Scott v. McPherson

ANGELLOTTI, J.

Plaintiff brought this action to recover damages alleged to have been suffered by him by reason of injuries received while working for defendant in the construction of a building. The case was tried by the court without a jury. Judgment was given in favor of plaintiff for the sum of four hundred dollars. Defendant appeals from such judgment and from an order denying his motion for a new trial.

On November 6, 1911, plaintiff was working for defendant as a carpenter and laborer in the construction of this building, and at the time of the accident was working in an air well about three and one-half feet deep and nine and one-half feet wide. The building had been constructed one story above the street level, and on the upper floor several men employed by defendant in the construction of this building were working. One of these men, T. B. Thompson, was engaged in cutting off the ends of projecting steel. He was using a saw for this purpose. Having used the saw on an end projecting over the air well and not being able to detach it with his hand, he struck it with a hand ax, thereby breaking it off and causing it to fall some twenty feet to where plaintiff was working in the air well. The piece thus detached was from five to eight inches in length and from one-half to five-eighths of an

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inch in thickness. It struck plaintiff on the left shoulder, causing a fracture of the acromion. There was testimony-sufficient to support a conclusion that the plaintiff was thereby prevented from following his avocation for a short time and that use of the arm would be premanently impaired to a slight degree.

1. The only negligence on the part of the defendant alleged in the original complaint, which was unverified, was that defendant had failed to provide plaintiff with a safe and proper place in which to work. The answer contained a general denial of all the allegations in the complaint, and set up as defense contributory negligence on the part of plaintiff, and that the injury was caused by the negligence of a fellow-servant of plaintiff. At the close of plaintiff’s case defendant moved for a nonsuit, upon the ground, among others, that plaintiff had shown no such negligence on the part of defendant as was alleged in the complaint. The trial judge very correctly took this view of the matter, saying substantially that the only negligence shown by the evidence introduced by plaintiff was that of Thompson, a fellow-servant of plaintiff. He further stated substantially that if such negligence on the part of Thompson was alleged in the complaint as the cause of plaintiff’s injury, defendant would be liable therefor to plaintiff if the proof sustained the allegation. In this the trial judge correctly stated the law, in view of the provisions of the act relative to liability of employers for injuries or death sustained by their employees, etc., approved April 8, 1911 (Stats. 1911, p. 796), which was in force at the time of the accident. That act provided, in section 1, that it shall not be a defense that the injury was caused in whole or in part by the want of ordinary or reasonable care of a fellow-servant. He therefore permitted plaintiff to amend his complaint by adding allegations in this behalf, and denied the motion for a nonsuit. A demurrer to the complaint as amended was overruled, and the original answer was allowed to stand as an answer to the complaint as amended. A continuance asked for by defendant in view of the amendment was refused, but the court expressly stated to defendant’s counsel that if it was made to appear that a continuance was necessary to enable defendant to obtain the attendance of witnesses to meet the allegations thus added to the complaint, a continuance would be granted.