Elliott v. Sawyer

Savage, J. Case for personal injuries. The defendant was a contractor, engaged in building a brick addition to the Eastern Maine General Hospital at Bangor. The plaintiff was a brick mason employed in that work by the defendant. A staging on which the plaintiff was at work collapsed, or "jackknifed” as the witnesses termed it, and the plaintiff was thrown to the ground, a distance of about thirty-five feet, receiving thereby serious injuries. The plaintiff claims, and all the evidence tends to show that the cause of the collapse was the fact that at that time the staging was not properly stayed. The verdict was for the plaintiff, and the case comes up on defendant’s motion for a new trial, and on his exceptions. There is not much dispute about the material facts. We think the evidence warrants the following statement. The general method of construction of the stage from the ground was as follows : Six or eight feet from the wall of the building tall poles were set up. Close to the wall pieces of lumber each four and one-half feet long were placed upright at suitable intervals. Short sticks called putlogs to support the flooring of the stage were placed, one end on the top of each upright and the other end on the ledger board which was fastened by clamps to the outside poles, extending from pole to pole. The putlogs were nailed to the ledger board. The poles were stayed through the windows to a staging within the walls. Inside stays or ledger boards running lengthways of the wall were nailed to the uprights. The flooring completed the stage so far. When the masons standing on this stage had laid up the wall as high as they could conveniently, the process of stage building was repeated. Other uprights were placed on the ends of the putlogs next to the wall, directly over the uprights below, and were "toe-nailed” to the putlogs. Other putlogs were placed on the top of the new uprights, and extended to a ledger board. The staging was stayed to the inside stage as before, and was then ready for use. This process was repeated as often as necessary. The stagings were in fact built — 200 — by the carpenters, although occasionally a mason would help a little to expedite the work, as by putting up planks. It appears that the general plan pursued was for the carpenters to build a stage on one side of a building, while the masons were at work on another stage at some other part of the building. In this way, as a general rule, when the masons had completed their work on one stage, they would find another already prepared for them, and thus would lose no time. Generally the ends of the stage at the corners of the building were made ready and stayed first, so that the two masons who were to build up the leads at the corners could build the leads while the carpenters were completing the rest of the stage. By thus starting the leads, the wall would be ready for the other masons to work on when the whole stage was done. All the work on the building was done under the charge and supervision of the defendant’s general superintendent, Sturtevant. On the morning of the day of the plaintiff’s injury Mr. Sturtevant directed two masons to go upon the staging in question, which was on the west side of the building, and build up the leads at the corners. Meanwhile the masons’ crew, including the plaintiff, were at work on a staging at the same level on the south side of the building. An hour later, having finished their work on the south side, they came around the corner of the building onto the staging which afterwards collapsed. They found the staging floored, the leads up, and brick and mortar on the stage, ready to be put into the wall. The brick and mortar had been placed there by the masons’ tenders. The masons had no express directions from the defendant or his superintendent to go upon the staging, but they went there in the regular course of their work, because there the wall had been made ready for them. The plaintiff made no inquiry about, or examination of, the stage to see if it was completed and properly stayed. He assumed from the appearance of the stage and the existing conditions that he was expected to go to work then upon the stage. He knew however that sometimes men went up onto a staging to put up the leads before the staging was completed. He and his fellow laborers were upon the stage laying up the wall two hours or more before the stage collapsed. — 201 — During some part of the time the plaintiff was working upon the stage, and at the moment of the collapse, a single carpenter was at work underneath the staging, nailing on stays from the outside poles through the windows to the inside staging. The stays were nailed on close up to the ledger boards, a few inches below the planking of the upper stage. Just when this carpenter began this work does not clearly appear. But the jury were warranted in finding that he did not commence staying the stage until after the masons had gone upon it. In fact, this carpenter, who was a witness, so testified. And inasmuch as thirty-five to forty feet of the sixty foot stage still remained unstayed at the time of the accident, a strong inference arises that he had not then been at work a long time. He had not worked directly under the plaintiff, but when the stage fell he had reached a point about fifteen feet from him. The part of the stage which fell was about midway of the building. Upon these facts, the defendant denies all responsibility. He claims, first, that he did not undertake to furnish a staging as a completed structure, on which the plaintiff was to do his work, but that he furnished the necessary materials for the stage, suitable in kind and sufficient in quantity, with which the workmen, either the masons or their fellow servants, the carpenters, or both, were to build the stagings as they liked, and upon their own responsibility ; next, that even if he had undertaken to furnish the stagings as completed structures, in this case he did not in fact furnish this stage to the plaintiff, because it was obviously not completed, and it was not intended for the masons to go upon it, until more securely stayed, and the plaintiff went upon it without direction or invitation, prematurely, before it