St. Louis Expanded Metal Fireproofing Co. v. Dawson

• Decision Date: 29 October 1902
• Parties: ST. LOUIS EXPANDED METAL FIREPROOFING CO. v. DAWSON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

70 S.W. 450

ST. LOUIS EXPANDED METAL FIREPROOFING CO. v. DAWSON.^*

Court of Civil Appeals of Texas.

October 29, 1902.

Error from district court, Bexar county; J. L. Camp, Judge.

Action for personal injuries by Frank B. Dawson against the St. Louis Expanded Metal Fireproofing Company. Judgment for plaintiff, and defendant brings error. Affirmed.

P. H. Swearingen, for plaintiff in error. Jas. Rontledge and J. R. Norton, for defendant in error.

JAMES, C. J.

This cause was once remanded for a new trial as between appellee and appellant. 59 S. W. 847, 61 S. W. 118. Additional testimony was adduced on the last trial which materially affects the disposition of the case in this court. As conclusions of fact in support of the verdict, we find from the evidence, following in their order the propositions relied on in appellant's brief, the following facts: (1) That Dawson was rightfully upon the floor where and when he was hurt, in the prosecution of his work. (2) The injury he received was due to the negligence of appellant in leaving the reconstructed panel in an unsafe condition for workmen engaged thereon, and the presence of Dawson upon the panel and his injury were within what could have reasonably been anticipated, and that appellant owed him the duty of proper care in respect to the safety of the panel. (3) The dangerous condition of the panel was unknown to Dawson or to his master, Shields, and plaintiff did not assume the risk.

These general conclusions of fact are given in view of the statute requiring conclusions of fact, and in the course of this opinion the evidence will be referred to more in detail.

The assignments of error are grouped in an unusual and complex manner, but propositions under them are distinctly presented, and to these our attention will be directed and confined. These propositions contend chiefly for the questions arising on the evidence, and involved in the finding of the jury.

It appears that Dawson was a carpenter in the employ of Shields, who had the contract for building the addition to the Southwestern Insane Asylum. Appellant was his subcontractor for the construction of the cement floors. The misfortune occurred on the second floor of the north wing. That floor had been completed, so far as the work of appellant thereon was concerned, and, some weeks before the accident, had been turned over to Shields, as complete, for him to prosecute his work thereon. Shields had gone there with his men and materials, had carried up the walls of another story, and the next floor above had been constructed. In constructing the flooring the concrete was laid between iron joints, and was supported by scaffolding or centering below until it had become sufficiently hardened and set. The supports had been removed and the floor appears to have been safe when delivered over to Shields, and he had used it to work thereon in carrying up the walls, and in erecting the supports for the next floor, which had also been put in at the time of this accident. It was a part of Shields' work, under his contract with appellant, to construct the scaffolding or centering in the first instance, but any extra work was to be done by appellant. It was an understanding between Shields and appellant's foreman, Jester, when they started work, that Shields would give him the portion of the building he was working on until he (Jester) told him it was ready to go on to work. Under the floor in question on Thursday before the accident, which occurred on Saturday, a slight crack was observed in one of the panels; and according to the testimony of Jester, appellant's foreman, Shields told him to replace that panel, and he told Shields that he would. Shields testified that he called Jester's attention to this crack, and said: "You see this crack here?" Jester said: "Yes; I have noticed that." Shields said: "You will have the same to do you had down below, and when Gordon [the architect] comes he will make you take it out. Now, you know what is best to do about it. If Mr. Gordon comes and finds it out, he will certainly make you take it out, and you might as well do it without having him come after you." And he said: "I will do that when I get time." Under the contracts the architect, Gordon, was the person to order such repairs to be made, and not Shields. This conversation took place on Thursday, and the next day Jester had the particular panel removed and replaced, putting up centering under it to sustain it. The next day (Saturday) Jester took away the centering, to use the lumber for some other purpose, leaving the freshly repaired panel without support; and, after this was done, Berry, Shields' foreman, or Shields, at the request of the superintendent of the asylum, sent Dawson and another employé, Fuos, to that floor, to board up an open doorway that had been left between this room and the main building, to keep the wind out of the main building, where the inmates of the institution were. The repaired panel was right at this door, and in doing this work the panel gave way under the men, and plaintiff fell into the lower story and was injured. The injury happened very soon, and much less than an hour, after Jester had removed the centering below the panel. There was abundant testimony showing that the centering had not been allowed to remain under the new panel the required or the usual time nor long enough to allow the panel to become hardened and safe for use. It was shown by evidence that at the time of this accident, and during that week, Shields had his carpenters working on another wing of the building; but there was testimony that during the week a few days before the accident they had been working on this floor, putting strips on the floor to nail the wood floor to, and had nailed down the strips, except at the west end of the room, where the panel was situated, leaving that part of the work unfinished. At the time Jester repaired the panel, Shields, with his men, was engaged on the other wing. Fuos testified that lots of times, while they worked on the south wing, Berry would move the workmen to other parts of the building. It appears that neither Shields, Berry, nor Dawson knew that Jester had undertaken to repair the panel.

The first proposition of plaintiff in error is: "Dawson had no right on the panel through which he fell on the Saturday of the accident." The second proposition is that the evidence "shows that there was no duty which the metal company owed either to Dawson or to the public in a matter whereof Dawson had the right...