70 Conn. 573 | Conn. | 1898
The decisive question in this case is .whether, upon the facts found, it was the duty of the defendant to provide the staging upon which the plaintiff was to do his work in the church building. If it was, there is no error; if it was not, there is. In the discussion of this question it will be assumed that the plaintiff, while doing the work in the church, was and remained, as the finding shows, the servant of the defendant; and further, that the staging furnished to the plaintiff was, as claimed by him, a “ place ” for the servant to work in, rather than a mere tool or appliance, within the meaning of the rule hereinafter referred to.
The general rule requiring the master to use reasonable care to provide a reasonably safe place for the servant to work in, and performance of that requirement as the full measure of his duty in this respect, is well settled in this State. Wilson v. Willimantic Linen Co., 50 Conn. 433; McElligott v. Randolph, 61 id. 157. This was the rule applied in this case in the trial court, and the important question is .whether it was applicable under the facts found.
The first part of the rule above referred to, is usually stated as follows : “It is the master’s duty to exercise reasonable care to provide for his servant a reasonably safe
Then, again, this general rule is not ordmarily applicable to cases where the master neither has nor assumes possession, •use, or control, legal or actual, of the premises or “place ” where the servant may be at work. The general rule is based upon such possession, use and control by the master of the premises where he puts his servants at work for Mm; and, speaking generally, Ms duty to use due care to make and keep such place reasonably safe flows from and is measured by such possession, use and control. Just as the master’s liability for the acts of his servants while engaged in his business is based upon his power to control them, so Ms duty to provide reasonably safe premises is founded essentially upon Ms occupation, use and control of such premises. This bemg the reason of the rule, when the reason does not exist the rule is Mapplicable.
If an employer sends Ms servant to a distant place by rail, to do a piece of work on the premises of B, it would hardly be contended, in the absence of a special agreement to that effect, that the master would be responsible to the servant
If the master assumes possession and control of the premises of B with his consent, even temporarily, for the purpose of doing the work there, the result might be different. Such a case might be, under certain circumstances, within the reason of the rule. Ordinarily, however, we think the law reads such a duty on the part of the master towards the servant into the contract of hiring, only with reference to premises used, occupied or controlled by the master. If this were not so the duty and liability of the master would be very burdensome. He would be, in effect, frequently made responsible for the negligence of third parties with reference to premises he had never seen, and about the condition of which he knew and perhaps could know nothing. The merchant would, in effect, be liable to his clerk for the negligence of the customer with respect to the safety of the premises upon which the clerk goes to deliver his master’s goods, and the master-plumber or carpenter to his workman for the negligence of the householder upon whose premises he sends the workman simply to make some slight repairs. In all such cases the servant, if injured without fault on his part, by the negligent failure of the owner or occupier of the premises to keep them in a reasonably safe condition, has his remedy against such owner or ocóupier and, in the absence of some agreement to that effect, has none against the master.
We think the case at bar, upon a proper construction of the finding, falls within tins class of cases. Unless it was
If the defendant specially assumed any such duty, that was a fact to be found by the trial court, either expressly or by necessary implication. It is not found expressly, nor by necessary implication. The question, on this part of the case, is, whether if no such duty rested upon the defendant by law, the facts found warrant the conclusion, as matter of law, that it assumed such a duty. The strongest thing in the finding in favor of such a conclusion is the fact that the defendant assured the plaintiff that the staging would be entirely safe; but this fact, taken either alone or with the other facts found, clearly does not warrant any such conclusion as matter of law. The assurance was given at the very time that the defendant told the plaintiff about the strong staging that had been already erected and in use in the building, and at the very time when plaintiff was informed that Caulfield and not the defendant was to “ see ” to the staging. What the defendant said to the plaintiff, as detailed in the finding, falls far short of an agreement to be responsible for the staging already built, or to be built, by Caulfield or his servants. The most that can be said about the finding upon this point is that it contains evidential facts tending to prove such an agreement; but such facts do not, as matter of law, constitute such an agreement. Taking the finding as a whole, it is quite clear that it does not show that the defendant specially assumed the duty in question. In justice to the trial court we ought to say that its decision is not based upon the ground that the defendant specially assumed any such duty, but upon the ground that such duty was imposed by law upon the defendant as master under the circumstances; and the remaining question is whether this is so.
There is error in the judgment complained of and the. cause is remanded for the assessment of nominal damages.
In this opinion the other judges concurred, except Andrews, C. J., who dissented.