was ready to be furnished or had been furnished in fact; and, lastly, that the plaintiff, in going upon a stage so obviously incomplete and unsafe, both assumed the risk, and was guilty of contributory negligence. As to the first point this is to be said. It is admittedly the duty of a master to use reasonable care to furnish for his servant a reasonably safe place for him to do his work. In the matter of stagings and scaffoldings, and other like aids to construction, built during the progress of the work, the master, if he undertakes to — 202 — furnish and does furnish a reasonably safe, completed structure, has fulfilled his duty. If he undertakes to furnish such a structure, and fails to use reasonable care, and it is not made reasonably safe, he is responsible to a servant who is injured in consequence thereof unless the latter has assumed the risk, or is at fault himself. He is responsible not only for his own personal negligence, but for the negligence of the servants whom he employs to build the structure. In doing the work, they are doing his work. They are not fellow servants of others who may be employed by him to do other work in the same general undertaking. Pellerin v. International Paper Co., 96 Maine, 388; McCarthy v. Claflin, 99 Maine, 290. On the other hand the master may fully discharge his duty as to stagings, if he furnishes suitable and sufficient materials, and his servants undertake to build the staging for themselves. In such a case each servant is a fellow servant of each of the others. The masons who lay the walls are the fellow servants of the carpenters, who, perchance, may build the staging. If a servant is injured in consequence of the negligence of any of his fellow servants, whether of his own class or another, he has no remedy against the master. If a mason is injured because a carpenter has been guilty of negligence in building the stage, he cannot look to the master for compensation. For it is well settled law that a servant assumes all the risk of the negligence of his fellow servants. Amburg v. International Paper Company, 97 Maine, 327; McCarthy v. Claflin, 99 Maine, 290. Whether, in any particular case, the master has assumed the duty of furnishing the stage as a completed structure is a question of fact to be determined by the jury. In this case, the defendant testified that Sturtevant was his superintendent and had entire charge of all the work in his absence, and had full authority and discretion to manage the operation; that it was a part of the duty of the carpenters to build the stagings ; that he directed Sturtevant to be. sure and make everything strong; that Sturtevant had authority to construct the stages; that he employed Allen, the foreman of the carpenters ; that Allen was under the direction of Sturtevant; that he himself was present when parts of the stage were built, and spoke — 203 — to the carpenter once or twice and told him to be sure and stay the stage, or something of that kind; that the stage was put in the charge of the carpenter, and that it was his duty to stay it; and finally, that he knew the stages would be built, and he had ordered them to be built under the direction of his general superintendent, Sturtevant. There is no question but that the materials furnished for the stage were suitable. Upon the testimony of the defendant himself, we think the jury might properly find that he assumed the duty of furnishing the stage as a completed structure, and that he was responsible for it, if he furnished it to the plaintiff to work upon. McCarthy v. Claflin, supra. There is no doubt but that the stage was unsafe. Indeed, it is the defendant’s contention that it was obviously unfinished and unsafe, and that the plaintiff, had he been in the exercise of reasonable care, would have kept off from it. Next, was the plaintiff' properly upon the stage? In other words, had the defendant directed or invited him to go onto the stage to work in the condition it was in ? It was not necessary that he should be expressly directed. It was sufficient if he was invited. The plaintiff says that he was invited, that the stage was held out to him as ready to be used; that it was so held out because according to the manner in which the work had been carried on, and was being carried on, while the masons were working on one stage the carpenters erected another ; when the leads were up and the stock on the stage, the masons’ crew, having finished on the first stage, went to the new stage, not because they were expressly directed to go, but because by the usual course of the work it was their duty to go, so understood by them and so understood by the master; and because on this occasion the leads had been put up by the express direction of the general superintendent, and the brick and mortar were on the stage. If under such circumstances the stage was held out to the plaintiff’ as ready for use, he was impliedly directed or invited to go upon it. It may be that the bricks and mortar had been put upon the stage by the tenders prematurely, and without authority. But in view of the fact that only one carpenter was put to work staying — 204 — the stage, in connection with the fact that but for the use of this stage the masons would have had to be idle until the staging was done, it is not unlikely that the jury concluded that the defendant, or whoever represented him at the time, actually intended the stage to be used by the masons, when, and as it was. We should not disturb such a conclusion. Did the plaintiff assume the risk of the want of staying? He assumed all risks that were incidental to his employment, all risks which were obvious, and all which he knew, or which in the exercise of due care he would have known, or ought to have known. Caven v. Bodwell Granite Co., 99 Maine, 278; Demers v. Deering, 93 Maine, 272 ; Babb v. Oxford Paper, Co., 99 Maine, 298. But he did not assume the risk of the negligence of the master. Jensen v. Kyer, 101 Maine, 106. He had a right to rely upon the presumption that the master had not been negligent, Caven v. Bodwell Granite Co., supra; not however being excused thereby from the reasonable use of his own faculties. The risk of stays, or the want of them, was not incidental to