
    NEGLIGENCE — MASTER AND SERVANT.
    [Lucas (6th) Circuit Court,
    October 31, 1903.]
    Parker, Hull and Haynes, JJ.
    Henry J. Spieker Co. v. Fergus Ferguson.
    1. Master Must Furnish Servant Safe Place to Work.
    The master is bound to furnish his servants, a safe place to perform the'work for which they are employed, and a default of such duty is negligence which will render'him liable for injuries to! the servants resulting therefrom.
    2. Negligence of Foreman Chargeable to Master.
    The foreman of a gang of men engaged in the performance of work for the master is the representative of the latter, and his negligence in failing to provide a safe place for tile men to work is chargeable to the master. Hence, where in the performance of work under the control of the foreman, the men were required to work upon, a scaffold which had been previously erected by a stranger, and while engaged in their work the scaffold fell by reason of its weakness, whereby one of the men was injured, the master is liable for the injuries sustained by reason of the negligence of the foreman in not providing a safe place for the men to work.
    ERROR to the court of common pleas of Lucas county.
    Doyle, Lewis & Schaufelberger, for plaintiff' in error.
    Scribner & Coldham, for defendant in error.
   HAYNES, J.

(Orally.)

This action was brought by Fergus Ferguson against The Henry J. Spieker Company to recover for damages which were sustained by him by the fall of a scaffold at the Casino, he being engaged at that time by The Henry J. Spieker Company as a painter employed in working for them at that point. There were some four men who were working together at the time, and they were in that part of the building called the rotunda, and they found boards placed across certajn beams or cross-beams of scantling, which had been placed there by some independent parties, to wit, the employes of an electric company, who were putting in the electric lights and fixtures. The claim on the part, of the defense is, that the work was being done by these four men; that they were charged with the duty of erecting the scaffolding upon which they were to work and that if there was any neglect in the manner in which the work was performed, it was the neglect of the workmen themselves; that they stood in the relation of fellow workmen, and that therefore the defendant company was not liable.

It is further set- forth that by the custom in Toledo and of this company, the workmen were to put up the platforms or scaffolds themselves upon which they were to work in the carrying on of their work. It appears from the testimony that the plaintiff below came here seeking for work and went to the office of the compan)- and saw Mr. Spiekcr, who was president of the company, and he told Ferguson he did not know whether they wanted men or not, but to go down to the Casino and see his partner, Mr. Berkenbile. Berkenbile was connected with the company and had charge of the working force and of the hiring of the men. Spieker managed the finances and Berkenbile was the manager in the field. Fie testifies that he went there and saw Berkenbile, who told him that he would go and see and then took him to see a man who wás at work with their other men (a Mr. Minneker) and he introduced him to Minneker and told Minneker to set him to work, and thereupon he went to work with that gang or body of four men. They worked some that afternoon and the next morning they went to this part of the building to work, and finding this planking there and this scaffold, they went to work upon it. One of the cross-scantlings was weak; there was a large knot in it and the grain of the timber ran crosswise instead of lengthwise of the timber, so that it was very weak and it fell.

After reading this testimony through we find that the' statement made by the plaintiff in regard to the hiring is practically not denied. Berkenbile says he does not remember much about it; and Minneker is in abn.r.t the same position; there is nowhere any statement made by the defendant denying it, and we are of opinion, that where a man is employed, under the rules of law, the employer is bound to furnish him a safe place to work; that at this time this man was under the control of Minneker; that Minneker stood in the relation of foreman to him; thru lie did so by the action of Berkenbile himself, and that in the work Hr. lU-inneker became to him a foreman over the men and that it mv.¡ the duty of Minneker,1 representing the company, to have seen 'to it that tlie plaintiff had a safe platform or scaffold for the men to- work upon.

Other questions might arise, but we do not pass upon them — for instance, as to the effect to be given to- this so-called custom in chanr-'ing the obligation and duty of the owners of the property to furnish a safe place and thus relieve themselves from responsibility. We base the decision entirely upon the evidence that I have already stated; that under the circumstances of the case, Fir. Minneker properly stood in the relation of foreman to these men and represented the company and was bound to see that the scaffold was safe for the men to stand upon, and that in this respect the company, through him, was negligent; and holding these views, the judgment of the court of common pleas will be affirmed and reasonable cause certified for the filing of the petition in error.  