Sloan v. Polar Wave Ice & Fuel Co.

• Decision Date: 30 July 1929
• Docket Number: No. 27645.,27645.
• Citation: 19 S.W.2d 476
• Court: Missouri Supreme Court
• Parties: WILLIAM H. SLOAN v. POLAR WAVE ICE & FUEL COMPANY, Appellant.

19 S.W.2d 476

WILLIAM H. SLOAN v. POLAR WAVE ICE & FUEL COMPANY, Appellant.

No. 27645.

Supreme Court of Missouri, Division One.

July 30, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. Robert W. Hall, Judge.

REVERSED AND REMANDED.

Kelley, Starke & Hassett and Conway Elder for appellant.

(1) The case was tried and submitted upon the sole theory that defendant was guilty of a violation of the scaffolding statute (Sec. 6802, R.S. 1919); and plaintiff's only instruction, other than upon the measure of damages (being Instruction 3), submitted that issue alone to the jury. This statute has been specifically declared unconstitutional by this court upon facts analogous to the case at bar, and defendant was and is entitled to have its demurrer sustained. Dyer v. Sutherland, 321 Mo. 1015. (2) The court erred in not sustaining appellant's demurrer to the evidence offered at the close of the whole case. Plaintiff's evidence shows that he was an experienced painter, accustomed to painting from scaffolds; that he aided in and directed the erection of the scaffold from which he fell, placing and securing the rigging and scaffold and the look-outs and sand in exactly the position and manner he desired: and that he knew that if the sacks of sand should shift or come off of the ends of the look-outs the scaffold might fall. Accordingly, he assumed all risk incident to this known, patent, and obvious danger, a danger incident to his employment, and defendant was not liable for any injury he may have sustained through the falling of the scaffold. Graves v. Street Ry. Co., 175 Mo. App. 337; Forbes v. Dunnavant, 198 Mo. 193; Gombert v. McKay, 201 N.Y. 27; Powers v. Loose-Wiles Co., 195 Mo. App. 430; Harbacck v. Iron Works, 229 S.W. 803; Knorpp v. Wagner, 195 Mo. 637; Texas Co. v. Strange, 62 Tex. Civ. App. 642; Hughes v. Schnavel, 20 Colo. App. 306. (3) The court erred in not sustaining appellant's demurrer to the evidence for the further reason that the evidence for plaintiff shows that it was always customary to test a scaffold every time it is moved, and plaintiff admitted that he had not tested the scaffold after it was moved the first time to do the second stretch of painting. By this failure to test plaintiff was guilty of contributory negligence as a matter of law and was not entitled to recover. Smith v. Electric Light & Power Co., 148 Mo. App. 572; Nuss v. Rafsnyder, 178 Pa. St. 397; Korpall v. Welding & Cutting Co., 253 S.W. 506; Roberts v. Telephone Co., 166 Mo. 370. (4) In view of plaintiff's testimony that he had erected the scaffold in question, had used it on other jobs, and had placed the bags of sand on the look-outs, in exactly the same manner as he had done on hundreds of occasions before, defendant cannot be charged with having exposed him to an unknown risk or one not ordinarily incident to his employment. There was therefore no negligence on the part of defendant, and aside from plaintiff's assumption of risk and contributory negligence, what happened constituted an accident for which defendant was not liable. Patrum v. Railroad, 259 Mo. 109; Wendall v. Ry. Co., 100 Mo. App. 556; DuPont v. Hipp, 123 Va. 49. It follows that defendant's Instruction L was entirely proper and should have been given. Lehnerts v. Elevator Co., 256 S.W. 822; DuPont v. Hipp, 123 Va. 49; Doody v. Woolen Mills, 216 S.W. 531; Sawyer v. Railroad, 37 Mo. 240; Henry v. Railway, 113 Mo. 525; Feary v. Railway, 162 Mo. 75; Felver v. Railroad, 216 Mo. 208. (5) The court erred in giving respondent's instruction numbered 3, for the reason that the evidence conclusively shows that plaintiff himself directed the manner of and assisted in the work of erecting the scaffold from which he fell. Therefore the statute upon which plaintiff attempted to predicate his case cannot be invoked, as such statute was not intended to inure to the benefit of one, who like plaintiff, actually erected the scaffold complained of. Forbes v. Dunnavant, 198 Mo. 193; Hogan v. Field, 44 Hun. 72; DuPont v. Hipp, 123 Va. 49; Gombert v. McKay, 201 N.Y. 27. (a) Said instruction is further erroneous because it sought to submit the case upon the doctrine of res ipsa loquitur, which has no application for the reason that plaintiff pleaded and attempted to prove separate and specific acts of negligence. Bonnarens v. Ry. Co., 273 S.W. 1043; Carpenter v. Burmeister, 273 S.W. 418; McGrath v. Transit Co., 197 Mo. 97. (b) And as the doctrine of res ipsa loquitur had no application the instruction should have submitted the specific acts of negligence pleaded and attempted to be proven, which it failed to do. Allen v. Ry. Co., 294 S.W. 87; Young v. Wolff, 190 Mo. App. 48; Miller v. Rys. Co., 155 Mo. App. 528. (c) Moreover, the instruction is but declaratory of the statute and wholly fails to submit any issue respecting any alleged negligence of defendant. (d) The instruction is further subject to the criticism that the concluding line thereof "or the falling of such materials or articles as may be used, placed or deposited thereon" presents an issue broader than the evidence, thereby rendering it erroneous. State ex rel. v. Daues, 284 S.W. 463; Nahorski v. Elec. Term. Ry. Co., 274 S.W. 1025; Phillips v. Am. Car & Fdy. Co., 274 S.W. 963. (e) Furthermore, the instruction fails to require the jury to find that defendant's failure to well and safely support the scaffold caused the injuries sustained by plaintiff, and is for that reason erroneous. Van Bibber v. Swift & Co., 286 Mo. 317; State ex rel. v. Cox, 276 S.W. 871; Lackey v. Rys. Co., 231 S.W. 963. (6) The court erred in admitting testimony on behalf of respondent that since the accident he had bladder and bowel trouble, for the reason that such injuries are not mentioned or pleaded in respondent's petition. Hibler v. Rys. Co., 237 S.W. 1014; Hall v. Coal & Coke Co., 260 Mo. 353; Walquist v. Rys. Co., 237 S.W. 493; Thompson v. Railroad, 111 Mo. App. 465; Shafer v. Harvey & Dunham, 192 Mo. App. 502; Johnson v. Railroad, 192 Mo. App. 1; Muth v. Ry. Co., 87 Mo. App. 422. And such testimony was not admissible upon the theory that bladder and bowel trouble was the necessary result of other injuries alleged in the petition for the reason that the evidence shows that such trouble is not necessarily the outgrowth of such other injuries but may result from many independent causes. Parkell v. Fitzporter, 301 Mo. 229; Lane v. Rys. Co., 228 S.W. 870; Connor v. Rys. Co., 250 S.W. 574; Hibler v. Rys. Co., 237 S.W. 1014; Fink v. Rys. Co., 219 S.W. 680; Thompson v. Rys. Co., 249 S.W. 106; Thompson v. Railroad. 111 Mo. App. 465.

