Storey v. J.C. Mardis Co.
| Decision Date | 02 July 1919 |
| Docket Number | 30965 |
| Citation | 173 N.W. 115,186 Iowa 809 |
| Parties | ETHEL B. STOREY, Administratrix, Appellee, v. J. C. MARDIS COMPANY et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--LAWRENCE DEGRAFF, 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 employee of the defendant. There was a verdict for the plaintiff, and the defendant appeals.
Affirmed.
Parker Parrish & Miller and C. Woodbridge, for appellants.
Clark Byers & Hutchinson, for appellee.
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 remodeling 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 such 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 employees 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 employee's place of work, within the meaning of the law which imposes upon the master the duty to see that it is reasonably safe?
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 employees 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 employees 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, and thereby undertakes to furnish a ready-made scaffold to other workmen, he is deemed as adopting such 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 F. 561, the rule is stated as follows:
We are committed to this rule. Garvey v. Boody, etc., Co., 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); Cole v. Warren Mfg. Co., 63 N.J.L. 626 (44 A. 647); Liedke v. Moran Bros. Co., 43 Wash. 428 (86 P. 646).
Under the undisputed evidence in this case, it must be held that the scaffold had been furnished by the master to the deceased employee as his place of work.
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 employee, and further contended that the deceased himself was guilty of contributory negligence, and that he assumed the risk. The question of contributory negligence was one of fact, and was properly submitted to the jury. The absence of the railing was, of course, obvious. If the defense of the assumption of risk were available to the defendant, the obvious character...
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