Murch Bros. Construction Co. v. Hays , 88 Ark. 292 ( 1908 )

Battue, J.

This action was brought by Nellie Hays, as administratrix of John H. Hays, deceased, against Murch Brothers Construction Company. Plaintiff states her cause of action in her complaint as follows:

That “the defendant, on the 29th day of June, 1907, and prior thereto, was engaged as contractor in the erection of a certain building in the city of Little Rock, Arkansas, known as the Iron Mountain Railway Station, and as such contractor had full and exclusive charge, management and control of said building and the work thereon. That on the 29th day of June, 1907, plaintiff’s intestate, John H. Hays, was employed by defendant as .carpenter in and about the erection of said building, and it was the duty of the defendant to provide him with a good, safe and secure place for plaintiff’s said intestate to perform his work and with good, safe and secure joists, planks, beams, scaffolds and platforms where plaintiff’s intestate was directed and sent to work upon. That prior to the 29th day of June, 1907, defendant erected and caused to be erected joists and beams upon which were placed planks for the purpose of enabling plaintiff’s intestate and workmen to stand and work while engaged in their employment.” * * * That it “erected or caused to be erected said place to work with beams, joists, planks, platforms and scaffold, loose, unfastened, in a dangerous and unsafe and improper manner, rendering said place of work and appliances unfit for the purpose for which they were to be put. That on the 29th day of June, 1907, plaintiff’s intestate was directed to go upon said joists, planks, beams, and went upon same in the performance of his duties at defendant’s order, and while engaged in his work said joists, beams and planks, by reason of their defective condition and improper construction and fastening, gave way, .and plaintiff’s intestate was thereby precipitated a great distance below, and received from the fall severe injuries, which resulted in his death a few minutes later.”

Defendant answered and denied each and every material allegation in the complaint.

The facts of the case are, in part, as follows: The defendant was engaged in the construction of a railroad depot at Little Rock. John H. Hays was a carpenter, and was employed in that capacity by it to assist in building the depot, and was foreman of the carpenters engaged in the same work, with power and control over them. Defendant had reached the construction of the third floor of the building when Hays fell from that floor and was killed.'

Evidence was adduced in the trial by the plaintiff tending to prove that Heinze, the defendant’s superintendent, caused a platform or temporary floor to be laid in the third story of the depot to be used as a place for standing and walking by those engaged in the construction of that building; that, in the laying of the platform or floor, a plank with a large knot in it was used and was insufficiently supported. Hays stepped on it, broke it at the knot, and fell to the ground, and was fatally injured. On the other hand, evidence was adduced tending to prove that Heinze had nothing to do with the laying of the temporary floor, and that Hays had the exclusive supervising of it, and was not standing on a plank at the time he fell, but was standing with his feet on the wall, and was thrown from that place in an effort to lift a heavy joist.

The court instructed the iury, over the objections of the defendant, as follows:

“1. It was the duty of the defendant, when supplying its employees materials with which to build the platform which the plaintiff complains of as defective, to use reasonable and ordinary care to inspect said materials, and find out, before using it, whether it was sound and suitable for the use to which it was to be put. If you believe from the evidence that the defendant neglected this duty and, in consequence of such neglect, placed, for use as a platform, an unsound plank, not strong enough to sustain a man’s weight, and that the plaintiff’s intestate was ignorant of the unsoundness of said plank, and stepped upon it, while in the proper discharge of his duties as an employee of the defendant, and in the exercise of due care, and was thrown to the ground and injured thereby; and if you further believe from the evidence that plaintiff’s intestate could not, before stepping upon it, by the uáe of ordinary care, detect the unsoundness of said plank as it lay where the defendant had placed it, but that the same could have been discovered by the defendant, by the use of ordinary care, before placing it where it lay, then the defendant is liable for the injuries so inflicted on the deceased, and your verdict should be for the plaintiff, provided that said defect was the proximate cause of the injury.”

Other instructions were given. .The jury returned a verdict for $1,500 for the administratrix and $6,000 for the widow and next of kin. Plaintiff entered a remittitur of the $1,500; and judgment was entered for the $6,000. Defendant appealed.

The foregoing instruction, which was given over objection of the defendant, is erroneous, because it virtually told the jury that the defendant was liable for the injury of Hays if his fall was caused by a defective plank in the temporary floor breaking while he was standing or walking upon it, regardless of the evidence that tended to prove that Hays had the exclusive supervision of the laying of the temporary floor and was himself responsible for the defective material used. The court, in effect, told the jury in this instruction to return their verdict as if Plays was not in any way responsible for the construction of the temporary floor or platform. The instruction was at least misleading, and should not have been given.

Appellant insists that it was not its duty to furnish the appellee a safe place in which to work, and cites Grayson-McLeod Lumber Company v. Carter, 76 Ark. 69, to support its contention. In that case “appellee was engaged in tearing down a bridge, and in continually changing his place of work, and sometimes in making it more insecure.” “Plis employment made it his duty to tear down and to change and destroy his places for work, and to make them safe and unsafe as his work rendered them; and was such as to' place it out of the power of his employer to perform such duty.” In this case appellant was erecting a building, and as his work progressed scaffolding and platforms upon which to work became necessary to enable his employees to do their work. Finding it necessary and practicable, it was its duty to exercise such care and diligence in so doing as an ordinarily prudent man would exercise under like circumstances. Little Rock & Fort Smith Railway Co. v. Eubanks, 48 Ark. 460; St. Louis, Iron Mountain & Southern Railway Co. v. Rice, 51 Ark. 467; Park Hotel Company v. Lockhart, 59 Ark. 465.

Reversed and remanded for a new trial.

Opinion delivered December 21, 1908.