
    Victor D. Sjoberg vs. P. E. Harding Construction Co.
    JUNE 29, 1914.
    Present: Johnson, C. J., Parkhurst, Sweetland, Vincent, and Baker, JJ.
    (1) Master and Servant. Proper Appliances. Assumed Risk. Contributory Negligence.
    
    Plaintiff had been employed by defendant for about three weeks prior to the accident, working as a carpenter in an open lot near a building in process of construction. He was directed by defendant’s superintendent to go upon the roof of the building, and to do so he was obliged to pass over a “run” placed on the girders, to a platform consisting of three planks laid side to side across two girders and over an open space. He was then obliged to go up a ladder the foot of which was placed in the lip of a girder which was not a part of the permanent construction of the floor, but which was laid across the girders. The ladder was further held securely by being tied with a rope to the steel framework at the roof. Plaintiff once left his work on the. roof, came down the ladder and across the platform and then returned to the roof, but on again coming down in stepping from the ladder to the platform the plank on which he stepped became displaced from the girders throwing plaintiff into the cellar.
    
      
      Held, that the questions of assumption of risk and of contributory negligence by plaintiff were properly left to the jury.
    
      Held, further, that there was no duty of the plaintiff requiring him to inspect the platform, and in the absence of any reason to the contrary he had the right to assume that it was properly constructed, in what was according to some of the evidence the usual manner, and he was not as a matter of law guilty of contributory negligence if he came down the ladder and upon the platform according to the usual manner of workmen.
    
      (2) Master and Servant. Assumed Risks.
    
    Where a floor frame was fully disclosed to view and it was apparent that the planks of a platform did not rest upon three floor girders, and were not long enough to do so, a servant assumed the risk arising from using a platform which rested on two girders only.
    
      (3) Master and Servant. Temporary Structures.
    
    In a personal injury action the question was for the jury whether a platform was or not one built under the direction of the master’s representative and furnished to the servant and his fellow workmen as a completed structure in a sense permanent, to be used by them in going to and from their work, taking the case out of the rule that when a structure is temporary and its erection merely a detail of the work that the servants are to perform, the master has discharged his duty when he provides suitable material for the construction and has used reasonable care in the selection of those to do the work.
    (4) Master and Servant. Constructive Notice.
    
    Where the evidence showed that the representative of the master in charge of the work, passed over a platform frequently before the accident, it is a question for the jury whether the master if it did not have actual notice of the manner in which the platform was constructed, did not have constructive notice of its dangerous condition before the servant was set at work by such representative in a place that required him to use the platform.
    Trespass on the Case for negligence. Heard on exception of defendant and overruled.
   Sweetland, J.

This is an action of trespass on the case to recover damages for personal injuries alleged to have been received through the negligence of the defendant.

The case was tried before a justice of the Superior Court sitting with a jury and resulted in a verdict for the plaintiff. At the close of the evidence the defendant moved that said justice direct a verdict in its favor. The justice denied said motion. The case is before us upon the defendant’s exception to said ruling.

It appears from the transcript of evidence that on August 5th, 1912, the day on which said injuries were received, the defendant, as a contractor, was constructing in the city of Providence, a steel-frame building having brick walls, which building was to be about twenty-five feet in height when completed; that the plaintiff, as a carpenter, was an employee of the defendant working upon said building; that the brick walls of the building had been nearly completed, and the interior steel frame, including the framework of the main floor, was in place and bolted together. The framework of the main floor consisted of steel girders and cross girders with open spaces, between the cross girders. In the evidence, these open spaces are called bays and according to the testimony of some witnesses were about ten feet across. The permanent floor was to be of concrete, but had not been laid on said August 5th. The plaintiff had been employed by the defendant for about three weeks previous to said day and had been working in an open lot near said building making wooden frames or forms to be used in the concrete construction about the building. George D. Miller was the defendant’s superintendent having full charge of the work. On the day in question at about half after ten o’clock in the forenoon Mr. Miller directed the plaintiff to go to work upon the roof. To get to the roof the plaintiff was obliged to pass over a so-called run or way, placed upon the steel girders of the main floor, to a platform consisting of three planks laid side to side across two steel floor girders and over one open space or bay. The plaintiff was then obliged to go up a ladder to the roof. The foot of said ladder was placed in the lip of a steel girder, which was not a part of the permanent construction of the floor, but was laid across the steel floor girders. The ladder was further held securely by being tied with a rope to the steel framework at the roof. Before noon the plaintiff left his work on the roof, came down said ladder and across the platform and then returned to the roof in safety. At twelve o’clock noon the plaintiff came down the ladder again; and, when he stepped from the ladder to the platform, the plank on which, he stepped in some manner became displaced from the girders, on which it had rested; the plank and the plaintiff fell into the cellar; and the plaintiff was severely injured.

