102 Va. 459 | Va. | 1904
delivered the opinion of the court.
This is an action by an employee to recover damages from his employer for personal injuries resulting from the alleged negligence of the latter in failing to provide for the plaintiff a reasonably safe place in which, and reasonably safe and suitable appliances or machinery with which, to work.
The defendant, C. R. Parlett, as general contractor, was building a warehouse in the city of Norfolk, upon which the plaintiff was working at the time of the accident. Through the building, fifteen or sixteen feet apart, were upright pillars, upon which rested horizontal girders, 12 by 14 inches. On these girders the floor joists were placed. The joists were raised from the ground to the second and third stories by means of a hoisting apparatus known as an “A” or breast derrick. It was 8 feet wide at the bottom, 12 inches wide at the top, and 26 feet high. The bottom of it rested on second-story joists, or on timbers resting on, and
The derrick had been placed in position on Monday prior to the injury on the following Priday, and used without accident during that period to raise the second-story joists, all of which had been laid, except those over the wellhole. At the time of the accident the joists for the third story were being raised, and Dunn and three other employees were engaged in guiding, receiving, and piling the joists as they were hauled to the third story. Their place of work, as the joists came up through the wellhole, was on the girders upon which the third-story joists were to be placed. Dunn and another employee were on the girder to the right, and McDonald, the foreman on that floor, and the other employee, were on the girder to the left, of the derrick, awaiting or looking out for a load of joists which was being hoisted. While in that position the derrick swung around or fell over towards Dunn, and struck and knocked him off the girder, causing him to fall upon the joists on the second story, and inflicting the injuries described in the declaration.
The cause of the accident, the plaintiff claims, was the negli
The evidence shows that there was no flooring or scaffolding on the third story around or along the girder where the plaintiff was working. It further shows that the plaintiff was employed, among other things, to work overhead in the building in raising joists, and that he held himself out, when employed, as having had experience in such work. The evidence further shows that the defendant furnished the material, including pulleys, guys, and ropes, for making the hoisting apparatus; that it was constructed at the building by McDonald, foreman, and that it was put in position by the employees of the defendant; that the defendant was engaged in other work, gave no personal attention to the construction of the building, but left it in charge of his head foreman, Johnson. The plaintiff introduced expert evidence to show that the hoisting apparatus was defective, in this: that it only had two guy ropes to hold it in position, when there should have been at least three, and that' the pulley or snatch block near the ground floor ought to have been under the center of the derrick, and not at one side, as it was. The defendant introduced expert evidence tending to show that the hoisting apparatus was constructed, placed in position, and fastened in the usual and customary way.
The first error assigned is the action of the court in permitting the plaintiff to introduce expert evidence tending to show that the hoisting apparatus used in raising the joists was not properly guyed.
Where the facts from which negligence is to be inferred are within the range of ordinary human experience, the opinions of the men on the jury, in the eye of the law, is better than those of experts; but, where the injury involves questions of science or skill, expert evidence is admissible. The manner in which such a hoisting apparatus should be constructed, placed in position, and fastened so as to make it reasonably safe and suitable
The action of the court in giving certain instructions asked for by the plaintiff, and the refusal to give certain others asked for by the defendant, is assigned as error.
One of the instructions given for the plaintiff to which objection was made is as follows:
“Ho. 2. The court further instructs the jury that it was the duty of the defendant to use all reasonable care to provide and maintain for the plaintiff a safe place to work while in the performance of his duties, and not to expose him to risks beyond those incident to his employment, and such as were not in contemplation at the time of the contract of service; and if the jury believe from the evidence that the said defendant did not use due and reasonable care to provide for the plaintiff a reasonably safe place to stand on the third floor of the said building, where he was required to be in order to help land materials elevated to that floor, and that such failure was the cause of the injury to the plaintiff, then, although they further believe from the evidence that the plaintiff had knowledge of the dangers of the place in which he was required to work on the said third floor of said building, and still continued to work there, they must find for the plaintiff, unless they believe that a person of ordinary prudence, acting with such prudence, would, under all the circumstances, have refused to incur the risk, and unless they believe from the evidence that the plaintiff was himself guilty of any negligence which contributed to the injury.”
