Fidelity Storage Co. v. Hopkins, 44 App. D.C. 230

Fidelity Storage Co. v. Hopkins

44 App. D.C. 230 | D.C. Cir. | 1915

Lead Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

If an employee has knowledge of the circumstances under *236which the employer carries on his business, and accepts the employment, he assumes such risks as are open and obvious. Anderson v. Smith, 35 App. D. C. 93-95.

It appears from the noncontradicted evidence in this case that the scaffold was not in itself unsafe or insecure. It was open to the view of the intestate, and he engaged in labor upon it. It may have been a risk for him to mount on the short stepladder placed oh the planks, but, if so, it was a matter within his observation, and he assumed the risk of it.

There is nothing in the testimony to show that the foreman’s, Gant’s, presence on the scaffold caused the plaintiff to fall. The scaffold did not fall, nor did the boards break.

IIow the accident occurred is purely a matter of speculation. If the witness Edwards is to be believed, that he saw that the boards of the scaffold were springing in the middle before intestate mounted it, and warned him, saying, “I wouldn’t go up there if I were you,” and, having his attention specially called to the, springing of the boards, plaintiff’s intestate went upon them, and placed his short stepladder, and mounted the same to proceed to work, the reported remark of the foreman, Gant, that “It’s all right,” did not warrant intestate in taking the risk.

We are of the opinion that no negligence of the defendant was shown by the evidence, and that intestate assumed whatever risk there was. o

The court should have given the refused instruction.

The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.

Reversed and remanded.

Concurrence Opinion

Mr. Justice Kobe

concurring in part;

In my view, the working place of the deceased consisted of the narrow planks suspended 8 or 10 feet in the air and the short ladder resting thereon. That this is so is apparent from the evidence of the defendant that a strip had been nailed to the outside edge of one of the planks, so that the ladder could. *237not slip off. In other words, it was contemplated, before the deceased mounted the short ladder, that he should do so. I dissent from the view that such a contraption may be held, as matter of law, to constitute a reasonably safe place to work. The floor was of cement. The stepladder, upon which one end of the plank rested, was not secured in any way. Little time would be required, in my opinion, for twelve practical men to determine, as matter of fact, that the moment the deceased mounted the short ladder, one end of which rested on the planks and the other rested against the wall, the stepladder would be pushed out sufficiently to overthrow the equilibrium of the deceased. This the defendant was bound to know arid, in my view, it clearly was guilty of negligence in providing such a dangerous working place.

But the danger was so obvious that I cannot escape the conclusion that the deceased must have apprehended it and taken his chances. Had it been of a complex nature, the evidence tending to show that the defendant’s representative assured the deceased of the safety of the device would have made a case for the jury.

I concur in the result.