Meyer v. Wells Realty & Investment Co

• Citation: 292 S.W. 17
• Decision Date: 14 March 1927
• Docket Number: 25866
• Parties: MEYER v. WELLS REALTY & INVESTMENT CO
• Court: Missouri Supreme Court

292 S.W. 17

MEYER v. WELLS REALTY & INVESTMENT CO

No. 25866

Supreme Court of Missouri, Second Division

March 14, 1927

Igoe Carroll, Higgs & Keefe, of St. Louis, for appellant.

Jones Hocker, Sullivan & Angert, of St. Louis, for respondent.

OPINION

WHITE J.

The plaintiff, injured by a fall from a scaffold furnished him by his employer, the defendant, sued for damages. The trial court sustained a demurrer to his evidence, and the plaintiff appealed.

The petition alleges a violation of section 6802, R. S. 1919, as follows:

'That defendant negligently failed to have said scaffold well and safely supported and of sufficient width and so secured as to insure the safety of plaintiff while working thereon, and that defendant negligently furnished said scaffold for plaintiff's use in making said repairs and negligently required him to stand on said scaffold in such work of repairing without having said scaffold safely supported and of sufficient width and so secured as to insure the safety of plaintiff while working thereon, contrary to the statutes in such cases made and provided.'

The plaintiff was assistant to one Mr. Mason employed as janitor by the Wells Realty & Investment Company. The plaintiff under the direction of Mr. Mason, was put to work April 21, 1923, cleaning the office of Smith-Moore Stock & Bond Company. His work was washing the ceilings. He was provided with two stepladders and a plank to be placed upon the steps reaching from one ladder to the other. The plank consisted of two boards nailed together, making one strong plank. It was about 11 or 12 feet long, and about 12 inches wide. The stepladders were collapsible and each had six steps; the plaintiff supposed they were six-foot ladders. From among stepladders and planks for the purpose the plaintiff selected the two ladders and the plank, which did not differ from the other ladders and planks. The janitor, Mr. Mason, was not present at any time during the progress of the work. The plaintiff set the ladders along the wall where he had to work, placed the plank upon them, and proceeded with his work. He had two buckets. One bucket contained water and a powder with which he first washed the walls and ceiling; the other bucket contained clear water with which he afterwards rinsed the walls and ceiling. He explained how he fell, by saying:

'While I was washing the ceiling, the ladder slid over, and I fell.'

And then explained further:

'The foot of the ladder slid over to one side and overbalanced me, and I fell.'

'When the ladder slid, that threw you off your balance, did it? A. Yes.'

On cross-examination he reiterated that statement in explanation of his fall, and repeated that the slipping of the ladder caused him to lose his balance.

I. The appellant claims that the defendant furnished him with a scaffold, and the fact that he put the parts together, the ladder and the plank, so as to form a scaffold, did not alter that situation. There was only one way by which the ladders and the plank could be placed so as to form a scaffold, and the foreman, or janitor, Mr. Mason, instructed plaintiff how to put them together. This is the way plaintiff explained that instruction:

'Q. Now, when you first did that work, what instructions, if any, did you receive from Mr. Mason about the kind of a support that you should use to stand on in cleaning a ceiling? A. Well, just take the two stepladders and put them down and put a board on; that is all.

'Q. Did he do that, or did he demonstrate how it was to be done? A. Well, he would do it, or I would do it.

'Q. When you first did that work, who told you to place the ladders in that way and to place the board across? A. Mr. Mason.

'Q. On the 21st day of April did you receive any order from Mr. Mason as to what kind of work you should do? A. Yes, sir.

'Q. What order did he give you, or what did he say to you? A. He told me in the afternoon to wash those ceilings on the second floor.'

From this it will be seen that the only instruction his superior gave him was to place the plank along from one ladder to the other -- an instruction entirely superfluous, because, if he had not intelligence enough to know that he could not do the work at all. In explaining how Mason demonstrated it, he said: 'He would do it, or I would do it.' There is nothing in this indicating instruction further than the placing of stepladders and adjusting planks upon them. There was no instruction as to the spread of the stepladders, the distance apart they should be. how far the plank should extend beyond its supports, nor as to how to place the feet of the ladder so as to give them security. All that was left to the plaintiff. He testified that the ladders were placed further apart or closer together as the occasion required. He evidently put them in such position on the floor as he thought best.

The allegations of the petition follow almost exactly the language of the statute. The negligence alleged is that the defendant failed to have the scaffold well and safely supported, of sufficient width and so secured as to insure the safety of plaintiffs while working thereon. There is nothing in the evidence to show that insufficient width of the plank had anything to do with the fall, or that the supports were insufficient. It is not claimed that the planks or the ladders were not strong enough to support the weight of the man and his buckets. We are left entirely in the dark as to why the scaffold was not sufficiently secured. Was there any necessity of fastening the plank to the stepladders, or of securing the feet of the ladders so as to prevent their slipping? The boss gave no direction in regard to that. So far as the evidence shows, it was left entirely to the discretion of plaintiff as to how the plank upon the ladders and the feet of the...