Richard J. Baker, Wilmington, for appellant.
Samuel R. Russell, Jr., of Morford Young and Conaway, Wilmington, for appellees Geoffrey S. Garstin and Ann N. Garstin.
Edmund N. Carpenter, 2nd, of Richards, Layton & Finger, Wilmington, for appellee Mary C. Nields.
SOUTHERLAND, Chief Justice, and WOLCOTT, Justice, and SHORT, Vice Chancellor, sitting.
SOUTHERLAND, Chief Justice.
This is an action by a servant against his employers for damages for personal injuries resulting from a fall from a roof on which he was working. Two charges of negligence are alleged: (1) that defendants failed to provide plaintiff with safe tools and equipment and a safe place to work; and (2) that defendants failed to warn plaintiff of slippery condition of the roof where he was sent to work and from which he fell. At the conclusion of all the testimony the trial court held that there was no evidence of any negligence of the defendants[54 Del. 425] causing the accident, and directed a verdict for the defendants. Plaintiff appeals.
The principal question before us is whether plaintiff's proof, viewed in the light most favorable to him, was sufficient to justify a jury in finding negligence on the part of the defendants or any of them.
The facts are these:
The plaintiff Heinz Binsau has been employed since 1957 as a gardener and general handyman by Mr. and Mrs. Geoffrey S. Garstin, two of the defendants. The Garstins own and live on an estate of some twenty-five acres (at the time of the accident somewhat larger) on the Kennett Pike, New Castle County. Mrs. Mary C. Nields, the third defendant, is Mrs. Garstin's mother. She also lives on the estate. These are three houses, one occupied by the Garstins, one by Mrs. Nields, and one by Binsau and his family.
Binsau is a German immigrant. While Mr. Garstin was in Germany, he arranged to employ Binsau at the Garstin estate, and sponsored Binsau's application for admission to the United States.
When Binsau first entered upon his duties, in March, 1957, his English was very limited, and Mr. Garstin, who speaks German, gave him almost all the orders. As time went on, Binsau's English improved, and at the time of the accident, seven months later, he was taking orders from Mrs. Garstin and Mrs. Nields as well. His duties took him in and about all three dwellings.
Some time in October, 1957, Mrs. Nields was apparently annoyed by the noise made by a branch (or branches) of a tree near her house scraping the roof. At all events, she spoke to Mr. Garstin about it, and Mr. Garstin told Binsau to go up on the roof and cut back the branches to a point about three feet from the roof. Mr. Garstin gave Binsau no detailed instructions except to suggest that he wear rubber-soled [54 Del. 426] shoes. Mr. Garstin did not concern himself with the matter of furnishing or selecting proper tools for the job. Binsau was supposed to do the best he could with whatever was available. Mr. Garstin testified, very frankly, that if before the accident he had known what he heard afterward about safety practices he would have insisted on better equipment to do the job. He said on his deposition: 'I should have provided him with adequate safeguards and proper tools.'
Binsau testified that Garstin told him to talk to Mrs. Nields the next morning and said that she would explain how she would like the branches trimmed. Binsau added:
'Then we talked over the tools we had and said we used to have the long-handled clippers, we have one extension ladder and a shorter ladder and the step-ladder, and there was another ladder.'
Just what he meant by the phrase 'used to have' is not clear; but he also testified that the ladders were too short for the roof.
The next morning Binsau talked with Mrs. Nields. He told ...