APPEAL by the plaintiff, Frank Cimmer, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Erie on the 15th day of April, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 15th day of May, 1911, denying the plaintiff's motion for a new trial made upon the minutes.
M. W. Casey, for the appellant.
Clinton B. Gibbs, for the respondent.
The plaintiff worked for the defendant in a lumber yard. He fell from a lumber pile and was hurt. He seeks to hold the defendant liable for his injuries. At the close of all the evidence a verdict was directed for the defendant, and plaintiff appeals.
Three men were engaged in piling lumber, consisting of inch boards, four inches wide and from fourteen to eighteen feet long. One man was on top of the pile, another, the plaintiff, stood on a temporary platform at the face of the pile, and the other was on the ground. The man on the ground handed the boards to the plaintiff, who in turn passed them to the man on top of the pile. Two of these boards were laid side by side, crossways of the pile, every eighteen inches or two feet as the
piling progressed upwards, with the ends projecting about eighteen inches beyond the side of the pile on the south side, serving as means for the men to get on top of the pile.
On the morning of the accident the three men were thus at work. It came half-past nine o'clock. The whistle blew and they stopped their work. It was customary to stop five minutes, at this hour, for lunch. After lunch the plaintiff asked the foreman or assistant superintendent where he should work. He was told to go up on the pile and work on the scaffold, as before. The lumber was piled in courses, each course consisting of a tier of twelve boards (some of the witnesses say six boards), one on top of the other, the tiers laid side by side on three crosspieces or boards, one at the face of the pile, another at the middle and another near the end, laid across the width of the pile. The top tier had been commenced but not finished. Two stepping boards had been laid crossways of the pile on top, but nothing had been laid on them to hold them down, as plaintiff states, save one tier of twelve boards on the south side of the pile, where the stepping boards projected. The plaintiff used the projecting stepping boards to get to the top of the pile, intending to drop down from the pile onto the scaffold, as he had done before. When he reached the second stepping boards from the top, he put his hand on the end of the projecting boards on top of the pile, raised one foot, put it on the top boards also, and was raising up the second foot, as he says, when the top boards tipped up and he fell a distance of about twenty three or twenty-four feet, and was hurt.
Plaintiff says that he was not told to be careful and did not know that there was but one tier of boards on top of these projecting boards; but that was plainly to be seen before he took hold of, or stepped on them. The condition was so obvious that he should have known it, and the danger so apparent that he is chargeable, as it seems to me, with knowing and appreciating the danger of attempting to rest his weight on the end of the boards, and I think in so doing he was himself at fault
I do not see how the defendant can be held liable for negligence, either at common law or under the Employers' Liability Act. If there was any carelessness upon the part of the man
on top of the pile (and I do not think there was), it was the negligence of a fellow-servant; and as regards the matter of warning, even if the foreman knew of the condition of the top of the pile and of the looseness of the stepping boards, it would hardly seem that it was necessary to call special attention to what would be so perfectly apparent to any one in going upon the pile. As the law now stands, I am unable to see that the defendant is liable in any view of the evidence.
I think the case was correctly disposed of by directing a verdict for the defendant, and that the judgment ...