Parlow v. Carson-Union-May-Stern Co.

• Decision Date: 10 March 1958
• Docket Number: No. 1,No. 46119,CARSON-UNION-MAY-STERN,46119,1
• Citation: 310 S.W.2d 877
• Parties: Thomas PARLOW, (Plaintiff) Respondent, v.COMPANY, a Corporation, (Defendant) Appellant
• Court: Missouri Supreme Court

Page 877

310 S.W.2d 877

Thomas PARLOW, (Plaintiff) Respondent, v. CARSON-UNION-MAY-STERN COMPANY, a Corporation, (Defendant) Appellant.

No. 46119.

Supreme Court of Missouri, Division No. 1.

March 10, 1958.

Evans & Dixon, John F. Evans, St. Louis, for appellant.

Paul Dixon and Cleo V. Barnhart, St. Louis, for respondent.

DALTON, Judge.

Action for damages for personal injuries. Plaintiff, an employee of an independent contractor, was doing work for defendant upon a sectional metal scaffold furnished by defendant. The scaffold fell over on its side and plaintiff was injured. The cause was submitted under the res ipsa loquitur doctrine and a verdict returned for plaintiff for $50,000. Defendant's motion for a new trial was overruled after plaintiff entered a remittitur for $15,000. Final judgment was entered for plaintiff for $35,000. Defendant has appealed and contends that the court erred in refusing to direct a verdict for defendant.

Plaintiff's own testimony was the only evidence on the issue of liability. It tended to show that plaintiff was a boiler maker by trade but, on December 7, 1954, was employed as a glazer by the American Plate Glass Company in the City of St. Louis. On the date mentioned, plaintiff was directed to go to defendant's store at 12th and Olive streets for the purpose of removing some broken glass and making repairs to the store canopy which extended over the sidewalk on 12th street. His boss informed him that defendant would furnish a scaffold for his use. He reported to the store, as directed, and was referred to the porter or maintenance man, who would get the scaffold, which was a sectional one made of aluminum piping. At that time, it was disassembled in defendant's shipping room. Plaintiff helped the porter carry the various pieces of the scaffold to the sidewalk in front of the employees' entrance to defendant's store, but plaintiff advised the porter that, under union rules, he was not permitted to put up a scaffold for his own use. Plaintiff, however, did assist the porter by holding the various sections, or by handing the pieces to the porter as the scaffold was being assembled and the pieces fitted together. Plaintiff was facing the porter while the scaffold was being erected, but did not observe the manner in which the scaffold was assembled, since he assumed the porter knew what he was doing.

The scaffold consisted of four separate end sections, each consisting of two vertical or upright tubular pipes joined together by crossbars. The two upper end sections were fitted into the tubular piping of the lower sections so that the entire end sections of the scaffold, when assembled, were approximately 12 feet in height. When the end sections were assembled into two units, they were joined together by means of tubular criss-cross bars which were fitted onto the cross sections of the end pieces by means of snap flanges. On the top crossbars of the upper end sections there was another crossbar which joined the two end sections together. After the various pieces of piping were assembled, a removable platform was placed in position. It was made of plywood and supported by tubular piping which fitted from end to end of the scaffold by means of flanges resting on the end crossbars. This platform could be raised or lowered so as to rest at the level of any of the several crossbars. The entire scaffold was supported on four small wheels, the mountings of which fitted into the lower ends of the piping forming the upright end sections.

Plaintiff was familiar with and had used various types of scaffolding and had used sectional metal scaffolding, although he had never used a scaffold like this one, or one resting on wheels. After the scaffold was completely assembled (except for fitting the wheels on the legs) plaintiff went inside the store to obtain his tool box and also to obtain a cardboard carton in which to place the broken glass. When he returned to the sidewalk he found that the porter had moved the scaffold to a position underneath and slightly to the outside of the canopy. The porter informed him that the scaffold was ready for use and he could go ahead and use it. The sidewalk where the scaffold was placed sloped slightly toward the street. Plaintiff did not know whether the porter, after placing the scaffold in position, made any adjustments in the leg leveling devices or whether he locked the wheels on the scaffold. Plaintiff relied upon the porter and did not feel or shake the scaffold to see if it was solid and safe. When he climbed up on the scaffold it did not roll or move from its footing but, as he worked, he noticed that there was a sort of wobble or sway with the movements of his body. This was common to all scaffolds and did not concern him particularly.

