CONNER
11.
PIONEER FIRE-PROOF CONST.
00.
629
CONNER "'. PIONEER FmE-PROOF CoNST. Co. (Circuit Court, D. Minne8ota. December 16, 1886.)
1.
NEGLIGENCE-DEFECTIVE SCAFFOLDING-CoNFLICT OF TESTmONY-VERDICT -ltIOTION FOR NEW TRUL.
In an action to recover damages for a personal injury, caused by the negligence of the defendant in not providing safe scaffolding for plaintiff to stand upon while tiling a ceiling, where the testimonx of a number of witnesses for defendant is that the tilers who used them bmlt the scaffoldings, and a less number, for plaintiff, testified positively that defendant .employed two persons for the special purpose of building the scaffoldings, held, that there was sufficient evidence to justify the jury in finding defendant responsible for the defective scaffolding. SPECIAL DAMAGES . EVIDENCE WAGES BEFORE AND .
2.
SAME - PLEADINIi AFTER INJURY.
a.
In such a case, although no special damages are alleged, the plaintiff being an ordinary mechanic, testimony showing the difference between the wages earned bv him before the injury, and those he was able to earn afterwards, is competent to show the extent of his injuries. Such testimony is not proof of special, damages.
SAME-INSTRUCTIONS-DECREE OF CARE.
ThecQurt having instructed the jury at the commencement of the charge that ,an employer is bound to exercise reasonable care and diligence in providing a ,safe place for his emp-Ioyes to work, it is not error to refer to the matter without using the word 'reasonable," in giving inlltructions on other questions·
. , At Law. Motion for new trial. A. J.Roger8, for plaintiff. O'Brien, Eller&: O'Brien, for .defendant. BREWER, J. In the case of Conner against the Pioneer Fire-proof Construction Company, tried before me, wherein the jury returned a verdict for the plaintiff, a petition for a new trial was allowed. I was in hopes that this application would be submitted to Justice MILLER, as the case is one upon which I have great doubt. The facts, in a general way, are these: The plaintiff was employed as a tiler in the. West Hotel, in Minneapolis, the defendant having the contract for the tiling. In pursuance of that work, it was necessary for the tilers to go upon a platform in order to reach the ceilings, which were quite high. In some of the rooms the ordinary horses used by the were high enough so that they could reach the ceiling; in others, these horses were not sQ.fficiently high, so they were in the habit of extending the legs by nailing boards upon them, which raised the height of the horses, and consequently of the platforms. Upon a platform placed upon horses thus raiaed, the plaintiff, with other tilers, went to work. Scarcely had begotten thereon before something gave way, the platform fell to the floor, and he was injured. It was claimed on the part ofthe plaintiff that one of the boards thus nailed was defective, and insufficient to support the weight that was put upon it; and that there was negligence on the part of the defendant inscnding the plaintiff onto a platform .thus defectively supported.
630
FEDERAL REPORTER.
There was testimony showing that a man by the name of Simpson and his son were employed specially to prepare the platforms; and, on the other side, there was testimony showing that the tilers themselves had charge of the preparation of these platforms; that the horses, boards, and platforms were all there, and that the duty was placed upon the tilers generally to see to the preparation of their own platforms. The jury found for the plaintiff. I charged the jury, substantially, that if the defendant had furnished the boards, and platforms suitable and sufficient, and left with the tilers generally the duty of preparing their own platforms, and this platform,so prepared, was defective, that was the negligence of the employes, and the employer would not be liable; while, on the other hand, if the employer had employed special individuals-Mr. Simpson and his assistant-to attend to the work of preparing the platforms, and was reasonably safe, their neglithey failed to prepare a platform gence was the negligence of the defendant, and the company would be responsible. That is really the pivotal question in the case, and it is one that, upon all the testimony, has greatly embarrassed me. I sider that avery important question; in fact, if the matter were left to my judgment alone, I think I should be compelled to say that the preponderance of the testimony showed that the company left the preparation of the platforms to the tilers .as a body, and had no special employes, or any particular individuals, to do that work. But there was the positive testimony of one or two witnesses that Mr. Simpson and his son were specially employed to do that work, and to attend to it solely; and what has embarrased me is whether or not I was justified in holding that there was sufficient evidence to uphold the action of the jury in finding that Mr. Simpson and his assistant were the parties upon whom this special WOrk was cast. Wherever there is a manifestly doubtful question of fact,-one that I feel a jury may, without any impropriety, find one way or the other, according as they believe that witness or this,-I never stop to review the action ofajury in its finding. In this case it has seemed to me uncertain whether it could be held that there was such a question. That was the reason I was in hopes that my Brother MILLER would take this record, look at it, and pass his opinion 'upon it. As he did not, I must dispose of the case, and I have· concluded that the testimony is sufficient to justify the action of the jury, and that the direct testimony of the fewer number of witnesses as to this special employment of Mr. Simpson and his assistant did presentsueha question of fact that I ought not to interfere with the decision of the jury in this respect. That, as'! said, is the pivotal question in the ease. Several other matters are suggested, but itseeiils to me they are of minor significance. It is insisted that the general scope and drift of the charge was such as to convey td the minds of the jurythe.idea that there was an absolute duty on the part of the employer to make the place of work safe, which, ofcourse, is not the Jaw. It is his duty to use reasonable care and diligence to provide a place of safety. At the commencement of my charge
v.
PIONEER FIRE-PROOF CONST. CO.
