Loehring v. Westlake Construction Co.

• Decision Date: 10 April 1906
• Parties: LOEHRING, Appellant, v. WESTLAKE CONSTRUCTION COMPANY and ROEBLING CONSTRUCTION COMPANY, Respondents
• Court: Missouri Court of Appeals

94 S.W. 747

118 Mo.App. 163

LOEHRING, Appellant, v. WESTLAKE CONSTRUCTION COMPANY and ROEBLING CONSTRUCTION COMPANY, Respondents

Court of Appeals of Missouri, St. Louis

April 10, 1906

Appeal from St. Louis City Circuit Court.--Hon. Warwick Hough Judge.

REVERSED AND REMANDED AS TO ONE DEFENDANT AND AFFIRMED AS TO THE OTHER.

STATEMENT.--The action is for personal injuries, bottomed on the alleged negligence of defendants by reason of which it is alleged plaintiff fell from, not a scaffold, but an appliance affixed to a scaffold for the purpose of supporting it, and was injured. There are two defendants. The relation of the appellant is not identical with both and therefore different rules for the admeasurement of duty and liability between the parties obtain. The facts are that the plaintiff, a carpenter, was in the employ of the defendant Roebling Construction Company at the time of his injury and in no manner connected with the other defendant, the Westlake Construction Company. The two companies, however, were engaged as contractors in the erection of the Jefferson Hotel building in the city of St. Louis. The defendant Westlake Construction Company was the general contractor on said building and was engaged in doing the brick work on the outside thereof. The defendant Roebling Construction Company was a subcontractor and engaged in preparing for and putting in concrete floors inside of said building. In the prosecution of the brick work, the Westlake Construction Company erected what is known as a swinging or hanging scaffold for the use of its bricklayers. The scaffold was suspended from the ends of certain beams called "out-riggers" which protruded on a level with the fourth floor from within, about six feet outside of the building. Its mode of construction was about as follows These beams or out-riggers, on the protruding ends of which the scaffold was suspended, were eighteen feet in length, and were placed sixteen feet apart, along on the upper side of the iron or steel cross-beams of the fourth floor of the building. Six feet of the out-rigger protruded outside of the building and twelve feet thereof was inside. On top of the extreme inner end of the out-riggers, a two-inch plank was affixed crosswise, and on top of this plank, immediately over the end of each out-rigger, a four-by-four timber, about eight or ten feet in length, was placed, standing on end perpendicularly, the topmost end of which came within two inches of the iron cross-beams which constituted the framework of the floor above; that is, the framework of the ceiling of the fourth and the floor of the fifth story, and immediately on top of these uprights, a plank two inches in thickness and twelve inches in width was placed crosswise as a plate or cap, immediately beneath and adjacent to the lower surface of the iron crossbeams of said fifth story, so that the pressure upwards from the weight of the swinging scaffold downwards, outside of the building, would tend to tighten the four-by-four upright within the building against this two-by-twelve-inch plate or cap which was in turn tightened or made tolerably fast by means of this pressure against the lower surface of said iron crossbeams, thereby rendering the scaffolding outside secure. It is to be noted that the only purpose of the two-by-twelve-inch plank was as a plate or cap on top of the four-by-four uprights immediately beneath the iron floor beams in the framework of the fifth floor, and to support the scaffold outside. The plaintiff and a companion in the employ of the company, who had neither built nor controlled the scaffold, were engaged as carpenters on the sixth floor in placing boxes around the iron I beams therein as casing in which to build concrete around said I beams in putting in concrete floors, and, in the proper discharge of his work, it became necessary for him to go to the story below, the fifth floor, and with a board, press upwards on the box and hold a portion of said box therewith while his companion nailed the same. There had been no scaffold provided on the fifth floor for this work; in fact, there is nothing in the evidence tending to show that it was anticipated by any one that it would be necessary to go into the fifth story in the performance of this work being done on the sixth floor. Having gone to the fifth story, however, for the purpose mentioned, the plaintiff desired to cross from one side to the other. He could have passed across on an iron beam, the surface of which was three inches, but by doing so he would have been compelled to have swung his body around several of the intermediate iron or steel uprights in the framework of the building. Seeing this two-by-twelve-inch plate or cap on top of the four-by-four uprights mentioned, just beneath the floor-beams and immediately adjacent to the bottom of the three-inch iron beam mentioned, and having seen workmen in other buildings walk on said plank, he chose rather to walk thereon than on said three-inch iron beam, as it afforded a wider surface to walk upon. He stepped down from the upper surface of the beam on which he then was, to the plank or plate eight inches below, and walked thereon, stepping over the iron cross-beams of the fifth floor and passing over two sections in safety, and stepped over one of the beams onto the third section, whereupon said plate, under his weight, slightly deflected from its position, and precipitated him to the floor below, from which fall he sustained injuries on account of which this suit is now before us. The plate on which he stepped deflected only and did not fall from its position, nor did the scaffold outside fall.

