Nelson v. Martinson

• Decision Date: 19 March 1914
• Docket Number: 3932.
• Citation: 212 F. 912
• Parties: NELSON v. MARTINSON.
• Court: U.S. Court of Appeals — Eighth Circuit

212 F. 912

NELSON v. MARTINSON.

No. 3932.

United States Court of Appeals, Eighth Circuit.

March 19, 1914

Morton Barrows, of St. Paul, Minn., for plaintiff in error.

Philo Hall, of Brookings, S.D. (Hall, Alexander & Purdy, of Brookings, S.D., on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and AMIDON, District Judge.

SMITH Circuit Judge.

This was a suit by Anton Martinson, hereafter called the plaintiff, against J. B. Nelson, hereafter called the defendant, to recover damages for personal injuries. It resulted in a verdict for the plaintiff, and the defendant sued out this writ of error.

While the defendant had preserved numerous exceptions at the trial he has submitted the case substantially upon the sole question of whether his motion for a directed verdict should have been sustained. This being the only question for consideration, it requires a somewhat detailed statement of the facts, assuming, however, that on all disputed questions the jury found for the plaintiff.

The defendant had the contract for building a new courthouse for the county of Brookings in South Dakota at the city of Brookings. This courthouse was of substantially fireproof construction. The defendant did not live at Brookings but went there often during the early stages of the work and less frequently thereafter. Oscar Johnson, a carpenter by trade was the defendant's general foreman in charge of the construction of the building. He had under him various bodies of workmen, carpenters, brick masons, stone masons plasterers, and common laborers. The principal work of the carpenters before the finishing of the building commenced was in building false work and scaffolds for the concrete workmen and bricklayers and inserting, if not constructing, window and door frames. The entire work was completed up to the roof which was to be of concrete. About three-fourths of this concrete was on and the portion at the southeast corner of the building was yet to be placed. The east side of the roof as planned sloped down from the dome to the edge of the roof at the rate of three inches of fall to a foot of horizontal distance. At the edge of the roof was a low parapet. It was necessary to construct a scaffold or runway along this roof and within a few feet of the eastern edge from north to south to carry material for the unfinished portion of the roof. The general foreman directed Evan Anderson, one of the carpenters, to take charge of the construction of this runway.

He did so by constructing first a series of brackets on the roof at a distance of about eight feet apart upon which to lay planks. These brackets were constructed by taking lumber two inches thick, eight or ten inches wide, and seven feet long and resting the west end upon the roof. A similar piece of lumber stood upright at the end of each of these horizontal pieces, the width of the uprights extending from north to south, and three or four spikes were then driven through this end piece of the bracket into the end of the horizontal piece. As the roof fell three inches to a foot, in seven feet it would fall 21 inches, and, as it was necessary for the end piece to extend at least as high as the top of the 8 or 10 inch horizontal piece, the end pieces must have been from 29 to 31 inches in height. It appears that the spikes used were 16 penny spikes, which are 3 1/2 inches in length, so that they penetrated the ends of the horizontal pieces slightly more than one inch and a half. There was no diagonal piece from the lower part of the upright to the horizontal piece in these brackets. Owing to the sloping character of the roof, the horizontal piece at the west end rested upon a line substantially as all lines are without width, and the same is true of the upright which supported the horizontal piece. It was thus possible for either end of the bracket to slide upon the roof. The method used is frequently applied in the construction of scaffolds, but there are other and more secure ways of accomplishing the same thing. If the end piece was cut to fit under the horizontal piece, there would be no possibility of its breaking down from the shortness of the spikes or the like, and if the upright piece had in its width extended from east to west, and had lapped over upon the horizontal piece, spikes would have held far more firmly than driven into the ends of the horizontal pieces. Upon the completion of the brackets 4 parallel planks 2x10 inches were laid upon them, thus making a runway about 40 inches wide. The plaintiff helped to carry some of the lumber to the place where this runway was erected for use by the carpenters in its construction, but he denies that he took any part whatever in the actual construction. On the following day the plaintiff was assigned to aid in the laying of the concrete upon the balance of the roof. The concrete was mixed upon the ground, put into a wheelbarrow, carried up an elevator to the roof, then along this runway to the place where it was needed. Each wheelbarrow load of concrete weighed about 300 pounds, and the plaintiff himself weighed about 180 pounds. As he was wheeling such a load, the runway gave way, when the bottom of one of the uprights slid down the roof some inches, the runway itself gave down, and the plaintiff was thrown over the parapet to the ground beneath, a distance of about 40 feet, and as a result was severely injured. An examination of the runway immediately following the accident showed that the spikes were partially pulled out of the horizontal piece.

It is contended by the defendant that the plaintiff was the fellow servant of the carpenters who built the runway, and the master is not liable for any negligence that the carpenters may have displayed in its construction.

The jury had a right to find under the evidence that the plaintiff had no part whatever in the construction of the runway except to carry material to the vicinity for use by the carpenters.

The doctrine that the master is not liable for an accident the result of the negligence of a fellow servant of the party injured dates back in this country to 1841, when it was first announced by the Supreme Court of South Carolina in Murray v. South Carolina Railroad Co., 1 McMul. 385 36 Am.Dec. 268. The same doctrine was announced the following year in Massachusetts in Farwell v. Boston & Worcester Railroad Co., 4 Metc.(Mass.) 49, 38 Am.Dec. 339. It was first announced in England in Hutchinson v. York, Newcastle & Berwick Railway Co., 5 Exch.R. 343. Se Chicago, Milwaukee & St. Paul Railway Co. v. Ross, 112 U.S. 377, 5 Sup.Ct. 184, 28...