107 Me. 195 | Me. | 1910
Case for personal injuries. The defendant was a contractor, engaged in building a brick addition to the Eastern Maine General Hospital at Bangor. The plaintiff was a brick mason employed in that work by the defendant. A staging on which the plaintiff was at work collapsed, or "jackknifed” as the witnesses termed it, and the plaintiff was thrown to the ground, a distance of about thirty-five feet, receiving thereby serious injuries. The plaintiff claims, and all the evidence tends to show that the cause of the collapse was the fact that at that time the staging was not properly stayed. The verdict was for the plaintiff, and the case comes up on defendant’s motion for a new trial, and on his exceptions.
There is not much dispute about the material facts. We think the evidence warrants the following statement. The general method of construction of the stage from the ground was as follows : Six or eight feet from the wall of the building tall poles were set up. Close to the wall pieces of lumber each four and one-half feet long were placed upright at suitable intervals. Short sticks called putlogs to support the flooring of the stage were placed, one end on the top of each upright and the other end on the ledger board which was fastened by clamps to the outside poles, extending from pole to pole. The putlogs were nailed to the ledger board. The poles were stayed through the windows to a staging within the walls. Inside stays or ledger boards running lengthways of the wall were nailed to the uprights. The flooring completed the stage so far. When the masons standing on this stage had laid up the wall as high as they could conveniently, the process of stage building was repeated. Other uprights were placed on the ends of the putlogs next to the wall, directly over the uprights below, and were "toe-nailed” to the putlogs. Other putlogs were placed on the top of the new uprights, and extended to a ledger board. The staging was stayed to the inside stage as before, and was then ready for use. This process was repeated as often as necessary. The stagings were in fact built
On the morning of the day of the plaintiff’s injury Mr. Sturtevant directed two masons to go upon the staging in question, which was on the west side of the building, and build up the leads at the corners. Meanwhile the masons’ crew, including the plaintiff, were at work on a staging at the same level on the south side of the building. An hour later, having finished their work on the south side, they came around the corner of the building onto the staging which afterwards collapsed. They found the staging floored, the leads up, and brick and mortar on the stage, ready to be put into the wall. The brick and mortar had been placed there by the masons’ tenders. The masons had no express directions from the defendant or his superintendent to go upon the staging, but they went there in the regular course of their work, because there the wall had been made ready for them. The plaintiff made no inquiry about, or examination of, the stage to see if it was completed and properly stayed. He assumed from the appearance of the stage and the existing conditions that he was expected to go to work then upon the stage. He knew however that sometimes men went up onto a staging to put up the leads before the staging was completed. He and his fellow laborers were upon the stage laying up the wall two hours or more before the stage collapsed.
Upon these facts, the defendant denies all responsibility. He claims, first, that he did not undertake to furnish a staging as a completed structure, on which the plaintiff was to do his work, but that he furnished the necessary materials for the stage, suitable in kind and sufficient in quantity, with which the workmen, either the masons or their fellow servants, the carpenters, or both, were to build the stagings as they liked, and upon their own responsibility ; next, that even if he had undertaken to furnish the stagings as completed structures, in this case he did not in fact furnish this stage to the plaintiff, because it was obviously not completed, and it was not intended for the masons to go upon it, until more securely stayed, and the plaintiff went upon it without direction or invitation, prematurely, before it was ready to be furnished or had been furnished in fact; and, lastly, that the plaintiff, in going upon a stage so obviously incomplete and unsafe, both assumed the risk, and was guilty of contributory negligence.
As to the first point this is to be said. It is admittedly the duty of a master to use reasonable care to furnish for his servant a reasonably safe place for him to do his work. In the matter of stagings and scaffoldings, and other like aids to construction, built during the progress of the work, the master, if he undertakes to
On the other hand the master may fully discharge his duty as to stagings, if he furnishes suitable and sufficient materials, and his servants undertake to build the staging for themselves. In such a case each servant is a fellow servant of each of the others. The masons who lay the walls are the fellow servants of the carpenters, who, perchance, may build the staging. If a servant is injured in consequence of the negligence of any of his fellow servants, whether of his own class or another, he has no remedy against the master. If a mason is injured because a carpenter has been guilty of negligence in building the stage, he cannot look to the master for compensation. For it is well settled law that a servant assumes all the risk of the negligence of his fellow servants. Amburg v. International Paper Company, 97 Maine, 327; McCarthy v. Claflin, 99 Maine, 290.
Whether, in any particular case, the master has assumed the duty of furnishing the stage as a completed structure is a question of fact to be determined by the jury. In this case, the defendant testified that Sturtevant was his superintendent and had entire charge of all the work in his absence, and had full authority and discretion to manage the operation; that it was a part of the duty of the carpenters to build the stagings ; that he directed Sturtevant to be. sure and make everything strong; that Sturtevant had authority to construct the stages; that he employed Allen, the foreman of the carpenters ; that Allen was under the direction of Sturtevant; that he himself was present when parts of the stage were built, and spoke
Upon the testimony of the defendant himself, we think the jury might properly find that he assumed the duty of furnishing the stage as a completed structure, and that he was responsible for it, if he furnished it to the plaintiff to work upon. McCarthy v. Claflin, supra.
