73 Wash. 320 | Wash. | 1913
Lead Opinion
Action by Charles H. Eckert against Sound Construction and Engineering Company, a corporation, to recover damages for personal injuries. From a ■ verdict and judgment in plaintiff’s favor, the defendant has appealed.
The sole question presented is whether the trial court erred in denying appellant’s motions for a directed verdict and for judgment notwithstanding the verdict. Appellant, as contractor, was engaged in the construction of the roof of a round house for the Great Northern Railway Company, at Wellington, Washington. Respondent was a carpenter
The undisputed evidence shows that Eckert was a carpenter employed by appellant; that he was injured on Monday, November 12,1910; that on the previous Friday the scaffold, which was to be used in placing the timbers in the roof, was constructed by two other carpenters in appellant’s employ; that while they were engaged in constructing the scaffold, respondent was framing timbers in the same building'within sight of them, only a short distance away; and that all of these carpenter employees were subject to orders of the foreman. The only question is whether respondent, Eckert, was a fellow servant of the carpenters who constructed the scaffold and whose negligence is the only negligence shown.
In view of the rule announced in Metzler v. McKenzie, supra, which has since been followed by this court, and in view of its further announcement in Muehlman v. Spokane & Inland Empire R. Co., supra, we are compelled to hold that respondent was a fellow servant of the men who built the scaffold. They were all carpenters employed by the appellant corporation, were engaged in the general work of framing the roof and preparing a scaffold to be used in its erection. No showing has been made to the effect that any of the workmen were incompetent, or that appellant had been negligent in their employment. There can be no question but that, at the time of the accident, Eckert and Swanson were fellow servants. In the Swanson case we held that he was a fellow servant of the men who built the scaffold. To now hold that Eckert was not their fellow servant, although he was injured in the same accident with his fellow servant, Swanson, would be drawing an exceedingly fine distinction in an attempt to distinguish this case from that of Swanson. On the authority of the Swanson case, and the other cases above mentioned, we hold that Eckert and the men who constructed the scaffold were fellow servants; that the only negligence proven was the negligence of such fellow serv
Reversed, and remanded with instructions to dismiss.
Morris and Main, JJ., concur.
Concurrence Opinion
(concurring) — In cases where temporary staging is used by carpenters, masons, painters, and persons in like employment, there is a duty upon the master in the alternative, either to furnish the. staging as a completed structure for the use of the servants, or to furnish timbers and other materials sufficient and suitable for that work and require the servants to build the staging themselves. Labatt, Master and Servant, § 615.
When the master adopts the first alternative, he becomes liable for any injury resulting from a failure to use reasonable care, either in selecting the materials used or in the use of those materials in the actual construction of the staging. When he adopts the latter alternative, he is hable only when he has failed to furnish materials sufficient in quantity, or suitable in quality, or competent fellow servants, and the injury results from failure in all or any of these particulars. This distinction is recognized in the Swanson case, 67 Wash. 128, 120 Pac. 880, where the evidence showed that the only control exercised by the master or his representative in the actual construction of the staging was to furnish a plan, and as we said in that case: “The plan is a good one and is not questioned.” The master having furnished sufficient and suitable materials and a good plan, and not having under
I therefore concur.