Most v. Goebel Construction Company

• Decision Date: 07 May 1918
• Parties: MARGARET MOST, Respondent, v. GOEBEL CONSTRUCTION COMPANY, a corporation, Appellant
• Court: Missouri Court of Appeals

203 S.W. 474

199 Mo.App. 336

MARGARET MOST, Respondent, v. GOEBEL CONSTRUCTION COMPANY, a corporation, Appellant

Court of Appeals of Missouri, St. Louis

May 7, 1918

Appeal from the Circuit Court of the City of St. Louis.--Hon William M. Kinsey, Judge.

AFFIRMED.

Judgment affirmed.

Leahy Saunders & Barth for appellant.

(1) The demurrer in this case should have been sustained: (1) Because there was no evidence of defendant's negligence. (2) Because the statute, Sec. 7843, R. S. 1909, which was the sole ground of negligence alleged in the petition, does not apply to a swinging, movable platform like the one in the instant case. It was "transitory" and "shifting" in character and its safety was necessarily committed to the workmen in charge. Livingood v. Lead & Zinc Co., 179 Mo. 229; Anderson v Missouri Granite & Construction Co., 178 S.W. 737; Deiner v. Sutermeister, 266 Mo. 505, 514-19. (3) Because the res ipsa loquitur doctrine does not apply and because it was not pleaded and not relied upon. Section 7843, R. S. 1909; Deiner v. Sutermeister, 266 Mo. 505, 514-19; White v. Montgomery Ward & Co., 191 Mo.App. 268, 270; Williams v. Ranson, 234 Mo. 55, 75; Forbes v. Dunnavant, 198 Mo. 193, 210; Hedrick v. Kahmann, 174 Mo.App. 57. (4) Because Most, decedent, and Clark and his helper, Cordes, who erected the swinging, movable platform, and moved it from time to time, were fellow servants, and the negligence of Clark and Cordes, if admitted, would bar any right of recovery on the part of plaintiff. Henson v. Stave Co., 151 Mo.App. 224, 235; Kellerman v. Telephone Co., 189 Mo.App. 506; Herbert v. Wiggins Ferry Co., 107 Mo.App. 287; Bowne v. Railroad, 95 Mo. 268, 277; Kiffin v. Wendt, 57 N.Y.S. 109; Maher v. McGrath (N. J), 33 A. 945.

(2) (1) The instruction given for plaintiff on the right of recovery was not based upon the evidence and was outside of the scope of the pleadings and, therefore, was erroneous. It proceeded upon the theory that the chain in question was "fastened to the roof," when there was neither proof nor pleading to support it, and the averment in the petition was that the chain was negligently attached to a timber on the top of the roof of the building. (2) The instruction on the measure of damages was erroneous because the only proof in the record was of marriage and death, with a widow and four children surviving. In any event a verdict for seventy-five hundred dollars, based upon this evidence, was grossly excessive.

Bartley & Douglass for respondent.

(1) The court did not err in overruling the demurrer offered by the defendant as the close of plaintiff's case. (a) In passing on a demurrer to plaintiff's evidence the court must consider the evidence introduced by plaintiff as true, and make every finding and deduction in her favor which the jury would have been warranted in making. Meenach v. Crawford, 187 S.W. 879, 882; Williams v. Railroad, 257 Mo. 112, 52 L. R. A. (N. S.) 433; Grouch v. Heffner, 184 Mo.App. 365, 372; Irwin v. United Railways Co., 191 S.W. 1130. (b) If the facts introduced in evidence bearing on the issues are disputed, and admit of different conclusions and inferences it must be left to the jury to decide the question of negligence. Powers v. Transit Company, 202 Mo. 267, 280, and citations; Yost v. Cement Company, 191 Mo.App. 422, 432. (c) Where defendant offers a demurrer to plaintiff's evidence, and stands on it, then the evidence offered by plaintiff to sustain his case, together with all reasonable inferences and deductions to be drawn therefrom, must be accepted as true. Parker-Washington Co. et al. v. Dennison, 249 Mo. 449, 469; Gerardi v. Gardner et al., 255 Mo. 538, 562-3; Clark v. Railroad, 234 Mo. 396, 418. (d) Negligence need not be shown by direct or positive proof, but may be reasonably inferred from the facts and circumstances in evidence, and this is true irrespective of the presumption raised by the res ipsa loquitur doctrine. Capehardt v. Murta et al., 165 Mo.App. 55. (e) Section 7843, R. S. 1909, includes scaffolds such as the one described in the present case. Williams v. Ransom, 234 Mo. 55; Deiner v. Sutermeister, 266 Mo. 505, 517-18; Jones v. Gamble, 140 N.Y.S. App.Div. 733. (f) This section (7843, R. S. 1909) is highly remedial and is to be liberally construed in favor of the safety of the life and limbs of employees, as that is the object of the statute. Session Acts 1917, page 324; See Title Laws: Common Law and British Statutes; Henderson v. Heman Construction Company, 199 S.W. 1045 (not yet reported). (g) Where a statute or ordinance is violated and the failure to comply with such statute or ordinance is the proximate cause of an injury the doctrine of res ipsa loquitur applies. Burt v. Nicbols, 264 Mo. 1; Stewart, Admr., v. Ferguson, 164 N.Y. 553; Lorenzo v. Faillare, 132 N.Y.S. App.Div. 103; Nixon, by Etc., v. Thompson-Scarrett Co., 131 N.Y.S. App.Div. 152. (h) Where the master undertakes the building of a scaffold for a servant to work upon, then this is a non-delegable duty of the master. See McGrath v. Fogel, 182 S.W. 813; Cooney v. Laclede Gas Light Company, 186 Mo.App. 156. And a cement finisher who works on this scaffold is not a fellow servant with the man who built the scaffold. McGrath v. Fogel, 182 S.W. 813, supra. (2) (a) Instruction No. 1 given by the court is a correct declaration of the law. Williams v. Ransom, 234 Mo. 55; See instruction on middle of page 67 given by the court. (b) The instruction on the measure of damages correctly declared the law.

