30 Wash. 500 | Wash. | 1902
The opinion of the court was delivered by
Action for personal injuries. The defendant is a corporation engaged in the construction of buildings, and was erecting the steel frame-work of a large building on Post street in Seattle. Plaintiff was employed by defendant in and about the erection of said steel structure, and his duties required him to work throughout the building. The maximum height of the structure was 80 feet. The large steel columns were raised with a derrick, and then pushed into place at the top with wooden beams four by six inches, and, when erected, stayed in place by such beams. One of the steel columns, which was
“That through the negligence and carelessness of the agents and servants of said defendants, and particularly through the carelessness of said Grimm as such foreman and superintendent, without any knowledge thereof on the*503 part of said plaintiff, the said timber was permitted to become loose and unfastened, and that when said plaintiff, in the usual course of his employment, attempted to go from the first to the second story of said building, and going by way of said timber, and upon the aforesaid cleats, the said timber, by reason of its not being properly fastened and having become loose as aforesaid, canted and rolled over, and said plaintiff was thereby precipitated upon the iron beam of the first story of said building, a distance of about fifteen feet, and then was thrown into the basement of said building a further distance of about fifteen feet, or in all a distance of 30 feet.”
The answer admits the employment of plaintiff, and that Grimm was in charge of the construction for defendant; admits the erection of the wooden beam, and its use by all the workmen as alleged in the complaint. Tor affirmative defense the answer alleges:
“That the nature, character, and position of the ladder referred to in plaintiff’s complaint were open and apparent to plaintiff at all times, and that all damages and risks incident to the use thereof were assumed by him.
“That at the time and place of said accident, said plaintiff carelessly and negligently stepped upon and attempted to climb said ladder, and carelessly and negligently loosened the same so that it turned, and carelessly and negligently fell therefrom; and defendant avers that the injuries, if any, sustained by plaintiff, were caused and contributed to by his own careless and negligent acts.”
1. There is no substantial conflict in the evidence as to all the material facts. It appears that plaintiff and his fellow workmen all engaged in raising and placing the steel columns, and also in bracing and staying them, as mentioned, with the wooden beams such as the one from which plaintiff fell, though it seems plaintiff was not engaged about or with any one in placing this particular beam as a stay, and had no knowledge that it was short and
2. The first error assigned is that the court should have taken the case from the jury because of the insufficiency of the evidence to show any negligence on the part of defendant. Counsel for defendant urge, as there is no substantial conflict in the evidence, the verdict should have been direct-. ed by the court. We think the determination of this question is virtually the decision of the case. The main ground urged against the verdict is that the ladder mentioned was erected by the fellow servants of plaintiff, and that it was
“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 not by appellants. We are of opinion that this contention can not be sustained. The scaffold was in fact used by appellants, and*507 in that use they in effect furnished it to their employees 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 employees, 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 employees 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.”
The case of Chicago & A. R. R. Co. v. Maroney, 170 Ill. 520 (48 N. E. 953, 62 Am. St. Rep. 396), is directly in point on nearly all the material questions raised here. See, also, Beattie v. Edge Moor Bridge Works, 109 Eed. 233; Mills v. Maine Ice Co., 51 N. J. Law 342 (17 Atl. 695); Flanigan v. Guggenheim Smelting Co., 63 N. J. Law, 647 (44 Atl. 762).
3. Erom the foregoing discussion and the conclusion on the ruling of the court in submitting the case to the jury, it seems unnecessary to review in detail the errors assigned on the instructions. The court gave the following instruction on the evidence referring to the action of the stone masons:
“I instruct you, also, gentlemen of the jury, that if you believe that at the time the plaintiff was injured certain stone masons were employed near the foot of the ladder in question, and if you further believe from the evidence that on account of the act on the part of such stone masons, if any such persons did exist, the plaintiff was injured; and*508 not injured, gentlemen, by negligent acts on the part of the defendant company, then I instruct you, gentlemen of the jury, that the plaintiff would have no right to be compensated at the expense of the defendant in this case, because the defendant in this case is being sued as for the acts and the wrongful acts of itself and its own agents, and not on account of the acts of other persons, or the agents of other persons.”
• The instruction does not seem to bear the injurious construction inferred by counsel. It does not emphasize the position at the bottom where the masons were working, so as to impress or mislead the jury. The principle announced is correct, if the injury occurred directly from the acts of the masons, and the defendant’s negligence did not concur therein. But there was evidence, as we have seen, tending to show a defective or insecure condition in placing the wooden beam used as a ladder at the foot of the column which secured it for a considerable time, and inhering in it until the fall. It is sufficient to observe generally that the instructions seem to very clearly and concisely apply the correct legal principles controlling the case, and are well adapted to the comprehension of the jury.
Affirmed.
Dunbar, Mount, Anders and Fullerton, J J., concur.