Carter v. Henderson & Co.

Opinion by Mr. Justice Stewart, Plaintiff was a workman employed by a subcontractor who had engaged to erect and put in place the iron trusses and beams required by the specifications for the roof of a public school building which the defendant company had contracted to build. When the last of the trusses was about to be placed in position on the walls, something gave way, and the truss fell to the ground below, carrying with it the plaintiff who in the mishap was severely injured. He brought this action for damages against the defendant company, the general contractor, charging it in the statement filed with negligence in having failed to provide sufficient and proper appliances, and permitting certain supports for the roof of the building to be violently thrown to the ground. On plaintiff’s part the case was tried on the theory that the proximate cause of the plaintiff’s injuries was the negligent and defective construction of that part of the wall known as the pilaster, the angular projection of the wall on the top of which the iron truss was intended to rest for support. We need waste no time or [324] effort in considering whether a pilaster is an appliance. Clearly it is not, if we have regard to the etymology of the term “ appliance,” and there is nothing in the case to show that the word is used in common speech or technically to denote a pilaster. However this may be, the pilaster was the thing which the word “ appliance,” as used in the statement, was meant to denote. The word was inapt almost to the extent of being a misnomer; but allowing it the sense in which it was used in the statement involved no change in the cause of action, and consequently variance could not be asserted. If the defendant did not so understand it when the case was called for trial, and was not prepared for the issue as thus made up, a motion for continuance would have been in order, and the evidence offered by plaintiff should have been objected to as not supporting the averment. Defendant adopted neither course, but allowed the trial to proceed as though by mutual understanding pilaster was included within the meaning .of appliance. Under these circumstances we think a refusal to give binding instructions for the defendant on the ground that the allegata and probata did not agree, was entirely proper. It was developed as part of plaintiff’s case that had the pilaster been constructed in conformity with the architect’s specifications, it would have been more than adequate for the support of the truss. Defendant’s evidence was to like effect. The whole effort on part of the plaintiff was to show that the pilaster had not been so constructed, and that the accident resulted in consequence of this want of conformity. Was the evidence on this point sufficient to carry the case to the jury? Briefly it was this. Two witnesses called by plaintiff testified that after the collapse they had examined the mortar in which the bricks and stones had been laid and described it as “dry and crumbly,” both said it was in bad condition; one, that “it would crumble out like sand, was spongy;” the other, that “it was dry and crumbly, and in bad condition.” This was followed by the testimony of an expert witness, called by plaintiff, who testified that had the mortar been made of the materials called for by the specifications, and mixed in the proportions required, when examined “it would [325] have been hard, and small particles would have been very-hard to break, and sharp cutting edges on it.” However unconvincing this testimony may have been to the mind of the court, and especially in view of the positive testimony adduced by the defendant, to the effect that the specifications had been strictly observed, it was for the jury to decide what weight they would give it. The court could not say, as matter of law, that if credited it would not support an inference that the wall had been defectively constructed. And yet, the trial judge disposed of the question in his charge in this way: “I do not leave it as a question of fact for you to say whether that mortar was improperly mixed or of bad materials, for there is no evidence on that.” This was error. Had the fact been as here stated by the learned judge binding instructions to find for the defendant should have followed, since the plaintiff’s whole contention was that the truss fell because the wall was unequal to the burden, and that this insufficiency resulted from the use of defective mortar in the construction. Instead of directing a verdict for the defendant, the judge introduced a theory of his own as to the cause of the accident, wholly different from any that had been suggested by either of the parties, and submitted it to the jury to be passed upon by them, as the governing question in the case, as will appear from the following extract from the charge: “The arguments of counsel through the case seem to have been, and that may be your view, that it was either the fault of the stone masons or the iron men. It is for you to say, but there is in my view — I at any rate call your attention to the third view I have of the case which will be for your determination, and that is that the stone masons or stone setters built their wall according to the specifications, according to the contract, but that the trusses were placed upon the wall when the mortar was not dry, and that as a result of that the pilaster buckled and bulged perhaps, or at any rate part of it gave way and slid off.” At the conclusion of the charge counsel for defendant having excepted to the submission of the question whether the defendant had been careful to see that the pilaster was strong enough to bear the weight of the truss, the court there [326] upon gave further instructions as follows: “On that point counsel having called my attention to it, the real question is whether the mortar was dry when the trusses were put on the pilaster, and if not, who was responsible for that.” The theory here presented is that the wall fell under its burden because it was unseasoned, the mortar not having had time to dry. It may be that this theory was the correct one; but where was the evidence in the case to support it? Not a single witness testified that the wall was unseasoned, or that the mortar was not dry. But two witnesses testified to the condition of the mortar, and the only inference that can possibly be derived from their testimony is that the mortar was dry, but without binding strength because not properly prepared. Any finding by the jury on the question submitted would necessarily be pure and simple speculation. The instructions of the court with regard to this feature of the case are assigned for error in the fourth, fifth and sixth specifications, and these assignments are sustained. The jury having found for plaintiff, a motion for judgment non obstante followed. One of the reasons urged in support of the motion was that the wall had been built by an independent subcontractor, that no liability, therefore, attached to the defendant. This point assumes as a fact what was found not to be a fact by the jury. The court was asked to instruct the jury that the wall had been built by an independent subcontractor. This instruction was refused very properly, because the evidence relied upon to establish such fact was wholly in parol, and this circumstance drew the question to the jury necessarily, notwithstanding the fact that the testimony in regard to it was uncontradicted. The court could go no further in this direction than to say to the jury — and this should have been said — that if they believed the testimony of plaintiff's witnesses then the party who had built the walls was an independent subcontractor within the meaning of that term as defined by the court. The credibility of the witnesses was for the jury. Upon the review we have made of the case, it sufficiently appears without specifying further, that the case required a submission; not, however, for a choice between conflicting [327] theories, but for a determination of the facts in issue under the evidence in the case. The judgment is reversed, and a venire de novo awarded.