Meers & Dayton v. Childers

• Decision Date: 10 January 1916
• Docket Number: 2677.
• Citation: 228 F. 640
• Parties: MEERS & DAYTON v. CHILDERS.
• Court: U.S. Court of Appeals — Sixth Circuit

228 F. 640

MEERS & DAYTON v. CHILDERS.

No. 2677.

United States Court of Appeals, Sixth Circuit

January 10, 1916

J. C Wilson and W. P. Armstrong, both of Memphis, Tenn., for plaintiffs in error.

M. J Anderson and Ike W. Crabtree, both of Memphis, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

Defendant in error brought an action for personal injuries against plaintiffs in error, and recovered a verdict of $3,500 which, upon an accepted order of remittitur, was reduced to $2,000 and judgment was entered accordingly. We shall speak of Childers as plaintiff, and Meers & Dayton as defendants. At the close of the testimony offered on both sides, the defendants upon specific grounds moved that a verdict be directed in their favor. The motion was denied, and exception reserved. Error is prosecuted upon assignments which are treated by all the counsel as presenting simply the question whether the record discloses any evidence that entitled plaintiff to have the case submitted to the jury. The charge of the court does not appear in the record, and for the reason, as counsel agree, that no exception was taken to it. It must therefore be assumed that the court rightly instructed the jury in respect of each of the issues.

Upon motion of defendants for a new trial (which, in addition to the grounds contained in the motion to direct a verdict, stated that there was 'no evidence to support the verdict'), arguments were heard, and relief was denied except in reduction of damages. The jury, under proper instructions, and also the trial court, upon the motion, were thus required to weigh the testimony; and this court is asked to hold that there was no substantial evidence for submission to the jury.

One of the issues in substance was whether, in view of the dimensions and the use made of the particular structure in question, called a 'scaffold,' the defendants were primarily responsible for the character of materials it comprised. At the time of the injury the defendants were engaged in the erection of concrete walls for a power house in the city of Memphis, and plaintiff was in their employ as a carpenter's helper and in other kinds of work about the plant. Evidence was introduced tending to show, among other things, that the so-called scaffold, which was built on a hillside and adjoining a concrete wall then in course of construction, was composed of pine lumber, 2x6, and was 28 feet long and 12 feet wide, with one end 4 feet and the other 8 feet above the ground; that it was built by a carpenter with whom plaintiff was accustomed to work, and from 1,500 to 2,000 feet of lumber was piled upon the structure, while plaintiff was absent from the plant; that shortly afterwards, and while plaintiff was assisting the carpenters in the construction of the wooden form which was designed temporarily to hold the concrete, he was directed to hand a plank from the so-called scaffold to the carpenters. He either 'swung down' with his hands or climbed down a ladder to the structure, when the structure gave way at the end nearest the ground and caused his injuries.

The evidence in several ways tends to show that this structure was not the ordinary scaffold which is constructed from time to time for the temporary accommodation of workmen and materials as the work progresses. Indeed, one of the defendants, Meers, testified in reference...