Brumhall v. Sutherland

MR. PRESIDING JUSTICE PINCH Delivered the Opinion of the Court.

This is an appeal by the defendants from a judgment for damages in favor of the plaintiff for personal injuries sustained by him in the fall of a hoist or elevator which was being used in the construction of a building.

At the time of the accident the plaintiff was engaged in unloading from the hoist platform, which was then stationary at the ninth floor of the building, steel pans, or forms, into which to pour concrete. While the plaintiff was so engaged the elevator platform fell with him to the ground, thereby causing the injuries in question. The defendant J. V. McNeil Company was the general contractor for the construction of the building. The defendant Sutherland was employed by the general contractor as hoisting engineer. The plaintiff was an employee of a subcontractor and, at the time of the accident, was working as such. The subcontractor had entered into a contract with the general contractor to install and remove the steel forms, of pans. The general contractor had constructed and was using four hoists. At the time of the accident the defendant Sutherland was the only hoistman, and he was alternately operating all four hoists, including the one which fell with the plaintiff. At that time that hoist was being operated under an agreement by the terms of which the subcontractor was to pay the general contractor for hoisting the forms at the rate of $2.25 an hour, including the services of Sutherland, the maximum load not to exceed 500 pounds. Immediately before the accident the hoist had been stopped at the ninth floor with a load of eight forms, weighing about fifty-eight pounds each. Sutherland, who had charge of all the hoists at that time, set the brake on the loaded hoist and went to

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another hoist, about fifteen or twenty feet therefrom. The plaintiff and a fellow-workman then commenced to unload the hoist, it being necessary for them to step upon the hoist platform. Two forms were removed successfully, but when the plaintiff stepped on the platform to remove a third form the platform fell with him to the ground. The brake was still set when the platform reached the ground. The foregoing facts are stated in the light most favorable to the respondent, conflicting evidence being immaterial on appeal.

Sutherland was clearly an employee of the defendant company and under its control.