McCready v. Southern Pac. Co.
| Citation | 26 F.2d 569 |
| Decision Date | 02 July 1928 |
| Docket Number | No. 5270.,5270. |
| Parties | McCREADY v. SOUTHERN PAC. CO. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Bertrand J. Wellman, of Los Angeles, Cal., for plaintiff in error.
W. I. Gilbert, of Los Angeles, Cal., for defendant in error.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
Plaintiff brought this action to recover damages for personal injuries, and, from a judgment of involuntary nonsuit at the close of his case, he appeals.
At the time of his injury, he was employed as a carpenter by the C. A. Fellows Construction Company in the erection of a new shop building at Los Angeles for the defendant railroad company; the construction company being an independent contractor. The building was to be 75 feet wide and 480 feet long, and, though to be a single rectangular structure when finished, it was constructed in two units. The walls were of brick, with large window spaces. About 25 feet above the floor, and 6 or 8 feet from each side wall was an I-beam extending the full length of the building. These beams carried rails upon which traveled a heavy crane beam extending from one I-beam to the other; the crane being designed for the moving of ponderous materials and machinery, the power therefor being electrically supplied.
At the time of the accident, the westerly half of the structure was finished, and had been turned over to the railroad company. The easterly half was nearing completion, but considerable work still remained to be done. The plaintiff and other carpenters were, under their employers' directions, engaged in removing interior scaffolding which had been erected along the side walls of the unfinished unit for the use of bricklayers and other workmen in constructing the walls, which were then complete. The scaffolding consisted of long 2x6 timbers, set upright against the wall at short intervals, and crosspieces attached thereto at one end and at the other fastened to the I-beam by means of cleats; and upon these crosspieces rested a floor of heavy loose boards. The evidence tends to show that the defendant, acting directly and not through the contractor, had installed along and in close proximity to the I-beams, by means of brackets or arms attached thereto, electric wires for the transmission of current to operate the crane. For some time there was no connection between these lines in the finished unit which was in use, and those in the unfinished unit, but two or three days prior to the accident connection had been made, so that, when the current was turned on, it passed through the entire length of the building, including the unfinished portion. No reason is disclosed by the record for making the connection before the easterly portion was finished and turned over to the owner. The defendant put up conspicuous notices to the effect that the wires carried a current and were dangerous.
Desiring to remove the scaffolding, the contractor's foreman notified representatives of the defendant and sought to have the current temporarily cut off, but his requests were refused; and finally, selecting plaintiff and others of the more experienced workmen, he assigned to them the task of taking down the scaffolding, at the same time giving them appropriate warnings that they should exercise care to avoid injury from the wires. In the course of this work, the plaintiff, while standing on one of the I-beams and holding one end of a crosspiece, which he had just detached from the I-beam, to keep the other end, still attached to the upright, from falling against the wall windows, was thrown from his balance by a sudden and unexpected slipping of the attached upright, and falling came into contact with the trolley wires. As a result he suffered the loss of an arm, together with other injuries.
By its answer defendant denied negligence and affirmatively pleaded contributory negligence and assumption of risk; but, prior to the second trial of the case, the one here involved, it dismissed the latter plea. The questions for consideration therefore are whether the facts as above recited make a prima facie case of actionable negligence, and, if so, whether they disclose such contributory negligence as in...
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