Poynter v. Fogel Const. Co.

• Decision Date: 16 June 1924
• Docket Number: No. 15090.,15090.
• Citation: 265 S.W. 841
• Parties: POYNTER v. FOGEL CONST. CO.
• Court: Missouri Court of Appeals

265 S.W. 841

POYNTER v. FOGEL CONST. CO.

No. 15090.

Kansas City Court of Appeals. Missouri.

June 16, 1924.

Rehearing Denied July 9, 1924.

Appeal from Circuit Court, Jackson County; Thad B. Landon, Judge.

"Not to be officially published."

Action by J. A. Poynter against the Fogel Construction Company. From overruling of motion to set aside nonsuit, plaintiff appeals. Reversed and remanded for new trial.

Clif Langsdale, of Kansas City, for appellant.

Lathrop, Morrow, Fox & Moore, Geo. J. Mersereau, and Richard S. Righter, all of Kansas City, for respondent.

ARNOLD, J.

This is a suit in damages for personal injuries. Defendant is a corporation engaged in the business of constructing buildings. Plaintiff is an iron worker, and at the time of the injury in question was employed by defendant.

On January 24, 1922, defendant was engaged in erecting a building for use as a garage on Wyandotte street between Twelfth and Thirteenth streets in Kansas City, and plaintiff was employed in the work of constructing columns for concrete re-enforcement. The process consists of the preparation of hollow wooden framework within which is placed the requisite number of steel rods, about 8 to 12 in number, being an inch more or less in diameter and 16 feet long. These rods are fastened at regular intervals on the inside of iron bands by the use of small wire, called tie wire. When completed, the frame is a hollow pillar, cylindrical or square in shape as may be desired, having the metal frames on the inside. Into the frame thus formed the concrete is poured, and when "set" a re-enforced concrete pillar is made. In tying the rods to the bands, or hoops, a small-sized wire is used as the tie; said wire being about the size of the lead in an ordinary lead pencil, or common bailing wire, and is known and designated by the standards in use as No. 16. The record shows that wire of this size ordinarily is used for the purpose above described, and that the custom is to use annealed wire because it is more pliable and easier to use. It is purchased in rolls, or spools, and is unwrapped as needed, and segments from the exposed end are cut to desired lengths.

Plaintiff was a foreman, and on the occasion of the injury was engaged with one helper, Clark by name, in the construction of one of these steel frames. The rods had been placed, and it became necessary to tie them to the iron bands by means of the wire as above described. Plaintiff stepped to the bale, or spool, of wire near him on the floor. and with a pair of pliers cut off a piece about 4 feet in length. The petition charges that one of the loose ends of said wire recoiled and struck plaintiff in the eye, causing the injury for which damages are sought. Three charges of negligence are alleged in the petition, to wit: (1) That defendant, failed to furnish plaintiff with reasonably safe appliances and materials, in that it furnished him wire much harder and stiffer, and having a greater recoiling strength than the wire ordinarily used for such purpose; (2) that defendant failed to warn plaintiff of the dangerous quality of said wire; (3) that defendant negligently ordered and directed plaintiff to cut said wire without warning him of the qualities of said wire. The answer is a general denial, with pleas of contributory negligence and assumed risk.

With the issues thus made the cause went to trial to a jury. At the close of plaintiff's evidence defendant asked an instruction in the nature of a demurrer, which the court marked "given," whereupon plaintiff took an involuntary nonsuit with leave. Motion to set aside the nonsuit was overruled, and plaintiff has appealed.

The only question for our consideration on this review is whether the testimony introduced by plaintiff was sufficiently substantial to warrant its submission to the jury. As applied to the first charge of negligence plaintiff's testimony shows that the wire furnished was not annealed, and therefore it had a tendency to recoil; that it was of the size customarily used for the purpose to which it was applied, viz., No. 16 wire; that it had been used by other workmen for the same purpose; and that one-fourth to onehalf of the same roll had been so used without accident or damage to any one. ?laintiff's evidence was to the effect that even annealed wire sometimes will recoil slightly when cut, but not to the extent it did in this instance; that such occurrences are rare, and such accidents as befell plaintiff likewise are rare.

The testimony further shows that defendant had been warned of the condition of the wire as to its stiffness and rigidity, and that it was not suited for the purposes for which it was being used. One Clark, who was plaintiff's helper, and working with him at the time of the injury, testified that he, with another workman, had been using the identical wire...