his employment. The neglect would have been obvious, and would have become known to the plaintiff, had he made an examination as to that feature, but he did not do so. He says he did not think of it. Was he bound to think of it? We think not. When a master has assumed to furnish his servant with a completed stage to work upon, and has invited him to go upon it, and it appears to the eye, without any particular examination to be ready for use, and in the same condition that the stages customarily have been when ready for use, we think it would be a severe and unnecessary rule to hold that a servant is bound at his peril to examine particularly as to the staying. It is a case where the servant may well presume that the master has done his duty. It is not shown that the plaintiff knew of the lack of stays. He says he did not. He went onto the stage from another at the same level, and not mounting from below, in which case he would have had a better opportunity to see. It appears that for some indeterminate length of time a carpenter on the stage below was nailing stays, fifteen or more feet away from the plaintiff. How long the time was we do not know. How many stays were nailed we do not — 205 — know. The sound of a carpenter’s hammer upon the stage of a building in the process of construction might have attracted the plaintiff’s attention to the work the carpenter was doing, but if it did not, we do not think the circumstances require him to be charged with knowledge. The claim that the plaintiff was negligent is practically disposed of by the foregoing considerations. Under the circumstances the jury might well find that there was no contributory negligence. And upon the whole we think that the defendant under his motion is not entitled to have the verdict set aside on the question of liability. The defendant reserved several exceptions to the admission of testimony. We need not state them in detail. They may be grouped into two classes. The plaintiff, against objection, was permitted to show by several witnesses that upon this job, after a stage had been made and the stock was upon it, and the men had gone up with the leads, it was the customary rule for the masons to follow. It is true, as argued, that custom or usage does not excuse negligence. If the plaintiff was negligent in going upon the stage, he was not less so because he customarily had gone under the same conditions. But that was not the office of this evidence. It was properly admitted to show, by the general way in which the work was carried on, that on this occasion the plaintiff was impliedly invited to go upon the stage, because it was according to the accustomed course of business. And if it was a general custom on this job, as testified to, it must be assumed that the defendant knew it. The only doubt we have is whether it is not a universal custom, and necessarily known to the defendant. It is to be assumed that the jury were properly instructed in regard to the purpose and effect of this evidence. The defendant can take nothing by these exceptions. The defendant also claims to be aggrieved because the plaintiff was permitted to show by the opinion evidence of experts the safety of the stage in question, compared with stages built according to other plans; also because experts were permitted to testify that in their opinion the defendant’s stage was not a safe kind of stage. We do not find it necessary to consider the objections made to these — 206 — classes, of testimony. Nor do we consider the point not raised, whether it is competent for an expert witness to give his opinion that a particular staging is safe or unsafe, — a question concerning which there is much contrariety of opinion expressed in the decided cases. The testimony, if admissible, tended only to show the defendant’s negligence. It did not affect the other issues in the case. If, as the jury found, the defendant assumed the responsibility of building the stage, and if, as the jury also found, the defendant invited the plaintiff to use the stage, and the plaintiff did not assume the risk and was in the exercise of due care, then the defendant’s negligence in not properly staying the stage is not denied. As we have said already, it is precisely the defense which is offered, that the stage was unfinished, unstayed and insecure, and obviously so. Hence upon the issue of the defendant’s negligence, the testimony was immaterial. And since, upon the jury’s findings, the defendant was necessarily negligent in not staying the stage, he could not have been prejudiced by testimony as to the character of the stage he undertook to build. For this reason, these exceptions must be overruled. The defendant also contends that the verdict, which was for $5,000, is excessive. And we are impressed with the belief that such is the fact. Besides some minor injuries from which the plaintiff has recovered, his chief claim for damages rests in the fact that his right arm is permanently disabled, so that he never can pursue the business of a brick mason, or make any efficient use of the arm. He suffered a compound fracture of the bone at the right, elbow joint. The olecranon process was broken off. The elbow and shoulder joints became stiffened. The elbow is stiff, and the shoulder largely so. He has but little use of his fingers. But at the time of his injury the plaintiff was sixty-two years old, with a life expectancy, as shown by mortality tables, of less than thirteen years. His earning capacity will naturally grow less as he grows older. He was afflicted with tuberculosis of the lungs, the natural effect of which will be not only to shorten his life, but to reduce his earning capacity while he lives. We think it is evident that the jury did not pay proper attention to these considerations. Upon the whole, — 207 — we .think that the sum of three thousand dollars will afford all the compensation to which the plaintiff is entitled under the circumstances. The certificate of the court will be, Exceptions overruled. If the plaintiff, within thirty days after the certificate of decision is received by the cleric, shall remit all of the verdict in excess of $3,000, motion overruled; otherwise, motion sustained, on the question of damages only.