CHARLESTON.

#### Ray C. Roberts *v.*Kelly Axe & Tool Company

(No. 6269)

Submitted April 17, 1929.

Decided April 23, 1929.

*237*Brown, Jackson & Knight, Thomas B. Jackson*and *Lon H. Kelly,*for plaintiff in error.

*Lilly & Lilly*and if. *W. Houston,*for defendant in error.

Maxwell, Judge:

The defendant prosecutes this writ of error to a judgment against it for $12,000.00 entered upon a verdict of a jury in the Circuit Court of Kanawha County for personal injuries sustained by the plaintiff at the defendant’s manufacturing plant in the city of Charleston on the 26th day of September, 1925. This is the second time this case has been before this Court for review. The first decision is reported in 104 W. Va. 425, 140 S. E. 283.

As appears from the former decision, plaintiff was an employee of an independent contractor engaged in the erection of certain smokestacks through the roof of the shed which extended along the north side of one of the larger buildings of the defendant’s plant.

The upper edge of the shed roof was attached to the side of the main building about nine feet below its eave. For a height of from four to five feet above the shed roof the side *238of the large building was constructed of metal sheeting without any openings in it. Above the sheeting, and extending up under the eaves for nearly, if not entirely, the length of the side of the building, there were contiguous glass windows in sashes 53 inches high. On the inside of the wall, slightly below the level of the window sills, there was a track or craneway on which was operated the northern end of a traveling crane. The other end of the crane moved on a runway on the opposite side of the building. The northern end of the crane extended to within about a foot of the siding and to within a few inches of the upright steel beams or columns which were just inside of the steel sheeting. Plaintiff was directed by his foreman to climb into one of the open windows and fasten one end of a guy rope, the other end of which was about to be fastened by another employee of the •first section of the third of the series of six smokestacks which were being erected as above stated. In executing the order of his foreman, plaintiff climbed into the window, with the assistance of the foreman, and stood with one foot on the window sill and the other on the runway with his back to the western part of the building where he had observed the crane, while he undertook to fasten the end of the rope to a metal strut which ran along the side of the building above the window. Plaintiff did not assist in the erection of the first 'two stacks erected but he testifies that after he began work in connection with the erection of the third stack one of his fellow workmen told him that the stacks “had been guyed to a strut along near the upper edge of the window frame.” It was reasonable for plaintiff to assume that this procedure was known to the defendant’s employees. Before he had quite completed his task, the crane was moved along the runway from the plaintiff’s rear and crushed him against one of the upright steel columns, injuring him very severely. Plaintiff says that when he first climbed in the window he looked to see the position of the crane and observed that it was about 15 feet away from him, and that the man who was in charge of the crane was about 25 feet from the rope controls on the crane, apparently watching some other men *239engaged at work at a forge; tbat tbe crane was not at that time being moved or nsed.

The principle of law on which the judgment was reversed and the verdict set aside when the case was formerly before us, as stated in the syllabus, was that the duty of reasonable care which a property owner owes to an invitee “does not extend to places beyond the invitation, and to which the invitee would not reasonably be expected to go.” The facts then developed necessitated the application of that principle. The record did not show that the contractor had been given permission to use the track or the interior of the building near the track, nor that the defendant had been given notice that the contractor’s workmen would use the track, or the part of the building where it was located; nor that the workmen had in fact used the track or the section of the building where it was located in such a notorious manner as to give the defendant notice of such use; nor was it manifest that such use was necessarily implied from the character of the work being performed. In that situation, it not appearing that there was any reason why the defendant’s employees should have anticipated the presence of the plaintiff on the runway of the crane, it did not seem that there was any negligence on the part of the defendant in causing the movement of the crane which occasioned the plaintiff’s injury.

