Boettler v. Tumlinson
| Decision Date | 02 December 1903 |
| Parties | BOETTLER v. TUMLINSON.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Court of Appeals |
P. H. Swearingen, for plaintiff in error. J. D. Crenshaw, for defendant in error.
R. H. Tumlinson, by his guardian, brought this suit against L. P. Boettler to recover damages for personal injuries alleged to have been inflicted by the latter's negligence. The defendant answered by pleas of not guilty, contributory negligence, and assumed risk. The trial resulted in a verdict and judgment in favor of plaintiff for $4,000.
It is shown by the evidence that on the 14th day of September, 1900, plaintiff as a carpenter was in the employ of defendant as a contractor for the erection of the market house of the city of San Antonio. That while plaintiff was at work on the outside of the building the scaffold on which he was standing gave way, and he fell and was seriously injured. The scaffold was built on Wednesday by plaintiff and a fellow servant named Smith, under the directions of Scott Boaz, their foreman. It was constructed in this manner: Planks 2 inches thick, 12 inches wide, and 16 feet long were projected through windows from the inside about 4 feet outside of the building, one of such planks through each window and resting on its sill. On the inside of the building each plank was laid on a trestle, the end of the plank extending beyond about 12 inches. The trestles were about 18 feet high, and stood on the floor about 10 feet from the wall of the building. The outer end of each projecting plank was supported by an angle brace, which consisted of a strip of plank about 7 feet long, one end resting upon a ledge of the outer wall, and the other nailed underneath the plank about a foot from the end of it. All the planks, except one, were toe-nailed to the top of the trestle with sixteenpenny nails, the other one with eightpenny nails. Boards an inch thick were laid loose upon the outside projections for the workmen to stand on. This completed the scaffold. When Smith was toe-nailing the planks to the trestling with the sixteenpenny nails, and had so fastened all except one, Boaz told him that eightpenny nails were sufficient for the purpose, and that he would not be able to tear the scaffolding apart without injuring the trestles if toe-nailed with sixteenpenny nails. The plaintiff was on the outside of the building adjusting the angle braces when Smith was instructed by Boaz to use eightpenny nails in fastening the plank to the trestles, and did not hear such instructions given, and was ignorant of the fact that eightpennies were used in fastening any of the planks to the trestles. It was understood between him and Smith when they began the work that sixteenpenny nails would be used for that purpose, and, until after the accident, he thought the scaffold had been constructed in pursuance to such understanding. On Friday after the Wednesday the scaffold was constructed, the plaintiff was at work outside the building, standing on the end of the scaffold that rested on the plank fastened to the trestle with eightpenny nails, when the scaffold gave way beneath him, causing his fall and consequent injuries.
The evidence is uncontroverted that the eightpenny nails with which the plank was fastened were drawn from the trestling. And it is reasonably sufficient to show that eightpenny nails were insufficient to securely hold the projecting planks to the trestles, and that, if Boaz had exercised ordinary care, mechanical knowledge, and skill in and for the construction of a scaffold reasonably safe for the employés under his control to do their work upon, he would have known that such fastening with eightpenny nails would render the scaffold insecure and unsafe for the workmen. Therefore we conclude that the defendant was, through its vice principal, Boaz, guilty of negligence in having the plank which came loose from the trestle fastened thereto with eightpenny nails, and that such negligence was the proximate cause of plaintiff's injuries.
The evidence upon the question of negligence is conflicting, and our conclusion of its proof is in observance of the well-established principle that the most favorable inference the evidence will authorize should be deduced in support of the verdict, for upon the whole evidence we cannot say there is no reason for ordinary minds to differ as to the conclusion of negligence vel non. Choate v. Railway, 90 Tex. 82, 36 S. W. 247, 37 S. W. 319; Lee v. Railway, 89 Tex. 583, 36 S. W. 63; Railway v. Gasscamp, 69 Tex. 547, 7 S. W. 227. That we would, if it were left to us to determine the question from the evidence as it appears in the record, have reached a different conclusion, does not authorize us to vacate the verdict. As long as the jury system prevails under a Constitution which guaranties the right of a trial under it shall be held inviolate, and makes a jury the exclusive judges of the credibility of the witnesses and the weight to be given to their testimony, their decision of a disputed question of fact, when not impugned by passion, fraud, or prejudice, when there is testimony reasonably sufficient to support it, must stand against attacks made against it in an appellate court, though vigorous enough to shake the belief of the judges in the righteousness of the verdict. This much in regard to our conclusion of the defendant's negligence, which disposes of the assignment of error, urged by defendant's counsel with so much force and ability, that the verdict is unsupported by the evidence.
The allegation of negligence in plaintiff's petition is as follows: "That plaintiff was employed by defendant to do work on said house, and that he was ordered by defendant to go upon the scaffold at the south side of the second story of said building to do some carpenter work on the eaves of said house; that said scaffold was negligently and carelessly constructed, in that the inner ends of the scantling or plates, which projected out of the windows, and which supported the planks on which plaintiff had to stand and walk while doing said work, were not securely fastened; that said scantling or plates were so fastened by the orders of defendant, and without the knowledge of plaintiff; that defendant knew that said scaffolding was thereby...
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