Kaspari v. Marsh

• Decision Date: 15 October 1889
• Citation: 43 N.W. 368,74 Wis. 562
• Parties: KASPARI v. MARSH.
• Court: Wisconsin Supreme Court

74 Wis. 562

43 N.W. 368

KASPARI

v.MARSH.

Supreme Court of Wisconsin.

Oct. 15, 1889.

Appeal from superior court, Milwaukee county.

Action by Margaret Kaspari, administratrix of Anton Kaspari, deceased, against Mantle Marsh, for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. The death resulted from the fall of a scaffold on which deceased had gone in pursuance to an order from defendant, to work on the latter's house. Verdict and judgment for plaintiff, and defendant appeals.Austin, Runkel & Austin, for appellant.

Fiebing & Killilea, ( F. L. Gilson, of counsel,) for respondent.

COLE, C. J.

The undisputed testimony in this case shows that the scaffold in question was defectively constructed, and was unsafe for workmen to stand upon. Several carpenters testified to that effect, who examined the scaffold shortly after the accident by which Kaspari was killed. These witnesses agree in saying that the scaffold was not built right. It was not constructed in a safe and workman-like manner. The principal defect in the structure was that the cross-pieces were not well fastened with nails; the nails used being eight-penny nails, instead of ten-penny nails, as they should have been, and not a sufficient number of the eights were used to make the scaffold strong and safe. The testimony is in harmony as to the fact that the scaffold was unsafe because an insufficient number or the wrong sized nails were used in its construction.

The inquiry is, was the evidence sufficient to justify the jury in finding that the defendant was responsible for this defect? There were facts proven bearing upon the question which warrant the jury in finding that he was. In the first place, it is to be observed the defendant was a carpenter by trade,--a contractor skilled in erecting buildings. Kaspari was a street-paver by occupation, and not skilled in carpenter work. There is no dispute about these facts. The defendant knew, for he had employed Kaspari a great deal, and had every possible means of knowing, that he was not a carpenter, and that building scaffolds was not his usual employment. He says: “I had known Kaspari for twenty-three or twenty-four years. He had worked for me at different times; had done paving in the streets for me, and had taken care of my horses; had worked upon lots of buildings for me, and once put up a scaffold between two houses, one of which leaked.” And, while he says “Kaspari could do a little of everything,” he knew he was not a carpenter, and did not profess to be. The house upon which Kaspari was at work when the scaffold fell and he was killed belonged to the defendant. There is ample evidence to show that the defendant was about the house, working upon it, and giving directions as to how the work should be done. Whether he gave Kaspari any specific directions about constructing the scaffold, or aided him in the construction of it, is a matter of dispute upon the evidence. The plaintiff, in effect, testified that the defendant was about the building all the time while her husband was working upon it, giving directions. She says she heard him caution her husband while working upon the scaffold not to use too many nails, or that he was using too many nails in putting it up. Now, whether he gave this caution or not may be a doubtful question, but certain it is, had he given the scaffold any attention,--being a skilled carpenter, as he was conceded to be,--he would have discovered that it was not properly constructed. He was skilled in these matters; Kaspari was not. If the jury believed the testimony of the...