It is the duty of the master to use ordinary care and dili
The plaintiff, when employed, knew what kind of work he was to do, and claimed to have had experience in such work. He knew that there was neither floor nor scaffolding on either side of the girders where he and the other employees on that story were working. The danger was open and obvious. Having sought and accepted employment to work on the building, with full knowledge of the danger, and continued to work on the girder without complaint or objection, when he knew there was neither floor nor scaffolding to protect him from falling, he assumed the risk.
“Where a business,” says Shearman & Pedfield on Negligence (volume 1 [5th Ed.], sec. 185), “is obviously dangerous, and is conducted in a manner which is fully known to the servant at the outset, he assumes the risk of its conduct in that manner, although a safer method could have been adopted.”
The instruction is based upon the theory that the defendant had exposed the plaintiff to risks beyond those incident to his employment, and such as were not in contemplation at the time of the contract of service. There is no evidence to sustain this theory, and the instruction should not have been given.
The action of the court in giving the plaintiff’s instructions Nos. 1 and 3, and in refusing to give the defendant’s instructions 1 and 3, is assigned as error.
The rule is settled in this State by repeated decisions that it is the duty of the master to use ordinary care and diligence to provide for the use of his servants reasonably safe and suitable appliances for the work to be done. N. & W. Ry. Co. v. Nuckols, 91 Va. 193, 21 S. E. 342; Bertha Zinc Co. v. Martin’s Adm’r, 93 Va. 791, 22 S. E. 869; Richmond Locomotive Works v. Ford, 94 Va. 627, 27 S.E. 509; McDonald v. N. & W. Ry. Co., 95 Va. 98, 27 S. E. 821; Robinson v. Dininny, 96 Va. 41, 30 S. E. 442; Riverside Cotton Mills v. Green, 98 Va. 58, 34 S. E. 963; Va. & Car. Wheel Co. v. Chalkley, 98 Va. 62, 34 S. E. 976; Southern Ry. Co. v. Mauzy, 98 Va. 692, 37 S. E. 285; N. & W. Ry. Co. v. Cromer, 99 Va. 764, 40 S. E. 54.
The fact that the hoisting apparatus in this case was made up, when complete, of various parts, each of which was sound and suitable for the purpose for which it was intended, is relied on to bring it within the rule of law that the adjustment and adaptation of implements to the work in hand, according to its varying needs, belongs to the sphere of the servant, and not to the master. 1 Shear & Red. on Reg. (5th Ed.), sec. 195.
Whatever be the scope of that rule, it cannot, under our decisions, apply where the construction and setting up of the apparatus or machine, ready for use, require skill, judgment, and knowledge of mechanical forces, in order to render it safe and suitable for the work to be done by the servants. The hoisting apparatus in question was not a simple appliance to be moved from place to place about the building and easily adjusted, but
The court below properly held, in giving and refusing the instructions under consideration, that, if the defendant failed to exercise ordinary care and caution in furnishing a hoisting apparatus reasonably safe, he was liable in damages for the injury done, if the plaintiff himself was free from fault. But while this rule of law is well settled, it is also true, as was said in the case of N. & W. Ry. Co. v. Cromer, supra, that even the skillful and experienced will frequently differ in their choice of instrumentalities and methods of doing work, and the master should not be adjudged negligent for not conforming to some other method, believed by some to be less perilous than the method adopted. Ordinary care depends upon the circumstances of the particular case, and is such care as persons of ordinary prudence, under all the circumstances, would and do exercise.
We are of opinion that the judgment should be reversed, the verdict set aside, and a new trial awarded, to be had not in conflict with the views expressed in this opinion.
Reversed.