There is no doubt but that the stage was unsafe. Indeed, it is the defendant’s contention that it was obviously unfinished and unsafe, and that the plaintiff, had he been in the exercise of reasonable care, would have kept off from it.
Next, was the plaintiff' properly upon the stage? In other words, had the defendant directed or invited him to go onto the stage to work in the condition it was in ? It was not necessary that he should be expressly directed. It was sufficient if he was invited. The plaintiff says that he was invited, that the stage was held out to him as ready to be used; that it was so held out because according to the manner in which the work had been carried on, and was being carried on, while the masons were working on one stage the carpenters erected another ; when the leads were up and the stock on the stage, the masons’ crew, having finished on the first stage, went to the new stage, not because they were expressly directed to go, but because by the usual course of the work it was their duty to go, so understood by them and so understood by the master; and because on this occasion the leads had been put up by the express direction of the general superintendent, and the brick and mortar were on the stage. If under such circumstances the stage was held out to the plaintiff’ as ready for use, he was impliedly directed or invited to go upon it.
It may be that the bricks and mortar had been put upon the stage by the tenders prematurely, and without authority. But in view of the fact that only one carpenter was put to work staying
Did the plaintiff assume the risk of the want of staying? He assumed all risks that were incidental to his employment, all risks which were obvious, and all which he knew, or which in the exercise of due care he would have known, or ought to have known. Caven v. Bodwell Granite Co., 99 Maine, 278; Demers v. Deering, 93 Maine, 272 ; Babb v. Oxford Paper, Co., 99 Maine, 298. But he did not assume the risk of the negligence of the master. Jensen v. Kyer, 101 Maine, 106. He had a right to rely upon the presumption that the master had not been negligent, Caven v. Bodwell Granite Co., supra; not however being excused thereby from the reasonable use of his own faculties. The risk of stays, or the want of them, was not incidental to his employment. The neglect would have been obvious, and would have become known to the plaintiff, had he made an examination as to that feature, but he did not do so. He says he did not think of it. Was he bound to think of it? We think not. When a master has assumed to furnish his servant with a completed stage to work upon, and has invited him to go upon it, and it appears to the eye, without any particular examination to be ready for use, and in the same condition that the stages customarily have been when ready for use, we think it would be a severe and unnecessary rule to hold that a servant is bound at his peril to examine particularly as to the staying. It is a case where the servant may well presume that the master has done his duty. It is not shown that the plaintiff knew of the lack of stays. He says he did not. He went onto the stage from another at the same level, and not mounting from below, in which case he would have had a better opportunity to see. It appears that for some indeterminate length of time a carpenter on the stage below was nailing stays, fifteen or more feet away from the plaintiff. How long the time was we do not know. How many stays were nailed we do not
The defendant reserved several exceptions to the admission of testimony. We need not state them in detail. They may be grouped into two classes. The plaintiff, against objection, was permitted to show by several witnesses that upon this job, after a stage had been made and the stock was upon it, and the men had gone up with the leads, it was the customary rule for the masons to follow. It is true, as argued, that custom or usage does not excuse negligence. If the plaintiff was negligent in going upon the stage, he was not less so because he customarily had gone under the same conditions. But that was not the office of this evidence. It was properly admitted to show, by the general way in which the work was carried on, that on this occasion the plaintiff was impliedly invited to go upon the stage, because it was according to the accustomed course of business. And if it was a general custom on this job, as testified to, it must be assumed that the defendant knew it. The only doubt we have is whether it is not a universal custom, and necessarily known to the defendant. It is to be assumed that the jury were properly instructed in regard to the purpose and effect of this evidence. The defendant can take nothing by these exceptions.
The defendant also claims to be aggrieved because the plaintiff was permitted to show by the opinion evidence of experts the safety of the stage in question, compared with stages built according to other plans; also because experts were permitted to testify that in their opinion the defendant’s stage was not a safe kind of stage. We do not find it necessary to consider the objections made to these
The defendant also contends that the verdict, which was for $5,000, is excessive. And we are impressed with the belief that such is the fact. Besides some minor injuries from which the plaintiff has recovered, his chief claim for damages rests in the fact that his right arm is permanently disabled, so that he never can pursue the business of a brick mason, or make any efficient use of the arm. He suffered a compound fracture of the bone at the right, elbow joint. The olecranon process was broken off. The elbow and shoulder joints became stiffened. The elbow is stiff, and the shoulder largely so. He has but little use of his fingers. But at the time of his injury the plaintiff was sixty-two years old, with a life expectancy, as shown by mortality tables, of less than thirteen years. His earning capacity will naturally grow less as he grows older. He was afflicted with tuberculosis of the lungs, the natural effect of which will be not only to shorten his life, but to reduce his earning capacity while he lives. We think it is evident that the jury did not pay proper attention to these considerations. Upon the whole,
Exceptions overruled.
If the plaintiff, within thirty days after the certificate of decision is received by the cleric, shall remit all of the verdict in excess of $3,000, motion overruled; otherwise, motion sustained, on the question of damages only.