WABRINGTON, Circuit Judge
(after stating the facts as above). [1 ] The contention of the company is that the court erred in overr ruling the motion to direct a verdict and in its charge to the jury. Both of these features of error are based on the claim that if any negligence intervened it was the negligence of one or more of plaintiffs’ fellow servants and not of the company. The theory is that the structure was simply temporary staging to be used in the building of [42]*42a. steamboat, and was constructed by carpenters and laborers working together and under the direction, respectively, of a foreman for each class; that the materials supplied were sufficient, both in kind and quantity; and that the staging was constantly changing, and was incomplete when it fell. • It is true that in a comparative sense the structure was intended to be temporary. It was to be removed when the boat was finished; but this is not determinative of the case. It fails to give effect to the nature and purposes of the structure. While it was composed almost entirely of wood, yet it was designed for the upper portion of one side of a dry dock; and the part below the stringers was so planned as to accommodate men working on the outside of the hull of a boat, and to support and carry a structure for the operation of a crane to distribute materials along the boat. It was intended, during the time required to construct the hull of a boat, to accomplish the same ends as those of the permanent iron structure then maintained on the opposite side of the dry dock. Plainly, then, it had to be very substantial in all its parts. Again, counsel take no account of the fact, and it is a fact, that plaintiffs had nothing to do with the selection of the materials for, or the design or construction of, the substructure; that is, the bents and their supports. The plaintiffs began and conducted their work under orders after the substructure had been erected and the stay lasts put in place. Their work consisted of putting planks across ' the top of the bents for use as a floor and in placing the stringers on top of the bents in the line of the inner uprights described in the statement.
Do the facts, then, present a easel simply for the application of the fello'w-servant doctrine, or do they present the question whether the master owed the plaintiffs a duty touching the safety of the substructure respecting the placing of stringers upon it and putting them into position ? There is a class of cases which hold that when an employer furnishes proper materials for scaffolding and staging, and the workmen themselves construct it as part of the work they undertake to perform and in accordance with their own judgment, the employer is not liable for injuries sustained by one or more of their own number while subsequently using the structure and in consequence of negligence in its construction. The reason is that such structures do not require greater knowledge or the exercise of more skill than is usually possessed by the ordinary laborer or mechanic. Noble v. C. Crane & Co., 169 Fed. 55, 94 C. C. A. 423 (C. C. A. 6th Cir.); Chambers v. American Tin Plate Co., 129 Fed. 561, 562, 64 C. C. A. 129 (C. C. A. 6th Cir.); Armour v. Hahn, 111 U. S. 313, 318, 4 Sup. Ct. 433, 28 L. Ed. 440; Kerr-Murray Mfg. Co. v. Hess, 98 Fed. 56, 59, 38 C. C. A. 647 (C. C. A. 8th Cir.). However, as the present Mr. Justice Eurton said in .Chambers v. American Tin Plate Company, supra, after stating the rule of the class of cases before alluded to (129 Fed. 562, 64 C. C. A. 130):
“But the rule is quite otherwise if the employer himself undertake 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 [43]*43act or service to be (lone 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 employes.” F. C. Austin Mfg. Co. v. Johnson, 89 Fed. 681, 682, 32 C. C. A. 309 (C. C. A. 8th Cir.); National Refining Co. v. Willis, 113 Fed. 107, 109, 74 C. C. A. 301 (C. C. A. 6th Cir.).
It' is true that the stagings involved in those cases were complete in the sense that they were in use as means for constructing something else, but we think they furnish sufficient analogy for the application of their principles to the present case. On the motion to direct, the plaintiffs weire entitled to have taken in their behalf the most favorable view of the evidence. Erie R. Co. v. Rooney, 186 Fed. 16, 19, 108 C. C. A. 118 (C. C. A. 6th Cir.) ; Mitchell v. Toledo, St. L. & W. R. Co., 197 Fed. 528, 533, 117 C. C. A. 24 (C. C. A. 6th Cir.); Hales v. Michigan Cent. R. Co., 200 Fed. 533, 537 (C. C. A. 6th Cir.). Under this rule we cannot ignore the apparent fact that, at least for purposes of its construction, the substructure in dispute was regarded by the company as a structure distinct from the line of stringers, not to speak of the iron rails, designed to be placed upon it and as sufficient to carry their weight and withstand the effect of moving them along the structure and the work of placing them in position. Besides, the difference between the ultimate uses intended to be made of the portion below the stringers and the stringers themselves, as well as the mode of construction adopted (pointed out in the statement), justly require these two parts to be separately considered. There is no sound distinction, then, between a case involving, as this one does, a substructure and another structure to be superimposed upon it, and cases (before cited) relating to false work of a bridge and the bridge to be built upon it, or staging for an iron tank designed to sustain the material for and the work of placing the roof upon it, and the like. It is true, as we have said in the statement, that the work of placing heavier braces at every third bent and of attaching iron plates to the bents and stringers was commenced at the east end of the substructure simultaneously with the placing of the stringers on top of the bents. It is also true that plaintiffs and their associates made faster progress than did the men who were engaged in so putting up the heavier braces and attaching the iron plates; but the evidence does not show that this was out of the course ordinarily pursued in carrying on these different classes of work. N or does it appear that either such heavier braces or iron plates were .regarded as necessary to sustain the substructure while the stringers were being put in place, although it is reasonably to be inferred that they were necessary to sustain the operation of the crane. In short, it is fairly to be deduced from the evidence that the course pursued here in doing the work was in accord with that usually followed, except in some respects which are not helpful to the company. •)
The evidence tends to show that the ground was so frozen as to prevent driving to their usual depth the stakes which held the ground ends of the stay lasts; that many of the stakes were pulled out of their places by the fall of the structure. Also that in the construction in question the stringers were, for the first time in doing this [44]*44class of work, dragged along the top of the staging by steam power cables from the east end of the structure to thei points at which they were to be placed, and that this caused the structure to fall.