Plaintiff proceeded with the removal of broken glass for a period of approximately 20 minutes until he had partially filled the cardboard carton. He then climbed down with the box of broken glass and went into the store to get another box. He was in the store two to five minutes and then returned to the scaffold and climbed up on the platform and resumed his work. From the time the scaffold was first placed at the canopy until the plaintiff climbed upon the scaffold for the second time, plaintiff did not observe any of the store employees on the sidewalk or in the immediate vicinity of the scaffold.

As plaintiff was stooping over his tool box, facing 12th street, the scaffold suddenly without warning gave way, dropped downward two or three inches and fell over on its side toward the building, causing plaintiff to fall to the sidewalk. Plaintiff testified: 'I stooped down to get some tools in order to take this lettering off, and I felt something give, something just went down, like that, and the next thing I knew, I was going over backwards. * * * It felt like (it dropped) two inches, two or three inches, something like that, and it started going back.' This was different from this wobbly sensation he noticed when he first got on the scaffold. He did not know what part of the scaffold collapsed, or what caused him to fall.

Plaintiff landed on his heels and buttocks on the sidewalk with the scaffold lying across him, with its top toward the building. He felt 'an awful pain' in his back and leg, but pushed the scaffold off and 'hobbled' into the store, where he reported the occurrence, asked for help and sat down. He advised his employer that he had been injured and a driver was sent to take him to a doctor's office. Before leaving defendant's premises, plaintiff assisted an employee of the store to upright the scaffold. When uprighted, it still stood up. The platform on which plaintiff had been working was lying on the sidewalk. Plaintiff didn't pay any attention to the condition of the scaffold at that time because he was 'in a terrific amount of pain.' He couldn't say whether the wheels were still attached to the scaffold or not. So far as plaintiff was able to observe, the four crossbars were intact.

Appellant insists that the court should have directed a verdict for defendant, as requested, since there was no direct evidence of negligence on the part of defendant and the facts do not warrant the application of the res ipsa loquitur doctrine. Appellant contends (1) that the evidence shows the scaffold was not within the exclusive possession or control of defendant at the time plaintiff was injured (2) that the evidence fails to show that the defendant possessed superior knowledge or means of information as to the cause of the occurrence; (3) that the 'occurrence' was not of such unusual or extraordinary character as to give rise to an inference of negligence under the res ipsa loquitur doctrine; and (4) that there was no proof the scaffold was defective or that any of its component parts became disconnected or broken and the real cause of the occurrence is a matter of speculation and conjecture.

The doctrine of res ipsa loquitur applies only 'when (a) the occurrence resulting in injury was such as does not ordinarily happen if those in charge use due care; (b) the instrumentalities involved were under the management and control of the defendant; (c) and the defendant possesses superior knowledge or means of information as to the cause of the occurrence.' McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 559, 92 A.L.R. 641. However, 'the rule that the exclusive control and management of the appliance or thing causing the injury must be shown to have been in the defendant does not mean physical control, but refers to the right of such control * * *.' Maxie v. Gulf, Mobile & Ohio R. Co., 356 Mo. 663, 202 S.W.2d 904, 911(5-6); Cruce v. Gulf Mobile & Ohio R. Co., 358 Mo. 589, 216 S.W.2d 78, 80; Cruce v. Gulf, Mobile & Ohio R. Co., 361 Mo. 1138, 238 S.W.2d 674, 677, 679(8); Cantley v. Missouri-Kansas-Texas R. Co., 353 Mo. 605, 183 S.W.2d 123, 130; McCloskey v. Koplar, supra, 46 S.W.2d 557, 560.

'A plaintiff to come within the doctrine need not show such a state of facts surrounding the accident as excludes every reasonable hypothesis except defendant's negligence. The attendant facts must raise a reasonable inference of defendant's negligence but they need not also exclude every other inference.' Maxie v. Gulf, Mobile & Ohio R. Co., 358 Mo. 1100, 219 S.W.2d 322, 325(5), 10 A.L.R.2d 1273; Baugher v. Gamble Const. Co., 324 Mo. 1233, 26 S.W.2d 946, 950; Warner v. Terminal R. Ass'n of St. Louis, 363 Mo. 1082, 257 S.W.2d 75, 79; Cantley v. Missouri-Kansas-Texas R. Co., supra, 183 S.W.2d 123, 127.

While plaintiff was the only witness who testified as to facts upon which the issue of liability is based and while a plaintiff is bound by his own personal testimony, nevertheless, in determining whether the facts and circumstances testified to by him call for the application of the res ipsa loquitur doctrine and whether a case was made for the jury, we must consider plaintiff's testimony as a whole, and as true,...