Miller v. Collins

• Decision Date: 03 July 1931
• Citation: 40 S.W.2d 1062,328 Mo. 313
• Parties: William Miller v. Roy Collins, Appellant
• Court: Missouri Supreme Court

40 S.W.2d 1062

328 Mo. 313

William Miller v. Roy Collins, Appellant

Supreme Court of Missouri

July 3, 1931

Respondent's Motion to Modify Order Sustained and Opinion Modified June 5, 1931.

Appeal from Jackson Circuit Court; Hon. Clarence A. Burney Judge.

Affirmed (with perpetual stay of execution against defendant).

Lathrop Crane, Reynolds, Sawyer & Mersereau and Winston H. Woodson for appellant.

(1) The plaintiff failed to make a case for the jury and the defendant's demurrer should have been sustained. Cadwell v. Stove & Mfg. Co. (Mo.), 238 S.W. 415; Forbes v. Dunnavant, 198 Mo. 193; Watkins v. Bunker Co., 16 S.W.2d 38; Probst v. Motor Co., 16 S.W.2d 1005; King v. Terry, 14 S.W.2d 969; Kube v. Coal & Mining Co., 209 S.W. 615; Smith v. Light & Power Co., 128 S.W. 779; Fraser v. Lumber Co., 45 Minn. 235, 47 N.W. 785; Hoar v. Merritt, 62 Mich. 386, 29 N.W. 15; Henson v. Stave Co., 131 S.W. 931. (2) The court erred in giving plaintiff's instruction numbered 1. Lackey v. United Rys. Co., 288 Mo. 120; Dunsmore v. Hartman, 256 S.W. 1031; Cassin v. Lusk, 277 Mo. 663; State ex rel. Long v. Ellison, 272 Mo. 571, 199 S.W. 984; Glenn v. Car & Foundry Co., 294 S.W. 1022; Howard & Brown Realty Co. v. Burman, 212 Mo.App. 401. (3) The plaintiff adopted an unsafe position by standing or stepping over onto the 4 x 4, when he might have adopted a safe method. Therefore he was injured because of his own negligence, and this defendant is not liable. Hunter v. Candy Co., 307 Mo. 656, 271 S.W. 800; Reynolds v. Ice & Storage Co., 184 S.W. 934. (4) The court erred in limiting defendant's counsel in the use of depositions and the transcripts of the two former trials on the cross-examination of plaintiff's witness Ford. Peppers v. Ry. Co., 316 Mo. 1104, 295 S.W. 757; Wilson v. Refining Co., 7 S.W.2d 445; Shull v. Kallauner, 300 S.W. 555. (5) The court erred in its ruling in permitting plaintiff's counsel to make, in the course of his argument to the jury, improper, prejudicial, unfair and illegal remarks. Bobos v. Krey Packing Co., 19 S.W.2d 630; Burns v. McDonald, 252 S.W. 984; Miller v. Clay Products Co., 219 Mo.App. 590; Boles v. Railway Co., 271 S.W. 851; Crane v. K. C. Southern, 203 S.W. 640, 199 Mo.App. 448; Neff v. Cameron, 213 Mo. 371; Atkinson v. United Rys. Co., 286 Mo. 634. (6) The verdict was grossly excessive, indicating passion and prejudice on the part of the jury. Morris v. Cement Co., 19 S.W.2d 865; Vaughan v. Terminal Ry. Co., 18 S.W.2d 62.

Clif Langsdale for respondent.

(1) Defendant's demurrer was properly overruled. Gale v. Rolling Mills Co., 140 S.W. 77; McGrath v. Fogel, 182 S.W. 813; Reeder v. Lime Co., 107 S.W. 1016. (2) There was no error in giving plaintiff's instruction numbered 1. Davidson v. Transit Co., 109 S.W. 583; Strobier v. Transit Co., 102 S.W. 651; Hoover v. Terminal Ry. Co., 227 S.W. 77; Curtin v. Ry. Co., 232 S.W. 215; Patton v. Ebeker, 232 S.W. 762; Midwest National Bank & Trust Co. v. Davis, 233 S.W. 406; Warren v. Mfg. Co., 234 S.W. 1029; Flach v. Ball, 240 S.W. 465. (3) Plaintiff was not guilty of contributory negligence in stepping out of a place of danger on to said 4 x 4 timber which broke. Bright v. Wheelock, 20 S.W.2d 684. (4) Objections to questions asked by defendant's counsel were properly sustained. (5) There was no error in permitting counsel for plaintiff to refer to the failure of defendant to call certain witnesses. Bobos v. Krey Packing Co., 19 S.W.2d 630; Burns v. McDonald, 252 S.W. 984; Miller v. Fire Clay Products Co., 282 S.W. 141; Winkler v. Railroad Co., 10 S.W.2d 649; Schwyhart v. Ry. Co., 130 S.W. 388; C. R. I. & P. Ry. Co. and Barrett v. Schwyhart, 227 U.S. 184. (6) The verdict was not excessive. Zumwalt v. Railroad Co., 266 S.W. 717; Skinner v. Davis, 280 S.W. 37; Breen v. United Rys., 204 S.W. 521; Ernst v. Bridge & Terminal Ry. Co., 256 S.W. 222; Jackman v. Ry. Co., 231 S.W. 978; Miller v. Harpster, 201 S.W. 854.

