Barkley v. South Atlantic Waste Co. ( 1908 )

At the conclusion of plaintiff's evidence the defendant moved to non suit, which motion was allowed, and plaintiff appealed. The facts are stated in the opinion. The plaintiff offered evidence tending to prove that he was a carpenter in defendant's service, and at the time of the injury was at work in a warehouse. On 8 June, Mr. Michael, foreman of the carpenters, came for plaintiff and ordered him to go into the factory, which bad been damaged by fire and was being repaired, and to "ceil the overhead and ease up the joists and truss beams." Plaintiff states: "Mr. Michael came after me at the wareroom; told me that the scaffold, that I would find would already constructed up there, and when got there I found the scaffold built up on the side of some boxes or bin that were in the building prior to the fire." Plaintiff states that he did' not assist in building the scaffold, and only casually examined it when he went on it; that he asked Michael if the scaffold was all right, and he said "it was, and to go ahead." Plaintiff further says: "The scaffold ran clear across the building. I worked on the other end maybe a day or two, and then the last day (the evening I got hurt) Mr. Michael told me to put the molding around this joist or truss, and get a man to help me and I got Mr. Austin. I cut the molding and would nail up one end. Mr. Austin would nail the molding on while I would cut another piece to go around, and this was possibly between 5 and 6 o'clock in the evening; and the last piece I cut, I cut it and shoved it back to Mr. Austin. He was on this scaffold, a piece from me — don't know what distance — and I asked him how did it fit. He said all right, and I said nail it. I started to nail my end, holding it up so, and the thing broke and went from under me. I had been on this particular scaffold when it fell just about a minute — not over a minute on that particular place until I stepped on there and fell." Plaintiff further says: "The end I had been working on was pretty well floored all along; this end, that I came around here on and that broke down and fell, I don't know (587) how much floor was on it."

In the view we take of this case it is unnecessary to consider whether the plaintiff was injured by the negligence of a fellow-servant. Assuming the standard of duty which defendant owed plaintiff to be as stated in the elaborate brief of the learned counsel for defendant — that "the only duty the defendant owed the plaintiff in regard to the scaffold was to exercise ordinary care in the selection of his fellow-servants and to furnish a sufficient quantity of fit and suitable material out of which he and his fellow-servants could construct the scaffold" — we think his Honor erred in sustaining the motion to nonsuit. The defendant owed to its employees who were directed to work on this scaffold the duty to exercise due care in selecting materials reasonably suitable and safe for its construction. 2 Labatt, sec. 614; Bushwell on Personal Injuries, secs. 193, 391, 392; Brewing Co. v. Wood, 27 Ky. Law, 1012; 4 Thompson Neg., sec. 3957, note 30; Stanwick v. Butler, 93 Wis. 430; Phoenix Bridge Co. v.Castleberry, 131 Fed., 181. If defendant delegated the performance of this duty to Michael, it is responsible for the manner in which he discharged it. Tanner v. Lumber Co, 140 N.C. 475; Avery v. Lumber Co., 146 N.C. 592;McCarthy v. Claflin, 99 Maine, 290. The evidence of witness Wooten is to the effect that the scaffold was built of old material that was scorched in the fire when the building was burned. There is also evidence that the wood was knotty and that the piece which gave way was broken at a knot. These facts, if true, do not per se constitute negligence, but we think they are some evidence to be considered by the jury as bearing upon the inquiry as to whether the defendant exercised reasonable care in selecting material suitable for the construction of a lofty scaffold upon which its servants were required to work.

We fail to see any evidence of contributory negligence. The plaintiff took no part in selecting the material or in erecting the scaffold, and knew nothing of the character of the material out of which (588) it was constructed. The scaffold was a completed instrument and supposed to be safe when plaintiff was directed to work upon it. The fact that he made only a casual examination does not make plaintiff culpable. He had a right to rely upon the assurance of the foreman that the scaffold was safe, as he was unacquainted with either the character of the construction or the quality of the material. Liedke v. Moran, 43 Wn. 428; Ingram v. R. R.,99 S.W. 666 (Ky.); Swanson v. Jenks 92 N.Y. 382; Standard Oil Co. v. Bowker, 141 Ind. 12.

The judgment of nonsuit is set aside and a new trial is ordered.

New trial.

Cited: Cotton v. R. R., 149 N.C. 230; Barkley v. Waste Co., ib., 287;West v. Tanning Co., 154 N.C. 48; Terrell v. Washington, 158 N.C. 290;Alley v. Pipe Co., 159 N.C. 330; Steele v. Grant, 166 N.C. 645; Smith v.R. R., 170 N.C. 186; Deligny v. Furniture Co., ib., 203 Yarborough v.Greer, 171 N.C. 336.