Free access — add to your briefcase to read the full text and ask questions with AI
WABRINGTON, Circuit Judge
(after stating the facts as above). [1 ] The contention of the company is that the court erred in overr ruling the motion to direct a verdict and in its charge to the jury. Both of these features of error are based on the claim that if any negligence intervened it was the negligence of one or more of plaintiffs’ fellow servants and not of the company. The theory is that the structure was simply temporary staging to be used in the building of [42]*42a. steamboat, and was constructed by carpenters and laborers working together and under the direction, respectively, of a foreman for each class; that the materials supplied were sufficient, both in kind and quantity; and that the staging was constantly changing, and was incomplete when it fell. • It is true that in a comparative sense the structure was intended to be temporary. It was to be removed when the boat was finished; but this is not determinative of the case. It fails to give effect to the nature and purposes of the structure. While it was composed almost entirely of wood, yet it was designed for the upper portion of one side of a dry dock; and the part below the stringers was so planned as to accommodate men working on the outside of the hull of a boat, and to support and carry a structure for the operation of a crane to distribute materials along the boat. It was intended, during the time required to construct the hull of a boat, to accomplish the same ends as those of the permanent iron structure then maintained on the opposite side of the dry dock. Plainly, then, it had to be very substantial in all its parts. Again, counsel take no account of the fact, and it is a fact, that plaintiffs had nothing to do with the selection of the materials for, or the design or construction of, the substructure; that is, the bents and their supports. The plaintiffs began and conducted their work under orders after the substructure had been erected and the stay lasts put in place. Their work consisted of putting planks across ' the top of the bents for use as a floor and in placing the stringers on top of the bents in the line of the inner uprights described in the statement.
Do the facts, then, present a easel simply for the application of the fello'w-servant doctrine, or do they present the question whether the master owed the plaintiffs a duty touching the safety of the substructure respecting the placing of stringers upon it and putting them into position ? There is a class of cases which hold that when an employer furnishes proper materials for scaffolding and staging, and the workmen themselves construct it as part of the work they undertake to perform and in accordance with their own judgment, the employer is not liable for injuries sustained by one or more of their own number while subsequently using the structure and in consequence of negligence in its construction. The reason is that such structures do not require greater knowledge or the exercise of more skill than is usually possessed by the ordinary laborer or mechanic. Noble v. C. Crane & Co., 169 Fed. 55, 94 C. C. A. 423 (C. C. A. 6th Cir.); Chambers v. American Tin Plate Co., 129 Fed. 561, 562, 64 C. C. A. 129 (C. C. A. 6th Cir.); Armour v. Hahn, 111 U. S. 313, 318, 4 Sup. Ct. 433, 28 L. Ed. 440; Kerr-Murray Mfg. Co. v. Hess, 98 Fed. 56, 59, 38 C. C. A. 647 (C. C. A. 8th Cir.). However, as the present Mr. Justice Eurton said in .Chambers v. American Tin Plate Company, supra, after stating the rule of the class of cases before alluded to (129 Fed. 562, 64 C. C. A. 130):
“But the rule is quite otherwise if the employer himself undertake 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 [43]*43act or service to be (lone 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 employes.” F. C. Austin Mfg. Co. v. Johnson, 89 Fed. 681, 682, 32 C. C. A. 309 (C. C. A. 8th Cir.); National Refining Co. v. Willis, 113 Fed. 107, 109, 74 C. C. A. 301 (C. C. A. 6th Cir.).
