Williams v. Ransom

• Decision Date: 31 March 1911
• Citation: 234 Mo. 55,136 S.W. 349
• Parties: WILLIAMS v. RANSOM et al.
• Court: Missouri Supreme Court

136 S.W. 349

234 Mo. 55

WILLIAMS v. RANSOM et al.

Supreme Court of Missouri, Division No. 1.

March 31, 1911.

1. APPEAL AND ERROR (§ 635)—ABSTRACT OF RECORD—OMISSION OF PART OF EVIDENCE.

That the abstract of record does not contain an abstract of a deposition introduced in evidence, or attempt to give the substance of the evidence contained in it, but merely contains a statement that it has been lost, while limiting the questions that may be considered, does not require dismissal of the appeal, as an appeal may be heard on the record proper.

2. APPEAL AND ERROR (§ 701)—REVIEW—INSTRUCTIONS—RECORD.

Notwithstanding the absence from the abstract of record of plaintiff's deposition, introduced by defendants, doubtless to show contradictions of his statements on the witness stand, the abstract may contain sufficient facts to authorize review of the question whether the jury, which rendered verdict for defendant, was erroneously instructed.

3. TRIAL (§ 242)—INSTRUCTIONS—UNNECESSARY LENGTH.

Instructions may be refused because of their unnecessary length and the difficulty for a jury to follow the train of thought therein.

4. MASTER AND SERVANT (§ 228)—INJURY TO SERVANT — CONTRIBUTORY NEGLIGENCE — SCAFFOLDS.

Where a dual duty is put on an employé (1) to construct or assist in constructing a scaffold, and (2) then to do work therefrom, and he negligently constructs it, though sufficient material is at hand, because of which he is injured while subsequently doing the work therefrom, he cannot recover therefor of the master, under Rev. St. 1909, § 7843, requiring scaffolds used in erection of buildings to be so secured as to insure the safety of persons working thereon.

5. MASTER AND SERVANT (§ 185)—INJURY TO SERVANT—NEGLIGENCE OF FELLOW SERVANT —SCAFFOLDS.

Where workmen are directed to construct their own scaffold, and then do work therefrom, negligence of one of them in the construction, by reason of which another of them is injured when subsequently working therefrom, prevents the master being liable, under Rev. St. 1909, § 7843, requiring scaffolds used in erection of buildings to be so secured as to insure the safety of persons working thereon.

Appeal from Circuit Court, Jackson County.

Action by Wilson W. A. Williams against A. M. Ransom and others, partners, as F. E. Ransom & Co. Judgment for defendants. Plaintiff appeals. Affirmed.

N. F. Heitman, for appellant. Pierre R. Porter, for respondents.

GRAVES, C. J.

Defendants, a copartnership, were erecting a two-story brick warehouse with basement. Plaintiff, a carpenter of 27 years' experience, was employed to work thereon. Defendants had in their employ architects who had general supervision of the work and plans, a foreman by the name of Barber, who had in hand the general supervision of the workmen (carpenters and helpers) and the work under the plans of the architects, four carpenters, and some six or eight carpenters' helpers. Plaintiff was one of the four carpenters, and working with him was another carpenter by the name of Hodge. Carpenters worked in pairs at the work being performed at the time of the accident, which resulted in this suit. With these carpenters would work one or more helpers. On the occasion in question one McLaughlin was the helper working with plaintiff and Hodge. These helpers, under the direction of the carpenters, assisted in the work to be done, doing, as evinced by the evidence, the heavy and rough work.

In constructing said building rows of upright posts, 16 inches by 16 inches, were put up to support the second floor. On top of these posts was a cord or girder, likewise 16 inches by 16 inches. From these upright posts to their cords or girders were placed braces. These cords or girders were 16 feet long, and in placing on the braces there would be a space between the ends of the two braces which had been placed between two of these upright posts. The upper ends of these braces (the ends nailed to the girder) were being fastened and made strong by putting in what was known as "headers." These headers were pieces of lumber spiked onto the under side of the girder, with the ends thereof against the beveled upper end of the brace. In this way the braces were made stable and strong. To do this work scaffolds were built up by nailing heavy boards to these upright posts, and upon these crosspieces were placed strong boards, upon which the men stood in adjusting and spiking the braces and headers. There was a space between the west row of upright posts and the west brick wall of the building. The scaffold used for the workmen to nail on the headers in this space was, on the day of the accident, made by taking a ladder and placing it against the west wall of the building, and then putting heavy planks from the last crosspiece to a round of this ladder.

