Kiehling v. Humes-Deal Co.

• Decision Date: 07 May 1929
• Docket Number: No. 20585.,20585.
• Citation: 16 S.W.2d 637
• Parties: KIEHLING v. HUMES-DEAL CO.
• Court: Missouri Court of Appeals

16 S.W.2d 637

KIEHLING v. HUMES-DEAL CO.

No. 20585.

St. Louis Court of Appeals. Missouri.

May 7, 1929.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by George Kiehling against the Humes-Deal Company and others. Judgment for plaintiff, and defendant named appeals. Affirmed.

Wayne Ely, of St. Louis, for appellant.

Fred. Berthold, of St. Louis, for respondent.

HAID, P. J.

This was a suit instituted against the Humes-Deal Company, a corporation, and two other corporations, to recover damages for injuries sustained by plaintiff.

The petition charged in substance that the Humes-Deal Company was the general contractor for the erection of the building and was in possession and control of and occupying the premises and building and all parts thereof; that the defendant Ætna Bricklaying & Construction Company was a subcontractor doing the brick and tile work and that the A. D. Gates Construction Company was a subcontractor doing the concrete work; that the plaintiff was employed by the Ætna Bricklaying & Construction Company, and he was at work engaged in his duties as a bricklayer and, as such, was an invitee therein and on said building; that there was in said building concrete work in which was embedded a steel loop of wire; that the concrete work was used and required to be used by plaintiff and numerous other employees of all the defendants in the course of their work; that said loop of steel wire embedded in said concrete projected above the top surface of the concrete where plaintiff and other employees of the three defendants were required to go in the performance of their work, and there was no barrier or anything placed around said loop of steel wire, and that the plaintiff and other employees were apt to be injured thereby, and that the place where said loop of wire was embedded in said concrete and projecting above the top of same was dangerous and not reasonably safe; that the employees of the various companies used, and were required to use, said place while said concrete was in its then condition, and that it was necessary for the general contractor to place temporary barriers, boards, blocks, or other covering temporarily over the wire loop in order to avoid the danger and likelihood of injury to the employees described, and in order to make the place reasonably safe and not dangerous for the use and work of the employees; that the defendants had reasonable and adequate opportunity and time to place barriers around said wire loop before plaintiff was injured; that at and prior to the time plaintiff was injured all defendants knew, or by the exercise of ordinary care could have known, all of aforesaid conditions, circumstances, and dangers resulting from said wire loop and could have removed it or placed barriers around same, and could thereby have avoided injuring plaintiff, but carelessly and negligently failed to do so; that it was the duty of all the defendants to place a barrier around said loop so that all employees might be furnished with a reasonably safe place for use and work, but negligently caused, suffered, and permitted said wire loop to remain embedded and projecting as aforesaid, so that the place of work was not reasonably safe; that the plaintiff, while in the performance of his duties and while walking upon and using said concrete, was caused to be thrown with great force and violence when his right foot was caught in said wire loop and sustained the injuries complained of, all of which directly and proximately resulted from the acts of carelessness and negligence of the defendants as aforesaid.

At the trial the plaintiff amended his petition by interlineation by inserting therein the following: "That said defendants, their foreman, agents and servants carelessly and negligently failed to make an inspection of said floor where plaintiff was in the performance of his duties, when by an inspection the defendants, their foreman and agents could have discovered said steel wire loop embedded in said concrete floor in time by the exercise of ordinary care to have removed said loop of steel wire from said floor or to place a barrier around same and could thereby have made said floor reasonably safe for plaintiff and the various employés of the various contractors and could thereby have avoided injuring plaintiff."

The answer of the Humes-Deal Company was a general denial, coupled with a plea of contributory negligence, to which plaintiff filed a general denial.

The facts showed that plaintiff was directed by the foreman of the Ætna Bricklaying & Construction Company to go to work on the southeast corner of the building; that he took his tool sack and plumb rule and proceeded along the path they were using, and as he neared the southeast corner he caught his foot in the wire which was embedded in the concrete, covered with dirt and dust, and which he could not see; that the floor along the path which he went was covered with dirt and dust caused by wheeling and walking over it, and there was brick and lumber and other building material piled around; that there was nothing around the wire loop that caught his foot; that the loop was embedded in the concrete; that he had been laying brick for 28 years and had worked on buildings where concrete was poured and reinforcements put in and wires in the concrete; that it was the custom, with reference to wires that were embedded in concrete and formed a loop, to block it off or place a barricade around it; that wire is embedded in concrete for the purpose of tying in sleepers and ends are left open; that there was a section on the right-hand side, west of the path, where wires were embedded with ends open some two feet from the wire that caught his foot, and that the latter served no purpose whatever in the erection of the building; that both ends of the wire which caught his foot were fastened into the concrete forming a loop; that the concrete floor had been laid a week or 10 days before; that he did not know whether that wire was in place prior to the time the concrete was poured, or whether it was embedded in the concrete at the time it was poured.

On cross-examination he testified that his foreman did not direct him to use any particular route, but just directed him to go over there; that material was piled up all over the floor in different places—brick and lumber, pipe and timber, and dirt—materials which were used in the construction of the building which had to be there because they were needed; that dust and débris was along the runway along the route he went, most of the dust was along that way about one inch deep in places; that he discovered this after his foot was caught; that the wire projected high enough above the concrete to get his toe caught in it; the wire loop stuck up about two inches above the concrete; that he did not see it until he caught his foot in it; that he was looking at the floor while walking along there and did not see the loop; that he had used the runway a couple of times before and had not seen the loop; that if the loop had not been covered he would have seen it; that he had seen others use the runway before he used it; that he was subject to the orders of his foreman and was not subject to the orders of any one else; that he was not subject to the orders and received no orders from any foreman of the Humes-Deal Company; that he was hired by the Ætna Bricklaying & Construction Company, and it was the only one that had a right to discharge him, and that he went to the southeast corner because told to do so by his own foreman, and that no one directed him to take the particular route; that he took the route because it was shorter; that there was dust all around the floor, and he knew it was deeper in places on the short route than it was along the runway; there was no heavy rubbish or material in the path, just dirt and dust; there was nothing to interfere from walking over it; that rubbish consisted of mortar that fell off the sides of wheelbarrows and pieces of brick, and some of it was around where the loop was; there was also some around the long way; that he did not know when the loop was put in the concrete nor how deep it was embedded; and that he did not know whether the loop was ever there before that day or not, but he had never seen it.

On redirect examination, and after the petition was amended as heretofore recited, he testified that he was working on the brick wall for a week or ten days after the...