Miller v. Brunson Const. Co.
Citation | 250 S.W.2d 958 |
Decision Date | 14 July 1952 |
Docket Number | No. 2,No. 42831,42831,2 |
Parties | MILLER v. BRUNSON CONST. CO |
Court | United States State Supreme Court of Missouri |
John S. Marsalek, Moser, Marsalek, Carpenter, Cleary & Carter, St. Louis, for appellant.
Dearing & Matthes, Will B. Dearing, Hillsboro, for respondent.
BARRETT, Commissioner.
In this action against Brunson Construction Company for negligent personal injury a jury has awarded Roland Miller $30,000. Roland is a mechanic, employed by Sidney Weber, Inc., a distributor of automobiles. In order to more readily drive the larger model automobiles up to its repair department it became necessary to enlarge and change the space above the ramp between the first and second floors, and Sidney Weber engaged the Brunson Construction Company to do the work. Before the remodeling could be done it was first necessary to dismantle the small parts department and wreck the space it occupied adjacent to the repair shop on the second floor above the ramp. The parts department was in three tiers or levels above the ramp and on the first day of the work before noon Brunson's employees had removed the first two sections, including the flooring in the second section--a space about ten by twenty-five feet--including one or two joists. Underneath and fastened to the joists was the plasterboard ceiling over the ramp. About 12:30 Roland walked across the joists up to third tier or section which was about eighteen inches higher than the second section for an automobile part and in returning stepped down from the third tier upon what appeared to him to be solid flooring and fell through the plasterboard ceiling onto the concrete ramp below. As the basis of his recovery the plaintiff hypothesized, as he had pleaded, these facts and circumstances and that the material fastened to the joists 'gave the appearance of being solid' and relying upon the appearance he was caused to fall and that the defendant knew that employees of Sidney Weber would be required to use the parts department, knew the condition of the ceiling and its deceptive appearance but 'failed to construct, build and maintain a barricade * * * and * * * failed to provide, construct and maintain a gangplank or other temporary device which would have enabled employees of Sidney Weber, Inc., including plaintiff herein, to have walked across that space where the floor had been removed.'
The appellant, Brunson Construction Company, contends that the trial court erred in failing to direct a verdict in its favor for the reasons, first, that the evidence failed to show any negligence on its part, and, second, that the plaintiff was guilty of contributory negligence as a matter of law. It is also urged, concerning its liability, that the trial court erred in instructing the jury, and in the admission and rejection of testimony, and that the verdict is excessive. As to the first point it is said that it was inherent in the work itself and obvious that a dangerous condition would exist while the defendant was engaged in the wrecking phase of the work ordered by Roland's employer. It is said that neither the plaintiff nor his employer had given any notice that employees of Sidney Weber would enter that part of the premises under repair and under the circumstances the defendant was under no duty to anticipate the plaintiff's presence there, or to anticipate that anyone would attempt the extraordinary course of using the ceiling between the uncovered joists as a place to walk upon. It is in this connection that the appellant seeks to invoke and apply the rule that where an injury or occurrence cannot reasonably be anticipated and would not have happened unless under exceptional circumstances, it is not negligence to fail to take precautionary measures to avoid it. American Brewing Ass'n v. Talbot, 141 Mo. 674, 42 S.W. 679; Mann v. Pulliam, 344 Mo. 543, 127 S.W2d 426. It is urged that Roland voluntarily entered the space in which the wrecking was in process and therefore his injury was due to a risk inherent in the work and the premises and therefore he is not entitled to recover. It is argued that the situation itself suggested investigation and inspection and that Roland voluntarily chose a way attended by danger when a safe way was open to him and for that reason he was guilty of such contributory negligence as to preclude his right to a recovery.
There is no dispute here concerning the general rules upon which the appellant relies; the appellant is not liable for an injury that could not reasonably be anticipated or guraded against by the exercise of ordinary care. McHugh v. National Lead Co., D.C., 60 F.Supp. 17, 20. The appellant, however, is a contractor and as such was in charge of and had control of the stipulated work and therefore is responsible for any wrongful or negligent acts committed by it or its employees while the work is in progress. In this connection the contractor is ordinarily liable 'for injuries occasioned to a servant of the principal employer by negligence on the part of a contractor which produces abnormally dangerous conditions upon premises which remain in the possession of the principal employer while the stipulated work is in progess, * * *.' Annotations 38 A.L.R. 403, 455; 20 A.L.R.2d 868. This general rule has been recognized and applied to employees of another contractor. Smith v. St. Joseph Ry., Light, Heat & Power Co., 310 Mo. 469, 276 S.W. 607, 609; Kiehling v. Humes-Deal Co., Mo.App., 16 S.W.2d 637. There is a duty upon the contractor to not unnecessarily imperil the employees of another contractor or of the principal employer. Loehring v. Westlake Const. Co., 118 Mo.App. 163, 94 S.W. 747. While the appellant was not bound to anticipate a condition or an occurrence that a reasonably prudent person could not foresee or guard against, 'the fact that the precise manner in which the injury occurred was not foreseeable would not be a defense, if from its failure to warn * * * the defendant might reasonably have anticipated that injury of some kind would result.' McHugh v. National Lead Co., supra.
