Sims v. American Steel Barge Co.

Collins, J. Plaintiff was a ship plater in defendant’s employ, at its yards in West Superior, Wis. He was injured while “laying off” steel plates upon the deck of a steam barge which defendant corporation was constructing in said yards. The deck beams of steel had. been put in, but the spaces between them were open. In order to do his work, the plaintiff had to go upon a staging made of two or more planks, sixteen or eighteen feet long, laid upon wooden horses about two and a half feet high. These horses rested on planks laid down upon the deck beams. A plank used for staging broke, and plaintiff was precipitated to the hold of the vessel, some eighteen feet, receiving the injuries complained of, and which he attributes to defendant’s negligence. Certain it is that the plank in question was defective, and unfit for use in such a place. A verdict was rendered against defendant, and it appeals from a judgment entered after the denial of its motion for a new trial. 1. There is nothing in the assignment that the court erred in overruling defendant’s motion for a change of place of trial for the convenience of witnesses. There was, so far as appears from the record, no abuse of that discretion which is necessarily vested in a trial court upon the consideration of such a motion. 2. By means of various specifications of error, the claim is made that there was no evidence offered or received which tended to show that the defective plank, or the staging in which it was found, were placed in position by the* men employed by defendant as builders of necessary staging, or by any other authorized person. The plaintiff did not prove by whom the staging in question was built. He did prove that the materials were furnished by defendant, and that the construction of all staging used about the barge was delegated by defendant to one Guinane and a crew of from two to four men, his assistants. Guinane and his crew were not employed in the general work carried on by defendant, their exclusive business being to build such staging and scaffolding as might be needed, from time to time, by other workmen engaged in defendant’s general work and [72] 'business. On the day of the accident, plaintiff had gone from near where he was afterwards injured, the staging not being then in position, to the other side of the vessel, and had there been at work for something more than an hour. He then went, with his helper, into the yard for a mold, which was to be used, at the point where they found the staging built on their return. The helper testified that it was put up while plaintiff and himself were in the yard after the mold. So the facts were that at the time plaintiff was required to perform work at that particular place, and, necessarily, to stand upon and use a staging, while performing it, he found the one in question in position, and used it. It is certainly fair to-presume that this staging was built by one or more of the men employed and delegated by the defendant to do that special work when needed, and whose exclusive duty it was to do it, and, unless this is a fair presumption, we must infer that these men wholly failed to-do their duty, and also infer that a staging upon the barge, may have been erected by an intermeddler. If this was the fact, it was incumbent upon the defendant, at least, to offer to show it. The .presumption we have referred to was not affected by proof that G-uinane himself did not build the staging, nor could he tell who did. The cases cited by defendant’s counsel—Flynn v. Beebe, 98 Mass. 575, and Joy v. Winnisimmet Co., 114 Mass. 63 —are not at all analogous to the one at bar. 3. It is urged that within the rules laid down in Lindvall v. Woods, 41 Minn. 212, (42 N. W. 1020,) and Fraser v. Red River Lumber Co., 45 Minn. 235, (47 N. W. 785,) the plaintiff cannot recover, because the men engaged in building the staging were his fellow servants. In each of those cases, as well as in Marsh v. Herman, 41 Minn. 537, (50 N. W. 611,) the very familiar rule that the master is bound to use due care in furnishing safe structures or instrumentalities with Avhich the servant is to do his work, and is responsible if, 'through his own negligence, or the negligence of other servants employed to furnish them, they are unsafe, and injury results, was referred to. In the Lindvall Case the defendants were declared not liable, because the men were all serving the same master, under the same control, and all engaged in the same general work, — that of grading a railroad. The trestle which fell and caused the injury was not a [73] structure furnished by the defendants for their employes to work upon, but was itself a part of the work the employes were employed to perform. It was built by themselves. In the Fraser Case -it was distinctly held that all of the men engaged about defendant’s lumber yard, whether pilers, scalers, sorters, or measurers, were engaged in promoting the same common object, and as to each other, and as to every part of the common enterprise, were fellow servants. Attention was called in that opinion to an important consideration often overlooked, it was said; and that is whether the structure, appliance, or instrumentality is one which has been furnished for the work in which the servants are to be engaged, or whether the furnishing and preparation of it is part of the work which they are employed to perform. This same distinction was alluded tp in Marsh v. Herman, supra, and it was held that where the general work in which several servants are engaged includes the construction or preparation of the appliances with which they are to work, such as constructing a scaffold on which they are to stand while at work, they must be deemed fellow servants in respect to the negligence of one of them while building such scaffold. The difference between the case at bar and those we have referred to, on the facts, is marked. The latter are really authorities in plaintiff’s favor, and support his contention that the builders of the scaffold were not his fellow servants. The defendant had undertaken to furnish a scaffold upon which the plaintiff was to do his work, and had delegated the construction of such scaffold to certain men, who were employed for no other purpose. The defendant master owed to plaintiff, its servant, the duty of furnishing to him a safe structure, and failed so to do. The omission and neglect of G-uinane and his crew, to whom this duty had been specially confided, was that of the master, and for which it was liable to plaintiff in this action. Judgment affirmed. (Opinion published 57 N. W. Rep. 322.)