Whitworth v. Schurk

• Decision Date: 06 June 1917
• Docket Number: No. 14733.,14733.
• Parties: WHITWORTH v. SCHURK.
• Court: Missouri Court of Appeals

196 S.W. 72

197 Mo. App. 404

WHITWORTH v. SCHURK.

No. 14733.

St. Louis Court of Appeals. Missouri.

June 6, 1917.

Rehearing Denied June 29, 1917.

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

Action by George C. Whitworth against Henry Schurk, doing business as the Schurk Iron Works. Judgment for plaintiff, and defendant appeals. Affirmed.

J. P. McCammon, of St. Louis, and R. M. Sheppard, of Joplin, for appellant. Perry Post Taylor, Emil Mayer, and Ben L. Shifrin, all of St. Louis, for respondent.

ALLEN, J.

This is an action to recover for personal injuries sustained by plaintiff while in the employ of defendant as the latter's servant. The trial below, before the court and a jury, resulted in a verdict and judgment for plaintiff in the sum of $1,700, and the defendant prosecutes the appeal.

At the time of plaintiff's injury, to wit, February 17, 1914, he was in defendant's service as a structural iron worker, and was assisting in erecting some structural iron or steel work in a building which defendant was erecting in the city of St. Louis. Plaintiff was under the immediate supervision of defendant's foreman, one Emhoff, and upon the occasion in question he was ordered by Emhoff to ascend a ladder and perform certain services in connection with the raising and installing of a "corner angle" of steel or iron, and while in the act of ascending the ladder in compliance with said order, and when near the top thereof, it slipped from under him, precipitating him to the floor below, whereby he received serious injuries.

The petition charges that the ladder which plaintiff was ordered to ascend was negligently placed by defendant's foreman, so that "it was not in a reasonably safe condition for use thereof by this plaintiff, in that said ladder was placed so that the bottom thereof rested on a hardwood floor and was not reasonably secured or guarded, so as to prevent it slipping," which fact the foreman knew, or could have known by the exercise of ordinary care, but which was unknown to plaintiff; and it is averred that while plaintiff was ascending the ladder, in the prosecution of defendant's work and pursuant to the foreman's orders, "because of the negligent placing, as aforesaid, of said ladder, and with the negligent failure of defendant and its said foreman to reasonably secure or guard the same, or to notify or warn plaintiff of the condition thereof, the said ladder slipped," whereby plaintiff was precipitated to the floor and injured. The answer is a general denial, coupled with a plea to the effect that plaintiff's injuries, if any, resulted from the ordinary risks incident to the business in which he was employed, and that the risk was one assumed by him when he entered the employment.

From plaintiff's testimony it appears that the ladder from which he fell was a section of an extension ladder, the section being 18 or 20 feet in length; that plaintiff and another workman, pursuant to directions given them, took the extension ladder from some other portion of the building, disconnected the parts thereof, and handed to Emhoff the section from which plaintiff afterwards fell; and that Emhoff took this section to the place where it was to be used and placed it in position against a beam. Plaintiff testified that this occurred some considerable time before he was injured, perhaps half an hour, and that, having become engaged in other work, he did not notice how Emhoff placed the ladder. The foreman's testimony is that he placed the ladder in position, with the assistance of one of his men, about five minutes before plaintiff was injured. Plaintiff testified that the "corner angle" which was being put in place was held with guy lines, that it "kept swinging away," and that the foreman ordered him to take the east guy line, ascend the ladder, and pull the "angle" over, so that it could be fastened in place. As to the order given him by Emhoff plaintiff said:

"He told me to take that guy line and hurry up the ladder and pull it (the corner angle) over, because he was ready to connect it; he told me to be in a hurry about it. * * * He says: `George, take that rope, and hurry up that ladder, and straighten that up, so we can get it connected.'"

Plaintiff's testimony is that he did not look at the time to see whether there was anything at the base of the ladder to prevent it from slipping, but that after his fall he observed that the ladder had been placed on the smooth, finished maple floor, with nothing to hold it in place or prevent the slipping thereof; and though it seems that the foreman was standing all the while near the ladder, he did not hold it or cause it to be held while plaintiff was upon it. Plaintiff testified that he had never worked on that floor before; that in the other portions of the building ladders, when used as was this one, were fastened at the bottom with a cleat, so that they would not slip; and the evidence in plaintiff's behalf is to the effect that in such work it is customary to nail cleats to the flooring, where practicable, in order to safely secure a ladder used in the prosecution of the work, and that where a ladder is placed upon a finished floor, which would be defaced by nailing cleats thereon, then other means are employed to secure it; that either planks or timbers are placed at the foot of the ladder, extending to a wall or some other firm object, or the ladder is tied or fastened at the top to prevent it from slipping, or, if none of these methods are practicable or desirable, then it is customary for some one to stand and securely hold the ladder while in use. A witness experienced in such matters testified that a 2-inch plank 8 or 10 feet long, laid close to the foot of such a ladder, would "help to prevent it from slipping," saying that it would take but little to hold it in position, if properly placed.

The foreman testified that he caused the ladder to be placed so that the base thereof was against a small iron "angle," perhaps five-sixteenths or three-eighths of an inch in thickness, extending from some shelving, and which was fastened to the floor, thinking that this "would answer as a cleat to a certain extent." Another witness for defendant, a fellow workman with plaintiff, testified that the "left leg" of the ladder was against the small iron "angle" to which the foreman referred, which extended along the floor only about 2 or 2½ inches, the other leg of the ladder being upon the open floor. As to the order given plaintiff the foreman said, "I may have told him to hurry." And he testified that plaintiff ran up the ladder.

I. It is earnestly insisted that the trial court erred in refusing to peremptorily direct a verdict for defendant, but we think that...