631
I so stated the law. It is true that subsequently I did not every time use the word "reasonable," in speaking of thismatterj because, having once laid down the rule, and realizing that the real question was as to whether that was in this case a duty borne by the employer, or cast upon the entire body of employes, I was trying to make plain to the jury the distinction between these twophases of the case. I do not conceive it to he the duty of the court every time it- refers to a matter to incorporate all the limitations and ,all the restrictions which apply thereto, when they have been once stated. Such a repetition would be very apt to confuse, rather than enlighten, the jury. 'Further, it is insisted that no testimony should have been allowed to goW the jury as to the wages this plaintiff was earning prior to the accident and those he was able to earn thereafter. The petition does not allege any .special damages. This plaintiff was an ·ordinary mechanic, presented was to show the nature of his injuries, rather and the than to lay the foundation for any special compensation. I doubt not that it the plaintiff had been one gifted with some peculiar skill in the hands, as, for instance, a painter, who by his skill in the use of the brush is able to ear.nenormous sums of money, and thereafter, when that ability to earn is taken away by physical injury, he seeks relief to of such loss, the!e should be a in the pleading,SQas to call the attentionof the defendant particularly to the claim. But when the case is that <>fan ordinary mechanic, (a mason,) and the presenred is simply JIB to the extent of the injuries suffered, I tbinkthedefendant is not prejudiced if, even without an a1l\;lgation of damages, the plaintiff is permitted to introduce testimony as to what hewlis able to earn before and after the accident. It is not one of I think, in the strictest ..and more technical sense, can be·said to be special damages. At least, the error, if.error it be, in the testimony, did not work any substantial injury to: the rights of the.defendant. There are one or two other matters of a similar nature· that are suggested, but, as I stated before, the pivotal questionis as towhetber the defendant placeu the work of preparing these platforms with the tilers, as a body, thus making them responsible for their construction; or whether: it employed some other individuals to do 'it for them. That questibn thejury.have determined, and I am constrained to say I think there was sufficient testimony to justify that conclusion. Motion for new trial denied.
632
FEDERAI, REPORTER.
MILMINE
v. BASS and others. December Term,1886.) . ABANDONMENT . . SECOND LEVY-
(Girottit Gourt.
n. Indiana.
t.·
. RULlI:. iN
..rt;'iii' '{naiana, the owner of an 'execution releases and abandons a levy mmie;uponrealestate sufficient to satisfy a part only of the writ, and causes ".levy,and /lale of other relil estate, the sale will not be deemed void. but, be· ing irregUlar, it may be set aside, if necessary, in order to do equity between parties concerned. . . If an execution be issued without proper notation of credits for payments NOTICE.
LEVY ON REAL hmIANA.·
2: SAME-PAYMENTS NOT CREDITED"";LEVY FOR FULL AMOUNT-GOOD-FAITlI
to a purchaser without notice of the irregularity, the sale will not, on that account, be i n v a l i d . . . 8. SAME-EQUITIES OF JUNIOR-LIEN-HoLDER-:-OTllER LANDS AVAILABLE.
upon the judgment, and land be levIed upon and sold by virtue of such writ,
An execution creditor whose judgment is a lien upon different bodies of land is not bound. when making a levy, to inquire into the equities of juniOr lien-holdorSj and if, while other lands are first equitably liable to seizure, a levy be made upon a tract which is subject to a junior lien, and the holder of such lien neglects to assert his rights in court before the sale, he cannot afterwards have the same a n n u l l e d . .
4-SAME-REMEDY OF JUNIOR LIEN·HoUDER AFTER SALE.'
If the owner of lands subject to a, judgment lien has mortgaged a Jlart . thereof to A., and afterwards bas mortgaged or conveyed the remainder, worth more than the amount oithe judgment, to B., lj,nd thereafter .the land mortgaged to is levied on, and sold to satisfy the judgment, B. being the the purchaser.whileA. may not have the sale annulled, he may, to the extent of his'interest, require B. to account to him for the value of the mort. ' . gaged property so sold OD executioD.
5.
Where an agreement for an extension of time upon a judgment was made betweenthepdncipal debtor and the creditor. acting on the faith of a written consent signed in the nome of a firm which was liable as surety in the judg. ment, and it turned out that, excepting one, the members of the firm had not authorized. and were not bound by, this consent, the agreement for extension was not binding upon the creditor. (SgllabU8 b1l t1l.6 Court.)
PRINCIPAL AND SURETY-EXTENSION OF TrME- UNAUTHORIZED CONSENTPARTNERSHIP.
In Equity.' On May12, 1873, Stearns & Co. recovered 8 judgmentin the state court against Gardner, Blish & Co., principals, and Bowser, Prentis, and Falls, as sureties, for $2,212. 85. At that time Bowser owned real estate in Allen county, Indiana, worth from $20,000 to $30,OOO,on.which there were liens amounting to about $6,000. On December 31, 1873, the principal debtors paid $354.93 on the judgment, and on January 1,1874, the same parties paid $145.07. On May 1, 1874, the same parties paid interest on the judgment. to that On June 20, 1876, the principal debtors paid the interest due and to become due on the judgment up to January 1, 1877. The interest so paid in advance, being at the rate of 10 per cent. per annum on the judgment, was paid upon the agreement that the day of payment should be to January 1, 1877. Be{ore granting the extension, Stearns & Co. wrote to Bowser & Co., (8 firm