Opinion
April, 1894.
Ewing Whitman, for appellant.
George Holmes, for respondent.
The accident was caused by the giving away of the tie beam. There was no evidence to go to the jury that the staging fell because the tie beams were too far apart. The first position only will be examined. The plaintiff's learned counsel argues that the defendants were negligent in failing to make an inspection of the material that would discover the unsound condition of the tie beam that broke, and that on the particular occasion Horn was their substitute, and his negligence was theirs. I do not agree with the proposition. The result would be that an employer would fail in duty if he did not use ordinary diligence in causing material on which carpenters employed by him were to work to be free from dangerous objects.
Observe, on the other hand, from the plaintiff's testimony, his own relation to the possibility of such defects and his intelligence on the subject. He was fifty-two years of age and had been a carpenter for twenty years. After he went on the work, he and his fellows got the frame up and the plate and the studding and began to do the sheathing. He helped put the tie beam in position. After the accident and before he could be removed from the place he had fallen, he looked up and saw that there was a knot in the beam, and made up his mind that "that was what had caused the accident." "Mr. Horn was working at the same time with us. He, with some other man, framed these tie beams and measured them off and cut the ends off so they would fit, while they were down on the ground." "Once Mr. Horn asked his opinion as to a variation between the elevation and the ground plan. He had been a carpenter for twenty-five years." Q. "How do you tell whether a piece of timber is good or not when you put it in a building?" A. "You look at it and if you see any knot in it you condemn it." That is, by an inspection of the timber, a man is told to take it out. He had that experience "that he could have taken those plans and gone and done that work, just the same as Horn did." He had worked on frame buildings of almost all descriptions. Mr. Horn was one of the carpenters, as well as the director or foreman of the work.
Common knowledge, as well as the probabilities of conducting such work, in connection with the testimony given, showed that it was not negligence to send the imperfect beam to the building for one on the work. The burden of proof was upon the plaintiff. It appeared that it was an ordinary thing for carpenters to reject imperfect material. This tie beam was handled by Horn, as well as by one Schwack; neither saw the defect, but it appeared that by using ordinary care they might have seen it. If this was negligence in using the beam, it was the negligence of a fellow-servant, for which the defendants are not responsible. Against this it is claimed the negligence was that of Horn only, and that he was in the place of his employers, the defendants. Without examining the legal position, if the fact were that he was only foreman, it must be said that he was also carpenter, as the case fully shows. In doing what he did, in respect of the tie beam, he was as much a fellow-servant of the plaintiff as if the doing of it had fallen on Schwack or Wood. I am, therefore, of the opinion that the judgment and order denying a motion for a new trial should be affirmed.
DUGRO and GILDERSLEEVE, JJ., concur.
Judgment affirmed, with costs.