56 F. 804 | 7th Cir. | 1893
This is an action for damages sustained by the defendant in error on account of an injury to his person received while in the employ of the plaintiff in error, caused by the falling of a shed, which he, together with several other employes of the railroad company, was engaged in taking down. The usual questions regarding the negligence of the company and contributory negligence on the part of the person sustaining the injury are the ones that were in issue in the court below, and the ones which have been presented for review by this court. These, with one exception, are questions of fact, and we think were fairly submitted to, and determined by, the jury. There was a verdict in favor of the plaintiff below for $7,500, which we think the court
It was an open shed, about 120 feet in length, supported by 8x10 oak posts, running through the center, and extending from the roof down through and below the floor or platform, where they were framed into sleepers or timbers lying crosswise upon the ground. The floor was about 4 feet above the ground, and constructed of thick oak plank, resting upon joists supported by stilts or piling. The posts running through the center and supporting the entire weight of the structure were about 15 feet apart, extending along the cenler line of the roof and platform. Along and on the fops of these posts extended 4x6 pine plates or timbers, constituting a center plate, and near the tops of the posts, and fastened to them, were (taps or cross-arm pieces 32 feet long, and on the ends of these wore fastened smaller plates, and on the (-(inter and side plates rafters were laid and fastened 2 feet apart, and on this frame work rested the roof, sloping both ways from the center, made of 7-8 inch cypress hoards, covered with tar paper and a coating of gravel, making the roof in all about, 1-| inches in thickness. The shed was wholly open both at the sides and ends, and rested with its entire weigiit upon the posts extending through the center.
It appears from the evidence that Scullen’s plan was to take down the north portion, or about 60 to 70 feet in length of this shed, hv sawing the roof in two, cutting some of the braces, and chopping with axes the supporting posts above the platform, and then, at the proper moment, by means of shores, to push the building over to one side. To this end, as soon as the men were on the ground, he set them at work to accomplish this purpose. Some wore directed to chop the posts, some to saw the braces, and still others to saw the roof in two. The plaintiff’, Brown, was at once directed by Scullen to go upon the roof, and to saw it in two, which he did. After a little lime, Charles Mahon was sent up to assist him. Brown says he did all the sawing with a crosscut saw until the roof was sawed in two; that he used an iron crow or pinch-
It is in evidence that the post which the plaintiff chopped came down when the shed fell, and broke through the plank platform, and that Brown was caught and doubled up with his breast on his knees for some time before the men were able to get him out, and that he was badly injured, and became paralytic.
One point counsel for plaintiff in error make is that the damages are excessive,' but this contention was not pressed on the hearing, and the court is of opinion that there is little support or countenance for it in the evidence.
There is not much conflict in the testimony, and no dispute about the leading facts. The only machinery, tools, or appliances furnished by the company, or used by Scullen in taking down the building, was a crosscut saw, four axes, one crow, one pinchbar, hammers, a maul, and two pieces of old plank, picked up in the vicinity for the occasion, and which the evidence tends to show were unsound and partially rotten.
The contention of the plaintiff in error is that there was no negligence shown on the part of the company; that, allowing Scullen to have been guilty of negligence, his negligence, he being a fellow workman with Brown, is not chargeable to the company; and that the negligence of Brown contributed to produce the injury. The court is of the opinion that no branch or portion of this contention can be sustained as a matter of law; and the court cannot review the case upon the facts, except to see that the verdict is not unsupported by the testimony.
Perhaps some labor and expense could be saved by taking the shed down by sawing the roof, and sawing and chopping the braces and .posts, and pushing the shed over, provided suitable care had been taken in supplying machinery and appliances for the purpose and in the execution of the work. But here was a heavy and unwieldy structure, (50 to 70 feel' in length, and the plan was to cut away the support, and, at the proper moment of weakening, to push the building over; and the only means used for the purpose were these few tools and (he two pieties of plank for shores. INo doubt, the jury believed there should have been, if not more men, at least more and better timbers to be used as temporary support for the roof through the center, so that, when the posts were cut, there would be something to prevent the building from falling, as it did fall, while they were trying to push it over, and some others to use for shores at different points on the side. The evidence shows also that the wind was blowing at the time in a direction opposite to the one in which the shed -was to be pushed over, which no doubt complicated the situation, and rendered care and caution all the more necessary. The entire scheme and the direction for its execution were those of Bculien. The evidence shows that neither Brown nor the other men knew anything about them, except as the work proceeded, or had anything to do but to obey Bcullen’s orders. The roof might have been sawed asunder on a diagonal instead of straight line, in such wny as to prevent its falling or being blown over in the wrong direction; and other obvious precautions might and should have been
The question of contributory negligence was properly submitted to the jury, and we have no power or wish to disturb the finding. Indeed, we think it fairly supported by the evidence. Brown had done the work assigned to him. While sawing the roof he had no opportunity of knowing what had been done below; at least, he so testifies, and there is no evidence to the contrary. He did not know what braces or posts had been chopped, and had no reason to suppose that his cutting one of the several posts, as directed by Scullen, would cause the structure to fall. Scullen should have known of that danger, and. provided against it. He was in a safe place himself, but he sent Brown to a point of great danger, in circumstances where a skillful and prudent man would have done otherwise. He says he told Brown to cut the post a little, and Brown says he cut it a little; just how much does not appear, or whether he cut it off. He testifies that he does not recollect about seeing the post come in two, for three or four inches were holding; that he struck three or four blows, and the shed caught him; that he does not know whether the post broke off or not, but that he knows he never chopped it in two, for there was too much wood for the three or four blows he gave it to cut it in two, — too much timber left. TSfor does it appear with any certainty how much the other posts had been cut. Witness Charles Mahon, who came from the roof before Brown, says they were all chopped, more or less; that some had been chopped in halves, others about two-thirds, as near as he could remember. He also says the wind was blowing in the opposite direction, and they did not have men enough there to use the plank, as he says could be very easily seen, as the biggest part of the shed fell oh the opposite side of what it was intended to fall. How it was expected, without rope or windlass or other means than those provided, and with five or six 8x10 dry oak posts but partly cut, to push the shed over in safety, it is difficult to perceive. Scullen stood but a few feet from Brown when he was doing the cutting, without giving any orders to stop. He was presumably directing and controlling the cutting from first to last, and the jury were clearly justified in finding that everything done by Brown was done under Scullen’s authority and direction, in ignorance of the danger which Scullen ought to have recognized.
The judgment of the circuit court is affirmed, with costs.