Nolen v. F. O. Engstrum Co.

The defendant appeals from the judgment and from an order denying its motion for new trial.

The plaintiff recovered judgment for damages alleged to have been caused by the defendant's negligence. The complaint alleges that the plaintiff was employed by defendant to work as a carpenter in a building which the defendant was erecting, and was put to work upon a scaffold constructed in the building as a place upon which the workmen were to stand when at work on the building; that while plaintiff was so engaged the scaffold gave way, in consequence whereof he fell and received the injuries complained of. It is alleged that the defendant carelessly allowed the boards of the scaffold to become misplaced, so that they would not support the plaintiff's weight; that because of defendant's neglect the braces supporting the scaffold were not sufficiently nailed and were not of sufficient strength, in consequence whereof they would not sustain the weight of the men put to work thereon, and that the defendant had negligently failed to provide sufficient light to enable the plaintiff to see whether or not the boards of the scaffold were properly laid or supported, and that all of said acts of negligence caused plaintiff's injury.

The defendant claims that there was no evidence of its negligence in the particulars charged in the complaint. This claim without foundation. It was the duty of the defendant to make the scaffold strong enough to sustain the weight of the workmen who were required to go upon it. Reasonable care required this. Under the law in force when the accident happened the plaintiff did not assume the risk arising from the dangers of the place in which he was at work. (Stats. 1911, p. 796.) Scaffolds built for such purposes do not usually break or fall with the weight of the workmen, if properly constructed. The fact that while the plaintiff was at work upon the scaffold it fell and precipitated him to the ground was of itself sufficient evidence that the scaffold was defectively constructed. The plaintiff testified that he felt the supports giving away at the time of falling. From this there would be a reasonable inference that the supports were insufficient, either because they were too weak to sustain the weight or because they were not sufficiently nailed. The doctrine ofres ipsa loquitur applies. (Penson v. Island etc. Co., 73 Wn. 338, [L. R. A. 1915F, 15, 132 P. 39]; O'Connor v. Mennie,169 Cal. 217, [146 P. 674].)

There is no merit in the objections made to the rulings in giving or refusing instructions. Instruction No. 7, asked by defendant and refused, was erroneous, because it declared that the plaintiff assumed the ordinary risk incident to the service in which he was engaged. As we have said, the doctrine that the workman assumes the risk of the dangers incident to his service and place of work was not at that time in force.

It is claimed that instruction No. 12 given by the court was unintelligible and confusing. In effect it stated that if the jury believed that either one of the alleged acts of negligence were proven, they should return a verdict for the plaintiff, if they found that such negligence was the proximate cause of the accident and that plaintiff's negligence did not contribute thereto. We see nothing in this which would tend to mislead or confuse the jury.

Instruction No. 13 stated that the negligence of any employee of a corporation while acting in the ordinary scope of his duties is deemed in law to be the negligence of the corporation itself, and that if the jury should find that the plaintiff was injured by any negligent act or omission of any employee in the manner complained of, while such employee was engaged in the scope of his duties, the plaintiff would be entitled to a verdict unless his own negligence contributed to the injury. It is not true that there was nothing in the evidence to warrant this instruction. There was a claim that the plaintiff himself had constructed the scaffold in question. His own testimony was that he had not done so and had no knowledge on the subject. It was the duty of the defendant to provide the scaffold in question. Being a corporation, it could act only by agents and servants. The instruction properly directed the jury that the negligence of such servants in constructing an insufficient scaffold was in law the negligence of the defendant. The criticism that the instruction authorized the jury to find for the plaintiff if they believed that any employee had been negligent in some particular unconnected with the injury or with the allegations of negligence in the complaint is unwarranted. The instruction itself limited its application to the acts of negligence "in the manner complained of"; that is, in the manner set forth in the complaint.

The question of excessive damages is one which is first addressed to the trial court. The evidence shows a serious injury, and very severe and prolonged suffering and pain ensuing therefrom. Under these circumstances it is not for this court to interfere with the verdict, even if we supposed that the lower court might perhaps have reduced it in furtherance of justice. This court interfers only when the damages are so exorbitant "as to suggest, at first blush, passion or prejudice or corruption on the part of the jury." (Hale v. San Bernardinoetc. Co., 156 Cal. 715, [106 P. 83].)

The judgment and order are affirmed.

Victor E. Shaw, J., pro tem., and Sloss, J., concurred.