Nolan v. Shickle

• Decision Date: 06 February 1877
• Citation: 3 Mo.App. 300
• Parties: MICHAEL NOLAN, Plaintiff in Error, v. FREDERICK SHICKLE et al., Defendants in Error.
• Court: Missouri Court of Appeals

3 Mo.App. 300

MICHAEL NOLAN, Plaintiff in Error,

v.FREDERICK SHICKLE et al., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Feb. 6, 1877.

1. An action for damages alleged to have been caused by the negligence of a master in failing to supply suitable material and properly construct a scaffold cannot be maintained unless the plaintiff prove that there were defects either in the material or in the construction, that defendant knew of such defects, and that plaintiff was not aware of them prior to exposing himself to the danger.

2. If the person injured was fully aware of the hazard before the accident, or was guilty of negligence himself, he cannot recover.

3. In the absence of proof, negligence will not be presumed in an action for injuries alleged to have been caused by the negligence of another.

4. Where the facts, being admitted, are not sufficient, together with the inferences which a jury might legally draw, to support a verdict, on a demurrer to the evidence judgment will be given for defendant, unless plaintiff takes a nonsuit.

APPEAL from St. Louis Circuit Court.

Affirmed.

Marshall & Barclay, for plaintiff in error, cited: Wells on Law and Fact, sec. 265; Norton v. Ittner, 56 Mo. 351; Kane v. Learned, 17 Mass. 190; Thomas v. Telegraph Co., 100 Mass. 156; Smith v. City, 45 Mo. 449; Conroy v. Vulcan, 62 Mo. 35; Porter v. Railroad Co., 60 Mo. 160; Gormley v. Vulcan, 61 Mo. 492; Smith v. Railroad Co., 61 Mo. 588; Lewis v. Railroad Co., 59 Mo. 495; Keegan v. Kavanaugh, 62 Mo. 230.

T. A. & H. M. Post, for defendants in error, cited: Greenleaf v. Illinois Central R. R. Co., 29 Iowa, 46; Hay-den v. Smithville Mfg. Co., 29 Conn. 560; Cummings v. Collins, 61 Mo. 523; Wright v. New York Central R. R. Co., 25 N. Y. 566; Mad. River & Eastern R. R. Co. v. Barber, 5 Ohio St. 565; McGowan v. St. Louis & Iron Mountain R. R. Co., 61 Mo. 531; Devitt v. Pacific R. R. Co., 50 Mo. 305; Whart. on Neg., sec. 214, and cases cited; Owen v. New York Central R. R. Co., 1 Lans. 109; Shear. & Redf. on Neg., 3d ed., 111, sec. 95; Gibson v. Pacific R. R. Co., 46 Mo. 169; Snow v. Housatonic R. R. Co., 8 Allen, 441; Roberts v. Smith, 2 H. & N. 213; Shear. & Redf. on Neg., 3d ed., 13, sec. 11; Whart. on Neg., sec. 427; Pittsburg, etc., Co. v. McClurg, 56 Pa. St. 294; Keller v. New York Central R. R. Co., 24 How. Pr. 172; Wyatt v. Citizens' R. R. Co., 55 Mo. 489; Barton v. St. Louis & Iron Mountain R. R. Co., 52 Mo. 258; Gavett v. Manchester & Lawrence R. R. Co., 16 Gray, 507, 508; Todd v. Old Colony & Fall River R. R. Co., 7 Allen, 207; Brown v. European & North American Ry. Co., 58 Me. 389, and cases cited; Brooks v. Somerville, 106 Mass. 275; Denny v. Williams, 5 Allen, 1.HAYDEN, J., delivered the opinion of the court.

This was an action to recover damages for an injury to the plaintiff, caused, as he alleged, by the negligence of the defendants. The petition charged that the defendants had been guilty of negligence in the construction of a scaffold, which was alleged to be defective, unsafe, and composed of insufficient materials, on which scaffold plaintiff had been ordered to work; that in obedience to the order, and believing the scaffold to be fit and proper, the plaintiff worked upon it, but that, by reason of its unsoundness and the defendants' negligence, the scaffold gave way and broke, whereby plaintiff was precipitated and fell to the ground, etc. The answer admitted the fall, but denied the other allegations, and charged that the accident was owing to the gross carelessness of the plaintiff. The reply denied any carelessness on the part of the plaintiff.

