McGrath v. Fogel

• Decision Date: 07 February 1916
• Docket Number: No. 11813.,11813.
• Citation: 182 S.W. 813
• Parties: McGRATH v. FOGEL et al.
• Court: Missouri Court of Appeals

182 S.W. 813

McGRATH v. FOGEL et al.

No. 11813.

Kansas City Court of Appeals. Missouri.

February 7, 1916.

Rehearing Denied February 21, 1916.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

"Not to be officially published."

Action by John McGrath against M. L. Fogel and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Battle McCardle and Francis L. Barry, both of Kansas City, Mo., for appellants. Edw. E. Naber, of Kansas City, Mo., John W. Perry, of Kansas City, Kan., and R. J. Smith, of Kansas City, Mo., for respondent.

TRIMBLE, J.

Plaintiff, a plasterer and cement finisher, employed by defendants to plaster and point up a building erected by them, was required by the nature of his work to stand upon a scaffold constructed for him by defendants. The scaffold thus prepared for him by his employers consisted of a board 12 feet long 1 foot wide and 2 inches thick, laid upon two trestles or wooden horses 7 feet high. While plaintiff was standing upon this scaffold, engaged in pointing up the ceiling of one of the rooms, the board broke, and threw him to the floor seriously injuring him. The break occurred at a point where there was a large knot in the board; and at this same place, on the underneath side, at the edge, a cut had been made by a saw, and the board was "brash" and "crossgrained" at the knot. These defects, however, were not observable to plaintiff when he got upon the scaffold, for the reason that they were concealed by cement, lime mortar, plaster, and dirt, with which the board was covered. Plaintiff recovered judgment in the sum of $1,675, and defendants have appealed.

As the verdict was for plaintiff, the evidence must be accepted in the aspect most favorable to him. Viewing the evidence in that light, it appears that it was no part of plaintiff's duties, or of his work, to furnish or construct the scaffolds upon which, as a plasterer and cement finisher, the plaintiff would do his work. Nor did plaintiff do anything toward constructing the scaffold or putting it together.

The defendants were contractors engaged in erecting the building. Oakes was their foreman, who directed the men where and when to work, and also how it should be done. He looked after the carpenters, laborers, and plasterers, gave them orders and directions as to the work, and told the men what materials to use. Naylor was a general or common day-laborer who worked about the building, carrying lumber, wheeling sand, and rock, cleaning, sweeping, and carrying out trash, wheeling dirt, and doing such other general labor he was told to do by the foreman.

At the time of plaintiff's injury the building, a creamery, was practically completed, but the ceiling of that portion of the basement known as the "churn room" had to be "pointed up." One of the defendants directed plaintiff to do this work. The ceiling of this room was 13 feet high, and the work required a scaffold about 7 feet high on which the plaintiff would stand in doing his work. Shortly before plaintiff began this work he told Oakes, the foreman, that he would be working in the basement, and would need a scaffold. Oakes replied, "All right; I will have a scaffold built for you," or words to that effect.

When the defendants first came to the job, they brought certain planks or lumber for scaffolding purposes; they were planks selected and brought to the job by defendants for that specific purpose. They were used in that way throughout the building. A few days before plaintiff's injury, about 12 or 15 of these scaffolding boards were put in a pile in the basement. They were put there for use in such further scaffolding as might be needed in giving the finishing touches to the building, and so that they would not be taken away from the building along with the contractor's other paraphernalia.

Agreeable to the promise he had made plaintiff, Oakes told Naylor, the laborer, to go down and fix up the scaffold for McGrath to work on, and directed him to get the board therefor out of the pile of scaffolding boards which had been placed and left in the basement as above stated. The trusses or wooden horses were also in the basement, having been made by the carpenters and used in the scaffolding necessary in the prior work on the building. Naylor did as he was told, and, obtaining one of the scaffolding boards piled in the basement as aforesaid, made a scaffold as stated in the commencement of this opinion. The defendants' evidence shows that the usual, ordinary way and custom of making a scaffold for the kind of work plaintiff was going to do was to place one board of the dimensions hereinbefore given across two trestles; that only one plank was generally used and was sufficient. After said scaffold was arranged, plaintiff went to work thereon, and Naylor became his "helper" to mix plaster and bring it to plaintiff as needed, etc. During the progress of the work the plank suddenly broke, and let plaintiff fall to the hard cement floor, resulting in his injury.

The theory on which plaintiff's case was submitted to the jury was in strict accord with the facts as outlined above. The contention that plaintiff is not entitled to recover is based upon the view that it was...