At the time of the accident, plaintiff and Hodge were engaged in putting up headers. McLaughlin was their helper. They were at the west side of the building, and when one header was put on McLaughlin would be directed to move the ladder to another point, and a scaffold would then be arranged as above detailed. Plaintiff in person was the man who drove the spikes (with a maul) after they had been set by Hodge. They had put up six headers on this temporary and improvised scaffold. Whilst spiking the seventh header, the ladder slipped and fell, thus throwing plaintiff to the floor below, and by such fall he received the injuries complained of in this action. His suit is brought under section 6447, R. S. 1899 (now section 7843, R. S. 1909). This section thus reads: "All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon. All persons engaged in the erection, repairing or taking down of any kind of building shall exercise due care and caution so as to prevent injury or accident to those at work or nearby. Laws 1891, p. 159."

Upon a trial before a jury the defendants obtained a verdict, upon which judgment was entered, and from such adverse judgment the plaintiff has appealed. The amount sued for was $15,000; thus the jurisdiction of this court. The evidence in detail, if necessary, will be discussed with the points made by appellant.

1. A preliminary question is before us in this case. Defendants urge that the appeal should be dismissed for the reason that the abstract of the record is not complete. That such is a fact is apparent upon its face. The trouble with the abstract of record lies in the fact that there is no abstract made of the evidence contained in a deposition introduced by defendants. It appears that the deposition of the plaintiff had been taken. This deposition the defendants put in evidence. The abstract recites that such deposition has been lost, and the clerk of the court so swears in an affidavit printed in the abstract. No attempt is made to give even the substance of the evidence contained in this deposition. Its absence may preclude us from examining some questions involved in the record, but it will not authorize us to sustain a motion to dismiss the appeal. An appeal may be heard upon the record proper. The absence of the entire bill of exceptions will not preclude this court from hearing the appeal upon the record proper. In such case our field of inquiry is limited to an investigation of the pleadings and judgment. Stark v. Zehnder, 204 Mo., loc. cit. 448, 102 S. W. 992; Coleman v. Roberts, 214 Mo. 634, 114 S. W. 39; Railroad v. Wyatt, 223 Mo., loc. cit. 353, 122 S. W. 688; Hanks v. Hanks, 218 Mo., loc. cit. 676, 117 S. W. 1101, and cases therein cited. The motion to dismiss is therefore overruled.

2. Defendants urge that, inasmuch as the errors complained of go simply to the giving and refusing of instructions, we cannot properly pass upon these instructions without knowing what all the evidence shows. Ordinarily this would be true. But in this case the plaintiff, whose deposition is absent, testified at length. The deposition was no doubt offered in evidence to show admissions and statements contradictory of the admissions and statements made by him on the witness stand. If the deposition did show contradictory statements, it went to the credibility of the witness, and after all it was for the jury to determine which of his two statements were true. In this instance the verdict was for the defendants, and if there were contradictory statements made by plaintiff, it would seem that defendants got the benefit of a fair consideration thereof by the jury. The verdict would so indicate. Plaintiff contends that the facts shown by the abstract are such as would enable this court to determine that the trial court instructed upon a wrong theory of the law. We think that there are sufficient facts for us to determine the question whether or not the jury was misdirected by the trial court. In this view of the matter, we shall take up that question, notwithstanding this serious defect in the abstract, for it would be an extremely serious defect in the event we have to say whether or not the judgment is right, although the jury was misdirected. However, we shall discuss the general instructions and the theories of the law advanced by them and those contended for by the plaintiff.

3. The court refused five instructions asked by plaintiff. The one which outlined plaintiff's theory of the case covers about three large printed pages, and points out all matters of pleading and proof. It is a labyrinth of details of both proof and pleadings. No average jury could follow the train of thought contained in it. Even if it be granted that the theory of this instruction was correct, it should have been refused on account of its length alone,...