The evidence showed that the plaintiff was at work on or about an iron fence around a circular gallery of the furnace of the defendants. The platform or scaffolding on which he was at work consisted of a plank from fourteen to sixteen feet long, fourteen inches wide, and two inches thick, one end of which rested on the floor of an extension of the gallery of the furnace, while the other end was supported by scantlings projecting out from beneath the gallery, and fastened to it by ropes. This plank had an inclination, caused by the fact that the outer scantling--that is, the one farthest from the extension--was six or eight inches lower than the level of the gallery on which the inner end of the plank rested. The plaintiff testified that on stepping on the plank he found that it did not rest fixedly on the inner scantling, but moved up and down somewhat on that scantling. The platform of the extension of the gallery was iron, and this plank lapped over and rested upon this platform at one end, and extended out over and beyond the outer scantling along the gallery. The purpose of this temporary scaffold was to enable the plaintiff the more readily or conveniently to put the angle-iron on the sheet-iron fence around the line of the gallery. The height of the plank, as it rested on the extension and the scantlings, was about sixty-five or seventy-five feet from the ground. The plaintiff testified that he had been out on the plank, off and on, many times on the day on which he fell, and on the day previous other workmen had also been out on the plank. The only peculiarities any one appeared to have noticed about the plank, except its inclination and the fact that it moved somewhat up and down on the inner scantling, were that, in stepping on the projection, plaintiff noticed that the under side of the plank, for about five or six inches from the end that rested on the gallery, was beveled, or tapered off. This lapped over the edge of the extension about ten inches, and it was by this end that plaintiff always went onto the plank. In going onto it he had never gone, or had occasion to go, further out on the plank than eight feet from this inner end; its whole length being, as stated, from fourteen to sixteen feet.

The plaintiff says: “The sheet-iron fence was not yet up on the projection b, where the west end of the scaffold lays. When I had worked to the corner of the projection and the east side of the furnace, McQuillen (defendants' agent) told me to be careful not to leave a hole at that corner, where one could fall through. I got my hammer and chisel to fix the angle-iron, and came around and went onto the scaffold. I got on the scaffold and gave one or two steps, and it went down with me. I don't know why it gave way. I only know it gave way.” The plaintiff fell to the ground and was very seriously injured. The scantlings which supported the plank did not give way; nor did the plank break. The evidence fails to show why the plank fell, or what was the cause of its falling. The plaintiff's expressions are: “It was raft plank, and went down under me when I fell.” “I cannot say whether, when the plank went down under me, it broke off at the sharpened edge on the western projection, or whether it slipped off that edge, or what made it go down with me.” “I always supposed before I fell that it (the plank) was nailed to the most easterly support.” “I thought the scaffold was safe, and was nailed to the most easterly support, and had no idea to the contrary before the accident.” “I thought the scaffold was safe. I thought so because I thought it was nailed to the eastern support. I did not see any nails there, for I did not look to examine for nails. I saw no marks of nails. Nobody told me it was nailed. If it had been nailed, it would not have got away with me.”

The plaintiff had nothing to do with placing the scaffold, and did not see it when it was putting up. He found it as it was, when ordered to go to work with the angle-iron by the agent or vice-principal of defendants. He did not, nor did his fellow-workmen, change the plank or do anything to it at any time. There is no testimony tending to show that any one thought it necessary or proper to make any alteration at any time. Plaintiff testifies that he could not do the work he was ordered to do without going out on the scaffold, though he afterwards seems to say he might have done it, only not so conveniently. He was not a scaffold-builder, but was a man familiar with scaffolds, and accustomed to work upon them at great elevations. It appeared that there is no rule for the building of scaffolding; that it is built to conform to particular work and the locality. Upon this evidence the court ruled that the plaintiff was not entitled to recover, and plaintiff took a nonsuit.

The burden is on the plaintiff in this case to prove negligence on the part of defendants, and that their negligence was the cause of the injury. As it is not contended that there was any defect in the material of this temporary apparatus--there is, at least, no evidence to show such defect--the fault must have been in the arrangement or construction of the appliances. The theory of plaintiff seems to be that the plank slid or worked off from its supports, and that the injury was thus caused. Accordingly. it is said if the plank had been nailed to the scantlings it would not have worked off. There is a plain distinction between the suggestion of a possible precaution by which an injury might probably have been avoided, and the adducing of evidence which shows that the injury was caused by negligence of the defendants. Probably scarcely a mishap occurs where the wisdom which comes after the event cannot suggest some expedient by which, through the exercise of a more abundant caution, the accident might not have been prevented. It is for the plaintiff to show that the effective cause of the injury was the negligence of defendants, and to exclude the case from that class of occurrences which are often designated accidents, the word being used in this connection to characterize events the real cause of which cannot be traced, or, at least, are not apparent. As the Supreme Court said in Shultz v. Pacific Railroad Company, 36 Mo. 32, in the absence of affirmative and positive proof of negligence, the simple fact of an accident and injury would...