Fellows v. Stevens

Ostrander, C. J. Defendants engaged to install in. the manufacturing plant of another an automatic sprinkler system. They sent materials and tools and other instrumentalities for carrying on the work. Among them were stepladders, seven or eight in number, which were selected by them, and transferred to the place where the work was to be carried on. Plaintiff is a pipe fitter, and was one of five men sent by defendants to do the work. One of these men, Barnard, was foreman. The plaintiff offered testimony tending to prove: That during the progress of the work he was told by Barnard to use in his work a ladder belonging to the owners of the plant, and not to the defendants. It was not a stepladder, but a straight ladder. That he questioned the propriety of using the ladder, instead of a stepladder, and was told that it was better and safer than a stepladder because it had spuds in its feet which would prevent its slipping on the floor. Plaintiff knew that the ladder had not been furnished by defendants, and that it belonged to the owner of the premises. The work began July 21st. It was on August 1st that plaintiff began to use the straight ladder. In the afternoon of the 3d (August 2d was Sunday), while plaintiff was at work upon a pipe about two feet below the ceiling and near to a revolving shaft, a part of the machinery in the building, he mounted the ladder up to the fifth step. Stepping down to the fourth step from the bottom, the right side of the step broke, and he was thrown against the revolving shaft, his clothing was wound on the shaft, and he was badly injured. The testimony for the defendants tended to prove that plaintiff was not ordered by the foreman to take the ladder at all, but took it on his own account; that the- ladder was not broken at all before he fell on the shaft; that, if found broken afterwards, the break was due either to a blow it received when plaintiff’s body was whirled about the shaft, or to the weight of two men who stood on the ladder in an effort to release him. It is the contention of the plaintiff that defendants are responsible for his injury because [15] their foreman, Barnard, furnished a defective ladder which broke. Upon the subject of defendants’ responsibility for the conduct of the foreman, the court instructed the jury as follows: “You must find by a preponderance of the evidence that Barnard furnished the ladder to the plaintiff and directed him to use it, and informed him, instructed him, it was safe and proper to use, and in that connection you must find that Barnard had the authority, and find that by evidence, to take that ladder not owned by the defendants, pick it up there in the shop, if he had found it at the side of the street or anywhere else, that he had general authority to stand in the place of the defendants and give the plaintiff that ladder to use. Of course, if Mr. Ziesse or Mr. Stevens had picked that up and used it there and directed him to use it, then this question would not arise, because they had authority to conduct their own business in such a way as they see fit; but, in order to justify or to hold them liable for some one acting in their place, the party must be acting within the scope of his authority, and if a foreman or any other employé goes entirely outside of his authority, and without any instructions or authority and does something that he has no authority to do, then you can’t hold the defendants or his employer liable for that act. So that you must find that Barnard was such foreman or person in authority that he had the right to not only use the ladder as it was furnished there, but to discard it if he saw fit and go and borrow ladders, pick up this ladder or anything that he might find about there, and that, as I say, must be furnished and found by you by the evidence in this case. You will remember the evidence. There is a good deal of contradiction in regard to his authority and direct evidence that he had no such authority, and there is evidence also on the part of the plaintiff as to what his general duties were there, from which you are asked to draw that he had full authority to do all these things; and that is one of the vital questions in the case, gentlemen, that this ladder, having been furnished by not the defendants themselves, if it is expected to recover against them, then he must have such authority as to stand in their place and bind them; otherwise, he was just a fellow-workman in a way, although he may have been a foreman and yet be a fellow-workman. He [16] fixed it up on his own judgment, and would not bind the defendants.” - During the giving of the charge the following occurred: “Mr. Hyde: Just a minute, your honor. I may have misunderstood your honor, but I did understand that your honor said there was a conflict of evidence as to Mr. Barnard’s authority. I don’t understand that there is any conflict. “The Court: Well, possibly I did use that word, and, if I did use it, I used it inadvertently. There is no conflict perhaps. I don’t attempt to explain the evidence, but I won’t use the word ‘conflict’in the meaning that one witness disputes another, but there is testimony from which the two parties claim