Higgins v. Whitmore , 116 Va. 414 ( 1914 )

Whittle, J.,

delivered the opinion of the court.

The plaintiff in error, Higgins, who was an experienced carpenter, employed the defendant in error, Whit-more, along "with, other carpenters and laborers, to assist him in the construction of a dwelling-house for himself in the section of Norfolk county known as Glenwood Park. Higgins, with the assistance of two laborers, personally erected a scaffold for the use of his employees in weatherboarding and other work on the building. Whit-more, while engaged in his Work, stepped on the staging of the scaffold, and by the breaking of a partially rotten board fell to the ground and sustained injuries for which the jury awarded him $400 damages against his employer. The judgment sustaining that verdict is now before us for review.

The assignments of error are:

1. That the court erred in overruling the motion of the defendant to set aside the verdict as contrary to the law and the evidence; and

2. In giving two instructions at the request of plaintiff, and in refusing to give one of nine instructions requested by the defendant.

1. The conflict of evidence on the opposing theories of the case advanced respectively by the plaintiff and defendant has been set at rest by the verdict of the jury; and from the view-point of a demurrer to the evidence, the evidence is quite sufficient to sustain the verdict. The plaintiff and his helper began to build the scaffold, but they were stopped by the defendant and put on other work, while he, assisted by two laborers, erected the scaffold and in laying the staging used second hand boards,taken from a pile of lumber that had been used on the board walks of Glenwood Park. The plaintiff called his attention to the unsound condition of some of that material, but was assured by the defendant that he was an experienced scaffold builder and that the structure would be safe. Shortly before the accident the defendant discovered that the stage or floor of the scaffold was limber and springy, and to remedy that defect laid a third board on top of the two already in place. On the evening before tbe accident he noticed that the added plank had been removed; yet he admits that he paid no attention to that circumstance, and neither replaced the board nor advised Whitmore of the infirmity of the staging in its absence. The plaintiff never saw the third board, and it was not where the defendant says he put it when the accident happened.

In these circumstances, the plaintiff in the prosecution of his work, went on the scaffold, and when he had reached a point midway of the staging stepped on the inside plank, 2,x8 inches in dimension, which broke and he fell to the ground and was injured.

The defendant was employed by the manager of Glen-wood Park, and that service occupied about one-half of his time. On the morning of the accident he was called away from work on his building by the manager, and testifies that before leaving he stopped the plaintiff from weather-boarding and directed him to stay on the ground and show McDaniels (a new man) how, and to help him, to get out rafters for the roof; and that he left him in charge of the entire work as foreman during his absence. This point is stressed to support the contention that the plaintiff went on the scaffold in disobedience of orders, and, moreover, that as vice-principal the duty devolved upon him to look after the safe condition of the scaffold.

If the premises be correct under the circumstances (as to which we need express no opinion), the fact is ignored that there is a conflict in the testimony of the par - ties touching this incident. The plaintiff explicitly testifies that on the morning in question his orders were to take his helper and finish weather-boarding, and that he was also instructed to watch McDaniels, who had only been employed on the job for a day or two. Without going further into details of the evidence, it is sufficient to say, that the question of the negligence of the defendant and the contributory negligence of the plaintiff, upon conflicting evidence, was fairly submitted to the jury, whose verdict in behalf of the plaintiff was approved by the trial court. Upon familiar principles, therefore, the verdict in such case cannot be disturbed by an appellate court.

2. The grounds of objection to the instructions granted on the request of the plaintiff are, that they were without evidence to support them, and that they call for a verdict on a given state of facts and ignore the circumstance that the plaintiff was foreman in charge of the work with all the authority of the master in the defendant’s absence and could have remedied the defect in the staging, and in that view of the case was not entitled to recover.

The instructions present the plaintiff’s theories of the ease, which are in accordance with the finding of the jury, sustained both by the trial court and this court, and that affords a sufficient answer to the objection that they were without evidence to support them.

The second objection to the instructions undertakes to bring the case within the influence of the recognized general rule that an instruction which purports to cover the entire case and calls for a verdict must “be predicated upon all the material facts which the evidence proves, or tends to prove.” Wright v. Agelasto, 104 Va. 159, 51 S. E. 191; Southern R. Co. v. Blanford, 105 Va. 373, 54 S. E. 1, Vaughan M. Co. v. Stanton Co., 106 Va. 445, 56 S. E. 140; American Locomotive Co. v. Whitlock, 109 Va. 238, 63 S. E. 991.

But the rule is not violated when an incomplete statement in one instruction is so supplemental by an additional statement in another instruction as to include in both a complete statement of the case. Instructions are to be read and considered as a whole, and an incomplete statement in one instruction may be cured by a supplemental statement in another, if when both are read together the court can see that the jury could not have been misled by the incomplete instruction. Washington R. Co. v. Quayle, 95 Va. 741, 30 S. E. 391; Sun Life Assurance Co. v. Bailey, 101 Va. 443, 44 S. E. 692. For an instructive discussion of the subject of “Instructions,” see Burks5 PL and Pr., ch. 35, p. 449, et seq.

Complaint is also made that the instructions for the plaintiff ignore the theory of the defendant that the former, at the time of the accident, was foreman in charge of the work, clothed with all the authority of the master during his absence, and ought to have remedied the defect in the staging. The jury, in another instruction, were specifically instructed upon that phase of the case, and were told that if they believed from the evidence the facts upon which the instruction was predicated, the plaintiff could not recover. Indeed, the court, on request of the defendant, gave eight instructions submitting every possible theory of the case from his standpoint, and each told the jury that if they believed from the evidence the facts recited therein, either that the plaintiff could not recover, or else that they must find for the defendant. It were well to be borne in mind that the real object of instructions at last is to enlighten the minds of the jury on the law of the particular case: and where the court can see that that end has been accomplished, and the law of the case fairly submitted to the jury, it would be beside the mark to stop to inquire whether it was done by one instruction or by more than one. •

The court correctly refused the 9th instruction because there was no evidence to support it.

Upon the whole case, we find no reversible error in the judgment complained of, and it must be affirmed.

Affirmed.