Sullivan v. Hannibal & St. Joseph Railroad

Rat, J.

This is an action for damages, for personal injuries sustained by the plaintiff, who is a carpenter, and who was engaged,- at the time, with other carpenters, under a foreman named Prather, in taking down an ice house for defendant, in Kansas City, Missouri. The pe. tition charges that, in order to take off the roof of said ice house, defendant furnished for plaintiff, and his fellow workmen, scaffolding which consisted of planks, placed upon tie beams. That said scaffolding was defective, insufficient and insecure, and improperly constructed ; that it was constructed of planks that were too short, and that the plank rested on a tie beam, in which there was a large knot, which rendered it weak and unfit for the support, of the scaffold, and that, on account of such weakness, a part of said tie beam, upon one end of which said scaffold rested, fell down, leaving one end of the scaffold without support. That defendant knew of the defect in the beam, and of the unsafe and dangerous condition of the scaffold, and failed to provide against said defects, and failed to notify plaintiff of the same, but suffered him, while wholly unaware of danger, to step upon the scaffolding, which immediately gave way and precipitated him to the ground, etc. The answer was a general denial, and, also, a plea of contributory negligence on the part of the plaintiff, which was denied generally in the plaintiff’s replication. The carpenters began the work of taking down the ice house about seven o’clock in the morning.of February 18, 1878. In the division of the work, it seems that the plaintiff and two of the others went on to the roof to saw the same in sections, while Prather and the rest went inside the building to fix the uprights and staying. During the forenoon, and about ten o’clock, something was heard to crack, and the foreman, Prather, who was then on the roof with Sullivan, after ascertaining the condition of the tie beam, had a section of the roof (the first one,, perhaps, that had been sawed out) let down and placed over it, so that the section lay over it as a scaffold. Plaintiff, as well as the others, assisted in letting down the section, and it remained there during the day, until all the other sections' that had been sawed out, except one or two, perhaps, had been taken down. While the carpenters were engaged, about three o’clock in the afternoon, in removing the said section which had been let down in the morning to cover the tie beam that had the knot hole, and had cracked, the plaintiff stepped onto a part of the defective beam, and was immediately thrown down and suffered severe and permanent injuries. Such portions of the evidence as we deem material will be noticed hereafter.

As to the instructions given for the plaintiff, we may say that the second, which relates solely to the question whether Prather, the foreman, was a fellow servant or representative of the defendant; and the fourth, which relates to the measure of damages, are, in the view we have taken of the case, immaterial, and are, therefore, omitted. The first and third are as follows :

“1. The jury are instructed that if you believe» from the evidence, that in the ice house in question the tie beam ran from one side of the building to the other, and consisted of two pieces of timber, or lumber, which were spliced or beamed together at the middle of the building, and that defendant, in order to take off the roof of said house, furnished plaintiff and his fellow workmen scaffolding, which consisted of planks placed upon said tie beams, and that said scaffolding was defective, insufficient and insecure, and by being so constructed that the plank rested upon a tie beam in which was a large knot which rendered it weak, and which was not fitted for the support of a súaffold, and that by reason of said weakness a part of said tie beam, upon one end of which said scaffold rested, gave way and fell down, leaving one end of said scaffolding wholly without support and in a dangerous condition, and that the foreman of defendant knew of said tie beam being in such a weak and insecure position, and that he knew it had become cracked, broken and unsafe, and that he knew of all said facts for such a length of time before the happening of the injury in question, that he could have, by the exercise of ordinary care and prudence, remedied said defect, and thereby prevented the injury, then you can find for the plaintiff.”

“3. The jury are instructed that, while it is true that if plaintiff was aware of the defect in the scaffolding in question, and that said defect was so glaringly ■defective that a man of common prudence, or common ■■sense, would not have gone upon the same, then he cannot recover; yet, you are further instructed that if plaintiff did not know of the dangerous character of said ■defect, and that the foreman, of defendant did know of it, and did make any statement in the hearing of plaintiff, to the effect that the defect in the tie beam was not unsafe or dangerous, and that plaintiff relied upon the same, then plaintiff was not guilty of such contributory •negligence as will preclude a recovery on part of plaintiff, providing you believe plaintiff was- directed by said foreman to do the work which obliged him to go upon .said scaffolding.”

It is not necessary, we think, to set out in this case defendant’s instructions, given or refused. The plaintiff-had a verdict.for seven thousand dollars upon which judgment was duly entered, and defendant appealed the cause to this court.

It will be observed that the condition of the tie beam and scaffolding, whether the same were weak and broken, defective, insecure and dangerous, and, also, the knowledge of the foreman in relation thereto, are all properly submitted to the jury in the first instruction, and there was ample evidence showing, or tending to show, the facts thus submitted, but-the contributory negligence of plaintiff, which was set up in the answer, and his -knowledge, if any, of the defective and dangerous condition of the tie beam and scaffold, which was within the issues made, as to whether or not he ‘ ‘ stepped on the tie beam wholly unaware of danger,” and entirely ignored by this instruction, and a verdict authorized for plaintiff without regard thereto. Upon the trial, the plaintiff testified, on cross-examination, among other things, as follows :

Q. “ There were planks laid along there on the tie beams?” A. “I don’t know. I stopped right there; that is, over this broken tie beam.” Q. “You did not know what it was that was broken; - when did the foreman tell you this?” A. “Before it broke. He said there is a knot there, but he thought it was safe.” Q. “ He told you before this fall that it was broke, but 1 e thought it was safe?” A. “Yes sir.” Q. “You heard this before you went on it, did you ? ” A. “Yes, sir.” * * * Q. “ How long before the fall did you hear him say this about this knot-hole?” A. “Some four hours before.that. That was the first section we took down.” Q. “How came it you laid this section down and left it and took down the others first?” A. “ The foreman told us something cracked about ten o’clock. The foreman went down and satisfied himself that something was unsafe. He said some of the men «aid it had to be repaired. He said to let down that section ■of roof and make a staging of it.” * * * Q. “Now I want to ask you if the foreman did not state that he let the staging down there to cover the defect, to keep from getting on this defect? ” A. “ He went down and saw this, and we did not know the extent of the break. He wmnt down and looked at it, and saw it and said there was a bad place. He had seen it before, but he did not think it would break. He said some of the men spoke to him about fixing it, and he said it ivas not necessary, the section could be i let down and cover it.”

