Cauldwell v. Bingham & Shelley Co.
| Decision Date | 20 March 1917 |
| Citation | 84 Or. 257,163 P. 827 |
| Court | Oregon Supreme Court |
| Parties | CAULDWELL v. BINGHAM & SHELLEY CO. ET AL. |
Department 2.
Appeal from Circuit Court, Multnomah County; George R. Bagley Judge.
Action by Isabella Cauldwell against the Bingham & Shelley Company and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.
See also, 155 P. 190.
This is an action for damages brought under the Employers' Liability Act by Isabella Cauldwell, the widow of Thomas James Cauldwell, deceased, against Bingham & Shelley Company a corporation, Thomas Muir, and Joseph Clossett, for the wrongful death of her husband, which occurred by reason of the alleged negligence of the defendants in the construction of a building owned by Joseph Clossett. The latter died soon after he appeared in the case, and the action is prosecuted against the other defendants only. At the close of all the evidence the trial court directed a verdict, and entered a judgment in favor of the defendants, and plaintiff appeals.
The complaint alleges in part as follows: That on April 11, 1914 the defendants were jointly engaged in the construction and erection of a certain building on Twelfth Street North, in the city of Portland, Or.; that each of them had certain parts of the erection of the structure, but that they all maintained and neglected to cover the floor opening complained of; that on the above date and for some time prior thereto, Thomas J. Cauldwell, deceased, was employed by defendant Muir as a carpenter in the erection of the building which had proceeded to the extent that there had been installed therein a ground floor about 11 feet above the concrete basement floor; that in the joint construction of said building the defendants jointly and severally carelessly and negligently, permitted a certain floor opening about 30 inches wide across one side of the building to be wholly uncovered and unprotected, which caused a great risk to the defendants' employé; that by reason of this Thomas J. Cauldwell, deceased, while working on the floor with a canthook, which slipped, was caused to step back into the floor opening so maintained uncovered and unprotected, and fell through upon the concrete floor of the basement, whereby he suffered such severe injuries that he died about 12 hours thereafter. Bingham & Shelley Company filed an answer to the complaint denying all the allegations, and alleging, among other things, that Joseph Clossett was the owner of the property and had adopted plans and specifications for the erection of a building on the lots; that he had supervised its construction, had employed the defendant Bingham & Shelley Company to act as immediate foreman and superintendent, and agreed to pay it the sum of 10 per cent. of the cost of the building; that this company was merely acting as the agent of Joseph Clossett, and was not the owner, contractor, subcontractor, corporation, or person engaged in the construction of the said building as contemplated by the Employers' Liability Act.
Defendant Muir answered, alleging in substance that defendant Bingham & Shelley Company was engaged by Joseph Clossett in the erection of the building; that it employed Thomas J. Cauldwell as a carpenter, and Thomas Muir was employed by it merely as a superintendent or foreman of the carpenter work; that he was in no manner responsible for the condition of the work except as such superintendent or foreman. Muir further pleaded assumption of risk, contributory negligence, and the negligence of fellow servants. The replies put in issue the new matter of the answers.
In addition to the general supervision of the construction of the building and the letting of the contracts for different parts of the work, purchasing materials, etc., the masonry of the stable was the special work of Bingham & Shelley Company. It had worked with Muir in this manner on other structures under contracts entered into in the customary way. Other work on the building, such as painting and plumbing, was let by contracts made by Bingham & Shelley Company for Clossett.
Linklater, Muir's foreman, testified to the effect that some time before the accident he started to lay the permanent floor which was to be of 1X6, tongue and groove, which was then ready for use, but that Bingham said not to do so for the reason above stated; that he intended to cover the hole in the floor as soon as the trestles were taken down, but had not had time to do so; and that he did not consider the opening dangerous.
Arthur I. Moulton, of Portland (H. E. Hall and P. H. Murdoch, both of Portland, on the brief), for appellant. C. A. Sheppard, of Portland (Sheppard & Brock and Stapleton & Conley, all of Portland, on the brief), for respondent Bingham & Shelley Company. Coy Burnett, of Portland, for respondent Muir.
BEAN, J. (after stating the facts as above).
There is but little controversy in regard to the facts which the evidence tended to show. Mr. Muir was called as a witness by plaintiff, and Mr. Bingham, president of the Bingham & Shelley Company, was a witness on behalf of that defendant. It appears that Mr. Clossett, desiring to have Bingham & Shelley Company construct this building, a large one-story stable, and having confidence in the ability and fairness of that concern, did not fix a contract price, as it was uncertain how deep it would be necessary to excavate for a concrete basement, and also some old lumber belonging to him was to be used. He therefore arranged with this company to construct the building, he to pay the total cost and 10 per cent. additional for its services in superintending the construction and hiring and paying for the labor and materials, etc. There was no written contract for the work.
On account of the kind of lumber to be used Bingham & Shelley Company agreed that Mr. Muir should take care of the carpenter work for a flat price of $150, over and above the cost of the labor and materials. Linklater was foreman for Muir, and Cauldwell, who had worked for the latter at different times as a carpenter, was employed and paid by him to assist in that kind of work upon the building. About a week before the accident complained of Linklater proposed to lay a permanent floor on the ground floor joists which were then in place. Mr. Bingham, who represented the Bingham & Shelley Company, informed him that this was not desired then, as there was no roof on the barn, and he wished to go ahead with other work, and it was desired to leave room for more light in the basement for a time. Bingham provided 2X12 planks for a temporary floor which he had laid to within about 4 feet of the west side wall next to which one plank was put, leaving an opening 36X19 inches on the side between the floor timbers over which were placed bricklayers' trestles 4 feet 9 inches high, extending out from the wall 7 or 8 feet. On these were planks, and as the height of the wall progressed other trestles were put on top of the first tier of trestles. This side wall had been constructed at the time of the accident, and a short time before the trestles had been removed under the direction of Bingham except near the end of the building. The apertures mentioned were not covered nor inclosed until after the accident. The decedent was at work with a colaborer on the temporary floor about 8 feet from the opening, and, in attempting to turn a large timber with the canthook which gave way, he stumbled backwards and fell through the aperture to the concrete floor below about 9 or 10 feet, causing injuries from which he...
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