Chambers v. American Tin Plate Co.

• Citation: 129 F. 561
• Decision Date: 04 May 1904
• Docket Number: 1,243.
• Parties: CHAMBERS v. AMERICAN TIN PLATE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

129 F. 561

CHAMBERS v. AMERICAN TIN PLATE CO.

No. 1,243.

United States Court of Appeals, Sixth Circuit.

May 4, 1904

Chas Fillus and Murray & Koonce, for plaintiff in error.

T. H Gilmer and E. K. Wilcox, for defendant in error.

Before LURTON and RICHARDS, Circuit Judges, and CLARK, District Judge.

LURTON Circuit Judge.

The defendant was erecting for its own use a large brick mill. It supplied the materials and hired masons and carpenters by the day, and the work was carried on under the general direction of a superintendent. A scaffolding was constructed out of material furnished by the defendants for the use of the masons in the prosecution of their work. This scaffold fell while the plaintiff was standing thereon engaged in laying brick. The petition charges that the fall was due to defective and unfit materials and also to negligent construction. The falling of a staging or scaffold without any apparent cause may well be regarded as prima facie evidence of negligence on the part of the person who had provided it. Stewart v.

Ferguson 164 N.Y. 553, 58 N.E. 662. But in this case there was evidence tending to show that its fall was due to negligent construction. There was also evidence showing that the materials furnished by the defendant for the construction of this scaffold was hemlock lumber, one inch thick, full of knots and knotholes. There was no expert evidence as to the fitness of such materials for such a purpose, though there was evidence of the load which was likely to be upon it, and that it fell under a less load than ordinarily expected. There was also evidence that some of the planks were found broken 'crosswise,' as well as split. We are not sure that expert evidence was essential, under such facts, to justify a submission of the question of the quality and fitness of such materials for such a purpose. The common experience and knowledge of the strength of such material would seem to furnish a fair standard for an intelligent judgment upon such a question. Inasmuch, however, as there must be a reversal of the case upon another ground, we express no opinion upon the ruling of the trial judge in respect to this aspect of the case.

The evidence tended to show that the masons did not undertake or assume to construct this staging, and that neither the plaintiff nor any of those workmen for whose use it was constructed had anything whatever to do with its building or the selection of materials therefor. Upon the other hand there was evidence tending to show that the defendants assumed and undertook to construct same, and that they had same made by one John Frampton, a boss carpenter in their employment, and that Frampton was in no way aided or assisted by other than his carpenter helpers. There was also evidence tending to show that when the scaffold was finished the plaintiff and his fellow masons were directed by the foreman of the bricklayers to go upon and continue their work upon same. The only question, then, is whether the relation of the parties is such that the defendants are liable for the negligence of Frampton in the construction of the staging so made. There is a line of cases holding that when the employer furnishes suitable materials, and the workmen themselves construct a scaffolding or staging as a part of the work which they undertake to perform, and build it according to their own judgment, that the employer is not liable for an injury to one of their own number, sustained in the subsequent use of the structure, in consequence of negligence in construction. The erection and re-erection of such a staging as the work requiring its use progresses, being itself a part of the very work which the employes are to do, takes it without the general rule in respect to the duty of the master to exercise reasonable care to furnish a reasonably safe place and appliances. Am. & Eng. Ency. Law, vol. 20, p. 82; Kimmer v. Weber, 151 N.Y. 417, 45 N.E. 860, 56 Am.St.Rep. 630; Armour v. Hahn, 111 U.S. 313, 4 Sup.Ct. 433, 28 L.Ed. 440; Killea v. Faxon, 125 Mass. 485. But the rule is quite otherwise if the employer himself undertake to furnish such scaffolding for the men who are to work thereon. In such case the duty is one of those positive duties of the master toward the servant which cannot be discharged by the substitution of a competent agent. The act or service to be done is that of furnishing a reasonably safe place or appliance, and negligence in the doing of such a service is the negligence of the master, without regard to the rank of different employes. Connor v. Pioneer Co. (C.C.) 29 F. 629; McNamara v. McDonough, 102 Cal. 575, 36 P. 941; Coughtry v. Globe Woolen Co., 56 N.Y. 124, 15 Am.Rep. 387; Kimmer V. Weber, 151 N.Y. 417, 45 N.E. 860, 56 Am.St.Rep. 630; Bowen v. The C.B. & K.C. Ry., 95 Mo. 268, 8 S.W. 230; Mulchey v. Methodist Society, 125 Mass. 487; C. & R. Co. v. Maroney, 170 Ill. 520, 48 N.E. 953, 62 Am.St.Rep. 396; Behm v. Armour, 58 Wis. 1, 15 N.W. 806; Austin Mfg. Co. v. Johnson, 89 F. 677, 32 C.C.A. 399; Am. & Eng. Ency. Law, vol. 20, p. 81; Labatt, Master & Servant, 614 et seq. In Killea v. Faxon, 125 Mass. 485, it appeared that the staging had been made by direction of the master or his superintendent by a carpenter in his employment, and that it subsequently gave way when being used by a...