Wulfert v. Murch Bros. Const. Co.

• Decision Date: 21 June 1921
• Docket Number: No. 16643.,16643.
• Citation: 232 S.W. 243
• Parties: WULFERT v. MURCH BROS. CONST. CO.
• Court: Missouri Court of Appeals

232 S.W. 243

WULFERT v. MURCH BROS. CONST. CO.

No. 16643.

St. Louis Court of Appeals. Missouri.

June 21, 1921.

Appeal from St. Louis Circuit Court; H. M. Hartman, Judge.

"Not to be officially published."

Action by Charles Wulfert against the Murch Brothers Construction Company, a corporation. Judgment for plaintiff, motion for new trial granted, and plaintiff appeals. Affirmed.

W. H. Douglass, of St. Louis, for appellant. Kelley, Starke & Moser, of St. Louis, for respondent.

BIGGS, C. On the 22d of April, 1918,. while in the employ of the defendant, plaintiff received an injury to his eye alleged to have been caused by the negligence of the defendant and for which he brought this action for damages which resulted in a judgment in his favor for $750.

Upon the filing of a motion for a new trial the same was sustained by the lower court, the cause assigned therefor being the giving of a certain instruction on behalf of plaintiff. Plaintiff thereupon perfected an appeal to this court claiming the giving of such instruction was not erroneous and that the verdict and judgment in his favor should stand.

While not conceding that the action of the court in sustaining the motion on the ground assigned was improper, the defendant here asserts that in any event the action of the court was correct inasmuch as plaintiff's evidence failed to convict defendant of negligence and therefore its demurrers to the evidence should have been sustained; this being one of its grounds for a new trial.

In view of the fact that we have concluded that defendant's contention in that regard is well taken, it will be unnecessary to consider the propriety of the giving of the instruction referred to.

While in the act of chipping or cutting a hole in a brick wall with a chisel and hammer, a particle of brick or mortar flew from the place where plaintiff was chipping and struck him in the eye, thereby causing his injuries.

The charge of negligence is a failure on the part of the defendant to furnish plaintiff a reasonably safe place in which to work and reasonably safe tools and appliances, in that the defendant knew or by the exercise of ordinary care could have known or should have anticipated that particles of brick or mortar were apt to strike plaintiff in the eye while cutting a hole in the wall as directed by defendant, and had defendant exercised ordinary care for the safety of plaintiff it would have provided him with goggles or furnished him with other means of protecting his eyes from flying particles, but negligently failed to do so.

Plaintiff, the only witness in the case, testified that he was 51 years old and had been a building laborer for 25 years; that he was employed by defendant in the first part of March, 1918, until the 24th day of April, 1918; that on April 22d he was instructed by defendant's foreman to cut a hole in a brick wall of a building in which defendant was making alterations so that steel girders could be inserted therein to hold up a balcony; that these holes were about 10 inches square and 9 inches deep; that the foreman instructed plaintiff to take a chisel and a hammer and cut the holes in the wall and to procure the tools from the toolroom; that plaintiff was doing the work on a ladder set against the wall as the holes were 12 or 14 feet from the floor; that after completing one of the holes and while working on the second a particle of brick or mortar flew out and struck him in the...