129 F. 561 | 6th Cir. | 1904
The defendant was erecting for its own use a large brick mill. It supplied the materials and hired masons and carpenters by the day, and the work was carried on under the general direction of a superintendent. A scaffolding was constructed out of material furnished by the defendants for the use of the masons in the prosecution of their work. This scaffold fell while the plaintiff was standing thereon engaged in laying brick. The petition charges that the fall was due to defective and unfit materials and also to negligent construction. The falling of a staging or scaffold without any apparent cause may well be regarded as prima facie evidence of negligence on the part of the person who had provided it. Stewart v.
The evidence tended to show that the masons did not undertake or assume to construct this staging, and that neither the plaintiff nor any of those workmen for whose use it was constructed had anything whatever to do with its building or the selection of materials therefor. Upon the other hand, there was evidence tending to show that the defendants assumed and undertook to construct same, and that they had same made by one John Frampton, a boss carpenter in their employment, and that Frampton was in no way aided or assisted by other than his carpenter helpers. There was also evidence tending to show that when the scaffold was' finished the plaintiff and his fellow masons were directed by the foreman of the bricklayers to go upon and continue their work upon same. 'The only question, then, is whether the relation of the parties is such that the defendants are liable for the negligence of Frampton in the construction of the staging so made. There is a line of cases holding that when the employer furnishes suitable materials, and the workmen themselves construct a scaffolding or staging as a part of the work which they undertake to perform, and build it according to their own judgment, that the employer is not liable for an injury to one of their own number, sustained in the subsequent use of the structure, in consequence of negligence in construction. The erection and re-erection of such a staging as the work requiring its use progresses, being itself a part of the very work which the employés are to do, takes it without the general rule in respect to the duty of the master to exercise reasonable care to furnish a reasonably safe place and appliances. Am. & Eng. Ency. Law, vol. 20, p. 82; Kimmer v. Weber, 151 N. Y. 417,421, 45 N. E. 860, 56 Am. St. Rep. 630; Armour v. Hahn, 111 U. S. 313, 4 Sup. Ct. 433, 28 L. Ed. 440; Killea v. Faxon, 125 Mass. 485. But the rule is quite otherwise if the employer himself undertake to furnish such scaffolding for the men who are to work thereon. In such case the duty is one of those positive duties of the master toward the servant which cannot be discharged by the substitution of a competent agent. The act or service to be done is that of furnishing' a reasonably safe place or appliance, and negligence in the doing of such a service is the negligence of the master, without re
“When a gang of masons are engaged in plastering or painting a room, the construction of proper platforms or places upon which to stand while doing the work is a detail of the business that is generally left to the men themselves. The master may, it is true, take this out of their hands, and assume to do it himself, and in that case he would be bound to furnish an appliance reasonably safe and suitable for the purpose.”
In Connor v. Pioneer Co. (C. C.) 29 Fed. 629, Brewer, Circuit Judge, now Justice Brewer, charged a jury in a case where the plain
The judgment must be reversed, with directions to grant a new trial.