Benn v. Null

21 N.W. 700, 65 Iowa 407

Opinion

Rothrock, Ch. J.

After the introduction of the evidence, the court directed the jury to return a verdict for the defendant; and the question presented is whether there was any evidence in the case which would warrant a jury in finding the defendant liable for the injury. The evidence shows that the defendant contracted with Brown to furnish all labor and materials for the construction of the house. Brown was a carpenter in defendant’s employ. The defendant furnished suitable and sufficient materials for the erection of the house, and intrusted the supervision of the whole work to Brown, who remained in his employ, working by the day with other employes of defendant. Defendant had other contracts, and was absent most of the time. Without any direction from Null, and in his absence,'and without his knowledge, Brown and another employe selected the materials, and built the scaffold in question. There was suitable material on the ground for the scaffold, and no complaint is made of the materials used, and the evidence shows, without conflict, that Null is not chargable with negligence in employing unskillful mechanics to work upon the building. The plaintiff was employed by Null, and sent to the building to work, and the scaffold fell, and he was injured on the second day after he commenced to woi’k. It is very plain that the plaintiff is seeking to recover of his employer for an injury received by reason of the 'negligence of a co-employe. This he cannot do. If Null was not chargable with negligence in the employment of' unskillfu l workmen, or in failing to furnish suitable materials with which to erect the scaffold, he is not liable. There is no evidence of such negligence, but, on the contrary, it is shown beyond question that he was not negligent in these respects.

The circuit court did not err in directing a verdict for the defendant. Wood, Mast. & Serv., §§ 410, 411, 437, 452.

Affirmed.