Nuss v. Rafsnyder

• Decision Date: 11 November 1896
• Docket Number: 239
• Citation: 178 Pa. 397,35 A. 958
• Parties: Lewis C. Nuss v. Edwin Rafsnyder, Appellant
• Court: Pennsylvania Supreme Court

35 A. 958

178 Pa. 397

Lewis C. Nuss v. Edwin Rafsnyder, Appellant

No. 239

Supreme Court of Pennsylvania

November 11, 1896

Argued April 8, 1896

Appeal, No. 239, Jan. T., 1896, by defendant, from judgment of C.P. No. 4, Phila. Co., March T., 1894, No. 207, on verdict for plaintiff. Reversed.

Trespass for personal injuries. Before WILLSON, J.

At the trial it appeared that defendant was the owner of real estate in Philadelphia, and was erecting thereon a number of three story houses. The American Cornice Company had a contract with the defendant to construct the cornices on the buildings, the defendant agreeing to furnish the scaffolding necessary for the work. The plaintiff and one Krimmel were employed upon the scaffold by the Cornice Company. The scaffold broke on Monday, June 18, 1894, and plaintiff was injured. The circumstances connected with the accident are stated in the opinion of the Supreme Court.

The court charged in part as follows:

[Now the defendant undoubtedly, under the evidence in this case was bound to provide a suitable platform or scaffolding at this place, so that the workmen employed in the putting up of this cornice could work there safely. He assumed that duty under the contract. He undertook it, even if he did not assume it under the contract. He did construct a scaffolding for that purpose. He was therefore bound to construct it properly, so that it could be safely used in the ordinary way.] that it could be safely used in the ordinary way.]

[If, in point of fact, this scaffolding was built without any support to the heels of the board, called ledger boards, and otherwise those ledger boards were not fastened so as to hold the probable weight of people working on them, to do the work which the plaintiff was assisting in doing, and the scaffolding was not so weak and tremulous as to have shown the plaintiff that he ought not to stay there, in that case the defendant was at fault, and he was seriously at fault and it would be a perfectly proper thing to make him pay for the consequence, according to a reasonable standard.]

Defendant's points and answers thereto were as follows:

1. Under all the evidence in this case, the verdict must be for the defendant. Answer: Refused. [3]

2. If the scaffold was constructed as the plaintiff states, without uprights inside the room to support the ledger boards, and the plaintiff knew the fact when he went on it on Monday, the verdict must be for the defendant. Answer: Refused. [4]

Verdict and judgment for plaintiff for $2,000. Defendant appealed.

Errors assigned were (1-4) above instructions, quoting them.

Judgment reversed.

Leoni Melick, with him Sheldon Potter, for appellants, cited: Ardesco Oil Co. v. Gilson, 63 Pa. 150; Walton v. Hotel Co., 160 Pa. 5; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 186; Sykes v. Parker, 99 Pa. 467; Rumsey v. R.R., 151 Pa. 74; Blackmore v. R.R., 8 El. & Bl. 1035; Curtin v. Somerset, 140 Pa. 77; Congregation v. Smith, 163 Pa. 561; Winterbottom v. Wright, 10 M. & W. 115.

Lincoln L. Eyre, for appellee, cited: Oak Ridge Coal Co. v. Reed, 5 W.N.C. 3; Brownfield v. Hughes, 128 Pa. 194; Coughtry v. Glove Woolen Co., 56 N.Y. 124; King v. N.Y. Central, 66 N.Y. 181; Pottstown Iron Co. v. Fanning, 114 Pa. 234; 14 Am. & Eng. Ency. of Law, 837, 845; Cougle v. McKee, 151 Pa. 602; Fitzpatrick v. Riley, 163 Pa. 65; Fritz v. Jenner, 166 Pa. 292; Tissue v. R.R., 112 Pa. 91; R.R. v. Keenan, 103 Pa. 124; Murphy v. Crossan, 98 Pa. 495; Patterson v. R.R., 76 Pa. 389; Madara v. Pottsville Iron & Steel Co., 160 Pa. 109; Lee v. Electric L.H. & P. Co., 140 Pa. 618.

Before STERRETT, C.J., GREEN, McCOLLUM, DEAN and FELL, JJ.

OPINION

MR. JUSTICE McCOLLUM:

It was the duty of the defendant to erect a suitable scaffold on which the plaintiff could properly and safely perform the work he was sent to do, and the first question to be considered in the case is whether this duty was discharged. The plaintiff submitted evidence tending to show that it was not, and that the neglect to discharge it was the cause of his fall. A part of this evidence was descriptive of the manner in which scaffolds were usually constructed for the performance of such work as the plaintiff was required to do and was to the effect that scaffolds so constructed were safe. It was also to the effect that a scaffold constructed as the plaintiff and his witnesses testified the one in question was, was unsafe. This branch of the plaintiff's contention was answered by the defendant with evidence showing that the scaffold was constructed precisely as the plaintiff's experts testified it should have been in order to make it secure and a proper place for the performance of the work. It will thus be seen that the parties agreed as to what should have been done by the defendant, and disagreed as to what was done by him. If, therefore, the plaintiff's evidence on this point was believed it established the charge of negligence, and if the defendant's evidence was credited there should have been a verdict in his favor. It was not possible to reconcile the conflicting testimony. Assuming that the plaintiff's evidence was believed by the jury, and that the defendant's evidence was not, the next question for us to consider is whether the plaintiff was chargeable with contributory negligence. It seems to be conceded that his fall was attributable to the defective condition of the scaffold. He says that this condition was the result of the defendant's negligence in the construction of the scaffold, and the defendant says it was caused by a change or alteration of the scaffold by Krimmel. Did the plaintiff go upon the scaffold on Monday with knowledge of its condition? It is contended by the...