The following opinion on motion for rehearing was filed July 12, 1907. Rehearing denied:
Calkins, C.This cause was submitted upon an oral argument of a motion for'rehearing. The former opinion by Jackson, C., ante p. 304, contains a statement of facts, which is accepted by counsel for both parties as sufficient.
1. It is urged that the infirmity which made the section unsafe at the moment it fell ivas due solely to its unfinished state, and therefore, that it was an inevitable risk of construction which the plaintiff assumed. This argument was met in the former opinion, and we are satisfied with the reasons there given. It is, however, proper to say that the case of Armour v. Hahn, 111 U. S. 313, cited by defendant in support of his argument, presents facts essentially different from those we are now considering. In that case, the timber which gave way was not a scaffolding or temporary structure intended to facilitate the execution of the work and then to be removed, but a component part of the building, insecure because incomplete, not intended to support the weight of the workman and upon which he was not instructed to go. In this case, the structure which gave way was a form designed to support the cement until it had hardened, and incidentally the weight of workmen during construction, after which it would, in the regular course of the work, be removed. Defects in scaffolds, forms and temporary structures, not forming part of the building, serving only as aids in construction, are not defects of the structure due to its unfinished state.
*3112. The defendants insisted that the plaintiff knew, or should have known, the defects in the structure, and that he therefore assumed the risk in going upon the same. This contention is disposed of in the former opinion upon the ground that, when the plaintiff entered upon the superstructure at the command of Wooley, he was justified in believing that the substructure was completed so that the element of obvious danger did not exist, and this still seems to us to be the correct view. It is now urged that the pleadings are insufficient to sustain the verdict upon this theory of the case. The amended petition described the construction of the forms, set forth the particular facts which it was claimed made the structure insecure,. and alleged that the plaintiff, in obedience to the direction of the defendant’s foreman, went upon the structure, and, while engaged in his work thereon, was by the falling of the structure precipitated to the floor below, thereby suffering the injuries complained of. If we understand the contention of the defendant’s counsel, it is that, since the petition does not state that the weight of the plaintiff and his efforts to crowd the plank in place caused the collapse of the section, it fails to allege the proximate cause of the accident. The argument of the defendant proceeds upon the theory that placing the weight of the plaintiff upon the structure, and his effort to put the plank in place, was the proximate cause of the accident. It is the same as if, in a case where A, owing a duty to B to construct a bridge in a safe and secure manner, negligently leaves it unsafe and insecure, and B, relying upon its apparently safe condition, or, as in this case, upon the express direction of A, goes upon it and it falls, we should say that the proximate cause of the catastrophe was the weight of B, and not the negligence of A. Such is not the law. The proximate cause is the dominant cause, not the one which is incidental to that cause, its mere instrument, though the latter may be nearest in time to the injury. . Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 409; Aetna Fire Ins. Co. v. Boon, 95 *312U. S. 117. The inquiry must be, says Mr. Justice Strong, “whether there was any intermediate cause, disconnected with the primary fault and self-operating, which produced the injury.” It is clear that the weight of the plaintiff, and his efforts to place the plank, was not such intermediate cause, disconnected from the primary fault and self-operating, and was not, therefore, in the meaning of the term as applied in the law of negligence, the proximate cause of the injury, and it was neither necessary nor proper to plead it as such .in the petition.
We are therefore of the opinion that the motion for a rehearing should be overruled, and we so recommend.
Jackson, C., concurs.By the Court: For the reasons stated in the foregoing opinion, the motion for a rehearing is
Overruled.