Myreen v. Smith

MA Justice Baker

delivered the opinion of the court.

Plaintiff excepted to the ruling of the \ court denying his motion, for a new trial, and counsel for' defendant in error insist that because he did not except to the entry of the judgment, the judgment must be affirmed. To bring for review, upon the facts, the record of a judgment where the case was tried by a jury, there must be an exception to the decision overruling the motion for a new trial. To bring for review, upon the facts, the record of a judgment where the case was tried by the court, there must be an exception to the judgment.- Error could not at common law be assigned upon the decision of the court overruling a motion for a new trial, and the right to assign such error now in this state rests upon section 61 of the Practice Act under which the exception must be “ to the decision of the court overruling the motion for a new trial.” The right to assign for error the decision of the court upon questions of fact, in cases tried by the court, rests upon section 60 of the Practice Act, which provides that such exception shall be taken “ to the final judgment of the court upon the law and the evidence.” Under these sections it has been often held by the Supreme Court and by this court, that an. exception to the judgment avails nothing in a case tried by a jury, and that an exception to the motion to set aside the finding-avails nothing in a case tried by the court. The plaintiff took his exception in this case in the manner provided by the statute to authorize him to assign for error the decision of the court overruling his motion for a new trial.

The counts relied upon are the second and sixth counts of the second amended declaration. These counts allege in substance that the F. P. Smith Wire and Iron Works were engaged in placing plates in the Tribune building and were unloading iron plates from a wagon at-a platform in close proximity to an elevator shaft, which was open and unguarded and dark and not easily observed, same having a depth of thirty feet; that plaintiff was engaged in unloading the wagon, and in the employ of the F. P. Smith Wire and Iron Works, using a certain hook furnished by his employer; that it was the duty of his employer to use care to furnish him with a reasonably safe place to work and to inform him of the danger connected with his place of work, and to inform him of the unprotected elevator shaft; that his employer failed in this respect, and failed to warn him of the danger, and to protect the shaft, which was a dangerous place, and dark and not noticeable, which defendant knew and of which plaintiff was ignorant, so that the plaintiff, while in the exercise of all due care and caution for his own safety was lifting certain plates, by reason of the negligence of his employer, as aforesaid, he fell into the shaft and was injured.

The plaintiff prqperly stood, when he put his hook in a hole in a plate, with his face to the wagon and his back to the elevator shaft, and stepped backward as the plate came off from the wagon. The evidence is that other hooks had slipped out of holes in iron plates -under similar circumstances and that this was known to defendant’s foreman. From the side of the wagon to the open shaft was but fifteen feet; plaintiff had a hook in his hand; the end of the plate had been pulled off from the wagon and it is probable that it was less than ten feet from the place where plaintiff was when his hook slipped, to the shaft. Whether this platform, with an open, unprotected elevator shaft but fifteen feet from the wagon, was a reasonably safe place for plaintiff to do the work he was directed to do and in which he was engaged when he was hurt was, we think, a question of fact for the jury, as was the question whether the defendant was guilty of negligence in directing plaintiff to do that work at that place without either placing a barrier before said shaft or notifying plaintiff of the existence of the shaft. The question as to whose duty it was, as between the different contractors, to place a barrier in front of the shaft is immaterial. It was the duty of the defendant to use reasonable care to furnish plaintiff a reasonably safe place in which to work. If the exercise of such reasonable care required defendant to put a barrier in front of the shaft, then his duty to the plaintiff required-him to put up such barrier. If the exercise of reasonable care required defendant to notify plaintiff that there was such open, shaft a few feet behind him, then defendant owed to the plaintiff the duty to give him such notice. Whether the exercise of reasonable care on the part of the defendant required him either to erect such barrier or give such notice was, as has been said, in our opinion a question of fact which should have been submitted to the jury.

It was of course the duty of the plaintiff to exercise reasonable care for his own safety and if the plaintiff -knew, or if the shaft was so plainly visible to the plaintiff that if he had exercised reasonable care he would have known that the shaft was there, then it was not the duty of the defendant to notify him that there was a shaft behind him. Plaintiff had a right to assume that the place where he was ordered to work was reasonably safe and was not bound to make a careful inspection of the place and its surroundings before entering upon such work, but" he was bound to use reasonable care to discover danger and to protect himself against danger. If the shaft had been open on the north, protected only by bars or other barrier, or if the east end of the wall had not extended beyond the east side of the shaft, a different question would be presented. But the shaft was enclosed on the north by a solid brick wall which went up to the ceiling. When plaintiff came from the building upon the platform and went out to the wagon, there was to his right this solid brick wall which extended three feet beyond the east side of the shaft. When he passed around the end of this wall the edge of the shaft was three feet behind him and the wagon was in front of him at the east end of the south platform, and he testified that he walked out to the wagon without turning back or looking behind him and without seeing the shaft. Once at the wagon he had no occasion to turn around. He only pulled the plates far enough to pull them off from the wagon and it was not until he came to a plate nine feet long, that he had occasion to take more than a step or two back from the side of the wagon.

Whether under the facts and circumstances shown by the evidence the exercise of reasonable care on the part of the plaintiff required him to look to his right and rear as he passed around the end of the brick wall, or to turn and look behind him after he had passed east on the south platform, and whether he was guilty of contributory negligence in failing to do either were, we think, questions for the jury.

We do not think that it so clearly appears from the evidence, either that the defendant was not guilty of the negligence alleged in the declaration, or that the plaintiff was guilty of contributory negligence, as to authorize the trial court to direct a verdict for the defendant.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.