Slater v. Chapman

• Decision Date: 10 November 1887
• Citation: 35 N.W. 106,67 Mich. 523
• Court: Michigan Supreme Court
• Parties: SLATER v. CHAPMAN.

35 N.W. 106

67 Mich. 523

SLATER v. CHAPMAN.

Supreme Court of Michigan

November 10, 1887

Error to circuit court, Charlevoix county; J.G. RAMSDELL, Judge.

Cruickshank & Grier, for plaintiff.

Pailthorp & George and Taggart, Walcott & Ganson, for defendant.

MORSE J.

This action was brought by the plaintiff to recover damages for an injury resulting from a fall while he was employed as a carpenter about the construction of a hotel, which the defendant was building at Bay Springs, in Charlevoix county. The theory of the plaintiff upon the trial was that the injury was occasioned, without fault on his part, through the negligence of one Charles Sizer, who had the whole charge and management of the work and the workmen employed in the building of the hotel, and that the defendant was liable for the result of Sizer's negligence, because he knew that Sizer was careless and negligent, and kept him in his employ and in charge of the work after such knowledge of his incompetency by reason of such carelessness and negligence; and also because Sizer being employed by the defendant to take the whole charge of the erection of the building, and exercising full control over it in the place and stead of defendant, his negligence was the negligence of the defendant, even if the defendant had no knowledge that Sizer was incompetent or careless.

There seems to be no dispute about the reason of the accident. A temporary staircase had been erected connecting the second and third stories of the hotel. This stairway was kept from sliding or slipping by a cleat at the bottom. In putting in the permanent stairway it became necessary to remove this cleat. Sizer removed it without the knowledge of the plaintiff. After its removal he ordered plaintiff to go up the temporary stairs to work about the permanent stairway. When near the top the stairs gave way on account of the removal of the supporting cleat, and the plaintiff was precipitated into the basement below, severely injuring him. He recovered a judgment for $1,000. It is claimed by the counsel for the defendant that the proofs in the case were at variance with the declaration. That the declaration avers that the removal of this cleat was with the knowledge and consent of the defendant, who was present, while the evidence shows that Chapman was absent and knew nothing about it. It appears however from the record that no claim of this kind was made upon the trial, nor is there any assignment of errors that covers it. It cannot now be raised here for the first time. The other errors assigned relate to the charge of the court.

We think that the court very fairly and properly instructed the jury as to the law of the case. Every request of the defendant's counsel was given in the exact language of the counsel, and without modification. The court instructed the jury in substance that if Sizer was employed by the defendant to take the whole charge of the erection and construction of the hotel, and exercised full control over it, in the place of the defendant, then the negligence of Sizer...