Savage v. Raterman Building & Contracting Co.

• Decision Date: 03 June 1919
• Docket Number: No. 15483.,15483.
• Citation: 214 S.W. 290
• Court: Missouri Court of Appeals
• Parties: SAVAGE v. RATERMAN BUILDING & CONTRACTING CO.

214 S.W. 290

SAVAGE v. RATERMAN BUILDING & CONTRACTING CO.

No. 15483.

St. Louis Court of Appeals. Missouri.

June 3, 1919.

Appeal from St. Louis Circuit Court; James S. Withrow, Judge.

"Not to be officially published."

Action by Maximilian Savage against the Raterman Building & Contracting Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Carter, Collins & Jones and James Campbell, Jr., all of St. Louis, for appellant. Safford & Marsalek, of St. Louis, for respondent.

ALLEN, J.

This is an action for personal injuries sustained by plaintiff while in the employ of the defendant corporation as its servant, alleged to have been caused by the negligence of defendant. The trial, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $2,500, and the case is here on defendant's appeal.

At the time of his injury, to wit, June 3, 1909, plaintiff was employed by defendant as a laborer and was engaged in removing bricks from the top of a wall which had formed part of a building in the city of St. Louis which defendant was then engaged in tearing down. The building, then partly demolished, had been a church or chapel. It was about 60 feet in length, extending east and west, and about 25 feet wide. It appears that within the building, at a distance of about 20 or 25 feet from the west wall thereof, was a partition wall, or "cross-wall," which joined the north and the south walls; it did not, however, extend, as a straight wall, entirely across the building, from north to south, but at a distance of 4 or 5 feet from each of the side walls it extended west in a semicircular curve, and served to form a sacristy, it is said, which was covered by a dome. At the time of plaintiff's injury the roof of the building and much of the interior had been removed, but the outer walls had been only partly demolished, and this dome remained standing. Plaintiff's testimony is that the straight portion of the cross-wall at the south side of the building was standing at the time in question (though there is testimony that it had been previously removed), but that it had been separated from the south wall; a narrow strip of the cross-wall having been torn away at its junction with the south wall. According to the testimony for plaintiff, this cross-wall, at its south end, was then about 5 feet higher than the south wall, the latter being 35 or 40 feet high, while the dome extended about 5 feet above the top of the cross-wall. Certain "platforms" had been erected inside of the outer walls for the use of the workmen.

One Moeller was appellant's foreman in charge of the work in question. Plaintiff was employed for defendant by Moeller, and had been in defendant's employ but seven or eight days when injured; and the evidence is that plaintiff was then a young man 19 years of age, without previous experience in work of that character; and that' he was of foreign birth and understood English but imperfectly. It appears that on the day of plaintiff's injury the foreman told one Sulich, one of defendant's workmen, to work on the south wall of the building at the point where plaintiff was later seated when he received his injuries; that Sulich declined to do so; and that the foreman then put him at work upon the ground. Plaintiff testified that he was some distance away when this conversation took place, but that he heard some of it, saw Moeller point to the place in question, upon the wall, and heard Sulich say, "No."

According to plaintiff's testimony, he was at work on the north side of the building when the foreman came to him and said: "Come with me.' The foreman then took him around the west end of the building, along a platform which followed the wall, to a point on the top of the south wall at the south end of the cross-wall which was then separated from the south wall by a space six inches in width. The foreman then ordered plaintiff to take bricks from the south wall, remove the mortar, or some of it, from them, and slide them down a chute to the ground, showing plaintiff how this was to be done.

Plaintiff thereupon sat upon the south wall, facing north, i. e. facing the interior of the building, with one leg upon each side of the cross-wall mentioned....