87 Minn. 518 | Minn. | 1902
Plaintiff was employed by the Electric Steel Elevator Company during the fall of 1901 to assist in the “installation” of the operating machinery of an elevator which it was then constructing in Minneapolis. He was injured by a fall from a movable scaffold maintained in the building by the servants of the American Bridge Company, defendant, who were engaged under a contract with the
Evidence relevant to the issues tends to support the following facts: Previous to September 28, 1901, defendant had been engaged for some time on the structural steel work of the new elevator, and had not finished on December 5. During the intermediate period plaintiff and other millwrights were engaged for the electric company in “installing” or setting up and perfecting the machinery to be used in operating the elevator. The millwrights were employed by the electric company, while the mechanics engaged in the structural work were under the control of defendant; each set of workmen being under the orders of a superintendent. The contrivance occasioning plaintiff’s injury was a scaffolding of two 4x6 inch timbers suspended eighteen feet above the floor, and sustained by ropes. These ropes were attached to overhead standards, and tied under the timbers, which were sixteen feet in length, running north and south parallel to each other, and1 fourteen feet apart. Across these timbers a single plank a foot in width, sixteen feet long, and three inches thick was loosely placed, and could be moved as occasion required. It was intended for the servants of defendant as a standing place while engaged on the steel work overhead.
While this temporary scaffold was put up and maintained in this way by the bridge company for its own employees, it appears that for two months before the accident the employees of the electric company found it convenient to occupy it occasionally, without interference or objection from defendant, whose foreman was in charge of the structural work during that time; and the evidence very strongly leads to the conclusion that in the “installation” work such use was required, and that either this scaffold or an appliance of a similar character would have had to be placed in the same position by the millwrights if they could not make use of the supports and plank thus maintained by defendant. It must also be stated that the servants of both companies were properly engaged in their respective employments within the building at the time. During the afternoon of December 5 plaintiff had occasion to step
At the trial plaintiff testified that when he fell he was standing upon the plank; that he had received no warning of the intention of defendant’s servants to interfere with the scaffolding. On the other hand, servants of defendant stated that immediately before plaintiff fell they gave him explicit warning that they were going to raise the timbers, at which time he was not upon the plank; that, after having lifted the timber on the corresponding side of the platform, but at an inopportune moment, he stepped on the plank, and fell, as the rope slipped through Anderson’s hands. The conflict in the evidence in these material respects was sharply defined, and presented a clean-cut issue of fact for the jury, which has been determined by the verdict, and there is nothing so inherently improbable in either narrative as to justify our interference with the result on that account. If the facts as stated by plaintiff sustain the verdict, it must stand, unless defendant’s rights have been prejudiced by erroneous instructions or orders of the court below.
After describing the facts involved with commendable perspicuity, the learned trial court in its charge told the jury that it was the duty of Anderson, under the circumstances as they existed, to exercise ordinary care for the safety of the plaintiff in moving the platform, and that the test of such care should be what an ordinarily careful and prudent man engaged in work of this kind under the same or similar circumstances would have done. This instruction is objected to, and upon defendant’s claim involves the principal legal question raised by its assignments upon the theory that the employees of the Electric Steel Elevator Company, while using the platforms, were mere licensees, towards whom the defendant
There is little of practical benefit in adopting abstract terms in instructions to juries upon the relative obligations of individuals to concrete duties. This is very much the case in attempting to apply the refined distinctions of the civil law discriminating between ordinary care and slight care in issues of negligence. Such subtleties tend to obscure, rather than illuminate, the practical questions to be determined, and are usually avoided by the courts of this country. So, too, it is somewhat difficult to define negligence accurately, and no definition has been adopted that is perfectly satisfactory to all writers on the subject. The one most frequently approved is that of Baron Alderson in Blyth v. Birmingham, 11 Exch. 781, and is as follows:
“The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” And an action may be brought if thereby mischief is caused to a third party, not intentionally. Mr. Pollock adds to this definition the explanatory clause: “Provided, of course, that the party whose conduct is in question is already in a situation that brings him under the duty of taking care.” Pollock, Torts, 355.
These definitions are often adopted by modern courts, and would, we have no doubt, be sustained against objection. Yet these definitions have been criticised by acute legal analysts, and courts often qualify further by saying that in all cases of injury from alleged absence of care, where an obligation of duty is imposed, the care should depend on some recognized duty, and be commensurate with the risks and dangers of the situation, or state, as did the court here, that such care was such as an ordinarily prudent man would exercise under the same or similar circumstances, which seems to be as far as abstract definitions or illustration ought to go, for, “What is more than these cometh of evil,” and at least are not useful, but liable to mislead.
