Lang v. Bailes

• Decision Date: 13 April 1910
• Citation: 19 N.D. 582,125 N.W. 891
• Parties: LANG v. BAILES et al.
• Court: North Dakota Supreme Court

19 N.D. 582

125 N.W. 891

LANG

v.BAILES et al.

Supreme Court of North Dakota.

March 12, 1910.

Rehearing Denied April 13, 1910.

Syllabus by the Court.

An order denying a motion for a new trial or for judgment notwithstanding the verdict, which is based upon the insufficiency of the evidence to justify the verdict, will not be disturbed where it appears that there is a substantial conflict in the evidence.

The rule as to the duty of a master in respect to providing a safe place to work is not applicable to a case where a servant is injured by reason of defects in, or insufficiency of a temporary structure, such as a scaffolding or framework for supporting heavy materials, which are appliances or instrumentalities by means of which the work is done.

When, by the express or implied contract between the master and servants, the former undertakes to furnish the necessary tools or appliances, it is his duty to use ordinary care to see to it that such instrumentalities are safe and suitable; and this duty, when it exists, is one of the absolute or personal duties. Any servant to whom the master delegates it is pro hac vice, a vice principal, for whose negligence the master is responsible.

The trial court charged the jury that “it was the duty of the defendants to use ordinary care to furnish for the plaintiff and his fellow workmen a staging that was reasonably safe for the purpose for which it was intended and used; and if you find that the defendants negligently failed to perform this duty, and furnished a staging that was unsafe, and that the plaintiff, while in the exercise of ordinary care and without negligence upon his part and without knowledge of the unsafe condition of the staging, went upon the same to perform his work in the ordinary way, and by reason of the defect therein, if any, fell to the ground and was injured, then plaintiff is entitled to recover.”

This instruction is undoubtedly erroneous, as it assumes as a fact that the employers were under a legal duty to furnish the scaffold as a completed structure, but in view of the fact that the jury found that the defendants instructed the carpenters to build the staging, and that they undertook to become responsible for the safe building of such staging, its giving is held not prejudicial error.

Appeal from District Court, Grand Forks County; Templeton, Judge.

Action by Fred Lang against Harry H. Bailes and William M. Perkins, copartners, doing business under the firm name and style of Bailes & Perkins. From an order denying a motion for judgment notwithstanding the verdict or for a new trial, and from a judgment in favor of plaintiff defendants appeal. Affirmed.

Ellsworth, J., dissenting.Guy C. H. Corliss, for appellants. Bangs, Cooley & Hamilton, for respondent.

CARMODY, J.

This action was brought to recover damages for personal injuries for the alleged negligence of the defendants. A verdict was rendered in favor of the plaintiff for $2,500. A motion for a new trial and for judgment notwithstanding the verdict was made; the defendants having moved for a directed verdict at the close of all the evidence. This motion was denied, and the appeal is taken from the final judgment, and from the order denying such motion. At the time of the injury complained of, the relation of master and servant existed between the plaintiff and the defendants. Plaintiff's injury was sustained by reason of the breaking of one of the portlocks upon a scaffold on which plaintiff, who was a mason, was doing brick work. The evidence shows that the portlock was defective because of a large knot in the same, rendering the sound timber of the portlock insufficient to bear very heavy weight. The building upon which the plaintiff was working when injured was a small receiving vault, which was being constructed by defendants under contract. The walls of the building were of brick, and at the time the scaffold broke the plaintiff was working thereon, on the east gable end of the building; the scaffold being about 21 feet from the ground. The masons had constructed some of the scaffolds previously used on the building, and had had something to do with this scaffold. As the brickwork was carried up towards the roof, the scaffold in question had to be raised to different levels from time to time. Two of the carpenters did the work in raising the scaffold to the last level. While this level was being constructed by the carpenters, the plaintiff and one Bacon, a brick mason, were at work on the west end of the building. When they were ready to use the scaffold, they found it a complete structure and ready for their use. They, however, did some work in bracing and changing the scaffold.

Counsel for plaintiff concede that there was plenty of good material, furnished by defendants, out of which the scaffold might have been constructed without using the defective timber. At the request of the court, the jury, in addition to their general verdict, made certain special findings of fact as follows:

“Question No. 4. Did the defendant Perkins tell the plaintiff or Bacon, or either of them, the day the plaintiff was injured that he (Perkins) would see to having the staging built on which the plaintiff was injured? Answer. Yes.

