Lambert v. Missisquoi Pulp Co.

Munson, J. The plaintiff, a carpenter of long experience, was employed by the defendants to work in the construction of their mill, and was placed under the superintendency of one Whitney as foreman. He was injured by the breaking down of one section of a long staging, built before he came upon the job by the force of workmen which he joined. This structure was insuffiieent in that the cross-pieces upon which the planks rested were fastened to the standards with nails of insufficient size, left with their heads a quarter of an inch or more from the wood. A few hours before receiving his injury, the plaintiff was sent to repair the staging where it had been broken by the falling of a man upon it from a height of several feet, and found that the break was caused by the pulling off of a cross-piece, and re-nailed the piece. His own injury resulted from the pulling off of a cross-piece about sixteen feet from the place so repaired. This occurred while the plaintiff and three others were carrying a stick of timber along the staging. Before going upon it with the timber, the plaintiff asked Whitney if the staging was safe to work on, and Whitney replied that it was all right if not loaded down with timbers, and told the plaintiff to go on with his work and not ask so many questions. The plaintiff testified that he made this inquiry because he thought the staging looked rather shabby and uneven. At the close of the evidence the defendants moved that a verdict be directed in their favor on the ground that the plaintiff had not made out a case entitling him to recover, which motion the court overruled proforma. This saved the question whether the plaintiff, upon his own showing, was guilty of contributory negligence. The writer of the opinion is inclined to think that the defendants were entitled to have a verdict directed, on the ground that the plaintiff had repaired an injury to the staging of such a nature, and so caused, that the repairing could not have failed to call the attention of a prudent and experienced mechanic to the improper construction and weakness of the structure. But [282] a majority of the court are satisfied that there was a case for the .jui7- The court, for the purposes of the trial, charged that it was the duty of the defendants to furnish a reasonably safe staging for the plaintiff to do his work upon. The general rule requires that the master provide for his servant a reasonably safe place in which to work. The questioil is whether a structure of this character is within the general rule. It has been held not to be, in a number of well considered cases in other states, and we think upon sufficient ground. There is a plain distinction between places prepared by the master through the agency of one class of servants for the occupancy of another class in some employment to be therein carried on, and places prepared for temporary use in the erection of a building by those employed for that work. The latter are not places in which to work in the ordinary sense of the term, but instrumentalities which the workmen themselves provide as means of carrying on the work they are employed to do. It was the duty of those employed to build the defendants’ mill to erect whatever staging was necessary to their undertaking. Thé defendants were responsible for the sufficiency of the materials provided for the staging, but not for the manner in which their workmen used them. 1 Shear. & Kedf. on Neg. 317. The case presents the further question whether a staging is within this rule as to a workman who comes upon the job after it is built. It is true that the plaintiff sustained no relations to the defendants or their workmen while the staging was being built, and that as far as his service, considered individually, was concerned, he went to work upon it as a place prepared for his use. But the plaintiff’s service involved no use of the staging that was independent of the work of construction, and it had been prepared, not by the master as something which he undertook to provide for the plaintiff, but by his workmen as a part of the general work which they had undertaken to do, and upon which plaintiff entered. We think that in associating him [283] self with these workmen for the completion of the building-by the use of the staging already erected, the plaintiff assumed the risks which attached to the workmen generally. The test of the master’s liability is not whether the servant came before- or after the staging was built, but the relation which the structure sustained to the relative duties of master and servant. It was said in Hogan v. Smith, 125 N. Y. 774, that the fact that the workman came after the standing-place was erected simply tended to free him from the charge of contributory negligence, but did not alter the relation which the master sustained to his servants and their work. It is true that some of the reasoning of that case would be inapplicable to this, because of the different facts involved. In that case the platform fell short of completion because of the failure to lay down some additional planks, while in this the platform was complete in all its parts, but insecurely put together, and that because of the personal directions of the foreman. But when it is held that it was the duty of the workmen to provide the staging as an incident of their employment, the relation of the foreman to that part of the work is determined. It was not a matter regarding which the master owed an exceptional duty because of its requiring the direction of one specially skilled. The points wherein the structure failed were matters within the knowledge of all experienced carpenters. In the erection of the staging, Whitney was the fellow-servant of all who worked upon the job, whether actually engaged in its erection or not. It is true that a master is liable to his servant for injuries-caused by the negligence of an incompetent fellow-servant whom he has negligently employed, and that it appears from special findings that Whitney was not a competent person to have charge of this work and that the defendants ought to have known it. But the judgment cannot be sustained on these findings, for the plaintiff could not recover on any ground if guilty of contributory negligence, and the finding that he was not thus guilty was under instructions applicable to the case as submitted, but not such [284] as the defendants would otherwise have been entitled to. The jury were left to consider the conduct of the plaintiff upon the theory that he had a right to assume that the staging was safe until something came to his notice from which he ought to have known that it was unsafe. In this view, the plaintiff’s duty to exercise caution as regards the character and safety of the structure commenced only when he was put upon his guard concerning it. But if it was not the duty of the defendant to furnish a safe staging, the plaintiff had no right to proceed upon the assumption that it was safe, but was bound to consider the question of its safety from the start. The theory upon which the case was submitted was not only erroneous in itself, but harmful to the defendants on the question of contributory negligence. Judgment reversed and cause remanded.