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the frame-work broke, and gave way, and precipitated the safe down the stairway upon the plaintiff, who, without any fault, sustained grievous bodily injury, necessitating the amputation of one of his legs midway between the ankle and knee. The sufficiency of this complaint was challenged by a demurrer, which was overruled.
The facts put forward in the complaint bring the case fully within the rule which holds a master guilty of negligence who takes the personal supervision of work, and provides, or causes to be provided, defective or insufficient structures or appliances, which are to be used in the accomplishment of the work proposed. The cases uniformly affirm the doctrine that a servant, who without fault sustains an injury in the use of means and instrumentalities so provided, may look to the master for redress. Where one employs others to work under his direction, giving those employed no charge or responsibility in regard to the appliances to be used or the result to be accomplished, the responsibility for both remain with the employer.
Having assumed the supervision of a hazardous undertaking, in the performance of which he has employed or invited others to assist, those employed have the right to rely on the safety and sufficiency of the instrumentalities provided, unless their defectiveness is so glaring as to be open to the observation of prudent men. For example, where one undertakes to build a staging, or have it built, under his direct personal supervision, he is liable for an injury resulting from any defect or insufficiency in the structure which might have been avoided and made good by the exercise of due care. In such a case it is not enough that suitable material has been provided. It is necessary that proper skill and judgment should have been employed in the use thereof. If these were not possessed by the employer, it was his own folly to assume the supervision of the work. Manning v. Hogan, 78 N. Y. 615; Arkerson v. Dennison, 117 Mass. 407; Peschel v. Chicago, etc., Ry. Co., 62 Wis. 338; S. C. 21 N. W. Rep. 269; Behm v. Armour, 58 Wis. 1; S. C. 15 N. W. Rep. 806.
It may well be that if an employer directs that certain work be done, leaving it to the workmen to provide the structures and appliances required for its prosecution, bis responsibility to those employed ends with the selection of suitable men and material for the work. Such a case is not presented by the complaint. The appellants themselves supervised the preparation of the frame-work and appliances which were designed to control the descent of the ponderous safe down the stairway to the sidewalk. Having done this, they directed the appellee to place himself in a position of extreme peril, after giving him assurance that the means provided for sustaining the weight of the safe were sufficient. Without any express assurance, the legal implication was, when the appellants directed their employe to place himself in a situation in which his life and limbs depended upon the sufficiency of the instrumentalities, the construction of which they personally supervised, that they adopted such precautions in providing appliances as rendered his position safe.
If the appellee had assisted in the preparation of the frame-work, and had become possessed of as much knowledge concerning the material, and the defectiveness of the appliances and arrangements, as the appellants themselves had, or assumed to have, a different question would have been presented. The rule is settled that if a servant is fully aware of the hazards of the employment, as the business is conducted, and has equal opportunities for knowing, and equal knowledge with the master, concerning the defective appliances for doing the work, and, with such opportunities or knowledge, proceeds in the business, he assumes the risk of the service. Umback v. Lake Shore, etc., Ry. Co., 83 Ind. 191, and cases cited; Lake Shore & M. S. Ry. Co. v. Stupak, 8 N. E. Rep. 630, (present term.)
But if there are defective appliances for which the master is responsible, which are unknown to the servant, or with which he had not sufficient opportunities to become acquainted, if the latter is injured thereby, and is free from negligence, the master is liable. The complaint presents a case in which the appellants assumed the obligation of furnishing means and appliances safe and adequate to the purpose for which they were designed. Since it does not appear that the appliances were glaringly or palpably inadequate, the appellee was not chargeable with knowledge or responsibility as to their character or suitableness. He was therefore justified in supposing that such skill, prudence, and foresight had been employed in their preparation as rendered them safe. Indiana Car Co. v. Parker, 100 Ind. 181; 2 Thomp. Neg. 975.
The demurrer to the complaint was properly overruled.
