Alexander v. R. A. Sherman's Sons Co.

• Decision Date: 19 December 1912
• Citation: 85 A. 514,86 Conn. 292
• Parties: ALEXANDER v. R. A. SHERMAN'S SONS CO.
• Court: Connecticut Supreme Court

85 A. 514

86 Conn. 292

ALEXANDER

v. R. A. SHERMAN'S SONS CO.

Supreme Court of Errors of Connecticut.

Dec. 19, 1912.

Appeal from Superior Court, New London County; Milton A. Shumway, Judge.

Action by John E. Alexander, Jr., against the R. A. Sherman's Sons Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

Herbert W. Rathbun, of Westerly, R. I., and C. Hadlai Hull, of New London, for appellant.

Christopher L. Avery, of New London, and Harry B. Agard, of Westerly, for appellee.

THAYER, J. The plaintiff sues to recover for the loss of one of his eyes which as he claims was destroyed by a piece of stone thrown from a blast which was negligently set off by the defendant's servants. His complaint alleges, in substance, that at the time of. his injury the defendant was engaged in constructing upon land of the Stonington Building Company of Stonington an addition to the mill of the American Velvet Company; that while so engaged, and while preparing the foundation for such addition in blasting out rocks and stones therein by the use of dynamite, gunpowder, and other explosives, it was engaged in a dangerous operation, one that was intrinsically dangerous, and which by its nature exposed others to unusual peril; and that by its servants and employes it negligently and carelessly exploded a charge of dynamite or gunpowder or other high explosive without giving any sufficient warning to the plaintiff, who was then about 200 feet away at play in an adjoining lot, and carelessly and negligently failed to protect, blanket, or cover one of the rocks or boulders so blasted so that pieces of rock or stone therefrom were thrown in several directions, and one of them struck the plaintiff and inflicted the injury complained of while he was in the exercise of due care. All of these allegations were denied or, for want of information, left for the plaintiff to prove. No question appears to have been raised upon the trial as to the fact that the plaintiff was injured by a piece of rock thrown from a blast discharged in the operation of excavating for the foundation in question, nor that the throwing of the piece of rock which caused the injury was due to the negligence of the workman who discharged the blast in failing to blanket or cover properly, upon the side toward the lot where the plaintiff then was, the rock which was blasted.

It appears from the finding that evidence was offered by the plaintiff to prove that the defendant had a contract with the Stonington Building Company to erect upon its land the mill addition described in the complaint; that the defendant at once placed one O'Neil in charge of the work of excavating for the foundation; that while this was going on the workmen engaged on the work blasted a large boulder, covering it upon the sides toward the mill and some adjacent houses with ties and bags, but leaving it partially uncovered on the side toward the vacant lot in which the plaintiff and other children were at play; and that the plaintiff was struck by a piece of the stone so blasted. He also offered evidence to prove that the contract between the defendant and O'Neil contemplated the blasting of any rock more than two cubic yards in size encountered in the work of excavation.

The defendant, against the plaintiff's objection, was permitted to offer evidence to prove that it sublet to O'Neil the erection of the foundation of the mill addition according to the plans and specifications therefor contained in its contract with the Stonington Building Company; that the contract with O'Neil provided that he should take entire charge of the work of excavating for and constructing the foundation and select and employ his own workmen and have charge of the whole work and be responsible therefor; that he was a competent and skillful contractor engaged in this kind of work; that the blasting of rock encountered in the work was not calculated or likely, in the ordinary course, to expose either the persons or property of the public or any one in the neighborhood to any unusual peril or liability to injury providing it was done in an ordinarily skillful and competent manner; and that due warning was given of the blast which caused the plaintiff's injury.

The court's action in admitting the evidence tending to show that O'Neil was an independent contractor and in submitting to the jury the determination of the question whether he was such are assigned as errors in the plaintiff's reasons of appeal. The pleadings raise the question whether the plaintiff's injury was caused by the negligence of the defendants' servants. If O'Neil was an independent contractor doing this work, his workmen were not servants of the defendant Evidence showing that he was an independent contractor tended directly to disprove one of the plaintiff's allegations which was in issue. The evidence was therefore admissible under a denial of such allegations. Alpert v. Bright, 74 Conn. 614, 615, 51 Atl. 521; Robbins v. Harvey, 5 Conn. 335, 346; Munson v. Mallory, 36 Conn. 165, 172, 4 Am. Rep. 52. It was proper to admit the evidence and to leave it to the jury to determine whether O'Neil was doing the work as an independent contractor. "An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the result of his work." 2 Cooley on Torts, 1098; Powell v. Construction Co., 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925; Humpton v. Unterkircher, ...