Brennan v. Berlin Iron Bridge Co.

• Decision Date: 09 January 1902
• Court: Connecticut Supreme Court
• Parties: BRENNAN v. BERLIN IRON BRIDGE CO.

50 A. 1030

74 Conn. 382

BRENNAN

v. BERLIN IRON BRIDGE CO.

Supreme Court of Errors of Connecticut.

Jan. 9, 1902.

Appeal from superior court, New Haven county, John M. Thayer, Judge.

Action by William Brennan against the Berlin Iron Bridge Company for personal injuries. Defendant suffered a default, and a hearing in damages was had, and facts found, and judgment for plaintiff, and defendant appeals. No error.

Certain questions connected with this case have been discussed in cases between the same parties reported in 71 Conn. 479, 42 Atl. 625, 72 Conn. 386, 44 Atl. 727, and 73 Conn. 412, 47 Atl. 668. From the finding of facts at the last hearing upon the substituted complaint it appeared that prior to November 13, 1894, the defendant bridge company made a contract with the Naugatuck Malleable Iron Company by the terms of which the defendant was to construct for the malleable iron company a coal trestle to extend from the railroad track to the annealing room of the malleable company, consisting of iron columns upon stone bases, with wooden braces and crosspieces, and two parallel lines of wooden stringers upon the tops of the columns; said stringers being of different lengths, the shorter from 13 to 17 and the longer from 25 to 29 feet in length, and the longer ones weighing from 1,200 to 1,500 pounds. It was agreed that the Malleable iron company should furnish such laborers as the defendant might temporarily require in moving timbers, etc., and that the malleable iron company should be paid by the defendant for the time of such laborers. The defendant began the construction of the trestle on November 13, 1894, and sent "as its agent and superintendent an experienced bridge builder," one Bowen, with a gang of three men. "Bowen had full charge of said job and the men," and authority to employ other help if required, and himself assisted the men with the work. On the 17th of November the stringers were unloaded from the cars and piled in two piles. Those of the south pile, near which plaintiff was hurt, were piled upon three car stakes laid upon the ground, three or four tiers of stringers being laidupon them; the west tier consisting of three stringers; the top one being a long one, so placed that "the west faces were plumb," piled indiscriminately as regards length; said west tier, with the stakes under it, being from 41 to 48 inches high. The ground where the stringers were piled was substantially level. "It did not appear whether there was any rolling or unevenness of the surface where the car stakes were placed which might cause them to rock or tilt if the pressure upon the different ends should be increased, or if by the removal of some of the stringers from one end the pressure upon that end should be lessened. It was known to the defendant's superintendent, Bowen, that this must inevitably occur as the stringers were framed and removed to the trestle. The car stakes were apparently level when the pile was completed." Bowen was present, and superintended and directed the piling of the stringers, and assisted the men in piling them. "He ought to have known, and he did know, how the stringers were piled," and knew that they would be removed one at a time for framing. On the morning of the 20th of November, Bowen having asked Mr. Warner, the superintendent of the malleable company, for two men, Warner called the plaintiff and one McDonald, employes of the malleable company in their annealing room, and, going with the plaintiff where the bridge gang were at work, told him to do what they should tell him to. On the 13th the plaintiff had been sent out a short time to help the bridge men, but did not work with them after that until the 20th. He knew the gang were bridge men, but did not know whether they were employed by the malleable company or by a contractor. He was not told and did not understand he was working for the bridge company as its employe, or that his relation to the malleable company had been changed. He would have gone back to the factory to work at any time upon the order of Mr Warner. He was paid by the malleable company for the work he did for the bridge company, the latter paying the malleable company at a slight advance, but without the knowledge of the plaintiff. Plaintiff had worked for the malleable company several years as laborer in the annealing room for $1.35 a day. On the afternoon of the 26th of November, Bowen directed the plaintiff and McDonald to help move to the trestle a stringer which had been framed, and was lying upon the ground on the west side of said south pile. At this time four or five of the stringers had been framed and removed from said south pile to the trestle, but the three forming the west tier of said pile remained as originally piled. In the work of removing the stringer lying upon the ground west of said south pile, Bowen placed the plaintiff between the stringer and the west tier of said pile. As they began to move the stringer Bowen went away. They had moved it but two or three feet, when the top stringer of said west tier fell off, crashing the plaintiff's leg. What caused the stringer to fall was not proved. The defendant offered evidence to prove that the west faces of the stringers were plumb, and that it would have required the application of a force of more than 300 pounds to slide the top stringer from the one beneath it, and the court finds that to be true, provided the tier of stringers was upon a firm foundation, and that the one which fell was placed its entire length upon another of equal length. It is found that no negligence of the plaintiff caused the stringer to fall, or contributed to his injury; that the pile seemed safe to a person where the plaintiff was at work; and that he was not informed or cautioned regarding its condition, and had no knowledge or means of knowledge excepting as appears by said facts. The court found that the plaintiff was not totally disabled from earning wages by his injury. Plaintiff's counsel was permitted against the defendant's objection to ask of one Bronson as a witness what it would cost to purchase an annuity of $100 for one of plaintiff's age. This was asked for the purpose of showing what it would cost to furnish to the plaintiff an annuity, in case it should be found that his disability was total and permanent, for the amount which it was claimed to have been proved he could earn annually. Said Bowen was asked by defendant's counsel whose business it was to see that the timber was properly piled, and also whose business it was to see that the pile was left in a proper condition during the changing character of the pile when the men were taking off and replacing the timbers of the pile. Upon plaintiff's objection the court excluded these questions. Counsel for defendant stated that it was desired to show what the custom was. Counsel for plaintiff said there was no objection to showing what the custom was, and the court stated that, if there were any instructions or rule, the witness might state them. Against the claim of the defendant the court rendered judgment for substantial damages.

William W. Hyde and Seymour C. Loomis, for appellant.

John O'Neill and William Kennedy, for appellee.

HALL, J. (after stating the facts). The principal questions in this case arise under the defendant's contention that the act of negligence complained of was that of a co-employe of the plaintiff. The complaint alleges as the cause of the fall of the timber by which the plaintiff was injured that when unloaded from the cars on the 17th of November the stringers were insecurely piled so that the top stringer in the west tier of the pile in question "would fall down from a slight touch or jar, and largely of its ownweight," and that the timbers were thus insecurely piled, and so allowed to remain until the time of the accident, through the negligence of Bowen, whose duty it was to see that the timbers were properly piled, and to examine the pile before putting inexperienced men to work near it, and under whose supervision the timbers were piled, and who was "the only representative of the defendant on this job." These allegations are to be taken by us as true,...