Jones v. Riverside Bridge Co.
| Decision Date | 13 February 1912 |
| Citation | 70 W.Va. 374 |
| Court | West Virginia Supreme Court |
| Parties | Jones v. Riverside Bridge Company. |
A contractor, having servants at work in the erection of a building along with the servants of another contractor, owes to the latter the duty of care for their safety, (p. 377).
If, in such relation, a servant of one of the contractors is injured, under circumstances, creating a reasonable probability that the injury was caused by the omission of such duty on the part of the other ol' the negligence of his servants, the maxim, res ipsa loquitur, applies, making the circumstances, without more, evidence of negligence, (p. 376).
Ordinarily, such circumstantial evidence is not conclusive of the question of negligence and only suffices to carry the issue to the jury and sustain a verdict for the plaintiff, if found: (p. 379).
If it affords bases for inferences favorable to each of the parties, the court, upon request therefor, must give instructions submitting the hypotheses such inferences appreciably tend to sustain, (p. 379).
(Robixson and Williams, Jubges, dissent). Error to Circuit Court, Ohio County.
Action by James M. Jones against the Riverside Bridge Company. Judgment for plaintiff: and defendant brings error.
Revised and New Trial Awarded.
Hubbard & Hubbard, for plaintiff in error.
Noyes & Ritz and John A. Ritz, for defendant in error.
poefenbarger, judge:
On this writ of error to a judgment for $1,016.67, the amount of a verdict rendered, the sufficiency of the evidence to sustain the verdict was raised by a request for a peremptory instruc- lion to find for the defendant. The principle, governing the disposition of the assignment, of error founded upon the refusal of that instruction, will solve most of the other questions presented.
The plaintiff below was injured by the fall of a board, while employed in and about the work of constructing a building, several stories high, in the city of Wheeling". The action was not brought against his employer nor the owner of the building, but against a contractor engaged in the installment of the steel work of the building. The servants of the structural iron company, the defendant, were placing a steel beam or girder for the fourth floor of the building, and the plaintif, employed by the brick work contractor, was in the basement, handling some pieces of terra cotta, when he sustained the injury. Just what he was doing at the instant of the fall of the board does not appear, but he was on duty in the basement. Another servant of his employer was hauling the terra cotta to the front of the building and sliding it into the basement and he was carrying or wheeling it back from the front. Who let or caused the board to fall is not expressly shown. Nothing in this connection is disclosed except that it came from the fourth floor and that, at that time, the servants of the defendant company were working on that floor, or rather where it was intended to be. One witness says, Another witness says it came from "upon top somewhere," and that a gang of bridge men were working where it came from. Another witness says it came from about the fourth tier of iron or the ceiling of the third floor and that the structural iron workers were working on that floor. No witness states specifically that any other persons were on that floor, but one witness said, responding to a question as to whether any persons were working between the fourth floor and the first: "Yes, sir, they was working all over the floors." The defendant company had its hoisting engine in the basement, and, for about 12 feet back from the street, no flooring of any kind had been put in for any of the stories. Back of the 12 foot space, some fire proofing had been laid on some of the floors, but how much space was so cov- ered is not shown. In this 12 foot space at the front of the building, there seems to have been nothing to break or prevent the fall of any object and the board by.which the plaintiff was injured, seems to have come down through it. This open space or some other was no doubt needed for the work of hoisting materials. Some testimony was adduced to the effect that, under such conditions, the contractor putting in the steel work does not lay any floors below the workmen to prevent tools and materials from falling, even though other persons are working below, and that such articles frequently fall in the course of the work.
