Fanjoy v. Seales

By the Court, Currey, J. This is an action on the case for damages consequent on injuries received by plaintiff through or by means of alleged negligence on the part of the defendant. The cause was tried before a jury, who rendered a verdict in plaintiff’s favor for two thousand and five hundred dollars, on which judgment was entered. A new trial was granted on the defendant’s application, and the plaintiff has appealed.

The case discloses that the defendant, the owner of a brick house in Sail Francisco, eleven feet front and two stories high, employed one Barry by contract to paint it. The plaintiff, a painter by trade, was employed, with others, by Barry, to perform the work of painting the house. These workmen of Barry, for the purpose of enabling themselves to do the work, suspended to the cornice of the house a staging or scaffolding. After the work was done, while in the act of taking down the scaffolding, the plaintiff stood upon the cornice, when the front wall to which it was attached broke away below the cornice. The cornice and a portion of the wall, and the plaintiff with the same, fell to the sidewalk, a distance of about thirty feet, by which his right arm was broken, besides which he suffered other serious bodily injuries, in consequence of which he was confined to his bed for several months and lost [247]his arm by necessary amputation. The plaintiff alleged in his complaint that the upper part of the front wall of the house and the cornice thereto attached were defectively and insufficiently constructed, and was on the part of the defendant wrongfully and negligently permitted so to be and remain while the house was being painted and when the plaintiff sustained the injuries mentioned. He also alleged that the fall of the wall and cornice and the injuries received by him were without fault or want of care on his part. The defendant by his answer traversed each and every allegation of the complaint, and for an affirmative defense alleged that he was not a mechanic ; that he had the house and cornice constructed by master mechanics without sujaervision or direction on his part, except that the same were to be constructed in a substantial and workmanlike manner, and that any injury the plaintiff may have received by the fall or otherwise, was not from any fault, knowledge or negligence on the part of the defendant.

It was proved that the accident happened as before stated, and that by the fall the plaintiff wras severely injured and was obliged to suffer the amputation of his right arm near the shoulder, and that as a consequence thereof he incurred a liability of three thousand dollars for medical and surgical service, of which he bad paid about one hundred dollars.