Baer v. Schaap

• Decision Date: 05 June 1959
• Docket Number: No. 34497,34497
• Parties: Willis BAER, Appellee, v. Otto SCHAAP, d/b/a Speedway Scaffold Company, Appellant, Impleaded with Parsons Construction Company, a corporation, Appellee.
• Court: Nebraska Supreme Court

Page 207

97 N.W.2d 207

168 Neb. 578

Willis BAER, Appellee, v. Otto SCHAAP, d/b/a Speedway Scaffold Company, Appellant Impleaded with Parsons Construction Company, a corporation, Appellee.

No. 34497.

Supreme Court of Nebraska.

June 5, 1959.

Syllabus by the Court

1. In determining the question of whether or not a motion for a directed verdict or for judgment notwithstanding the verdict should be sustained the court is required to consider the evidence in the light most favorable to the plaintiff and to resolve every controverted fact in his favor, and he should have the benefit of every inference that can reasonably be deduced therefrom.

2. Negligence is the omission to do something which a reasonable and prudent man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a reasonable, prudent man would not do; want of that degree of care that an ordinarily prudent person would have exercised under the same circumstances.

3. Where different minds may draw different inferences or conclusions from the facts proved, or if there is a conflict in the evidence, the matter at issue must be submitted to the jury to be determined.

4. It is not the province of this court in reviewing the record in an action at law to resolve conflicts in or weigh the evidence.

5. It is presumed in such an action that controverted facts were decided by the jury in favor of the successful party, and its finding based on conflicting evidence will not be disturbed unless clearly wrong.

6. If contributory negligence is relied upon by defendant as an affirmative defense, the burden is upon him to prove it by a preponderance of the evidence pertinent to that issue contained in the whole record, except insofar as the same may appear in evidence adduced for plaintiff.

7. A supplier or bailor of a scaffold, who knows or has reason to know that it is likely to be dangerous when used and which is rented as safe for use in good faith reliance upon the supplier's professions or representations, is subject to liability to the bailee or others, whom the supplier or bailor should expect to work upon the scaffold, for damages proximately caused by the failure to exercise reasonable and due care to supply the scaffold in a condition safe for use.

8. Under the provisions of section 48-425, R.R.S.1943, when a scaffold is constructed by a supplier or bailor and rented to a bailee to be used in repairing a building, the scaffold must be safe, suitable, and proper for the purpose for which it is used. Generally, the bailor is liable if it does not meet that requirement.

9. If a statute commands or prohibits certain things, the person for whose benefit the statute was enacted has a remedy under the statute. It is not necessary to the maintenance of such an action that the statute in terms expressly imposes a civil liability.

10. Statutes requiring protective devices, such as scaffolding statutes, impose a mandatory and affirmative duty upon the supplier of such property. A failure to perform a mandatory duty so enjoined is negligence per se, and if any person to whom the duty is owed, or for whose protection the statute is enacted, is injured in consequence of such violation, a case is made.

11. If an examination of all the instructions given by the trial court discloses that they fairly and correctly state the law applicable under the evidence, error cannot be predicated thereon.

12. Where a petition charges specific grounds of negligence as a basis for recovery, and also contains a general allegation of negligence on the part of the defendant in causing the damage, and where no motion for a more specific statement is filed, it is competent under the general allegation of negligence to offer evidence of any fact which contributed to the injury.

13. A verdict may be set aside as excessive only when it is so clearly exorbitant as to indicate that it was the result of passion, prejudice, mistake, or some means not apparent in the record, or that it is clear that the jury disregarded the evidence or controlling rules of law.

Webb, Kelley, Green & Byam, Omaha, for appellant.

Schrempp & Lathrop, Omaha, Rice & Adams, Bellevue, for Baer.

