88 Wis. 409 | Wis. | 1894
1. There does not appear to have been much-dispute in respect to the facts, and the verdict of the jury is, we think, sustained by sufficient evidence. It shows that the custom and practice was that -all scaffolds were-supplied for the riveters by the defendant company, and there were men there under its control for the special pur-, pose of building and placing them in the positions directed by the riveters. With this the riveters had nothing whatever to do, beyond telling them where they wanted the scaffolds placed. The scaffold was constructed of two planks nailed upon crosspieces at each end, with ropes attached to the crosspieces on the inside and outside to suspend it, and these were fastened to stanchions above the deck. The inner ropes laj7’ flat against the side of the boat, which curved inward. It was necessary that the outer side of the-scaffold should be the highest, so that it would tip toward the side of the boat and rest securely against it. It appeared that the accident was caused lay the improper and dangerous manner in which the scaffold was suspended and adjusted, so that it tipped outward and to the dock; and in consequence, when the plaintiff got upon it, the inner side of the scaffold slipped up the side of the boat, and rested flatwise on its side, instead of its edge resting securely against it, whereby the plaintiff .was thrown upon the dock below.
2. The ruling of the court excluding the testimony of the ■witness Bogers as to the custom of the defendant relative to the control of the scaffold builders was properly made. It did not appear that he was sufficiently qualified to tes
3. It is contended that the plaintiff was guilty of contributory negligence in going upon the scaffold in the manner in which it had been adjusted and suspended, but the verdict of the jury, upon sufficient and competent evidence, has found on this point in favor of the plaintiff. It appears that, after the plaintiff had riveted up the side of the whale-back three or four feet, he directed the scaffold builders to raise the scaffold up so the hatch could be finished, and they began doing so, when he left to take some chisels to be sharpened. He returned after an absence of fifteen minutes, and the scaffold builders were about leaving just as he came on deck, within about 100 or 150 feet from where the scaffold was hung. He asked ■ one of them (Johnson), “Is that scaffold all right now?” and he said, “Yes.” He looked iw further until he got down to where the scaffold was, ancr then down to the scaffold, and then he looked over to see if it was in its right place, and it appeared to be. He then had to slide down over the side of the whaleback six or seven feet to get upon it. He testified that he always took a look at a swinging scaffold before going upon it, to see if it was all right, and took a look at this one. “ It appeared to me to be all right, over •where I was standing.” Two witnesses, viewing it from different directions, testified that the scaffold tipped out over the dock, when it should have tipped toward the side of the boat in order to be secure and safe. There was
4. The verdict of the jury, as well as the evidence, is clearly to the effect that, as between the plaintiff and defendant, it was its duty to furnish him with proper scaffolds, securely and safely placed, where he could safely work for it in riveting upon the sides of the whaleback in question, and they were to be suspended along the side of the boat wherever and whenever he indicated, to enable, him safely to prosecute his work. This “ was the custom and understanding.” He had no other control over or relation to them, and they were in all other respects under the control ■of the superintendent of the defendant, under whom it was their exclusive duty to build and so place such scaffolds. The contention of the defendant’s counsel that the plaintiff and the scaffold builders were fellow-servants of the defendant, engaged in a common service or employment, and that the defendant was therefore not liable to the plaintiff for damages caused to him by the negligence of the scaffold builders in not safely and securely placing and suspending the scaffold in question, cannot, we think, be sustained. It is entirely plain that, as between the defendant and the plaintiff, it was its duty to furnish him a proper and safe ■place to work as a riveter on and along the side of the whaleback. The scaffold builders were not engaged in the common service or employment of the plaintiff, but in an entirely different service, namely, in discharging for the defendant, under its direction, the duty it owed as master to the plaintiff as its servant. For any damages caused by the neglect of this duty, the master is clearly liable; and, while he may delegate the performance of the duty to other employees, he cannot thereby escape from liability for its
The distinction between this case and most of those cited by the appellant’s counsel is noticed in Peschel v. C., M. & St. P. R. Co. 62 Wis. 343-347, and consists in the fact that here the defendant was not merely to furnish materials for the scaffolds and men to build them, leaving the application of the materials or adjustment and placing of the scaffolds to the plaintiff and other employees of the defendant, as in that case and in Amour v. Hahn, 111 U. S. 313, and other cases cited, but here the defendant was bound to properly place or suspend the scaffold in position for the plaintiff to work thereon; for it is found that “ it was the custom and understanding that the scaffold builders should receive no suggestions, directions, or assistance as to or in constructing or placing in position the scaffolds, but should themselves, without interference or assistance from the workers calling for the scaffolds, construct and place the same; ” and it is further found that the defendant retained supervision over tlm building, erecting, and suspending the scaffolds in question, and the men who erected the same. The principle in question is a familiar one, and sustained by numerous decisions. We cannot doubt its applicability to the present case. Bessex v. C. & N. W. R. Co. 45 Wis. 477; Hulehan v. G. B., W. & St. P. R. Co. 58 Wis. 319; McClarney v. C., M. & St. P. R. Co. 80 Wis. 280. In Dwyer v. Am. Exp. Co. 82 Wis. 307, it was held that the question whether dif
If it could be said that the duty of the master ended with furnishing proper scaffolds, ready to be adjusted, and’ that they were to be suspended and adjusted by the plaintiff,,or by him in company with others, his co-employees, we think the defendant would not be liable for the plaintiff’s injury; but, under the finding, it is clear that the plaintiff was not to have, and did not have, anything to do with placing the scaffold, but that this duty was devolved on the defendant, and whether by custom or by agreement is not material. The fact that the plaintiff was to indicate where it was to be placed, or had a right to object that it was not properly suspended or adjusted, does not affect the result. , He certainly had a right to call on the defendant tó do its duty, and to object that it had not been properly performed. Under the facts found, in view of the duty of the defendant to suspend and adjust the scaffold prop-' erly, it became, in our opinion, a place, as distinguished from a mere appliance, which the defendant was bound to furnish the plaintiff, though changing in location with the exigencies of the work; and it was its duty to see that it was in a reasonably safe and proper condition to enable
We find no reversible error in the record.
By the Court. — -The judgment of the superior court of Douglas county is affirmed.