The defendant based its motion for the direction of a verdict in its favor upon the claim that the evidence showed that the plaintiff had passed over the platform three times before the accident, must have seen the manner in which the platform was constructed and hence the plaintiff in using the platform had assumed the risk of any displacement of the planks; also that according to the testimony the plaintiff was plainly guilty of contributory negligence in stepping from the ladder to the platform without first satisfying himself that the planks were securely placed upon the girders; and further that the evidence failed to disclose any negligence on the part of the defendant.

We think that the questions of the assumption of risk by the plaintiff and of the plaintiff’s contributory negligence properly were submitted to the jury. According to the testimony of a number of witnesses, a platform, like the one in question, is usually secured to the beams beneath in such a manner that the platform and the planks composing it will not become displaced by the use of the platform. This construction on the underside of the platform cannot be seen by a person walking over it. There was no duty of the plaintiff which required him to inspect the platform before using it. In the absence of any reason for thinking the contrary he had a right to assume that the platform was properly constructed in what some of the witnesses testify was the usual manner. The plaintiff and other workmen who used the platform before said accident testified that the platform appeared to be secure and safe to use. The plaintiff cannot be held in law to have assumed the risk of a defect of which he was ignorant, or of which he would not become aware by the exercise of ordinary care. There was testimony from which the jury properly might find that the plaintiff had no reason to suspect that the platform was not securely constructed. It therefore cannot be held as a matter of law that the plaintiff was guilty of contributory negligence if he came down the ladder and stepped upon the platform as workmen usually do when they step from a ladder to a platform, the security of which they have no reason to question; The plaintiff testified that he came down the ladder in the ordinary manner, facing the ladder and stepping from rung to rung and from the lowest rung to the platform without making an examination as to the condition of each rung or an examination of the platform; and that this is in accordance with the ordinary custom of workmen.

The negligence of the defendant, which the plaintiff alleges, is that the platform was improperly and carelessly constructed because made of planks which were not long enough to cover two open bays and rest on three floor girders, and also because the platform was not securely fastened to the girders on which it rested. The first of these alleged grounds of negligence may be disregarded. The floor frame was fully disclosed to view, and it was perfectly apparent, upon a superficial glance, that the planks of this platform did not rest upon three floor girders and that they were not long enough to do so. The plaintiff must be held to have assumed the risk arising from using a platform which rested on two girders only.

In support of his other alleged ground of negligence the plaintiff introduced the testimony of several witnesses, who were carpenters, to the effect that it was customary to securely fasten such a platform as the one in question to the iron girders by construction on the underside of the platform; that, in circumstances such as existed at this building, a platform was unsafe which was not so secured; and that said platform was used by twenty-five or thirty workmen as a means of reaching said ladder; building material was carried over it and placed upon it; and in such use, unless the planks were secured, they were liable to become misplaced and create a dangerous situation. As to this ground the defendant urged in support of its motion that it was not liable, and relied upon, a principle, enunciated in a long line of cases, the authority of which cannot be questioned. The general rule is that the master shall furnish to the servant reasonably safe appliances and a reasonably safe place to work; and that he is liable for the negligent performance of this duty, although he delegates it to another; yet the rule is equally well established that when an appliance or a structure is not permanent and its erection and operation is a mere detail of the work his servants are employed to perform, the master has discharged his duty towards his workmen when he has provided suitable material for the construction of the appliance or the structure and has used reasonable care in the selection of competent servants to do the work; and that the master, in- such circumstances will not be held responsible for injury to one of his servants occasioned by a defect in such appliance or structure arising from the negligence of a competent co-employee of the injured servant. This, which may be regarded as an exception to the general rule as to the master’s obligation, has particular application to circumstances where the appliance is portable or the structure is necessarily changing from time to time as the work progresses, and the erection, removal, adjustment, readjustment and change, clearly are necessary details of the work which the servants are doing; It has been followed frequently in cases involving injury to carpenters, painters, masons and other structural workers, caused by defects in temporary stagings and scaffoldings erected by their fellow workmen as places on which to stand and do their work. This court has applied the principle in Laporte v. Cook, 22 R. I. 554, which case involved the constantly changing conditions which arise during the construction of a sewer; and has held that the use and application of materials furnished by the master suitable for sheathing a sewer trench formed part of the duty of the workmen “And if their failure to sheath the sides of the trench was negligence, it was negligence of fellow servants of the plaintiff, for which the defendant is not liable.”

