Murch Brothers Construction Company v. Hays

• Decision Date: 23 November 1908
• Citation: 114 S.W. 697,88 Ark. 292
• Parties: MURCH BROTHERS CONSTRUCTION COMPANY v. HAYS
• Court: Arkansas Supreme Court

114 S.W. 697

88 Ark. 292

MURCH BROTHERS CONSTRUCTION COMPANY v. HAYS

Supreme Court of Arkansas

November 23, 1908

Appeal from Pulaski Circuit Court, Second Division; Edward W Winfield, Judge; reversed.

Reversed and remanded.

Ashley Cockrill, for appellant.

1. The rule requiring the master to furnish a safe place in which to work is not applicable where the insecurity complained of occurred in the progress of the work. 76 Ark. 69; 65 F. 48; 67 F. 507; 111 U.S. 313, 318; 58 F. 525; 12 C. C. A. 507. That rule is also not applicable in this case because the deceased was charged with the duty of preparing the place to work and of keeping it safe. 26 Cyc. 1183; Id. 113,

2. The first instruction is wrong. It assumes as a fact that appellant supplied its employees materials with which to build a platform, a matter which ought to have been submitted to the jury; and it is further erroneous in placing upon appellant the absolute duty to find out whether the platform was sound and suitable for use.

Malloy & Danaher, for appellee.

1. The evidence clearly shows that deceased had nothing to do with the making, placing or selecting the platform, or any part of the work on that floor prior to the accident. There is no evidence that any changes were being made in the platform by deceased, or that the accident was caused by reason of the progress of the work or changes being made thereby. Authorities cited by appellant are not applicable. Whether or not it was the duty of deceased to prepare the place in which to work and to keep it safe, the master in this case, having assumed that duty and furnished a place to work and walk upon, will be held liable, if it did so in such a careless and negligent manner as to result in the injury complained of. 26 Cyc. 113, 1183, 1205, cases cited in notes; 20 Am. & Eng. Enc. of L. 81; 63 N.Y.S. 357; 102 Ga. 64; 182 Mass. 368; 39 La.Ann. 1011; 85 Minn. 142; 25 So. 903; 84 N.W. 321; 89 S.W. 1091; 57 Tex. 491; 159 Pa. 403; 73 N.E. 853.

2. It is not error to state as a fact, in an instruction to the jury, a matter about which there is no dispute in the evidence. However, the first instruction, taken in connection with others given, does not assume that appellant supplied employees with materials to build a platform. Moreover there was no specific objection to it. 76 Ark. 377; 52 Ark. 180; 65 Ark. 54; 87 Ark. 396.

OPINION

BATTLE, J.

This action was brought by Nellie Hays, as administratrix of John H. Hays, deceased, against Murch Brothers Construction Company. Plaintiff states her cause of action in her complaint as follows:

That "the defendant, on the 29th day of June, 1907, and prior thereto, was engaged as contractor in the erection of a certain building in the city of Little Rock, Arkansas, known as the Iron Mountain Railway Station, and as such contractor had full and exclusive charge, management and control of said building and the work thereon. That on the 29th day of June 1907, plaintiff's intestate, John H. Hays, was employed by defendant as carpenter in and about the erection of said building, and it was the duty of the defendant to provide him with a good, safe and secure place for plaintiff's said intestate to perform his work and with good, safe and secure joists, planks, beams, scaffolds and platforms where plaintiff's intestate was directed and sent to work upon. That prior to the 29th day of June, 1907, defendant erected and caused to be erected joists and beams upon which were placed planks for the purpose of enabling plaintiff's intestate and workmen to stand and work while engaged in their employment." * * * That it "erected or caused to be erected said place to work with beams, joists, planks, platforms and scaffold, loose, unfastened, in a dangerous and unsafe and improper manner, rendering said place of work and appliances unfit for the purpose for which they were to be put. That on the 29th day of June, 1907, plaintiff's intestate was directed to go upon said joists, planks, beams, and went upon same in the performance of his duties at defendant's order, and while engaged in his work said joists, beams and planks, by reason of their defective condition and improper construction and fastening, gave way, and plaintiff's intestate was thereby precipitated a great distance below, and received from the fall severe injuries, which resulted in his death a few minutes later."

Defendant answered and denied each and every material allegation in the complaint.

The facts of the case are, in part, as follows: The defendant was engaged in the construction of a railroad depot at Little Rock. John H. Hays was a carpenter, and was employed in that capacity by it to assist in building the depot, and was foreman of the carpenters engaged in the same work, with power and control over them. Defendant had reached the construction of the third floor of the building when Hays fell from that floor and was killed.

Evidence was adduced in the trial by the plaintiff tending to prove that Heinze, the defendant's superintendent, caused a platform or temporary floor to be laid in the third story of the depot to be used as a place for standing and walking by those engaged in the construction of that building; that, in the laying of the platform or floor, a plank with a large knot in it was used and was insufficiently supported. Hays stepped on it, broke it at the knot, and fell to the ground, and was fatally injured. On the other hand, evidence was adduced tending to prove that Heinze had nothing to do with the laying of the temporary floor, and that Hays had the exclusive supervising of it, and was not standing on a plank at the time he fell, but was standing with his feet on the wall, and was thrown from that place in an effort to lift a heavy joist.

The court instructed the jury, over the objections of the defendant, as follows:

"1. It was the duty of the defendant, when supplying its employees materials with which to build the platform which the plaintiff complains of as defective, to use reasonable and ordinary care to inspect said materials, and find out before using it, whether it was sound and suitable for the use to which it was to be put. If you believe from the evidence that the defendant neglected this duty and, in consequence of such neglect, placed, for use as a platform, an unsound plank, not strong enough to sustain a man's weight, and that the plaintiff's intestate was ignorant of the unsoundness of said plank, and stepped upon it, while in the proper discharge of his duties as an employee of the defendant, and in the exercise of due care, and was thrown to the ground and injured thereby; and if you further believe from the evidence that plaintiff's intestate could not, before stepping upon it, by the use of ordinary care, detect the unsoundness of said plank as it lay where the defendant had placed it, but that the same could have been discovered...