Weber v. Hinds

• Decision Date: 07 April 1969
• Docket Number: No. 25074,25074
• Citation: 440 S.W.2d 129
• Parties: Jack WEBER, Appellant, v. Norman Luther HINDS, Respondent.
• Court: Missouri Court of Appeals

Page 129

440 S.W.2d 129

Jack WEBER, Appellant, v. Norman Luther HINDS, Respondent.

No. 25074.

Kansas City Court of Appeals, Missouri.

April 7, 1969.

Bundschu, Bailey & Disney, Kansas City, for appellant.

Deacy & Deacy, Edward W. Mullen, D. Lee McMaster, Kansas City, for respondent.

SHANGLER, Judge.

Plaintiff Jack Weber brought suit for damages against his uncle, defendant Norman L. Hinds, for those injuries suffered when he fell from the roof of defendant Hinds' residence at 7611 Jefferson in Kansas City, Missouri. The pleaded theory of recovery was that defendant had expressly invited plaintiff to help repair that roof, and, at defendant's direction, plaintiff ascended a ladder for access thereto. It was further alleged that as plaintiff stepped from the ladder onto the roof, the covering tar paper, or 'felt' as it was also called, 'slipped', so that the plaintiff lost his balance and fell to the ground. Actually, there was no evidence of 'slipping' of the paper; rather, the only evidence was of a tearing of it. Plaintiff submitted on the issue that the tar paper was 'inadequately secured', so that the roof was not reasonably safe, and that defendant negligently failed 'to secure it or warn of it'. The jury found the issues for defendant; judgment was entered in his favor and plaintiff appeals.

Plaintiff contends the trial court committed error by submitting Instruction No. 8 on behalf of defendant. We need not elaborate the point as our disposition of this appeal makes it unnecessary. The defendant, on the other hand, asserts, inter alia, that plaintiff's evidence failed to make out a submissible case as the condition of which plaintiff complained was open and obvious, as well known to him as to defendant; therefore, he argues, the judgment should stand.

As we review the evidence, we make no reference to that testimony bearing on the issue of plaintiff's status while on defendant's premises. It was a vigorously contested issue. We assume throughout our discussion that plaintiff was defendant's invitee as, in any event, plaintiff did not prove a submissible case.

On Saturday, August 14, 1965, plaintiff Weber, in the company of his wife and child, appeared at defendant's home about 8:00 o'clock A.M. to help defendant in the task of replacing the roof of his home. According to plaintiff, this help was intended as a gesture of reciprocity for defendant's efforts in moving plaintiff from Kansas City to Independence. Defendant Hinds was an experienced carpenter, although not then occupied as such and had constructed the second story addition to his home all by himself. It came to leak badly, so he undertook to replace the roof and by the day of the occurrence, he had torn the shingles from it and the sheeting from the rafters. He had also covered the roof with plyboard sheeting and nailed it sufficiently securely to hold it in place. The only things remaining to be done on Saturday were the additional nailing of the plyboard sheeting, removal of debris to the dump and the covering of the roof with tar paper.

When plaintiff arrived that Saturday morning he helped with discarding the debris at the dump. Upon their return, defendant fitted plaintiff with a nail apron and hammer; they ascended to the roof and nailed down the sheeting. Plaintiff had never before done any roofing. He estimated the pitch of the roof at 40 degrees and its height above the ground at 12 feet. He, himself, weighed about 180 pounds or more and was then attired in low cut, rubber soled tennis shoes. He knew that his uncle, defendant Hinds, was a practiced carpenter and was relying upon his knowledge of carpentry. Plaintiff was aware of the presence of toeboards at different locations on the roof which consisted of two by fours, fourteen feet in length. He was aware of their function as safety devices designed 'to keep you from sliding off' the roof and appreciated the possibility of injury should he fall to the ground. Defendant, on his part, acknowledged the dangerous aspects of roofing and was aware, as well, of plaintiff's lack of experience in such work. Michael Brogan (who had become defendant's son-in-law by the time of trial) and Harold Phelps worked on the roof intermittently, although it is not clear how long they were in the vicinity. They were not present at the time of plaintiff's fall, and did not witness it.