Question No. 5. Did the defendant Perkins instruct the carpenters, or any of them, on said day to build such staging? Answer. Yes.

Question No. 6. If you answer either question 4 or 5 in the affirmative, then did the defendant Perkins by what he said undertake to become responsible for the safe building of such staging? Answer. Yes.

Question No. 7. At the time the staging in question was built was there any general custom in this vicinity among contractors and their employés that the contractor should not only furnish a sufficient amount of good material for stagings, but should also be responsible for the building of the staging in a safe manner? Answer. Yes.”

The main question to be determined on this appeal is whether as a matter of law, upon the evidence in the case and the facts found specially by the jury, the verdict in favor of plaintiff should be sustained. The rule, as we understand it, is that a scaffold is ordinarily a mere incident or detail to the construction of a building, and, unless the master has assumed the responsibility of furnishing such scaffold or staging, but intrusts the making of it to the servants, he is not liable for an injury caused to the workmen by reason of a defective scaffold or staging. If, however, the master undertakes, to furnish the scaffold or staging as a complete structure, he is responsible for his neglect to make it safe. In the case at bar, there is some evidence that the defendants undertook to furnish the staging or scaffold on which plaintiff was injured, and assumed the responsibility of its construction.

Henry Bacon, one of the masons working on the building, testified that the defendant Perkins told him to stay on the wall, and he, Perkins, would look after the scaffold, and Perkins and the carpenters built it, or Perkins was there to see that the carpenters built it. There is evidence that plaintiff told defendant Perkins that they would soon be ready for another scaffold, and he, Perkins, had better have a scaffold built on the east end of the building. Perkins directed the carpenters to build the scaffold, and, when plaintiff and the other mason got ready to use it, they found it constructed and ready for use. It is true that the plaintiff and Bacon, the other mason, and their helper, moved a beam and braced the scaffold somewhat, but did not in any way change the portlock that gave way, or the boards resting thereon. The jury have found in favor of the plaintiff in a general verdict, and have found in answer to the special questions that the defendant Perkins told the plaintiff or Bacon the day that plaintiff was injured that he, Perkins, would see to having such staging built, that Perkins instructed the carpenters on said day to build the staging, and that defendant Perkins, by what he said, undertook to become responsible for the safe building of such staging. The defendants having moved for a new trial and for judgment notwithstanding the verdict on the grounds, among others, of the insufficiency of the evidence to justify the verdict and the trial court having denied such motion, if the verdict is supported by substantial evidence, then it must stand. Taylor v. Jones, 3 N. D. 235, 55 N. W. 593;Black v. Walker, 7 N. D. 414, 75 N. W. 787;Muri v. White, 8 N. D. 58, 76 N. W. 503;Howland v. Ink, 8 N. D. 63, 76 N. W. 992;Becker v. Duncan, 8 N. D. 600, 80 N. W. 762;Heyrock v. McKenzie, 8 N. D. 601, 80 N. W. 762;Magnusson v. Linwell, 9 N. D. 157, 82 N. W. 743;Flath v. Casselman, 10 N. D. 419, 87 N. W. 988;Drinkall v. Movius State Bank, 11 N. D. 10, 88 N. W. 724, 57 L. R. A. 341, 95 Am. St. Rep. 693.

Under the doctrine laid down by this court in the cases herein cited, there is substantial evidence to support the verdict, and the learned trial court did not abuse his discretion in denying the motion for a new trial or for judgment notwithstanding the verdict on the ground of the insufficiency of the evidence. See cases hereinbefore cited. The rule as to the duty of a master in respect to providing a safe place to work is not applicable to a case where a servant is injured by reason of defects in, or insufficiency of a temporary structure, such as a scaffolding or framework for supporting heavy materials, which are appliances or instrumentalities by means of which the work is done. When, by the express or implied contract between the master and servants, the former undertakes to furnish the necessary tools or appliances, it is his duty to use ordinary care to see to it that such instrumentalities are safe and suitable, and this duty, when it exists, is one of the absolute or personal duties. Any servant to whom the master delegates it is pro hac vice, a vice principal, for whose negligence the master...