O'Dowd & Swift, Crossman, Barton & Quinlan, Omaha, for Parsons Constr. Co.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action at law brought in the district court for Douglas County by Willis Baer, hereafter referred to as the plaintiff, against Otto Schaap, doing business as Speedway Scaffold Company, hereafter referred to as the defendant, and Parsons Construction Company, hereafter referred as Parsons. The Parsons Construction Company made payments to the plaintiff under the provisions of the Nebraska Workmen's Compensation Act for injuries he sustained while in the course of his employment and was made a defendant in this action as required by the provisions of that act. The purpose of this action was to recover damages from the defendant for injuries sustained by the plaintiff when he fell from a scaffold constructed by the defendant. The case was tried to a jury, resulting in a verdict for the plaintiff in the amount of $20,000. The defendant moved for dismissal of the plaintiff's petition and for a directed verdict at the close of the plaintiff's evidence and at the close of all of the evidence. These motions were overruled. The defendant filed a motion for judgment notwithstanding the verdict and for a new trial. Both of these motions were overruled, and the defendant perfected appeal to this court.

The plaintiff's petition alleged that he was a bricklayer; that on or about September 14, 1954, he was employed by Parsons as a construction foreman in charge of certain alterations to be made on a building located on the southeast corner of the intersection of Seventeenth and Farnam Streets in Omaha; that pursuant to a contract with Parsons, the defendant, through his agents, servants, and employees, had erected, set in place, and rented to Parsons certain scaffolding around the outside of the building so that the plaintiff and his crew, and all employees of Parsons, might have access to the upper portion of the building; that the scaffolding thus erected by the defendant was erected in such a careless and negligent manner that one of the planks thereon gave way and thereby dropped the plaintiff to the sidewalk below, a distance of approximately 40 feet; that as a direct and proximate result of such negligence and carelessness the plaintiff suffered severe injuries; and that the scaffolding erected as aforesaid was not erected in a safe, suitable, and proper manner as required by section 48-425, R.R.S.1943.

The amended answer of the defendant denied that he was guilty of any negligence, and alleged that on or about August 23, 1954, pursuant to an order of and rental agreement with Parsons, and subject to the usual rental conditions existing between the defendant and Parsons, this defendant caused a steel scaffold to be erected around the building specified, in accordance with the specifications of Parsons; that the scaffolding was erected in a safe, suitable, and proper manner; that after the scaffolding was completely erected it was inspected and accepted by Parsons; that Parsons assumed and thereafter maintain control, supervision, and maintenance of the scaffolding for the duration of the particular construction in which Parons was engaged; that the plaintiff was the foreman of and in general supervision over the construction job being done by Parsons from and after August 23, 1954, and up to and including September 14, 1954; that the scaffolding was in the possession and control of the plaintiff; and that if any dangerous or defective condition existed, the plaintiff knew, or should have known, of its existence and thereby assumed any risk incident to the use of the scaffold. The defendant further alleged that after the scaffolding was completely erected by him and inspected and accepted by Parsons, alterations were made to the scaffolding by employees of Parsons working under the supervision of the plaintiff.

The plaintiff's reply to the amended answer of the defendant denied each and every allegation contained therein.

The defendant assigns as error the following: The trial court erred in denying defendant's motions to dismiss the plaintiff's petition and in denying the defendant's motions for directed verdict, also defendant's motion for judgment notwithstanding the verdict; the verdict and judgment were not supported by the evidence; the trial court erred in giving instruction No. 8 on its own motion; the trial court denied the defendant his right to have the jury instructed upon his theory of the case by refusing defendant's requested instructions Nos. 4, 8, and 9; and the verdict and judgment were excessive, not supported by the evidence, and, in part, based upon instruction No. 15 given by the trial court, which instruction was erroneous.

The record discloses that the plaintiff had been engaged in general construction work for 30 years; that he had been a journeyman bricklayer since 1948; that he was 46 years of age at the time of the accident; that he had been a foreman for about a year or a year and a half with supervisory duties; and that he was acting in such capacity at the time of the accident while working for Parsons on the Patterson Building at Seventeenth and Farnam Streets in Omaha. The scaffolding around the building was erected before August 23, 1954, and when Parsons took over the job on August 24 or 25, the scaffolding was complete and ready for the plaintiff to go to work. Parsons had contracted to perform a portion of a remodeling job on the Patterson Building. This work consisted of replacing the cornice at the top of the 3-story building. Parsons ordered the necessary scaffolding to be erected by the defendant. The...