Farney v. Oregon Short Line R.

CHIDE STEN, District Judge, after stating the facts, delivered the opinion of the court. The first assignment of error discussed by counsel for appellant is the one based on the alleged insufficiency of the evidence to justify the verdict; that is, if we correctly understand appellant’s position, the evidep.ee fails to show negligence on the part of defendant in failing to furnish plaintiff with a reasonably safe appliance with which to perform the work required of him by his employment. We do not deem it necessary to make an extended reference to the evidence introduced, respecting the mechanism of the gallows frame. It is sufficient to here state that there is abundant evidence in the record to support a finding by the jury that the gallows frame was negligently constructed in that it was insufficiently braced, and not supplied with the necessary guy ropes to hold the plumb posts in position when subjected to the heavy strain caused by raising and lowering the steel girder referred to in the foregoing statement of facts. [200] C. P. Burke, a witness for plaintiff, testified in part on tbis point as follows: “I have seen bow they have been constructed [referring to gallows frames] but never constructed one myself. . .• . They are constructed similar to the model you have there [referring to an exhibit — a model of the gallows frame in question] with the exception of some braces on it leading from the needle beam there- across the plumb posts and connected with the wind braces. I never saw one that did not have those braces-. I have seen some times where guys were put on — use a cable or set of blocks from the plumb post or dead men; something fastened to the ground to keep it from swaying from one way to- the other. The effect that would be had if there were no braces except the wind braces would be to double up. The braces that I have described running from the wind braoe-s to the plumb posts and to the needle cap are to stiffen' it. It would not be stiff enough without those wind braces. It is liable to rack without any braces on it at all.” Parry Burke, a witness for plaintiff, testified: “I have used gallows frames for putting girders or steel beams in place, and have taken part in the construction of gallows frames.” After explaining how a gallows frame, like the one under consideration, should be braced in order to successfully stand the strain required of it in handling and putting in place a girder of the weight in question, the witness proceeded to explain the effect of the-hoisting and placing in position of such a girder with a gallows frame constructed on the same- plan as the one under eonsideration, and stated: “It would not be strong enough. It would rack sidewise. It wo-uld jack-knife it right over.” Other witnesses testified to substantially the same facts respecting the alleged defective condition of-the gallows frame caused by the lack of sufficient braces in its construction and the lack of guy ropes. In view of this testimony, when considered in connection with other facts herein stated and referred to, we think the question of negligence on the part of plaintiff was properly submitted to- the jury. Appellant next insists that while the gallows frame was constructed under the supervision and direction of defendant’s [201] foreman, nevertheless the plaintiff, assisting in the work and thereby becoming conversant with its condition, assumed the increased risks and hazards, if any, created by its imperfect and faulty construction. Appellant therefore seeks to invoke the rule of assumed risk which obtains in the class of cases where the servant in the erection or repair of a wall, building, or other like structure, which requires the construction and erection of a scaffold or platform upon which he may stand while performing the work, and which was constructed' by himself with materials furnished by the master. In such cases the servant knows, or is presumed to know, the extent of the strain or bui’den to which the scaffold or platform will be subjected. The construction of the scaffold being under the sérvant’s control, and the master having furnished the necessary and proper materials therefor, if the servant fails to make the structure sufficiently strong and convenient for the purposes for which it is intended,'and he is injured because of some defect in its construction, the master cannot be held liable for the injury. In such cases whatever defect there may be in the scaffold or platform is due to the negligence of the ■servant, and not to that of the master. In the case under consideration the gallows frame was built, under the sole direction and supervision of defendant’s foreman. On this point plaintiff testified as follows : - “I had never had any experience in building gallows frames. That is the first one I ever helped to build. I had never seen any before. I knew nothing about the proper method of constructing them. . . . The gallows frames were built under the direction of Mr. Draper, the foreman. He gave orders relating to' putting them up.” Draper, the foreman, testified, with reference to the construction of the gallows frame in question, as follows: “It was erected under my direction." I was there in charge of the job. I told the men what to do . . . told them how to put the timbers together.” The record further shows that this gallows frame had been used at other points along defendant’s line of railroad, and had been taken to pieces, “knocked down,” and shipped to Ham’s Dork, the place of the accident, where plaintiff assisted in putting it together. [202] He bad nothing whatever to do- with the selection of the timber with which it was constructed, nor with the designing of the plans upon which it was constructed. It does not appear that he appreciated or had any knowledge respecting the amount of strain or pressure to which the gallows frame could be safely subjected. In fact, we think it reasonably appears from the record that he was ignorant of the mathematical and mechanical principles by which its sufficiency could have been determined. And, further, it is not claimled that the accident was due to any negligence or defective workmanship of plaintiff, or that of his fellow servants in putting together and erecting the gallows frame. Appellant in its brief says: “The testimony fails to disclose that any of the timbers broke, or that any of the bolts or lines gave way until after the gallows frame had pitched into the river.” This being admitted, it necessarily follows that whatever defect, if any, there was in the structure, was due to the imperfect plan or faulty design upon which it was constructed and braced. It thus appears that this is a case where the master, and not the servant, provided the place of employment, and the appliances with which the work was performed. Therefore this case falls within that class where the master is required to use reasonable care to provide the servant with sufficient and reasonably safe appliances with which to do> the work required of him by his contract of employment. In the case of Austin Mfg. Co. v. Johnson, 89 Fed. 677, 32 C. C. A. 309, practically the same, questions were, involved as are presented in this case, and the Circuit Court of Appeals, in the course of the opinion, say: “The liability of the master cannot be determined simply by showing that the place where the-workmen were engaged in his service was a scaffold, but it must depend upon the nature of the scaffold, the purposes it is to subserve, whether it could be properly left to the workmen to determine and control the method of its erection, whether they did in fact control its erection, or whether the master had charge thereof. In the case at bar the scaffold was intended, not only as a place where the workmen were to stand, but as a support upon which was to be placed the entire superstructure of the bridge during the course of its erection . . . it is clear that such workmen as the defendant in er203 vor [plaintiff] could not be expected to know tbe strain that would be placed upon this scaffold in the erection of a steel superstructure. It is equally clear that it would not have been open to the defendant in error [plaintiff] to exercise any control- over the method in which (the scaffold was erected or the material used in its construction. The purpose for which this scaffold was to be used, then, is inapplicable to the reasons upon which the rule is based, that ordinarily the master is not responsible for the safety of stagings which the workmen put up. as aids in carrying out the particular work they are employed to perform. The use to which it was intended to subject this structure, in that there would be placed thereon, not' only the dead weight of the material composing the bridge, but also the strain caused by placing the different parts in proper position, clearly shows that the erection of the staging was not a matter that could be safely left to the control of ordinary laborers, but required skilled control by persons who, from experience, would know what strain would be placed on the staging; and the evidence shows that in its erection the defendant in error [plaintiff] exercised no control or judgment; but, on the contrary, it was erected solely under the direction of Charles Iiilliper, who, as a skilled expert, had been sent out by the company to erect the bridge. ,. . . The scaffold was being used to support the dead weight of the material placed on it, and also to aid in placing the beams into place, with all the additional strain caused thereby. . . In view of the purposes to which this scaffold was to be put, and of the fact that the workmen had no control •over the mode of its erection, the trial court rightly held that the defendant company would be responsible to the plaintiff for negligence in its .construction.” (Woods v. Lindvall, 48 Fed. 62, 1 C. C. A. 37; National Refining Co. v. Willis [C. C. A.], 143 Fed. 107). We fail to find any reversible error in tbe record. Tbe judgment is there affirmed, witb costs. McCAETY, O. J., and FEIGN, J., concur.