Storey v. J. C. Mardis Co.

• Decision Date: 02 July 1919
• Docket Number: No. 30965.,30965.
• Parties: STOREY v. J. C. MARDIS CO. ET AL.
• Court: Iowa Supreme Court

186 Iowa 809

173 N.W. 115

STOREY

v.J. C. MARDIS CO. ET AL.

No. 30965.

Supreme Court of Iowa.

July 2, 1919.

Appeal from District Court, Polk County; Lawrence De Graff, Judge.

Action for damages by an administratrix for the wrongful death of her intestate, who was accidentally killed in the course of his employment as an employé of the defendants. There was a verdict for the plaintiff, and the defendants appeal. Affirmed.Parker, Parrish & Miller and C. Woodbridge, all of Des Moines, for appellants.

Clark, Byers & Hutchinson, of Des Moines, for appellee.

EVANS, J.

The defendant is a general contractor, and as such employs men of various trades in the performance of his contracts. At the time of the accident in question the defendant was engaged in performing a contract for the remodelling and repairing of the Shops building in Des Moines. For this purpose he had in his employ carpenters, bricklayers, plumbers, painters, etc. The deceased was a bricklayer, and was engaged in the defendant's employ as such. He was engaged in taking down and rebuilding a part of the wall. The place of his work was four stories above the ground, and he occupied a scaffold as his place of work. Shortly after he had entered upon his work upon such scaffold he fell therefrom, and was killed thereby. The principal specifications of negligence relied on by the plaintiff are:

(1) That the boards which constituted the floor of the scaffold were not nailed to the supports; whereas they ought to have been so nailed.

(2) That said boards extended for an undue length at each end beyond the supports upon which they rested, and were therefore in danger of tipping when weight was put thereon.

(3) That the scaffold had no railing.

The defense interposed is a general denial and a plea of contributory negligence. The broad grounds of defense urged particularly in argument are:

(1) That if there was negligence in the construction of the scaffold it was the negligence of the fellow servants who constructed the same for which the master was not liable.

(2) That the defects in the scaffold complained of in the petition were all open and obvious, and could have been readily observed by the deceased; that if he failed to observe them, or if he ignored them after observing them, he was guilty of contributory negligence; and that in any event he assumed the risk.

The foregoing are reducible to the broad contention that the master was under no magisterial obligation to furnish to his employés a scaffold upon which to work, and that the carpenters who erected the same were not in such work engaged upon the performance of the master's duty. Before proceeding to a consideration of these contentions, a few details of evidence must first be stated. The deceased had nothing to do with the erection of the scaffold in question, nor does it appear that it was any part of his employment to make such scaffold. The scaffold had been built by two carpenters under the direction of the defendant's foreman, who directed the method and details of the construction. In coming to his work at such place, the deceased came to his place of work upon a scaffold ready made. The witnesses to the accident testified that a board tipped up, and that the deceased fell from the end of it. There was a dispute in the evidence as to whether the boards were securely nailed or not. Concededly there was no railing. Concededly also the floor boards extended at each end two or three feet beyond the lookout upon which they were supported.

I. Was the scaffold the deceased employe's place of work within the meaning of the law which imposes upon the master the duty to see that it is reasonably safe?

[1][2] The law of the scaffold is peculiarly complex, and judicial decisions thereon are not wholly harmonious. It is undoubtedly true that it is competent for the master to furnish the materials and to confer upon his employés the duty as such to construct their own staging and scaffolding which may become necessary from time to time in the progress of the work undertaken. In such case the negligent construction is not imputed to the master as between him and the constructing employés or their fellow servants. On the other hand, it is the rule adopted by many modern authorities that where a master does cause a scaffold to be erected by workmen other than those who are to use the same, he thereby undertakes to furnish a ready-made scaffold as a place of work for such workmen and as assuming the duty of seeing that it is reasonably safe. In Chambers v. American Tin Plate Co., 129 Fed. 561, 64 C. C. A. 129, the rule is stated as follows:

“There is a line of cases holding that when the employer furnishes suitable materials, and the workmen themselves construct a scaffolding or staging as a part of the work which they undertake to perform, and build it according to their own judgment, that the employer is not liable for an injury to one of their own number, sustained in the subsequent use of the structure, in consequence of negligence in construction. The erection and re-erection of such a staging as the work requiring its use progresses, being itself a part of the very work which the employés are to do, takes it without the general rule in respect to the duty of the master to exercise reasonable care to furnish a reasonably safe place and appliances. * * * But the rule is quite otherwise if the employer himself undertakes to furnish such scaffolding for the men who are to work thereon. In such case the duty is one of those positive duties of the master toward the servant which cannot be discharged by the substitution of a competent agent. The act or service to be done is that of furnishing a reasonably safe place or appliance, and negligence in the doing of such a service is the negligence of the master, without regard to the rank of different employés.”

We are committed to this rule. Garvey v. Boody, 176 Iowa, 273, 155 N. W. 1027. The following authorities are to the same effect: Bourbonnais v. West Boylston Mfg. Co., 184 Mass. 250, 68 N. E. 232;Chicago & A. R. Co. v. Scanlan, 170 Ill. 106, 48 N. E. 826;McBeath v. Rawle, 192 Ill. 626, 61 N. E. 847, 69 L. R. A. 697;Cole v. Warren Mfg. Co., 63 N. J. Law, 626, 44 Atl. 647;Liedke v. Moran Bros. Co., 43 Wash. 428, 86 Pac. 646, 117 Am. St. Rep. 1058.

[3] Under the undisputed evidence in this case it must be held that the scaffold had been furnished by the master to the deceased employé as his place of work.

[4][5] II. Because the alleged defects of the scaffold were, as alleged by the defendant, obvious and necessarily known to the deceased, it is contended that such defects did not constitute negligence of the master as to this employé, and further contended that the deceased himself...