Clark v. Soule

W. Allen, J. The instructions were full and accurate, and well adapted to the evidence, and include all that was asked by the plaintiffs in their first, fifth, sixth, and seventh requests for instructions. The sixth includes the other three, and was given in words, and the substance of all was elsewhere contained in the instructions given. The instructions asked by the defendant, so far as they relate to the negligence of the defendant in furnishing materials, were at variance with the full instructions given; so far as they relate to the liability of the defendant for the negligence of fellow servants with the plaintiffs, they were consistent with the other parts of the charge, and are correct. As given by the court, we think that they are limited to the latter subject. After the question of the liability of the defendant in furnishing materials had been fully considered in the charge, the other question of his liability for the negligence of his servants in selecting and using the materials in the construction of the staging— whether they were fellow servants with the plaintiff's — was submitted to the jury with full instructions respecting it; and in that connection the instructions asked by both parties based upon their respective contentions as to the duty of the defendant to furnish a completed staging, and involving the question whether those employed in constructing it were fellow servants with the plaintiffs, were considered and disposed of by saying that, if such were fellow servants, the defendant’s requests were law, and, if they were not fellow servants, the plaintiffs’ requests [389] were law; clearly meaning that they were law in regard to the liability of the defendant for the acts of such persons. This part of the charge was obviously intended to apply only to the alternative that the defendant was not negligent in furnishing materials. The whole charge was to the effect that it was the duty of the defendant to furnish materials for the staging, and, if any negligence in furnishing them contributed to the plaintiffs’ injury, the defendant was liable; that the liability of the defendant for the negligence of those engaged in the construction of the staging depended upon whether it was his duty to furnish the staging as a completed structure; if that was his duty, the plaintiffs’ requests stated the law in regard to his liability in that respect; if that was not his duty, the defendant’s requests gave the rule as to his liability for the acts of such persons. Taking the whole charge together, we think that the meaning is plain, and that it is a full and clear statement of the law of the case. Exceptions overruled.