Chartier v. Winslow Crane Service Co., 19000

• Decision Date: 04 April 1960
• Docket Number: No. 19000,19000
• Citation: 142 Colo. 294,350 P.2d 1044
• Parties: Richard H. CHARTIER and Industrial Commission of Colorado, Plaintiffs In Error, v. WINSLOW CRANE SERVICE COMPANY, a Colorado corporation, Defendant in Error.
• Court: Colorado Supreme Court

Page 1044

350 P.2d 1044

142 Colo. 294

Richard H. CHARTIER and Industrial Commission of Colorado, Plaintiffs In Error, v. WINSLOW CRANE SERVICE COMPANY, a Colorado corporation,

Defendant in Error.

No. 19000.

Supreme Court of Colorado, In Department.

April 4, 1960.

Rehearing Denied April 25, 1960.

Kenneth N. Kripke, Denver, for plaintiffs in error.

Dawson, Nagel, Sherman & Howard, Arthur K. Underwood, Jr., Raymond J. Turner, Denver, for defendant in error.

DOYLE, Justice.

This is a negligence action instituted by Richard H. Chartier against the Winslow Crane Service Company for personal injuries sustained as the result of the alleged negligence of one of its servants. The Colorado Industrial Commission also appeared as a plaintiff by virtue of its having paid $643.50 in temporary total disability payments on behalf of Chartier's employer and the parties stipulated that in the event of a judgment in favor of Chartier a judgment would be given in favor of the Commission in the above-mentioned amount plus interest. The jury returned a verdict in favor of Chartier in the amount of $50,531; the trial court set this verdict aside and granted defendant's motion for a new trial. Plaintiff elected to stand on the record made at the trial, and the trial court thereupon dismissed the action. Plaintiff now seeks review of this dismissal by writ of error. The parties will be referred to herein as they appeared in the trial court by name.

Chartier was employed as an ironworker by the Perlmutter Construction Company in the construction of a five-story building in downtown Denver when the accident that resulted in his injuries occurred. The mode of construction being employed involved the use of vertical columns, cross-beams, and slabs made from prestressed concrete. Chartier was familiar with the construction of these materials, having worked for a number of months in the plant in which his employer manufactured them. The columns were placed in rows and the floors formed by placing the cross-beams on projections from the columns and laying three rectangular slabs within each set of four columns on notches cut four inches into the beams. The space between the floors thus formed and a set of four columns was referred to as a bay. Each slab was 21 feet long, 58 inches wide and 2 inches thick and weighed approximately 2 1/2 tons. Because of the weight and size of these materials, large cranes had to be used to place them in the required position.

At the time of the accident the plaintiff and his foreman, William Gordon, were working on the second floor of the building. The crane of the defendant had a cable attached to a column at the corner of the bay on which plaintiff was working. The beams were already in place and two slabs had been properly placed on the beams. The third slab, however, would not fit between the beams, and it was in the course of efforts undertaken to fit this third slab into the proper position that the accident occurred. The foreman, Gordon, was riding on a beam held by another crane not involved in this action, using it as a stage. The third slab was taken out of the bay in which it was to be placed and set in an already completed bay. A second cable was then attached to the column mentioned before, the purpose being to draw it back just far enough so that the beam resting on it would also move back to allow the slab to rest properly on the 4 inch notch. Chartier on the bay helped Gordon loop the cable around the column. A bullpin was used that would hold the cable in place on the column when tension was applied to the cable from the crane. Upon attaching the cable, Chartier then walked back into a completed bay, 'for safety's sake * * * assuming they were going to pull this column,' recognizing the risk of a sudden jerk on the cable. Gordon gave a signal to the crane operator, Lewis, to 'tighten up on the the load.' The signal given could have meant either a slow continuous pull or a direction to take up slack. There is no testimony that a second signal of any kind was given before the accident occurred. This procedure had been used before in the construction of the building and the plaintiff was familiar with it although this type of construction was a new one in general. At this point, Gordon called to Chartier saying: 'Come here, Dick, and help me.' Chartier started to walk from the point where he was standing across one of the slabs already in place to the column to which the cables were attached. Just as he did so, the slab fell out from under him and he fell some 15 feet to the ground and was seriously injured by one of the slabs which fell across him, sandwiching him between it and the slab on which he had fallen.