BECKER, J. Reynolds, P. J., and Allen, J., concur.

OPINION

BECKER, J.

This is an action by Margaret Most, widow of Fred Most, against the Goebel Construction Company, a corporation, for damages suffered by plaintiff as the result of the death of her husband, Fred Most, while employed by the defendant company as a cement finisher. Judgment resulted in favor of plaintiff and against the defendant in the sum of $ 7500 from which the defendant brings this appeal.

Plaintiff's second amended petition contains appropriate averments as to the relationship of plaintiff to her deceased husband and charges that the Goebel Construction Company is a Missouri corporation. The petition further avers: "On or about the 5th day of August, 1915, the defendant was engaged in repairing a building at or near 3757 Chouteau avenue in the city of St. Louis, and that on said date plaintiff's deceased husband was in the employ of the defendant and engaged in erecting or making repairs on said building, from a scaffold erected and furnished him by the defendant upon which to stand while doing said work; that said scaffold was about sixty feet high and supported by chains or ropes, which swung from the roof of said building, and were attached to said scaffold; that said chains or ropes which supported the scaffold were secured to the roof of said building by passing said chains or ropes through the holes in the roof and fastening them to or around pieces of timber about 4 x 4 x 18 inches, which said timbers were of sufficient size to prevent being pulled through the holes in the roof through which said chains passed, and of sufficient strength to hold said scaffold."

"Plaintiff further says that on said date, while her deceased husband was at work upon said scaffold in the regular scope of his employment, that one of the chains or ropes became unfastened from the piece of timber to which it was fastened as aforesaid, and caused said scaffold to give way with her said husband and precipitate him to the floor below, from which fall he sustained injuries that caused his almost immediate death."

"Plaintiff further says that the death of her deceased husband was directly caused by the negligence of the defendant in this, to-wit: That on the 5th day of August, 1915, and for a long time prior thereto, there was in force in the State of Missouri, section 7843 of the Revised Statutes for the year 1909, as follows, to-wit:

"All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon. All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due caution and care so as to prevent injury or accident to those at work or near by."

"That at the time the defendant negligently failed to have the scaffold upon which it directed plaintiff's deceased husband to work and which fell and caused the death of plaintiff's deceased husband, well and safely supported and so secured as to insure the safety of her deceased husband while at work thereon, but had one of the chains or ropes which supported the scaffold so negligently fastened to or around the piece of timber aforesaid as to cause it to come loose, thereby causing the scaffold to give way and precipitate plaintiff's deceased husband to the floor, from which he received injuries that caused his death."

"Wherefore plaintiff prays judgment against the defendant for the negligent killing of her husband as aforesaid in the sum of ten thousand ($ 10,000) dollars, together with her costs." Defendant's answer was a general denial.

The case was tried before the court and jury. At the close of plaintiff's case the defendant offered an instruction in the nature of a demurrer to the evidence, which the court overruled. The defendant stood on its demurrer and did not offer any testimony.

Plaintiff's evidence shows that she is the widow of Fred Most and that there were four children born of the marriage, living at the...