Holzer v. Tucker

Salinger, J. master and servant : place vaní’s’dutv°to make place I. Workmen employed by defendants were engaged in building up ° ° ° 0 A ^in partitions with planks. When the partition got as high as a man could readily reach, a platform whereon to continue to work was constructed in the following manner: At a point on the wall higher than the point which the partition had reached, a plank was nailed for a cleat. One end of a plank or planks was laid upon this cleat, and the other upon a solid iron rod, an inch and a quarter thick. There was pres [1207] ent an ample supply of planks and rods, so that any workman was, within reason, enabled to make a scaffold as thick, wide and well-supported by the iron rods as seemed to him necessary. Someone, it does not appear who, made a platform upon which the plaintiff proceeded to work at erecting partitions. It seems to have been supported by nothing but a cleat on the wall and one of said iron rods, and consisted of but one plank. All this was obvious, and, as said, plaintiff was at liberty to strengthen the platform if advisable. He elected to work upon it in the condition that it was. His charge of negligence is: “The platform was too weak and insufficient for the weight of plaintiff and the tools he was required to have, and the planks were too thin to bear the burden required,” to wit, himself and his tools. It is not charged that this plank or scaffold was too narrow, or that it was in any manner defective, except ■ that it was too thin to bear the weight put upon it. It did not break; the defendants did not construct it; and, as said, plaintiff was at liberty to strengthen it, had he so desired. Plaintiff fell from this plank. This happened while he stood upon it and reached up and received a plank from an employee above him, and he seems to have overbalanced and stepped off. He described what happened, thus: “I was going to lay it down alongside of the other board on the scaffold on the same thing that the board I was on rested on. When I took hold of the board that T)rueke was passing down to me, the weight of the board came down on me so that I lost my balance and fell off. I suppose I was standing somewhere near the middle of the plank, and when Drueke let go of the board, the weight of it came down on me, and that was when I lost my balance and fell. That was the way it happened. That is right: I remember that was the way it happened.” In Benn v. Null, 65 Iowa 407, it was held to be a material factor that there was no failure to fiirnish suitable [1208] materials with which to erect the scaffold. If the plank was not a safe place to work, plaintiff should and must have known this, and known that he was liable to be injured in consequence. Freebourn v. Chamberlain Medicine Co., 136 Iowa 434. Cases quite in point generally are Bergman v. Altman, 127 Iowa 693; and Trcka v. Burlington, C. R. & N. R. Co., 100 Iowa 205. In principle, Forney v. Mardis Co., 155 Iowa 667, sustains the action below. The doctrine of duty to furnish a safe place does not affect the case we have. See Ericson v. Bradley, 150 N. Y. S. 169; Block v. Minnesota Farmers’ B. & T. Co., (Minn.) 149 N. W. 954; Gittens v. Porten Co., (Minn.) 97 N. W. 378; Peterson v. Beck, (Calif.) 150 Pac. 788; Butler v. Townsend, 126 N. Y. 105. There was no evidence to sustain a claim that defendants were guilty of the negligence charged, or of any failure of duty causing the injuries suffered by plaintiff; hence it. was right to direct verdict for the defendants, and the so doing is — Affirmed. Gaynor, C. J., Ladd and Evans, JJ., concur.