The appellant's argument tacitly concedes the dangerous condition of the premises as 'inherent in the work itself.' Roland, in describing the occurrence, said that he had a 'back-up light' in his right hand, that he took hold of a stock bin on the third tier with his left hand and 'stepped down to what looked solid; it looked like cement under those joists * * * it was a grayish color, just like the old floor they used to have in there' and when he let his weight down on his right foot he immediately fell through the ceiling onto the concrete ramp below. One of the appellant's employees said that the plasterboard ceiling had once been white but was then a 'grayish color.' The carpenter foreman said that it was 'off-white' or 'dirty white.' While it was, of course, obvious to anyone that repairs were in progress and that there was some hazard in using that part of the premises the temporary condition brought about by the work, particularly with respect to the ceiling or floor, was not obvious but deceptive in appearance. Northern Trust Co. v. Elman, 72 F.2d 169. Neither Sidney Weber nor the plaintiff told Brunson's employees that they would use the small parts department while the work was in progress, but Brunson's carpenter foreman said, 'I just took it for granted myself they would have to have a--you would have to get into there sooner or later, so I had made preparations to put a ramp across there.' He said, 'there was only space for one man to go in there to get parts' and, as soon as the joists had been removed, he intended to build a catwalk. There had been no request by Sidney Weber's employees for either a barricade or a catwalk but it may not be said that Brunson Construction Company did not know that Sidney Weber's employees would enter the parts department, and, even if its employees did not actually know it, under the circumstances they should have reasonably anticipated the use. The important thing is that Roland was rightfully in the parts department, the appellant had control of the work in progress in that section of the building, it was hazardous and deceptive in appearance and there was no warning by the appellant and there was no barricade or catwalk and in all the circumstances the appellant's negligence and consequent liability was for the jury. Loehring v. Westlake Const. Co., supra; Kiehling v. Humes-Deal Co., supra; Sinberg v. Falk Co., 98 Mo.App. 546, 72 S.W. 947; annotation 38 A.L.R. 403.
It necessarily follows that instruction one was not prejudicially erroneous in permitting a finding of negligence against the defendant and of ordinary care on the plaintiff's part as there was evidence in support of the hypothesis of the instrucion in these respects. Also, as indicated, it was a fair inference from the evidence that the appellant 'by the exercise of ordinary care could have known that employees of Sidney Weber, Inc., including plaintiff herein, would be required to go to the one remaining section of the parts department' and it was not error to submit the question to the jury, even if it could be said that the instruction submits 'actual knowledge.' Likewise the instruction in hypothesizing failure to erect a barricade (for the purpose of warning or of keeping people out) and failure to construct a gangplank or catwalk (for the purpose of safe use) does not submit repugnant or irreconcilable facts or theories as a basis of recovery and is not erroneous for that reason. Mahan v. Baile, 358 Mo. 625, 632-634, 216 S.W.2d 92, 95. Compare Elliott v. Richardson, Mo.App., 28 S.W.2d 408.
Sidney Weber maintained another and larger parts department in another building across the street and, possibly, Roland could have secured a back-up light by going over to...
To continue reading
Request your trial-
Wilson v. White
...failure to warn * * * the defendant might reasonably have anticipated that injury of some kind would result.'' Miller v. Brunson Const. Co., Mo., 250 S.W.2d 958, 960(4). 'While the likelihood of a future happening is the test of a duty to anticipate, this does not mean the chances in favor ......
-
Cotton v. Henger
...v. Atlas Iron Const. Co., 3 App.Div. 363, 38 N.Y.S. 485; Richards v. O'Brien Bros., 1 Ga.App. 107, 57 S.E. 907; Miller v. Brunson Const. Co., Mo.Sup., 250 S.W.2d 958. Henger also takes the position that he was not an independent contractor because he was subject to the detailed direction of......
-
Lesch v. Terminal R. R. Ass'n of St. Louis
...issue defendant stresses Osburn v. Kansas City So. R. Co., 360 Mo. 813, 230 S.W.2d 856, 861. The plaintiff cites Miller v. Brunson Const. Co., Mo.App., 250 S.W.2d 958, 963; Abernathy v. St. Louis-S. F. R. Co., Mo.Sup., 237 S.W.2d 161, 165; Pinter v. Gulf, M. & O. R. Co., 362 Mo. 887, 245 S.......
-
Gladden v. Missouri Public Service Co., 44418
...occur or the exact manner in which it occurred, citing Lebow v. Missouri Public Service Co., Mo., 270 S.W.2d 713; Miller v. Brunson Construction Co., Mo., 250 S.W.2d 958; Hudson v. Union Electric Light & Power Co., Mo.App., 234 S.W. 869; Buckner v. Stock Yards Horse & Mule Co., 221 Mo. 700,......