McNamara v. Macdonough

Citations

• 102 Cal. 575
• 36 P. 941
• 1894 Cal. LEXIS 688

Syllabus

<p>Negligence—Duty of Employer—Safe Appliances for Servant—Insufficient Scaffold. —It is the duty of an employer to exercise ordinary care in furnishing for his employees a reasonably safe .place in ■which to work, and he is liable for injury caused by negligence in constructing a scaffold on which the plaintiff was employed to work as a hodcarrier, and by the breaking and falling of which he was injured, where there is no evidence of contributory negligence.</p> <p>Id.—Absence of Contributory Negligence—Unapparent Defects in Scaffold—Means of Knowledge—Legal Conclusion.—Where the evidence shows that the defects of the scaffold were not apparent or visible to the employee, that his means of knowledge of its insufficiency were not equal to those of the employer by whose agency the scaffold was constructed, and' that he did not know that it was insufficient or unsafe, but trusted and relied upon the employer having performed his duty in the construction thereof, it may be said, as a legal conclusion, that there is no evidence of contributory negligence.</p> <p>Id.—Instructions as to Contributory Negligence.—In the absence of any evidence tending to prove contributory negligence, it is proper for the court, in its instructions, to assume that there was none; and if there is any evidence tending to prove that the employer had, or with proper care might have had, notice of the danger, an instruction that if the employee’s knowledge, or means of knowledge, of the danger from working upon a defectively constructed scaffold was equal to that of his employers, he takes the risk incident to his employment, and cannot recover for injury sustained resulting from a defective and dangerous condition of the scaffold, is sufficient.</p> <p>Id—Fellow-servants—Employment of Carpenter to Construct Scaffold—Negligence of Vice-principal.—The law of fellow-servants has no proper application as between a carpenter employed to construct a scaffold, whose relation to the defendant who const