Brauner v. Leutz
| Citation | 169 S.W.2d 4,293 Ky. 406 |
| Parties | BRAUNER v. LEUTZ. |
| Decision Date | 26 February 1943 |
| Court | Court of Appeals of Kentucky |
Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division; William J. Field, Judge.
Action by John Brauner against Joseph N. Leutz, for injuries sustained when a scaffold on which plaintiff was standing collapsed. Defendant's motion for peremptory instruction was sustained, judgment of dismissal was entered, and plaintiff appeals.
Affirmed.
Woodward Dawson & Hobson, and Leibson & Leibson, all of Louisville for appellant.
Robert L. Page, of Louisville, for appellee.
On and prior to July 18, 1940, appellee and defendant below, Joseph N. Leutz, was a resident of Louisville, Kentucky, and a building contractor; whilst appellant and plaintiff below, John Brauner, was a painter, and took contracts for such work. A Mrs. Walker, residing on Walker's Lane, in Jefferson County, concluded to erect a residence on her property, to be veneered with brick, and employed an architect to draw plans therefor, with power and authority to let contracts for its construction. Defendant obtained the contract for the necessary carpenter's work for the building; whilst plaintiff obtained the contract for the painting of it.
On July 18, 1940, defendant, with one of his employed servants, was engaged in putting on the cornice on one side of the building and had constructed a scaffold upon which to stand while engaged in that work. The scaffold was attached to the sheeting on that side of the building against which the veneered brick outside surface was to be placed. Plaintiff had theretofore been engaged in doing some painting on the inside of the building, but he concluded on the morning of that day to prime the cornice behind the carpenters as they finished it, and he asked and obtained their permission to use the scaffold upon which to stand while doing his priming. Shortly after entering upon the scaffold it collapsed by pulling loose from the wall to which it was attached, thereby precipitating plaintiff and the carpenters thereon to the ground, resulting in more or less severe injuries sustained by plaintiff.
On July 15, 1941 (lacking only three days of one year from the time of the accident, after which limitation would accrue) plaintiff filed this action in the Jefferson circuit court against defendant to recover damages for his injuries, which he placed at $5,000. The negligence charged in the petition as amended was, that defendant was negligent by failing to secure the attachment of the scaffold to the wall of the house, causing it to pull loose and fall, which was the proximate cause of plaintiff's injuries.
The court overruled defendant's demurrer to the petition as amended, followed by his answer containing in its first paragraph a denial of the charges made in the petition; in its second paragraph a plea of contributory negligence was made; and in the third one defendant averred that the scaffold was erected solely for the use and benefit of himself and his employes in doing the carpenters' work on the building, and that plaintiff entered upon the scaffold at his own request and volition, and for his sole benefit as an independent contractor to do the painting on the building, and with which defendant had nothing to do, nor did he derive any benefit therefrom. A reply completed the issues, and upon trial after evidence heard the court sustained defendant's motion for a peremptory instruction in his favor, which was followed by a verdict to that effect, and a judgment dismissing the petition was entered, to reverse which plaintiff prosecutes this appeal.
The testimony showed without contradiction that the attachment of the scaffold to the wall of the building was made and done in the usual way by the use of nails of the proper length driven into the studdings to which the sheeting was nailed. Nevertheless the scaffold, with the additional weight of plaintiff on it, pulled loose and fell, as described, and the doctrine of res ipsa loquitur is relied on by plaintiff's counsel to establish the negligence relied on. However, under our conception of the case, we need devote neither time nor space in determining whether the facts justify the application of that doctrine, since if it should be admitted that the facts called for its application the utmost effect would be the establishment of negligence on the part of defendant. But before negligence may give rise to a cause of action in favor of the one who is injured thereby there should first exist a duty on the part of the negligent one toward the injured one before liability attaches therefor, since actionable negligence is based upon the violation of duty owed to the injured person by the negligent one. Therefore, the inquiry in this case is--whether or not defendant at the time of plaintiff's injury was under any duty to the latter to exercise any care for his safety, or to provide him a reasonably safe place to work in the performance of his wholly independent painting contract?
Plaintiff's counsel seek to sustain their client's right to maintain the action, under the facts we have narrated, upon the ground of prevailing custom or usage, for independent contractors to appropriate the facilities of other independent contractors on the same building, and that because thereof defendant owed plaintiff the duty to construct and maintain the scaffold in a reasonably safe condition for his occupancy as a licensee...
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Chesser v. Louisville Country Club
...have been anticipated, ordinarily a minor trespasser occupies the same position as an adult. 65 C.J.S. Negligence § 27; Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4; Louisville & N. R. Co. v. Spence's Adm'r, Ky., 282 S.W.2d 826. The evidence in this record, regarded most favorably for the pl......
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Zebell v. Saufnauer
...opposed to the invitee-invitor distinction and imposes a lesser standard of liability as a result of this distinction. In Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4, a painter was injured when the scaffold on which he was standing collapsed after he had asked permission from the contractor......
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A.L. Dodd Trucking Service v. Ramey
... ... endangering his safety. Kentucky & W.Va. Power Co. v ... Stacy, 291 Ky. 325, 164 S.W.2d 537; Brauner v ... Lentz, 293 Ky. 406, 169 S.W.2d 4. But his status may be ... tranformed or converted into that of an invitee by actual ... knowledge of his ... ...
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Olivier v. Snowden
...being the owner of the scaffold, occupied a superior position with respect to it.' Another case which is persuasive is Brauner v. Leutz, 293 Ky. 406, 169 S.W.2d 4 (1943). This case was cited with approval in Arthur v. Standard Engineering Company, supra. The facts in Brauner v. Leutz were t......