Louthan v. Hewes

THE COURT.

This is an appeal from a judgment, entered on the verdict of a jury, against the defendant, Hewes, for the sum of four thousand dollars, and from an order denying his motion for a new trial. The suit ,was for injuries caused by the alleged negligence of the defendant. The

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principal question in the case is as to the ruling of the court in refusing to give certain instructions asked by the defendant.

The plaintiff’s injuries were occasioned by falling on the stairway, leading from the first to the second story of Hewes’s house, at the east corner of Market and Sixth streets,—the building being of two stories, and the upper story containing, besides offices, a hall occupied, as tenant of Hewes, by a society called the “First Progressive Spiritual Church.” The accident occurred on the evening of February 21, 1897. The plaintiff had been attending services at the hall alluded to, and in descending the stairway stumbled and fell between the second floor and the landing intermediate between it and the ground floor, receiving the injuries complained of. At the time of the accident the stairway, which was in process of construction, had been completed, except as to painting and other details, and was covered for protection until painted by oil paper held down by boards (or “cleats”) nailed down over it. As to the cause of the accident, it is alleged in the complaint that Hewes had employed the defendant Patterson to make certain alterations and repairs on the building and stairway, and that in the course of his employment Patterson had placed “at or near the center of each step of said stairway certain cleats of wood,” etc., which were so negligently and carelessly placed and nailed on the stairway by Patterson as to make the use of it unsafe and dangerous; and that the injury to the plaintiff thereby occurred. The answers of the defendants, besides denying the material allegations of the complaint, allege, in effect, that at the time of the accident the stairway was in the process of being rebuilt by one Puller, a professional stairbuilder, under a contract made with him by Patterson as Hewes’s agent, under which he had been given full control and possession of the stairway for that purpose; and that “at the time of the accident, said stairs were being by the said . . .[Puller] rebuilt in a skillful and careful manner,” etc. These allegations were supported by uncontradicted evidence given on behalf of the defendants tending to prove that the work was being done, at the time of the accident, by Puller and his servants, not as the agent of either of the defendants, but as an independent contractor.