87 Iowa 765 | Iowa | 1892
Lead Opinion
The Seevers Manufacturing Company is a copartnership composed of Thomas and H. W. Seevers, and the general business of the firm is the manufacture of steam heaters, iron bridges, and various kinds of machinery, at Oskaloosa, Iowa. About the
“9. As to the first of said alleged grounds of negligence on the part of defendants hereinbefore stated,„ you are instructed as follows: If you ^ J irom the evidence, that the defend-an^s attempted to manage the erection of and ¿id not employ a skillful foreman or carpenter to erect the same, you will next consider whether or not this was carelessness or negligence on the part of the defendants. If, however, you find, from the evidence, that this allegation is not proved, then you need pursue this inquiry no further, but will find for defendants to this extent.’’ •
It is said by the appellants that the court erred in
First. That the defendants attempted to manage the erection of said building, and did not employ a skilled foreman or carpenter to erect said building.
Second. That the defendants were negligent in employing unskilled laborers for work which required skilled workmen.
Third. That defendants were careless and negligent in directing the construction of said scaffolding.
Fourth. The defendants were careless and negligent in putting, or causing to be put, unsound and rotten material into said scaffolding.
Fifth. That defendants were careless and negligent in directing and compelling plaintiff to go on said scaffolding.
Sixth. That defendants ■ were negligent and careless in not causing said scaffolding to be properly constructed and supported.
There was evidence tending to establish the following additional facts: That the erection of the building was under the supervision of Thomas and H. W. Seevers, Thomas being presumably in charge; that the boards in the platform were such as Thomas directed to be used; that an old shed had been torn down, by direction of Thomas, and the boards piled up nearby; that the board which broke was one of the pile, “knotty,” and unsafe for such a purpose; that the platform was made the day before the injury, when
“When we started to work on that morning, the day I was hurt, they told me to go to work. Harry Seevers told me to go to work with Alec Baker, and we went to the bottom and got all the rafters out, and Alec had the patterns made for them. I would get the two by fours, and Alee would saw them, and, when we got them sawed, we would put them two by two, in their places, and then put them up on the building. Question. What direction was given to you about that? Answer. I was told to work with Alec Baker, and when he went to put up the rafters of course I had to go up with him. Alec Baker would get on one side, and I would hand him up the raftérs, and he would put them up. He would hold one till I got another, and then we had a horse up there. I got on that, and held the rafters in place while he and Bo we Browherd nailed them. Baker would nail one end, and Browherd the other. When I got down off the horse Baker got up and nailed them in the center. There were eight pairs of rafters.on the building. I held the rafters up while they were nailed. Baker nailed them. While he was nailing one end I held them in place. I do not remember how the first two were put up, but after that I steadied them while he nailed them. He did all the nailing, all the way through: Question. Who told you to help him put them up? Answer. Harry Seevers. He got me up there, all the way through. Question. How many of them did you get up before you fell? Answer. We put them all up. That was the last one, when I fell. When I got through holding up there, and Baker got that nailed, I stepped backwards, off the “horse,’’ and when I stepped on the board there*770 it broke right through. I stepped off the horse on the board which broke when Alec got through nailing the rafter. After I fell I seen the board that broke was an old board. I had not noticed it before. All the other boards were new. I did not notice any old board but that one which broke with me. It was eight feet long. After I fell some one called my attention to it. The two ends hung by a nail, and I heard some one say, ‘Take them down, or they will fall on him,’ and of course I paid some attention to it. It broke right in the middle. This old board that broke came from the old shed that we tore down there. Tom Seevers told me to tear down the old shed to make room for materials for the new building, which I did, and laid the old boards in a pile. The shed we tore down was old, and it had the appearance of being an old building. I can not say that the particular board which broke was rotten, only it was knotty, great knots running from the center of the board out both ways, where it broke. It was cross-grained. It was knotty, it was full of knots. There was a knot in the center. Question. After it broke you could see it was knotty and cross-grained! Answer. Yes, I could see that. I did not know how I fell, I went down so sudden. I found myself lying on my back. When I struck I could not move. My brother, Alec Baker, and Harry Seevers all came to see what was the matter, and raised me up, and I was carried home. I suffered great pain from the injuries.”
The testimony of the plaintiff has strong corroboration throughout, and, in many particulars, is without dispute.
