Raines v. Tetley-Klein Lumber Co.

• Decision Date: 14 June 1910
• Citation: 149 Mo. App. 576,129 S.W. 742
• Parties: RAINES v. TETLEY-KLEIN LUMBER CO.
• Court: Missouri Court of Appeals

129 S.W. 742

149 Mo. App. 576

RAINES v. TETLEY-KLEIN LUMBER CO.

St. Louis Court of Appeals. Missouri.

June 14, 1910.

MASTER AND SERVANT (§ 185)—INJURY TO SERVANT — NEGLIGENCE OF FELLOW SERVANT.

Plaintiff, with other carpenters, was employed to reconstruct a building with material furnished by defendant. Defendant's president, or, in his absence, its secretary, directed the carpenters as to what to do, but the manner of doing the work was left to the carpenters. A scaffold was constructed by them for use in their work, and while plaintiff was at work on another part of the building, another carpenter, under the direction of defendant's secretary, took down a part of the scaffold and subsequently replaced it. The carpenter who replaced the scaffold failed to fasten it securely, and, when plaintiff had occasion to use the scaffold again it fell. Held, that if the scaffold had given way, in consequence of some fault in its original construction, plaintiff could not have recovered, but that defendant was liable for injuries resulting from negligence in rebuilding the scaffold, even though the rebuilding was done by a fellow servant, as in rebuilding it defendant undertook to provide an appliance for the carpenters' use, and was therefor responsible for the negligence of the carpenter who rebuilt it.

Appeal from Circuit Court, St. Francois County; Chas. A. Killian, Judge.

Action by Napoleon B. Raines against the Tetley-Klein Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Wm. S. Anthony, for appellant. Marbury & Hensley, for respondent.

GOODE, J.

A scaffold broke down while plaintiff was on it engaged in work for defendant company, letting him fall to a side-walk below and breaking a bone in his foot, for which injury he was awarded a verdict by the jury. In the conduct of its business in the city of Farmington, defendant uses an office and some sheds on a north and south street. At the time of the accident, its office building was being reconstructed and enlarged by mechanics defendant employed by the day, and who were not under the superintendency of any one individual. Defendant's president, Tetley, or, in his absence, the secretary, Klein, directed the workmen about the job in the way to be stated. The workmen were skilled carpenters, and the orders given to them by the officers of defendant were not how to do the work, but general directions about what work defendant wanted done, the materials being furnished by defendant, and, whenever material was needed that was not on hand, it would be delivered to the mechanics by command of one of said officers of the company. Four carpenters were employed on the job the day of the accident, and, as Tetley was absent from the office, orders of the character aforesaid about the work were given by Klein, the secretary, from time to time. The particular task the men were performing that day was nailing sheet tin on the outside of the office building, and, to enable them to put on the tin toward the top of the walls, a scaffold had been erected around the building, or three sides of it. The carpenters built the scaffold out of material furnished by defendant, and no question is made about the material being suitable. On the front of the building, which we believe faced east, though the record is vague as to that, one of the "put-lock" (put-log) boards as the witnesses called it, on which the floor of the scaffold rested, was nailed at one end to the frame of the door of the office, and at the other end to a telephone pole standing a few feet from the door. This board was nearly an inch thick and seven or eight inches wide, and was stanchly fastened to the door and the telephone pole by driving four or five tenpenny nails through each end. The door of the office stood back a few inches from the sidewalk, and defendant had arranged with a firm to lay in concrete in the space between, thereby making a smooth surface from the walk to the door. To do this it was necessary to remove the doorframe, and, to take the frame out, it was necessary to detach from it and the telephone pole, the board or putlog on which the floor of the scaffold rested and take down part of the scaffold in front of the door. While plaintiff and another carpenter, Ebricht, were engaged at work elsewhere on the scaffold, defendant's secretary Klein ordered Arnold Day, one of the carpenters, to remove the doorframe, and in doing this he removed the end of the scaffold, detached the putlog, and then removed the doorframe. Klein helped a little about this work, to what extent is not clear; but he saw it all done. After the doorframe had been removed, Day set about restoring the part of the scaffold he had taken down, and to this end first renailed the putlog board to the telephone pole, then nailed a cleat somewhere in the doorway, to fasten the putlog to, the doorframe to which it had been fastened having been taken away. While Day nailed the end of the putlog board to the telephone pole, Klein held the other end to facilitate nailing it; but, after the outer end had been fastened to the post, he remarked that Day could nail the other end without help and went away. Day drove one tenpenny nail through the end of the putlog board, and within an inch of its upper edge, into the cleat nailed to the doorway of the office. Having no more such nails, he went...