Bright v. Barnett & Record Co.

• Citation: 88 Wis. 299,60 N.W. 418
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 02 October 1894
• Parties: BRIGHT v. BARNETT & RECORD CO.

88 Wis. 299

60 N.W. 418

BRIGHT

v.BARNETT & RECORD CO.

Supreme Court of Wisconsin.

Oct. 2, 1894.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by M. S. Bright, administrator, against the Barnett & Record Company, for damages for the death of Benjamin Thompkins, through negligence of the company. Judgment for plaintiff, and defendant appeals. Affirmed.Catlin & Butler and Carl C. Pope, for appellant.

Crownhart, Owen & Foley, for respondent, who cited, on the question of implied invitation: Dowd v. Railway Co., 54 N. W. 24, 84 Wis. 113, 114;Mulchey v. Society, 125 Mass. 487;Cahill v. Layton, 16 N. W. 1, 57 Wis. 613;Powers v. Harlow, 19 N. W. 257, 53 Mich. 507;Hayes v. Iron Co., 23 N. W. 225, 150 Mass. 457;Bennett v. Railroad Co., 102 U. S. 580; Heaven v. Pender, 11 Q. B. Div. 503; Railroad Co. v. Griffin, 100 Ind. 221;Sweeny v. Railroad Co., 10 Allen, 368, 87 Am. Dec. 644, and note.

ORTON, C. J.

This action is brought by the administrator of the estate of Benjamin Thompkins, deceased, who was killed through the negligence of the defendant company, to recover damages for the benefit of his father and mother, who were dependent upon the deceased for their support. The deceased was 31 years of age and unmarried, and his father and mother were about of the age of 55 years. The defendant was engaged in building an elevator for grain, in the city of Superior, Wis., and contracted with the General Fire Extinguishing Company to construct, fit, and place therein certain fire extinguishing apparatus and appliances, and the defendant was to furnish the staging that the men employed by the General Fire Extinguishing Company might need in performing said work. Said company needed a staging or a plank walk of a single plank, about 16 feet long, 12 or 14 inches wide, and 2 inches thick, thrown across the bins, about 70 feet from the bottom, or above the floor, on which the employés of said company might stand or walk across, back and forth, while prosecuting said work. The defendant contracted and undertook to make and furnish such staging or walk across one of said bins, strongly fastened at each end on cleats on the sides of the bin, on which the deceased and other employés of said company could safely stand or walk while engaged in said work. This particular plank had a large knot, extending nearly across it, about five feet from one end. In prosecuting his work, it was necessary for the deceased to walk across said plank; and on the 10th day of August, 1893, while he was attempting to walk across the same, the said plank broke at said knot, and precipitated him to the lower floor of the bin, and killed him instantly. It was so dark in the bin at the time that the deceased could not have seen such defect in the plank, and had no notice or warning of its defective and dangerous character or condition. Many of the planks used in similar staging in the bins of the elevator had been inspected and tested, but this plank had not been inspected or tested before it was used in this way. The learned counsel of the appellant say in their brief: “By some means, a plank with a bad knot, which could readily be detected by the eyesight, was put into the staging by some employé of the appellant, it is supposed.” And again they say: “And it was very dark in the elevator at the time of the accident. Could not see anything plainly, only the outline of things generally, and could not see the knot in the plank before referred to when looking down upon it.” James Gunning, a witness on behalf of the plaintiff, testified that “he was a carpenter, and was helping the defendant put in these walks and staging. Mr. Clapp was his foreman. He was working for the defendant. He gave him directions how the planks were to go in there. Told him they were for men to walk on in putting up the pipes. He got all his instructions from Mr. Clapp. There were different ones worked with him,--four right along, including himself. There were two fellows that worked in where the accident happened. He thought they were just common laboring men. He does not know who put in the particular plank in question in third bin.” M. D. Clapp, referred to above, as a witness on behalf of the defendant, testified “that he was in the employ of the defendant August 10, 1893, at Superior, Wisconsin, on general elevator work. [Witness examines broken plank] and swears it was never tested. He instructed those common street laborers to make this test of the plank, and saw two-thirds of them tested, at the least calculation. The broken plank never passed the test. He knew to put in a plank like that meant practically to murder a man.” The testimony very clearly shows that the fire extinguishing company gave direction how and where the walks and staging were to be built, but had no supervision of the work or materials used in their construction. The defendant company, according to their contract, undertook to furnish the materials and construct and place the walks and staging in a safe and suitable manner, for the use of the deceased and other employés of the fire extinguishing company, to stand on and to walk across while doing their work.

1. On the question of the liability of the defendant to the plaintiff, there was no conflict in the evidence. It was all one way. To say the least, the defendant was guilty of the want of ordinary care in furnishing such a grossly defective plank for staging for the deceased to stand and walk on while doing his work. The circuit court was therefore justified in instructing the jury “that the defendant here is responsible in this case, as a matter of law, unless the deceased himself is chargeable with contributory negligence.” The first position taken by the learned counsel of the appellant in their brief is that the appellant owed the deceased no legal duty arising from contract or otherwise. This is no doubt the general rule. “The liability of the builder or manufacturer for such a defect is in general only to the person with whom he contracted.” But this case belongs with a class of cases that can be sustained outside of this general principle, and may rest on two well-established principles of law: (1) The defendant, in furnishing this staging for the use of the employés of the fire extinguishing company, on which they might stand or walk in doing their work, had, in effect, invited and induced the deceased to walk on it while doing his work, and was liable to him if he suffered injury from its defective condition, caused by negligence in its construction. The case may rest on this simple implied invitation. Gilbert v. Nagle, 118 Mass. 278;Elliott v. Pray, 10 Allen, 378; Pickard v. Smith, 10 C. B. (N. S.) 470; Indermaur v. Dames, L. R. 1 C. P. 274; Holmes v. Railway Co., L. R. 4 Exch. 254; Coughtry v. Woolen Co., 56 N. Y. 124;Mulchey v. Society, 125 Mass. 487. This last case is closely in point. The Methodist Religious Society employed Needham to paint inside of its church building, and agreed to erect and remove the staging on which the employés of Needham could stand while doing their work. The plaintiff was one of Needham's employés, and, while standing on the staging put up for painting the ceiling of the church, it broke from under him, and he fell and was injured. The same ground was taken in that case as in this,--that there was no privity or contract relation between the plaintiff and the society, and that the society owed the plaintiff no duty. The staging was defectively constructed, through the negligence of the society and its servants. The plaintiff recovered, and in the supreme judicial court the exceptions were overruled. The case rested on this principle of implied invitation,--that the society invited and induced the plaintiff to stand upon the staging, to his injury, occasioned by its own negligence. (2) Such liability may rest upon the duty which the law imposes on every one to avoid acts imminently dangerous to the lives...