45 F. 225 | U.S. Circuit Court for the District of Minnesota | 1891
{orally charging jury.) In this case of Charles Dalheim vs. F. A. Lemon and others, composing the defendant firm, the plaintiff
In this particular case, gentlemen, now on trial before you, there is no conflict in the testimony as to many of the facts. There is no conflict in the evidence, and it is not questioned between the parties that the defendants, as a firm, had a contract for the erection of the building that was known as the “Solitary Building,” or “Solitary-Cell Building,” in the state-prison at Stillwater, in this state, and that this building was in the process of erection in the month of October, 1888. There is no conflict in the evidence, and no dispute between the parties but that the plaintiff was at that time an inmate of the state-prison, being there serving out a sentence upon a conviction that had been had against him in a court in this state. He was therefore a convict; an inmate of the state-prison. There is no conflict in the evidence, either, gentlemen, that he was engaged about the 10th day of October, 1888, at the time of the happening of this accident, in and about the plastering of this building, or the cells that were in it; this building that is spoken of as the “Solitary-Cell Building.” There is no conflict either in the evidence, gentlemen, but that at the time named he went upon the scaffold that was erected in that building; that the scaffold broke and fell down; and that the plaintiff fell through to the floor below, and received an injury of greater or less extent. Upon those matters, as I have said, there is realty no dispute between the parties.
The first question in dispute is as to whether or not the plaintiff has made out the charge of negligence against the defendants upon which he seeks to recover. Some question has been made in the course of the trial as to the relation which really existed between the plaintiff and the defendants; whether or no, under the facts and circumstances that surrounded the parties, it could be said, as a matter of law, that this rela
Now', gentlemen, assuming that you will find from the evidence that the defendants were engaged in this business of putting up this solitary-cell building, and that in process of carrying on the work the necessity arose that they should have plastering done upon the walls of the building, then, if iir the doing of that they directly, or through their agent or person representing them, procured the labor and services of the plaintiff, and the other convicts who were there, to go upon that building and do that work, and the work was done for the defendants, then the work that was done by the plaintiff and the other convicts that were working with him was done in carrying out the contract which the defendants liad entered into for the erection of that building; and, if that was done with the knowledge of these defendants or the person who may have represented them in the doing of that work, those facts, if proven, would justify you in finding that the relation of employer and employe or master and servant did exist between the parties at that time.
Home reference has been made to the fact that the plaintiff, by reason of iris being a convict,, had lost his right to charge for his services; to contract for pay, or to receive pay. It seems to me, ns I have already said to you, that that cuts no figure in this case. It is not a question as to whether or no the plaintiff stood in. such a position that he himself could directly receive the money value of his services. The relation of master and servant can be created by reason of the fact that the defendants received the value of the labor of the plaintiff. If the relation was such that the work that the plaintiff did was received by the defendants for their benefit, then you see, really and in fao!, the plaintiff was working for the benefit of the defendants. Now', when tiiat relation exists, if one person is working for the benefit of another, and that other perron is receiving the benefit of that labor, is going to receive it, and in fact does receive it, that will create the relation of employer and employe. The case stands just as it would in the case of a minor. You know, gentlemen, that under the general principles of the common law a person who is under ago is not entitled to the proceeds of his labor, except
Assuming, then, that you will find under the evidence in this case that this relation did exist between the parties, then the inquiry is, first, what was the duty and obligation that lay upon these defendants in regard to this scaffolding? The law upon that subject I have already given you; that if this work was to be done, if this plastering was required to be done upon the walls of this building, and the defendants were engaged in having it done, and if the circumstances were such as that their employes or their servants, those who were working fo.r them, would have to have a scaffolding built for them to go upon in order to enable them to' reach up upon the Avails, then primarily the duty Avas upon the defendants to use ordinary care to see to it that a reasonably safe scaffolding Avas erected. If they did use that ordinary care, did use ordinary skill and foresight in the putting up of that scaffold, used proper materials in building it, and built it in such a way as that it Avould bo reasonably safe, if they did use that degree of care, and nevertheless the accident happened, then, as I have said, it would he an accident that Avas not due to the negligence of the defendants. It Avould be then what we call a “pure accident,” for which no person Avould be held responsible. If the evidence satisfies you that the defendants used all the care that they should have done, — that is, used due care, ordinary care, in the selection of proper materials-and the mode in which the scaffold was erected, — then that is all that could be required of them, and the charge of negligence Avould not then be made out against them, and in that case your investigations need go no further, and your verdict must be for the defendants. If, however, the evidence satisfies you that there was not ordinary care used in the erection of the scaffold, that due care was not used in the, selection of proper materials, and that the scaffold, when completed, and the plaintiff and others Avent upon it, was not then in a reasonably safe condition to be used by the plaintiff and others for the purposes for'which they went upon it, — for carrying the weight of these people who Avere to be upon it, and of the material Avhich was going to be upon it, and was in fact placed upon it, carrying the weight that it did carry, — then that Avould justify you in finding that the scaffold wag
Now, upon this question, as to whether the plaintiff himself aided in the erection of that scaffold, or controlled that matter, the parties are at issue before you, and it is for you to determine that question under the evidence in the case. On behalf of the plaintiff it is claimed that he did not have supervision of the matter; did not have any control over the mode of erection of this scaffold; and that while ho was in and about the building, at the time of the erection of it, — and he himself testifies, I believe, that he went down by direction of the agent, Richardson, and got some pieces of material which might he used in the erection of the scaffold, and called the attention of Richardson to it, and so on, according to the testimony before you, — that ho himself was not charged wfih the duty of erecting this scaffold, or of looking after it, and had really nothing to do with it. On behalf of the defendants, it is claimed, on the other hand, that the plaintiff did have practically the control; that lie and the others who were working with him in erecting this scaffold selected out the pieces of timber that were put into it; that he had had experience as a plasterer before he went to state-prison, and, according to his own testimony upon the stand, he liad been called upon frequently to build scaffolds, and knew generally about their character and the needs of the samo; and that while the scaffold was, of course, erected for the defendants, and to be used in and about their business, nevertheless that the
Now, in determining Avhat the facts are in this case, under the relation of the parties, as to the duty and obligation that the law imposes, you may take into consideration the circumstances that surrounded the plaintiff. As I have already said to you, there is no dispute but that the plaintiff was a convict. Of course he was not as free an agent in many respects, to say the least, as he would have been if he had not been a convict. Of course you understand that, and it is not necessary
I do not know, gentlemen, that there is any other light that I can give you, so far as the law is concerned, upon the pivotal facts in this ease. You are the judges of the facts. You are to determine all questions of fact, including the ultimate question whether the verdict should be for the plaintiff or the defendants. Of course you understand that