Johnnie W. Killian v. Wheeloc Engineering

Johnnie W. Killian, a common laborer employed by a general contractor, was injured when he stepped from a ladder into a pile of metal duct work on the basement floor of a house under construction. According to Killian the pieces of tin were left at the foot of the ladder by a tinner employed by a subcontractor, Wheeloc Engineering Company, who had the contract to install the furnace and duct work. In his suit against the subcontractor for negligent injury a jury returned a general verdict in his favor and fixed his damages at $29,000. The trial court sustained the defendant subcontractor's motion for a new trial upon specified grounds 15, 19, 20 and 21 and granted a new trial upon all issues. Killian has appealed and contends that the order granting a new trial is not sustainable upon any of the four grounds, or, if it is that a new trial should be limited to the issue of damages only. On the other hand, the respondent contends that the plaintiff did not make a submissible case, that he was guilty of contributory negligence as a matter of law and in any event that the trial court appropriately granted a new trial for the specified reasons and for many other reasons as well. The subcontractor's contention that plaintiff failed to make a submissible case is threefold: first, that he had to rely on circumstantial evidence and it is urged that the necessary facts to support the verdict may not be inferred without resort to conjecture and mere speculation; second, that he is conclusively bound by the testimony of defendant's tinner, called as a plaintiff's witness, that the tinner did not leave or stack the sheet metal near the bottom of the ladder, and third, that he failed to look ""as he stepped off the ladder"" and is therefore guilty of contributory negligence as a matter of law.