Mayer v. Thompson-Hutchison Building Co.

COLEMAN, J. This is the second appeal in this case. The first will be found- reported in 104 Ala., p. 611. The law as then declared is applicable, except so far as there was additional evidence offered on the trial, and where different questions of law are presented in the present record. The defendants were engaged in erecting a large brick building near a school academy at which the plaintiff attended as a pupil. Some of the brick fell from the top of the wall on the head of the plaintiff, inflicting severe and it seems permanent injuries. The action is to recover damages. In the former opinion we construed the two counts of the complaint, and having reference to the evidence then before us, used the folio-wing language : “The main question of inquiry may be stated as follows : Did the brick fall because of a defect in the construction of the wall or cornice ? If so, the defendants are liable under the first count; otherwise they are not liable under this count. Was it from, a want of skill, or of due care, or from heedlessness or recklessness on the [637] part of some employe at the time engaged within the scope of his duties or employment, that caused the brick to fall, and not from a defect in the wall? If so, the defendants were liable under the second count of the complaint. On the other hand, were the bricks pushed off the wall by some employe, after the brick work of the wall had been completed in a proper and workmanlike manner, whose duties did not call him there, and who at the time was not acting under orders, or within the scope of his duties, nor in furtherance of his master's contract? Jf so, whatever may have been his motive or the inducement, the defendants are not liable. The duty to construct scaffolding in such a case is to afford security and protection during the erection of the wall. If the wall has been fully completed without injury, the failure to construct scaffolding can not be regarded as negligence proximately causing injury, if the injury was caused by the fall of a brick, intentionally or heedlessly pushed off the Avail after its completion.” On the former appeal the uncontroverted evidence showed, that the Avail from which the brick fell; had been fully completed and that the defendants at the time were at work on a different part of the building. On the present appeal the evidence shows, that the wall had been completed for the time, that in its then condition, the carpenters were to place plates upon the Avail, after which time, other bricks were to be put upon the plates ; and appellant contends, that these facts show that the wall was not completed, and defendants were not relieved from the duty of erecting and maintaining a scaffold as a protection. We cannot see that these facts impose additional liability upon the defendants. The negligence must be the proximate cause of injury to support the action. If the defendants had, in fact, erected a suitable scaffold and maintained it, until the completion of the Avail in a proper and workmanlike manner, and then after its completion had removed the scaffold to another part of the building, where similar work was to be done, and after its removal, some person not in the employ'of the defendants, or an employe, whose duties did not call him there, and who at the time was not acting under orders, or within the scope of his duties, nor in furtherance of his master’s contract, had intentionally or heedlessly pushed, the bricks off, it [638] could not be said that the failure to maintain the scaffold there was the proximate cause of injury resulting from the falling of the brick. We are of opinion that the law was correctly stated in the former opinion, viz., if the brick fell because of a defect in the construction of the wall or cornice, the defendants were liable under the first count of the complaint; or if the brick fell from a want of skill, or of due care, or from heedlessness or recklessness on the part of some employe at the time engaged within the scope of his duties or employment, the defendants would be liable under the second count of the complaint; but if there was no defect in the construction of the wall, and the defendants had completed the wall in a workmanlike manner, without injury to any one, and had removed to another part of the building, and some person, or intruder, or an employe, on his own responsibility, contrary to orders, and not in the discharge of any duty, nor acting within the scope of employment, pushed á brick off, certainly the failure to erect and maintain a scaffold was not the proximate cause which caused the brick to fall. The meaning of the court in its oral charge, to which exception was reserved, was not clearly expressed and was calculated to confuse the jury. The statute forbids the court to charge the jury ex mero motu upon the effect of the evidence. — Code of 1886, § 2754, (Code of 1896, § 3326); Moore v. Robinson, 62 Ala. 537. Evidence of the cost of a scaffold and the material of the roof was wholly irrelevant, and properly excluded. There was some evidence tending to show that the cornice was not properly constructed. Whether this defect existed and caused the brick to fall was a question for the jury. The court, against the objection of the plaintiff,- allowed the defendants to prove, that one or more persons stood upon a cornice of the building, which the evidence shows was constructed similar to the one from which the brick fell. The courts are not uniform in their decisions upon this character of evidence. According to the rule which prevails in this State, we are of opinion the court erred in the admission of the evidence. In the case of Evans v. The State, 109 Ala. 11, it was said : “The evidence of the witness Napper —allowed against defendant’s objection — that he had shot a pistol hole through a dry plank one time as an [639] experiment to ascertain the size of the hole made, as compared with the size of the ball which made it, as applicable to this case, is not distinguishable from like experiments denounced as improper and inadmissible in the case of Tesney v. State, 77 Ala. 33, and more recent of Miller v. The State,” 107 Ala. 40. In the case at bar, one of the issues wa? whether the brick fell because of the improper construction of the wall and cornice. There was some evidence tending to this conclusion. In rebuttal the defendants were permitted to prove that a cornice of the building similarly constructed held up the weight of a man. The reasons for excluding the evidence in the one case are equally applicable to the other. The leading principles of law which control the merits of the case, seem to us so clear, we do not think there will be any difficulty in framing proper instructions for the jury on another trial. Reversed and remanded.