On the re-trial of the case, however, there was developed substantial evidence which did not appear in the former record. Just as in the former record, it does not now appear that the contractor had been given formal permission to use the track or the interior of the building near the track, but it is brought into the present record that during the. four or five days while the first two stacks were being erected and the riggings shifted, immediately prior to the day of the accident when the third stack was being erected, a number of the above mentioned windows along the top of the shed had been removed by the contractor’s workmen and that guy ropes had been extended through the windows and tied to the frame of the building on the inside, and that one or more of the contractor’s workmen had stood with one foot on the crane-way while engaged in tying these ropes. This evidence, it is *240true, is not without contradiction, but it appears affirmatively in the testimony of unimpeached witnesses of the plaintiff and has back of it now the sanction of a jury verdict. This new evidence appears in part in the testimony of one Massey, who was foreman for the contractor in the erection of the stacks numbers 1 and 2, but who was not a witness on the former trial. It is undisputed that if the operator of the crane had looked in the direction of the plaintiff before the crane was started on its movement toward him the presence of the plaintiff in his position of danger could have- been observed. The view was unobstructed. Was there negligence on the part of the operator in not taking this precaution? On the record as it stood at the time of the former review, we held that negligence had not been proved; that there was no disclosure of facts which brought it to the attention of the defendant’s employees that the plaintiff or his fellow workmen might be expected to be inside of the building on or near the runway of the crane; but on the present review we are constrained to hold that the facts developed at the last trial are sufficient to create a question for jury determination as to whether the defendant was guilty of negligence in the operation of the crane under the circumstances proven. The operator of the crane admits that he knew that the erection crew of the contractor was engaged in placing the smokestacks in position. He “saw them working around there;” “saw them out there.” Necessarily a large nortion of their work was being performed on the roof of the shed. This was just outside the windows from the runway of the crane on the north side of the building. There not appearing any reason why full credence should not be given to the testimony adduced by the plaintiff as to the removal of the windows, the tying of guy ropes inside of the windows and the presence of workmen in the proximity of the runway in fastening the ropes, all prior to the day of the plaintiff’s injury, that evidence, in the light of the jury verdict, for the purposes of the present inquiry, must be taken as true. Defendant’s officers and employees could not close their eyes to these facts. The removal of the windows (a fact undenied by the defense) should alone have put defendant’s employees *241on guard. But it is said that regular work of tbe plant inside of tbe building from wbieb tbe windows were removed was not going along as was usual; that repairs were being effected therein at tbe time of tbe plaintiff’s injury. Sucb being tbe fact, there was all tbe more reason why tbe operator of tbe crane, admittedly knowing that tbe stacks were being erected and that tbe contractor’s workmen “were around there”, should have made observation in tbe direction of tbe scene of their activities before be resumed tbe operation of tbe crane on tbe morning of tbe accident. While it is true that it does not appear from tbe record that it was indispensably necessary for tbe guy ropes to be fastened inside of tbe windows, it does appear that sucb procedure was convenient and practical. Bopes bad to be fastened somewhere to bold tbe stacks. Tbe removal of tbe windows, tbe tying of tbe ropes inside of tbe windows and tbe presence of tbe workmen in placing tbe ropes there, and tbe presence of tbe ropes in that position for hours after they bad been so placed, all in open view, were sucb conspicuous facts as to give notice to tbe defendant’s workmen that while tbe work of tbe erection of tbe smokestacks was in progress, men were apt to be in tbe immediate proximity of tbe crane track on tbe north side of tbe building and that consequently tbe crane ought not to be moved without reasonable precaution being exercised for tbe safety of tbe erecting contractor’s workmen. It is hardly necessary to cite authorities for tbe propositions that an independent contractor at work on premises where bis contract requires him to be is an invitee, and that while thus engaged be is entitled to tbe protection of ordinary care on tbe part of tbe owner or occupier of tbe premises, and that such invitee must be furnished a reasonably safe place in which to work. *Sesler*v. *Coal Company,*51 W. Va. 318; *Williams, Adm’x.*v. *Belmont Coal & Coke Company,*55 W. Va. 84; *Wilson*v. *Valley Improvement Company,*69 W. Va. 778; *Smith, Adm’r.*v. *Sunday Creek Company,*74 W. Va. 606; *New York Lubricating Oil Co.*v. *Pusey,*211 Fed. 622; Thompson on Negligence, sec. 979.

Defendant complains of tbe action of the trial court on *242certain instructions. Plaintiff’s instruction No. 1, the giving of which, is relied on by the defendant as error, follows:

> “The court instructs the jury that if you believe from the evidence that the defendant Kelly Axe & Tool Company entered into a contract with the South Side Foundry & Machine "Works, whereby the latter company was to make and erect for the defendant at its factory in Kanawha County, certain stacks and chimneys, and that the South Side Foundry & Machine Works sublet to the Metal Products Company that portion of said contract providing for the erection of said stacks and chimneys, and that the plaintiff, Ray C. Roberts, was, at the time of receiving his alleged injuries in the employ of the Metal Products Company and was actually employed by the latter company in the erection of said stacks and chimneys; and was at the time of said injuries at a place where he would reasonably be expected to be in the course of his work in erecting said stacks; and if you further believe from the evidence that an employee of the defendant Kelly Axe & Tool Company, acting within the scope of his employment, negligently and carelessly and without the exercise of reasonable care for plaintiff’s safety caused an electric crane, owned and operated by the defendant company as a part of its said factory equipment, to be run onto and against the plaintiff while he was so engaged and employed in the erection of said stacks and chimneys, and if the jury further believe from the evidence that' the said Ray Roberts was not guilty of any negligence which contributed proximately to his own injury, then you should find for the plaintiff.”

