Switow v. McDougal

• Decision Date: 13 January 1916
• Docket Number: 22,941
• Citation: 111 N.E. 3,184 Ind. 259
• Parties: Switow v. McDougal
• Court: Indiana Supreme Court

111 N.E. 3

184 Ind. 259

Switow v. McDougal

No. 22,941

Supreme Court of Indiana

January 13, 1916

From Floyd Circuit Court; Harry C. Montgomery, Special Judge.

Action by Herman McDougal, by next friend, against Michael Switow. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1914, Acts 1901 p. 590.)

Reversed.

John Read Voigt, George H. Hester, Charles L. Jewett and Henry E Jewett, for appellant.

Laurent A. Douglass and Samuel G. Wilkinson, for appellee.

OPINION

Lairy, J.

Appellee recovered a judgment against appellant for damages resulting from personal injuries sustained in falling from a scaffold. The facts disclosed by the record show that appellant was the owner of a lot in the city of Jeffersonville upon which was located a building which was being reconstructed and repaired by a contractor named Jacob Turvil under a contract with appellant by the terms of which said Turvil was to furnish all labor and material and complete the work for a stated price. Appellee was employed by the foreman of the contractor to wheel brick and mortar to the workmen engaged in taking down and reconstructing a wall of this building. His work required him to go upon a scaffold provided for the use of the workmen and while he was so on the scaffold it broke causing him to fall and to receive the injuries which form the basis of the judgment.

This action is based upon § 4 of an act of the General Assembly approved March 6, 1911, relating to dangerous occupations. Acts 1911 p. 597, § 3862d Burns 1914. Section 1 of the act provides that every employer or person managing or conducting any business, or work, or plant in the State of Indiana of the character mentioned in the act, is for the purpose of the act, conducting a dangerous occupation at the time of the occurrence and subject to the provisions of the act. Section 4 of the act designates certain precautions which shall be observed and specific acts of care which shall be exercised by all owners contractors, subcontractors, corporations, agents or persons whatsoever engaged in any pursuit, business or undertaking mentioned, or in the care or operation of any machinery or appliances designated in the act. This statute has been recently construed by this court in the case of Leet v. Block (1914), 182 Ind. 271, 106 N.E. 373. It was there held that the measure of care specified in the act was imposed by the statute upon the one in charge of or responsible for the work in question whether that be an owner, a contractor, a subcontractor or other person mentioned in the act; and that it was not the legislative purpose to abrogate the common-law rule...