Haxer v. Griessel

Brooke, J. (after stating the facts). A careful reading of the record impels us to the conclusion, that the question of defendants’ negligence should have been submitted to the jury. While the placing of the ladder in the position in which it stood at the time of the accident, and its use by Bishop while in that position, may be said to indicate reasonable care upon his part, or at least to afford no evidence of negligence, we are still of the opinion that his leaving it, even for the time necessary for him to change his paints, leaning against the freshly-painted* slippery edge of the roof of the bay window, under the weather conditions which prevailed and to which his attention had been at that moment called by his master, was such an act as to warrant the court in taking the verdict of the jury as to its character. Barnowsky v. Helson, 89 Mich. 533 (50 N. W. 989, 15 L. R. A. 33); Detzur v. Brewing Co., 119 Mich. 383 (77 N. W. 948, 44 L. R. A. 500); Lauer v. Palms, 139 Mich. 671 (89 N. W. 694, 58 L. R. A. 67). Towards this appellant Bishop owed the duty of reasonable care. They were not fellow-servants, and, if his act in leaving the ladder unattended in the position and under the weather conditions disclosed by the record amounted to negligence, the defendants, his masters, were liable. Appellant testified that, while he saw Bishop painting the bricks and the other bay window, he paid no attention to the position of the ladder before it fell; that he did not look at it, or at the painter upon it; that he was busy with his own duties. Whether, under all the circumstances, he should have noticed, appreciated, and protected himself against the danger which caused his injury, was a question of fact for the determination of the jury. Upon this question reasonable minds might draw different conclusions. He cannot be held guilty of contributory neg [313] ligence as a matter of law. Detroit, etc., R. Co. v. Van Steinburg, 17 Mich. 99; Grand Rapids, etc., R. Co. v. Martin, 41 Mich. 667 (3 N. W. 173); Teipel v. Hilsendegen, 44 Mich. 461 (7 N. W. 82); Adams v. Iron Cliffs Co., 78 Mich. 271 (44 N. W. 270, 18 Am. St. Rep. 441); Briant v. Railroad Co., 104 Mich. 307 (62 N. W. 365); Becker v. Railway Co., 121 Mich. 580 (80 N. W. 581); Graham v. Evening Press Co., 135 Mich. 298 (97 N. W. 697). The judgment is reversed, and a new trial ordered. Ostrander, Hooker, Moore, and McAlvay, JJ., concurred.