Sweenor v. Superior Manufacturing Co.

SiebecKER, J. The evidence shows that the plaintiff was employed with other workmen in erecting the scaffolding-from the materials furnished by the defendant. The appellant asserts that the trial court erroneously held that the evidence shows that the defendant furnished suitable material for building the scaffolding. The evidence is to the effect that the lumber of which the scaffolding was being built was-old lumber that had been used for some years in the old salt-shed, which was being rebuilt, and that some of it was decayed and unfit for use for scaffolding. This, however, does [4] not establish that the defendant failed in its duty toward the plaintiff to furnish suitable material for building this scaffolding. It is argued that the defendant was required to furnish suitable material for its construction and that it failed to do so, and that such failure proximately caused plaintiff’s injuries without contributory negligence of the plaintiff or his fellow-workmen, and therefore that the defendant is liable for the damages thus occasioned. Stanwick v. Butler-Ryan Co. 93 Wis. 430, 61 N. W. 723; Hoveland v. Nat. B. Works, 134 Wis. 342, 114 N. W. 795. The question is, Does the ■evidence present a case upon this subject for determination by a jury? There are statements by witnesses to the effect that the material was old lumber and contained pieces that were defective and were decayed. This, however, does not show that the portion not so affected was unsuitable for scaffolding. An examination of the facts shows that a considerable quantity of this lumber was sound and well adapted for building scaffolding. The material of the scaffolding theretofore built and used in the construction of this building throughout the several months had been selected from this old lumber. Its actual use proved it to be safe and suitable for the purpose. There is nothing in the evidence, aside from some general statements that there was old and rotten material in the piles, showing that this material was not suitable for the purpose of building scaffolding. There is undisputed evidence that the material was not all of this defective kind and that none of the scaffolding built was of defective material, aside from this one piece. We are persuaded that the court properly ruled that the evidence does not permit of the conclusion that the defendant failed to furnish suitable material for building the scaffolding, and hence that it was not in default in this respect. It is further argued that the defendant is responsible for the accident upon the ground that the plaintiff was directed by the foreman of the crew constructing this scaffolding to [5] use tbis material and was informed that it was suitable for this purpose. It appears that the foreman, the plaintiff, and several others were engaged as carpenters in building this scaffolding; that the foreman informed them that it was to be built of this material; that they then proceeded in common to select some of this material and used it to build this structure. Under these circumstances the plaintiff, the foreman, ^and the other carpenters were engaged in the common employment of selecting the material and constructing the scaffolding therefrom as furnished them by the defendant. This makes them fellow-servants. If any one of them was negligent in performing these services, which caused plaintiff’s injuries, it furnishes no grounds making the defendant liable therefor. -¡ We find no error in the trial court’s disposition of the case. By the Court. — Judgment affirmed.