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CASES

ARGUED AND DETERMINED

IN THE

UNITED STATES CIRCUIT COURTS OF APPEALS THE DISTRICT COURTS, AND THE

COMMERCE COURT

MURCH BROS. CONST. CO. V. JOHNSON.
- (Circuit Court of Appeals, Sixth Circuit. March 4, 1913.)

No. 2,239. 1. TRIAL ( 177*)-QUESTIONS OF LAW OB FACT_DIRECTION OF VERDICT-MO

TION BY BOTH PABTIES.

A motion by both parties for a directed verdict constitutes a stipulation that there are no issues of fact for the jury and authorizes the court to determine both issues of fact and law.

[Ed. Note. For other cases, see Trial, Cent. Dig. $ 400; Dec. Dig. 8 177.*

Operation and effect of motions by both plaintiff and defendant for

direction of verdict, see note to Lore v. Scatcherd, 77 C. C. A. 8.] 2. APPEAL AND ERROR (8 927*)-REVIEW-INFERENCES.

Where both parties moved for a directed verdict, and the court directed a verdict for plaintiff, the Court of Appeals, on a writ of error, would adopt that view of the facts expressly proved or reasonably inferable which was most favorable to the plaintiff.

(Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $8 2912,

2917, 3748, 3758, 4024; Dec. Dig. $ 927.*] 8 MASTER AND SERVANT (8 316*)—INJURIES TO SERVANT-INDEPENDENT CorTRACTOR.

The doctrine of independent contractor is that one who lets work to be done by another according to the methods of the latter, and without being subject to the employer's control except as to the result of the work, is not liable to third persons for injury resulting from the negligence of the contractor or his servants.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 1242, 1243; Dec. Dig. $ 310.*

Who are independent contractors, see note to Atlantic Transport Co.

V. Coneys, 28 C. O. A. 392.] 4. MASTER AND SERVANT (8 318*)--SERVANT OF SUBCONTRACTOR—LIABILITY OF PRINCIPAL CONTRACTOR.

Where defendant principal contractor for the construction of a building controlled the work as it progressed through a superintendeut, and permitted a subcontractor to pile marble in one of the uncompleted rooms in such a manner as to be dangerous to employés of subcontractors, who

were in the habit of eating their lunches in the room, he was not relieved *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

203 F-1

from: liability for injury to one of such servants while in the room during the lunch hour because the danger was caused by the negligence of the servants of the subcontractor in improperly piling the marble.

[Ed. Note.-F'or other cases, see Master and Servant, Cent. Dig. 88 1257,

1258; Dec. Dig. $ 318.*] 5. MASTER AND SERVANT ($ 318*)-INDEPENDENT CONTRACTOR-CARE REQUIRED.

Defendant general contractor, through a superintendent, retained gen. eral control of the construction of a building while different parts of the work were being performed by subcontractors. The subcontractor for the marble work was permitted to store marble in a room where the eniployés generally ate their lunches, and so negligently piled certain of the marble that, as an employé from a different building not connected with defendant was walking through the room during the lunch hour, he so jarred a pile of marble that it fell on plaintiff, a servant of another subcontractor, and injured him. Held, that plaintiff was a licensee, and that defendant, having intrusted the subcontractor with the performance of its duty to see that the marble was safely stacked for the protection of the persons working in the building, was responsible for the discharge thereof, and that defendant was negligent in failing to see that the marble was properly stacked, or that the workmen were warned.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 1257,

1258; Dec. Dig. $ 318.*] 6. MASTER AND SERVANT (8 322*)—DANGEROUS PREMISES-CAUSE OF INJURY.

The admission of strangers into the building not having been forbidden, and visitations by workmen from another building having been frequent and with defendant's knowledge, it was not relieved from liability because the fall of the slab that caused plaintiff's injury resulted from the act of such servant in walking along the plankway in the building in which plaintiff was employed.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. & 1263 ; Dec. Dig. g 322.*] In Error to the Circuit Court of the United States for the Western District of Tennessee; John E. McCall, Judge.

Action by Andrew Johnson against the Murch Bros. Construction Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Metcalf & Metcalf, of Memphis, Tenn., for plaintiff in error.
F. S. Elgin, of Memphis, Tenn., for defendant in error.

Before KNAPPEN, Circuit Judge, and SATER and SESSIONS, District Judges.

SATER, District Judge. [1, 2] The plaintiff in error (hereinafter called the defendant) seeks a reversal of the judgment in favor of the defendant in error (hereinafter called the plaintiff) for personal injuries. At the conclusion of all the evidence both parties inoved for a directed verdict. The court in accordance with the rule announced in American Nat. Bank v. Miller, 185 Fed. 338, 107 C. C. A. 456, directed for the plaintiff and instructed the jury to fix the amount of damages. In reviewing the case we must therefore adopt that view of the facts, expressly proved or reasonably inferable, which is most favorable to the plaintiff. Observing such rule, we find the facts to be as follows:

