Appeal, No. 39 | Pa. Super. Ct. | Nov 19, 1897
Opinion by
The defendants were engaged in a building operation. The plaintiff was in the employ of a firm who were doing the metal cornice work thereon, under a contract which required the defendants to furnish the necessary scaffolding. While the plaintiff was at his work, a part of this scaffolding fell with him, whereby he was injured. He sued to recover damages. The cause was submitted to the jury on the question of the negligent construction of the scaffold. The verdict was for the plaintiff. The defendants assign for error the refusal of the court below to give binding' instructions to the jury to find for the defendants.
The scaffold in question was erected for a particular and temporary purpose. The plaintiff had a right to be upon it. The duty of the defendants was to erect and maintain it in a safe condition for the purpose intended.
In an effort to bring the case within the rule laid down in Kehler v. Schwenk, 144 Pa. 348" court="None" date_filed="1891-10-05" href="https://app.midpage.ai/document/kehler-v-schwenk-6353962?utm_source=webapp" opinion_id="6353962">144 Pa. 348, and Fick v. Jackson, 3 Pa. Super. 378" court="Pa. Super. Ct." date_filed="1897-01-18" href="https://app.midpage.ai/document/fick-v-jackson-6271719?utm_source=webapp" opinion_id="6271719">3 Pa. Superior Ct. 378, respecting the liability of employers to furnish safe appliances for their employees, one of the defendants offered his own testimony and that of some of his employees to show that the scaffold was originally erected “ in the usual and ordinary manner ” for such a purpose as that intended, but no other witness was called by the defendants “ in the same line of business ” to prove that the construction was according to the “ general, usual and ordinary course.” On the other hand, Cook, a witness for the plaintiff, testified: “ Q. Can you say from that model if this is a proper way to build a scaffold? A. No, sir, I do not think it is. Q. Why? A. They usually have a figure four or a piece nailed down on the window or else upright on this piece, that is the piece that'pulled out.”
There was thus a sufficient conflict of testimony to require the case to be submitted to the jury on the question of the defendant’s negligence, and the trial judge was not warranted in directing a verdict for the defendants.
Judgment affirmed.