Kirk v. Butler.

• Decision Date: 12 December 1914
• Docket Number: No. 1627.,1627.
• Citation: 145 P. 129,19 N.M. 597
• Parties: VAN KIRKv.BUTLER.
• Court: New Mexico Supreme Court

19 N.M. 597

145 P. 129

VAN KIRK

v.BUTLER.

No. 1627.

Supreme Court of New Mexico.

Dec. 12, 1914.

Syllabus by the Court.

It is the duty of the master to exercise reasonable care and skill to the end that the place where he requires his servant to perform labor shall be as reasonably safe as is compatible with its nature and surroundings.

The master is chargeable with knowledge of defects in material or appliances, even though such defects be latent, or not plainly and clearly observable if by the exercise of reasonable care the master could have discovered the same.

The servant assumes all the ordinary risk of the service and all of the extraordinary risks--i. e., those due to the master's negligence--of which he knows and the dangers of which he appreciates.

Additional Syllabus by Editorial Staff.

An “extraordinary risk” is not one which is uncommon or unusual, in the sense that it is rare, but is one that arises out of unusual conditions, not resulting in the ordinary course of business, as by reason of the master's negligence.

Error to District Court, Bernalillo County; H. F. Raynolds, Judge.

Action by Herbert Van Kirk against E. C. Butler. Judgment for defendant, and plaintiff brings error. Reversed and remanded for new trial.

A servant assumes the risks incident to the work, but not those occasioned by the master's negligence.

The complaint, in this case, sets up a claim for damages sustained by plaintiff when a portion of the defendant's building, upon which plaintiff was working, fell, causing the injuries complained of.

The cause of action is predicated upon the alleged negligence of the defendant, and the facts upon which this is based are set out in the complaint, in the following language:

“That the said fall of the building and the consequent injuries to this plaintiff were caused and produced by the carelessness and negligence of the defendant in failing to supply a safe place where this plaintiff was to work, in that the support of timber which broke and precipitated the brick, timber, etc., upon this plaintiff was insufficient to stand the weight put upon the same and proper timber to support the roof and materials placed above the same.”

The answer admitted that the plaintiff was working upon the building as an employé of the defendant, and alleged that the plaintiff well knew the condition of the timbers, which broke as a result of carelessness and neglect of plaintiff, who had failed to construct and place the supports of the roof in a workmanlike manner, as directed to do by defendant's foreman in charge of that portion of the construction of the building. The plaintiff made a general denial of these allegations, and the cause came on for trial, upon the issues so joined. After counsel for plaintiff had made his opening statement of the facts which he intended to prove, defendant's counsel moved for a directed verdict upon the statement of counsel for plaintiff, upon the ground that the facts offered to be shown demonstrated that an accident had occurred in the construction of a building for which the defendant was not responsible, the risk being an assumed one, and that no fact of the opening statement would warrant a judgment in favor of the plaintiff. Ruling upon this motion was withheld, and after the introduction of some testimony, on behalf of plaintiff, counsel for defendant made further objection upon the ground that the complaint did not state a cause of action, in that it stated no facts to show any negligence upon the part of the defendant. As a result of the argument upon this objection, counsel for plaintiff offered to restate into the record the facts as he expected to prove them, which, with the consent of the trial court, he proceeded to do in the following language:

“The plaintiff expects to show in support of the action which he has set up substantially the following facts:

That the defendant, Mr. Butler, was the owner of a lot in the city of Albuquerque, upon which he designed to erect a building for an automobile garage; that he procured from an architect plans and specifications for the erection of this building, but did not employ the architect to superintend or supervise the construction, instead assuming that duty himself in person; that in pursuance of that erection he employed Mr. Dye, foreman, whose duty it was to employ and discharge his carpenters and other laborers necessary in the erection of the building, and Mr. Dye, under that authority from the defendant, did employ this plaintiff as an ordinary carpenter to work in the erection of this building, to do the particular things that were assigned to him to do, in accordance with his business as a carpenter; that the plans and specifications of the architect provided for a building 75 feet in width and about 142 feet in length, to be used as an automobile garage, and a portion of the interior work--there were to be trusses running crossways over this 75 feet, and 50 feet of these trusses were to be self-supporting, being supported in the remainder by iron standards, or posts, located 25 feet from the west wall of the building; this 50-foot stretch of trusses that were self-supporting, was to be sustained by iron truss rods, which passed through the wooden trusses at the posts and at the opposite wall, running down and being drawn tight with a screw, and supporting the wood truss at intervals by bridges running from the bottom of the truss to this rod and acting as supports. This cross-truss--these cross-trusses were all to be supported in this manner, except the last one at the rear, and as the plan of the building provided for an entrance at the rear left-hand corner, in order to omit the posts under that crosspiece which was to be located 25 feet from the wall, and provide a free passageway for the automobiles, where the posts stood, a support was designed under the last wooden truss or stringer, of another minor truss running lengthwise of the building in the line of the iron supports, one end resting upon the iron supports under the truss, the second from the rear wall, and the other end being imbedded in the rear wall itself. This was designed to pass under the first cross-truss, supporting it at the same place that the iron support would have stood had it been placed. This cross-truss taking the place of the iron support was designed in its turn to be strengthened and supported by a like truss rod, fastened into each end of the wooden truss, running down in truss form and separating the wooden truss itself by bridges at intervals.

I present a small diagram showing more definitely the arangement designed for this building, the outline representing the walls of the building itself, the last truss from which the iron strand was omitted being marked a,a, the point at which the iron standard was omitted marked d, and the wooden truss supporting it marked b,b. The rod designed to strengthen and hold it is marked e,e,e, and the bridgework running from this rod to the supports, marked f,f,f; the dotted line c,d being the place of the omitted iron support. We expect to show that the defendant proceeded with the work of erecting this building himself, personally superintending the work, and under him the foreman, being constantly upon the work directing it and superintending it, and that his foreman, who was under him, in entire charge of the work, and with the right to hire and discharge men, directed the men in making these cross-trusses to make them support on sticks or pieces of 2x6 timber until they were completed and ready for the iron rods, the cross-trusses being made in place and the iron rods to be put in later, in the meantime the timbers supported by the sticks; that in like manner the foreman directed the wooden truss b,b on the diagram, to be built of boards nailed together, composing, when so nailed, a stick of timber approximately 10 inches square, and directed the carpenters to place under this stick of timber at the point marked c,d, being the point directly under which it supported cross-trusses, one of these stick supports, which was to take temporarily the place of the rods thereafter to be added to the stick to support it, and some of the carpenters so employed, the exact one we will be unable to show, placed the support at c,d under the stick b,b.

We will show that as designed, and had the rods been put into this timber as soon as it was erected, it was amply strong enough and would have sustained fully all the weight that was designed to and had been placed upon it at the time that it fell. We will further show that all these upper trusses were in place, as I have stated, including the cross-truss supporting the truss a,a; that the plaintiff, together with the foreman and some other men, proceeded to put in these iron trusses, commencing first at the trusses a,a and proceeded from that one in the rear, the large cross-trusses successively towards the front of the building; that in the meantime, by the direction of the defendant, the work of putting on the roof...