Norton v. Ittner

Napton, Judge,

delivered the opinion of the court.

We are of opinion that the evidence in this case was sufficient to take the ease to the jury.

The deceased was a hod carrier in the employment of defendants, and was killed whilst crossing a gangway, constructed by the defendants or their agents, from the third story of one house to the third story of another. This gangway,which was forty feet from the ground, was originally a very secure one, constructed of joists with plank on the top, and wide enough and strong enough to enable the carriers of mortar and brick to pass over safely. On the day of the accident, whilst the hod carriers were at dinner, the carpenters having use for these joists removed them and substituted two planks, one an old “header,” and the other a pine board. Crane, who was a witness in the case, was the first of the workmen to undertake the passage of this new gangway, but, as he stepped on the board, he heard it crack, and then, apprehending its insufficiency as a support, he doubled the plank, or placed the board over the “header’,” and thus walked over safely. On his return he met the gang, at the head of which was Norton (the deceased), and heard the supervisor or foreman call out “Hurry men, Hurry!” — and he halloed to the men — “watch out boys — that’s a dangerous place.” Norton, who was ahead and supposing the danger referred to was the width of the platform (which was only 9 inches), restored the two planks to their former position, side by side, and stepping on the board, which- had a knot in the middle, was precipitated to the ground and killed.

There is no doubt that negligence is in many cases a question of law to be determined from the facts agreed or found by a jury ; — but where the facts are disputed, or the undisputed facts admit of different constructions and inferences, the court may properly leave the matter to the jury, and so this court held in Wyatt vs. Citizens Railw. Co., 55 Mo., 485; and such is the recent decision of the Supreme Court of the United States in Sioux City & Pa. R. R. Co. vs. Stout, reported in Central L. J. No. 17. Negligence may be asserted as a matter of law, where there has been a breach of law, or a city ordinance, as in Karle vs. K. C., St. Jo. & C. B. R. R. Co., (55 Mo., 476.) But where the facts in evidence may, in the judgment of sensible men, lead to very different conclusions as to whether they establish want of care or contributory negligence, the jury is the tribunal selected to determine the question. Therefore this court held, in the cases above referred to, that though a court might very properly declare as a matter of law, that, if one voluntarily jumps from a train of railroad cars in motion, the act is necessarily attended with such risks as to throw all the responsibility of the result on the actor; yet, at the same time where a young man jumped from a street car, drawn by horses, though the car was in rapid motion, at the instance of the conductor who refused to stop the car, it was error for the court that tried the ease to pronounce it negligence -per se, and that it should have been left to the jury to say, whether under the circumstances it was negligence or not on the part of the passenger. The question of negligence depends on the circumstances of each ease.

In the present ease there was a double risk, between which the deceased was called upon suddenly to decide, and he unfortunately selected the most dangerous. He might have understood the warning of Grane (the witness), as directed to the narrowness of the' gangway, and so understanding the warning, would naturally attempt to remove this danger by separating the two planks. Whether his doing so was an act of negligence, was a matter of inference from the facts which ought to have been left to the jury. It was undoubtedly the duty of the defendants to furnish their workmen a safe way of transit from one house to another at such a height above ground, and whether the gangway, as it was found after the workmen returned from dinner, was composed of two planks, laid side by side, or of one plank on the top of the other, it is not impossible that sensible men might regard it, in either form, as unsafe, and not prepared with a proper regard for the lives of those who had to pass over it.

We have not been able to perceive the motive of plaintiff in reading the defendant’s answer as evidence — but this does not alter the character of the question before this court. It was offered as evidence, and what weight it was entitled to was not a matter of law for the court.

We shall set aside the non-suit and reverse the judgment for a trial.

The other judges concur, except Judge Adams.