93 Ill. App. 212 | Ill. App. Ct. | 1901
delivered the opinion of the court.
The evidence is sufficient to establish that the scaffold in question was insecure by reason of a defective scantling used as one of the supports, and that the defect, viz., a knot which weakened the scantling, was apparent upon the surface of the scantling and could have been detected by inspection.
Counsel for appellants contend that there can be no liability imposed upon appellants by reason of the defective condition of the scaffold, because the scaffold was furnished by the brick-mason contractor and hot by appellants. We are of opinion that this contention can not be sustained. The scaffold was in fact used by appellants, and in that use they in effect furnished it to their employes to go upon. The fact that the brick-mason, in pursuance of established custom, built it and furnished and maintained it, goes only to the manner in which appellants acquired the scaffold. While appellants used it in their business they furnished it to their employes, and it matters not at all whether they built it themselves or got it by gift of another, or through right of established custom. By whatever means they acquired it, they were in any event bound to the duty imposed upon them by the law to exercise a reasonable degree of care in the furnishing of it as a place for their employes to work. C. B. & Q. R. R. Co. v. Avery, 109 Ill. 314; Pullman Palace Car Co. v. Laack, 143 Ill. 242; Wis. Cent. R. R. Co. v. Ross, 142 Ill. 9; Hess v. Rosenthal, 160 Ill. 621; C. & A. R. R. v. Maroney, 170 Ill. 520; C. & A. R. R. v. Scanlan, 170 Ill. 106; Rice v. Paulsen, 51 Ill. App. 123; East St. Louis I. & C. S. Co. v. Crow, 52 Ill. App. 573.
In Hess v. Rosenthal, supra, the court, speaking through Mr. Justice Cartwright, said:
“ The duty to exercise reasonable care to see that the place furnished for a servant to work is reasonably safe, is a positive obligation toward the servant, and the master is responsible for any failure to discharge that duty, whether he undertakes its performance personally or through another servant. The master can not divest himself of such duty, and he is responsible as for his own personal negligence for a want of proper caution on the part of his agent. (Chicago and Northwestern Railway Co. v. Swett, 45 Ill. 197; Chicago and Northwestern Railway Co. v. Jackson, 55 Id. 492; Mobile and Ohio Railroad Co. v. Godfrey, 155 Id. 78; Cooley on Torts, 561.)”
We can not give consideration to authorities of other jurisdiction,relied upon by appellants,which are directly contra to the sound and well established doctrine of this State. The doctrine of independent contractor is not consistent with the use by appellants, and does not apply.
It is also urged by counsel for appellants that because the defect here in question, the knot by which the support of the scaffold was weakened, was open to sight, therefore it was as readily to be discovered by Eawle as by appellants, and hence there can be no recovery.
There are decisions which follow the rule announced by the author in Wood on Master and Servant, Sec. 414, viz., that the servant in order to recover for an injury by reason of defects in appliances furnished by the master, must establish, first, the defect; secondly, that the master had or should have had knowledge or notice; and, thirdly, that the servant did not know of the defect and had not equal means of knowing with the master. Goldie v. Werner, 151 Ill. 551; Howe v. Medaris, 183 Ill. 288.
The general doctrine is not to be disputed, and when applied to facts like those in the Goldie case, where there was evidence tending to show that the servant aided the vice-principal of the master in selecting the defective plank of a scaffold and in putting it in use, the rule might be applied to defeat a recovery, although in that case it was held that a jury might conclude that the servant in carrying the defective plank to put it into the scaffold “ had hold of the end furthest from the knot, and his attention, therefore, not so likely to be called to it.” In the Goldie case, where the rule was held to be applicable to certain theories of defense based upon some evidence, yet a recovery by the servant was sustained. In the Howe case the defect was in machinery and was the result of the wear of considerable use. Doubtless the rule would there apply if the servant who had the machine under his immediate supervision had equal means of knowing the defective condition with the master. The court in that case held that the evidence clearly established that the servant did have such equal means of knowledge, and a recovery was defeated.
