Merchant v. Mickelson

Mr. Justice Adams delivered the opinion of the. court. The doctrine that the master must furnish to his servants a safe place in which to work, is not applicable when the servant is employed to take down a building, which work is necessarily dangerous, especially in such case as the present, where the building has been partially destroyed by ■fire, and therefore what remains of it, weakened. Clark et al. v. Liston, 54 Ill. App. 578; Mueller v. Schwecht, 62 Ib. 622; Richardson v. Anglo-Am. Provision Co., 72 Ib. 77; Chicago Edison Co. v. Davis, 93 Ib. 284; Armour v. Hahn, 111 U. S. 313. In Clark v. Liston, supra, the court say: “ It is manifest that in the destruction of a building there is not an attempt or obligation to make it or any part thereof secure; on the contrary, the work of removal is one in which, in turn, each part of the structure is rendered insecure.” In Mueller v. Schwechfc, supra, the court say : “ The verdict is upon the theory that, in tearing down a building there is a duty to anticipate and guard against the dangers to which others there may be exposed. We have not so understood the law.” In Richardson v. Anglo-Am. Co., supra, a building was being altered. The plaintiff was a laborer employed in the work and was injured while so employed. The court say : “ The hazard involved in working on a building during such changes of condition should, it would seem, beheld to be an ordinary hazard incidental to the employment, and hence assumed by the employe.” Plaintiff had had, when employed by defendant, experience in taking down buildings; he must ■ have known that such work was dangerous; he was specially informed that it was so, and that defendant would not employ any one unfamiliar with the work, and plaintiff said he was used to the work, and engaged in it, thus assuming all risks incident to it. The negligence relied, on. is the failure of the defendant to cause the nails to be removed from the burned and charred timber, and his refusal to permit the plaintiff to take time to remove them, thus temporarily stopping the work, and the question is, whether this was negligence on the part of the defendant. We think it unreasonable to hold that in tearing down a building the contractor must, before attempting to remove the material, clean it up and remove nails from it, or permit those employed by him in the work to do so, and we can not perceive how fair-minded, reasonable men could come to any other reasonable conclusion. We therefore hold, as matter of law, that the failure of the defendant to remove the nails, or to permit the plaintiff to occupy his time in removing them, was not negligence, and will not support a recovery. Compliance with a contrary rule would be impracticable, if not impossible. It would seem from the plaintiff’s own testimony that he did not consider the projecting nails very dangerous. He testified that he wanted them driven out because they were dangerous and hard to handle, and that they might tear his clothes. Ho reasonable man could have anticipated, as we think, that they would be the means of throwing any one from the wall. We are of opinion that the court erred in refusing to direct a verdict for the defendant. The judgment will be reversed.