129 Tenn. 446 | Tenn. | 1914
delivered the opinion of the Court.
This suit was brought by Parker to recover damages for personal injuries incurred while in the service of the appellant firm of contractors as a carpenter. In the circuit court a judgment was recovered by Parker; but the -court of civil appeals has reversed this judgment and remanded the case for a new trial.
Neither party is content with the action of the last-named court, with result that two petitions for certiorari are before us asking for a review of the judgment. Parker’s contention is that there was error in the remand of the cause; the contracting firm insists that its motion for peremptory instructions to the jury in the lower court should have been sustained.
The court of civil appeals held that the proximate cause of the breaking was not the knot, but the displacement of the bracing and the consequent careening of the beam. P'arker himself testified that immediately preceding the collapse he felt this beam careen and did not have time to protect himself.
The scaffold was built under the supervision of R. A. Griffin, Jr., who was not a member of the firm sued, but
The court of civil appeals found the fact to be, on the uncontradicted evidence, that the firm furnished ample suitable material with which to erect the scaffold ; that, so far as disclosed, no one noticed the knot in the beam until after the break and collapse.
It is not shown when the bracing of the arm was displaced. The only evidence on the point elicited was to the effect that it might have occurred on the morning of the collapse. Work commenced at 7 a. m. and the fall of the scaffold occurred at 8:30 a. m.
The primary contention of the firm sued is that this scaffold was a temporary structure, intended only to be used by the carpentry crew in finishing the room where it was constructed; that it was but a part of the work in which the force (of which Parker claimed to-be a member) was engaged; that they, as employers, furnished an ample quantity of suitable materials, employed a competent foreman, and did not themselves undertake to furnish the scaffold as a completed structure; and that, therefore, they are not answerable to Parker for his injury — citing Killea v. Faxon. 125 Mass. 485; Kennedy v. Spring, 160 Mass. 208, 35 N. E. 779; Ross v. Walker, 139 Pa. 42, 21 Atl. 157, 159, 23 Am. St. Rep. 160; Kimmer v. Weber, 151 N. Y. 417, 45 N.
The general rnle is that an employer is bound to use reasonable diligence to furnish the employee a safe place and safe instrumentalities for the work to he done; hut an exception exists in case of a scaffold where the employer supplies ample material of good quality and competent labor for the construction of such appliance, which he is not required to furnish in a completed state, and which the employees, within the scope of their employment, are themselves required to construct. In such case the employer is not liable to one of the workmen for the negligence of a fellow servant in the construction of the scaffold. Authorities, supra; Haakensen v. Burgess, etc., Co., 76 N. H., 443, 83 Atl., 804, Ann. Cas. 1913B, 1122, and note; Haskell v. Cape, etc., Co., 4 L. R. A. (N. S.), note pp. 226-229.
A close question, touching which the authorities are not in accord, is whether an exception to the above-noted exception arises where the employer has engaged in the work of scaffold construction a foreman, to whom is assigned the selection of the material from the mass or the designing of the structure, and where by reason of the negligence of the foreman in regard to such matter injury to an employee occurs, and the doctrine of fellow servant is interposed as a defense by the employer.
In the case of Ross v. Walker, supra, it appeared that "Walker, the employer, had in his employ as foreman
“For an error in judgment, or neglect of duty on the part of any one of his employees, from the foreman down to the humblest unskilled laborer, he was not liable. It was not material to this inquiry to know whether ‘Duffey had entire charge and control of the work’ as a foreman or not; nor to know whether he selected from the mass furnished by the employer the materials to be used for any particular purpose, or not. . . . The inquiry is: Was it the employer’s duty, after having provided materials ample in quantity and quality, to supervise the selection of every stick out of the mass for every purpose1? To state the question is to answer it. This was not his duty, and for this reason Duffey, if he did select the timber, . . . did not represent Walker as a vice principal in such selection.” See, also, Lambert v. Missisquoi Pulp Co., 72 Vt., 278, 47 Atl., 1085; Lindvall v. Woods, 41 Minn., 212, 42. N. W., 1020, 4 L. R. A., 793; Sowles v. Norcross Bros. Co., 195 Fed., 889, 115 C. C. A., 577; Noyes v. Wood 102 Cal., 389, 36 Pac., 766; Olsen v. Nixon, 61 N. J. Law, 671, 40 Atl., 694.
We are of opinion, however, that the cases ruling to the contrary announce the better doctrine. When the
We hold, therefore, that when the foreman exercised the function of making such election he acted as vice principal. It 'was the duty of the employer (1) to furnish the scaffold as an instrumentality complete for use; or (2) to leave the employee unembarrassed as to selection from a. mass of character above defined.
We also conceive that the facts found establish that the scaffold when constructed was not a defective structure, and that the beam or arm as placed was sufficient to render the scaffolding superimposed secure. The
For aught that appears in the proof, the displacement of the bracing occurred within 1% hours before the accident. In Box Company v. Gregory, 119 Tenn., 537, 542, 105 S. W., 350, 13 L. R. A. (N. S.), 1031, it was held that no presumption of negligence could arise from the employer’s failure to inspect during a period •of 4y2 hours covering the period of the existence of the defect; and on that ground it was ruled that peremptory instructions should have been given on defendant’s motion.
A like holding must here result. The judgment of the court of civil appeals will, on grant of the writ of certiorari, be modified accordingly.