Upon an issue made by the general denial, a trial was had to a jury, which resulted in a verdict and judgment for the plaintiff below for $1,200. It is now contended that the verdict is not sustained by the evidence. Without rehearsing the evidence, it is sufficient to say, if the testimony given in behalf of the plaintiff was believed by the jury, it sustains all the material averments in the complaint. It appeared that all the preparatory arrangements for lowering the safe had been made by or under the direct supervision of the appellants. A Mr. Bennett, who assisted in making these arrangements, sent a colored boy with a request to the appellee to come and assist in lowering the safe. The appellee was a laborer who had before assisted in moving safes, but was without special experience as an expert in the business. The appellants were informed by Bennett of what he had done, and expressed no dissent.
The appellee testified that when he appeared on the scene, in answer to the request, the safe stood at the head of the stairway, and the arrangements for lowering it had all been completed. He was directed by one of the appellants to take a position in front of the safe, and assist in regulating the blocks on the tramway upon which the safe was to be lowered. He inquired whether everything was safe, and was assured that it was. Soon after the process of lowering began, the frame-work to which the ropes and pulleys were attached gave way, with the result that the safe was precipitated upon the appellee, inflicting upon him a painful and permanent injury.
There was affirmative evidence tending to prove that both the materials used in the construction of the frame-work, and the manner of its construction, were defective and insufficient. Indeed, the mere fact that it broke down almost the instant the weight of the safe came upon it raised a strong presumption of its insufficiency. The appellants denied that Goodwin had been employed with their consent, or that they had given him any assurance in regard to the safety of the appliances, or that they directed him in any manner whatever. The jury, however, found against them, as well they might, upon the evidence. We find no reason to disturb their finding.
The appellants complain of the giving of instruction No. 10, which is set out in the record. The instruction cannot, with propriety, be set out, on account of its length. It is sufficient to say that this instruction, with others given, contained a precise and accurate exposition of the law of the case, in harmony with the principles already announced in this opinion. There was no error.
The judgment is affirmed, with costs.
(44 Ohio St, 536)
HECK 0. STATE.
(Supreme Court of Ohio. December 16, 1886.) INTOXICATING LIQUORS, SALE OF — CONSTITUTIONAL LAW - RETROACTIVE LEGISLATION
VESTED RIGHTS-AGRICULTURAL FAIRS—TEMPORARY AND PERMANENT PLACES OF SALE -Const. Ohio, ART. 2, § 28; Rev. Sr. Ohio, & 6946, AS AMENDED MAY 2, 1885.
The clause," whoever sells intoxicating liquors within two miles of the place where an agricultural fair is being held,
shall be fined," etc., contained in section 6946 of the Revised Statutes of Ohio, as amended May 2, 1885, (82 Ohio L. 2:22,) includes sales made by one whose place of business is permanently located within such distance, is not in conflict with any provision of the constitution, and
is a valid law. FOLLETT, J., dissents. (Syllabus by the Court.)
Error to circuit court, Tuscarawas county.
T. D. Helea and J.T. O'Donnell, for plaintiff in error. J. F.Wilkin, Pros. Atty., for the State.
MINSHALL, J. The plaintiff in error was indicted at the October term, 1885, of the court of common pleas of Tuscarawas county, under section 6946 of the Revised Statutes as amended May 2, 1885. The indictment charged that on September 30, 1885, he unlawfully sold intoxicating liquors to one C. in the county, within two miles of the place where an agricultural fair, naming it, was then and there being held. It was disclosed by the evidence at the trial, upon a plea of not guilty, that he was then, and since 1883 had been, the owner and keeper of a saloon located in a brick building in the village of Uhrichsville, in which he carried on the business of selling intoxicating liquors, and that at the time named he then and there sold such liquors to the person named in the indictment; the same being, as charged, within two miles of where the said fair was then being held. The jury, under the charge of the court, returned a verdict of guilty. A motion for a new trial was made and overruled, and sentence pronounced by the court. A bill of exceptions was taken, setting forth the evidence, the charge of the court, and its refusal to charge as requested.