In criticism of this instruction it is said “that by permitting the jury to decide, upon all the evidence in general, the question whether or not there was reasonable expectation that the plaintiff would be on the eraneway, the trial court thus permitted their finding to be based on certain facts in the evidence other than supposed notorious use of the crane-way, when at the same time they might have concluded that plaintiff was not in a place where he would reasonably be expected to be by reason of notorious use of the craneway a *243knowledge thereof on Ms part wbicb was, under the law of the case, the only ground upon wMeh defendant could, be charged with a reasonable expectation of use of the craneway by plaintiff.” In the former opinion in this case, it was stated that one of the inquiries for determination was as to whether the erection contractor’s workmen had used the track or the interior of the main building near the track, in such a notorious manner as to give the defendant notice of said use. The word “notorious” was, of course, used in the sense'of conspicuous, open, obvious. One of the requirements of the said instruction is, that in order to sustain a verdict for the plaintiff, the jury should believe that at the time of the injury the plaintiff was at a place where he would reasonably be expected to be in the course of his work in erecting said stacks. This was a question of fact to be determined by the jury; and one of the matters to be considered by the jury in that connection was as to whether there had been such notorious,' conspicuous or obvious use of the runway or the inside of the building in the proximity of the runway as to give the defendant notice of such use, by the plaintiff at the time of his injury was to be anticipated, but it was not necessary to carry this proposition into the instruction. Instructions ordinarily do not purport to cover details of evidence. The trial court’s action in modifying defendant’s instructions Nos. 5 and 8 is also relied on as error. Instruction No. 5, as tendered, reads:

> “The court instructs the jury that, in order for plaintiff to recover, he must prove by a preponderance of the evidence first, that use of the crane-way had been (notoriously) made by the workmen of the Metal Products 'Company in such way and for such length of time and on such different occasions that defendant knew or should have known of such use; second, that as a consequence plaintiff believed that defendant knew of such use; and third, that plaintiff acted upon such belief in going upon the craneway; and that then defendant, after such (notorious) use, was so negligent in the operation of the crane as to cause plaintiff’s injuries without negligence upon the part of the plaintiff; and if the jury believe from the evidence *244that no such (notorious) use of tbe craneway bad been made by tbe workmen of tbe Metal Products Company, or that, even tbougb sucb (notorious) use of tbe craneway bad been made, plaintiff did not act, in going upon tbe craneway, upon tbe belief that tbe defendant knew of sucb use, then tbe jury shall find for tbe defendant.”

Before tbis instruction was read to tbe jury tbe court modified it by striking out tbe words “notoriously” and “notorious” as appear above in parentheses. Because tbis Court used tbe word “notorious” in tbe former opinion it does not follow that tbe idea then sought to be conveyed by tbe court cannot be conveyed in any manner other than by tbe use of tbe same word. As already stated, tbe thought intended to be emphasized in our former opinion in tbe use of that work, was conspicuousness or obviousness. That thought clearly appears in tbe above instruction even after tbe trial court bad modifed it. Note that tbe instruction as modified requires that before there can be a recovery for tbe plaintiff there must bo proof by a preponderance of tbe evidence that tbe use of tbe craneway bad been made by tbe workmen of tbe Metal Products Company in such a way and for sucb length of time and on sucb different occasions that defendant knew or should have known of sucb use. Tbe thought there expressed bristles with tbe idea of eonspicuousness. Tbe trial court did not err in modifying tbe instruction. Defendant’s instruction No. 8 also was modified by tbe elimination therefrom of tbe word “notorious” in one instance standing-alone and in two instances in connection with short phrases of which it was tbe conspicuous element. Tbe import and effectiveness of tbe instruction were not impaired by these changes and tbe trial court committed no error in making them. Defendant’s instruction No. 6 was refused. It would have told tbe jury that a person must exercise a reasonable degree of care for bis own safety in tbe presence of a known and obvious danger, and that if they believe from tbe evidence that tbe plaintiff failed to exercise such degree of care for bis safety, even tbougb tbe defendant may have been negligent in tbe operation of tbe crane, they should find for tbe *245defendant. This instruction correctly states tbe law, but tbe substance of it was covered by tbe latter part of defendant’s instruction No. 8 as modified and given to tbe jury. It correctly submitted to tbe jury tbe question of contributory negligence of tbe plaintiff.

Perceiving no prejudicial error in tbis record, we affirm tbe' judgment.

*Affirmed.*