The trial court disposed of the case upon the theory that the lack of evidence, showing just how the board happened to fall, is aided by a presumption or inference of negligence, which the jury might draw, under the rule res ipsa loquitur, applied in several cases by this Court, notably Bice v. Electrical Co., 62 W. Ya. 685, and Snyder v. Electrical Co., 43 W. Va. 661. The argument against the application of this doctrine is based largely upon the definition of the rule or doctrine stated in the syllabi of the two cases just cited, embodying certain specifications of conditions under which it is applicable, and the assumption that every case falling under the principle must come within those specifications. Accordingly it is said the agency causing the injury must be definitely known, and appear to have been under the management and control of the defendant, and the occurrence such as, in the ordinary course of things, does not happen, if proper care is used by those who have the management. The language of this Court thus relied upon, does not purport to be a general definition of the rule. It is rather an application of the rule to the particular facts and circumstances of the cases. The principle is broader. "When the physical facts of an accident themselves create a reasonable probability that it resulted from negligence, the physical facts themselves are evidential, and furnish what the law terms evidence of negligence in conformity with the maxim, fres ispa loquitur ". Seybott v. Railroad Co., 95 X. Y. 562, quoted in Snyder v. Electrical Co. "I have ventured to call it demonstrative evidence of negligence; for, although the evidence must always be detailed by the mouths of witnesses, yet when the facts are thus disclosed, they either demonstrate negligence, conclusively, or tend to demonstrate it, subject to explanation by the defendant, showing that his conduct was consistent with due care." 1 Thomp. Neg., sec. 15, p. 16. "Where an accident itself, with all its surroundings, speaks in such way and is of such character as to show negligence on the part of the defendant, the doctrine res ipsa loquitur applies and the plaintiff is allowed to recover in the absence of other proof." Wood v. Railway Co., 64 Atl. Eep. 246. However, we perceive no difficulty in applying the terms of the supposed definition to the facts here disclosed. The board was the agency causing the injury. Ordinarily, a board is not a dangerous article, but, under given circumstances, it may be very dangerous. If a board be insufficiently suspended or fixed over a street or walk for some purpose so that it may fall upon a pedestrian passing under it, it is a dangerous agency and is under the management or control of him who maintains it there in an insecure condition. So a board in the bands of a workman at the top of a four-story building is a dangerous agency to other persons passing under it in the discharge of their duties. Owing to the peculiar circumstances and the very great danger of injury in case it should fall, a very high degree of care is exacted on the part of him who holds it, just as in the case of one who erects or constructs a fixture over a road or passage way, likely to be used by travelers or other persons. The duty imposed under such circumstances is so great that ordinariLy it is not omitted and injury does not result. Hence, when injury does result, there is a probability of omission of the care, prudence and diligence exacted by law. Instances of the application of the doctrine are given in Snyder v. Electrical Co. as follows: "Mulcwirns v. City of Janesville, 67 Wis. 24, (29 N. W. 904), wall of a cistern falling; Dixon v. Pluns, 98 Cal. 384, (33 P. 268). chisel falling from a scaffold; Houston v. Brush, 66 Vt. 331, (29 Atl. 380), injury from being struck by a wheel from a tackle block, attached to a derrick.; note in Railroad Co. v. Anderson, (Mel.) 20 Am. St. Pep, p. 193 (s. c. 20 Atl. 2); Thomas v. Telegraph Co., 100 Mass. 156, telegraph wire swinging over a street too low, so as to obstruct travel; Clare v. Bank, 1 Sweeney. 539, injury from plank falling from one's premises; Bowser v. Railroad Co., (Md.) 30 Atl, 906, cross-tie falling from a moving car; Ugla v. Railway Co., (Mass.) 35 N. E. 1126; Morris v. Strobel & Willcen Co., 81 Hun. 1 (30 N. Y. Supp. 571), sign board falling in street." Application of the doctrine in cases of the class to which the one now under consideration belongs will be found in Guldseth v. Cart-in, 19 App. Div. Rep. (1ST. Y.) 588; Beilly v. Construction Co., 83 Hun. 196; Thrussell v. Handyside, L. R. 20 Q. B. D. 359; and Sheridan v. Foley, 58 N. J. L. 230.
As to whether the board working the injury complained of was under the management or control of the defendant's servants, the evidence is not direct and positive, as will appear from the statement already given. It is readily inferable, however, from the facts stated. Defendant's servants were working at the point or place from which the board fell and using boards in connection with their work. No reason is perceived why evidence sufficient to sustain a finding by the jury that the agency working the injury was under the control of the defendant should not suffice to establish the facts as in...
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