Potts v. Knerr

ALLEN, P. J.

The action was one brought by a servant against a master on account of personal injuries alleged to. have been occasioned by the negligence of the latter. Plaintiff, a plasterer, was engaged by defendant to perform work as plasterer and to superintend the work of plastering a schoolhouse, for the construction of which defendant had" entered into a contract. The general work of the construction was under the supervision of one Hunter, the foreman employed by defendant. Defendant, when he employed plaintiff, agreed to furnish ladders and scaffolding necessary-in the prosecution of the work. Hunter, as foreman, directed the immediate performance by plaintiff of certain plastering work, and directed him to use a certain ladder then on the-lower floor of the building, and one of the appliances used

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in the work of construction and the only ladder in use on the lower floor. This ladder had originally been made a month or so before under the direction of the foreman, and had it been properly constructed upon the lines intended would have carried a weight of more than four hundred pounds. The workmen who constructed this ladder used what is known as finishing nails in the supporting part thereof, the upper part of which support broke with the weight of plaintiff thereon and caused the injury. This ladder had been repaired a number of times and had been nailed and renailed until the timbers had become weakened, and through use it. had become covered with mortar and dirt, and its real conditions could not be ascertained except by a minute examination. The foreman never inspected the ladder after its construction or repair in order to determine its efficiency or condition. Plaintiff, a man weighing two hundred pounds, acting under the instructions of the foreman, ascended the ladder so provided for the purpose of doing some work, and when he had reached the top the ladder collapsed, and as a consequence plaintiff was thrown to the floor and upon timbers, the effect of which was to break his arm near a joint and strain certain ligaments. The proximity of this fracture to a joint rendered it difficult to treat, and occasioned a partial loss of the use of the arm, not permanent, but of a serious character.

The primary and controlling question involved in the case, under the issues presented by the pleadings, was as to the discharge of the master’s duty in providing reasonably safe appliances connected with the work of the servants. There was no claim under the issues presented, nor was there any evidence offered tending to show that the injury was in any manner the result of an act, either of omission or commission, upon the part of a fellow-servant. Notwithstanding this the court, at the instance of the defendant,- charged the jury: “An employer is not bound to indemnify an employee for damages which the employee sustains in consequence of the negligence of a fellow-employee employed by the same employer in the same general business. The law of this state respecting the negligence of a fellow-servant where there is no want of ordinary care upon the part of the employer recog