Doby v. Layton

• Decision Date: 08 November 1923
• Docket Number: 7 Div. 413.
• Citation: 98 So. 9,210 Ala. 303
• Parties: DOBY v. LAYTON.
• Court: Alabama Supreme Court

98 So. 9

210 Ala. 303

DOBY v. LAYTON.

7 Div. 413.

Supreme Court of Alabama

November 8, 1923

Appeal from Circuit Court, St. Clair County; Woodson J. Martin Judge.

Action for damages by J. R. Layton against R. E. L. Doby. From a judgment for plaintiff, defendant appeals. Affirmed.

M. M Smith, F. B. Embrey, and Starnes & Starnes, all of Pell City for appellant.

Joel B Brown, of Cullman, for appellee.

BOULDIN J.

The suit is by an employee or servant against his employer or master to recover damages for personal injury. The case went to the jury on counts 2, 3, and 4 of the complaint and plea of the general issue. All counts ascribe the injury to the falling of a scaffold on which plaintiff was standing while in the performance of his duties in the erection of a building.

Count 2 charges the injury to the negligence of one Savage, intrusted with superintendence "over said work and over plaintiff," and avers that "said Savage, while in the exercise of such superintendence. *** negligently caused or allowed said scaffold to fall." (Italics supplied.)

Count 3 is in same form, except the superintendence and negligence are charged to R. E. L. Doby, the defendant.

The original complaint was against R. E. L. Doby and Mary L. Doby. By amendment Mary L. Doby was stricken out, leaving the count in the form indicated. It results that the count charges the injury to the negligence of the employer while exercising a personal superintendence over the work and workmen; alleges that in such dual relation defendant "negligently caused or allowed the scaffold to fall." This averment of negligence is very general, and will be taken, as it was throughout the trial, to include any negligence of an employer, taking charge of his own building operations, resulting proximately in the fall of the scaffold.

This form of averment requires proof, first, of the relation of employer and employee; and, second, the exercise of personal superintendence by the employer. If both are proven, then the duty of defendant was measured by this dual relation. As employer, it would be his general duty, in relation to this scaffold, to exercise reasonable care in providing suitable material therefor, and in the selection of capable servants to construct it. As superintendent, it would be his duty to use like care in having the scaffold constructed.

The fourth count charges: "Said defendant negligently furnished improper material for the construction of said scaffold."

The evidence tended to show that the scaffold was made for temporary use in putting up overhead ceiling. It was made for two men to stand on and do their work, and was constructed by James Savage, assisted by plaintiff. It appears that 1X4 pine planks were used as girders extending across the storeroom 15 feet wide. These girders were placed some 10 feet apart. Each girder was supported in the middle and at each end where it was tied to the wall with nails. Across these girders were placed 1X12 planks, doubled, running lengthwise the building, on which the workmen stood and moved in putting up the overhead ceiling.

At the time of the accident, Jim Savage, the head carpenter or foreman, was squaring or cutting the joints of the planks, and handing them to Moscow Savage and plaintiff, Layton, who were on the scaffold, placing and nailing the ceiling. While at this work, one of the girders pulled loose at the end and dropped, causing the scaffold to fall and the plaintiff to receive the injury of which he complains.

Under the evidence the jury were authorized to find that the scaffold was being used by two men for the purpose intended; that no strain was put upon the scaffold beyond that for which it was constructed; that there were no hidden defects in materials. Still it fell, probably by reason of springing under the weight of the men standing and moving thereon in the performance of their work.

"Structures are considered to be defective if, either by reason of the bad quality of the materials, or the unskillful manner in which they are put together or secured in their position, they are unable to support the pressures and other strains to which they are subjected, while they are being erected, or after they have been put into use as a part of the master's plant." 3 Labatt's Master and Servant (2d Ed.) § 996, and note 1.

Such scaffolds are constructed for the sole purpose of placing the men and material in such position as to safely and effectively do the work in hand. Given the use for which they are intended, the persons responsible for their construction may easily make them safe. If they are not safe, as shown by their giving away under the use intended, it becomes a question of fact for the jury whether there was a want of ordinary care either in the matter of furnishing suitable materials or in the manner of construction. Sloss-Sheffield Steel & Iron Co. v. Green, 159 Ala. 178, 49 So. 301; Choctaw Coal & Mining Co. v. Dodd, 201 Ala. 622, 79 So. 54; Republic Iron & Steel Co. v. Harris, 202 Ala. 344, 80 So. 426; Western Steel Car & Foundry Co. v. Cunningham, 158 Ala. 369, 48 So. 109; Doullut & Williams v. Hoffman, 204 Ala. 33, 86 So. 73.

In this case defendant offered evidence tending to show the material used was sufficient to make a safe scaffold, if properly designed and constructed. At the same time defendant further offered testimony tending to show the scaffold was planned and constructed in a proper way. In such case the evidence, tending to show want of negligence on the one hand, tends to support the inference of negligence on the other. There was other evidence of want of proper construction. It was open to inference on the whole evidence that the material was too light for the construction of a proper scaffold in the usual way, or that by proper use of such material a safe scaffold could have been erected. The entire issue in this regard was properly submitted to the jury.

Several rulings raise the question whether plaintiff was at the time of his injury engaged in work within the line and scope of his employment. The evidence for defendant was in effect that when plaintiff was employed it was agreed he should not...