Mulloy v. Beal & McNamara Painting Co.

• Decision Date: 03 July 1919
• Docket Number: No. 15391.,15391.
• Citation: 214 S.W. 405
• Court: Missouri Court of Appeals
• Parties: MULLOY v. BEAL & McNAMARA PAINING CO.

214 S.W. 405

MULLOY v. BEAL & McNAMARA PAINING CO.

No. 15391.

St. Louis Court of Appeals. Missouri.

Reargued and Resubmitted May 22, 1919.

Opinion Filed July 3, 1919.

Appeal from St. Louis Circuit Court; Thos. C. Hennings, Judge.

"Not to be officially published."

Action by Matthew Mulloy against the Beal & McNamara Painting Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Anderson, Gilbert & Hayden and M. U. Hayden, all of St. Louis, for appellant. Charles P. Corner, of St. Louis, for respondent.

REYNOLDS, P. J.

Plaintiff brought his action against the defendant for damages for injuries suffered by reason of the falling of a hanging stage on which he and a fellow workman, one Hartshorn, were engaged as painters, painting the outside of one of the buildings of the annex to the Poorhouse belonging to the city of St. Louis, defendant being the contractor for doing this painting.

Plaintiff and Hartshorn had been engaged in painting the outside of the main building and, finishing that, were directed by the foreman, one Martin, to paint the outside of the annex. They carried their stage, which was a ladder, planks being laid over it for the workmen to walk and work on, from the main building over to the annex, intending to hang it from the top of the wall of the annex. It had been used by them on the main building, there secured by iron hooks at each end of the stage, the hooks swung over a terra cotta cornice, and to which hooks blocks and tackle, or "falls," as they are called, were attached at each end, suspending the stage. It was found that one of these hooks was not large enough to go over the cornice of the annex building. Whereupon the foreman, who was standing on the ground with plaintiff and Hartshorn, superintending the hanging of the stage, told plaintiff to "take a line and go up there" (on the roof of the annex) "and rig for that staging." Plaintiff picked out a rope from among a number of ropes which had been brought there from the roof of the main building, went up on the annex roof, tied one end of the rope to a standpipe, tied a bowknot in the other, and threw the rope over the cornice, the hook being thrown over the cornice to support one end of the stage, the rope with the bowknot or bowline in the end of it being thrown over the cornice to support the other end of the staging; that is, one end I of the staging was to be supported from the book and the other end from the rope, in the end of which this bowknot was tied. The rope selected and used for this purpose was one of a lot of ropes which had before then been used on the main building for tying back the hook, when the hook was being used. These "tie-back" or "roof" or "guy" ropes, as they are called, had originally been used in the tackle itself to suspend the stage but had been discarded for that purpose by reason of defective ends, these ends cut off, the rope shortened and as shortened' used for tie backs. If used as a tie back, one end of the rope would be fastened to any fixed support on the roof, the other end tied on to the hook to keep it in place. On this occasion one end of this rope was fastened to a standpipe, which rose from the roof and was about 30 feet back of the cornice. After fastening it, plaintiff threw the other end over the terra cotta coping, first tying a bowknot in the end of it, in which to put the hook with its falls attached, placing a piece of canvas folded in four thicknesses between the rope and the cornice. When Martin gave the direction to use the rope at one end in Place of the hook, Hartshorn, asked if he (Hartshorn) had said anything to Martin about the strength or weakness of the rope, answered, "No;" that if he had known the rope was weak he wouldn't have got up on the stage. After the bowline was put on for one end, and the hook for the other, Hartshorn testified that they hitched up the stage and he and Martin raised it up 2 or 3 feet, from the ground and both got on, one at each end, and jumped on it as a test. As everything seemed all right, they pulled the stage up, and plaintiff, being on the roof, got down on the stage, lowered it, and made a hitch in the rope to hold the stage at the place to which it had been lowered; thereupon Hartshorn went around, possibly through the building, and got out on the stage and it was lowered to where they were to paint, about 20 feet above the ground. There were four ropes in each of the pulleys, each set running through the pulleys, the ropes being three-quarter inch Manilla ropes, as also was the tie-back rope used.

