McElroy v. Swenson Const. Co.

• Decision Date: 08 January 1923
• Docket Number: No. 14587.,14587.
• Citation: 247 S.W. 209,213 Mo. App. 160
• Parties: McELROY v. SWENSON CONST. CO.
• Court: Missouri Court of Appeals

247 S.W. 209

213 Mo. App. 160

McELROY v. SWENSON CONST. CO.

No. 14587.

Kansas City Court of Appeals. Missouri.

January 8, 1923.

Appeal from Circuit Court, Jackson County; Samuel A. Dew, Judge.

Action by Francis J. McElroy against the Swenson Construction Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Cooper, Neel & Wright and J. Stanley Bassett, all of Kansas City, for appellant.

Clif. Langsdale, of Kansas City, for respondent.

BLAND, J.

This is an action for damages for personal injuries. Plaintiff recovered a verdict and judgment in the sum of $6,000, and defendant has appealed.

Defendant urges that its instruction in the nature of a demurrer to the evidence should have been given.

The facts stated in their most favorable light to plaintiff show that on or about the 4th day of October, 1918, and for some time prior thereto, plaintiff was working for the defendant wrapping wire around steel columns for reinforcing concrete to be poured later, when a heavy piece of iron known as an angle iron fell seven stories from above, striking him on his left shoulder, breaking his collar bone in several places. The Bell Telephone Company was erecting a building at Eleventh and Oak streets in Kansas City, Mo. The building covered an area of 150 by 200 feet. The steel framework had been set in place to the eleventh floor. Christopher & Simpson Iron Works Company had the steel contract, and the employees of said company on the day in question were engaged in riveting the steel girders on the ninth floor of the building. The entire tenth floor at the, time of plaintiff's injury was planked over, and on this planking rested a derrick which was being used for raising steel to be set above the tenth floor and to bring up other materials. There was no planking on the ninth floor except such as was necessary to afford scaffolding for the riveters. The eighth floor was entirely planked over except for a space of about 25 feet square known as a "panel." There was no planking on the seventh floor. The sixth floor had been planked over, but this planking had been removed to the tenth floor, except for the space immediately below the panel on the eighth floor.

The rivets being used weighed from 2 ounces to 1½ pounds. They were heated on the eighth floor and thrown to the ninth floor, where the riveters would use them to bolt together the beams and girders. The riveting was completed by the battering down by a riveting machine of the end of a rivet opposite its head. Before riveting the riveters would take off the angle iron that fastened the beam and the column of the steel that had been put in place and put it on a nearby beam. At the time in question one of these angle irons, weighing 20 or 30 pounds, was taken off and placed upon a beam and the process of riveting started. The vibration of the riveting machine jarred the angle iron off the beam. On its way down the angle iron struck a cable, went through the panel on the eighth floor, struck the boards immediately below on the sixth floor, bounced off, continued uninterruptedly down to the second floor, where plaintiff was working and struck him as above described.

There was an ordinance pleaded providing that the contractor for the steel work and the owner of the building should "thoroughly plank over the entire tier of iron or steel beams on which the structure of iron or steel work is being erected, except such spaces as may be reasonably required for the proper construction of such iron and steel work and for the raising or lowering of materials to be used in the construction of such buildings or such spaces as may be designated by the plans and specifications for stairways and elevator shafts."

The testimony shows that these panels in the floors were left open for the purpose of hoisting various materials and tools `from a lower floor to a higher one, and while there is testimony in the record that the open panel on the eighth floor was left open for the purpose of taking up the board and materials thereon, consisting largely of tools, to the sixth floor, the evidence further shows that, instead of taking up the board and material that was left, Christopher & Simpson, on account of steel being delivered on the ground, "went overboard" and started with the derrick to raise steel to be put in place above the tenth floor. So the panel remained open about a week, which caused complaint to be made by the employees of Christopher & Simpson Iron Works Company. Plaintiff had been working on the job about a month. He started with he basement and had got as far as the second floor, where lie was doing the wrapping. He knew that the riveters were working above him; he could see them working when he went to work. He testified that he did not know that there were any holes in the planking above him; that he looked up and saw no daylight. He testified that his foreman told him to do the particular work at the particular place where he was doing it at the time he was hurt. There was no connection between defendant and the Christopher & Simpson Iron Works Company.

The cause of action stated in the petition which was submitted to the jury alleges that the defendant carelessly and negligently ordered and directed plaintiff to work on the second floor of the building while the panel above was open on the eighth floor and the steel riveting gang was working on the ninth floor; that the defendant knew, or could have known by the exercise of ordinary care, "that a piece of iron might and would fall from" the ninth floor through said open panel and strike plaintiff.

Defendant insists that its demurrer to the evidence should have been sustained for tile reason that there was no negligence of the defendant shown; that the ordinance permitted the panel to be left open for the raising and lowering of materials used in the construction of the building; that there was no obligation on the part of defendant to put any planks or flooring in place in the building; that the angle iron was not caused to fall by any person connected with the defendant; that there is no evidence that defendant had any knowledge with reference to the handling of this angle iron or the condition of the flooring; that there is no evidence tending to show that defendant could have anticipated that the servants of Christopher & Simpson would let this angle iron fall so it would strike a cable and be deflected and go down through an opening in the eighth floor and bounce off and go down through the other floors and finally strike plaintiff, who happened to be at the particular place the iron struck when the building was 150×200 feet in area.

We think there is no merit in these contentions. We think there is no question but that the panel was negligently left open by Christopher & Simpson, and that by the exercise of ordinary care defendant could have discovered the situation before it ordered plaintiff to work at the place where he was struck. The presence of this opening with men working with rivets, angle irons, and other materials above and throwing heated rivets to each other, and the fact that the riveting gang was placing angle irons upon beams, and that they would likely fall off by reason of the vibration that was caused by the riveting, all could have been known to defendant by the exercise of ordinary care. It was not necessary to show that defendant could have foreseen everything that intervened to cause the angle iron to fall in the way it did. All that was necessary to show was that defendant could have reasonably anticipated that something might have occurred causing material to fall through the open panel in such a way that it would likely strike its workmen beneath. Mummaw v. S. W. Telegraph & Telephone Co. (Mo. App.) 208 S. W. 476; Wright v. K. C. Terminal Ry. Co., 195 Mo. App. 480, 193 S. W. 963.

The board and the material thereon that had been left on the sixth floor below the open panel were not raised through the opening as was intended, but were left there, and the servants of Christopher & Simpson went to work on something else, and, although protest was made, Christopher & Simpson negligently left the panel open.

While there was no duty upon the defendant under the ordinance to plank over the floor and the allegation of negligence in the petition that was submitted to the jury does not so charge, yet defendant could have discovered by reasonable care that Christopher & Simpson were violating the ordinance and that the leaving open of the panel rendered plaintiff's working place not reasonably safe. Clark v. Union Iron & Foundry Co., 234 Mo. 436, 137 S. W. 577, 45...