88 Wis. 299 | Wis. | 1894
This action is brought by the administrator of the estate of Benjamin Thompkins, deceased, who was killed through the negligence of the defendant com
1. On the question of the liability of the defendant to the plaintiff, there was no conflict in the evidence. It was all one way. To say the least, the defendant was guilty of the want of ordinary care in furnishing such a grossly defective plank for staging for the deceased to stand and walk on while doing his work. The circuit court was therefore justified in instructing the jury “ that the defendant here is responsible in this case, as a matter of law, unless the deceased himself is chargeable with contributory negligence.” The first position taken by the learned counsel of the appellant in their brief is that the appellant owed the deceased no legal duty arising from contract or otherwise. Tins is no doubt the general rule. “ The liability of the builder or manufacturer for such a defect is in general only to the person with whom he contracted.” But this case belongs with a class of cases that can be sustained outside of this general principle, and may rest on two well-established principles of law:
(1) The defendant, in furnishing this staging for the use of the employees of the fire extinguisher company, on which they might stand or walk in doing their work, had in effect invited and induced the deceased to walk on it while doing his work, and was liable to him if he suffered injury from its defective condition caused by negligence in its construction. The case may rest on this simple implied imvitation. Gilbert v. Nagle, 118 Mass. 278; Elliott v. Pray, 10 Allen, 378; Pickard v. Smith, 10 C. B. (N. S.), 470; Indermaur v. Dames, L. R. 1 C. P. 274; Holmes v. N. E. R. Co. L. R. 4 Exch. 254; Coughtry v. Globe W. M. Co. 56 N. Y. 124; Mulchey v. Methodist Rel. Soc. 125 Mass. 487. This last case is closely in point. The Methodist Religious Society employed Reedkam to paint inside of its church build
(2) Such liability may rest upon the duty which the law imposes on every one to avoid acts imminently dangerous to the lives of others. This liability to third parties is held to exist when the defect is such as to render the construction in itself imminently dangerous, and serious injury to any person using it is a natural and probable consequence of its use. This principle is illustrated in Devlin v. Smith, 89 N. Y. 470. The supervisors of Kings county employed Smith to paint the inside of the dome of the courthouse, and Stevenson was employed to build the scaffold by independent contract, on which the employees of Smith might stand while painting the dome. Stevenson was an experienced scaffold builder, and Smith was not. The scaffold was ninety feet in height. The plaintiff’s intestate was a painter in the employ of Smith. There was an extremely dangerous defect in the construction of the scaffold, in consequence of which the plank on which the intestate was sitting gave way, and precipitated him to the floor below, and killed him. It was held that Stevenson was liable for-the death, on proof of his negligence in the construction
The following cases were sustained on one or .the other or both of these principles, where there was no privity or 'contract relation between the parties: Hayes v. P. & R. C. & I. Co. 150 Mass. 457; Elliott v. Hall, L. R. 15 Q. B. Div. 315; Bennett v. Railroad Co. 102 U. S. 577; Railroad Co. v. Hanning, 15 Wall. 649; Cooley, Torts, 604-607; Whart. Neg. §§ 349-352; Corby v. Hill, 4 C. B. (N. S.), 562; Powers v. Harlow, 53 Mich. 507. This last case rests somewhat on the ground of license, and yet also on the ground of invitation. Coolly, C. J., says in the opinion: “ A person giving such license, especially when he gives it wholly or in part for his own interest, as was the case here, and thereby invites others to come upon his premises, assumes to all who accept, the invitation the duty to warn them of any danger in coming which he knows of or ought to know of, and of which they are unaware.” The case of Heaven v. Pender, L. R. 11 Q. B. Div. 503, is very closely in point. The defendant was the owner of a dry dock used for the painting and repairing of vessels, and he contracted with the owner of a vessel to use the dock for painting it, and was to put up and supply the necessary staging for that purpose. The owner employed a master painter to do the painting. The: plaintiff was one of his employees; and .while painting, the outside of the vessel, and using for that purpose the staging put up by the owner, the staging gave
I have spent much time- on this question of the defendant’s liability to the plaintiff, for it is about the only question in the case. The negligence of the defendant in using and placing this plank, so • obviously and' dangerously defective for the plaintiff to walk on, seventy feet above the floor, is beyond question; and, as to the contributory negligence of the deceased, he was certainly not .chargeable with any negligence whatever or any want of ordinary care in walking on the plank. He could not see the defect in the plank, on account of darkness. The servant of the defendant who put that plank in place might have expected
2. The definition of negligence given by the court in its charge to the jury was correct. Duthie v. Washburn, 87 Wis. 231; Seymer v. Lake, 66 Wis. 654; McClure v. Sparta, 84 Wis. 269.
3. The testimony for the plaintiff in respect to the relations of the deceased to his father and mother, his obligation to support them, and their dependence upon him for the same, does not appear to have been improper. Johnson v. Mo. Pac. R. Co. 18 Neb. 699; Lowe v. C., St. P., M. & O. R. Co. (Iowa) 56 N. W. Rep. 519; Ewen v. C. & N. W. R. Co. 38 Wis. 615; Potter v. C. & N. W. R. Co. 22 Wis. 615.
4. The damages, reduced by the court to $4,000, we do not think excessive. Great reliance ought to be put in the judgment and discretion of the trial court, specially exercised in reducing the amount of the damages found by the jury-
5. This is so plain a case upon the evidence, we do not think it was necessary for the court to give the instructions asked by the appellant,, or to give any further instructions than were given, and they appear to have been sufficient and correct.
By the Court.— The judgment of the superior court is affirmed.