Parlett v. Dunn

• Decision Date: 10 February 1904
• Citation: 46 S.E. 467,102 Va. 459
• Parties: PARLETT . v. DUNN.
• Court: Virginia Supreme Court

46 S.E. 467

102 Va. 459

PARLETT .

v.DUNN.

Supreme Court of Appeals of Virginia.

Feb. 10, 1904.

MASTER—INJURIES TO SERVANT—DUTIES OF MASTER—SAFE PLACE TO WORK—SAFE APPLIANCES — REASONABLE CARE — ERROR IN JUDGMENT—ASSUMPTION OF RISK—ACTIONS FOR INJURIES—EVIDENCE—EXPERT TESTIMONY—INSTRUCTIONS—INAPPLICABILITY TO EVIDENCE.

1. In an action for a servant's injuries, expert evidence is admissible to show the usual method of putting up a hoisting apparatus, consisting of a derrick slightly inclined, and held in position by guy ropes, as the manner in which such an apparatus should be constructed, placed in position, and fastened, so as to make it reasonably safe, is not within the range or experience of men not skilled in the use of such appliances.

2. In an action for servant's injuries, expert testimony as to witness' own practice in guying up a derrick, rather than as to the usual or customary manner of doing such work, was improper.

3. It is the duty of a master to use ordinary care and diligence to provide a reasonably safe place in which his servant is to work, considering the character of the work to be done, and for a failure to do so he is liable for resulting injuries to the servant.

4. A servant who, when employed, knew what kind of work he was to do, and claimed to have had experience in such work, and knew that there was neither floor nor scaffolding on either side of the girders where he was to work, and, with full knowledge of the obvious danger, con tinued to work on the girders without complaint or objection, must be held to have assumed the risk.

5. In an action for servant's injuries, an instruction as to the master's duty not to expose the servant to risks beyond those incident to his employment, and such as were in contemplation at the time of the contract of service, was improper, where there is no evidence of such exposure.

6. It is the duty of the master to use ordinary care and diligence to provide for the use of his servants reasonably safe and suitable appliances for the work to be done.

¶ 6. See Master and Servant, vol. 34, Cent. Dig. §§ 173, 178.

7. The construction and setting up of a hoisting apparatus, which required skill and knowledge of mechanical forces in order to render it safe for the work to be done by servants, and which was put in position for the purpose of raising all the material for a building, is an appliance concerning which it is the master's duty to exercise ordinary care to see that it is reasonably safe; and it is not within the rule that the adjustment of implements to the work in hand, according to its varying needs, belongs to the duties of the servant, and not to those of the master.

8. The master's duty in furnishing safe appliances is to use that ordinary care which persons of ordinary prudence would exercise under the circumstances of the particular case, and he is not negligent for not adopting some method or instrumentality which some people believe to be less perilous than the method adopted.

Error to Law and Chancery Court of City of Norfolk.

Action by one Dunn against C. R. Parlett. There was judgment for plaintiff, and defendant brings error. Reversed.

Hughes & Little, for plaintiff in error.

Wolcott, Wolcott & Gage, for defendant in error.

BUCHANAN, J. This is an action by an employs to recover damages from his employer for personal injuries resulting from the alleged negligence of the latter in failing to provide for the plaintiff a reasonably safe place in which, and reasonably safe and suitable appliances or machinery with which, to work.

The defendant, C R. Parlett as general contractor, was building a warehouse in the city of Norfolk, upon which the plaintiff was working at the time of the accident. Through the building, 15 or 16 feet apart, were upright pillars, upon which rested horizontal girders, 12 by 14 inches. On these girders the floor joists were placed. The joists were raised from the ground to the second and third stories by means of a hoisting apparatus known as an "A" or breast derrick. It was 8 feet wide at the bottom, 12 inches wide at the top, and 26 feet high. The bottom of it rested on second-story joists, or on timbers resting on and at right angles to, the joists on the edge of a wellhole where the joists had not been placed, through which building material was to be raised. The derrick did not stand perpendicular, but inclined slightly toward the wellhole, and was held in position by two guy ropes, each fastened to thecenter of the top piece—one extending to the rear and the other to the front of the derrick, at right angles to it, and made fast To the top of the derrick was attached a pulley, through or over which a rope came down in front of the derrick and over the wellhole, to which the building material was to be attached. The other end of the rope ran down to a pulley or snatch block attached to a pillar by a rope. From this pulley the rope extended back through another pulley to a hoisting engine in the rear and to the left of the derrick. From the ground to the bottom or foot of the derrick was about 17 feet and the pitch or height of the second story was 12 feet.

The derrick had been placed in position on Monday prior to the injury on the following Friday, and used without accident during that period to raise the second-story joists, all of which had been laid, except those over the wellhole. At the time of the accident the joists for the third story were being raised, and Dunn and three other employes were engaged in guiding, receiving, and piling the joists as they were hauled to the third story. Their place of work, as the joists came up through the wellhole, was on the girders upon which the third-story joists were to be placed. Dunn and another employs were on the girder to the right, and McDonald, the foreman on that floor, and the other employe, were on the girder to the left, of the derrick, awaiting or looking out for a load of joists which was being hoisted. While in that position the derrick swung around or fell over towards Dunn, and struck and knocked him off the girder, causing him to fall upon the joists on the second story, and inflicting the injuries described in the declaration.

The cause of the accident, the plaintiff claims, was the negligent and faulty construction of the hoisting apparatus, and the failure to provide him a safe place to work on the third story.

The evidence shows that there was no flooring or scaffolding on the third story around or along the girder where the plaintiff was working. It further shows that the plaintiff was employed, among other things, to work overhead in the building in raising joists, and that he held himself out, when employed, as having had experience in such work. The evidence further shows that the defendant furnished the material, including pulleys, guys, and ropes, for making the hoisting apparatus; that it was constructed...