Penson v. Inland Empire Paper Co.

• Decision Date: 06 May 1913
• Citation: 132 P. 39,73 Wash. 338
• Parties: PENSON v. INLAND EMPIRE PAPER CO.
• Court: Washington Supreme Court

132 P. 39

73 Wash. 338

PENSON v. INLAND EMPIRE PAPER CO.

Supreme Court of Washington

May 6, 1913

Department 2. Appeal from Superior Court, Spokane County; Henry L Kennan, Judge.

Action by C. G. Penson against the Inland Empire Paper Company. Judgment for plaintiff. Defendant appeals. Affirmed on condition.

Post, Avery & Higgins, and Voorhees & Canfield all of Spokane, for appellant.

Graves Kizer & Graves, of Spokane, for respondent.

ELLIS J.

This is an action to recover damages for personal injuries resulting to the plaintiff from the falling of a scaffold on which he was standing while painting the inside of the roof of the defendant's building. The building was about 230 feet long. The part of the interior of the building included within the slanting sides of the roof was divided into some 18 sections by open framework which extended from the top of one side wall to the top of the other and up to the apex of the roof, and consisted of a beam or girder resting upon the side walls, from which beam, passing up and supporting the roof, were heavy braces of timber. The staging for painting the roof was constructed by nailing flat to these braces timbers 2X4 inches in dimension, upon which were placed the ends of two 3X6-inch timbers about 18 feet long, extending from one of these frameworks to the next one, and upon these 3X6-inch timbers were laid crosswise three planks, 2 inches thick and 10 to 12 inches wide and 16 feet long. Upon these planks the painters stood while painting the roof, shifting the planks along the 3X6-inch timbers when necessary. The only part of this staging which was nailed or in any manner fastened was the 2X4-inch timbers nailed to the framework of the building as above described. There were three stagings used at the same time, an upper staging from which to paint the upper part and apex of the roof, and lower stagings on each side from which to paint the lower part of the roof. They were not put up throughout the building at the same time, but were constructed as the work progressed; the men constructing the staging keeping about two section ahead of the painters, and using the same timbers repeatedly by taking them from a section where the work was completed and shifting them to the section immediately ahead of that where the painters were them at work, this process being repeated as the work progressed. There were eight or nine painters employed in painting this roof, all under a foreman, who had the power to hire and discharge the men and general direction over their work. This foreman, together with another man selected by him for the work, personally constructed the staging, which took practically their full time. The only work which the painters performed in connection therewith was to assist in passing the 3X6 timbers over the staging where they were at work into the next section to a point where the foreman and his assistant could receive these timbers on the ends of poles and thus carry them across to the next 2X4 support and place them in position. The evidence shows that no one except the foreman and his assistant had anything to do with selecting the timbers and nailing in position the 2X4 supports. In the course of painting the building, the plaintiff was twice employed and once discharged by the foreman. When first employed, in the month of June, he worked wholly on the outside of the building. When he was re-employed, on July 7, 1911, the inside priming had already been done. On that day he and the other painters began putting on the second coat at the north end of the building, working back by sections towards the south end; the foreman and his assistant keeping ahead of them in the construction of the staging. On the morning of July 13th the work had reached the last section at the south end of the building. The plaintiff, standing upon the upper staging, had finished painting the roof near the apex and let himself down upon one of the lower side scaffolds, the south end of which was supported by a 2X4 timber nailed to the uprights in the south gable of the building. This timber had been nailed there when the priming first begun and had never been removed. There was another man upon this scaffold at the time; the painters usually working in pairs from the same scaffold. The plaintiff had been on this lower scaffold only a short time, he testified about 10 minutes, when the foreman came upon the scaffold, advanced towards the middle of it, and the 2X4 timber supporting the south end broke. The scaffold fell, precipitating the three men to the floor 30 feet below, inflicting upon the plaintiff the injuries complained of. Briefly, the negligence charged was that the defendant, having undertaken through its foreman to furnish a staging for the painters as a completed structure, constructed it so carelessly, unskillfully, and negligently, and of such faulty, improper, and unsuitable material, that it broke and fell, causing the plaintiff's injuries. The answer denied negligence, admitted that the foreman had charge of painting the building, and set out as affirmative defenses that the plaintiff assumed the risk; that he was guilty of contributory negligence; and that, if his injury was not due to his own negligence, it was caused by the negligence of a fellow servant. The affirmative matter was traversed by the reply. At appropriate times in the progress of the trial, the defendant interposed a motion for a nonsuit, a motion to take the case from the jury, and a motion for judgment notwithstanding the verdict, all of which were denied. The jury returned a verdict of $30,000 for the plaintiff. Judgment was entered thereon. The defendant appealed.

