Humpton v. Unterkircher

• Decision Date: 09 April 1896
• Citation: 66 N.W. 776,97 Iowa 509
• Parties: LEWIS E. HUMPTON, Appellant, v. P. F. UNTERKIRCHER & SONS, et al
• Court: Iowa Supreme Court

66 N.W. 776

97 Iowa 509

LEWIS E. HUMPTON, Appellant, v. P. F. UNTERKIRCHER & SONS, et al

Supreme Court of Iowa, Des Moines

April 9, 1896

Appeal from Des Moines District Court.--HON. JAMES D. SMYTHE, Judge.

PLAINTIFF was injured by the fall of a scaffold erected by his immediate employer, in the construction of a certain brick building for the defendants, Unterkircher & Sons, in the city of Burlington, and he brought this action to recover damages alleging that one Hummerum had the contract for doing the brick work, and defendant Hemphill for the carpenter work all under the direction, supervision, and control of Unterkircher & Sons, or their superintendent employed for that purpose; that plaintiff, while engaged in laying brick in the wall of the second story of the building, received a fall, through the weakness of the floor, upon which a scaffolding was erected to enable him to pursue his work which resulted in a compound comminuted fracture of the bones of his lower right leg, necessitating the amputation thereof and that defendants were negligent in not providing proper support for the floor on which the scaffolding was erected. The defendants, George and Fred Unterkircher, admitted that Unterkircher & Sons were engaged in the erection of a building, but claimed that it was being done by independent contractors,--one, Hemphill, having the contract for the carpenter work, and another, Hummerum, having the contract for the brick work; but they denied that they or their superintendent had any control or direction, or right of control or direction, of the manner in which the work should be done, of who should do it, or of the workmen or appliances to be employed in the accomplishment of their purpose; and they further alleged that, at the date of the accident, the work was unfinished and incomplete, and was under the control of the said contractors, respectively; and further denied that they were guilty of negligence in any particular. They further alleged that plaintiff was in the employ of Hummerum, and that he was not in any sense their servant. They also alleged that plaintiff was guilty of negligence contributing to his injury. On these issues the case was tried to a jury, and, at the conclusion of plaintiff's evidence, the court, on motion of these defendants, directed a verdict for them. Plaintiff appeals.

Affirmed.

Hedge & Blythe for appellant.

Blake & Blake and P. Henry Smythe for appellees.

OPINION

DEEMER, J.

The motion to direct a verdict was based upon the grounds; first, that there was no evidence to show that defendants owned the real estate or the building which was being erected thereon, or that they were in any manner interested therein; second, that no negligence was charged in the petition as against them; third, that the evidence shows that the negligence, if any, was that of a fellow-servant of plaintiff; fourth, that the relation of master and servant did not exist as between plaintiff and these defendants; fifth, that plaintiff knew of the alleged defects in the construction of the floor, and voluntarily remained in his employment, without complaint or promise of repair; and sixth, that, by the exercise of ordinary care, he might have known of the defects; but that, notwithstanding, he voluntarily remained at his work, without complaint or promise of repair.

To determine the correctness of the ruling, a consideration of the facts as disclosed by the record is essential. The evidence establishes the following: In the year 1892 Unterkircher & Sons, a firm composed of P. F. Unterkircher, Fred L. Unterkircher, and George L. Unterkircher, desirous of erecting a brick livery barn upon a lot owned by P. F. Unterkircher, entered into contracts with certain mechanics, among whom were Austin Hemphill and J. Hummerum, for the construction of various parts of the work. Hummerum had a contract for the brick work, which, among other things, contained the following: "The entire work to be done in a good and workmanlike manner, under the direction of E. Kropp and P. F. Unterkircher & Sons, and to their entire satisfaction, approval, and acceptance. * * * In consideration of the faithful performance of the foregoing stipulations and agreements by said second party, the said P. F. Unterkircher & Sons, party of the first part, agree faithfully to have said work duly and fairly estimated by E. Kropp, architect, as rapidly as the work is completed * * *. All the scaffolding to be furnished by the brick layer." The portions of the contract omitted relate to the work to be done, amount and terms of payment, and other matters not necessary to be here set out. Hemphill had a contract for the carpenter work, which, among other things, provided: "Said work to be commenced on or before the twelfth day of December, 1892, and to be completed sixty days after the brick work is finished. The entire work to be done in a good, workman-like manner, under the direction of E. Kropp, architect, and P. F. Unterkircher & Sons, and to their entire satisfaction, approval, and acceptance. In consideration of the faithful performance of the foregoing stipulations and requirements by second party, the said P. F. Unterkircher & Sons, party of the first part, agree faithfully to have said work duly and fairly estimated by E. Kropp, architect, as rapidly as the work is completed." Contracts for the stone work, painting, and every other thing needed to complete the building, were made with other parties. The plaintiff is a brick layer, and was employed by Hummerum upon the building. At the time of the accident the rear and the two side walls of the structure were completed up to the square of the second story,--above the windows of the second floor, where the joists were to be laid. The outside of the front wall was up to the level of the square, and the workmen were then engaged in backing it up; that is, filling up the inside course of the brick work. A scaffold had been erected so that the brick layers could reach and work upon this front wall. The floor of the scaffold had for its immediate support, short pieces of scantling, one end of which was set into the wall, the other nailed to uprights, which rested on the floor of the second story of the building. As the second floor was to be suspended from a truss in the roof, a temporary support was made for the joists, which was to be removed, and rods from above substituted, after the building was completed. The joists of this second floor were laid on girders, and the girders were held up by posts, which, as we have said, afforded temporary support. The support for the girders referred to was two pieces of two by ten, or two by twelve joists, put together and stood up on end, under the girders. It appears that these temporary posts, or supports, were not of sufficient strength to carry the second floor, with the material that was being used for the completion of the brick walls; that one of them gave way, and precipitated the whole of the second floor, with all of the material, scaffolding, and men at work thereon, into the cellar, resulting in the injuries complained of. The second floor, with its supports, was erected by, or under the direction of, Hemphill, the carpenter, with the knowledge, and implied consent, at least, of the defendants and their architects. The scaffolding on which plaintiff was working was built in the ordinary manner, on the inside of the building, by the brick-layer, and no fault can be attributed to him, unless it be that he did not discover the condition of the supports, and did not notify plaintiff of the condition thereof, on the day of the accident. It appears, from the evidence, that Hummerum's attention was called to the fact that one of these...