Malone v. Franke

• Decision Date: 01 July 1925
• Docket Number: Mo. 25012.
• Citation: 274 S.W. 369
• Parties: MALONE v. FRANKE.
• Court: Missouri Supreme Court

274 S.W. 369

MALONE v. FRANKE.

Mo. 25012.

Supreme Court of Missouri, Division No. 1.

July 1, 1925.

Appeal from St. Louis Circuit Court; George E. Mix, Judge.

Action by Rodger Malone against Henry Franke. Judgment for defendant, and plaintiff appeals. Affirmed.

Earl M. Pirkey and Kenneth Teasdale, both of St. Louis, for appellant.

Sam B. Jeffries, Arthur E. Simpson, and Paul F. Plummer, all of St. Louis, for respondent.

SEDDON, C.

Action for damages for alleged personal injuries. Plaintiff's petition charges that on August 4, 1922, plaintiff was in the service and employment of defendant as a hod carrier upon a building being constructed by defendant at Minnesota avenue and Osage street in the city of St. Louis; that plaintiff in the discharge of his duty under defendant was on said day on a walk, scaffold, or platform furnished and provided by defendant; that said walk at the time of plaintiff's injury, and for a long space of time prior thereto, was not reasonably safe for plaintiff to be upon or to use in discharging his duty by reason of a plank or board therein being at said times old and worn and weakened and having knots and knot holes in it and being of insufficient strength to bear the weight incident to its ordinary use, or to bear the weight of plaintiff and his hod of material when he was upon said plank and using it for ordinary and reasonable use in the discharge of the duty of his said employment under defendant; that defendant knew, or by the exercise of ordinary care would have known, of the described condition of said walk or scaffold and of the danger to plaintiff therefrom before plaintiff was injured, in time, by the exercise of ordinary care, to have remedied said condition and averted said injuries, but defendant negligently failed to do so, and, after defendant knew, or by the exercise of ordinary care would have known, of said condition, defendant negligently furnished and provided said walk or scaffold to plaintiff to use in discharging his duty without protection or notice of any kind to plaintiff; that, by reason of the alleged negligence of defendant, and while plaintiff was in the discharge of his employment upon said walk, a plank in said walk broke, because it was old and worn and weakened, and had knots and knot noles in it, and was of insufficient strength to bear the weight incident to its ordinary use, or to bear the weight of plaintiff with his hod of material when he was on said plank and using it in discharging the duty of his employment, thereby causing plaintiff to fall and to strike, and to be struck by, objects, whereby plaintiff received certain alleged injuries, for which he prayed damages in the sum of $10,000.

The answer is a general denial, coupled with the plea that plaintiff was contributorily negligent in that—

"At the time and place mentioned in plaintiff's petition, there was constructed for the use of plaintiff and his colaborers a certain runway composed of planks sufficient to bear the weight incident to their use as such runway by the plaintiff and his colaborers in their duties as hod carriers; that, on the occasion in question, plaintiff negligently and carelessly stepped and walked off of said runway, and negligently and carelessly stepped upon a certain plank or board, which was not a part of said runway and not intended for use as such, and which had not been furnished by defendant; that plaintiff knew, or by the exercise of ordinary care would have known, whether or not such board was of sufficient strength to bear the weight of plaintiff and his hod of material; that the said board not a part of said runway broke, and any injuries which plaintiff sustained were by reason thereof."

The reply is a general denial.

The defendant was a subcontractor for the brick construction work upon the building in question, which was a double flat building, having a partition wall running through the building from the east, or front end, to the west, or rear end thereof. On the day in question, the bricklayers were working on the second story and plaintiff and three other laborers were engaged in carrying brick from a pile in the rear of the building, through the west or rear door over a runway laid across the joists on the first floor to a ladder resting against the north side of the partition wall about midway between the front and rear of the building, and then up the ladder to the bricklayers on the second floor.

