Bunnell v. Berlin Iron Bridge Co.

• Decision Date: 08 February 1895
• Citation: 66 Conn. 24,33 A. 533
• Court: Connecticut Supreme Court
• Parties: BUNNELL v. BERLIN IRON BRIDGE CO. et al.

33 A. 533

66 Conn. 24

BUNNELL

v. BERLIN IRON BRIDGE CO. et al.

Supreme Court of Errors of Connecticut.

Feb. 8, 1895.

Appeal from superior court, New Haven county; George W. Wheeler, Judge.

Action by Frank H. Bunnell against the Berlin Iron Bridge Company for personal injuries due to negligence of defendant in constructing a building. W. A. Taylor, as an independent contractor in charge of the work, cited as a codefendant, suffered a default, and moved for a hearing in damages, and from a judgment assessing the damages at $550 he appeals. Affirmed.

Charles J. Cole and Seymour C. Loomis, for appellant.

Samuel A. York and Isaac Wolfe, for appellee.

HAMERSLEY, J. The only reasons of appeal assigned in this case are the alleged errors of the court in overruling the claims set forth in the finding as made by the defendant upon the facts found. The main grievance of the defendant is the action of the court in overruling his general claim that upon the facts found "the injuries to the plaintiff did not result from his negligence, and that the negligence of the plaintiff contributed to said injuries." The defendant was engaged in erecting the iron framework and roof trusses (weighing six tons each) used in a building at the corner of two highways, River street and Ferry street The apparatus used for raising the trusses consisted of two gin poles or derricks, 8x12 inches thick and 56 feet in length, with their appropriate appliances. A truss, which had been raised some 20 feet or more, fell to the ground. The gin poles parted. The one standing next to Ferry street fell towards the highway, carrying with it the iron framework of the side of the building facing Ferry street. The plaintiff, being in the highway, was struck by the framework and injured.

The court below found that the falling of the gin pole and iron framework was caused by the negligence of the defendant's servants, and that the plaintiff was in the exercise of due care and contributed in no wise to his injuries. This finding of negligence is a conclusion of fact from the evidential facts found, as well as from all the evidence. The question of negligence, shown by the record to have been presented to the court below, clearly depends upon the conduct of the parties under the special circumstances of the case. Did the parties act as men of ordinary prudence would act under like circumstances? "In cases involving the question of negligence, where the general rule of conduct is alone applicable, where the facts found are of such a nature that the trior must, as it were, put himself in the place of the parties, and must exercise a sound discretion, based upon his experience, not only upon the question, what did the parties do or omit under the circumstances? but upon the further question, what would a prudent, reasonable man have done under those circumstances? and especially where the facts and circumstances are of such a nature that honest, fair-minded, capable men might come to different conclusions upon the latter question, the inference or conclusion of negligence is one to be drawn by the trior, and not by the court as matter of law." Farrell v. Railroad Co., 60 Conn. 257, 21 Atl. 675, and 22 Atl. 544.

The defendant, however, claims that the trial judge, in reaching his conclusion, required of the defendant something which the law does not require of him. The judge finds that the defendant was guilty of negligence in not making an examination of the apparatus after the falling of the truss and before the falling of the gin pole. The defendant claims it was not his duty to make such examination, and therefore his failure to do so cannot support negligence. The only duty involved is the duty to take such precautions in the special emergencies of this case as a man of ordinary prudence should take. The standard of such duty is not the same under all circumstances, so that it can be applied as a matter of law by the court to the facts found. There is no statute or rule of law defining the duty of a builder under the circumstances found by the court. The duty imposed upon the defendant is one whose measure must vary according to the circumstances presented in each case. "The standard then is that of a reasonable man. What would a reasonable man of ordinary prudence have done under the circumstances as they existed in this case? In these instances, both the measure of duty and the extent of performance must be ascertained as facts." O'Neil v. Town of East Windsor, 63 Conn. 154, 27 Atl. 237. The case under discussion involves the duty of the defendant to take a precaution, the necessity of which depends on conditions peculiar to an exceptional emergency, in its nature Insusceptible of reproduction, i. e. on the precise circumstances existing in this case, and is therefore clearly distinguishable from cases where the precaution which the defendant falls to take is one required at all times, by circumstances not peculiar to a single transaction, but continuing or constantly recurring in the same form. The question how far the duty of taking the precaution called for in such cases may be a conclusion of law is not now involved. The principle as stated in the cases above cited is supported by many decisions of this court, and must control the present case. The conclusion of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, was one to be drawn by the trior as a matter of fact, and not by the court as a matter of law.

The other claims, made by the defendant, and...