99 Neb. 815 | Neb. | 1916
Tlie defendant, the J. O. Mardis Company, contracted to erect a building called the “Plat Iron Building” on a lot of the defendant, Sterling Realty Company, in Omaha. The deceased was in the employ of the Mardis Company and was killed by the fall of a load of material suspended by means of a derrick or crane over the walk. His widow, Giovanna Butera, brought this action for damages, and recovered judgment in the district court for Douglas county against the J. O. Mardis Company and the Sterling Realty Company, jointly. The defendants have appealed separately.
The Sterling Realty Company contends that the statute, so far as it makes the owner of the lot on which the build-
Section 3602. “All scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances, erected or constructed by any person, firm or corporation in this state, for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.”
Section 3612. “For any injury to person or property, occasioned by any violation of this article, or failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby; and in case of loss of life by reason of such violation or failure, as aforesaid, a right of action shall accrue to the widow of the person so hilled for the benefit of herself and the children or adopted children of the per- ■ son so killed. * * * In case the person or persons so killed shall leave a widow surviving, the-action shall be brought in her name for the benefit of herself and children, if any surviving. * * * The fact that any employee, servant or other person shall continue to work during the time such owner, contractor or subcontractor has 'failed to comply with the provisions of this article shall not be considered as an assumption of the risk of such employment by such employee, servant or other person and shall not in any case bar recovery of damages for the failure of such owner, contractor or subcontractor to comply with the provisions of this article. In all actions brought to recover damages for injuries caused by a failure to comply with the terms and provisions of this article the owner, contract-*818 or. or subcontractor, if any, shall in all cases be jointly and severally liable in damages for all injuries caused through a failure to comply with this article. The owner, contractor and subcontractor, if any, shall in all cases be jointly and severally liable in damages for all injuries caused through a failure to comply with this article. The owner, contractor and subcontractor, if any, shall in all cases be held liable for the failure or neglect of any superintendent, foreman or other 'agent, employed by them, or either of them, to comply with the provisions of this article: Provided, however, the provisions of the foregoing-article shall not apply to any buildings which do not exceed 33 feet in height above the foundation.”
It appears to be conceded that the Sterling Realty Company was the owner of the lot and contracted with the Mardis Company to erect the building thereon. It is contended that “there were no contractual relations between the Sterling Realty Company and John Butera. It is not claimed that the Sterling Company committed any act which contributed to the death of said Butera.” The court instructed the jury that, if the contractor was liable, “the Sterling- Realty Company, as owner, would be jointly and severally liable.” This seems to be fully warranted by the language of the statute. “The owner, contractor and subcontractor, if any, shall in all cases be held liable- for the failure or neglect of any superintendent, foreman or other agent, employed by them, or either of them, to comply with the provisions of this article.” In contending that this provision of the statute is unconstitutional, this defendant relies upon Camp v. Rogers, 44 Conn. 291, and Daugherty v. Thomas, 174 Mich. 371.
The nature of the action is thus stated in Camp v. Rogers, supra. “The statute (Gen. Statutes, p. 234, sec. 21) provides that the driver of any vehicle, meeting another on the public highway, who shall neglect to turn to the right, and thereby drive against the vehicle so met and injure its owner, or any person in it, or the property of any person, shall pay to the party injured treble damages; and
It is suggested in the briefs that the word owner should be construed to apply to the contractor himself while he is in the exclusive possession and control of the building in process of construction, and not to the owner of the real estate until the completed building is delivered to him pursuant to the.contract. The statute makes both the owner and contractor liable for the neglect of the subcontractor and “for the failure or neglect of any superintendent, foreman or other agent, employed by them, or either of them.” It could not be intended that a subcontractor, for instance a plumber, who would contract to furnish the plumbing of the budding should be considered the owner. The intention plainly was to make all those liable through whom the negligent party derived the right to perform the service; that is, all those who made his employment possible. This would include the owner of the real estate who originated and authorized the improvement.
The plaintiff could not maintain the action in her own name under sections 1428, 1429, Rev. St. 1918, which provide that such action must be brought in the name of the administrator. The defendants insist that the petition fails to state a cause of action under the act of 1911, Rev. St., secs. 3602, 3612. The petition alleges the negligence of the defendants as follows: “Plaintiff alleges that, while the said John Butera was so engaged in walking across said sidewalk and into the street adjacent, the said crane and mechanical contrivance was not so operated by said J. C. Mardis Company as to give proper and adequate protection to the life and limb of persons passing under or by the same, including said John Butera, but, on the contrary, was so operated and in such a manner as to cause the load and material and hook attached to the said crane to fall
Defendants also insist that the evidence shows conclusively that the deceased was guilty of contributory negligence which would prevent the recovery. The argument seems to be that the deceased might have taken a different route, and that it was not necessary that he should pass along the walk under the. derrick as he did, and that the noise of the derrick and of the engine which was operating it was such as to notify the deceased that it was dangerous to pass under it. The question of contributory negligence on the part of the deceased appears to have been fairly submitted to the jury, and we cannot say that the verdict in that respect is so clearly contrary to the evidence as to require a reversal. The statute requires the contractor and persons in charge of the building operations to so construct and operate the same as to give proper and adequate protection to employees. The deceased was not required to anticipate that this duty would be neglected, and the evidence in regard to the operation of the derrick at the time is not of such a nature as to convict the deceased of wilful or gross negligence in passing by the ordinary way in the performance of his duty. A palpable violation of the statute by the employer is gross negligence. The jury might find from the evidence that the negligence of the employer was such a violation of the statute.
The statement that the law makes employers “absolute insurers of the safety of their employees” was criticised by some members of the court, and the author of the opinion explained this language in a later case: “That does not mean that the place of employment must be so safe that an employee cannot become injured. The statute makes the employer an insurer as to furnishing such a place as it requires, but not against injury to employees using the place which has been so furnished. * * * Unsafe or
The defendants have assisted us with an interesting and complete brief upon the general subject and scope and construction of the statute. In the view that we have taken of the purpose and meaning of the statute, and the public policy it indicates, we cannot say that there is any error in the record requiring a reversal.
Affirmed.