The appellant assigns some 62 grounds of error, but we find it both impracticable and unnecessary to discuss these in detail, since they all, save the claim of an excessive verdict, ultimately go to the one primary and controlling question, Was the appellant guilty of any negligence in the premises resulting in the respondent's injury?

It is first contended that there was no duty on the appellant to construct the scaffolds folds or to keep them safe, and therefore there could be no negligence in that regard. While it is sometimes broadly stated as a general rule that the master's duty is performed when he has furnished suitable materials for scaffolds and competent fellow servants, it is only so because, under the facts in a majority of the decided cases, the master assumed no other duty. Even then the workmen must be left to construct the scaffolds themselves according to their own judgment, without superintendence by the master or his representative, in order to entirely relieve the master from responsibility for the manner in which the work is done. Labatte, Master & Servant, § 614; Metzler v. McKenzie, 34 Wash. 470, 76 P. 114; Muehlman v. Spokane & Inland Empire R. Co., 58 Wash. 327, 108 P. 764; Swanson v. Sound Constr. & Eng. Co., 67 Wash. 128, 120 P. 880; Ralph v. American Bridge Co., 30 Wash. 500, 70 P. 1098.

It would be useless to review the many authorities cited from other jurisdictions, since the rule plainly recognized by this court in the foregoing decisions and sustained, as we believe, by both reason and authority is that the master owes a duty in any case in the alternative 'to furnish either a suitable platform or scaffold for doing the work that the plaintiff and his coemployés were required to do, or proper and suitable materials for the construction of such a platform.' Labatte, Master & Servant, § 615, p. 1781. The arbitrary assumption apparently indulged by some courts to the effect that the construction of a temporary staging is so distinctly a characteristic of service that the responsibility for its proper performance is not assumed by the master, even when the work is done by the master, or through the direct intervention of his foreman or representative (see Noyes v. Wood, 102 Cal. 398, 36 P. 766; Ross v. Walker, 139 Pa. 42, 21 A. 157, 23 Am. St. Rep. 160; Garrow v. Miller, 72 Vt. 284, 47 A. 1087), has never been adopted by this court. While the duty is so far a duty of service that the master may avoid responsibility by frankly leaving the work of construction entirely to the servants themselves after furnishing suitable materials, still if he assumes to construct the scaffold himself, either personally or by one clothed by him with apparent authority to do so, then the master is responsible for a lack of reasonable care in the work of selecting and using the materials. It is going quite far enough to give the master the absolute choice of alternatives, either to assume the duty of selection and construction himself or to throw that duty entirely upon the servants themselves. Neither of the decisions of this court above cited goes further. It follows that: 'The essential question to be determined, if we choose the alternative line of investigation, is whether the master, as a matter of fact, assumed to furnish the scaffold or other instrumentality in a completed form, or merely furnished the materials and left them to be used by the servants themselves. Clearly, if such assumption is established, the master will be liable as for negligence, even if the circumstances were otherwise such that he would have been justified in leaving the servants to prepare the defective instrumentality themselves. The case is for the jury where the evidence is conflicting, or reasonably consistent either with the hypothesis that the defective appliance was constructed by the fellow servants of the injured person out of materials furnished by the master, or with the hypothesis that it was constructed under the direction of the defendant or his representative.' 2 Labatt, Master & Servant, § 615, pp. 1187, 1188.

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