From plaintiff's testimony we glean the following salient facts: He is a man forty years of age, a carpenter of many years' experience, in the employ of the Roebling Construction Company, the said contractor engaged in putting in the concrete floors. The plate from which he fell was not the property of, nor had it been erected by, nor was it in any manner under the control of his employer, but was an appliance erected and maintained by the other defendant, the Westlake Construction Company, provided for the purpose of sustaining its scaffold in use by the bricklayers outside of said building. The plate from which he fell was not a scaffold, but, on the contrary, it was only a portion of the support which was outside of the building. The plaintiff testified that he was present and saw the Westlake Construction Company erect the scaffold a few days before and knew that it was erected for the purpose of the bricklayers outside and that this plank or plate from which he fell, was placed there as a support for said scaffold, and not primarily for the purpose of the workmen to walk or stand upon. He said that it was convenient for the workmen to walk on this plank and that it was customary in other places for men to do so; that he had walked on like contrivances or supports on similar scaffolds in other buildings; that he had not, nor had seen other workmen, walk on the plank in this building theretofore; that said plank "was supposed to be braced" in order to hold it in position, to more effectually support the scaffold outside. An experienced carpenter, a witness for the plaintiff, testified to the custom among carpenters of walking on such plank or plate in similar scaffolds and also that it was customary to brace or make fast such plank or plate with angle braces, so that the plank could not slip out of place. This was done, however, for the purpose of rendering the scaffold more secure. It was shown that there was no angle brace affixed to the plate in this case, and for the want of such angle brace, the plate was deflected under the weight of the plaintiff, causing his injury. It appears from the evidence that the scaffold itself was secure and did not fall when the plate became deflected. The work which plaintiff was prosecuting, was not on the fifth floor from which he fell, but was on the sixth floor. His entry upon the fifth floor, however, to press upward on the box above, was legitimate in the proper discharge of his duties. He had not been directed by his employer to go down to said floor nor had he been directed to walk upon or otherwise use the plate in question, nor warned not to do so. The only order shown in the evidence is that the foreman had given plaintiff general directions upon commencing the work, "to put in the boxes the best and quickest way we could put them in."

At the conclusion of the plaintiff's evidence, the court directed a verdict for the defendants, whereupon plaintiff submitted to an involuntary nonsuit; and upon the court declining to set the same aside, he appeals here.

REVERSED AND REMANDED AS TO ONE DEFENDANT AND AFFIRMED AS TO THE OTHER.

Albert L. Schmidt and D. D. Holmes for appellant.

(1) The court erred in instructing the jury in behalf of the defendant, Westlake Construction Company, at the close of plaintiff's case, that under the pleadings and the evidence the plaintiff could not recover. (a) Plaintiff was on the premises as an employee of the subcontractor, and was engaged in doing work in which the defendant, Westlake Construction Company had an interest, and which work the interest of said company made it necessary to be done, and said defendant owed plaintiff a duty arising out of the service which he was performing. The necessity of that service to the said defendant, and the fact of the performance of that service required plaintiff to be where he was. Gerrity v. Bark Kate Cann, 2 F. 246; Wittenberg v. Seitz, 40 N.Y.S. 900; Johnson v Ott, 25 A. 751; Bright v. Barnett & Record Co., 88 Wis. 299; Cleveland, C. C. & St. L. R. Co. v Berry, 46 L. R. A. 38; Dale v. Hill-O'Meara Construction Co., 82 S.W. 1092. (b)...