Ferguson v. R. E. Ball & Co.
| Citation | 153 W.Va. 882,173 S.E.2d 83 |
| Decision Date | 24 March 1970 |
| Docket Number | No. 12845,12845 |
| Court | Supreme Court of West Virginia |
| Parties | Paul FERGUSON v. R. E. BALL AND COMPANY, a Corporation, et al. |
Syllabus by the Court
1. There should be a relative continuity between the allegations in the complaint, the evidence and the instructions in order that the jury may understand the theory relied on by the parties.
2. An independent contractor who works on premises where his contract requires him to be is an invitee, and while thus engaged he is entitled to the protection of ordinary care on the part of the owner or occupier of the premises, and such invitee must be furnished a reasonably safe place in which to work.
3. The doctrine of assumption of risk is based upon the existence of a factual situation in which the act of the defendant alone creates the danger and causes the injury, and the plaintiff voluntarily exposes himself to the danger with full knowledge and appreciation of its existence, thereby relieving the defendant of legal responsibility for the injury resulting from such exposure.
Baer & Napier, Philip A. Baer, Huntington, for appellant.
Jenkins, Schaub & Fenstermaker, John F. Wood, Jr., Huntington, for appellees.
This appeal involves a civil action for personal injuries instituted in the Circuit Court of Cabell County by the plaintiff, Paul Ferguson, against the defendants, R. E. Ball and Company, a corporation, and Robert E. Ball, an individual operating the corporation, which resulted in a jury verdict in favor of the defendants with judgment entered thereon on the 14th day of May, 1968, after which a motion to set aside the verdict and grant a new trial was overruled on December 13, 1968. The appeal and supersedeas were granted by this Court on June 23, 1969 and the case was submitted on briefs and arguments at the January Regular Term, 1970, of this Court.
The defendants are engaged in the business of building houses for sale on property owned by the defendants and will be considered as one and referred to hereinafter as 'defendant'. The plaintiff was an independent contractor whose services the defendant usually obtained to do the electrical work in the houses being built, after the work on the houses had been completed to such an extent that they were ready for the wiring to be installed. The defendant had been engaged in this business for a period of about twelve years during which time the plaintiff had installed most of the electrical wiring in the buildings constructed by the defendant.
During the month of January, 1965 the defendant was constructing a house at 132 Altamont Road, Huntington, West Virginia, and when it was partially completed and ready for wiring the defendant requested the plaintiff to install the electrical wiring, and on January 19, 1965 the plaintiff came to the house in question for that purpose. The house being constructed was of a splitlevel design and temporary steps leading from one level to another had been placed in the house by a carpenter employed by the defendant. Three stringers upon which steps were to be constructed had been placed in position and temporary plywood treads placed on them. No risers had been placed on the stringers. The stringers had been nailed to partitions where the studdings were located and were notched at the top to rest on that level. The defendant's carpenter who constructed the steps in question did so in the same manner as he had done in other constructions erected by him during about twenty-five years he had spent doing carpenter work. There was no evidence introduced to indicate the number or the size of the nails used in the stringers to hold them up. No inspection was made of the temporary steps to ascertain their condition after they were built by the defendant.
The steps were used by various workmen to get from one level to another, and at the time the plaintiff arrived the defendant and his carpenter were carrying flooring up the stairs to be installed in the upper level of the house.
Nothing was said to the plaintiff about the condition of the steps although he had observed the use thereof. After the plaintiff had looked over the various rooms in the house he was considering the installation of a switch in the vicinity of the steps and discussed this matter with the defendant Ball after which Ball then left the premises. The plaintiff then started up the steps to look at the wall area, and while standing on the steps two of the three stringers pulled loose and the steps collapsed, causing the plaintiff to fall from the steps on the lower level to the basement through an unfinished area, dropping some 12 or 14 feet. He fell on top of the lumber and suffered severe injuries to his left foot fracturing the heel bone or calcaneus. He was unable to work for about a year and suffered permanent loss of motion in his ankle.
After the accident the plaintiff was taken to a hospital from which he returnfed in a few hours to his home, but he was unable to return to the scene of the accident for about six weeks during which time the steps which had fallen had been installed permanently and enclosed in such manner so as to make it impossible to inspect them to ascertain the cause of the collapse. The only testimony by the plaintiff with regard to the possible cause of the collapse of the steps was that while he was lying on the floor after his injury the carpenter started putting more nails in the stringer which had not fallen and made a statement that 'Well, this one won't fall out anyway'.
It was admitted that no inspection had been made of the condition of the steps during the time they had been temporarily installed, and the carpenter stated that there was always the possibility the nails could work loose in such temporary construction. He also stated that he put the nails back in the same holes they had come out of when he replaced the stringers.
The complaint in this case merely alleges that the defendants erected the stairway and held it out to be safe, but that it was negligently erected in such manner so as to make it unsafe and a trap, and without any warning it fell. No specific acts of negligence were alleged and the complaint was apparently drawn under the theory of res ipsa loquitur. The answer of the defendant denied the allegations contained in the complaint and set up the defenses of contributory negligence and assumption of risk.
A pre-trial conference was held at which time it was stipulated that the issues to be decided by the jury were whether the defendant was guilty of negligence, and whether the plaintiff was guilty of contributory negligence and of assumption of risk. The pre-trial order which is contained in the record stated that it was to be read to the jury, and that any of the issues contained in the order not supported by the evidence would be stricken by the court on proper instruction to the jury, or on motion of either party. The theory of res ipsa loquitur was not mentioned in the pre-trial order. At the conclusion of the evidence both the plaintiff and defendant moved for a directed verdict, which was overruled by the trial court. One of the grounds relied on by the defendant for a directed verdict was that the evidence clearly supported the assumpion of risk on the part of the plaintiff. The plaintiff's attorney moved the trial court to instruct the jury not to consider the issues of assumption of risk and of contributory negligence. The court sustained the motion as to the defense of contributory negligence, but clearly left the defense of assumption of risk in the case.
A request was made by plaintiff's attorney in the record that inasmuch as the issues contained in the pretrial order were read to the jury, there should be an instruction to it if any issue was withdrawn, as provided in the order. The trial court stated it would instruct the jury at the proper time to disregard the issue of contributory negligence. After the instructions were read to the jury an additional instruction was given by the trial court which was that the question of contributory negligence was not an issue in the case and that the jury should disregard...
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