Bartlett-Hayward Co. v. State Ex Rel. Smith

Hrner, J., delivered the opinion of the Court. This is a suit by the State for the use of the widow and infant children of James H. Smith, who was killed by the collapse of an elevated platform on which he was working, as an employee of the appellant corporation, in the construction of an oil tank. A judgment for $4,000 was recovered by the plaintiffs, and the defendant has appealed. Of the various exceptions reserved we are requested by the appellant to review only those which, if sustained, would result in a reversal without a new trial.

The declaration alleged that the decedent, while employed by the defendant to assist in driving rivets in the course of ³ the described construction, was required to work upon a certain platform, erected by the defendant for that purpose, consisting of uprights, braces and cross-pieces so built that boards could be placed at different elevations for carrying on the work; that it was the duty of the defendant to provide the decedent a reasonably safe place in which to work, and to so construct the platform in question as not to subject him to unnecessary risk; but that the platform was improperly and negligently built by the defendant with defective and inadequate materials and without proper fastenings, and that in consequence thereof it collapsed and caused the death on account of which the suit was brought. It is averred that the insecure condition of the scaffold was not apparent to the workman and that he was using due care. The proof shows that the tank was being erected in five foot tiers, and that as each was completed the platform upon which the riveters stood had to be elevated a sufficient distance to enable them to place another tier in position. At the time of the accident the structure had reached the height of about thirty feet.

The platform extended entirely around the inside of the tank. It was supported by brackets each of which was fastened to a single four by four inch wooden upright which rested on the ground. The uprights stood at intervals of about fourteen feet around the tank and at a distance of slightly more then three feet from its inner surface. They were held in place by a system of braces.

The brackets each consisted of two boards joined at one end and nailed against the upright in such position as to form an inverted right angled triangle. These boards were one inch thick. The horizontal piece, known as the “ledger board,” was eight inches wide and about three feet long. It projected from the upright to within a few inches, of the wall of the tank.

The other bracket board, called the “brace,” was six inches wide and of a length sufficient to reach diagonally from the -end of the ledger board to a point about- two and a half feet lower down on the upright. Upon the brackets were laid the platform boards. The scaffold thus ⁴ constructed was required to accommodate not only the workmen engaged in riveting the sections of the tank, hut also a hand forge, fuel and other material for each group. It was while a forge was being moved in the usual way from a lower to a higher platform that one of the brackets gave way and James Smith received his fatal injury.

The bracket when examined immediately after the accident was found to contain the nails which had fastened it to the upright. There were five of these in the ledger board and possibly one or two more than that number in the brace. Hone appear to have been left in the upright, and as that remained in position, it is clear that the collapse of the platform was due to the fact that the nails had not sufficient hold in the upright to bear the strain to which they were subjected. According to the evidence offered on behalf of the defendant the nails used in the supports were of the size known as “ten penny,” and protruded about one and three-fourths inches through the ledger boards and braces.

One of the plaintiff’s witnesses, who examined the bracket in question, testified that the rails were “eight pennies,” and had a projection of about one and a half inches beyond the thickness of the boards. There was testimony to the effect that it was customary in the construction of this kind of scaffolding to use twenty penny nails in fastening the brackets to the uprights. The nails and other materials for the scaffold were furnished by the defendant corporation. The bracket frames were