Agostini v. W. J. Halloran Co.

• Decision Date: 09 February 1955
• Docket Number: No. 9417,9417
• Citation: 82 R.I. 466,111 A.2d 537
• Parties: Cesear AGOSTINI v. W. J. HALLORAN CO. Ex.
• Court: Rhode Island Supreme Court

Page 537

111 A.2d 537

82 R.I. 466

Cesear AGOSTINI v. W. J. HALLORAN CO.

Ex. No. 9417.

Supreme Court of Rhode Island.

Feb. 9, 1955.

Crowe & Hetherington, Pawtucket, for plaintiff.

Carroll & Dwyer, John G. Carroll, Providence, for defendant.

CONDON, Justice.

This is an action of trespass on the case for negligence which was tried in the superior court to a jury and resulted in a verdict for the plaintiff. The case is here on the defendant's exceptions to the trial justice's denial of its motion for a directed verdict and to his denial of its motion for a new trial.

The plaintiff's cause of action arose out of an accident in which he was injured by the alleged negligent operation of defendant's crane on the Tidewater Oil Company's premises in East Providence. At the time of the accident, October 1, 1948, the crane was rented to the Agostini Construction Company and was operated by Leslie H. Usher, an employee of defendant. At the place of the accident where the construction company was digging some test holes for the oil company along a gasoline pipe line there were three overhead lines of uninsulated high tension wires about 35 or 40 feet above the ground.

After one test hole had been dug to the satisfaction of plaintiff he pointed out the place where a second hole was to be dug about 200 feet further along the pipe line. To get there it was necessary to move the crane under the wires. Usher, the operator of the crane, accordingly adjusted the boom of the crane in a position to clear the wires, as he thought, and then gave Rocco V. Potenza, the operator of the truck on which the crane was mounted, the signal to move. Shortly thereafter as the truck moved under the wires the end of the boom came in contact with one of them and as a result plaintiff, who was walking alongside the crane, was injured.

The accident appears to have occurred in this manner. After plaintiff had told Usher where to dig the second hole, the latter lowered the boom about five or ten feet. He then signaled Potenza to start to drive the truck in that direction. As the truck proceeded, plaintiff walked alongside it on the left near the rear cab where Usher was sitting in charge of the crane. The plaintiff testified that he reminded Usher at the time to look out for the overhead wires and Usher replied: 'I have been driving a crane twenty-seven years. I know what I have got to do.' But when the truck was about five or ten feet away from the wires it appeared to plaintiff's witness Donald J. Perron that the boom was rising. He testified further that when the crane proceeded under the wires a rubber tire on the end of the boom struck the first wire and the crane itself came in contact with the second wire; that there was a flash and a loud crack like the sound of a whip; and that the telephone pole then began to burn.

Usher testified that plaintiff was walking very close to the truck and had his hand on the crane. The plaintiff denied that any part of his body was touching the crane and testified he was at least a foot and a half away from it. The defendant's witness Potenza corroborated plaintiff's testimony as to the latter fact. It further appears from all the testimony that plaintiff was thrown into the air by the force of the explosion and landed on his back with his head lying behind the rear left wheel of the crane. He was rendered unconscious and was removed to the hospital where he was revived and was found to have sustained third degree burns on his shoulder, wrist and leg.

The Agostini Construction Company is a partnership consisting of plaintiff and his brother John Agostini. The plaintiff was in sole charge of the Agostini company's job on the oil company's premises. He hired the crane, which was to be operated by defendant's agents, and when it arrived on the job he directed the operators where and how deep to dig the holes, but nothing more, at least according to his testimony. Usher testified that plaintiff agreed to act as his signalman in the actual operation of the crane, but plaintiff categorically denied this.

Potenza, like Usher, was an employee of defendant and was specially skilled in the operation of the rented equipment. It further appeared that such equipment was very valuable and could be safely and efficiently operated only by skilled and experienced specialists. The plaintiff had no experience or skill in operating a crane nor does it appear from the evidence that he undertook at any time before the accident to tell either Potenza or Usher how he should operate the part of the equipment under his care or what to do or not to do in its operation on this particular job.

In support of its exception to the denial of its motion for a directed verdict, defendant contends the evidence shows that plaintiff, as a matter of law, was in control of Usher and Potenza while they were working under his direction and was therefore the master. It contends further the evidence also shows that plaintiff was clearly guilty of contributory negligence as a matter of law. In our view neither contention is tenable.

The evidence is undisputed that these operators were defendant's employees, that only defendant could discharge or replace them, and that under the rental contract plaintiff was given no right to control them in any way in the actual operation of the crane. Such right of control remained with defendant and, therefore, its employees while operating the crane continued to be its servants. In this state the right of control over a borrowed employee is determinative of the question whether he is the servant of the lending employer or of the borrowing employer. Higham v. T. W. Waterman Co., 32 R.I. 578, 80 A. 178. That principle is now well settled here. Coyne v. Coastwise Dredging Co., 36 R.I. 278, 89 A. 1060; Henry v. Mondillo, 49 R.I. 261, 142 A. 230; McCarthy Freight System, Inc., v. Durand, 63 R.I. 430, 9 A.2d 3. We think this principle is applicable to the facts in the case at bar, although defendant has attempted to distinguish them from those in the Higham case so as to avoid such application.

It is true that Usher and Potenza operated the equipment only when and where directed by the plaintiff, but this did not serve to make them plainti...