di Libero v. Middlesex Const. Co.

• Decision Date: 22 December 1939
• Docket Number: No. 1404.,1404.
• Citation: 9 A.2d 848
• Parties: DI LIBERO v. MIDDLESEX CONST. CO.
• Court: Rhode Island Supreme Court

9 A.2d 848

DI LIBERO

v. MIDDLESEX CONST. CO.

No. 1404.

Supreme Court of Rhode Island.

Dec. 22, 1939.

Appeal from Superior Court, Providence and Bristol Counties; Philip C. Joslin, Judge.

Proceeding under the Workmen's Compensation Act by Giuseppe Di Libero, employee, opposed by Middlesex Construction Company, employer. From an adverse decree, employer appeals.

Affirmed, and cause remanded.

Luigi Capasso, John Quattrocchi, Jr., and Joseph Capasso, all of Providence, for petitioner.

McGovern & Slattery, Fred B. Perkins, and William E. McCabe, all of Providence, for respondent.

FLYNN, Chief Justice.

This is an appeal from a decree entered in the superior court granting to the petitioner certain relief under the workmen's compensation act, general laws 1923, chapter 92, as amended, being now G.L.I938, chap. 300. The cause is before us solely upon the respondent's appeal from that decree. The reasons of appeal allege in substance that the decree, in so far as it determined that the petitioner received personal injury by accident arising out of and in the course of his employment, was against the law and the evidence.

The transcript discloses, among other things, undisputed evidence of the following facts: The petitioner was employed as a laborer by the respondent in connection with its contract for the construction of a general water system throughout several miles of highways, which the respondent called "the Smithficld job". A part of Farnum Pike, also called Waterman avenue, and Sawin, Oakhurst, Sherwood, Elmore and Berwick streets in North Providence were all close together and comprised a comparatively small area or section of the whole job. The petitioner stopped actual work on November 28, 1936, at 4 o'clock, p. m., which was earlier than the usual closing hour, because of a sudden snowfall. About 4:10 p. m., and while on his way home from work, the petitioner fell in a trench or hole in Oakhurst street about ten feet from Sawin street. The way traveled by the petitioner in leaving his work was the one customarily used by all employees coming to and going from work in this area, and was the only available way of egress from the particular section of the job where he had been working.

The transcript discloses some conflict in the evidence as to the exact place where petitioner fell, but apparently it was five or six hundred feet from where he had actually started work that day and about one thousand feet from the place where he was working when ordered by the foreman, as he testified, to stop work at four o'clock. There was also conflicting evidence as to whether the highway on Oakhurst street at that point was dug up, unfinished, and under the control of the respondent, as petitioner testified, or whether it was wholly completed, no longer under respondent's control, and then opened to use by public traffic, as evidence for the respondent tended to show. There was also evidence of other facts from which different inferences could be drawn, which will be referred to in discussing respondent's contentions. There was no evidence of actual user of this particular area, prior to the accident, by any person or vehicle other than the employees and vehicles of the respondent.

Upon all of the evidence the trial justice found substantially "that petitioner fell and received his injuries as he was leaving his place of actual work by the customary and designated course of travel; that said injuries were received within a reasonable time after the termination of his actual work; that the place where petitioner fell was within the limits of the respondent's premises; that said place was, in the circumstances, reasonably in close proximity to the place where he had actually worked; and that the accident arose out of and in the course of his employment."

The respondent contends that the finding by the trial justice that the petitioner received personal injuries by accident arising out of and in the course of his employment was erroneous as a matter of law. In support of that contention the respondent seems to argue first, that certain vital findings of fact by the trial justice are not supported by any evidence in the record and that therefore the case presents a question of law reviewable by this court; and secondly, in substance, that the petitioner did not suffer injury by accident arising out of and in the course of his employment, within the contemplation of the statute, because the evidence shows that "He was merely using the highway just as the public used it. Under no interpretation could he still be considered in the course of his employment."

The petitioner contends that the findings of fact by the trial justice complained of were based upon conflicting evidence and therefore that such findings are conclusive upon us under chap. 300, art. Ill, § 6, and that the requirements of the statute were otherwise fulfilled.

We have examined the evidence and the authorities cited by the parties and we are of the opinion that the decree appealed from was not erroneous as a matter of law.

The respondent argues in support of its first contention that the trial justice refused to believe the petitioner's testimony as to the exact place and manner of his fall and severely criticised, as unworthy of belief, other portions of petitioner's testimony concerning his subsequent earnings. From this it appears to argue that the trial justice was bound to disregard all of the petitioner's other testimony; and that, if this were done, the finding of fact that the particular section was unfinished and under respondent's control would not be supported by any evidence. The trial justice might have rejected the petitioner's other testimony concerning the unfinished condition and obstruction of Oakhurst street, but he was not bound to do so; and there was other evidence tending to corroborate the petitioner on those issues. This contention would require us to review findings of fact based upon conflicting evidence, whereas such findings of fact by the trial justice are conclusive under § 6 of the statute.

The respondent also urges that the trial justice, in finding that this part of the job was uncompleted, not open to the public and under respondent's control, expressly relied largely upon evidence of lanterns being placed by the respondent in this particular area, but that no such evidence is to be found in the record. An examination of the transcript, however, does not bear out the respondent. It rather discloses that there was evidence from the petitioner and at least one of the respondent's witnesses to the effect that a servant and operator of the respondent's truck came up to this particular place about four o'clock that afternoon to pick up tools and to set out the lanterns in this area. That witness, Ricardo Pesci, testified as follows:

"Q. What kind of work did he do? A. Skinny was putting the lanterns out.

"Q. That was his job? A. Yes.

"Q. What was his time for putting the lanterns on? A. He started at four o'clock in the afternoon.

"Q. And was he putting lanterns on at four o'clock in the afternoon on November 28th? A. Yes."

To this may be added testimony of another witness, Angelo Bianchi, that he tried to lift petitioner when he fell and "The same time the driver came in with the lights, and we told him to take this fellow to the office and then take him to a doctor."

...