Coates v. Chapman

Opinión by Mr. Justice Fell, The fifth, sixth, seventh and eighth assignments are the only ones that need be noticed. Of the fifth it is sufficient to say that there was testimony tending to show that the plaintiff was hot injured while working under the scaffold which fell. If he had been under it a recovery would not necessarily be barred by the fact that he had been warned that it was dangerous. The nature of the warning and the knowledge of the person who gave it would have been proper for the consideration of the jury on the question of his negligence. As the request for charge fails to state that the warning had reference to the place of injury, it was properly refused. The sixth assignment relates to an alleged variance between the allegations of negligence and the proofs. The plaintiff did not confine himself to' a single allegation of negligence. The general allegation is that the defendant negligently constructed a scaffold of insufficient strength to support the weight placed upon it. This is followed by a more specific statement of the facts and circumstances of the injury, in which it is alleged that a board of insufficient strength, which was placed across an area way, broke. Then follows an allegation that the scaffold was overloaded, and that in consequence thereof it broke. Without specifying any defect in construction, it is averred that there was negligence in the use of the scaffold. Under this averment [117] the plaintiff could recover without proof that the board over the area way broke. The contention on which the seventh assignment is based, that the negligence, if any, was that of a fellow-workman, cannot be sustained. The plaintiff, a carpenter, was employed by the owner and builder of a row of houses to construct the bay windows. The defendant was an independent contractor for the brick work, who furnished the materials and laid the bricks at a fixed price per 1,000. There was a general superintendent of the whole work employed by the owner to see that the various contracts were complied with. He exercised no control over the defendant or his workmen, except by calling their attention to the requirements of the contract. He gave no directions as to the manner in which the work should be done. The fact that the defendant instructed his foreman to obey the directions of this superintendent did not make his employees and those of the owner coemployees within the meaning of the rule respecting the negligence of fellow-servants : Hunt v. R. R. Co., 51 Pa. 475. The eighth assignment relates to the exclusion of testimony. A witness for the plaintiff was asked in cross-examination whether he had not told a number of persons, some only of whom were named, that the plaintiff: had told him the scaffold was unsafe. He answered: “ No, sir. But they tried to get me to say that I said so.” A witness for the defendant, to whom this question was read, was asked: “ Is that true or not ? ” An objection to this question was sustained. As independent evidence of an admission by the plaintiff this testimony was of course incompetent, and its admission for any purpose was to be carefully guarded, as it would mislead the jury if they failed to discriminate between proof that a witness had said to someone that an admission had been made to him and proof that an admission had in fact been made by the plaintiff. For the purpose of contradiction this question was bad in form, because it contained two inquiries, and a simple affirmative or negative answer to which a witness should be confined, might refer to either, and the latter was entirely unimportant. It was bad in substance (1) as the matter proposed to be contradicted was elicited by irrelevant cross-examination; (2) as the proper ground for contradiction had not been laid by calling the witness’s [118] attention to the time, place and circumstances. The case was necessarily for the jury, and we see no error in its submission or in the rulings of the court. The judgment is affirmed.