different deductions may be made. The defendants and Mr. Barnard and several witnesses, as I recollect it, deny absolutely the authority to use or that this ladder was used by Mr. Barnard. On the other hand, while there is no direct statement that that is not so, yet the plaintiff has attempted to show that Barnard was a foreman and had employed or attempted to line up men to help work, and from some such testimony as that you are asked to draw the inference that he had general authority, and you must take that inference that you are asked to draw from the testimony of the plaintiff, and compare it with the testimony of the defendants and Barnard’s and the other testimony that there was no such authority, and then find what is the fact. I didn’t mean to say that one contradicted the other. “Mr. Landman: If your honor please, may they take into consideration the fact what Barnard did ? “The Court: What? “Mr. Landman: May they take into consideration the fact what Barnard did ? “The Court: Oh, surely. “Mr. Watt: I don’t understand that that would mean what he did in this particular case of furnishing the ladder. That wouldn’t be proof that he had any authority. It must be more than that. “The Court: Circumstances that— “Mr. Hyde: (interrupting): That wouldn’t prove that because it was a fact this ladder was furnished by Barnard, that, therefore, Mr. Barnard had authority. You can’t prove it that way. [17] “The Court: No. “Mr. Hyde: You have got to show some other way besides his doing it. “The Court: It has got to be shown by testimony and what he did.” In denying the defendants’ motion for a new trial, the court said: “While I had grave doubts at the trial, and still have, as to whether the case ought to have been submitted to the jury and the plaintiff be allowed to recover any judgment, yet I have not been able to satisfy myself of that fact to such a degree of certainty that I feel like setting aside the judgment.” It is assigned as error that the court submitted to the jury the question of Barnard’s authority in the premises. I find no testimony in the record tending to prove that Barnard had any authority, general or special, to borrow and use tools in the place of those furnished by the defendants, his masters. This being so, the applicable principle of law is stated in 1 Labatt on Master and Servant, § 168, as follows: “ There is clearly no ground upon which an employer can be held liable where the servant was injured while using, for the purposes of his work, some material substance which happened to be in a convenient position, but which was not the property of the employer, and which was not used by his authority.” It also appears conclusively that the ladder in question was in daily use upon the premises by employés of the owner thereof, and that, if it was defective, a fact which is disputed, the defect was not obvious and not discoverable by ordinary examination and inspection. It is averred in the declaration that the ladder had no such apparent defects as to induce plaintiff, a man of ordinary intelligence, to deem the same unsafe for the use to which it was put. Plaintiff testified: “I glanced at the steps to see that there was nothing broken. I looked at the steps when I got up. * * * [18] There was no defect in any round that I could discover at a glance. I could have discovered a defect if I had inspected it, by hitting it with a hammer or something, pulling on it hard. I would have had to have taken off the round itself in order to see the condition of the nail holes, and, in order to tell whether the standard was punky, I would have had to have taken off the rounds.” Assuming, for the purposes of argument only, that a ladder is a tool, or instrumentality, which the master, if he furnishes it, is bound to inspect, it is apparent that the defect, if there was one, could not have been discovered by ordinary inspection. But plaintiff knew that his employer did not furnish the ladder, had not inspected or had opportunity to inspect it. He had no reason to think that the foreman had examined it otherwise than in the manner which plaintiff himself adopted. There is no testimony tending to prove that the foreman was an inspector for the employer. Plaintiff is relying upon the breach of a duty by his master which his master, to his knowledge, had not performed, had no opportunity to perform, which no one had undertaken to perform for him, which plaintiff was as competent to discharge as was the master and which he had opportunity to discharge — a duty arising out of an act of his own of which the master was ignorant. I feel obliged to announce conclusions opposed to those stated by Mr. Justice Bird, and to hold upon this record that with respect to the use of the ladder no negligence of the defendants is made out, that the foreman and plaintiff were fellow-servants, and the plaintiff assumed the risk of using the borrowed ladder. I do not, however, assent to the doctrine that defendants were bound to inspect the ladders which they furnished The judgment should be reversed, and no new trial granted. McAlvay and Stone, JJ., concurred with Ostrander, C. J. Moore, J., concurred in the result reached by Ostrander, O, J.