It follows that the instructions of the trial court in this respect
But corollary to this contention of defendant, it is further urged that the evidence is not sufficient to sustain the verdict, because it does not appear that defendant’s servants had actual knowledge that plaintiff was upon the platform at the time the rope was untied. If positive knowledge that he was there was necessary, the affirmative duty to look for plaintiff could not be predicated upon his previous use of the scaffold as a licensee; or, if the servants of defendant had a right to adjust and change these platforms at their pleasure, in disregard of plaintiff’s rights, counsel’s position would be tenable, and the duty of defendant would depend entirely upon actual knowledge of plaintiff’s danger, known to its servants, rather than upon the existence of facts, as here, to indicate that he might be on the platform at the time it was changed, or that would justify the supposition that interference therewith would jeopardize his safety. And this suggests the crucial inquiry what were plaintiff’s legal rights at the time. Defendant concedes he was a licensee, but his actual rights, rather than an abstract definition, are important. Nowhere is this more significant than in the relation between the person permitted to use the premises or structures of another and the owner, for the obligations of duty in such cases are variant under different circumstances, and that
The evidence is undisputed that plaintiff and other servants of the electric company found it convenient to use this scaffold to do their necessary work, and that the services of both sets of employees were within the apparent contemplation of their respective employers and being concurrently performed at the time of the accident. It was apparently more to the advantage of defendant that the servants of the electric company should use the scaffold than that they take it down from time to time, as occasion for use required, and put up its own appliances in place thereof for a like purpose. Hence the nature and character of the use of this structure in these respects is of more consequence than the length of time it had been used to establish the measure of care and duty involved, and would seemingly require a higher consideration for the plaintiff than would be due to a mere trespasser. Expressed in the plainest terms possible, the owner of premises or structures who permits another to use them under such conditions should not actively interfere with such use, so as to endanger the safety of the occupant. If the test of prudence among ordinary men is to be the criterion in such cases, — -and we know of no other, — this restriction would seem to be clear, and to admit of no doubt.
A very instructive opinion of the supreme court of Wisconsin is that of Davis v. Chicago, 58 Wis. 646, 17 N. W. 406. In this case it appeared that a person using a footpath over the railroad right of way with the acquiescence of defendant was injured by the explosion of a steam boiler, likewise operated by the company, and it was held that such permissive use required the exercise of active ■care to avoid an injury to the licensee. While the ultimate result in this case has been to some extent criticised, yet in all of the many cases in England and America cited therein not open to doubt it is either held or conceded that a permissive use of premises or structures by the owner imposes upon him an affirmative duty to avoid any dangerous intermeddling therewith that imperiled the safety of the person permitted to enjoy such use. We should be surprised to find this rule denied in any enlightened tribunal. It has been fully recognized under essential restrictions upon licensees
Whether the proper degree of care required of defendant under the circumstances disclosed by the evidence that its servants make-observation of the platform before interfering with it, to discover whether the servants of the electric company were using the same,, and give warning if they were, or to refrain from untying the rope-until the person thereon had removed, it is not within oúr province to decide. This was a question for the jury. But we do not hesitate to say that something more was demanded than the obligations due to a mere trespasser or intruder, as required in the case-of Lando v. Chicago, St. P., M. & O. Ry. Co., 81 Minn. 279, 83 N. W. 1089, cited by defendant, and we are not able, from the careful scrutiny which we have given the- evidence, as well as the charge of the trial court, on this review, to discover that the defendant was deprived of any substantial right either in sending the case to the jury or in the instructions to the jury.
From the conclusion we have reached that the plaintiff might obtain a right to use the scaffolds erected by defendant for its own servants in the performance of his work as a millwright by the-permissive acts of defendant, it follows that testimony to show his continued use thereof for two months previous to the accident, during which time defendant recognized the privileges of the servants of the electric company in that respect, was competent, and properly received.
It was urged that the same evidence which tends to show that defendant’s servant Anderson was negligent in untying the rope convicted plaintiff of contributing to his own injury by remaining upon the scaffold instead of stepping from it at a time when it was interfered with. We do not think this follows absolutely. There would be indubitable force in this argument if we were-bound to accept as conclusive the statement in behalf of defendant that while plaintiff was upon the platform defendant’s servants had raised it, and continued to change its position, with his knowl
Order affirmed.