Hoveland v. National Blower Works

TimliN, J. The evidence is quite vague and unsatisfactory. Neither the direct nor the cross-examination of witnesses was carried far enough to bring out the facts upon which the case in all probability must ultimately turn. How did the blower works come to be erecting this scaffold when the contract attached to the answer seemed to require its erection by the lumber company ? What arrangements actually existed between the defendants with respect to the construction of this scaffold at the time of building this scaffold? Who furnished the material for the scaffold? These questions might be material to bring the ease either within the rale of Vary v. B., C. R. & M. R. Co. 42 Iowa, 246, or within the rule of Welch v. Maine Cent. R. Co. 86 Me. 552, 30 Atl. 116, 25 L. R. A. 658. Upon the evidence presented we are compelled to assume that the defendants co-operated in the construction of the scaffold, the blower works assuming charge of the work through its foreman and certain employees of the lumber company sent by the latter to assist in the construction, but under the direction and control for the time being [348] of the blower works. In this assumed joint work of construction both defendants furnished the material wherewith to construct the scaffold. The trial court granted a nonsuit “on the ground either that the plaintiff was a fellow-servant in the erection of the scaffold or was guilty of contributory negligence.” These grounds are distinct and dissimilar in law. Examining the first ground of nonsuit with reference to the evidence, it perhaps sufficiently appears prima facie that the plaintiff was a fellow-servant with the other men, employees of the blower works and employees of the lumber company, engaged in the construction'of the scaffold. But the scaffold was an appliance used in doing the work, and the general rule of law is that the master cannot evade his duty to use ordinary care to furnish his servants with reasonably safe appliances by dele>-gating that duty to a fellow-servant of the injured party. At the same time a modification of this rule is recognized where the appliance requires selection, or selection and construction, because in that case the master, after having exercised due care in furnishing implements or material for construction, may delegate the duty of selection, or of selection and construction, to his servants, including the injured person and the fellow-servant of the latter. Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, 21 N. W. 269; Van den Heuvel v. Nat. F. Co. 84 Wis. 636, 54 N. W. 1016; Cadden v. Am. S. B. Co. 88 Wis. 409, 60 N. W. 800. But to bring the case within this exception it must appear in the case of an unsafe or defective scaffold that the master did furnish suitable material for its construction or did furnish material from which the servants intrusted with, the duty of selection could have selected suitable material. In the instant case the lumber for the scaffold was collected by plaintiff from lumber in the yard, and from the lumber so collected the scaffold was erected by those whom we may, for the purpose of testing this question, consider as the fellow-servants of the plaintiff. There [349] was about 8,000 feet of this lumber in the yard in different piles scattered along the track. The plaintiff testified that this was rotten old lumber and that be picked out the best there was there and carried it over to where the scaffold was to be built. It was néarly all kinds of lumber from inch stuff up. He had orders from his employer not to select the new hardwood plank, which was required for the floor of the bos factory. The other lumber was old lumber with nails in it and had been used before, probably in an old mill. Mr. Sukopp, a witness for the plaintiff, testified that it was' old lumber that had been tom out of an old mill and that you could tell by glancing at it. It had been used in the construction of some building. The pieces were of all sizes. There were nails and auger holes in some of the pieces and this could be readily observed. We conclude from this evidence that it did not affirmatively appear, as it must from the evidence on the part of the plaintiff in order to justify a nonsuit on this ground, that the master had furnished suitable material for the construction of this scaffold from which the plaintiff could have made a proper selection. This showing is essential in order to bring the case within the fellow-servant rule above referred to. Next, does it affirmatively appear from the evidence upon the part of the plaintiff that the plaintiff was guilty of contributory negligence? The testimony shows that while the other workmen were engaged in erecting the scaffold in question the plaintiff was, at the orders of Goethel, the foreman in the employment of the blower works, engaged in carrying from the yard to the scaffold lumber to be used in the erection of the scaffold. The scaffold consisted of upright pieces connected near the top by cross-pieces for sleepers or joists upon which to lay the platform, boards or plank nailed diagonally on the' upright pieces for braces, and a platform at the top'. The plaintiff took no part in constructing the scaffold or putting the pieces thereof in place. Among other lumber there [350] was used iu tlie construction of the scaffold as part of the platform a three-inch plank twelve inches wide and fourteen or sixteen feet long, having a three-quarter inch or an inch auger hole bored through it from edge to edge and about in the middle of the plank. This plank was placed by those engaged in constructing the scaffold on the platform thereof, resting on the cross-pieces or joists' before mentioned, and when the plaintiff with other workmen mounted the scaffold and stood on the platform in order to lift the iron pipe into place, this plank broke at the place where the auger hole was bored through and let the plaintiff down, injuring him. "While there might be some presumption that the plaintiff carried over this particular plank and saw this auger hole and that he knew this particular plank was to- be used or might be used as part of the platform of the scaffold and thus charge him with want of ordinary care contributing to produce his injury, and while there is evidence that this defect was readily observable, there is also evidence on the part of the plaintiff as follows: “I didn’t see the hole in the board that broke and do not know myself what it was. Until a few days ago I did not know there was a hole in the board, nothing about it. I didn’t help build the scaffold at all. ... I did not pick out the three-inch plank that was placed in the scaffold. I didn’t look after any holes in this lumber. I didn’t see any, so far as I can remember of. There was lots of boards with holes in lying around there. I don’t know if they were auger holes; holes in timber and planks and boards. I don’t know what kind of holes these were; were holes right through the board and plank. As to whether this lumber and plank that was lying around there had such holes, I don’t know. I don’t know how many there was. I see some there. I did not carry any three-inch planks over there at all.” A witness for the plaintiff testified: “I remember the plank in the scaffold in question which had the auger hole in it and which broke. Apparently it was, otherwise than the auger hole, a sound plank. I didn’t [351] take any notice of any defects at all; saw none. I saw no other defects about the plank except this auger hole. It broke right across where the auger hole was. It tore out a few slivers. I couldn’t say what kind of pine it was. It was a whitewashed board.” Except in cases where the proof of contributory negligence is so clear and decisive ás to leave no room for unbiased and impartial minds to come to any other conclusion, the question of such negligence must he determined by the jury. Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573. Whether the plaintiff carried over or selected the defective plank in question; whether he knew it was to be used or was used as part of the scaffold platform; whether he observed, or in the exercise of ordinary care ought to have observed, the auger hole bored through the plank from edge to edge; or whether, having observed it, he ought in the exercise of ordinary care to have known that a three-inch pine plank .of that width, thickness, and length containing such a hole would be weaker than a two-inch plank of the same dimensions without such hole or would be unsafe or unfit for use in a scaffold, were, we think, under the evidence items of fact to be considered by a jury in determining the question of the plaintiff’s contributory negligence. It follows that the judgment of nonsuit must be reversed. By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial. Basheoed, J., took no part.