Stoner v. Eggers

• Citation: 77 S.D. 395,92 N.W.2d 528
• Decision Date: 20 October 1958
• Docket Number: No. 9671,9671
• Parties: James STONER, Plaintiff and Appellant, v. Ernest EGGERS, Defendant and Respondent.
• Court: Supreme Court of South Dakota

Page 528

92 N.W.2d 528

77 S.D. 395

James STONER, Plaintiff and Appellant, v. Ernest EGGERS, Defendant and Respondent.

No. 9671.

Supreme Court of South Dakota.

Oct. 20, 1958.

Arend E. Lakeman, Mobridge, for plaintiff-appellant.

A. Coe Frankhauser, Gettysburg, for defendant-respondent.

HANSON, Judge.

This personal injury action brought by an employee against his employer has been tried twice in circuit court. The first trial resulted in a verdict for plaintiff in the amount of $2,130. A new trial was granted. The court directed a verdict for defendant in the second trial. Plaintiff appeals contending the negligence of defendant was a question of fact for the jury and not one of law for the court.

Both parties are residents of Gettysburg. The defendant, Ernest Eggers, owns several rental properties in that city including a store building occupied by the 'East Side Market'. This store building was originally 60 feet long and 22 feet wide. In 1955 defendant built an addition thereto and employed plaintiff, James Stoner, and Andy Linkys to perform the necessary construction work. While so employed on April 27, 1955 plaintiff was injured when the scaffolding upon which he was working collapsed. This action followed.

In establishing a prima facie case the burden was on plaintiff to show actionable fault on the part of the defendant employer. Stevenson v. Douros, 58 S.D. 268, 235 N.W. 707. Three elements are necessary to constitute actionable negligence, '(1) The existence of a duty or obligation on the part of defendant to protect plaintiff from injury. (2) Failure of defendant to perform or discharge that duty. (3) Injury to plaintiff resulting from such failure of defendant.' Daniels v. Moser, 76 S.D. 47, 71 N.W.2d 739, 741.

Plaintiff was fifty-six years of age. For many years he had been employed as a mechanic in the Potter County Highway Department. From June 1953 until the accident he worked on a building moving crew and as a carpenter. After the accident he was re-employed by the County Highway Department as shop foreman.

The defendant supervised all of the labor performed on the store building. Defendant also furnished all of the materials, equipment, and tools needed in its construction. Included were 3 X 12 inch bridge planks and sets of two-foot, four-foot, and seven-foot sawhorses. The sawhorses were made of 2 X 6 inch material and, according to plaintiff's own testimony, were safe and substantial. By placing the bridge planks on top of a set of sawhorses the workmen were provided with a simple, safe scaffolding. By changing the sawhorses the height of the scaffolding could easily be varied.

On the day of the accident plaintiff and Linkys were siding the south side of the building. Before the noon hour they were using four-foot sawhorses and bridge plank as a scaffold. A higher scaffold was needed to finish the siding after they returned to work in the afternoon. Instead of using seven-foot sawhorses which were readily available and which would have provided a safe place to work, plaintiff and his fellow servant elected to make their scaffolding higher by nailing two-foot sawhorses on top of the four-foot ones they had been using. A nail was driven into one leg of each two-foot sawhorse to hold it in place--the other three logs were not secured. The scaffold was completed by placing the bridge plank across the top sawhorses.

Defendant did not direct the construction of the scaffold in this manner. The evidence is conflicting as to whether or not he was present at the time. According to plaintiff, however, he did observe the construction and inquired of Linkys 'Do you think it will hold?' Linkys replied 'Yah'. Defendant then walked around to the other side of the building. After defendant left plaintiff and Linkys climbed up on the scaffold and started work. Shortly afterwards the scaffolding collapsed. Plaintiff fell across one of the four-foot sawhorses and sustained the injuries complained of.

It is the duty of a master to furnish his servants with a reasonably safe place to work and with reasonably safe tools, appliances and equipment with which the perform their work. 35 Am.Jur., Master and Servant, § 138, p. 569. 'Where, however, the master has furnished a suitable place to work...