ON THE MERITS.
Questions of fact only are involved herein which are resolved in favor of plaintiff, but the damages ajvarded are reduced.
MOORE, J.The defendant, who is a contractor and builder, was engaged in the construction of a building and, to facilitate the work thereon, had erected there a scaffold some 25 feet in height.' He had the plaintiff in his employ as a common laborer. On the occasion when the accident hereinafter stated occurred the plaintiff was engaged in carrying up lumber to the top of the scaffold. When he had reached the top of the scaffold it suddenly gave way; précipitating him to the ground with great force and covering him with the timber and debris of the fallen structure. He sustained as the result of this accident a partial dislocation of the hip joint and the fracture of a leg near the ankle.
Fie was assisted to the hopsital where he remained for about two days, thence returning to his heme where he had the attention of his own physician. The latter paid him but two visits, advising him to return to the hospital, which he did, re* maining there, however, only one day. It, does not appear that he had any medical treatment or attention after this, al*297though he says that he remained in bed at home for a month and a half and was unable to work for three months after the injuries were sustained. Iiis physician, who testified on his behalf, says that the injuries were painful, although the partial dislocation of the hip joint “was trifling, not serious”; the fracture of the leg, he added, though a simple fracture, was the more serious of the two injuries.
It is conclusively established that the falling of the scaffold was the result of defective construction and' that the plaintiff in no wise contributed to said accident. He had nothing to do with the building of the scaffold, which was erected by defendant’s carpenter under the direction of the foreman and supervision of the superintendent of defendant.
It was their duty to see to it that the scaffold was so constructed that plaintiff and the oher laborers in and about the building who were required to go upon it in the discharge of their duties, cculd do so with safety. This duty the defendants servants who were charged with this work failed to discharge. It is shown that the timbers used were too heavy for the light support which they had from underneath and that being insufficiently braced it yielded under the weight of plaintiff and the timber he was carrying. There was nothing in the appearance of the scaffold to indicate its insecurity or to warn plaintiff of the danger. Trusting, as he had a right to do, that his employer had seen to it that the scaffold was fit and safe for the purpose for which it was intended, he went upon it in the discharge of his duties with the- result stated. Defendant is, therefore liable for all damages sustained by defendant. The plaintiff’s suit is for $2000.00, the judgment being for $750. From this judgment the defendant appeals, the appellee answers it and prays for an amendment in his favor for the full amount claimed. The plaintiff testified that although he was working for plaintiff at the time of the accident for $1.50 per day, owing to the fact that’the reason for Ins usual avocation, that of landing freight shipments for the Southern Pacific Railroad and Steamship Company, had not yet opened, he usually earns $3.00 a day when at his regular work. He says that he was unable to work for three months after the accident.
lie does not say when the season for the character of work *298in which he is usually employed opens; but if we assume that it had already opened when the accident occurred and that he could at once have gotten employment thereat, which is problematical, and at the rate of $3.00 per day, and that he would have been steadily employed at it for, say 26 working days in each month, or a total of 78 days for the three months he was unable to work, he could have thus earned but $234.00^ or $516.00 less than the amount awarded him by the judgment appealed from.
April 22, 1907.He is not shown to have suffered any very great pains or any_ pains for any great length of time and there was nothing wilful or malicious in defendant’s conduct which superinduced the accident and which might thus influence the awarding of large exemplary or punitive damages. Everything considered, we think that $400.00 would fully, if indeed it did not more than fully recompense plaintiff for his injuries.
It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended by reducing the amount thereof from seven hundred and fifty dollars to the sum of four hundred dollars and as thus amended the judgment is affirmed.