Armour v. Hahn

Master and Servant. The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not oblige him to keep a building, which they are employed in erecting, in a safe condition at every moment of their work, so far as its safety.depends on the due performance of that work by them and their fellow servants. Carpenters, "under charge of a foreman, and bricklayers, all employed by the owner through his superintendent, were engaged in the erection of a building, with a cornice supported by sticks of timber passing through the wall (which was thirteen inches thick) and projecting sixteen inches, and to be bricked up at the sides and ultimately over the top of the timbers. When the wall had been bricked up on a level with, but not yet over, the timbers, the foreman of the carpenters directed two of them to take a joist for the edge of the cornice, and to push it out to the ends of the projecting timbers. In so arranging the joist, a carpenter stepped on the projecting part of one of the timbers, which tipped over, whereby he fell and was hurt. Meld, That the owner of the building was not liable to him for the injury.

IN ERROR TO THE CIRCUIT COURT OE THE UNITED STATES. FOR THE DISTRICT OF KANSAS. This is an action brought by Habn against Armour and others (of whom' Armour alone was served with process), to recover damages for injuries suffered by the plaintiff while employed as a carpenter in the erection of a building for the defendants. The petition alleged that the plaintiff was and long had been in the defendant’s employ as a carpenter, and while at work,, together with others, in building an áddition to a large packinghouse owned and occupied by .the defendants, was directed by them and their agents to take a joist and place it on the outer ends of sticks of timber inserted in and projecting from the wall of the new building; that while arranging and adjusting the joist, in accordance with the instructions of the defendants and their agents, it became necessary for him to step out upon one oí the projecting timbers ; that, immediately upon placing one foot upon the projecting timber; and while stooping over to arrange the joist, and without any notice, yarning, or reason to believe that the projecting timber was insecure or unsafe, and without any fault or neglect on his part, the timben gáve way, precipitating him from the top of the wall thirty-four feet to the platform beneath; that the defendants, well knowing the danger, negligently and wrongfully-directed him to go out upon-the projecting timber to arrange the joist, without advising him of tbie danger; and that by reason of the negligence of the def< ndaiits, in not having'secured the projecting timber to the Avali, and in nob notifying him of its’ dangerous condition, he suffered great bodily injuries. The testimony introduced for the plaintiff at the trial was in substance as folioavs : The plaintiff was engaged with tAvelve or thirteen other caf-penters, all paid by the day, in the erection bf the neAv building. Bricklayers and other laborers were also at Avork upon it. The plaintiff AAras employed and paid by one Alcutt, the superintendent of the packing-house. One Fitzgerald Avas foreman of the carpenters, but not of the other Avorkmen. The plaintiff, Avho had been working on one end of the roof, Avent to the other end, and Avas there set to Avork by the foreman upon the cornice. The cornice Avas made by inserting in the brick Avail (Avhich Avas thirteen inches thick) at intervals of eight or nine feet and at right angles with it, sticks of timber projecting about sixteen inches from the wall; and by placing on the outer ends of those timbers, and parallel to the wall, joists sixteen or eighteen feet long and two and a half inches wide. The plaintiff and another of the carpenters were directed by their foreman to take a joist and put it out in its proper place on the projecting timbers. They took it and laid it upon those timbers. The foreman told them to- push the joist out to the end of the timbers, but did not tell them to go out. Each man pushed out his end of the joist. The plaintiff, in order to reach over and place the joist, sat down with both feet on one of the projecting timbers, one foot on the part of it inside the wall, and the other foot on the part outside, when the timb.er tipped over, and caused the plaintiff to fall some thirty-four feet to the platform below, and to suffer the injuries sued for.- The wall had just been bricked up on each . side of this timber to a level with its upper surface, but no bricks had been laid over it. The foreman stood eight or ten feet further in; there was a space for the bricklayers to build up the wall, and they were working upon it. The plaintiff testified that he helped to put some of the sticks of timber in the old wall, and spiked them to the girders; that he did not know who put this stick of timber in the new wall; that it appeared to be secure; that if it had been fastened he could have stepped out upon it without danger; that if he had kept both feet inside the wall, he could have pushed the joist out, but could not have seen whether it was in the proper place; that he could see that the timber was not spiked, but could not see 'whether it was fastened; that it could not be spiked then; and that “ the usual way of doing it was putting this timber in, and leaving it that way temporarily, and afterwards building the wall up over it.” There was also evidence of the extent of the plaintiff’s injuries. At the close of the evidence for the plaintiff, a demurrer to that evidence, upon the ground that it proved no cause of action, was filed by the defendant, in accordance with the following provision of the statutes of Kansas: “The party on whom rests,the burthen of the issues must.first produce his evidence ; after he has closed his evidence, the adverse party may interpose and file a demurrer thereto, upon the ground that no cause of action or defence is proved. If the court shall sustain the demurrer, such judgment shall be rendered for the party demurring, as the state of the pleadings, or the proof, shall demand; if the demurrer be overruled, the adverse party will then produce his evidence.” Laws of Kansas of 1872, ch. 162, § 1, cl. 3. The demurrer was argued and submitted to the court, and overruled. The defendant excepted to the ruling. No further evidence was introduced by either party at the trial. The case was submitted, under instructions excepted to by the defendant, and which it is unnecessary to state, to the jury, who returned a-verdict for the plaintiff in the sum of $7,500. Judgment was rendered on the verdict, and the defendant sued out this writ of error.