Larsen v. Le Doux

ON REHEARING.

STO CKSLACER, C. J.

— Counsel for respondent, with his usual force and ability, insists that the court has misconstrued the facts and misapplied the law to the facts as they exist in this case. For the reason that we know the petition is filed in good faith, we have again carefully examined the facts as they appear in the record. The questions of law applied to the facts in this case, as we understand them, were carefully considered before the case was assigned to Mr. Justice Sullivan, and we find nothing in the petition or authorities there referred to that changes our views.

It seems to me that Mr. Burke took every precaution to have the scaffold so constructed that no accident could happen with reasonable use of it. It is apparent that the direct cause of the accident was overloading the scaffold with brick and mortar. It is true that it is shown that one of the joists upon which the scaffold was constructed was defective, but it was not shown that Mr. Burke was in any way responsible for the use of this particular joist. He had given his instructions as to the material to be used and the manner of construction of the scaffold, and it appears that there was sufficient material to construct the scaffold according to his direction. It seems that Mr. Burke had business elsewhere in the building and left the completion of the scaffold to Mr. Knowles and respondent; that it was not constructed according to his direction. The question arises, "Would the scaffold have withstood the overloading with brick and mortar had the work been done according to the instructions of Mr. Burke? Again, to what extent'was the joist weakened by the knot or gnarl ? There is a wide field for speculation and theory here, if it were necessary to indulge in them, but under the facts as they appear in the record in this case, we do not think it necessary to enter this field.

In any view of the case other than the one reached in the opinion heretofore filed, contractors would be compelled to do their own work or assume the risk of every accident which might occur, without any apparent blame upon anyone connected with the construction of the building.

The petition for a rehearing is denied.

Ailshie, J., and Sullivan, J., concur.