Brady v. Prettyman

Opinion by

Mr. Justice McCollum,

While Charles Brady, with Hoffner and Rowan, were upon a scaffold erected by direction of defendants, it gave way and they, with it, fell to the, ground. The injuries which Brady received by his fall resulted in his death three days after the occurrence, and. this suit was brought by his'widow to recover damages therefor. On the trial of the case evidence was admitted to show that the scaffold was not properly constructed, and this was answered by evidence showing that the scaffold was built for the use of the cornice men, and that it was constructed in the usual and ordinary way that scaffolds for such purposes are built. It is not necessary, however, to consider this evidence in detail, because the material and controlling question is whether Brady was lawfully upon the scaffold at the time it gave way. It is conceded that he was not an employee of the defendants, and that they were not aware of his presence upon the scaffold before or at the time of its fall. He was at no time in their service, nor authorized by his employers to go upon the scaffold. His presence there was voluntary, and an unwarranted act on his part. He was in the service of Simpson and Murray, who had a contract with the defendants to do the slag roofing and the tin work to complete sixty-six houses. The work that Brady was employed to do had no connection with the work for which the scaffold was built. The work done by the cornice men was entirely distinct from the work done by the men who did the slag roofing and tin work under the contract of Simpson and Murray with the defendants. Brady was not called to the scaffold in the performance of any work under said contract, and strictly speaking he had no right or business there. Upon the admitted and established facts in the case the plaintiff was not entitled to recover. The assignment of error is therefore overruled and the judgment entered by the court below is affirmed.