It' is true that the stagings involved in those cases were complete in the sense that they were in use as means for constructing something else, but we think they furnish sufficient analogy for the application of their principles to the present case. On the motion to direct, the plaintiffs weire entitled to have taken in their behalf the most favorable view of the evidence. Erie R. Co. v. Rooney, 186 Fed. 16, 19, 108 C. C. A. 118 (C. C. A. 6th Cir.) ; Mitchell v. Toledo, St. L. & W. R. Co., 197 Fed. 528, 533, 117 C. C. A. 24 (C. C. A. 6th Cir.); Hales v. Michigan Cent. R. Co., 200 Fed. 533, 537 (C. C. A. 6th Cir.). Under this rule we cannot ignore the apparent fact that, at least for purposes of its construction, the substructure in dispute was regarded by the company as a structure distinct from the line of stringers, not to speak of the iron rails, designed to be placed upon it and as sufficient to carry their weight and withstand the effect of moving them along the structure and the work of placing them in position. Besides, the difference between the ultimate uses intended to be made of the portion below the stringers and the stringers themselves, as well as the mode of construction adopted (pointed out in the statement), justly require these two parts to be separately considered. There is no sound distinction, then, between a case involving, as this one does, a substructure and another structure to be superimposed upon it, and cases (before cited) relating to false work of a bridge and the bridge to be built upon it, or staging for an iron tank designed to sustain the material for and the work of placing the roof upon it, and the like. It is true, as we have said in the statement, that the work of placing heavier braces at every third bent and of attaching iron plates to the bents and stringers was commenced at the east end of the substructure simultaneously with the placing of the stringers on top of the bents. It is also true that plaintiffs and their associates made faster progress than did the men who were engaged in so putting up the heavier braces and attaching the iron plates; but the evidence does not show that this was out of the course ordinarily pursued in carrying on these different classes of work. N or does it appear that either such heavier braces or iron plates were .regarded as necessary to sustain the substructure while the stringers were being put in place, although it is reasonably to be inferred that they were necessary to sustain the operation of the crane. In short, it is fairly to be deduced from the evidence that the course pursued here in doing the work was in accord with that usually followed, except in some respects which are not helpful to the company. •)
The evidence tends to show that the ground was so frozen as to prevent driving to their usual depth the stakes which held the ground ends of the stay lasts; that many of the stakes were pulled out of their places by the fall of the structure. Also that in the construction in question the stringers were, for the first time in doing this [44]*44class of work, dragged along the top of the staging by steam power cables from the east end of the structure to thei points at which they were to be placed, and that this caused the structure to fall. It appears, both by the pleadings and evidence, that a very high wind was blowing during the day of the accident.
[2] The evidence further tends to show, not only that the foremen in charge of the carpenters and laborers directed the work to be prosecuted in the manner and under the conditions pointed out, but also that the superintendent in charge of the shipyard was there and observing the work upon the structure in dispute on the day of the accident. There was a general superintendent of the company, but he was not at this shipyard on that day. He seems to have been at another shipyard of the company at Cleveland.' The company was a New Jersey corporation, and, so far as the record discloses, the superintendent present was its principal 'and controlling representative at the shipyard in question on the day plaintiffs were injured. Apart from the special conditions attending the work on that day, it is clear that the company was cognizant of the nature and purposes ,of the structure, and also of the mode in which the work was usually .conducted on such structures as this; and knowledge of the special [conditions mentioned'was plainly imputable to the company through the presence and control of its superintendent. Leonard Martin Const. Co. v. Highbarger, 175 Fed. 340, 343, 99 C. C. A. 128 (C. C. A. 6th Cir.). Neither of the plaintiffs had reached -the age of legal majority at the time of their injuries; nor had they any knowledge of the capácity of the structure or experience in the work they were .doing. If the structure on which they were working was unsafe, it was not because of anything they had done or omitted to do; indeed, •contributory negligence is not claimed. It cannot be rightfully said that the company did not provide the staging upon which the stringers. were being placed; it presumably designed the structure; it supplied the materials and furnished the men to construct it. It was said- in Chambers v. American Tin Plate Company, supra, 129 Fed. 561, 64.C. C. A. 129.
“The falling of a staging or scaffold without any apparent cause inay well be regarded as prima facie evidence of negligence on the part of the person who , had provided it.”
If' all the inferences reasonably to be drawn from the evidence are added to this, the’ conclusion is inevitable that the duty of the master was both involved and violated. Texas & Pacific Ry. v. Howell, 224 U. S. 577, 582, 32 Sup. Ct. 601, 56 L. Ed. 892; James Griffith & Sons Co. v. Brooks, 197 Fed. at pages 726 to 729, 117 C. C. A. 117 (C. C. A. 6th Cir.). It is not important whether some of the fellow servants of plaintiffs were negligent or not; such concurring negligence would not excuse the master. Kreigh v. Westinghouse & Co., 214 U. S. 249, 257, 29 Sup. Ct. 619, 53 L. Ed. 984; Bryson v. Gallo, 180 Fed. 70, 76, 103 C. C. A. 424 (C. C. A. 6th Cir.).
"' It follows that the motion to direct a verdict for the company was rightly denied. 'The errors assigned respecting the charge of the court for the most part concerned' the submission to the jury of the [45]*45question whether the “scaffolding or staging” furnished to the plaintiffs was “a completed instrumentality for the sole purpose of placing heavy track timbers on top of the scaffold.” Enough has been said on this subject to require these assignments to be overruled. The only other assignment that need be noticed relates to the company’s duty of inspection. We are not satisfied that there was error in this portion of the charge (Petroleum Iron Works Co. v. Boyle, 179 Fed. 433, 437, 102 C. C. A. 579 [C. C. A. 6th Cir.]; James Griffith & Sons Co. v. Brooks, supra, 197 Fed. at pages 729, 730, 117 C. C. A. 117), but it was not in any event prejudicial error, and we do not pass upon it.
The judgment below in each case is affirmed, with costs.