Parrish & Co. v. Pulley
Parrish & Co. v. Pulley
Opinion of the Court
delivered the opinion of the court.
This is an action to recover damages for a personal injury, After all the evidence had been introduced the defendants demurred to the evidence, but the trial court overruled the demurrer and entered judgment for the plaintiff for the damages' assessed by the jury, to which judgment this writ of error was awarded.
E. H. Parrish & Company (who will be hereinafter referred to as the defendants) were engaged in the construction of a brick building in the town of Covington. D. Landes was employed as foreman and put in charge of the erection of the building. L. O. Pulley (hereinafter called the plaintiff) was employed to set the stone in the walls. In order to do this it was necessary to use a derrick. The derrick generally used for this purpose was,
The derrick, when in place, had a working radius of about five feet, and after being placed it was necessary to adjust it so as to raise the stone to the position in which it was to be placed in the wall. In order to adjust it, it was necesary to pinch the derrick with a crowbar. This pinching process would cause a vibration of the front guy ¡rope, and if sufficiently violent might cause the rope to come off unless it was securely fastened. Pulley, however, had had twenty years experience in laying stone and handling derricks of this kind, and was an entirely competent man to pinch the derrick. After the derrick had been put in place as above mentioned, Pulley began to pinch it in order to adjust it for raising the stone which he wished to place in the wall. While thus pinching it, and before a single stone had been placed in the wall, the derrick fell backwards and struck Pulley, knocking him to the ground, a distance of about sixteen feet, breaking his arm, dislocating his shoulder, and causing other injuries for which this action was brought. After the accident, it was found that the front guy rope had slipped off the crowbar, but the knots in the rope had not come untied, the bar had not broken, and its position in the ground had not been changed or loosened. An examination showed that the bar which was used was one-eighth of an inch smaller at the top than at the bottom, which was driven into the ground. The larger end was driven into the ground because that end was sharpened. When raising stone to the wall the strain was entirely on the
It is conceded by counsel on both sides that when the derrick was plumb, it could not and would not fall, even if there was no front guy rope attached, and that if it was out of plumb, |t could not fall if the front guy rope was in place was of adequate strength, and securely fastened. The derrick could never have fallen back
It remains to enquire whether the defendants were negligent in the manner in which the front guy rope was secured, and if so, was the- plaintiff negligent in the manner in which he operated the derrick. It is conceded that it was the duty of the defendants to furnish the plaintiff with a proper derrick. The derrick was composed of two pieces of timber two by four inches, twelve feet long, joined at the top, and there was attached to it a crab weighing approximately four hundred pounds. When the erection was completed, the derrick was left plumb. But it was never intended to remain stationary. It was erected for use, and could only be used by being pinched into proper position. This fact was well known to the defendants. Pulley also “was a competent man to pinch the derrick; he had done it many, many times,” and the evidence fails .to disclose any negligence on his part in the method in Which he pinched it. He helped to erect the derrick and knew about the size of the timbers and the weight of the crab, but he did not know that the crowbar was inserted with the small end upwards, that the front guy rope was not flexible, or the manner in which it was fastened. He had the right to assume that the master had done his duty in this respect.
It is earnestly insisted by counsel for the defendants that the master is liable for the consequences of negligence, but not of danger, and that he is not liable for the results, if he has followed the ordinary usuage of the particular business. Citing Bertha Zinc Co. v. Martin, 93 Va. 791, 22 S. E. 869, 70 L. R. A. 999, and Bowles v. Va. Soapstone Co., 115 Va. 690, 80 S. E. 799. This doctrine is not questioned by the plaintiff, but its application is
A jury might have reasonably inferred from the knowledge of Landes above mentioned, the statement of Craig, the manner in which the crowbar was driven in the ground, and the other evidence for the plaintiff hereinbefore detailed, that the defendants were negligent in not securing the front guy rope in such manner that it would not slip, and hence the trial court was bound to so find.
We find no error in the judgment of the trial court and it will, therefore, be affirmed.
Affirmed.
