Smith v. Union Electric Light & Power Co.

• Decision Date: 17 May 1910
• Citation: 128 S.W. 779,148 Mo. App. 572
• Court: Missouri Court of Appeals
• Parties: SMITH v. UNION ELECTRIC LIGHT & POWER CO.

128 S.W. 779

148 Mo. App. 572

SMITH v. UNION ELECTRIC LIGHT & POWER CO.

St. Louis Court of Appeals. Missouri.

May 17, 1910.

On Motion for Rehearing, May 31, 1910.

1. MASTER AND SERVANT (§ 116)—INJURY TO SERVANT—NEGLIGENCE OF MASTER.

A steam-fitter gang, of which plaintiff was a member, in the employ of defendant in the construction of a coal tower, was told by defendant's foreman to mount a certain scaffold, on which there was a platform consisting of six planks, and run some pipes and when they finished there to go to another scaffold and run some pipes there. The steam fitters on going to the second scaffold and finding no platform on it, told the carpenters, who had already carried away four of the six planks from the first platform, to leave the other two. These two planks, without any direction having been given them as to what planks they should take or where they should get them, though there was plenty of material on the floor below that on which they were working, the steam fitters, in the absence of the foreman, used for the platform of the second scaffold; and one of them, which was cross-grained and contained a knot, broke when plaintiff stepped on it. Held, that there is no evidence that defendant furnished these particular planks to the steam fitters with which to build the platform on the second scaffold, so as to make it responsible, in the absence of knowledge by it that it was defective and was about to be used.

2. MASTER AND SERVANT (§ 235)—INJURY TO SERVANT—CONTRIBUTORY NEGLIGENCE.

Steam fitters being told by their employer to do work from a certain scaffold, on which was a platform consisting of six planks, and then to do work from another scaffold after completing the work at the first scaffold, went to the second, and finding no platform on it, without being told what planks to use therefor, or where they should get them, though there was plenty of material on the floor below that on which they were working, took two from the scaffold on which they had been working, carpenters having already carried away the other four, and putting them on the second scaffold, plaintiff, one of the steam fitters, stepped on one of the planks, and it broke, where there was a knot in it and where it was cross-grained. Such defect could have been discovered by an inspection, which the steam fitters did not give. Held, that plaintiff was guilty of contributory negligence, the steam fitters having no right to assume that the plank as so used was sufficient, because it had been used with safety on the other scaffold, the first scaffold having had three cross-pieces for the planks to rest on, while the second had only two, even if such plank was not on top of another plank on the first scaffold.

Nortoni, J., dissenting.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Wiley B. Smith against the Union Electric Light & Power Company. Judgment for plaintiff. Defendant appeals. Reversed.

Respondent in his petition on which the case went to trial states that he was in the employ of appellant as a steam fitter's helper at work on a coal tower which defendant was erecting in the city of St. Louis; that he was at work in one of the apartments of the coal tower, engaged in running or placing pipes some distance above the floor of the apartment, and was working on a scaffolding covered with planks; that this scaffolding was in a defective and dangerous and not reasonably safe condition for plaintiff to work on or to use in doing his work by reason of one of the planks being at the time in a defective, dangerous, and not reasonably safe condition for use in the platform; was unsound, weak, and not of sufficient strength to bear the weight incident to its ordinary and reasonable use in the platform, or to bear the weight of plaintiff when using the platform, it having knots in it and cut across the grain; that defendant knew or by the exercise of ordinary care could have known of the defect in the plank and of its dangerous character in time to have remedied the unsafe condition of the platform, but negligently failed to do so, and negligently furnished it to plaintiff to work upon; that while plaintiff was at work on the platform and in the exercise of due care and without knowledge of the defect in the plank, it broke under plaintiff's weight, and he fell and was injured, to his damage, etc. The answer was a general denial and plea of contributory negligence of plaintiff in selecting and using the plank. The reply was a general denial.

