Opinion
May, 1907.
Frank V. Johnson (Harry S. Austin, of counsel), for appellant.
Edward J. Gavegan, for respondent.
There is no dispute about the facts in this case. The plaintiff, with others, was a laborer in the employ of the defendant in the subcellar of a building then in course of construction. He was engaged in clearing away the debris from around the base of a pillar that was being encased in brick. Two or more bricklayers in the defendant's employ were laying brick around the pillar or "pier" as it was called. The bricklayers were upon a scaffold about thirteen feet above where the plaintiff was at work. One side of the scaffold was four planks wide, each plank about eight inches in width, but on the side of the pier over where the plaintiff was at work there were but two planks of that width. A brick fell from this scaffold striking the plaintiff on the head, causing the injuries complained of and for which the plaintiff had a judgment. The accident is described in this way by the only witness other than the plaintiff. "We had worked the night before on this pier and the next morning when we started to work it was dark there, and it seems this mortar board had been shifted and it was about three feet away, and we went up there in the morning before the electric light was turned on, and the end of this tub struck the brick when I reached for it, and I seen this fellow standing down there, and of course I shouted to him and I tried to save the brick, but it fell down and I saw it strike him on the head." The foreman of the defendant directed the plaintiff to work in the place where he was engaged when he was hit by the brick; and that there were bricklayers at work over him he well knew, as he testified that he had been "working around there for several days" prior to the accident and that, at the time he was hurt, at least two men were working over him. The immediate cause of the accident was clearly the negligent act of a fellow servant, for which the defendant was not liable, under the circumstances detailed in the testimony. The respondent urges that the scaffold was improperly constructed. The testimony upon that question was improperly admitted over the objection of the defendant; but, assuming that it was not of the usual width on the side from which the brick fell, the brick did not fall from that cause but by reason of the push given it by the co-servant of the plaintiff. The knowledge of the plaintiff, when he engaged in the work, that the workmen were over him laying brick and the absence of proof that there was any assurance of safety given him, leads to the inference that he assumed the risk incident to his employment and the judgment must be reversed.
SEABURY and BRADY, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.