Metzger v. Cramp

Opinion by Mr. Justice Elkin, This suit was brought to recover damages for injuries resulting in the death of the husband of appellee by reason of the alleged negligence of appellant. At the trial all questions of fact upon which the right to [22] recover depended were submitted to the jury and there is no assignment of error as to the manner of the submission. Binding instructions in favor of the defendant were asked and refused, and subsequently a motion for judgment non obstante veredicto upon the whole record was filed and overruled. Appellant contends that he had discharged every duty owed decedent and that the evidence did not warrant a submission of the case to the jury. The two assignments of error raise this single question. If the undisputed facts were as stated in the argument of counsel for appellant it would have been error to submit the case to the jury, but we do not so read or understand the testimony. The material facts were in dispute and this raised an issue which it was the province of the jury to determine. It is argued for appellant that reasonable care was all that was required of him and we agree that this was the proper measure of his duty, but whether he exercised reasonable care under the circumstances was a question of fact for the jury. The place was dangerous and must have been so regarded by the general contractor because he had undertaken to provide a measure of safety by the erection of a guard rail at the place where the accident occurred. At the time of the accident the guard rail was missing; it had been removed, and as a result of this removal, decedent no doubt was misled as to the real conditions. It is contended that it was not the duty of the contractor to follow the employees of a subcontractor around in the prosecution of their work and give notice of every transitory peril. As a general proposition of law this is true, but we are not prepared io say that the negligence complained of comes within the rule of our cases relating to transitory dangers. It was the duty of the contractor to provide a reasonable safe place to work, not only for Ms own employees, but for the employees of a subcontractor, who were engaged in the general prosecution of the work. There may be, and no doubt there are, cases in which a general con [23] tractor is not required to exercise the same degree of care for the protection of the employees of a subcontractor as for his own, but no such question arises in the case at bar. The guard rail would in all probability have prevented the accident, and whether appellant was negligent in removing it without notice to those employees whose duties required them to work at that particular place, was under all the circumstances a question of fact for the jury. The unglazed sash frames covered with cheese-cloth proved to be a veritable death trap and we cannot escape the conviction that it was the duty of the contractor to properly guard such a dangerous place as a protection to workmen necessarily engaged in the performance of their duties. At least this was a question for the jury under the circumstances. We cannot agree that, the decedent assumed the risk as an incident of his contract of employment, or that he was so clearly guilty of contributory negligence as to require that the court should so declare as a matter of law. The negligence of the defendant as well as the alleged contributory negligence of the decedent were questions of fact for the jury. We find nothing in the record to warrant a reversal. Judgment affirmed.