United States Smelting Co. v. Parry

• Decision Date: 06 January 1909
• Docket Number: 2,538.
• Citation: 166 F. 407
• Parties: UNITED STATES SMELTING CO. v. PARRY.
• Court: U.S. Court of Appeals — Eighth Circuit

166 F. 407

UNITED STATES SMELTING CO. v. PARRY.

No. 2,538.

United States Court of Appeals, Eighth Circuit.

January 6, 1909

Syllabus by the Court

It is the duty of a master to exercise reasonable care to provide a reasonably safe working place for his servant, and the latter is entitled to act upon the assumption that that duty has been performed, unless the contrary be known to him, or be so patent as to be readily observed by him. He is not required to make an investigation or inspection, to ascertain whether or not that duty has been performed, but only to have due regard for what he actually knows and for what is so patent as to be readily observed by him by the reasonable use of his senses, having in view his age, intelligence, and experience.

The general rule that witnesses are permitted to testify to the primary facts within their knowledge, but not to their opinions, is subject to the important qualification that witnesses possessed of special training, experience, or observation in respect of the matter under investigation may testify to their opinions, when that will tend to aid the jury in reaching a correct conclusion; the true test being not the total dependence of the jury upon such testimony, but their inability to judge for themselves as well as is the witness.

A certain discretion is accorded the trial judge in respect of the admission or rejection of expert and opinion testimony and his decision admitting testimony of that character ought not to be disturbed, unless it plainly appears that the testimony was not calculated to aid the jury in reaching a correct conclusion, and was calculated to prejudice their minds.

In an action to recover for personal injuries, an instruction which names 'mental suffering due to the injury' as one of the elements to be considered is not objectionable, as permitting the consideration of mental suffering which is separable from and independent of the physical injury.

Mental suffering as an element of damage in general, see note to Chicago, R.I. & P. Ry. Co. v. Caulfield, 11 C.C.A 556.)

When a litigant is concerned lest the jury may misinterpret a portion of the charge unless it be explained, he should request an appropriate explanation of it, and not rest upon a general exception to it.

C. S. Varian and Andrew Howat (W. Van Cott, E. M. Allison, Jr., and W. D. Riter, on the brief), for plaintiff in error.

Thomas Marioneaux (O. W. Powers, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and PHILIPS, District judge.

VAN DEVANTER, Circuit Judge.

This was an action to recover for personal injuries sustained by a brick mason through the tipping of a plank in a temporary scaffold provided as a working place for him. The evidence produced upon the trial, although somewhat contradictory reasonably tended to establish these facts: The defendant, in whose service the plaintiff was, was erecting a brick cross-wall between two outer walls, already partially completed, which conveniently may be spoken of as the east wall and the west wall. Between these outer walls, and parallel with them, was a partition wall, which also connected with the cross-wall. The scaffold extended along the cross-wall, from the west wall to the partition wall, and consisted of five or six heavy planks, supported at one end by another scaffold along the west wall and near the other end by a four-legged carpenter's trestle. The trestle was as close to the partition wall as it could be, but the inclination of its legs was such that its top, upon which the planks rested, was a foot away from that wall. At that end the planks projected beyond the trestle from 21 to 30 inches; the projection of those next the cross-wall being less than that of the others, as was stated by a witness named Croisette. In this way the planks extended half-way or entirely over the top of the partition wall, which was 18 inches wide and about 14 inches below the scaffold. It was usual, in the erection of such a scaffold, to make provision against the tipping of the planks, either by placing a foot lock under the projecting end or by nailing down the other end. Either method would have been practicable and efficient in this instance, but neither was followed. The scaffold was erected under the direction of the defendant's foreman before the plaintiff went upon it, and when he had been at work there a short time one of the planks tipped, and precipitated him into a pit 25 feet below, between the partition wall and the east wall. He had nothing to do with the erection of the scaffold, did not know of the failure to make provision against the tipping of the planks, and did not observe anything indicating that they were not secure. He went upon the scaffold at the foreman's direction, and in doing so did not see underneath it, because he approached it from the other side of the cross-wall, which was a little higher than the scaffold.

