Layton v. Chinberg

• Decision Date: 12 April 1926
• Docket Number: 25440
• Citation: 282 S.W. 434
• Parties: LAYTON v. CHINBERG
• Court: Missouri Supreme Court

282 S.W. 434

LAYTON v. CHINBERG

No. 25440

Supreme Court of Missouri, First Division

April 12, 1926

Foristel Mudd, Hezel & Habenicht and James T. Blair, all of St Louis, for appellant.

Julius T. Muench and W. E. Moser, both of St. Louis, for respondent.

OPINION

RAGLAND, P. J.

Plaintiff was in the employ of defendant as carpenter.While at work on the top of a brick wall of a building which had been run up to the second story, he fell to the ground and received injuries, for which he seeks recovery in this action.

The petition is bottomed on negligence.After alleging that 'the wall upon which he(plaintiff) stood broke and gave way, causing him to lose his balance and to fall therefrom,' it sets forth the grounds of negligence under five specifications.The first is as follows:

'That defendant negligently and carelessly failed to exercise ordinary care to furnish plaintiff with a reasonably safe place to work, in this, that said wall upon which plaintiff was standing and working, as aforesaid, was made of brick recently laid, the mortar of which said brick wall was soft, pliant, and yielding, and said brick wall was weak and not sufficiently strong to sustain the weight of persons, particularly plaintiff, standing and working thereon, while engaged in doing said work, as aforesaid, and was likely to break and give way and cause plaintiff to fall therefrom and to be precipitated and thrown to the ground there and injure him while he was so engaged in doing said work, as aforesaid, and said place was not reasonably safe to do said work, and was dangerous, all of which defendant knew, or by the exercise of ordinary care would have known.'

The second, third, fourth, and fifth specifications are, respectively: Ordering plaintiff to work on said wall, assuring him that it was a safe place to work, failing to inspect the wall before sending plaintiff to work on it, and failing to warn him of its alleged unsafe condition.The answer consists of a general denial and pleas of contributory negligence and assumption of risk.

As the close of plaintiff's case the court gave an instruction in the nature of a demurrer to the evidence.Thereupon the plaintiff took an involuntary nonsuit with leave.His motion to set aside was in due course overruled; hence this appeal.

It is contended by respondent that there was no substantial evidence, either that the wall was unsafe in the particulars alleged or that such condition, if it existed, caused plaintiff to fall.Appellant holds the converse of these propositions.It is necessary therefore to set out with some detail all the evidence having any bearing on these issues.

Plaintiff's case rests upon the testimony of himself and one Schlensker, a fellow workman.In drawing upon it for a statement of the facts and circumstances attending plaintiff's injury, specific portions will be set out at crucial points.

Plaintiff was an experienced carpenter, 49 years of age.He entered the employ of defendant on Monday, February 13, 1922.He began work at 8 o'clock in the morning of that day and was first put to nailing down 'sheetings.'After having been so engaged for something less than two hours, he was directed by defendant's foreman to go to a building across the street, from where he was then at work, and level some joists which had been laid for the second floor.When he reached there this situation disclosed itself to him: There were four, inclosing, 9-inch brick walls, and a partition wall paralleling the east and west walls, built up to a height of 14 or 15 feet above the ground; there were two rows of joists laid in a position to receive the flooring, the ends of one row resting, respectively, on the east wall and the partition wall and the ends of the other on the partition wall and the west wall; each of these timbers was 11/2 inches thick, 8 or 10 inches wide and 14 or 16 feet in length; they were on edge, 16 inches apart and held in position by what are known as 'stay lathes'; the ends of one row projected over from the inside line of the east wall to the extent of 4 inches; the joist at the north end of this row and the one at the south end had been adjusted to the proper level and a chalk line had been stretched from the top of one to the top of the other.The work which plaintiff had been told to do was to bring the ends of the intervening joists in this row which rested on the east wall to the level indicated by the chalk line.This was to be accomplished by lifting the end of each timber that did not come up to the required level and putting under it a block of the requisite thickness.

Plaintiff filled his pockets with blocks which he deemed to be of suitable thicknesses, placed a ladder against the inside of the east wall and climbed to the top.There was a man at one end of the wall working toward the middle leveling joists.Plaintiff concluded to commence at the middle and work toward the other end.Getting up on the wall, he walked a distance of 10 or 12 feet to the place where he would begin, stepping over the ends of the joists as he walked.When he reached that point, he turned, so that he would face the inside of the building, and then with one foot on either side of the joist which was to be brought to a level, the heels and toes of both feet resting on the wall, he stooped and with his left hand raised the timber and with the other placed a block under it.He then with one foot stepped around the next joist, which also required raising, and then brought the other foot into position, so that he would be standing astride the joist, and stooped over to lift it with his left hand.What then happened can best be described in his own language:

'Q.Now, how far had you gotten with the second one?A.I went to lift it and I felt something give under my foot.

'Q.Describe what happened there when you went to lift it?A.Well, it just felt as though everything was falling away from me.

'Q.From under you?A.Yes, sir.

'Q.Then what happened to you?A.I don't know.I went to the hospital. * * *

'Q.Now, after you got in a position where you were going to work on the second joist, what was the first thing you did?A.I went to lift it.

'Q.By that you mean you first stooped over?A.Yes, sir; I stooped over to pick it up.

'Q.And then you intended picking it up with which hand?A.With the left hand.

'Q.Did you succeed in getting hold of the joinst before you fell?A.I got hold of it; that was all.

'Q.Sir?A.I got hold of it.

'Q.Yougot hold of it before you fell?A.Yes, sir; I got hold of it before I fell.

'Q.What were you doing at the moment you started falling, were you putting a peg under it or what were you doing.A.I went to lift it, and something gave way under my feet, and I let loose the hold that I had; that is all I know about it.

'Q.Youdidn't see anything give way?A.No; I didn't see it.

'Q.And when you say something gave way, you mean it felt as though something gave way?A.Yes; felt as though something gave way.'

Plaintiff did not know when the walls had been built; had in fact never seen them until the time when he went to level the joists.He saw nothing then that in any way indicated that it would not be safe to get upon them to do the work he had in hand.Schlensker had helped place the joists on the walls, but was not on the east wall that morning.He was on the west wall, and with respect to it testified as follows:

'Q.Now, in walking over these walls, did you observe anything about them?A.Why, every once in awhile a brick would turn up with me and go back in place.

'Q.Can you tell the jury when all of those walls were finished?A.Why, they were finished on Saturday, being rushed along.

'Q.Were they all finished at the same time?A.As far as I can recollect.

'Q.Now, walking across any part of those walls which were finished on Saturday, what did you say happened?A.Why, bricks would turn up once in awhile.

'Q.What did you say, Mr. Schlensker.A. Bricks would turn up under my feet once in awhile.

'Q.Would turn up under your feet?A.Yes, sir. * * *

'Q.What is understood in the building business or in the building trade by a green wall, do you know?A.By a green wall?

'Q.Yes.A.Why, the mortar is not sufficiently dry.

'Q.The mortar is not sufficiently dry?A.Yes.

'Q.Sufficiently...