Noyes v. Wood

Temple, C. This is an action to recover damages for personal injuries received by plaintiff while in the employ of defendants.

It is charged in the complaint that defendants employed plaintiff as a journeyman painter, to assist in [392]painting a barn, which defendants had contracted with the owner, Mr. Pierce, to paint. That it became the duty of defendants, as his employers, to furnish ladders to be used in the work, and that they furnished ladders which were too short to enable him to perform the work, and therefore defendants erected a scaffold and placed a short ladder upon it. That through the negligence of the defendants the scaffold was defective, insufficient, and insecure, whereby plaintiff was injured.

Verdict and judgment were entered for plaintiff, and thereupon defendants moved for a new trial, specifying many respects in which they claimed that the evidence was insufficient, as also several alleged errors occurring on the trial. A new trial was granted, and from the order plaintiff appeals.

In the order granting a new trial the judge stated that the motion was granted “on the sole ground that the evidence does not show that said Wayne was a foreman or vice-principal, but does show that said Wayne was a fellow-servant with plaintiff, in the same general business; upon all other grounds of said motion for a new trial, the court finds for plaintiff against defendants.”

Plaintiff testified that Wayne was foreman and in charge of the work for defendants, and as such put up the scaffold and ladder which fell with plaintiff. It is therefore claimed that the negligence of Wayne was the negligence of his principals—the' defendants. Upon this theory the case was tried and is argued here by appellant. Of course, under repeated decisions of this court, the grade of work of employees is an immaterial circumstance. Defendants would not have been liable to the plaintiff for the negligence of Wayne, even if he had had entire charge and control of the work, with full power to hire and discharge the men. (Daves v. Southern Pac. Co., 98 Cal. 19; 35 Am. St. Rep. 133; Congrave v. Southern Pac. R. R. Co., 88 Cal. 360; Burns v. Sennett, 99 Cal. 363; Stevens v. San Francisco etc. R. Co., 100 Cal. 554.) He was still but a fellow-servant with plaintiff, [393]