DeBood v. Pay

■GATES, J. In February, 1914, the defendant was constructing -the Colonial Theater in Sioux Falls. Thomas Ross was the general superintendent of the work with authority- to- hire and discharge employees and buy material. Peter De Bodd), husband of -the plaintiff, was foreman of the work under. Mr. Ross. H-e was an experienced- carpenter. In the afternoon of February 23, 1914, while crossing from the east side of the building to the west side, using the 'bottom chord of a truss as a bridge to1 walk upon, 'he slipped- and fell to the floor, a distance of 14 feet. His left leg was 'broken just below the hip joint. ' In May, 1914, he was taken to Des Moines, where he was operated upon. At that time he was walking by the use of crutches, but was nnabl-e to bear any weight upon -the broken limb. Without the operation he would have been a helpless cripple. As a result of -the operation he 'd-ied. The immediate cause of his death wa-s heart failure as a result of the anaesthetic and the operation. The remote cause of his death was the fractured limb. Recovery was sought by plaintiff from defendant on the theory of defendant’s negligence in not providing a safe place to work. Verdict and judgment were for plaintiff. A new trial was denied. Defendant appeals. The -truss from- which De Bood fell had been completed, except the tightening of the bolts. There had been a staging 4 feet beneath- the -truss about 7 feet wide, consisting of 2x12 plank. As testified by Mr. Ross: “One purpose of the -staging was for the men to- work on in building tire truss. T'he other purpose was that in case of a fall there would be something to catch- a person- who -fell'.” The bottom chord of'- the trusses was made of similar plank [209] nailed together. That forenoon De Bood advised Ross there was no more plank from' which to- ibuild the bottom chord1 oif the next truss. Ross advised De Bood to take the plank from the staging and use it. Ross said:- “I told him to go ahead and do the 'best he could until I could get the other lumber up there.” The plank on the staging was then removed1 under De Bood’s direction. Mr. Vierc'h, a carpenter then working on the building, testified: “They took the scaffolding out from under those trusses before they were entirety completed. They had done that all the way along. They took them out about the time they .had it constructed with the exception of straightening the line, straightening and lining -it up', and tightening up these bolts, and we did that by crawling over.” Mr. Ross testified: “Question: ‘That was the general method you adopted of using the floor of the staging throughout to- build the -chords of the truss as. you went along?’ “Answer: ‘We used it as we went along, because we had an enormous lot of lumber in the staging. I had talked this over with Mr. De Bood and that was the method adopted by me and Mr. De Bood. * * * In the general method of construction, I consulted with Mr. De Bood-. This method of construction which I adopted by taking the floor off from the scaffold and putting it on the truss, I talked over with Mr. De Bood. I told him to use up- the materia1!. Hie understood they were to- use the material that went into' the truss- as staging. He agreed to •that.’ ” It is therefore entirety clear that Mr. De Bood must have known and fully appreciated the danger of using the 'bottom chord of the truss, as 'a bridge to pass fro-m one side oif the building to another. The witness Vieroh was .the only eyewitness of •the accident. He testified: “I saw him fall. At the time he fell I was- two- trusses further north from the place he fell. I was up on the truss. I wasi looking at him when- he fell. He was on. this beam there, and be started from, the left side, from the east side, to the west side. [210] He was asked a question and he walked- across there. He 'held his h-and on the upper beam and walked on the lower, and was going across, and when he came to -this- brace 'he went to step around it and his hand or his foot slipped at that time, I cannot tell which, and he fell. When he swung out toi go around' this brace he had1 his hands on the upper -beam, and his feet were on the lower 'chord. I ido not know which slipped, his hands or his feet, Ibut he fell to the floor.” Upon oioss-examination he testified: “Mr. De Bood was on the east side of the building giving some instructions there, and he started to pass over on to the west side. He was. called toi the west side and he was walking across and using it for a bridge and walked across on it.” At that time there was staging along the east wall and a ladder to1 the floor and the same condition existed, on the west wall. The testimony in this case is undisputed. The defendant offered no evidence except to recall Mr. Ross for cross-examination. We are of the opinion that the motion of defendant for a directed verdict should have been granted. It is entirely clear that at the time of the accident De Bood was not performing any work upon the truss, but was simply using the truss as a 'bridge or means of passage from one side of the building to the other, presumably 'to give instructions to some workman on the other side who hald) asked a question. The doctrine of furnishing a safe place to work- has no application to- this state of facts. Granting that in crossing to the other side of the building De Bood was performing his dirties as foreman, no one directed or advised him to cro'ss upon the truss. There were two methods of going toi the other side, one safe, the other apparently unsafe. De Bood, knowing full well the danger, voluntarily chose to adopt the unsafe 'method. He chose to go to the other side of the building on the truss instead, of going down the ladder, crossing the floor and going up the ladder on the other side. He therefore must he held1 to> have voluntarily assumed the risk of so doing. Thompson v. C., M. & St. P. Ry. Co., 27 S. D. 567, 132 N. W. 158. The judgment and order appealed/ from are reversed, and the cause -remanded for a new trial.