Chartier could not furnish information as to the cause of the slab falling. Lewis, the crane operator, said that Gordon gave him 'the slow signal' that he began to take up the line and that then 'everything started falling down.' He was not able to give any more information about the cause of the accident. Gordon testified that he signalled Lewis to 'tighten up on the load * * *take tension in the load,' but also could not tell anything that happened thereafter. He said:

'Q. When you gave Mr. Lewis the signal--the slow signal to take up on the tension--what happened next? A. Well--I can't say--I don't know what you are--had in mind. How to answer that question--I can't answer that. I mean--I don't see what--I don't understand, maybe--perhaps how to state. You want me----

'Q. I want to know what happened right after the signal was given? A. Well--We all know the accident has happened--if that's what you want. That's the only answer I know offhand--that you asked the question.

'Q. And that's all you know? A. That's right.'

The trial judge rested his grant of defendant's motion for a new trial on five grounds: (1) that the verdict was excessive, (2) that the verdict was not warranted by the evidence, (3) that the verdict was against the substantial weight of the evidence, (4) that the court erred in giving Instruction No. 10 relating to action taken in the face of an emergency, and (5) that the court erred in refusing to give defendant's requested Instruction No. 10 relating to the general elements of a negligence action.

Plaintiff asserts error in the trial court's grant of a new trial in all respects and he contends that the verdict was not excessive, was not against the substantial weight of the evidence and that the instructions given the jury were proper.

The position of the defendant is that the test on review of a grant of a new trial is different from that on the review of a directed verdict and that a grant of a new trial may be disturbed only upon a showing of gross abuse of discretion and that no such showing can be made here. It also contends that the state of the record would have entitled the court to direct a verdict in its favor and asserts that the weight of the evidence overwhelmingly showed contributory negligence and assumption of the risk on the part of the plaintiff. It argues that the trial court was correct in regarding the damages as excessive and in its ruling on instructions. Defendant, in addition, asserts two further grounds in support of the dismissal:

1. It argues that the crane operator was a 'loaned servant' and therefore it is not responsible for his actions.

2. It argues that since plaintiff was injured by one who was in fact a co-worker, his exclusive remedy is under the Workmen's Compensation Act.

Finally, defendant contends that res ipsa loquitur has no application to this case.

1. The question pertaining to review of the order of the district court granting a new trial.

Generally the courts hold that the order granting a new trial is interlocutory and hence not reviewable. In most jurisdictions the matter cannot be reviewed until a new trial has been had and a judgment has been finally entered. Thus the trial court can weigh the evidence and grant a new trial if it deems the evidence insufficient. In Colorado a different procedure is observed. Here the litigant against whom the new trial has been ordered may elect to stand on this order, obtain a dismissal of the action and thereupon seek a review of the order. The plaintiff in the case at bar has pursued this procedure.

Numerous cases recognize this procedure. The earliest case is that of Wadworth v. Union Pacific R. R. Co., 18 Colo. 600, 33 P. 515, 2 L.R.A. 812. Here the new trial was granted, the matter was reviewed on the question of whether there was sufficient evidence to justify submission of the case to the jury. Other decisions, while recognizing that a review following the grant of motion for a new trial can be obtained, appear to have followed a somewhat different test and to have required a showing that the trial court grossly abused its descretion in granting a new trial on the ground of insufficiency of evidence. Clifford v. Denver, S. P. & P. R. Co., 12 Colo. 125, 20 P. 333. See also Hurt v. Nelson, 85 Colo. 471, 276 P. 982; Crosby v. Canino, 89 Colo. 434, 3 P.2d 792, 78 A.L.R. 1202.

The authoritative and clarifying decision is that of Mooney v. Carter, 114 Colo. 267, 160 P.2d 390, 392. There plaintiff had obtained a jury verdict and the trial court had granted defendant's motion for a new trial on the ground of insufficiency of the evidence. The court reviewed the early authorities and concluded that the order granting a new trial is reviewable and further held that the test on review is whether there is substantial (though conflicting) evidence in the record to support the jury verdict. This evidence, it was held, must be considered in the light most favorable to plaintiff and the presumptions favor the verdict rather than the final judgment of dismissal. The reason for adoption of this test is that the judgment of dismissal is actually a court determination that the evidence was not substantial and that a motion for dismissal or a nonsuit should have...