Thompson-Starrett Co. v. Wilson

Mr. Justice Kobb delivered the opinion of the Court: The single question now presented is whether there was sufficient evidence upon which to submit the case to the jury. The defendant contends that “a ladder is a tool, and not a place to work,” and hence that it should not be held responsible for an injury resulting from the negligence of a coemployee in adjusting the ladder in question. It is true that, generally speaking, a ladder is classed as a tool (Bailey, Mast. & S. § 197; Cahill v. Hilton, 106 N. Y. 512, 13 N. E. 339; Borden v. Daisy Roller Mill. Co. 98 Wis. 407, 67 Am. St. Rep. 816, 74 N. W. 92), but that it may be more is, we think, apparent. When, in the construction of a building, ladders are furnished for indiscriminate and constantly changing use by carpenters and other employees, their employer is of course not expected to superintend or be responsible for such use. Under such conditions the use [218] of a ladder is a mere detail in the work, and the master would no more be expected to superintend that use than he would be expected to superintend the use of a handsaw, hand plane, or any other similar simple implement. A condition might exist, however, where the employer would feel called upon to assume responsibility for the placing of a ladder, in which event the ladder would become, in legal contemplation, a part of the building, and not a mere tool. Of course if it did assume such responsibility, it would be responsible to its employees for any negligence in that respect. To illustrate: Where an employer furnishes suitable materials, and the workmen construct a scaffolding or staging as a part of their work and in the exercise of their judgment, the employer is not liable for an injury to one of their number occasioned by the subsequent uss of the structure in consequence of neglect in construction. Collins v. John W. Danforth Co. 36 App. D. C. 598; Kimmer v. Weber, 151 N. Y. 417, 56 Am. St. Rep. 630, 45 N. E. 860. But a different rule applies if the employer himseli undertakes to furnish such scaffolding or superintend its erection. “In such case the duty is one of those positive duties of the master toward the servant which cannot be discharged by the substitution of a competent agent. The act or service to be done is that of furnishing a reasonably safe place or appliance, and negligence in the doing of such a service is the negligence of the master, without regard to the rank of different employees.” Chambers v. American Tin Plate Co. 64 C. C. A. 129, 129 Fed. 561, 562. We come, then, to the question whether there was evidence from which the jury might reasonably infer that defendant undertook to furnish and supervise the means of going from the first to the third floor of its building during the period covered by the evidence. In the first place, it must be kept in mind that there were several classes of employees engaged upon this building; that all used this ladder, there being no other means provided; that it was securely fastened, at least at two floors; that its position was not changed for many weeks, one of the witnesses fixing the period as covering three months. The testimony of the assistant foreman of carpenters that “they” had [219] to put such ladders very straight for the use of hod carriers is significant. The witness was then explaining the reason for placing the ladder in the particular position described, which, as before pointed out, was in the nature of a permanent, and not a transitory and shifting, position. These facts and circumstances, coupled with the failure of the defendant to call its superintendent in general charge of the construction of the building, or any other witness, for the purpose of denying that the company had assumed any duty with respect to the placing of the ladder in the position described, we think justified the jury in finding that the defendant had assumed the responsibility charged in the declaration. When plaintiff was employed this securely fastened ladder projected from the first to the third floor of the building, and constituted the only means whereby access to and from the second and third floors could be had. And this means was not for carpenters alone, but was for. the general use of the various classes of workmen engaged upon the building. It is apparent from the testimony of the assistant foreman of carpenters that the bricklayers were not expected to adjust and secure the ladder in performing their work. If the company undertook to place and secure the ladder for the bricklayers, knowing, as the evidence shows it must have known, that it was to be used by all its workmen, then it was responsible to all, and the evidence warranted the jury in so finding. On the question of whether the plaintiff was guilty of contributory negligence, little need be said. In the circumstances of the case, we think it was clearly a question for the jury whether the defective conditions producing the injury were known, or, in the exercise of reasonable care, should have been known, to the plaintiff. This was his first attempt at descending the ladder from tlie third story. He had made but a single ascent to this story, and testified that in making that ascent he did not step upon the rung in question, and did not notice its condition. Other witnesses had testified that their knowledge of the dangerous proximity of the rung to the cement form was gained by slipping from the rung, which testimony tends to [220] show that the defect was not so obvious as to be plainly apparent to one having the right to assume that no defect existed. In Mosheuvel v. District of Columbia, 191 U. S. 247, 48 L. ed. 170, 24 Sup. Ct. Rep. 57, it was held that where a hole exists in a sidewalk as a result of negligence of the authorities, and renders ingress and egress from a house more or less dangerous, it is not such contributory negligence per se for an occupant of such house, who has knowledge of the hole, to try to step over it, instead of going around it, as will justify the direction of a verdict for the defendant. In the present case, therefore, it was clearly for the jury to say whether plaintiff knew, or should have known, of the danger when he attempted to descend. Judgment affirmed, with costs. Affirmed.