
    TEXAS CO. v. STRANGE.
    (Court of Civil Appeals of Texas.
    Nov. 12, 1910.)
    1. Master and Servant (§§ 101, 102) — Safé Place fob Work — Cabe Required or Master.
    As a general rule the master is bound to use ordinary care to furnish the servant with a safe place to work.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 172, 178-1S4, 192; Dec. Dig. §§ 101, 102.]
    2. Master and Servant (§§ 101, 102)— Places fob Work — Scaffold—Care Required of Master.
    Where the employer provides a scaffold for masons to work on, it is his duty to use ordinary care to see that it is safe, and failure so to do will make him liable for resulting injuries.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 172, 178-184, 192; Dec. Dig. §§ 101, 102.]
    3. Master and Servant (§ 209) — Place fob Work — Temporary Structure — Assumption ox Risk.
    Where temporary structures, erected to complete a main structure, are put up by the same workmen as are engaged on the main structure, the workmen who have put it up assume the risk of such structure being unsafe.
    [Ed. Note. — For other eases, see Master and Servant, Dec. Dig. § 209.]
    4. Master and Servant (§ 205) — Places xob Work — Soaxxold—Assumption ox Risk.
    Where a bricklayer goes upon a scaffold as a place of work, the scaffold having been built by carpenters engaged in the same general employment, he has the right to assume that the master has performed his duty to provide a safe place to-work.
    [Ed.' Note. — For other cases, see Master and Servant, Cent. Dig. §§ 547-549; Dec. Dig. § 205.]
    
      5. Master and Servant (§ 196) — Servants in Different Departments — Fellow Servant.
    A bricklayer, having no duty to erect scaffolds as a place to work, such structures being furnished by the master and erected by carpenters separately engaged, is not a fellow servant with the carpenters.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 376-378, 486-488; Dec. Dig. § 196.]
    6. Trial (§ 296) — Instruction—Error Cured by Other Instruction.
    In an action by a servant for injuries, the court charged that if the plaintiff while in the employ of the defendant as a bricklayer, and while exercising ordinary care in his work, was injured by the giving way of a scaffold, due to its faulty construction or the use of defective material, or the incompetency of those by whom it was built, or to the fact that the defendant either by itself or its employes, did not exercise ordinary care in the erection .of the scaffold, the defendant would be liable for any injuries received as the result of such failure. The court further charged in effect that the master was not an insurer of a safe place to work, but that the measure of his duty was ordinary care. Held, that any error in the first charge, as imposing upon the defendant the duty of faultless construction, was cured by the giving of the second.
    [Ed. Note. — For other cases, see Trial, Dec. Dig. § 296.]
    7. Master and Servant (§ 291) — Injury to Servant — Instructions — Conformity to Evidence.
    Where the charge in an action by a servant for personal injuries submits the right of the servant to recover upon the master’s failure to furnish competent labor in the erection of the plaintiff’s place of work, such instruction is error where the evidence had not raised the issue of competent labor.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 291.]
    8. Master and Servant (§ 295) — Injury to Servant — Action—Instruction.
    After the court, in an action by a bricklayer for injuries by the fall of a scaffold, had given a charge upon the assumption of risk it further charged that if the jury believed that the scaffold was defective and clearly and immediately dangerous, and that the plaintiff bad full knowledge thereof, but proceeded to notify the defendant of the dangerous condition of the scaffold, and that before it could be repaired it broke and fell, then the plaintiff did not assume the risk of its dangerous condition, and could recover for injuries unless his own want of ordinary care caused or contributed to the fall of the scaffold. There was conflicting testimony as to whether the plaintiff knew of the danger from the scaffold when he went upon it. Held, that such instruction was calculated to confuse and mislead the jury, and that there was not a sufficient grouping of facts to direct the attention of the jury to the conditions that would relieve plaintiff from an assumption of risk.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 295.]
    9. Master and Servant (§ 217) — Rises Assumed-Knowledge of Danger — Continuing Work.
    If a bricklayer goes upon a scaffold, and there discovers it is in immediate danger of falling, and without using proper care to protect himself from injury remains thereon, waiting for another division of workmen to repair it, he assumes the risk of his position.
    [Ed. Note. — For other cases, see Master and • Servant, Cent. Dig. §§ 574-600; Dee. Dig. § 217.]
    10. Master and Servant (§ 217) — Risks Assumed-Knowledge of Danger.
    Where a bricklayer has discovered the danger that a scaffold would fall, and immediately after and before he could protect himself from injury by the use of ordinary care, the scaffold fell, he did not assume the risk of injury.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 574-600; Dec. Dig. § 217.]
    11. Master and Servant (§ 236) — Assumed Risk — Knowledge—Ordinary Care.
    A bricklayer who has discovered that the scaffold on which he is to work is in immediate danger of falling cannot wait thereon for it to be repaired, unless his conduct in so doing is that of an ordinary prudent man.
    [Ed. Note. — For other cases, see Master and Servant, Dec. Dig. § 236.]
    Appeal from District Court, Dallas County; E. B. Muse, Judge.
    Action by D. W. Strange against the Texas Company. Judgment for the plaintiff, and the defendant appeals.
    Reversed and remanded.
    James B. Autrey and A. L. Beaty, for appellant. Chas. F. Clint and Chilton & Chil-ton, for appellee.
    
