228 F. 640 | 6th Cir. | 1916
Defendant in error brought an action for personal injuries against plaintiffs in error, and recovered a verdict of S3,500, which, upon an accepted order of remittitur, was reduced to $2,000 and judgment was entered accordingly. We shall speak of Childers as plaintiff, and Meers & Dayton as defendants. At the close of the testimony offered on both sides, the defendants upon specific grounds moved that a verdict be directed in their favor. The motion was denied, and exception reserved. Error is prosecuted upon assignments which are treated by all the counsel as presenting simply the question whether the record discloses any evidence that entitled plaintiff to have the case submitted to the jury. The charge of the court does not appear in the record, and for the reason, as counsel agree, that no exception was taken to it. It must therefore be assumed that the court rightly instructed the jury in respect of each of the is
The evidence in several ways tends to show that this structure was not the ordinary scaffold which is constructed from time to time for the temporary accommodation of workmen and materials as the work progresses. Indeed, one of the defendants, Meers, testified in reference to the structure that it was “not exactly what I term a scaffold,” and further that as the carpenters—
“built tbe forms they built bracing and put boards on them and used that as a scaffold. This bracing, boards and scaffold was put up by the carpenters for their own convenience and was erected whenever the carpenters thought it was necessary.”
And defendants’ “general foreman,” who, as he testified, was “bossing the men and directing the work,” described the structure as a “scaffold or platform.” A witness, who assisted in piling the lumber upon the structure, testified that this foreman “was there all the time,” and that he told the witness to “put the lumber up there.” The structure gave way by reason of an obvious defect in one of its sustaining parts. The cross-piece at the end nearest the ground contained a knot which extended across the entire width of the piece, and the piece broke at this knot. Meers’ knowledge of the structure appears from his statement that it was not a “scaffold,” and the evidence tending to show the' general foreman’s presence and his order to load the structure with the apparently large quantity of lumber that was placed upon it would seem fairly to have justified an inference that defendants intended the
The judgment must be affirmed, with costs.