Schneider v. C. H. Little Co., No. 51.

• Court: Supreme Court of Michigan
• Writing for the Court: OSTRANDER
• Citation: 184 Mich. 315,151 N.W. 587
• Docket Number: No. 51.
• Decision Date: 17 March 1915
• Parties: SCHNEIDER v. C. H. LITTLE CO.

184 Mich. 315
151 N.W. 587

SCHNEIDER
v.
C. H. LITTLE CO.

No. 51.

Supreme Court of Michigan.

March 17, 1915.

Error to Circuit Court, Wayne County; George P. Codd, Judge.

Action by Charles F. Schneider against the C. H. Little Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial granted.

A statement of the facts (of what the testimony for plaintiff tended to prove) is taken from appellant's brief, substantially as it there appears: The plaintiff is 50 years old, and has been engaged in the occupation of a tile setter for several years past. About five years before the happening of this accident, he entered the employ of C. J. Netting Company. This concern is engaged in the mantel and tile contracting business and specializes, among other things, in the laying of tile floors. At the time of the events to be related, C. J. Netting Company had a contract to lay the tile floor upon the porch of a dwelling house under course of construction on Burns avenue, in Detroit. The owner had made several distinct and separate contracts for the erection of this building. Gustave Johnke was the plastering contractor. Otto Misch was the mason contractor. Other contracts were made, which are not of interest in this issue. The plans and specifications for the building were drawn by Bernard C. Wetzell, who had charge of the execution of the plans and superintended the construction of the building. The dwelling was of brick and cement construction. In front of the building a porch was designed, 9 feet in depth and 35 feet in length. The floor of the porch was constructed of reinforced concrete. The cellar was built underneath the main portion of the house, but not under the porch itself. The porch was joined directly to the main front wall of the building, excepting at that portion of the building described as the ‘bay window.’ The bay window, a part of the living room, was designed to extend beyond the main wall and over and upon the porch itself. The inside dimensions of this bay window were 2 feet in depth and 14 feet in length. The bay window extended and projected about 2 1/2 feet beyond the line of the wall of the building and over and upon the porch, resting partly upon the wall and partly upon the porch floor. The openings in the window itself were about 20 inches above the floor of the porch. The porch floor was designed to sustain 75 pounds to the square foot. On the day after the plaintiff started work, namely, on the 17th of August, 1910, about 9 o'clock in the morning, a wagon belonging to C. H. Little Company drove to the front of this building with a load of plaster. This plaster was contained in bags, each weighing 100 pounds, and was being delivered by C. H. Little Company upon the order of Gustave Johnke. The driver of the wagon came up to the porch where the plaintiff was working and said, ‘I have a load of plaster for you;’ and the plaintiff replied, ‘It isn't for me.’ The teamster said, ‘What shall I do with it?’ and the plaintiff said: ‘I don't know. It is not for me. There is the architect over there, go and see him, and he will tell you.’ The architect was present at the building and performing his work of superintendence. The driver went into the building and spoke to the architect. The driver then came from the building, drove the wagon up close to the porch, took a plank about 12 feet in length, and placed it from his wagon to the porch. He then started to carry the bags from the wagon across the porch and placed them in the bay window in front of the building. This operation interfered with the work of the plaintiff, and he said to the driver of the wagon, ‘You are in my way; you are interfering with my work. You will have to find another way to get in.’ Up to this time the driver had placed about 15 bags of plaster in the bay window. The driver of the wagon then changed the location of his wagon and brought the bags of plaster through the side of the building, through the rooms in the rear of the living room, and placed the remaining bags of plaster on the floor of the living room and on the floor of the bay window. While the driver was bringing the plaster through the side of the building and into the living room and placing it in the bay window, Paul Shefskowski, an employé of Otto Misch, the mason contractor, said to him:

‘A. I told him when he was about unloaded why he should not put so much, so many bags there, that the joists might break and the floor might break and kill us all. Q. What did he say? A. Nothing. Q. Did he put the whole wagon load in the bay window? A. He did.’

Mr. Wetzell testified:

‘A. I was standing about the middle of the building when this man came up and asked me where to put the plaster, and I told him to distribute it around the building and not to pile any more into the bay window. He said, ‘That is the most convenient place to put it.’ There were already some bags of plaster placed in the bay window. Q. About how many? A. Ten or 15 bags, which it up about the level of the window sill. Q. State whether or not you said anything to him about why he should not place it in the bay window. A. Not to place it in the bay window because it was dangerous to pile material all in one place; we do that in every building.'

When the material was delivered at the building, Mr. Johnke was not present. In the absence of the contractor, it is the custom among building trades for the architect to instruct where material is to be delivered. There is nothing in the record to indicate that Mr. Johnke had left any instructions as to the location where this plaster was to be placed, or to show that Mr. Johnke was present at the building between the time the material was furnished and the accident. The total weight of the plaster amounted to over 10,000 pounds. About 4 o'clock the porch, by...