At about 12:30 o'clock P.M., Mrs. Hinds served lunch informally and plaintiff consumed several cans or bottles of beer furnished by Mrs. Hinds before work was resumed at about 2:30 o'clock P.M. By plaintiff's account, he, Brogan and defendant returned to the roof and completed the nailing of the sheeting within 15 minutes. Plaintiff and Brogan descended to the ground and then, at defendant's request, plaintiff handed him a roll of tar paper while standing on a ladder and then moved the ladder from west to east. From the ground, he observed defendant securing the tar paper, going from west to east, spacing the nails between 18 inches and 25 inches. He did not have any judgment as to the number of nails in the paper, and did not know if it was enough to support him or anyone else. Upon cross-examination, his analysis of defendant's work was somewhat differently stated. The substance of that testimony, as well as his deposition statements, the truth of which he acknowledged, will be recounted later. According to plaintiff, defendant then proceeded to pry loose two toeboards and place them laterally to, and about two feet above, the eaves. Although he had needed no help with the other two toeboards, he loosened the third one and requested plaintiff to come upon the roof once again to help him nail it down 'in line with the others'. Plaintiff admitted on cross-examination that as the ladder protruded about 6 or 8 inches above the roof, he could have nailed the toeboard in the desired position more easily from the ladder. Nevertheless, he stepped off the ladder, attempting to clear the three feet width of the tar paper in so doing, and succeeded in placing his toe on the plyboard and his heel on the tar paper. The tar paper 'broke loose' and he fell to the ground below. During that maneuver, the third toeboard was in defendant's hands. Plaintiff was not aware 'that tar paper would tear under those conditions', or that it would 'give way'. Mr. Hinds did not warn him not to step on the tar paper, although at the time he stepped on it, plaintiff thought it to be secure. In his cross-examination examination testimony, once again his version of the incident varied. We shall also recount that later.

Fred Weber, plaintiff's brother, was the only other witness to the fall in addition to the parties themselves. He was a boarder at the home of the defendant, his uncle. He generally corroborated plaintiff's account of the occurrence. He observed defendant was on the roof nailing the first strip of tar paper near the edge of the roof; plaintiff had handed defendant a roll of tar paper; two toeboards had been nailed along the edge of the roof. Defendant asked plaintiff to 'come up here * * * and put on the toeboard'. He saw his brother go upon the roof and 'before they had even passed the toeboard * * * the tar paper gave way at that time from the nails, and that is when the fall--that is when he fell'. He dragged his brother from his prostrate position, placed him in an easy chair, ran to the ladder, climbed to the roof and observed the area 'where the paper tore'; the nails 'were hammered down all the way into the tar paper' as to indent it as the paper was 'fairly thick * * * maybe an eighth of an inch'. When plaintiff had gotten both feet on the tar paper, about one or one and one-half feet from the edge of the roof, he turned around to grasp the edge of the toeboard and the tar paper gave way. The witness could see the nails in the paper from the ground but not how many or how deeply they were imbedded in the paper.

Defendant Luther Norman Hinds testified that he had worked as a carpenter for ten or twelve years. When they went up to the roof to nail the plyboards, toeboards were used as safety devices. After lunch, he went upon the roof, laid the first tier of tar paper from west to east at the bottom of the roof and nailed it down. He then brought the toeboards down, nailed them about in the center of the paper sheet, estimated by plaintiff to have been about three feet in width, so that in laying successive sheets of tar paper above, he would have a place for secure footing. He had nailed down two toeboards without help and uneventfully. He had placed the third toeboard down as to overlap the second, had driven a 16 penny spike through it and was about to move out upon it from his sitting position on it in order to nail it, when plaintiff came from defendant's left side, walking between defendant and the roof, 'to the end of the toeboard, walked out onto the tar paper, reached down and got hold of the toeboard and went off the roof--taking the toeboard with him', and tearing the tar paper in the process. This was defendant's first indication that plaintiff was on the roof at that time.

Upon cross-examination, defendant acknowledged that roofing a house was dangerous and that plaintiff was inexperienced. Plaintiff had helped in laying the first roll of tar paper and had stood on the toeboard above the paper unravelling it, while defendant nailed the paper. This course was followed from west to east across the entire roof. Defendant spaced the nails about two feet apart at the top of the paper and about six to eight inches apart at the bottom of it. As the bottom of the paper could not readily be reached from the toeboard above, it was nailed by defendant while standing on the ladder, using scaffolding between two ladders, as well. He did not recall whether it was plaintiff or Mike Brogan who helped him in this project. Whoever it may have been, he had returned to the ground while the nailing of the bottom of the...