Yazoo & M. V. R. v. Perkins

Cook, J., delivered the opinion of the court. Appellee recovered a judgment against the appellant for two thousand, five hundred dollars for personal injuries caused by an alleged failure to furnish him with a safe place to work, and from this judgment appellant appeals. The facts, of record, are about these: At the time of the injury appellee was a carpenter in the employ of appellant — a member of a squad composed of C. M. Carl, foreman, A. R.- Jones, assistant foreman, and three or four other carpenters. This squad was engaged in overhauling and repairing appellant’s depot at Magenta. • The foreman, Mr. Carl, was absent and Mr. Jones was in charge of the squad in his absence. In progress of the work it became necessary to construct a scaffold around the four sides of the building. Up to the day of the injury, this scaffold had been used by the workmen in putting on weatherboarding. This scaffold consisted of running boards or planks some ten feet above the ground, upon which the workmen [118] stood. These boards were supported by resting on timbers (or “brackets,” the workmen call them), extending out at right angles from the sides of the walls, and supported in turn by upright posts at their outer ends. As originally constructed, the running boards were not nailed, but were allowed to lie loose.on their supports, so as to be freely adjusted. At the northeast corner of the building, 'where the accident happened, there were three upright posts and brackets supporting the running boards; that is to say, where the running boards on the north and the east sides of the house met at this corner, there was a bracket and post to support each, and one to support their intersecting ends — the three forming a sort of crow’s foot. After the scaffold had been constructed, and had been in use some time, appellant put in a side track, which rounded the building very close to this corner; and some of the scaffolding extended out so far that it prevented the cars from passing this point. To allow the cars free passage, the middle upright post — the one set directly out from the corner — was set in towards the building some fourteen or sixteen inches, and its brackets shortened accordingly. Appellee and another workman made this change; Jones having instructed them to do so. However, appellee did not go upon the scaffold immediately after this change, nor did he go upon it all, under the very simple circumstances we are here confronted with, and of which appellee complains. It was some ten days later that appellee went upon the scaffold and received the injury. Upon the day of the occurrence the squad was engaged in putting on roofing;-appellee’s part of the job being to tack it to the eaves of the house, which extended some four feet beyond the sides of the building. It seems that the scaffold was too far under the eaves of the house to afford appellee a ready footing; and appellee, observing and appreciating the effect of the change [119] made at the northeast corner, informed Jones that, if he extended the running boards out at that point far enough to enable him to do the work, they would have no support under their outer ends, and would not be safe, whereupon Jones told-him “to go ahead and fix it.” Appellee then pulled the boards out the distance he wanted them (five or six feet), lapping-the outer end of one board over that of the other, and nailing the under board at the other end to prevent their tipping up — the boards being about fourteen or sixteen feet long. He testified that Jones told him to do this. After this was done, appellee went to work. Jones'was working also, and at the time of the injury was cutting roofing for appellee to tack. After appellee had been at work some two hours the nails he had driven tore loose, or pulled out, the board tipped up, and he was thrown to the ground, causing his injury. ■ It is perfectly manifest that appellant was a skilled carpenter and had' donstructed a great many scaffolds like the one in question; that he knew all about how they ought to be constructed in order to make them safe; that the instructions given by the assistant foreman, if he gave instructions, were of the most general and perfunctory character, no doubt, because the foreman knew that appellee was qualified to do this sort of work without any advice from him. We have given thé record a most careful examination, and we are convinced that "'there was no neglect of duty upon the part of Mr. Jones; that, if the scaffold was unsafe, it was because of. the failure of appellee to take the proper precautions to make it safe. Appellee insists that he did the work according to the instructions of his superior, Mr. Jones, and that when the job was finished according to these instructions it was unsafe. The record shows that following questions to appellee and his replies: “Q. You thought it was safe when you went on there? A. Ño, sir;.I did not. Q. Didn’t think it was safe? A. [120] I told Mm it looked like a trap to me, when lie had the change made and directed me to put it up that way.” It would not be unfair to say that appellee, knowing th‘e danger, voluntarily elected to take chances; but aside from this view of the case, we are forced to the conclusion, taking the record in its most favorable aspect, that as a matter of fact the scaffold was changed by appellee himself, and that no specific commands or instruc-. tions as to how the work was to be done were intended, or given by the assistant foreman. Indeed, the work was of the simplest Mnd, and the foreman did not limit the workman as to the method of performing it, and at most he only made a suggestion, which appellee was at liberty to accept or ignore as he saw fit. There is nothing in the record to justify the idea that the foreman directed the manner of doing the work, in any proper sense, nor does it appear that he saw the work done; but, on the contrary, it appears that appellee supervised the work, and at least in one particular he attempted to improve the foreman’s suggestion. It is, of course, the duty of the master to provide a reasonably safe place for the servant to do his work, and this duty is nondelegable; but when the workman is himself doing the work for Ms own safety, and neglects to take the simplest precautions to insure his own safety, wMch he might have taken without violating Ms general instructions, his failure to take the precautions is his own neglect, and not the master's. Reversed and judgment here for defendant. Reversed.