Wright v. Burk Hall-Tayloe Paint & Glass Co.
Wright v. Burk Hall-Tayloe Paint & Glass Co.
Opinion of the Court
Charles S. Wright instituted this suit in the Circuit Court of Washington County against Burk Hall-Tayloe Paint & Glass Company, Inc., a corporation, to recover damages for personal injuries sustained by him on account of the alleged negligence of the defendant in failing to furnish him, its employee, a reasonable safe place
The defendant, in its answer, denied the material allegations of the declaration, and set up, by way of defense, that it discharged every legal duty owing to the plaintiff; that the plaintiff was an experienced glazier, and that, in spite of his experience, he elected to do his job in an unsafe way and manner; that the sole proximate cause of his injuries was his failure to use suitable tools and equipment at hand for the performance of the work in a safe and proper way, and in electing to do the work in a careless and unsafe manner; and, in the alternative, that he was contributorily negligent.
The cause was submitted to the jury, and it found a verdict for the defendant. Prom the judgment entered thereon,“"the plaintiff appealed.
The only question on this appeal is whether or not the trial court committed prejudicial and reversible error by its admission in evidence of certain photographs which were offered'by the defendant.
In order to determine the merits of this question, it is necessary to understand the setting:
The plaintiff introduced eight photographs which depicted scenes of the place where the work was performed. The defendant offered, without objection, two photographs of the scene, numbered 1 and 2, depicting substantially the manner in which the plaintiff performed the work except that it was indicated that Sam Randall, the helper, was in a slightly different position. It also introduced three photographs, numbered 3, 4, and 5, which were merely views of parts of the church and were similar to those offered by the plaintiff. Photographs numbered 6, 7, 8, 9 and 10 showed one of the brick walls of the church, with ladders resting against it, and a walkboard fastened to the ladders with a person standing on the board. The principle was the same in each photograph with a slight variation in the position
Only two witnesses gave oral testimony as to how the injury occurred, the plaintiff and his helper, Sam Randall. Wright, an expert glazier, as an employee of the defendant, testified that he went to the Negro Catholic Church in Greenville to see what was needed in the performance of his employer’s contract; and that he decided that a steel scaffold would be necessary to provide a platform because this would be safer than stepladders and extension ladders. He then went back to the office and told the boss what he wanted. However a superior, Ashbury, informed him that the steel scaffold was not then available, but that he would get it later. The next morning he went to the church with Sam Randall, his Negro helper, taking a stepladder and a two-piece sixteen foot extension ladder. He described how he set about the removal of the panes from the windows and as to the position of the ladder, and said that the board, on which he had to stand, was only eight feet long. He said that he got on the ladder and Sam Randall handed him the pane of glass. He then discovered that he did not have his putty knife and told Sam to get it for him. As he reached to get the knife, when Sam handed it to him, the ladder slipped, and he fell with the glass in his hand and thereby sustained his injury.
On the other hand, Sam Randall testified that he went with Wright to the church in the afternoon, and they carried only an eight foot stepladder, a tool box, and a plyboard; that they did not carry any ladder
In explaining that a steel scaffold was safer than a scaffold based on ladders, Wright went to the blackboard and made drawings to emphasize what he had said. (Of course such drawings are not available in the record.) Besides, the record shows that he used his photographs in explaining the manner and method of his work and in demonstrating where he placed the ladder. He admitted, on cross-examination, that photographs numbered 3, 4 and 5 were substantially correct, and that 6, 7, 8, 9 and 10 would correctly describe the situation if the equipment were arranged in that manner, but that, in some instances, the equipment was not available.
B. F. Ashbury, manager of the defendant, testified that Wright did not tell him that he needed a steel scaffold. Charles Ventura, an employee of the company, testified that there was available in the shop for this work two extension ladders, several eight and four foot stepladders, a pair of ladder jacks, a factory type “toothpick staging” with a reinforced steel walkboard twelve to fourteen feet long, and a stock of ropes.
James E. Webb, Jr., an experienced glazier, testified that the customary and usual equipment furnished
John Taylor, an experienced glazier, also testified as to the customary method of glazing, namely, the use of two extension ladders, with ladder jacks and a walk-board. He had viewed the church and fully understood the nature of the work and was required to be done. He said that two extension ladders, with ladder jacks and a walkboard were needed for that work. He then looked at the pictures, which were introduced by the defendant, and said that such equipment was adequate for the job. Using one of the photographs, he stated that it represented exactly how he would have done the work. On the other hand, in consideration of the method admittedly used by Wright, he said that there was no justification for his doing the work in that way.
Actually the oral testimony and the pictures introduced by the plaintiff and the two pictures of the defendant, introduced without objection, show how Wright did the work on this occasion. The plaintiff also in effect conceded that equipment could be arranged in such manner as was shown in the other photographs of the defendant. Wright said that he needed a steel scaffold, and, to that end, he made drawings on the blackboard to show such arrangement and what he was talking about. On the other hand, the defendant contended that plaintiff did not need a steel scaffold; that the company had all of the equipment necessary for the erection of a proper scaffold, and, to that end, instead of having witnesses make drawings on the blackboard, it produced photographs to show the propriety and safety of such a scaffold, if the equipment had been utilized.
Photographs 6, 7, 8, 9 and 10 were not photographic reproductions of tableaux vivomts carefully arranged to bring defendant’s version of an actual occurrence, as contended in Fore v. State, 75 Miss. 727, 23 So. 710. There was no contention whatever that the work was actually performed in the manner therein depicted. The plaintiff had used his pictures and drawings on a blackboard to demonstrate the manner in which he would have done the work, if he had been supplied the steel scaffold which he testified that he should have had. On the contrary, the defendant, although denying that Wright asked for the steel scaffold, instead of drawings on a blackboard it produced the photographs to show that the plaintiff, with the equipment which was available to him, could have provided a safe scaffold with which to do the work. In other words the plaintiff was an expert glazier, and as such, instead of taking the necessary equipment for the safe performance of his work, as to which, from custom and usage he was the sole judge, he actually borrowed a ladder at the church, and proceeded to do the work in an unsafe and dangerous way. The plaintiff used his drawings to explain what he needed whereas the defendant used
It follows that the photographs were properly admitted and the cause is therefore affirmed.
Affirmed.
Reference
- Full Case Name
- Wright v. Burk Hall-Tayloe Paint & Glass Co., Inc.
- Status
- Published