Stapleton v. Hummel Mfg. Co.

• Citation: 202 S.W. 369
• Decision Date: 16 February 1918
• Docket Number: No. 18799.,18799.
• Parties: STAPLETON v. HUMMEL MFG. CO.
• Court: United States State Supreme Court of Missouri

202 S.W. 369

STAPLETON v. HUMMEL MFG. CO.

No. 18799.

Supreme Court of Missouri, Division No. 2.

February 16, 1918.

Rehearing Denied April 9, 1918.

Appeal from St. Louis Circuit Court; W. M. Kinsey, Judge.

Action by John Stapleton against the Hummel Manufacturing Company. Judgment for defendant, and plaintiff appeals. Affirmed.

E. C. Dodge, of St. Louis, for appellant. Sidney Thorne Able, of St. Louis, for respondent.

WHITE, C.

The plaintiff, on September 10, 1913, while employed by the defendant, was injured by the falling of a scaffold upon which he was at work. The defendant company had a contract to do certain metal work in connection with the heating and ventilating system of the Yeatman High School in St. Louis. The work was done in the basement in a room described as 25 by 40 feet in dimensions. Plaintiff fell a distance of 8 or 9 feet. The scaffold was caused to fall by the removal of what is called an "angle iron." This angle iron was put in to support the metal work, and not the scaffold which, it appears was otherwise supported. Being of insufficient length to reach the floor, it had been blocked up and was removed for the purpose of replacing it with one of proper length which would be a part of the permanent structure. However, it appears to be conceded that its removal was the cause of the scaffold falling.

There were about six men employed on the job by the defendant, all at work in the room mentioned. The plaintiff's evidence tends to show that C. M. Hummel, president of the company, who was foreman in charge of the job, removed the angle iron and thereby caused the collapse of the scaffold. The evidence of the defendant is to the effect that it was removed by one Lloyd Claridge with the assistance of one Tucker, both of whom were employes working on the job.

The main instruction given at the instance of the plaintiff directs the jury to find for the plaintiff if they should find from the evidence that "the president of the defendant company," without exercising ordinary care for plaintiff's safety, negligently removed a support from one of the ends of the said scaffold and thereby caused it to fall apart. The . only other instruction asked by plaintiff was one on the measure of damages, and it was given.

Two instructions were given for defendant. The first as follows:

"The court instructs the jury that, if they shall believe from the evidence that L. Claridge took away, without warning to plaintiff, the upright angle iron causing plaintiff to fall, that said act was the act of a fellow servant, and plaintiff is not entitled to recover and your verdict shall be for defendant, unless you further find that said Claridge was acting at the time under the direct orders of defendant's president, Mr. Hummel, and in his presence."

The second is expressed in the same terms, excepting the names of Claridge and Tucker both are used as the employes who took away the support. The jury returned verdict for the defendant.

I. The first error assigned is to the action of the court in permitting one Dr. Kinder, over plaintiff's objection, to answer hypothetical question propounded by defendant. The purpose of the question was to show that the injuries which the plaintiff received were not permanent. It was conceded that he received some injuries. It is unnecessary for us to determine whether the question was put in proper form. The information to be elicited, in any event, would go only to the measure of damages. There was a verdict for defendant, and the evidence would not have affected that result; if the ruling was erroneous it would not be reversible error. Harrison v. Kansas City El. Light Co., 195 Mo. 606, 93 S. W. 951, 7 L. H. A. (N. S.) 293; Chapman v. Railroad, 240 Mo. 592, 144 S. W. 469.

II. The only other error assigned is the action of the court in giving the instructions mentioned for the defendant. The objection to these instructions is that they assume Claridge and Tucker were fellow servants of the plaintiff for whose negligence the defendant was not responsible. The appellant claims that they were not fellow servants, because the plaintiff was a sheet metal worker and Claridge was a structural iron worker. The latter erected the scaffold.

It is shown that the defendant employed only six or eight men, and about six of such men were at work at this time on this job, all working in the same room at the same time and under the same foreman on the same job. Hummel was the only foreman who had anything to do with directing how work should be done. Apparently it was necessary for their work to be done together, the sheet metal work and the structural iron...