The work assigned to him by the foreman required him to use the extreme east end of the scaffold, as was stated in his direct examination and in the cross-examination of an opposing witness named Lundquist. When he went upon the scaffold he found another brick mason working at the west end. Brick to be laid into the east part of the cross-wall were also near by. Neither the absence of a foot lock nor the failure to nail down the other end of the planks was observable by one in his situation without some investigation or inspection of the scaffold, such as going to the other end and looking for evidence of nailing, or lying down and looking underneath for a foot lock. He did neither of these things, but assumed that the planks had been made secure, and proceeded with the work assigned to him, which included the laying of brick into the cross-wall on the east side of the partition wall. At first he sat on the end of the scaffold, with one foot hanging over it, and laid into the wall the brick which were near by. Then he went to the center of the scaffold for more brick, and was returning with five or six of them on his arm when one of the planks tipped, as he stepped near its end, and caused him to fall. That plank was the second one from the cross-wall, and was not incumbered by the mortar boards or brick which were upon the scaffold. The other mason had been standing upon the west end of that plank, but moved away to get mortar or brick about the time it tipped. A foot lock, as here spoken of, is a support for a scaffold, and consists of a short joist, one end of which is inserted into the wall along which the scaffold is to be used, and an upright post placed under the other end of the joist to sustain it in a horizontal position. Ordinarily a four-legged trestle is a better support, but a foot lock is employed to greater advantage in situations where a trestle, by reason of its projecting legs, cannot be brought sufficiently near the end of the scaffold to prevent the ends from tipping. In this instance a foot lock could readily have been placed nearer the partition wall, or even on top of it. Planks, such as were used, cannot with safety be permitted to project beyond their point of bearing more than one foot, unless they are made secure, by nailing or otherwise, at the other end. The plaintiff was a brick mason of extended experience, was familiar with the various modes of constructing scaffolds, and fully understood the dangers attending their use when they were not made secure.

The first question to be considered is whether the court erred in denying a request, preferred by the defendant, for a directed verdict in its favor. It is not seriously insisted, nor could it be, that the evidence did not justify a finding of actionable negligence on the part of the defendant, under the state statute; but it is earnestly contended that it was conclusively shown that the plaintiff assumed the risk and was guilty of contributory negligence because he did nothing to satisfy himself of the security of the scaffold, and because it would have taken but a moment to ascertain how the planks were supported at the east end and whether they were nailed at the other end. The contention cannot be sustained. It is the duty of a master to exercise reasonable care to provide a reasonably safe working place for his servant, and the latter is entitled to act upon the assumption that that duty has been performed, unless the contrary be known to him, or be so patent as to be readily observed by him. He is not required to make an investigation or inspection to ascertain whether or not that duty has been performed, but only to have due regard for what he actually knows and for what is so patent as to be readily observed by him, by the reasonable use of his senses, having in view his age, intelligence, and experience. Choctaw, Oklahoma & Gulf R.R. Co. v. McDade, 191 U.S. 64, 68, 24 Sup.Ct. 24, 48 L.Ed. 96; Choctaw, Oklahoma & Gulf R.R. Co. v. Holloway, 191 U.S. 334, 337, 24 Sup.Ct. 102, 48 L.Ed. 207; Texas & Pacific Ry. Co. v. Swearingen, 196 U.S. 51, 62, 25 Sup.Ct. 164, 49 L.Ed. 382; Butler v. Frazee, 211 U.S. 459, 29 Sup.Ct. 136, 53 L.Ed. . . . ; Burke v. Union Coal & Coke Co., 84 C.C.A. 626, 157 F. 178; Missouri, K. & T. Ry. Co. v. Wilhoit, 87 C.C.A. 401, 160 F. 440; Chicago, Milwaukee & St. Paul Ry. Co. v. Donovan, 87 C.C.A. 600, 160 F. 826; Chicago Great Western Ry. Co. v. McDonough (C.C.A.) 161 F. 657, 661; Kirkpatrick v. St. Louis & S.F.R. Co., 87 C.C.A. 35, 159 F. 855; Western Investment Co. v. McFarland (C.C.A.) 166 F. 76. The evidence before recited made it at least permissible for the jury to find that the insecure condition of the scaffold, although discoverable by an investigation or inspection, was not known to the plaintiff, and was not so patent as to be readily...