From this statement of the facts and the testimony, with the issues, we may have in view the necessary directions to be given to the jury, and judge of their merits or demerits under the complaints made. We must concede the proposition of law, made by the appellants,
“11; The second of the six grounds of negligence alleged and claimed by plaintiff against the defendant is, ‘That defendants were negligent in employing unskilled laborers for work which required skilled workmen.’ If you find, from the evidence, that the defendants did not employ unskilled laborers where skilled workmen were required, then you need pursue this inquiry no further, but will find for the defendants on this point in the issue. If, on the' other hand, you find it is sustained by a preponderance of the evidence, then you may next consider whether or not this was negligence on the part of the defendants. Defendants were bound to exercise only ordinary care in procuring labor on their building, and what would be ordinary care depends upon the circumstances proved as surrounding the case. You should take into account the character of the ^ork to be done, the kind of men employed, and, if such care was used by the defendants as an ordinary, prudent man would exercise under the same or similar circumstances, then defendants are not guilty of negligence under this allegation, and you should find for the defendants, to this extent, on this point in issue.”
The complaint as to this instruction is that, with
*773 “12. The third of the six allegations of negligence or carelessness on the part of defendant is ‘that the defendant was careless and negligent in directing the construction of the scaffold.’ If you find, from the evidence, that the defendants, either by themselves or through a foreman or carpenter in charge of the work, did not' direct the construction of the scaffold, then you need not pursue this inquiry, and determine whether or not defendants were careless or negligent in so doing. If, on the other hand, you find, from the evidence, that the defendants so directed the construction of the scaffold, then you will consider whether or not defendants were negligent in so doing. Defendants were bound to exercise ordinary care and skill in the construction of said scaffold, for the safety of the employees; thatis to say, such care and skill as an ordinarily prudent man would exercise under the same or similar circumstances. If defendants did this, then you should find for them on this point; if not, then to this extent you should find for plaintiff. You are instructed, in passing upon this, that, shoidd you believe from the evidence that defendants had employed any person to talce charge'of the erection of said scaffold, then any act of omission or commission by such person in this employment is as binding on the defendants as if done by themselves, provided you find that plaintiff himself did not aid in such erection.’’
The italicized portion is quoted in argument as being erroneous. It is said there is no evidence tending to show that “the defendants employed any person to take charge of the erection of the scaffold.” The argument, however, concedes that there is evidence tending to show that they employed one Baker to superintend the erection of the building. But it is said the employments are different. It is likely true they might be different, but an instruction should be viewed in connection with the evidence and facts as to which it is
It is further urged that the instruction is erroneous in that it violates the rule whereby a principal is not liable for the negligence of a co-employe or a fellow-servant. It is conceded that the following quotation from Cooley on Torts, page 663, is a correct statement of the law: ‘i-We have seen that, in some cases, the -master is chained with a duty to those serving him of which he can not divest himself by any delegation to others. He is charged with such a duty as regards the safety of his premises, the suitableness of the tools, implements, machinery, or materials he procures or employs, and the servants he engages or makes use of. Whoever is permitted to exercise the master’s authority in respect to these matters is charged with the master’s duty, and the latter is as responsible for a want of proper caution on the part of the agent as for his own personal negligence.” In Bishop on Non-Contract Law, section 647, it is said: “This duty of providing proper appliances is not a thing pertaining to the service, but it is the master’s own. He may employ agents in discharging it, but the law does not deem them fellow-servants, for the consequences of whose neglect he is not answerable to a servant. His neglect of this duty, whether personal or by agent, is his own.” In the next section (648) it is said: “'The same doctrine applies to the place to work as to the appliances. The
VII. Some few other questions are discussed, but they are mainly embraced in the considerations already giyen, and none of them present errors, if at all, that would justify a reversal. We think the verdict has good support in the evidence, and the judgment is AEEIEMED.
Rehearing
Friday, February 3, 1893.
— The former opinion in this ease will be / found above. As the facts are fully stated in the original opinion, we need not set them out herein. After a most careful investigation of the questions involved in the case, we are content with the conclusions reached in the original opinion, and must adhere thereto. The petition charges that the defendants were negligent in attempting to manage the’ erection of the building, and that they did not employ a skilled foreman or carpenter to erect it. The testimony tends to show that a member of the firm superintended the work on the building. The proposition of law is conceded that, if he was competent, it was not negligence for him to assume the discharge of such a duty. If the person in charge of the work, whether one of the defendants or another, was in fact competent, then there was no negligence in failing to employ one who was competent. What- proof was necessary to establish the allegation of the petition of negligence in failing to employ a .competent person to superintend the erection of the building? The one fact only that the person in charge was not competent. If the law requires a competent person to be in charge to avoid negligence, the effect of an allegation that the defendants failed to employ a competent person must be understood as alleging that whoever was in charge was -incompetent. As the evidence shows that the defendants themselves had the work in charge, the court, in the ninth instruction, properly directed the inquiry of the jury to the question of their competency, regardless of an express averment that the particular person in charge was not competent. Other questions are sufficiently considered in the original opinion. Affirmed,