Davis, C. Cooley and Westhues, CC., concur.

OPINION

DAVIS

This is an action for damages for personal injuries growing out of the relationship of master and servant. The jury returned a verdict in plaintiff's favor and assessed his damages at the sum of $ 15,000. After an unsuccessful motion for a new trial, defendant appealed from the judgment entered on the verdict.

The evidence submitted in plaintiff's behalf warrants the finding that, on November 24, 1924, defendant was engaged in erecting, as general contractor, at 36th Street and Broadway, in Kansas City, a re-enforced concrete building, of the height of eight or ten stories, later known as the Hyde Park Hotel. Plaintiff was a laborer in defendant's employ. Relative to the first four floors, the concrete had been poured in forms and was in various stages of hardening, while the pouring of the fifth floor was then in progress. Seemingly the concrete of the ground floor had become hardened and the forms theretofore removed. The concrete, comprising at the same time the ceiling of the ground floor and the surface of the second floor, remained imbedded in the form. This form was comprised of 4 x 4 timbers, in rows about four feet apart, running the length of the building, on top of which were laid seven-eighths of an inch planks. The form was held or supported by upright 4 x 4 timbers, between eighteen and twenty feet in height. They were grounded on the concrete of the ground floor at interspaces forming squares, three and a half feet apart, with short 4 x 4 timbers, three feet in length, at their apex. These uprights were known as T-shores, and they supported and rendered the form steadfast.

The concrete, comprising the ceiling of the first and the surface of the second floor, had become sufficiently hardened to permit the demolition of the form. Graham, the foreman, directed plaintiff and his fellow-workman, Ford, to wreck the form supporting said concrete ceiling and floor. He pointed to and directed them to wreck a certain portion of the form in an offset of the building, and to use the 4 x 4 timbers taken from the form for scaffolding. No other timbers were available. Other 4 x 4 timbers theretofore pulled down had been lifted to a floor above for use in a form. They began by knocking out the upright 4 x 4 timbers with sledges. Then by means of a ladder, they ascended to a beam eight feet north of the south wall. Using wrecking bars, at least forty-five inches in length, they pried out two rows of 4 x 4 timbers from the form. These timbers they laid from beam to beam, which were about ten feet above the ground floor. Across these timbers they nailed a 2 x 10 plank. This constituted the scaffold. While standing on this scaffold, plaintiff and Ford pulled from the form the 4 x 4 timbers. In doing so, it was necessary to reach upward with the wrecking bar. On pulling loose a certain 4 x 4 timber, to keep it from hitting him, it became necessary for plaintiff to step from the plank, on which he was standing, to a 4 x 4 timber comprised within the scaffold, in order to keep the 4 x 4 timber pulled loose from hitting him. The 4 x 4 timber pulled loose fell and struck the 4 x 4 timber constituting a part of the scaffold, and caused said 4 x 4 timber on which plaintiff was standing to break and plaintiff to fall to the concrete floor below, breaking the astragalus bone in his right foot.

Plaintiff's evidence further tends to show that No. 1 rough 4 x 4 timbers only were used to construct forms for concrete; that said 4 x 4 timbers were fashioned from live logs and were fit to use in a scaffold, because of their strength; that the 4 x 4 timber that broke was not a No. 1 rough 4 x 4 timber, but was cut from a dead tree and contained a cross-grain and several large knots, all of which rendered it weak and unfit to use in a scaffold; that carpenters were able to distinguish by reason of their training between good and bad timbers, and they were used by defendant to select the timbers comprising the forms which they constructed; that plaintiff and Ford were laborers and were unable to tell by appearance whether or not the 4 x 4 timbers were No. 1 rough 4 x 4 timbers, or whether or not they were of sufficient strength to be used in a scaffold; that nothing appeared to them to advise that this 4 x 4 timber was not a No. 1 rough 4 x 4 timber, or a proper timber to use in the scaffold.

Relative to the erection of the building, one Grable was the superintendent. He testified that carpenters are men trained in the use of wood, knowing good from bad timber, and that was why carpenters were used to construct the forms. He further testified that the 4 x 4 timber that broke was cut from a dead tree and that it was dangerous to use it in a scaffold; that timbers wrecked from the forms frequently fall on the scaffold.

Other facts will appear in the opinion.

I. In the beginning, we are met with a motion filed by defendant-appellant subsequent to the submission of the cause in this court, praying an order of discharge, which is predicated on his discharge in bankruptcy. Certified copies of the record of the District Court of the United States for the Western Division of the Western Judicial District of Missouri advise that, on July 3, 1930, defendant filed his petition therein and was adjudicated a bankrupt and that on November 10, 1930, he was discharged from all debts and claims provable and existing on July 3, 1930, excepting such debts as are by law excepted from the operation of the discharge in bankruptcy. Defendant scheduled as a liability plaintiff's judgment against him for $ 15,000. The abstract of the record herein shows, however, that, on September 6, 1928, long prior to the filing of his petition to be adjudicated a bankrupt, defendant filed an affidavit for an appeal in this cause and was allowed an appeal...