      
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   RAINEY, C. J.

Appellee brought this suit to recover of appellant damages on account of personal injuries received by him while in its services as a bricklayer. The injury was caused by the falling of a scaffold erected toy appellant for the use of appellee to stand upon while laying brick in the walls of a building then in the course of construction for appellant. Negligence was charged against the company, substantially, as follows: “First. In failing to use ordinary care to furnish a safe work place. Second. In furnishing knotty, weak, and unsound timber for the workmen to use in building the scaffold. Third. In employing and having inexperienced and incompetent men to select the materials and build the scaffold. Fourth. In failing to have a sufficient number of carpenters engaged in and about the work being done. Fifth. In failing to inspect or to have an inspector or some one performing the duties of an inspector.” The defendant pleaded the general issue, assumed risk, and contributory negligence. A trial was had and resulted in a verdict and judgment for plaintiff, and the defendant prosecutes this appeal. The appellant requested a peremptory instruction in its favor, which was denied by the court, and this action of the court is the basis for its first .assignment of error.

The proposition is made that under the circumstances no liability is shown on the part of appellant for the falling of the scaffold. As a general rule, it is the duty of the master to furnish the servant with a safe place to work. The measure of this duty is the use of ordinary care. The question arises, Does the rule apply in this case? The appellant insists that it does not, while on the other hand the appellee insists that'it does.

The facts, about which there is no controversy, are substantially that the appellant was having an oil refinery constructed, which required the erection of several buildings. The appellant had quite a force of workmen employed, consisting of carpenters, bricklayers and other workmen. There was a general superintendent of this force. There was a foreman of the carpenters, and one of the bricklayers. Each foreman had control only of his particular squad. Said foremen had the power to employ and discharge men, but neithey had any power or control of the other’s squad. The scaffold was erected by the carpenters exclusively, the masons taking no part in its construction. The carpenters, as was the custom, had erected the scaffold on which it was necessary for the masons to stand in the prosecution of their work, and in this instance as the masons went upon the scaffold it fell and the appel-lee was injured. It is true that the scaffold was only a temporary one, but it was erected to stand for the use of the masons until the task assigned them had been completed. Without it the walls of the building could not well have been completed so it was necessary for the masons to use it. It was no part of the masons’ duty to assist in the erection of said scaffold, nor did they assist in any way in its erection, and under these conditions we think it was the master’s duty to use ordinary care in the construction of said scaffold, and if it did not do so it would be liable for the damages resulting.

We think this case different in principle from those cases where in the construction of buildings it is necessary to erect temporary structures' to complete the main structure, and the workmen themselves erect such temporary structures. In such case the workmen assume the risk of the temporary structures being safe, while in the case at bar the masons had the right to assume that the master had done its duty and provided them with a safe place to work. There seems to be a conflict of authorities in other states on the principle here involved. There is no direct adjudication by our courts of this state on the precise question, but there are cases which in principle are in line with our holding. Pipkin v. Hayward Lumber Co., 43 Tex. Civ. App. 304, 94 S. W. 1068; Smith v. Oil Co., 41 Tex. Civ. App. 267, 91 S. W. 383; Ry. Co. v. Keefe, 37 Tex. Civ. App. 588, 84 S. W. 679; Ry. Co. v. Hohn, 1 Tex. Civ. App. 36, 21 S. W. 942. We are of the opinion that the authorities of other jurisdictions holding contrary to the principle insisted upon by appellant, are the better, and comport with the justice of this case, some of which we cite: McNamara v. MacDonough, 102 Cal. 575, 36 Pac. 941; Kreigh v. Westinghouse, 214 U. S. 249, 29 Sup. Ct. 619, 53. L. Ed. 984; C. & A. R. Co. v. Maroney, 170 Ill. 520, 48 N. E. 953, 62 Am. St. Rep. 396; Cadden v. Am. Steel Barge Co., 88 Wis. 409, 60 N. W. 800; Sims v. Am. Steel Barge Co., 56 Minn. 68, 57 N. W. 322, 45 Am. St. Rep. 451; Kansas Co. v. Sawyer, 7 Kan. App. 146, 53 Pac. 90. The servants who erected the scaffold were not fellow servants of appellee. The masons had no connection with the building of the scaffold. The appellant had undertaken to furnish it for the masons, and the doctrine of fellow servants does not apply in this instance.

