Schrader v. Kessler, 38805.
| Decision Date | 06 March 1944 |
| Docket Number | No. 38805.,38805. |
| Citation | 178 S.W.2d 355 |
| Parties | SCHRADER v. KESSLER. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court; James F. Nangle, Judge.
Action by Albert T. Schrader against Joseph J. Kessler for personal injuries sustained when plaintiff fell from a scaffold erected by defendant. From a judgment for defendant, plaintiff appeals.
Judgment affirmed.
Fred S. Henderson and J. M. Feigenbaum, both of St. Louis, for appellant.
J. D. Leritz, of St. Louis, for respondent.
VAN OSDOL, Commissioner.
Action for $20,000 for personal injuries sustained when plaintiff fell from a scaffold erected by defendant. The jury returned a verdict for defendant, and judgment for defendant was rendered. Plaintiff has appealed.
Ecclesiastical Marble Company, "a close corporation" (plaintiff, his uncle Joseph W. Schrader, and another were the only stockholders), contracted to install a marble high altar with decorative canopies in the Church of Our Lady of Sorrows at St. Louis. Marble Company engaged defendant (respondent) upon a time and material basis to erect the necessary scaffolding "according to his own notion." Plaintiff was, at the times herein mentioned, an officer and employee of Marble Company and, with his uncle Joseph, assisted in and supervised the installation of the canopies and altar. Three others were employed by Marble Company in the progress of this work.
The plans for installation of the altar required the placing of the altar, sheltered by the canopies, at the west within the sanctuary of the church building. In constructing the necessary scaffolding, defendant erected two isosceles-triangular perpendicular auxiliary scaffolds, or "cribbings," about 28 feet in height; one on the north and one on the south of the proposed site of the altar. A 4" × 4" upright, throughout the height, supported each angle of each scaffold, and the base side of each scaffold faced the proposed site of the altar. Each base side of each scaffold was bisected by a 6" × 6" upright; these uprights supported a horizontal beam, heavy timbers bolted together. The 3,500 pound lower canopy was thereafter hoisted by a block and tackle attached to the beam and, when the canopy was hoisted a sufficient height, four permanent upright pilasters or columns were set, and the canopy was then lowered upon them. The lower canopy was surmounted by a smaller one through which there were apertures or "small windows." After the canopies were placed, it was necessary to remove the beam that a large wooden cross could be raised above the upper canopy. The defendant removed the beam at the request of plaintiff, or his uncle. It was also necessary, after the canopies were placed, to construct a main central scaffold, 16 or 18 feet above the floor level; this, to enable the work of decorating and painting the lower canopy. The defendant constructed the platform of the central scaffold, supporting it by ledgers connecting the auxiliary scaffolds and, in the center of the space between the auxiliary scaffolds in a line east and west, three 2" × 4" uprights were placed as additional support to the central scaffold. The defendant testified of the completion of the central scaffold, "That is the last time I done any work." This was on the 28th of February; and, according to the testimony of defendant, "they (the 2" × 4" uprights) were there when I left" on that date.
A position for workmen in the decorating and painting of the upper canopy was provided by placing boards through the apertures in that canopy. As the work progressed, some of the boards of the various platforms of the scaffolds were shifted by Marble Company's workmen and used to supply needs for lumber in other uses in and about the installation. It appears that it was necessary, in order to reach some of the higher levels of the upper canopy, that the workmen should climb to the high platform of the south auxiliary scaffold 28 feet from the floor; two lengths of ladder had been provided on the scaffold by which workmen could get from the floor level to the various levels of construction, the ladders extending to within three or four feet of the top platform; the boards of this platform were supported by ledgers nailed, with three eightpenny scaffold nails, to the 4" × 4" uprights at the angles of the scaffold. Since the square uprights were placed in the acute angles of the scaffold, the nails through the ledgers were necessarily driven into the corners of the uprights. According to the testimony of witnesses for plaintiff, no cleats or braces were placed beneath these ledgers, and the nails were driven through the ledgers "on a slant."
In the placing of the altar in proper position beneath the lower canopy, two of the 2" × 4" upright supports (those to the eastward) of the central platform were removed; it was the testimony of defendant that this had
The altar and canopies were completed in the latter part of March, and on March 29th plaintiff climbed upon the upper platform of the south scaffold and was removing, or supervising the removal, of boards from the apertures in the upper canopy. Plaintiff testified that as he was standing on the platform somewhat back of and between the 6" × 6" upright and the west 4" × 4" upright, "this scaffold shifted this way (indicating), causing me to fall down, and in doing so this (west) ledger (indicating) went with the platform." Plaintiff fell to the floor and was injured.
The cause was submitted to the jury by plaintiff's Instruction Number 1 upon the hypothesized negligence, failure to exercise ordinary care, specifically, in causing the ledger "to be nailed against the corner of the upright supporting such ledger without bracing same * * *." The converse of plaintiff's Instruction Number 1, defendant's Instruction Number 7, advised the jury that defendant discharged his duty to plaintiff if defendant exercised ordinary care in fastening together "the various parts, including the ledger mentioned in the evidence, so as to make the scaffold reasonably safe." The jury was also instructed, defendant's Instruction Number 5, to find for defendant if, during the time the scaffold was in the control of Marble Company, the various parts of the scaffold were removed or changed by the agents or employees of Marble Company and "that such removing, changing, detaching and replacing * * * caused, or contributed to the cause of, plaintiff falling from said scaffold * * *." (Our italics.)
Plaintiff (appellant) assigns errors (1) in instructing the jury that the defendant had the duty to exercise (only) ordinary care in the construction of the scaffolds, inasmuch as the legislature had required that scaffolds "shall be erected and constructed, in a safe, suitable and proper manner * * *." Section 10226, R.S. 1939, Mo.R.S.A. § 10226; (2) in refusing to permit plaintiff's counsel to urge the...
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