Parkhurst v. Swift

• Decision Date: 28 October 1903
• Citation: 31 Ind.App. 521,68 N.E. 620
• Parties: PARKHURST et al. v. SWIFT.
• Court: Indiana Appellate Court

31 Ind.App. 521

68 N.E. 620

PARKHURST et al.

v.SWIFT.

Appellate Court of Indiana, Division No. 2.

Oct. 28, 1903.

Appeal from Superior Court, Madison County; Henry C. Ryan, Judge.

Action by Benjamin F. Swift against John W. Parkhurst and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Kittinger & Diven, for appellants. Ellison & Ellis, for appellee.

BLACK, J.

The appellee recovered judgment against the appellant in an action for damages for a personal injury. There were three paragraphs of complaint, but before trial the appellee dismissed as to the first paragraph. The Alexandria Paper Company was a defendant with the appellants, but the court sustained its motion, at the close of the evidence, to instruct the jury to return a verdict for that defendant. A demurrer of the appellants for want of sufficient facts to each of the second and third paragraphs of the complaint was overruled.

So far as the second and third paragraphs differ one from the other, it appears from the record that the verdict was based on the third paragraph, rather than the second, and an examination of the third paragraph alone will be sufficient. It was, in substance, alleged therein that the paper company was a corporation, and that the appellants were partners doing business under the firm name of Parkhurst Bros. & Co., and were engaged in constructing elevators and in putting them in place and operation; that on and before December 14, 1899, the paper company was constructing a large factory building in the city of Alexandria, Madison county, Ind., and at that date and immediately prior thereto the appellants, as partners, were constructing an elevator and putting it in place and operation in the factory building for the paper company; that the contract and arrangement between the paper company and the appellants by which the latter were building the elevator was to the appellee unknown; that he was a carpenter by trade, and for many weeks prior to the date mentioned he was in the employ and under the direction and control of the paper company, and working in and upon the factory building, except as hereinafter stated; that about four days prior to December 14, 1899, the paper company ordered and directed the appellee to go to work for the appellants, and in all things to obey the orders and directions of the appellants, and to work for and assist them in putting the elevator in the factory building, which directions and arrangements were agreed to and fully acquiesced in by the appellants; that, pursuant to these orders and directions, he did, about four days prior to the date mentioned, go to work for the appellants in and upon the construction of the elevator and putting it in place in the building, and he so continued to work for the appellants until the injury complained of herein; that in constructing the elevator the defendants intrusted the work and the supervision thereof wholly and exclusively to the agent and superintendent of the appellants; that his name was unknown to the appellee; that this agent and superintendent of the appellants had the exclusive supervision and control of the conditions surrounding the work, and the sole and exclusive management, control, and supervision of all the work of constructing the elevator and putting it in place and running order, and had at all times full authority to employ or discharge such hands as he deemed necessary to the proper prosecution of the work, and had at all times full and complete authority to direct when and where and how and with what tools and appliances each and every hand engaged in and upon the work of constructing the elevator and putting it in place and running order should work, and in all the work and the supervision and control thereof this superintendent acted in all things for and instead of the defendants; that on the day above mentioned, and for four days prior thereto, the appellee was and had been continuously working upon the construction of the elevator and putting it in place and running order in the factory building, and was under the exclusive control and direction of this agent and superintendent; that about three days before December 14, 1899, the appellants had cut a large hole about six by seven feet in both the second and third floors of the factory building, for the purpose of allowing the elevator to pass through these floors in its ascent and descent when in operation, and at the same time the appellants constructed a large wooden scaffold about eight feet above the third floor, which scaffold was constructed by standing four small scantlings of timber on end on that floor, one of which was placed on the floor just outside of each of the corners of this large hole or opening on the third floor; that the appellants nailed cross-timbers to these upright scantlings about eight feet above the third floor, and laid on these cross-timbers heavy wooden boards or a flooring for the scaffold; that the appellants then braced and stayed the scaffold by nailing slats of timber from the base of each upright timber to the top of the next upright timber, and then crossing such braces with other braces at right angles and nailing the same to the upright timbers at top and bottom; that the scaffold so completed was directly over the hole above mentioned in the third and second floors-all of which facts were at all times known to the paper company; that on December 14, 1899, while the appellee, pursuant to the orders and directions of the paper company, was working for the appellants, and while he was under the exclusive and absolute control and directions of the agent and superintendent above mentioned of the appellants and the paper company, this superintendent ordered and directed the appellee to take a handsaw and saw an opening, or make a small hole, in the second floor of the factory building at the edge of the large hole in the floor, the small hole being for the purpose of an opening through which a cable rope for raising and lowering the elevator was to pass; that the appellee at once went to work sawing out the small hole, and while he was so at work the superintendent, while in the line of his duty as such, negligently and carelessly knocked loose and took away said braces of the scaffold, well knowing that the appellee was working under the same, and that it was rendered liable, by that act of removing the braces, to fall, and the timbers thereof to strike and injure the appellee; that the superintendent, when this was done, well knew that it would render the place where the appellee was at work a very hazardous and dangerous one; that about two hours after this removal of the braces, and while the appellee was still at work sawing out the hole in the second floor, the superintendent, while in the line of his duties as such, carelessly and negligently ordered one of the employés of the appellant to go upon the third floor of the factory building and climb on the scaffold to do some work thereon wholly disconnected with the work the appellee was doing; that the superintendent, at the time he so ordered the said employé to so go upon the platform, well knew that his act in so ordering the employé and the act of the employé in obeying the order would render the place where the appellee was working a very dangerous and hazardous one, and that the same was liable to throw the platform, or a part thereof, down on the appellee, and greatly injure him, and the superintendent then well knew that his act in removing the braces and his thereafter ordering the employé to go upon the scaffold made it liable to be thrown down and to fall upon and injure the appellee; that in obedience to said command of the superintendent the employé attempted to go upon the platform, when, by reason of the braces being removed from the timbers thereof and the attempt of the employé to climb upon the platform, the scaffold and the timbers thereof separated and fell apart, allowing and causing one of the heavy boards on the scaffold to fall through the hole in the third floor in such a way that it struck the appellee upon the back and side and greatly and permanently injured him. His injuries and expenses were here stated in detail. It was alleged that the appellee at no time had any knowledge or notice, before he was injured, that the braces had been removed from the frame of the platform, or that any one was ordered to go upon the platform, or was attempting or was about to go upon it; that the injury was brought about wholly and solely by reason of the negligence of the agent and superintendent and the negligence of the paper company in not providing and maintaining a safe place for him to work in, and the negligence of the superintendent in removing the braces from the scaffold and ordering said employé to go and causing him to attempt to go upon the scaffold as aforesaid, and thereby making the place where the appellee was at work an unsafe, dangerous, and hazardous one in which to work; that by his said injuries so received he was damaged in the sum of, etc., for which he demanded judgment against each and all of the defendants.

With the general verdict in favor of the appellee the jury returned answers to interrogatories, and the court overruled a motion of the appellants for a judgment in their favor thereon notwithstanding the general verdict. It was thus specially found that the appellee had been working as employé doing general carpenter work for the paper company prior to December 10, 1899; that the paper company contracted with the appellants to furnish and put in an elevator in the factory building for the sum of $325; that a man named Gentry came to...