72 Vt. 278 | Vt. | 1900
The plaintiff, a carpenter of long experience, was employed by the defendants to work in the construction of their mill, and was placed under the superintendency of one Whitney as foreman. He was injured by the breaking down of one section of a long staging, built before he came upon the job by the force of workmen which he joined. This structure was insuffiieent in that the cross-pieces upon which the planks rested were fastened to the standards with nails of insufficient size, left with their heads a quarter of an inch or more from the wood. A few hours before receiving his injury, the plaintiff was sent to repair the staging where it had been broken by the falling of a man upon it from a height of several feet, and found that the break was caused by the pulling off of a cross-piece, and re-nailed the piece. His own injury resulted from the pulling off of a cross-piece about sixteen feet from the place so repaired. This occurred while the plaintiff and three others were carrying a stick of timber along the staging. Before going upon it with the timber, the plaintiff asked Whitney if the staging was safe to work on, and Whitney replied that it was all right if not loaded down with timbers, and told the plaintiff to go on with his work and not ask so many questions. The plaintiff testified that he made this inquiry because he thought the staging looked rather shabby and uneven.
At the close of the evidence the defendants moved that a verdict be directed in their favor on the ground that the plaintiff had not made out a case entitling him to recover, which motion the court overruled proforma. This saved the question whether the plaintiff, upon his own showing, was guilty of contributory negligence. The writer of the opinion is inclined to think that the defendants were entitled to have a verdict directed, on the ground that the plaintiff had repaired an injury to the staging of such a nature, and so caused, that the repairing could not have failed to call the attention of a prudent and experienced mechanic to the improper construction and weakness of the structure. But
The court, for the purposes of the trial, charged that it was the duty of the defendants to furnish a reasonably safe staging for the plaintiff to do his work upon. The general rule requires that the master provide for his servant a reasonably safe place in which to work. The questioil is whether a structure of this character is within the general rule. It has been held not to be, in a number of well considered cases in other states, and we think upon sufficient ground. There is a plain distinction between places prepared by the master through the agency of one class of servants for the occupancy of another class in some employment to be therein carried on, and places prepared for temporary use in the erection of a building by those employed for that work. The latter are not places in which to work in the ordinary sense of the term, but instrumentalities which the workmen themselves provide as means of carrying on the work they are employed to do. It was the duty of those employed to build the defendants’ mill to erect whatever staging was necessary to their undertaking. Thé defendants were responsible for the sufficiency of the materials provided for the staging, but not for the manner in which their workmen used them. 1 Shear. & Kedf. on Neg. 317.
The case presents the further question whether a staging is within this rule as to a workman who comes upon the job after it is built. It is true that the plaintiff sustained no relations to the defendants or their workmen while the staging was being built, and that as far as his service, considered individually, was concerned, he went to work upon it as a place prepared for his use. But the plaintiff’s service involved no use of the staging that was independent of the work of construction, and it had been prepared, not by the master as something which he undertook to provide for the plaintiff, but by his workmen as a part of the general work which they had undertaken to do, and upon which plaintiff entered. We think that in associating him
It is true that a master is liable to his servant for injuries-caused by the negligence of an incompetent fellow-servant whom he has negligently employed, and that it appears from special findings that Whitney was not a competent person to have charge of this work and that the defendants ought to have known it. But the judgment cannot be sustained on these findings, for the plaintiff could not recover on any ground if guilty of contributory negligence, and the finding that he was not thus guilty was under instructions applicable to the case as submitted, but not such
Judgment reversed and cause remanded.