But the rule does not apply to defeat a recovery upon facts which disclose that the defect in a scaffold was one which the master should have discovered by such inspection as the exercise of ordinary care would require, and where the servant does not appear to have had knowledge of the defect, and is so employed that he has the right to rely upon the duty of the master having been performed, without himself inspecting the scaffold. C. & A. R. R. Co. v. Maroney, supra.
The exercise of reasonable care upon the part of the master in selecting appliances and places for his employes to work with and upon, may require a very different inspection than such as reasonable care upon his part would impose upon the servant. Union Show Case Co. v. Blindauer, 75 Ill. App. 358; affirmed in 175 Ill. 325.
We regard the evidence as warranting the jury in finding that Bawle was in the exercise of reasonable care for his own safety when injured. The fact that he had the stones placed upon the scaffold and the further fact that he jumped down upon the scaffold, a distance of between three 'and four feet from the wall above, would not, as a matter of law, per se constitute contributory negligence upon his part. The evidence tended to show that such scaffolds were ordinarily used for such purposes as the placing of stones upon them, and if this scaffold had not been defective by reason of the weak scantling, it can scarcely be concluded that either the stones or the weight of Bawle, or both together, would have caused it to give way.
A witness, Dell, an iron worker upon the building, testified that he said to Bawle that he thought the scaffold unsafe when the stones were being placed upon it. But this witness did not inform Bawle as to any defect in any of the timbers of the scaffold and said nothing of the knot-hole in the scantling which broke.
It is not to be concluded from the evidence that if the scaffold had not been weakened by the defective scantling, Dell’s opinion as to the weakness of such a scaffold would still have been proved by the result to have been right, and Eawle's estimate of its strength wrong. If Eawle had had knowledge of the defect in question and yet had relied upon the strength of the scaffold, a very different question would be presented.
We can not say that the verdict is against the weight of the evidence either upon the finding of appellant’s negligence or Eawle’s exercise of ordinary care.
It is also urged that there is a variance because the narr. counts upon defective construction and the evidence shows a defective piece of wood used in the construction. We think the allegation broad enough to cover the proof. Moreover, the point was not raised in the court below, and can Rot now be presented and urged for the first time. We deem it unnecessary to cite authorities upon the matter.
The first refused instruction was properly refused. It presented the fact of the furnishing of the scaffold by-the brick-mason contractor as an absolute bar to recovery. The fourth of the refused instructions states a correct proposition of law, in presenting the rule as above noted, that the servant must show in addition to the defect, notice or knowledge of the master, or that he ought to have had knowledge, and that the servant did not have equal means of knowledge with the master. But there was no error in the refusal to give this instruction, for the rule as to notice or knowledge as applied to a scaffold furnished by the master would be likely to mislead, the defect having existed in the scaffold when first presented. C. & A. R. R. Co. v. Maroney, 170 Ill. 520.
In that case the court, speaking through Mr. Justice Boggs, said:
“ We do not assent that it was requisite to a recovery it should have been proven that appellant had notice, etc. * * * or that appellee did not know, or had not equal opportunity with appellant of knowing, the scaffold was unsafe, etc. * * * If the scaffold had been properly constructed and had become unsafe by reason of a defect subsequently arising, the doctrine that the liability of the appellant company depended upon notice of such subsequent defect might have had application, but not so when the defect occurs by reason of the failure of the appellant company to discharge the duty cast upon it by law of providing a safe place for the appellee to work. If it omitted its duty in this regard, no rule of law required it should be notified of its own failure before it should be deemed answerable for injury resulting from such failure.”
The instruction as applied to the facts of this case would be likely to mislead, and there was no error in refusing it.
The instructions given presented the issues fairly to the consideration of the jury, and we are of opinion that the verdict is sustained by the evidence.
Ho other question is raised by the briefs of counsel for appellants. The judgment is affirmed.