American Marietta Co. v. Griffin

• Decision Date: 14 October 1964
• Docket Number: No. 3514.,3514.
• Citation: 203 A.2d 710
• Parties: AMERICAN MARIETTA CO., Inc., a corporation, Appellant, v. Joseph C. GRIFFIN and McCloskey & Co., Appellees.
• Court: D.C. Court of Appeals

Page 710

203 A.2d 710

AMERICAN MARIETTA CO., Inc., a corporation, Appellant, v.Joseph C. GRIFFIN and McCloskey & Co., Appellees.

No. 3514.

District of Columbia Court of Appeals.

Argued July 20, 1964.

Decided October 14, 1964.

Rehearing Denied November 3, 1964.

John J. Mitchell, Washington, D. C., for appellant.

Louis Ginberg, Washington, D. C., with whom Samuel Levine, Washington, D. C., was on the brief, for appelleeJoseph C. Griffin.

John F. Mahoney, Jr., Washington, D. C., with whom Charles E. Pledger, Jr., Washington D. C., was on the brief, for appelleeMcCloskey & Co.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

MYERS, Associate Judge.

While employed as a laborer by McCloskey & Co., general contractor on a construction site, Griffin sustained injuries in 1961 due to the alleged negligent operation of a crane leased from McCloskey & Co. and used in the installation of concrete treads and risers by American Marietta Co., Inc., a subcontractor on the job.He filed suit to recover damages.American Marietta denied all negligence and filed a third-party complaint against McCloskey & Co. seeking indemnification for all sums rendered against it in favor of Griffin.After trial by jury, a verdict was returned for $6,500 against American Marietta, and the trial court entered judgment for McCloskey & Co. in the third-party action.This appeal from both judgments followed.

Appellant urges that the trial court erred in refusing to grant its motions for a directed verdict at the conclusion of Griffin's case and again at the close of all the evidence.It contends that the evidence did not reveal any failure to act, or the commission of any negligent act on its part, or any causal relationship between Griffin's injuries and the accident.

Plaintiff's evidence, corroborated through the testimony of McCloskey's construction superintendent, established that Griffin was working in his proper place when the boom of the crane swung out of control and toward the area where he was standing.To avoid being struck, he jumped aside, tripped, and fell ten to twelve feet to the deck below, landing flat on his back.

It is a well-settled principle of law that unless the evidence is so clear and undisputed that reasonable men can draw only one conclusion, negligence and injury are factual questions to be resolved by the jury.In passing upon a defendant's motion for a directed verdict, the trial judge must construe the evidence most favorably to the plaintiff, who is entitled to full effect of every legitimate inference, although a mere scintilla of evidence is insufficient to justify denial of the motion.¹

Applying this principle to the facts of this case, we find that Griffin established a prima facie case² and that the trial judge properly refused to take the case from the jury at the conclusion of plaintiff's evidence.

The record reveals conflict as to who retained control over the crane and its operator.McCloskey's witness stated that after the crane and operator had been leased to American Marietta, the latter had employed a signalman to direct the operator in the movements and course of the crane.About two weeks prior to the accident, he had received complaints that the operator was not cooperating with the American Marietta signalmen.Upon investigation, the witness found that the seeming lack of cooperation was due to the fact that two or three signalmen were attempting to direct the operation of the crane and the operator became confused as a result of conflicting signals.The problem appeared to be resolved by the subsequent employment of only one signalman after which, according to the witness, there were no more complaints.Appellant's general superintendent testified, however, that two days before the accident he had asked that the crane operator be replaced because he was disobeying signals, but this request was denied by McCloskey.

Since the issue of control was clearly one of fact for the jury, the denial of appellant's motions for a directed verdict was correct, and the trial court's refusal to rule for appellant as a matter of law was proper.

Appellant also complains that the trial judge erred by including an instruction which would permit the jury, in assessing damages, to consider pain and suffering, medical expenses and loss of wages which might occur in the future.Appellant contends there was no medical testimony that Griffin had a permanent injury and that future losses resulting from permanent residuals...