Cavanaugh v. Windsor Cut Stone Corp.

• Decision Date: 22 April 1908
• Court: Connecticut Supreme Court
• Parties: CAVANAUGH v. WINDSOR CUT STONE CORP.

69 A. 345

80 Conn. 585

CAVANAUGH

v. WINDSOR CUT STONE CORP.

Supreme Court of Errors of Connecticut.

April 22, 1908.

Appeal from Superior Court, Hartford County; William S. Case, Judge.

Action by Alice E. Cavanaugh, administratrix, against the Windsor Cut Stone Corporation. From a judgment for plaintiff for nominal damages only, she appeals. Error, and new trial ordered.

The Hartford Paving & Construction Company were the contractors for the erection of a bridge, and engaged in its erection. The defendant took from this company a contract to furnish and set for an agreed sum certain cut stone specified for the construction of the bridge. The execution of this subcontract necessitated the use of hoisting devices, and it was stipulated in the contract, as one condition of it, that the defendant should have the use of the derricks then located at the work. One such derrick operated by a hoisting engine was in fact so used. Cavanaugh, the plaintiff's intestate, was employed by the defendant as a mason's helper, and pursuant to this employment he and a mason named Harper, a competent man, who acted as foreman, were sent by the defendant to set the stone in place. While Cavanaugh was employed in this work, and while said derrick, under the directions of Harper, was being used to lift a stone weighing about 5 1/2 tons into its place, one of its two guy wire supports broke, and the derrick fell, hitting and killing Cavanaugh. The other pertinent facts are sufficiently stated in the opinion.

Joseph P. Tuttle, for appellant. Robert C. Dickenson, for appellee.

PRENTICE, J. (after stating the facts as above). The defendant, having suffered a default, placed itself in a position where the plaintiff was entitled to a judgment for substantial damages, unless it succeeded in establishing by a preponderance of evidence either that it was not negligent in the premises or that Cavanaugh, the plaintiff's intestate, was negligent in a manner directly contributing to the injury which befell him. The court has in express terms found the latter fact established. There is no express finding upon the former issue. Evidently the court deemed it unnecessary to determine that question, in view of its conclusions as to contributory negligence, and intended to rest its judgment for nominal damages upon that conclusion. We might therefore, under ordinary circumstances, confine our inquiry to the questions of law which enter into the court's determination that there was contributory negligence. But the defendant urges upon us that, even if error should appear in this part of the case, the judgment would not be erroneous, and ought not to be set aside, since the facts of record disclose as a matter of law that there was no negligence on the defendant's part. Our views of the case subsequently outlined, therefore, require us to examine the facts of the case in their relation to both negligence and contributory negligence. It will be convenient to consider the defendant's claim last stated first in order.

This claim, as stated in the headlines of the brief of counsel, is that the finding imputes no negligence to the defendant. This would not be sufficient in view of the burden cast upon it by the default of disproving negligence. But it is apparent from the argument presented in elaboration of the proposition stated that its contention is the broader one that the facts show affirmatively that the negligence which led to the fall of the derrick was that of the Hartford Paving & Construction Company, and not that of the defendant. The court has found that Cavanaugh's death was caused by the negligent manner in which the derrick had been erected and supported. The subordinate facts stated are ample to support this conclusion. We start, then, with the proposition that somebody's negligence was primarily responsible for his death, and it only remains to inquire whether or not it can be said as a matter of law upon the facts that that responsibility attaches or does not attach to the defendant. The record discloses that the defendant had contracted with said construction company, which was engaged in the erection of a bridge, to furnish and lay certain cut stone required in the work, and that by the terms of the contract the construction company was to furnish the necessary derrick and hoisting appliances for the setting of the stone. The correspondence which expresses the undertakings of the parties discloses that the construction company undertook to furnish the use of the derricks then in position, and an engineer to operate them. When the time arrived for the stone to be set, the defendant sent one Harper, a competent and qualified mason, and Cavanaugh, employed by it as a helper, to do the work. Harper assumed charge and control of the work, and so far as the operation of the derrick which was made use of was required in the lifting of the stones into place he exercised control and direction of that. He gave the directions as to the raising, lowering, and operation of the derrick, and at the time of the injury to Cavanaugh its operation in carrying a stone weighing more than five tons into position was under his (Harper's) orders and direction.

Cavanaugh was the defendant's servant in the work in which he was engaged, and remained such until the blow of the falling derrick killed him. Being his master, the defendant owed him the duty to use reasonable care to provide him with a reasonably safe place in which to work and reasonably safe appliances and instrumentalities for his work. The complaint charges a failure in this duty in respect to both place and appliances. The charge, in so far...