Kerr-Murray Mfg. Co. v. Hess, 1,230.

Decision Date20 November 1899
Docket Number1,230.
Citation98 F. 56
PartiesKERR-MURRAY MFG. CO. v. HESS.
CourtU.S. Court of Appeals — Eighth Circuit

This was an action in the trial court by an employe against an employer for personal injuries. In this court the position of the parties is reversed. The Kerr-Murray Manufacturing Company, the defendant below, is the plaintiff in error here and is seeking to reverse a judgment which was recovered against it at nisi prius. The facts, as disclosed by the record, are substantially as follows: The defendant company is an Indiana corporation, and on November 25, 1897, was engaged in building an iron or steel gas tank in the city of Omaha, Neb. The tank in question was about 90 feet in diameter, and about 26 feet high. For the purpose of constructing the tank, and bolting together the steel plates of which it was composed, it was necessary to erect a scaffolding on the interior of the tank upon which the workmen could stand. The scaffolding was built in the following manner: A box or shaft 4 feet square, consisting of pine plank, was first erected in the center of the tank extending from the floor to the dome. To this shaft lateral arms, consisting of pine joists or planks 2 x 10, were nailed, which extended in all directions to the shell of the tank, and were supported at intervals of about 8 or 10 feet by upright posts resting upon the floor of the tank. Walter S. Hess, the plaintiff below and the defendant in error here was an ordinary laborer in the employ of the defendant company, and at the date last aforesaid was engaged with some other workmen, under the direction of Henry Loose, the defendant's superintendent or foreman, in constructing the aforesaid scaffolding. In the discharge of his duty he appears to have gone out on one of the joists or arms which radiated from the central shaft for the purpose of splicing another plank or joist to its outer end, and thereby extending the arm towards the shell of the tank. He was sitting astride of the plank some distance from one of the supports, and was nailing the other plank to it, when the plank astride of which he was sitting broke, as he claimed and precipitated him to the floor some 20 feet below, thereby occasioning the injuries of which he complains. There was testimony offered which tended to show that the plank which broke was neither a sound nor suitable piece of timber, in that it was either sappy and rotten or crossgrained and full of knots.

Ralph W. Breckenridge (Charles J. Greene, on the brief), for plaintiff in error.

V. O. Strickler, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

The defendant company complains in the first instance that the trial judge was guilty of gross abuse of his discretionary power in refusing to grant the defendant a continuance, but this complaint if without any adequate foundation. When the case was called for trial, the defendant's attorney presented an affidavit for a continuance which stated, in substance, that the defendant company could not safely go to trial because John Loose, its most important witness, was sick at his home at Ft. Wayne, Ind. The plaintiff's attorney thereupon consented that counsel for the defendant might make a statement of all the facts which they expected to prove by said Loose, and that such statement might be read to the jury as the testimony which the absent witness would give if present. After this offer was made, the court overruled the application for a continuance. Subsequently, at the conclusion of the defendant's testimony, an affidavit was made by one of its counsel containing a succinct and very full statement of the facts which the defendant company expected to prove by the absent witness, and the same was read to the jury as the evidence which he would give if present in person. Moreover, the case appears to have been pending in the federal court on removal from the state court for nearly nine months before the trial took place. Ample time had elapsed, therefore, to obtain the deposition of the absent witness, which should have been taken, as he appears to have been a nonresident. Under these circumstances, the trial court very properly required the trial to proceed. But, in addition to what has been said, it should be observed that the rule is well established in the federal courts that a motion for a continuance is addressed to the discretion of the trial judge, and that his action on such a motion will not be reviewed on appeal or on writ of error. Davis v. Patrick, 12 U.S.App. 629, 635, 57 F. 909, 6 C.C.A. 632; Sims v. Hundley, 6 How. 1, 5, 12 L.Ed. 319; Insurance Co. v. Hodgson, 6 Cranch, 206, 207, 3 L.Ed. 200; Thompson v. Selden, 20 How. 194, 198, 15 L.Ed. 1001; Electric Co. v. Dick, 8 U.S.App. 99, 52 F. 379, 3 C.C.A. 149; Drexel v. True, 36 U.S.App. 611, 74 F. 12, 20 C.C.A. 265. In the present case, however, we should be compelled to hold that the discretion of the trial court was properly exercised, even if the action complained of was subject to review.

Considerable space is devoted in the briefs to the discussion of the question whether the plaintiff below and Henry Loose, the defendant's superintendent or foreman, were fellow servants; but, as we view the case, the consideration of that question is unnecessary. The action was tried below on the theory that they were fellow servants, and that the defendant could not be held liable for the negligent acts of its foreman unless they were committed while he was discharging some personal duty of the master, such as providing suitable material for the construction of the scaffold or proper tools and appliances wherewith the plaintiff was to work. The charge, considered as a whole, advised the judy that there was no ground upon which a recovery could be had by the plaintiff unless it appeared that the joist or plank which broke and precipitated him to the ground was defective in some of the respects pointed out by the various witnesses who testified on that subject, nor unless it appeared that the defendant had failed to exercise ordinary care in providing such defective material. The charge proceeded upon the theory (which was obviously correct) that whoever may have provided the lumber for the scaffolding was in that respect discharging a personal duty of the master, and that the master was responsible for such person's negligence in providing material, without reference to his grade or rank in the employer's service. Balch v. Haas, 36 U.S.App. 693, 699, 73 F. 974, 20 C.C.A. 151.

Complaint is made because the trial court failed to direct a verdict in favor of the defendant company, but as there was considerable testimony (enough, at least, to warrant a finding) that the joist or board which broke was defective in the respect alleged in the petition, and as this joist was a part of the material for the scaffolding which it was the personal duty of the master to supply, it is not apparent that the trial court could have done otherwise than to submit the issue concerning the defendant's negligence in supplying the material to the decision of the jury. The issue in question was submitted, and the finding was against the defendant, under instructions which advised the jury that, in the matter of providing material for the scaffolding, the defendant was only required to exercise ordinary care; and that the plaintiff on his part, when he went out on the plank, was bound to exercise ordinary watchfulness; and that the defendant could not be held liable if the jury believed that the plaintiff might have discovered the defective condition of the board by ordinary circumspection, before he went out on the same and trusted his weight thereto. These were questions for the jury, in view of the character of the evidence, and they seem to have been submitted under directions from the court that were substantially accurate.

Perhaps the most important question in the case, although it is not argued specially in the briefs, is whether the lower court erred in refusing to give an instruction to the effect that if it appeared that the defendant provided a sufficient quantity of sound and suitable lumber for the erection of the scaffolding, and that the selection of the defective joist which broke and occasioned the injury was the act of some fellow workman of the plaintiff, then there could be no recovery. This instruction embodied a principle which has been approved in a number of cases, with respect to the building of ordinary scaffoldings and other simple structures of that nature, which laborers and mechanics are in the habit of constructing for themselves, because the construction thereof does not require the exercise of more skill or scientific knowledge than is usually possessed by the ordinary laborer or artisan, that the master is under no obligation to do more than to supply a sufficient quantity of material which is reasonably well adapted for the making of such structures, and that he is not responsible for an injury to one of his servants which is occasioned through the...

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    • Mississippi Supreme Court
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    ... ... Pacific Bridge ... Co., 51 Ore. 538, 95 P. 196; Kerr-Murray Mfg. Co. v ... Hess, 98 F. 56, 38 C. C. A. 647; Conlin v. Railroad ... ...
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