The question presented by the record is as to whether, upon the evidence, the accused is guilty of an offense within the terms of the statute; and, if so, then whether the statute is a valid one. It is claimed that the clause in section 6946 of the Revised Statutes, as amended May 2, 1885, (82 Ohio L. 222,) to-wit, “whoever sells intoxicating liquors within two miles of the place where any agricultural fair is being held, * * * shall be fined,” etc., is simply a revision of section 3 of the act of 1856, that furnished the sale of such liquor at some temporary place, as a booth, tent, or wagon, within the distance stated of the place when such fair was being held; and that it cannot be construed to include what was not an offense under the provisions of that act. When the language used in a revised statute is of such doubtful import as to call for a construction, it is both reasonable and usual to refer to the statute or statutes from which the revision was made. But when the language is plain, and tends to no absurd or improbable results, there is no room for construction; and it is the duty of courts to give to it the effect required by the plain and ordinary signification of the words used, whatever may have been the language of the prior statute, or the construction placed upon it.
State v. Brewster, 44 Ohio St. —-; 8. C. 6 N. E. Rep. 653; U.S. v. Bowen, 100 U.S. 508; Allen v. Russell, 39 Ohio St. 336; Rich v. Keyser, 54 Pa. St. 86. If the plain language of a revised statute is to be departed from whenever the language of the prior one may require it, then it may be asked, what is gained by a revision? The definition of crimes must, in such cases, be sought, not in the statutes as they are found to exist, but in the language of those that have been repealed. The more natural rule must, as we think, be to resort to the prior statute for the purpose of removing doubts, not for
the purpose of raising them. The language employed in the clause in question is free from any ambiguity. It embraces the sale of intoxicating liquors at any place within two miles of the place where an agricultural fair is being held. There is nothing in the nature of the subject that would lead the mind to suppose that any discrimination was intended. The sale of intoxicating liquors, within the distance named of a fair, would be a source of the same inconvenience and annoyance to the people attending it whether sold at a permanent place or at a temporary one.
But it is also claimed that the law is retroactive, and so in conflict with section 28, art. 2, of the constitution. The power of the general assembly to provide against evils resulting from the traffic in liquor is conferred, in terms, by section 9, art. 15, so that every person in the state engaged in the traffic holds his property employed in such business, subject to the legitimate exercise of this power by the legislature. Laws have been passed prohibiting the sale on election days, and upon the Sabbath. No one questions the validity of these laws, and yet they are but similar instances of the power exercised by the legislature in the enactment of this law.
It is also argued that the law is not uniform in its operation, because it applies to the liquor dealer whose place of business is just within, and does not apply to the one that is just without, the prescribed limit; and is therefore in conflict with section 26, art. 2, of the constitution. Is this tenable? Laws made applicable to cities and villages of a certain grade and class have been sustained time and again by this court, although they do not apply to those of another grade and class. A law is general and uniform that applies to all persons and things coming within its provisions throughout the state. Its uniformity consists in the fact that no person or thing of the description of any person or thing affected by it is exempt from its operation. The langnage of this law is general, and applies with uniformity to every person engaged in the business of selling intoxicating liquors within two miles of any place where an agricultural fair is being held. We see no error in the record. Judgment affirmed.
FOLLETT, J., dissents.
(103 N. Y, 533)
In re Application of GARDNER, Adm'r, etc.
(Court of Appeals of New York. November 23, 1886.) STATUTE OF LIMITATIONS-PART PAYMENT-CLAIM FOR SERVICES-IMPLIED CONTRACT.
