Whitehead v. Koberman

• Decision Date: 08 November 1927
• Docket Number: No. 19716.,19716.
• Citation: 299 S.W. 121
• Parties: WHITEHEAD v. KOBERMAN.
• Court: Missouri Court of Appeals

299 S.W. 121

WHITEHEAD v. KOBERMAN.

No. 19716.

St. Louis Court of Appeals, Missouri.

November 8, 1927.

Appeal from St. Louis Circuit Court; Anthony F. Ittner, Judge.

"Not to be officially published."

Action by Jackson Whitehead against Albert Koberman, doing business as the Albert Koberman Realty & Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Holland, Rutledge & Lashly and Wayne Ely, all of St. Louis, for appellant.

Strubinger & Strubinger, of St. Louis, for respondent.

BECKER, J.

Plaintiff recovered judgment in the sum of $2,000 against the defendant In an action for damages for personal injuries alleged to have been sustained by him in the employ of the defendant. Defendant in due course appeals.

Plaintiff's amended petition alleges that whilst he was in the employ of the defendant, said defendant failed to exercise ordinary care to furnish him a reasonably safe place in which to work, and alleges specifically three separate assignments of negligence in this regard:

"(1) In building certain brick piers upon a rock foundation that was or should have been known to defendant to have been weak and insecure because the stone thereof was laid in lime mortar containing too great a portion of sand.

"(2) That defendant failed to withdraw plaintiff from the building under construction when he knew, or should have known, it was about to fall.

"(3) That defendant required and suffered plaintiff to be upon the building when he knew or should have known that it was likely to collapse because a certain brick pier built by defendant was too weak to sustain the weight put upon it and had been caused to bulge or be out of plumb, and that the ends of the iron beams and lintels resting upon said pier were not anchored or in any way fastened, and that the falling of the brick pier would cause to fall the portion of the building supported by it, and plaintiff was thereby liable to be injured."

The petition further alleges that as a result of his injuries he was forced to lose approximately $500 in wages, and that he has obligated himself for medical treatment to the extent of $75.

Defendant's answer was a general denial. From the record before us it appears that the plaintiff, a colored hod carrier, 45 years of age, was injured on April 14, 1924, while in the employ of defendant, who, as brick contractor, was doing the brick work on the one-story building then in course of construction at 5419 Gravois avenue, St. Louis, Mo.

The building was 75×100 feet. On the Gravois avenue side of the building the defendant constructed four brick piers upon a rock foundation, or pilaster, which had been put up by a stone contractor. The brick piers in dimensions were 2 feet 2 inches by 13 inches, by 11 feet high. When these brick piers along the front of the building were at the proper height, the defendant stopped work and an iron contractor laid certain ironwork. This ironwork consisted of iron lintels which extended across the front of the building, each brick pier supporting the ends of two such lintels. The end of an iron beam also rested on each one of these brick piers and extended back to the rear of the building to an upright or column. This ironwork, where it rested on the piers, was not fastened together.

After such ironwork was laid by the iron contractor, the defendant went back to work and laid brick over and around the ends of the lintels and iron beam, and above the lintels the building was carried up with solid brick and terra cotta work.

At the close of the day, on the day of the accident, the brick work on the building was just about completed, and plaintiff had just finished carrying a hod of mortar to the top of the building near the center and was standing about 2frac12; or 3 feet from the front, when a brick pier and part of the rock foundation on which it rested collapsed, causing him to fall to the basement and be injured. The plaintiff had worked on the building 2½ days prior to his injury. When he first walked over the building he noticed that it shook, and he spoke to the leader of the hod carriers about it. At that time, however, the brick piers in the front of the building were not braced, but on the day of, and prior to, the collapse of the pier the piers were braced, and the plaintiff, after the building was braced, "figured it was safe and didn't pay any more attention to it."

Two or 3 days before the accident certain workmen on the job noticed that the brick pier that collapsed was out of plumb; that 3 of the piers in the front of the building were bulged; and that the pier that fell was bulged out farther than the others. On the Saturday, before the building collapsed on Monday, Lindell Brown, in the employ of the defendant as leader of the hod carriers, told William Koberman, the defendant's foreman, that the building was shaky and needed bracing, and on the morning of the day the collapse occurred the defendant and his brother, who was foreman in charge of the work and other workmen, braced the piers.

Defendant here on appeal urges that the trial court erred in overruling his demurrer offered at the close of the case because plaintiff was guilty of contributory negligence, as a matter of law, and argues in support of this contention that plaintiff was a hod carrier of many years' experience, and that plaintiff on his very first trip to the top of the building discovered that the building was shaky and dangerous, yet made no complaint to the defendant or to the defendant's foreman, nor did he look to see if anything was wrong with any part of the brickwork or ironwork, and must therefore be considered, according to his own testimony, as guilty of contributory negligence as a matter of law. After reading the record, we are clear in the view that the point is without merit.

It is true, plaintiff, on his first trip, noticed that the building was shaking more than a newly constructed building, under the circumstances, should shake; that on that day not one of the four brick piers that formed the front of the building was braced, but, according to plaintiff's own testimony:

"The next day after that they were braced. I never thought of the building any more after it was braced. I figured it was safe and didn't pay any more attention to it. It might have shaked; it didn't shake enough for me to pay any attention to it. * * *"

On recross-examination plaintiff testified that the defendant Albert Koberman and his brother, William Koberman, who was foreman on the job for the defendant, were present when the brick pier that later collapsed was braced.

Analyzing plaintiff's testimony, it amounts to nothing more than that plaintiff at the outset became aware of the fact that the building under the circumstances shook more than it should, yet, since after that the brick piers were braced and this done in the presence of the defendant and his brother, the foreman on the job, the plaintiff "never thought of the building any more after it was braced," but "figured it was safe and didn't pay any more attention to it. * * * It did not shake enough for me to pay any attention to it" thereafter. In this situation it cannot be ruled, as a matter of law, that the danger of the collapse of the building was so obvious, imminent, and threatening that a reasonably prudent person would not have incurred the risk. Jewell v. Bolt & Nut Co., 231 Mo. 176, 132 S. W. 703, 140 Am. St. Rep. 515; Corby v. Tel. Co., 231 Mo. 417, 132 S. W. 712; Van Bibber v. Swift & Co., 286 Mo. 317, 228 S. W. 69; Edmondson v. Hotel Statler, 306 Mo. 216, 267 S. W. 612; Crowell v. St. Louis Screw Co. (Mo. App.) 293 S. W. 521.

Having thus disposed of the point sought to be made that plaintiff is guilty of contributory negligence, as a matter of law, by ruling it adversely to the defendant, we note that the answer did not contain a plea of contributory negligence, and upon the record plaintiff was clearly entitled to go to the jury upon each of the three assignments of negligence set out in his petition.

Defendant brings to our notice no less than ten instances of alleged erroneous admission or rejection of testimony, but has in no instance supported the point sought to be made by any citation of authorities.

Plaintiff's petition, among the several injured alleged to have been sustained by him by reason of his fall when the building collapsed, sets up that he was ruptured, and was permitted to testify concerning a rupture...