Plaintiff testified that he reached the building about 25 minutes before 8 o'clock on the morning of his alleged injury and then saw the defendant and his sons laying the runway; that the runway was two boards wide, and was constructed of sheeting boards about an inch, or slightly less, in thickness laid side by side; that runways are usually made out of scaffold boards, which are stronger and thicker than sheeting boards. Plaintiff began his work at 8 o'clock and claims to have been injured a half hour later. He testified that he was carrying a hod loaded with 18 bricks on his right shoulder, and, as he turned upon the runway to step onto the ladder a board of the runway in front of and between the legs of the ladder broke, causing him to fall through the joists of the floor upon his knees, resulting in injuries to his back and head. He testified:

"There were some knots and it looked like some bug holes or something" in the broken board. "The board was broken right at the knot, right across, broke right at the knot; there were several knots in the board, but it was broke right at the knot."

The testimony of plaintiff's witnesses tended to substantiate that of plaintiff himself, to the effect that the runway was constructed of sheeting boards of yellow pine and that one of these boards of the runway immediately in front of the ladder broke at a knot or knot hole under the weight of plaintiff and his hod of brick; furthermore, that there were no other boards lying around on the floor, except the boards constituting the runway itself.

Defendant's evidence, on the other hand, tended to prove that the runway was built 4 or 5 days prior to plaintiff's alleged injury by laborers engaged on the work, and not by defendant or his sons; that it was built of scaffold boards 114 inches thick, which were the boards ordinarily and customarily used for such purposes; that the runway was 3 boards wide and, immediately in front of the ladder, it was 5 boards wide; that an examination of the runway made after plaintiff claimed to have been injured showed no broken board in the runway itself; that the same runway was used without change or repair thereafter until the building was completed; that there were about 7 sheeting boards lying north of the runway, used or placed there by the carpenters, but these boards formed no part of the runway and "there was about 1 foot space between this runway and those boards." Several of defendant's witnesses, after the accident, saw a broken sheeting board north of the runway, but testified that the broken board was no part of the runway. Defendant testified that he had no lumber on the work except the scaffold boards, which he took from place to place wherever he worked. The trial resulted in a verdict and judgment for defendant, from which plaintiff appeals.

I. Appellant assigns error in the giving of defendant's instructions, numbered D-1, D-2, and D-3, respectively.

Instruction D-1 charged the jury if they found and believed from the evidence that—

"Plaintiff failed to use said runway or gangway, and walked off of same, and walked upon a certain plank or board which was not a part of said runway, and not intended to be used as such, and which had not been furnished by the defendant for such use, and that plaintiff knew, or by the exercise of ordinary care would have known, that said plank or board was not of sufficient strength to bear the weight of plaintiff and his hod of material, if you find that said board was not of sufficient strength to bear his said weight and his hod of material, then plaintiff was guilty of negligence on his own behalf; and if you find the facts to be as above stated and that such negligence, if you so find, directly contributed to cause the injuries of which plaintiff complains, if any, then plaintiff is not entitled to recover, and your verdict will be in favor of the defendant."

It is urged that there was no evidence upon which to base the instruction; that there is no evidence in the record that plaintiff walked or stepped off the runway upon another board which was not a part of the runway, or that plaintiff knew, or by exercise of ordinary care could have known, that such "imaginary" board (so called) was of insufficient strength to bear the weight of himself and his hod of material. We think, however, that the instruction is within the purview both of defendant's answer and the evidence. Defendant testified that there was no broken board in the runway, but—

"I seen there was a board down there of the carpenters that was broke in two; that was north of the runway there. There were sheeting boards, about 7 of them, lying north of my runway, but the carpenter had gotten his laborer to stand up some of those boards. There was `about 1 foot space between this runway and those boards."

Henry Franke, Jr., testified:

"There were several sheeting boards laying fiat there when I came down. The sheeting boards I saw when I came down were north of the runway; had no connection with the runway."

Charles W. Waking, the general contractor upon the building, and who had direct charge of the carpenter work, testified:

"I remember the day Malone was hurt; was up on the top looking over the men putting down the ceiling joists, when one of Mr. Franke's laborers came up with a hod of brick and claimed he was hurt. He said the boards broke downstairs and I went down the ladder to see what it was, and, after I came down, I seen that one of the sheeting boards had been broken in half, and...