Reference
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- Parrish and Company v. Pulley
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- Syllabus
- 1. Demurrer to the Evidence—Inferences Most'Favorable to Demwrree Adopted.—Where several inferences may be drawn from the evidence, differing in degree of probability, on a demurrer to the evidence, the court must adopt those most favorable to the demurree, unless they are strained, forced, or contrary to reason. 2. Master and Servant—Action against Master for Personal Injuries—Falling Derrick—Case at Bar.—In the instant case tb”e accident was occasioned by the falling of a derrick caused by the slipping of a guy rope. The rope was attached to a crowbar driven into the ground with the small end upwards; the rope was a new one, and the crab was too heavy for so light a derrick. The bar was driven into the ground and a rope attached to it by the foreman and a fellow servant of plaintiff and one o.f the defendants who was a member of the defendant firm. The foreman testified that he knew that the vibration would cause the rope to slip, and also knew that if he had taken a turn and two half hitches the vibration probably would not - have caused the rope to slip. The fellow servant who assisted in attaching the rope' to the crowbar testified that he didn’t think that it was going to stand. Held: That a jury might have reasonably inferred from the knowledge of the foreman and the statement of the fellow servant the manner in which the crowbar was driven into the ground, and the other evidence for the plaintiff that the defendants were negligent in not securing the guy rope in such manner that it would not slip. .3. Master and Servant—Action against Master for Personal Injuries—Falling Derrick—Case at Bar.—While in the instant case defendants were under no obligation to foresee and provide against that which reasonable and.prudent men could not expect to happen, the jury would have been well warranted in finding the defendants negligent because the foreman did not take “a turn” that would have avoided the injury, when he knew that such a “turn” would have made the derrick secure although the small end of the crowbar was up. 4. Fellow Servants—Vice Principal and Fellow Servant.—A servant may in the performance of one act be a fellow servant and in the performance of another he a vice principal. 5. Fellow Servants—Non-Assignable Duties—Case at Bar.—In the instant case it appeared that it was the duty of the defendants, not only to furnish the derrick, but also to erect it and move it when necessary, and that the plaintiff was not required to furnish anything but his trowel .and hammer. This duty was therefore the master’s duty, and was not assignable, and if there was negligence in the discharge of it, the negligence was that of the master. 6. Fellow Servants.—Master as Fellow Servant.—While a representative of the master may become a fellow servant if engaged in a mere operative act, the master never can. 7. Master and Servant—Assumption of Bisk—Negligence on the Part of the Master—Concurrent Negligence of Master and Fellow Servant.—The servant never under any circumstances impliedly assumes any risk of negligence on the part of the master, and if his personal negligence proximately contributes to the injury of the servant, he is liable as though he only were at fault. The same is true where the injury is the result of the concurrent negligence of the master and a fellow servant. 8. Master and Servant—Partnership—Liability of Partners for Negligence of Member- of Partnership.—If the master is a partnership, then all the partners are liable for the negligence of a member of the partnership, as the negligence of one is the negligence of all. 9. Master and Servant—Contributory Negligence—Falling Derrick—Case at Bar.—In the instant case an action for personal injuries caused by the falling of a derrick due to the slipping cf a guy rope from a crowbar to which it was attached, the slipping of the rope was not an ordinary risk incident to the business in which plaintiff was engaged, nor was the danger from insecurely fastening the guy rope, under the circumstances, an open and obvious one, it not being shown that the plaintiff knew that the crowbar was driven into the ground with the small end up, or that he knew how the'knots were tied. 10. Demurrer to the Evidence—Inferences against Demurree.— Only those inferences are drawn against the demurree which necessarily flow from the evidence. 11. Master and Servant—Contributory Negligence—Falling Derrick—Case at Bar.—In the instant case there was nothing in the evidence to justify the conclusion that plaintiff was guilty of negligence proximately contributing to his injury. Although it was true that plaintiff pinched the derrick in order to adjust it to the work to be done, it was put there to be pinched and it was plaintiff’s duty to pinch it. In no other way could the derrick be utilized. The record however, failed to disclose any negligence on the part of the plaintiff in the manner in which he pinched it. 12. Master and Servant—Safe Appliances.—A servant has the right to assume that a tool or appliance furnished him by the master is a reasonably safe tool or appliance with which to do the work assigned to him.