Where a sister has performed services for her brother, in the way of housekeeping or housework, for 39 years prior to his death, at his request and as his servant, and, three years prior to his death, he made her a payment to apply on such services, and thereafter paid her a little money occasionally, but the particular times or amounts of such payments are not shown, she can recover only for services performed during six years prior to the first payment proved to have been made, and from that up to the time of her brother's death; her claim for services prior to that
date being barred by the statute of limitations.i Appeal from a judgment of the supreme court affirming an order of the surrogate of Tompkins county denying the application of Robert B. Gardner, as administrator of the estate of Allen B. Gardner, for leave to sell real estate for payment of the debts of his intestate.
Mr. Howland, for appellant. Mr. Tuttle, for respondent.
DANFORTH, J. The only claim which justified the application was one presented in favor of Lucy C. Gardner, a sister of the deceased, for housekeeping or housework; and in regard to that the surrogate found that the
1 As to the effect of part payments, see Hubbard's Adm'r v. Clark, (N. J.) 7 Atl. Rep. 26, and notę.
claimant began to perform valuable services for her brother, at his request and as his servant, on or about November 1, 1843, and continued to perform such services until his death, on or about November 1, 1882, a period of 39 years; that they were worth a certain sum per week, varying in amount in different years; and that, to apply on "those services, the deceased paid the claimant two dollars in the spring of 1879, and thirty dollars in the fall of that year;" "and that he had paid her a little money occasionally,”—“every few years some,”—but that "the particular times or amounts of such payments were not stated or shown;" and holding, as matter of law, that the statute of limitations precluded a recovery for any service rendered more than six years before the payment made in the spring of 1879, he gave judgment for the residue only, viz., for services rendered during six years prior to April 1, 1879, and from that time to the death of the deceased,-in all nine years.
In cases of this character there is often great difficulty in getting at the truth, so as to adjust fairly the rights of both parties. But here every question has been settled to their satisfaction excepting that relating to the application of the statute of limitations. The effect of that statute is to prevent one who neglects to enforce his right of action upon a contract obligation or liability, whether express or implied, from doing so after the expiration of six years from the time the cause of action accrued. Here there was no express agreement as to the time or measure of compensation, nor any evidence of usage in respect thereto, and I am unable to find any circumstance to distinguish the claimant's case from that decided by this court in Davis v. Gorton, 16 N. Y. 255, where it was in substance held that a similar indefinite engagement was to be taken as a general hiring; but that the law would not imply an agreement that compensation should be postponed until the termination of the employment, and a judgment which had been rendered on the opposite theory was reversed. It did not appear in that case that any payments had been made; but in Gilbert v. Comstock, 93 N. Y.484, that fact was in evidence, and an allowance for six years prior thereto was justified. That circumstance was present in the case at bar, and the same effect has been given to it. We think the claimant can require nothing more.
In Smith v. Velie, 60 N. Y. 106, on which the appellant relies, there were open mutual accounts between the parties, and, while that condition of things continued, the statute was no bar; for, in such a case, if the last item is within six years, it draws after it items beyond that period. In the absence of an express agreement as to time of payment, the law will, no doubt, presume that the parties contracted in reference to the usage prevailing in respect thereto in that kind of employment, and, when shown, it would be taken into account; but here, as before suggested, none is proven. The witnesses, indeed, estimate the value of the services at a certain sum per week, and such is the finding of the referee, and from that it might perhaps be inferred that weekly payments were usual in such cases; but, however that may be, both reason and authority repel the implication that, under such a general contract as the present, payment was intended to be delayed until the end of service.
We think, therefore, that the appeal fails, and the judgment should be affirmed.
(All concur.) (103 N. Y. 406)
PHELPS and others v. BOLAND.
(Court of Appeals of New York. November 23, 1886.) 1. CONFLICT OF LAWS BANKRUPTCY FOREIGN DISCHARGE - SUBMISSION TO FOREIGN
The acceptor of a bill of exchange was adjudged a bankrupt in England. The holder of the bill, being a citizen of New York, proved the bill and accepted a com