Although generally the master is not responsible for defects in temporary stagings, for the making of which he had furnished suitable material and competent workmen, yet the fact that a servant is injured through a'defect in such a staging is not conclusive of the master’s freedom from liability. For if the master undertakes to erect the staging himself and it is built under his direction, or if he furnishes it to the workmen for use as a completed structure he is responsible for its safety. Also if the master has actual notice of a defect in a temporary staging, which later causes injury to one of his workmen, who in the exercise of due care is ignorant of it, which defect is due to the negligence of a fellow servant of said workman, or if the circumstances are such that the master should be held to have constructive notice of the danger, .and if the master neglects to remedy the defect and permits the workman to continue to use the staging without warning of the danger, then the master’s negligence, subsequent to that of the fellow workman of the one injured, must be held to be the proximate cause of the accident and the master will not be permitted to escape liability.

It appears from the testimony that the placing of the ladder .and the platform in position was not an incident of any particular work on the building; but that when, in the progress of the work, it became necessary for carpenters and other workmen to go upon the roof and to carry materials there, the ladder was placed and the platform was laid. The only testimony in the case which states how said platform came to be built is that of the defendant’s superintendent, Mr. Miller, as follows: 71 Q. “How did that ladder and planks happen to be put in place there?” A. “I told the men to put it up so to get to the roof; the only way we had to get up,” and again, 74 Q. “And what did you tell the men whom you had do that work?” A. “Told them to put a ladder up there so they could get up on the roof.” 75 Q. “And what about the platform?” A. “Put a plank there for them to land on, step oh when they came down.”

John P. Brennan, for plaintiff.

Boss and Barnefield, for defendant.

The superintendent is unable to state whom he directed to-place the ladder and the platform in position and will not-deny that it may have been an unskilled Italian laborer whom he ordered to construct the platform. According to-the testimony the platform and ladder had been used in that place for a day or two before the day of the accident and continued to be used for a week, at least, afterwards. These-facts present questions to go to the jury, whether this platform was or not one built under the direction of the defendant’s representative and furnished to the plaintiff and his-fellow workmen as a completed structure, in a sense permanent, to be used by them in going to and from their work upon the roof. It also appears that the defendant’s representative, Mr. Miller, was about all parts of the building, personally superintending the work and directing the workmen. He gives it as his opinion that he passed over this platform fifty times before the accident. This raises the question to be submitted to the jury as to whether the-defendant, if it did not have actual notice of the manner in which the platform was constructed, in the circumstances of the case, did have constructive notice of its dangerous condition, before the superintendent set the plaintiff at work in a. place that required him to use the platform.

The evidence, therefore, presented fair questions to be submitted to the jury as to whether the platform was reasonably safe for the use to which it was to be put; whether the-plaintiff should be held to have assumed the risk of any defect in its construction; whether he was guilty of contributory negligence in his manner of using it; whether the defendant had undertaken to construct the platform and furnished it to the plaintiff as a completed structure; and whether the defendant had notice of the condition of the platform before-he directed the plaintiff to use it.

The defendant’s motion for the direction of a verdict in its favor was properly denied. The defendant’s exception is overruled. The case is remitted to the Superior Court for the entry of judgment on the verdict.

Claude R. Branch, Edward P. Jastram, Edwards & Angelí, for petitioner.

Tillinghast and Collins, of counsel.

Albert A. Baker, City Solicitor, Elmer S. Chace, Assistant City Solicitor, for respondent.  