Saunders v. McCown
| Decision Date | 21 June 1938 |
| Docket Number | 8711. |
| Parties | SAUNDERS v. McCOWN et al. |
| Court | West Virginia Supreme Court |
Submitted May 17, 1938.
Rehearing Denied Aug. 11, 1938.
Syllabus by the Court.
Hale v. McGinley, W.Va., 195 S.E. 201.
Error to Circuit Court, Kanawha County.
Action for personal injury by J. R. Saunders against Adam I. McCown and another. To review a judgment, the plaintiff brings error.
Judgment affirmed.
M. O Litz, of Welch, and H. D. Rollins, of Charleston, for plaintiff in error.
Lillian S. Robertson, E. E. Robertson, and Kay, Casto & Amos, all of Charleston, for defendants in error.
MAXWELL President.
This is an action for damages for personal injury. To a judgment of nil capiat on verdict the plaintiff prosecutes writ of error.
In the City of Charleston on July 24, 1936, J. R. Saunders plaintiff, expressly employed for the purpose by Adam I McCown, was engaged in making repairs on the outside of a house owned by the latter and Margaret McCown, his wife.
The particular work involved was the repair of a strip of molding under the eaves of the front of a two-story house. In order that the molding might be reached for purposes of repair, a scaffold was erected. Soon after its completion, while the plaintiff and George McCown, brother of Adam, were on the scaffold, it collapsed and precipitated them to the ground, seriously injuring the plaintiff.
The plaintiff takes the position that the defendants were negligent in that they did not provide him with a reasonably safe place to work, and that his injury resulted from such negligence. The defendants counter that the plaintiff contracted to build his own scaffold from materials furnished by Adam McCown, and to repair the molding; that the defendants exercised no supervision over the construction of the scaffold, and that the plaintiff's injury came about because of his own negligence.
The scaffold fell because the weight of the scaffold and the men thereon caused the pulling out from an upper porch column of a nail which fastened one of the jacks or brackets of the scaffold whereon were laid the boards on which the men stood.
Indicative of the divergence of the testimony between the plaintiff and Adam McCown, it is noted that the plaintiff testified that he is not a carpenter nor experienced in carpenter work; that for several weeks prior to the accident he had been employed by the McCowns to do odd jobs at twenty-five cents per hour; that the reason there was only one nail driven in the top of each jack to fasten it to a porch column was the fact that Adam McCown had directed plaintiff not to insert more nails because they would split the boards. Adam testified that he considered the plaintiff a carpenter. He denied that he had anything to do with nailing the jacks and said that there were plenty of nails available at the job, and if plaintiff did not use sufficient nails it was because of his own exercise of judgment.
Clearly there is presented a factual issue for jury determination, but the plaintiff insists that because of instructions Numbers Four, Seven and Ten tendered by the defendants and read by the court to the jury, the issues were not fairly submitted to the triers of fact.
By instruction Number Ten, the jury was informed that if they believed from the evidence that Adam McCown furnished the plaintiff suitable and sufficient material for the construction of a safe scaffold and that the erection thereof was left to the plaintiff, the latter, under such circumstances, assumed the risk, and if the scaffold thereafter fell because of the manner of construction, there would be no liability on the defendant for the plaintiff's resultant injuries. This instruction, we think, fairly presents the theory of the defense, and could not properly have been rejected by the court, even if there had been specific objection thereto, which there was not.
The jury was told by instruction Number Four that the plaintiff could not recover if they believed...
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