On September 2, 1909, the defendant, as general contractor, engaged with the Central Bank & Trust Company to furnish all the labor and •For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

material for the erection of, and to erect for it, according to the plans and specifications, a bank and office building in Memphis, Tenn. It sublet the marble work to a marble company and the concrete work to a firm, both of which subcontracting parties were admittedly independent contractors. The defendant, however, had entire charge, custody, and control of the building from the time it was begun until it was completed, delivered to, and accepted by the Trust Company, and kept a superintendent on the premises for several hours each day to supervise its construction. He also had control of the placing of the various kinds of material brought into the building preparatory to its installation. The plaintiff at the time he was injured was in the employ of the above-mentioned subcontracting firm as a day laborer on concrete work, and had been thus employed for some four or five weeks, during which time the workmen employed about the building, without the defendant's express authorization but with its knowledge and acquiescence, repaired at the noon hour to the room on the ground floor designed for banking purposes to eat their dinners. The room had been prepared by them for such purpose. They were accustomed to seat themselves when eating at such places as suited their convenience, without suggestion or direction from the defendant. As marble for the building arrived, it was necessary to store a portion of it temporarily in the building. With permission of the defendant's superintendent, it was placed by the marble company in the bank room until the portions of the building for which it was intended were ready to receive it. The defendant exercised no supervision or control over such company's employés, nor did it give any instructions as to how the material should be arranged. The places at which it was located within the room were designated by the defendant's superintendent. Some of it was placed on its edge lengthwise on the floor and leaned against the wall. Another portion, consisting of slabs, was stacked in an inclining position against a column. The slabs were about five or six feet in length, from one and a half to two feet in width, and about two inches in thickness. Their lower ends, to avoid chipping, were placed on a plank, used with defendant's permission, which rested loosely on the concrete floor, and lay against another plank used as a run or walkway. There is no prescribed method of piling marble, but the safer way, when the material is of the dimensions named, is to place it lengthwise on its edge, instead of upright on its end. The slabs were plainly visible to any one in and about the room and were seemingly harmless, but, in fact, were insecurely placed, and liable to fall, if jostled, and each was of such weight as might seriously injure any one whom it might strike. Both the plaintiff and one of the Murch brothers were present in the room at the time and after the slabs were thus stacked, but the plaintiff was wholly inexperienced as to handling and piling the same, and did not know and was not warned of any danger incident thereto. On the opposite side of the street there was another building in process of erection, with which, however, none of the parties herein mentioned had any connection. The workmen from such building at noon intermissions fréquently came to the bank building, with the knowledge of the defendant and without its objection, to visit persons there employed. On the day of the accident, which was some three or four days subsequent to

the stacking of the marble as above mentioned, one of the visiting workmen from the building across the street, while walking on the plank runway near the stacked marble, near which the plaintiff was sitting on a tool chest eating his dinner, struck with his foot or shook the plank on which the marble slabs rested, causing some of them to fall, one of which struck the plaintiff edgewise on or about the knee, inflicting an injury. He thereupon sued the defendant for damages.

The defendant's principal contentions are: (1) The plaintiff's injury was due to the collateral negligence of an independent contractor, for which the defendant as a general contractor is not liable, the present case not coming within any of the exceptions which affix liability to a general contractor; (2) the proximate cause of the plaintiff's injury was the intervening act of a trespasser in the building at the lunch hour on an errand of his own and who was not in the employ of any one connected with the building in the course of construction. The plaintiff's insistence is that it was the defendant's duty to keep the building in a reasonably safe condition for all employés therein, and that such duty was not delegable.

[3, 4] The doctrine of independent contractor is that one who lets work to be done by another according to such other's own methods and without being subject to the control of his employer, except as to the result of his work, is not liable to third persons for injury resulting from the negligence of the contractor or his servants. In the present case, however, the defendant's control of the building into which, through its assent, there was introduced by its subcontractor a newly created danger, rendered the defendant liable to one who, without fault on his part, was injured in consequence, if the defendant's duty was to protect the injured person from such danger and there was personal fault and neglect of duty on its part. Samuelson v. Cleveland Iron Min. Co., 49 Mich. 164, 171, 13 N. W. 499, 43 Am. Rep. 456.

[5] The practice of the workmen about the building to congregate in the bank room to eat their dinners was well defined and continuous, and with the knowledge and acquiescence of the defendant. Conceding, without deciding, that, while not engaged in the course of their employment, they were not entitled to the protection of employés from their respective masters, they nevertheless were not mere strangers to the defendant to whom no 'duty was owing. The defendant, knowing that the room was thus used and failing to object thereto, impliedly licensed them to use it for that purpose. Ellsworth v. Metheny, 104 Fed. 119, 122, 44 C. C. A. 484, 51 L. R. A. 389 (C. C. A. 6). Until the marble was stored in it, the room was apparently free from peril and reasonably fit and safe for the use to which it was appropriated. In view of the defendant's knowledge of and continued implied assent to the daily use of such place for the purpose stated, it was bound to anticipate the presence of the workmen there at the noon hour, and having consented that the situation might be changed by the introduction of marble into the room, it was bound to see that care commensurate with the circumstances was exercised in so stacking it as to avoid injury to them. As it suffered the change to be

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