Gideon v. Howard

SHAW, J.

In this action plaintiff sought to recover damages for personal injuries alleged to have resulted from the negligence of defendants as copartners. At the close of the evidence, defendants offering none, the court, at their request, instructed the jury to render a verdict for defendants, which being done, judgment followed in accordance therewith.

The appeal is from an order of court denying plaintiff’s motion for a new trial.

The question presented is one of law as to whether or not there was any substantial evidence as to facts determinative of the case upon which the jury could have properly found for plaintiff.

The evidence tends to establish the following facts: Plaintiff was an employee of defendants, who were contractors engaged in the erection of a bridge, in the construction of which wooden molds or forms were made into which concrete was deposited, and after it set and hardened these molds or forms

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were detached therefrom. As such employee, plaintiff, with others, not only worked as a carpenter in making and installing these forms, but in detaching them from the hardened concrete walls by various means, among which was that of attaching thereto ropes provided by defendants and pulling them loose by hand. At the time in question, when plaintiff sustained the injuries of which he complains, two men had thus, for the purpose of removing one of the molds, attached a rope thereto, and, being unsuccessful in breaking it away, called upon plaintiff and another, who were at work on the bridge, to aid them in pulling it away. They responded, and their united strength applied in pulling upon the rope caused it to break, as a result of which plaintiff, with the others, all of whom were at the time on the ground, was precipitated backward into a depression some eighteen inches deep to a point ten or twelve feet distant, where he fell upon a stump, the others falling upon him, and, in some way undisclosed by the record, was injured. The rope was a five-eighths or three-fourths inch in size and about forty-five feet in length. Some three or four days prior to the accident, plaintiff, while using this rope on a scaffold some forty feet from the ground, discovered that it was badly worn, weakened, and cut, for which reason he removed it from the swing he was working on, came down, and informed Mr. Crump, the superintendent in charge of construction, of its condition, telling him that the rope was “not fit to work on,” and threw it upon the ground under an abutment of the bridge, from which place his coemployee, when requiring a rope for use in detaching the mold, secured and used it for the purposes aforesaid, which fact, however, was unknown to plaintiff until after the accident.