Calvin Mengle, Appellant, v. McClintic-Marshall Construction Company, Respondent

Calvin Mengle, Appellant, v. McClintic-Marshall Construction Company, Respondent. Negligence—evidence that the defendant was responsible foi' a dangerous method of constructing a trestle which fell — what objection, not raised on the trial, is not available on appeal. In an action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, it appeared that the defendant was engaged in the construction of a building in a shipyard, and that, for the purpose of transporting material, a trestle, carrying a railway track had been constructed partly upon land and partly in the water; that while a car was being run upon the track a portion of the trestle gave way, throwing the plaintiff into the water and injuring him. The plaintiff was one of the workmen who constructed the trestle. The reason why the trestle fell was not disclosed. Upon the trial the plaintiff asked a number of questions designed to show that the defendant was responsible for the method employed in constructing the trestle; that such method was inherently dangerous, and that the accident was due to its improper and dangerous character. Held, that it was improper for the court to exclude the questions under an objection that they were irrelevant and immaterial; That, the point not having been raised at the trial, the exclusion of the questions could not be justified on appeal by the assertion that the plaintiff had not laid the proper foundation for the evidence sought to be elicited, by proof that, the . method of construction was unsuitable and that the structure was improperly constructed pursuant to the defendant’s instructions and orders. Appeal by the plaintiff, Calvin Mengle, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 18th day of March, 1903, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term, and also from an order entered in said clerk’s office on the 23d day of March, 1903, denying the plaintiffs motion for a new trial made upon the minutes. A. Delos Kneeland [Charles R. La Rue with him on the brief], for the appellant. Franh Verner Johnson [E. Clyde Sherwood with him on the brief], for the respondent. [MAJORITY — Hirschberg, J.:] Hirschberg, J.: The plaintiff was injured at Camden in the State of New Jersey while engaged as an employee of the defendant in the construction of certain iron work for a building in process of erection on shipyard premises. In connection with the work a trestle had been erected partly on land and partly in the Delaware river to carry a tram track on which a car could be run for the purpose oE transporting material to be used in the work of construction. While a car was being so run upon the track a portion of the trestle gave ■ way and the plaintiff was thrown into the river and severely injured. The trestle was built by certain workmen in the defendant’s employ of whom the plaintiff whs one, and who are designated in the testimony as the “ construction gang.” The record does not disclose the reason why the trestle fell, whether it was because of faulty construction or because of the employment of an unsafe or improper method in construction, or because of the use of defective material. The dismissal of the complaint was based upon the theory that as the trestle was a scaffold merely, the duty of the defendant was fully discharged when it supplied sufficient and proper material to the men with which to build it, and that any negligence in the use of the material was that of a fellow-servant of the plaintiff, for which his employer would not be responsible. It may be that the ruling of the learned trial justice should be regarded as correct if upon the record as presented we were permitted to assume that- the defendant did no more than to furnish for the work sufficient competent men and adequate material, leaving to the men the entire construction of the trestle in such form and manner as they deemed safest and best. But giving to the plaintiff the benefit of every favorable influence, .as we are required to do on this appeal, we are not at liberty to indulge in that presumption. In addition to his own evidence the plaintiff produced as a witness the foreman'or assistant foreman who had charge of the work of building the trestle under the orders of the defendant’s general superintendent, and proved by him that in his opinion the structure was not built in a reasonably safe manner to sustain the weight which it was designed'to bear. . He was asked by the plaintiff whether any plans were furnished by the defendant for the construction of the trestle; whether specifications were also so provided; what directions or orders were given to him by the superintendent in regard to the work; whether any inspection was made of the material uséd in the work; and other questions of a similar character, which if answered might have established or at least have tended to establish that the defendant was responsible for the method adopted in the work, and that that method was inherently dangerous, and had because of its improper and dangerous character in fact occasioned the accident. The questions were all excluded as immaterial and irrelevant, and the plaintiff took exception to the rulings. The learned counsel for the respondent justify the exclusion of the evidence referred to by the assertion that it was incumbent upon the plaintiff to first lay a foundation for it by proof that the method of construction was unsuitable and that the structure was in fact improperly constructed pursuant to the defendant’s instructions and orders. N o authority is cited in support of the position, the point was not raised by the specific objections which were interposed, and in our opinion the position of the respondent is untenable in any view. The evidence was certainly relevant and material to the issue which was on trial.- The object of the evidence was, we must assume, to show that the workmen were not in fact, chargeable with the method actually adopted in the performance of the work, and that the collapse of the struc- - ture did not result from any negligence in detail incident to it, but that the structure was in fact furnished by the defendant itself, constructed under plans and specifications to which the workmen were obliged to conform, erected in accordance with orders emanating from it and issued through its general superintendent, and that it ' fell because of negligence in the adoption by the defendant of an improper plan and system. In the orderly presentation of proof the production of the plans prepared and furnished by the defendant would usually be the first step toward establishing either their existence or a defect in them, and indeed until such production or the furnishing of some proof of their existence, direct evidence of the cause of the disaster might perhaps have been reasonably objected to. because no foundation had been laid to show that the defendant could be legally charged with it; The object of the evidence was manifestly to take the case out of the operation of the many decisions of the courts which relieve a master from liability for defective scaffolding on the theory that it is something planned and built by the workmen themselves for their own convenience. We are not now called upon to determine whether those decisions necessarily control the- case. But the rule is general that the master is responsible to his servant for his own negligence, and as the evidence which has been excluded might, if received, have been effective to bring this case clearly within that rule, and as we maynot assume that the answers to the excluded questions, if given, would have been unfavorable to the appellant by establishing that the work in question was not done in conformity with the plans or in obedience to the orders of the defendant or that if so done it was free from fault, there must be a new trial. The judgment and order should be reversed. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.