plaintiff's petition that the box was placed by defendant in an unstable position, plaintiff utterly failed to make a case for the jury.

In determining whether or not the court erred in overruling defendant's demurrer to the evidence at the close of the whole case, we must, under the long-established rule, take pl...