Miller v. Brunson Const. Co., 42831

• Court: United States State Supreme Court of Missouri
• Citation: 250 S.W.2d 958
• Docket Number: No. 2,No. 42831,42831,2
• Parties: MILLER v. BRUNSON CONST. CO
• Decision Date: 14 July 1952

Page 958

250 S.W.2d 958 MILLER
v.
BRUNSON CONST. CO. No. 42831. Supreme Court of Missouri, Division No. 2. July 14, 1952.
Motion for Rehearing or to Transfer to Court en Banc Denied
Sept. 8, 1952.

Page 959

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

Page 960

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...