Sykes v. Packer

Mr. Justice Mercub delivered the opinion of the court, May 1st 1882. The plaintiffs in error are builders of iron structures. They were engaged in the erection of an iron building over a pier on the wharf. The work was being done according to plans prepared by an architect of large experience, and as he testifies, he was “ from time to time ” superintending the same: but was not present when the accident occurred. The rafters were to rest on iron columns, and were put in place by the aid of block and tackle. Both parties, and riggers, and laborers, were engaged in the work. Three or four of the rafters were in place. While the plaintiff and defendant and other employés were on the girders or rafters, three of the rafters fell, and the defendant in error was injured. The evidence is conflicting as to what caused them to fall. Some witnesses testified it was the removal of one block and tackle; another that it was by reason of. the lower structure not being of sufficient strength, and “ was not put in the place it should have been ;” still another, that it was caused by a steamboat striking the wharf next below, with great force. In opening the defence to the jury, the counsel referred to the mode of erection, but the learned judge stopped him, and said the question was whether the tackle was taken away, and if so removed without notifying plaintiff, the defendants were liable. Afterwards evidence was given tending to show the rafters fell from other causes than the removal of the tackle, yet the court appears to have wholly ignored that evidence in the [468] charge. That portion thereof is assigned for error in which the court charged “ it is alleged by the plaintiff that the defendants caused to be removed a support essential to keep part of the structure in position, without notifying'the plain tiff of the removal. If you find this to be so, and the plaintiff did not know of the removal, and that it was improper to remové it, then it is negligence on the part of the defendants.” An employer does not impliedly guarantee the absolute safety of his employé. In accepting an employment the latter is assumed to have notice of all patent risks incident thereto, of which he is informed, or of Avhich it is his duty to inform himself. Whart. on Neg. § 206. When therefore he undertakes hazardous duties he assumes such risks as are incident to their discharge from causes open and obvious, the dangerous character of which causes he has had opportunity to ascertain : Id. § 214. The master is bound to provide for the safety of his servant to the best of his judgment: 1 Addison on Torts, pi. 564. In most cases in which danger may be incurred, the servant is as likely to be acquainted with the probability and extent of it as the master. The latter is, therefore, not responsible for the damages attendant on the mounting of scaffolds, or unfinished staircases, landings or roofs, which the workman has voluntarily undertaken to mount, with as much knowledge of the attendant risk as the person who employs him: Id. There was evidence that the defendant in error was employed as a rigger. Charles B. Smith, another rigger of large experience and a witness for him, testified that he arranged the guys and tackle himself, that “ one guy towards the wharf was removed. I took it off. I asked Mr. Sykes whether I could, and he said yes. The other tackle stood still. The tackle I took off I wanted1 to use for something else. The remaining tackle was not taken away.” Another witness testified that he removed the tackle by order of both the plaintiffs in error, and if the block had been left, the accident would not have happened. The judgment of the plaintiff in error as to the propriety of removing this block and tackle, and as to the safety in so doing is shown by the fact that at the time of the accident he and the defendant in error, as well as others, were at work on the rafters, and plaintiff and defendant fell at the same time. The defendant had as good an opportunity of seeing the condition of the tackle as any other employé had. He must be held to have known what was clearly visible to his sight. It was not necessary that he should be specifically informed of a fact so patent to him. It is not sufficient evidence of negligence, that a jury has now found it was improper to remove the tackle, judged by its effect. If an experienced rigger ad [469] vised its removal, if the plaintiff in error assented to it in good faith, believing there was no danger in so doing, it was complying with the rule to provide for his servants, to the best of his judgment. The true question as to this branch of the case is, what was then fairly and reasonably deemed prudent and safe. He took as much care for the safety'of his servant as he took for his own safety: Railway Company v. Bresmer, 10 W. N. 319. In view of the unquestioned facts his omission to notify the employee of the removal did not constitute negligence: Priestly v. Fowler, 3 Meeson & Welsby 1. The first specification is sustained. There was no error in declining to charge as requested under the second assignment. Judgment reversed, and a venire facias de novo awarded.