Mark D. Eagleton and Hensley, Allen & Marsalck for respondent.

(1) By failing to raise the question in any manner in the trial court, appellant waived the contention that the scaffolding statute is unconstitutional. Lohmeyer v. Cordage Co., 214 Mo. 685; State v. Gamma, 215 Mo. 100; Hartzer v. Railway Co., 218 Mo. 562; Sheets v. Ins. Co., 226 Mo. 613; George v. Railroad, 249 Mo. 197; Lavelle v. Ins. Co. (Mo.), 231 S.W. 616. (2) The evidence of negligence on defendant's part precluded the granting of a demurrer on the ground that plaintiff assumed the risk. The defendant, by ordering plaintiff to use the staging without fastening the bags, selected the method to be followed. Defendant failed to provide plaintiff with any means with which to fasten the bags to the look-outs, ordered plaintiff to proceed without fastening the bags, and assured him that it was safe to do so. Under all the authorities this evidence presented a jury question as to defendant's negligence, and it necessarily follows that the court could not peremptorily order a verdict for defendant on the theory that plaintiff assumed the risk. Williamson v. Electric Light & Power Co., 281 Mo. 544; Williams v. Pryor, 272 Mo. 613; Curtis v. McNair, 173 Mo. 270; Burkard v. Rope Co., 217 Mo. 466; Wendler v. People's, etc., Co., 165 Mo. 536; Jewell v. Bolt & Nut Co., 231 Mo. 195; Stewart v. Gas Co. (Mo.), 241 S.W. 909. (3) Plaintiff was not guilty of contributory negligence as a matter of law. (a) There was no evidence of an order, rule or custom requiring plaintiff to test the scaffold, each time it was moved, by jumping up and down upon it; and even if such a custom had been shown, it would not establish a legal rule of ordinary care, but would merely raise a jury question. Brunke v. Tel. Co., 115 Mo. App. 38; Timmerman v. Iron Co. (Mo.), 1 S.W. (2d) 797. (b) The servant will not be convicted of negligence as a matter of law, so as to defeat his action for damages, unless the danger encountered by him is so imminent and glaring as to threaten immediate injury. Especially does this rule apply where the servant is complying with the master's order, and relying upon the master's assurance of safety. Buckner v. Horse & Mule Co., 221 Mo. 706; Burkard v. Rope Co., 217 Mo. 466; Jewell v. Bolt & Nut Co., 231 Mo. 176, 203; Sexton v. Garrison (Mo. App.), 295 S.W. 486; Williamson v. L. & P. Co., 281 Mo. 550; Compton v. Const. Co., 315 Mo. 1068, 1087; Edmondson v. Hotel Co., 306 Mo. 231; Fogus v. Railroad, 50 Mo. App. 259. (c) It does not appear, as a matter of law, that plaintiff was guilty of negligence with reference to his inspection and test of the scaffold. Cunningham v. Lead Co., 4 S.W. (2d) 806; Mooney v. Gasoline & Oil Co. (Mo.), 298 S.W. 69; Hall v. Coal Co., 260 Mo. 351; Yost v. Railroad, 245 Mo. 219; Hester v. Packing Co., 95 Mo. App. 16. (d) There was no evidence that plaintiff's failure to test the scaffold, before going upon it the second time, was "the producing and efficient cause of the casualty," and therefore such failure cannot defeat his recovery. Hires v. Groccry Co. (Mo.), 296 S.W. 411; Cabanne v. Car Co., 178 Mo. App. 731; Dickson v. Ry. Co., 124 Mo. 140. (4) The court properly refused defendant's Instruction L. (a) There was no evidence tending to show that plaintiff's injury was due to an accident; that is, "an event proceeding...