At a trial before the court and a jury, there was testimony for plaintiff tending to prove the following facts: That on January 24, 1908, defendant was in possession and control of a plant at the foot of Ashley street, in the city of St. Louis. Adjoining this building was a coal tower, which it was erecting, and which was completed in a general way so far as the outside structure was concerned, and defendant was engaged in finishing the inside parts; plaintiff was a steam fitter's helper in the service of defendant. In one of the rooms of this coal tower there was a contrivance, known as a chute or hopper, which came through the ceiling at about the middle of the room and extended from the ceiling a few feet toward the floor, but did not reach to the floor. On January 24, 1908, the day of the injury, there was a scaffold on the west side of this hopper and within reach of the ceiling; this scaffold was composed of three timbers at about an equal distance apart running east and west and supported from beneath, and on those timbers in a north and south direction were laid planks or boards, composing the platform of the scaffold, these boards were from 12 to 14 feet long, 6 inches wide, and 2 inches thick. South of the hopper were two supports at about the height of this scaffold and from 6 to 9 feet apart. The boards on the scaffold were loose, as they were on all scaffolds that had been used while plaintiff was in the service of defendant, which was about 18 months, and during such time it was customary for the men using the scaffold to shift the planks of the platform to such position as their work required, shifting from one scaffold to another. Plaintiff was a helper, working with a steam fitter named Gallagher and with another helper named Altman. The three were under a foreman named Saffley, who in turn was under a superior named Tenney. On the day of the injury, Tenney directed this steam-fitter gang to mount the scaffold west of the hopper and run some pipes, and also directed them when that was done to run a line of pipes south of the hopper. Saffley also directed the same and supervised the steam-fitting work while it was going on, but was not present when the boards were put on the scaffolding by plaintiff and his fellow fitters, nor when plaintiff fell and was injured, nor had he nor Tenney nor any other superior given any directions in connection with the selection or placing of the boards on the scaffold. That was left to the steam-fitter gang, composed of Gallagher, and plaintiff and Altman. Pursuant to these orders, Gallagher and the two helpers mounted the scaffold west of the hopper, ran the pipe line directed, then, having finished this and left that scaffold, prepared to run the pipe line south of the hopper. To run this it was necessary to work from a scaffold which was there in place, but without any platform or boards on it. It was about the noon hour when the pipe line on the west was finished by these fitters. The carpenters who built the scaffold on the west side, supposing the steam fitters were through with it, and intending to take the boards which made its platform for use elsewhere started to remove the boards composing this platform of the west scaffold. The platform was composed of six boards. When the carpenters were in the act of removing them and had carried off four of them, Gallagher told them that he was not through running pipe and to leave two boards for them.

The foregoing is in the main taken from the statement of counsel for respondent. Referring to the abstract of plaintiff's own testimony as contained in the additional abstract furnished by his counsel, it appears that the carpenters left or turned over to the fitters two planks, whereupon plaintiff and Altman took these two planks which had been on this west scaffold and carried them around and put them on the top of the scaffold on the south side of the chute. One of the carpenters who had been working there took them off of the scaffold and gave them to these pipe fitters. Plaintiff was up on the scaffolding and Altman and Gallagher handed the planks up to him. Plaintiff laid the planks, putting down one while Altman, the other helper, put the other end of the plank in position. Altman and Gallagher handed the plank up to plaintiff who took hold of it and put it in position, first putting up one and then the other. Plaintiff testified that he did not see anything wrong with either of the planks that Gallagher handed to him; they appeared all right to him and he supposed they would to anybody. After laying the plank on the scaffold he stepped out on it and it broke, throwing him to the floor below. The plank was about 14 feet long, and it broke close to the middle, and while plaintiff said he could see to the middle of it very well, while he was handling it and putting it in position, he did not notice anything wrong with it, just gave it a passing glance; knew that it was important to have a strong plank as they were going to stand on it, but paid no attention to see whether it was strong or not, just supposed it was all right. Up to the time it broke it had looked all right. After it broke he noticed the knot in it which was nearly halfway across the 2×6 width of the plank; it went clear through the timber; had also noticed that this plank was cross-grained, noticed that after the accident. If he had looked for the knot or cross-grain before the accident...