Bennett v. G. T. O'Maley Tractor Co.,
| Decision Date | 06 March 1922 |
| Parties | ALBERT F. BENNETT, Respondent, v. G. T. O'MALEY TRACTOR CO., et al., Appellants |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. O. A. Lucas Judge.
AFFIRMED.
Judgment affirmed.
McCanles Kennard & Trusty for respondent.
Morrison Nugent & Wylder and Busby, Sparrow & Patterson for appellants.
--This is a personal injury suit. At the time of his injury plaintiff was employed by defendants as a carpenter, or carpenter's helper. Defendants, desiring to demonstrate to retail dealers in Ford automobiles the operation of certain machinery which should be used in the repair of Ford cars in a first class shop, erected what defendants termed a model shop. This model shop consisted only of frame work of wood, not enclosed. It was eighteen feet long and sixteen feet wide and consisted of three 2x6 uprights on each side. From the floor to the joists was twelve feet. Slightly above the joists and extending lengthwise of this frame was a line shaft on which wooden pulleys were placed which by means of a belt were set in motion by the machinery placed upon the floor below. The wooden pulleys were about four feet in diameter, were in two parts bolted together, and weighed eighty pounds each.
At the time of the injury, February 5, 1920, plaintiff had been working for defendant O'Maley as a carpenter, or carpenter's helper, for about two years. On the day the pulleys were placed on the line shaft, or the day following, plaintiff was called from some other work on which he was engaged and directed by the foreman, Guyunn to aid the carpenter, Dixon, in taking down one of the pulleys.
In order to do this there had been nailed a 2x6 stringer on the uprights on each side of the model shop, about seven feet above the floor, then placed two 2x12 planks crosswise of the shop, with their ends resting on the stringers nailed to the uprights, in the same manner as when the pulleys first were put in place. Plaintiff and Dixon got upon the planks, or both upon the same plank, and while unbolting and removing the pulley, one of the 2x6 stringers which had been nailed to the uprights, and upon which one end of the scaffold plank rested, broke and both plaintiff and Dixon were precipitated to the floor and one-half of the pulley which had been released from the bolts fell, striking plaintiff upon his right leg, ankle and foot, severely injuring him.
The second amended petition, on which the cause went to trial, charges negligence in the following particulars:
(a) In failing to have the scaffold well and safely supported, and that the same was of insufficient width and not sufficiently secured to insure the safety of persons working thereon.
(b) That the floor board of the scaffold upon which plaintiff and Dixon were standing while at work was of insufficient strength and size to support them in safety and that this fact was known to defendants, or by the exercise of ordinary care could have been known to them.
(c) That defendants carelessly and negligently ordered plaintiff to go upon the scaffold, knowing the same to be of insufficient strength.
(d) The adoption and use of an unsafe method by which plaintiff was required to do his work, when a safer method for doing the same was at hand.
The amended answer was, first, a general denial and, as special defenses, charged contributory negligence and assumption of risk, and that the injury was caused by negligence of a fellow servant. The reply was a general denial. Upon the pleadings thus made the cause went to trial to a jury. The verdict was for plaintiff in the sum of $ 4500 and defendant appeals.
Defendants' first assignment of error is directed to instruction No. 1, given at the request of plaintiff, in that it tells the jury that if they find that the stringer which supported one end of the scaffold board on which plaintiff stood was insufficient in strength and size, and that by reason of such insufficiency it was reasonably likely to break and that defendants and their employee Guyunn knew, or by the exercise of ordinary care might have known that the scaffold or stringer was so insufficient in strength and size, and reasonably likely to break and fall, they should find for plaintiff.
Defendants urge that there is no testimony in the case to support the charge that defendants, or their foreman Guyunn, knew, or by the exercise of ordinary care might have known that the stringer was reasonably likely to break.
Plaintiff undertakes to meet this objection by referring to the provisions of section 6802, Revised Statutes 1919:
"All scaffolds or structures used in or for the erection, repairing or taking down of any kind of building shall be well and safely supported, and of sufficient width, and so secured as to insure the safety of persons working thereon, or passing under or about the same, against the falling thereof, or the falling of such materials or articles as may be used, placed or deposited thereon."
The parties hereto are agreed that if the structure in controversy is "any kind of a building" within the meaning of the statute, the controversy on this point is determined. Webster defines the word building as follows: "As now generally used, a fabric or edifice, framed or constructed, designed to stand more or less permanently, and covering a space of land for use as a dwelling, storehouse, factory, shelter for beasts, or some other useful purpose." The word structure is given as a synonym.
In Forbes v. Dunnavant, 198 Mo. 193, 95 S.W. 934, the court in applying this statute, held that it was not intended to inure to the benefit of workingmen engaged in the erection of a scaffold, but for others who might use it after it was constructed, and where a servant was negligent in selecting timber to be used in a scaffold, thus causing an injury to a fellow servant, the master was not held liable.
The testimony shows that while the structure in question was not a building within the sense of being a dwelling, storehouse, or shelter for beasts, it is properly included within the term "other useful purpose." It is in evidence that the structure was intended to be used as a model repair shop, a structure intended for some useful purpose, and in this respect it was a building, within the meaning of the statute.
Defendants contend the statute does not apply because plaintiff aided in the construction of the scaffold. The evidence shows that the scaffold which broke and caused the injury is not the one that was constructed and used when the pulleys were put in place, though similarly constructed, and of the same kind of timbers.
The obvious purpose of the scaffold which broke and caused the injury was for the use of employees in removing one of the wooden pulleys above referred to, and we hold it was a scaffold or structure within the meaning of the statute. [Most v. Goebel Const. Co., 199 Mo.App. 336, 203 S.W. 474.]
There was testimony introduced to the effect that plaintiff had no part in the construction of the scaffold and, therefore, even in the face of evidence to the contrary, that question was one of fact for the jury's determination and was properly included in the instructions. With this holding as to the application of section 6802, it follows that the fact that the scaffold broke and plaintiff was injured made a prima-facie case for the jury,...
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