Appellant’s second assignment oi error complains of the following paragraph of the charge, which reads: “If you find from the evidence that on or about August 17, 1907, the plaintiff was in the employ of the defendant as a brick mason, and while then and there engaged in the discharge of his duty in laying brick and exercising ordinary care in discharging said duties, said scaffolding gave way and caused the plaintiff to fall therefrom to the ground, as complained of in his first amended original petition, and he was thereby injured in the manner set forth in his first amended original petition, and that said scaffold gave way and fell because pf faulty construction, or because of defective or unsound material therein, or because of the incompetency of those who constructed the same, or that the defendant failed to exercise ordinary care in the construction of said scaffolding by itself, or through its employés, or agents, or failed to furnish sound material for the construction thereof, or failed to furnish competent labor to construct the same, then, and in either of such events, for failure to furnish either of the instrumentalities just hereinbefore indicated, it would be liable to the plaintiff for damages for any injuries on account of either of such failures, which may have been then and there inflicted upon him, and in such event you will find for the plaintiff damages in such sum as the evidence discloses he may be entitled to.”

Under this assignment is submitted the following proposition: “The charge complained of not only required the defendant to use ordinary care in the construction of the scaffolding, but plainly imposed upon it the absolute duty of faultless construction and of furnishing material free from defects and of hiring competent' laborers, rather than merely using ordinary care in those respects, which of course was error.”

While the paragraph complained of is not free from the construction contended for by appellant, yet we think the objections were cured by the court in other portions of the charge, where the jury were instructed, in effect, that the master was not an insurer of a safe place to work, but the measure of the master’s duty was ordinary care. The charge, in this respect, when considered as a whole, was sufficient, and presents no reversible error. The paragraph complained of is erroneous in submitting the right to recover, if appellant “failed to furnish competent labor to construct the same,” as the evidence failed to raise the issue of competent labor.

The third assignment of error is to the following instruction: “If you believe from the evidence that the scaffold in question was clearly defective, and that the plaintiff had a full knowledge thereof, and that it was clearly and immediately dangerous, and that the plaintiff had a full knowledge thereof, but that he proceeded upon said discovery to notify the defendant of the defective and dangerous condition of the scaffolding, and that before it could be repaired or strengthened, the same, without the fault of plaintiff, broke and fell, then and in that event plaintiff did not assume any risk in connection with its defective or dangerous condition, and although he may have knovm of both such defects and danger, he could still recover, as hereinbefore indicated, unless you believe and find from the evidence that his own want of ordinary care caused or contributed to causing said scaffold to fall and break and injure him, as aforesaid.”

We are inclined to think this charge' was calculated to confuse and mislead the jury. There was testimony by plaintiff that he did not know the scaffold was dangerous before he went on it, while on the other hand there was testimony tending to show that he did know it was not safe when he went on it. Plaintiff’s theory is that he did not know, but that after he had gone on the scaffold he discovered its defective condition and called for the carpenters to fix it, and before he could get off it fell and he was injured. The court in writing the charge probably had this theory in view and attempted to present it to the jury, but, if so, he failed to present it in a clear manner so as to properly present it to the jury, and it is therefore error. He had charged on assumed risk, and there was not a sufficient grouping of facts in the charge complained of to direct the attention of the jury to the condition that would relieve appellee from assumed risk. If, after appellee went upon the scaffold, he discovered the immediate danger of its falling, and did not use proper care to protect himself from injury, but remained thereon waiting for the carpenters to repair it, he assumed the risk. If, however, after discovering the danger the scaffold immediately fell, and he did not, by the use of ordinary care, have time to protect himself from injury, he did not assume the risk. After discovering the immediate danger of the scaffold falling he could not wait for the carpenters to fix it unless in the exercise of ordinary care an ordinarily prudent man would have remained thereon. These were issues, under the evidence, that required the determination of the jury.

For the errors indicated, the judgment is reversed and the cause remanded.  