Witness Hartshorn described this tie-back rope, which he said was probably 100 feet long, and its purpose when used to steady the hooks, as we have before described it. He testified that the rope used was an old rope, that is, it had been in use before, how long or how old witness did not know. He also testified that he had been a painter for about 11 years and in that time had used a three-quarter inch rope many a time in place of a hook, but generally used a new rope. He further said that while he was no expert as to the amount a rope will lift, he knew a good one when he saw it, and in his opinion the rope used on this occasion was an old rope; did not know how old; it had been used, the frayed ends cut off and tied; it was in fairly good condition, and as far as the eye could see, he could detect no defects in it. Asked to state, from his 11 years' experience as a painter, what his opinion was with reference to the strain that was put on a rope, as between the tie line method and the hook method, witness said in the hook method the weight of the falls is distributed among 4 lines, whereas, if the rope method is used the weight of the pulleys, ropes, etc., bears entirely on the one line to which the falls or the rope block is tied.

It is a little difficult to understand just what Hartshorn testified to as to where the ropes referred to came from, but as nearly as we can gather his meaning, on cross-examination, he testified that they had a pile of ropes, some 30 or 40 ropes; that the rope used had been taken with other ropes from the shop to the top of the main building, where it had been lying for about two weeks; that it had been used to tie back hooks with on the main building; when first used on the main building as a tie-back rope, it had been taken from the pile of ropes brought out to the shop on a wagon; when they got over to the wall of this annex, after finishing their work on the main building, a lot of these ropes were brought from the roof of the main building, by whom he did not know, and were at or near the foot of the annex wall; he had looked over the ropes to see if any were broken and saw nothing wrong or weak about the rope which was used; saw no outward defects in it and had looked it over carefully before it was put up. He repeated his testimony as to the facts connected with fixing the rope over the cornice, how it was secured and how he and Martin had tested the stage after it was hung, which he said was the usual manner of testing ropes to ascertain whether the knots are safe. After making that test he had noticed no weakness about the rope that broke. When that rope was thrown over the coping a piece of tarpaulin was folded in four folds and placed under it to save it from chafing by contact with the coping. The rope, he repeated, that was used on this occasion, was three-quarters of an inch in diameter; did not know who had brought it from the paint shop to the roof of the main building. The foreman had not given any direction with reference as to how the rope that broke should be tied; all he did was to give directions to plaintiff; had told him to take a line, get up on the roof, tie a bowline and drop the rope over the edge. Plaintiff did that. These were the only orders the foreman gave. The ropes used in the falls were brought from the main building, were the same that had been used there, and they got this back line, or tie back, with other ropes, from the roof of the main building; they had used hooks on the main building in suspending the stage, not ropes, and the rope in question had been used on the main building for a "tie-back line."

Plaintiff himself, testifying, said that he was 33 years of age and a house painter. On the day of the accident he was working with Hartshorn on this annex to the Poorhouse. They were working on the stage, which was suspended from the cornice by the hook at one end and the sling with a knot in it at the other. He was on the roof when the stage was being put up, working under the direction of Martin, the foreman, who had directed him to take a line, go up on the roof and rig it for that staging. Martin sent up a hook, which fit over the top of the fire wall and came over the cornice. He then sent up two more hooks that would not fit over the cornice. Martin said that the other hooks on the main building could not be obtained until the work there was finished, and to throw a line out from the edge of the terra cotta and hook a block in it for that stretch. They called this line a guy-line or a tie-line, generally a guy-line. Asked what, if anything, he had said to the foreman about the strength or weakness of this tie-line to hold up the stage, he said he did not say anything; it was a case of emergency; had been a painter some 16 or 17 years, and during that time had frequently used that kind of a line; "where you can not use anything else, why, you use it. If there is anything you can use besides the rope you never use it." Asked what his opinion was with reference to the strength of the rope used, plaintiff said he could not say it was a strong rope or a weak rope; it was an old one; he did not know how long it had been used, but he knew it was not a new one; did not know where it came from. Asked whether he had objected to Martin about using that tie rope for that purpose, he said "Yes." Defendant moved to strike out this...