McGowan v. Nelson

• Citation: 92 P. 40,36 Mont. 67
• Parties: McGOWAN v. NELSON et al.
• Decision Date: 25 October 1907
• Court: United States State Supreme Court of Montana

92 P. 40

36 Mont. 67

McGOWAN v. NELSON et al.

Supreme Court of Montana

October 25, 1907

Appeal from District Court, Silver Bow County; Geo. M. Bourquin Judge.

Action by James P. McGowan against George Nelson and Hans Pederson. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Maury & Hogevoll, for appellant.

Kremer Sanders & Kremer, for respondents.

SMITH J.

This action was begun in the district court of Silver Bow county to recover of the defendants the sum of $5,000 damages alleged to have been sustained by the plaintiff by reason of an injury received by him while in the employ of the defendants. The charging part of the complaint is as follows: "That it was the duty of his (plaintiff's) master, defendants, Nelson, and Pederson to use reasonable diligence and care to the end that this plaintiff have a safe place to work. That disregarding the said duty the defendants negligently allowed to remain piled, and caused to be piled, about twenty (20) feet above where plaintiff was working and out of sight of the plaintiff, a large pile of loose plank so negligently piled as to be in a condition of unstable equilibrium and in a condition of such equilibrium that the slightest jar of workmen walking by the said pile would overturn it, and so that the slightest wind would overturn the said pile of plank. That there was some jar occasioned by some means unknown to plaintiff, and the said pile of plank fell over on and upon the said plaintiff, through the negligence of the defendants, while the plaintiff was working underneath the said pile of plank, and while the plaintiff was exercising all care on his part. That one of the said planks from the said pile, being about twelve feet long, two inches thick, and eight inches wide, through the said negligence of the defendants in piling the same, as aforesaid, fell from the said pile a distance of twenty (20) feet, and thus the defendants did strike the plaintiff with the said plank with great force and dislocated the right scapula in plaintiff's shoulder and injured plaintiff's hand and permanently injured plaintiff to his damage in the sum of five thousand dollars ($5,000), no part of which has ever been paid." The answer puts in issue the material allegations of the complaint and pleads affirmatively contributory negligence on the part of the plaintiff and assumption of risk.

The plaintiff's testimony was: That on the 15th day of June, 1906, he was in the employ of the defendants, carrying lumber up from the second basement of what was called the "Symons Building," in the city of Butte, and handing it up to the man on the floor above; that on that day he was struck on the shoulder with a plank, which knocked him down, broke his shoulder, and hurt him in the back of the neck. He says: "I happened to stand in that particular place where I was hurt because there was no other place to stand except right over the hole where we were putting the lumber up. I should judge the lumber was going about 20 feet above me. I hoisted it up to the first floor, and then another man took it and hoisted it to another floor again. The place where the lumber was being piled was not in sight of me. I could not see it. My back was this way, and that kept me from looking up where it was. Three planks came down. They came right down in a bunch. One hit me-maybe two-and it knocked me out, and they carried me down to the platform and put me in a wheelbarrow. I have not been able to do anything since then except watching. My shoulder has prevented me from working. The planks came from the second floor from where I was, the second floor above me. I expected that these planks were to be used as floor joists on that second floor above where I was. As to whether I could see plank lying along upon that floor, I never looked above. I don't think I could have seen that there were these plank lying across the floor beams or girders if I had looked. There was a hole there, and these plank were piled along there. I could not see that lumber piled there. I never looked at the floor above. I was very busy shoving lumber up above me. I don't see how I could have seen that condition of the lumber above if I had looked. I expected that these planks were being taken up there for floor joists. I did not know where. It is a big building. I should judge three planks came down, and some of them hit my shoulder; one hit me, I know that. It knocked me out. I stayed there for maybe three-quarters of an hour after being struck. Then I walked home. I was in the basement, and I went from there to Nelson's office and from there home. I went to Mr. Nelson's office for my coat. At that time I said a carpenter had dropped some plank on me. I said that somebody dropped a plank on me. I told Mr. Nelson and everybody that there was a plank dropped on me. It must have been a carpenter that dropped it, because he fired the carpenter then and there. I said somebody handling lumber above dropped a plank on me; I suppose it was a carpenter."

Thomas Frazer testified for the plaintiff: "I saw something happen there on that day to Mr. McGowan. He was hurt. A plank struck him. A plank came down through the upper floor. I was standing about 15 feet away from McGowan when that plank came down. I was not on a level with him. He was on the station and I was below him. I think two planks came down at that time. I am not certain how many planks came down. I should judge the plank was about twelve feet long, two by eight inches. I don't know what distance it fell. They fell two floors. I could not say the number of feet. The floor right above McGowan was the place he was passing the plank through. The floor right over him had been laid. They were working on...