The witness Spees, introduced by plaintiff,, testifies: Q. “Do you know what time of day this crack occurred in this tie beam ?” A. “I couldn’t tell about the time it occurred. I noticed it some little time before we commenced moving the section. I think I called the foreman’s attention to it. I told-him we had better, put something on it to make it more secure. I did not think it was safe for men to go on. I told him I would not go on; I don’t know whether I told the foreman I wouldn’t go on.” And on cross-examination as follows ; Q. “ You recognized the statement as being true at the-time you signed it ? ” A. £ £ Yes, sir. ” Q. “No one asked you to put anything on there that wasn’t true?” A. “I suppose all the men knew this was broken. They were not all present when I spoke about this.” Q. “At the time, I understand, he knew about it?” A. “I don’t know whether he knew or not. The idea is, I am particular about going on staging, and caution my men.”' Q. “If Sullivan had been as prudent as you, he could have seen it.” A.. “ He could certainly, if he had gone below.”

'“The statement” referred to was one made out by Prather the day after the accident, and signed by him and the plaintiff’s witnesses, Flint and Spees, as well as the other carpenters, except plaintiff. The said witnesses were questioned about it by tlie plaintiff ’ s. counsel, and the circumstances under which it was signed and the purpose of it were detailed in their evidence. It was afterwards introduced in evidence by the defendant. Among’ other things it says £ £ that all the men were told and saw for themselves that the piece beneath the section of the roof was broken and unsafe to stand on, ancl when this section was moved, Mr. Sullivan uhthoughtedly stepped on the broken piece and fell.” Prather, introduced by defendant, testifies upon the point: Q. “What was said about that broken tie beam?” A. “There was nothing more said until we 'got on the building-. That was probably ten o’clock, when we let down that section of roof, and broke this (shows). It was said we would let the section of roof down, and let it remain for a staging over that defective beam. That was the purpose. I think every one present knew it. They were all present letting down that section of roof and leaving it there.” Q. “ State what oc•curred just before the accident happened. Where was ■Sullivan standing then, with reference to the section of roof?” A. (Shows on diagram where Sullivan was standing). Q. “ State whether or not it was necessary ,for him to go out there for the purpose of removing this roof.” A. “Therewas no necessity for his going out there at all.” Q. “ That tie beam was so defective that you think they all talked about it. ” A. “We all talked .about it.” Q. “Didn’t you say ‘I think everybody there talked about the beam?’” A. “We all talked ■about it.” Q. “You state that Mr. Flint spoke to you ; .state whether Mr. Spees and Mr. Sullivan could have heard what was said between you ? ” A. “Yes sir, they ■could.” Q. “ Were they as near to him as you were ? ” A. “ They were nearer to him.”

We do not undertake to pass upon the probative force and value of the foregoing evidence as against ■other statements and evidence to the contrary in the record; but it is clear, we think, that the same is legitimate and competent under the issues made and involved, and was admit feed and received in evidence, as ■such and for that reason. But it is also equally clear, we think, that the defendant may have been and was prejudicially deprived of its benefits ; because, under said first instruction, said evidence, which constituted the defence, was, in effect, excluded from the consideration of the jury. They were, as already stated, upon a ■ finding as to the character and condition of the mate- ■ rials furnished and used by defendant, and the foreman’s knowledge thereof and conduct in relation thereto, which were the only questions submitted, authorized by this instruction to find the issues for the plaintiff without being thereby further required to pass upon ■ and consider the conduct of the plaintiff in the premises, and the plaintiff’s knowledge, if any, of. the broken tie beam and the unsafe and dangerous condition of the scaffolding. We do not think a conclusion upon the whole case was, under the issues and evidence, authorized by a finding as to the facts thus submitted. Gilson v. The Jackson Co. Horse Ry. Co., 76 Mo. 282 ; Fitzgerald v. Hayward, 50 Mo. 516 ; Sawyer v. Railroad, 37 Mo. 240 ; Clark v. Hammerle, 27 Mo. 55.

While instructions are to be considered - in their entirety and as a whole; yet each instruction must be correct in itself so far as it goes, and where it attempts-to cover the entire case and contains such a vice as we have pointed out, it cannot be cured by other correct instructions given in the cause. Under the direction of this instruction the jury could, and may have proceeded to make the verdict, without regard to-the other instructions or the facts submitted therein, and this is, we think, under our previous decisions, prejudicial error. Thomas v. Babb, 45 Mo. 384; Goetz v. Railroad, 50 Mo. 472; Singer Co. v. Hudson, 4 Mo. App. 145; Henry v. Bassett, 75 Mo. 89; Bank v. Murdock, 62 Mo. 70, 73, and cases cited.

For these reasons the judgment of the trial court is reversed and the cause remanded.

All concur, except Norton and Black, JJ., who dissent.