Farrell v. L. G. De Felice & Son Inc.

• Decision Date: 03 May 1945
• Citation: 132 Conn. 81,42 A.2d 697
• Court: Connecticut Supreme Court
• Parties: FARRELL v. L. G. DE FELICE & SON, Inc.

132 Conn. 81

42 A.2d 697

FARRELL

v.L. G. DE FELICE & SON, Inc.

Supreme Court of Errors of Connecticut.

May 3, 1945.

Appeal from Superior Court, Hartford County; Quinlan, Judge.

Action by Mary F. Farrell, administratrix of the estate of Maurice F. Farrell, deceased, against L. G. De Felice & Son, Inc., to recover for death of plaintiff's intestate, alleged to have been caused by negligence of the defendant.Verdict and judgment for plaintiff, and defendant appeals.

No error.

Roger W. Davis, of Hartford, for appellant(defendant).

Edwin M. Ryan and Charles Stroh, both of Hartford, for appellee(plaintiff).

Before MALTBIE, C. J., and BROWN, JENNINGS, ELLS, and DICKENSON, JJ.

MALTBIE, Chief Justice.

The plaintiff's intestate, an inspector for the state highway department, died as the result of being struck by a portion of a paving machine in use by the defendant in constructing a state highway.In this action the plaintiff seeks damages for his death, claiming that it was due to the defendant's negligence.The jury found the issues for the plaintiff and awarded damages in the amount of $10,000.The defendant has appealed, and one of its claims is that the trial court erred in denying its motion to set the verdict aside as against the evidence and as excessive.We shall first discuss this ruling.

The jury reasonably could have found the following facts: The defendant was engaged in laying a strip of concrete as a part of a state highway.For that purpose it was using a paving machine, or paver.The consisted of a ‘skip’ at the front, upon which the material to be mixed to form the concrete was deposited by trucks, two large drums for mixing the concrete, into the first of which the material flowed when the skip was raised into a vertical position, and a boom which projected from the rear over steel forms marking the edge of the strip under construction and by means of which the concrete was carried in buckets until it was dumped between them.The skip was constructed of heavy metal in the general shape of a flat scoop and weighed several tons; it was some fifteen to eighteen feet long and about nine feet wide.When in place to receive material its outer edge was on the ground, but, when the material had been deposited on it, it pivoted upon a rod at the inner end until it was in a vertical position.On each side of it a three-inch iron pipe twenty-eight inches above the ground projected from the paver as a guardrail; these rails extended almost to the outer edge of the skip when it rested on the ground; but as that outer edge described its are when the skip was raised it extended for a portion of the distance beyond the end of the rails.The operator of the paver, who controlled the movement of the skip, sat in a position where he had no view of the space between the paver and the forms and that between the forms for a considerable distance opposite and ahead of it.His operation of the machinery was assisted and somewhat directed by a ‘batch boy’ whose principal job was to help in unloading material from the trucks onto the skip, but whose duty it was also to watch the skip in order to protect workmen on the job.The paver moved along parallel to the forms for the concrete at a distance of some six or eight feet from the nearest.A ‘fine grader’ rested on the forms; it was the function of this machine to grade the ground to the requisite depth between them; and a part of it projected four and one-half feet beyond the form nearest the paver.Ordinarily the paver and the grader operated at a considerable distance from each other, but at the time of the accident, because the end of the particular strip of concrete being worked upon had been nearly reached, they were quite close together.

There was in fact a distance only of some four or five feet between the projecting part of the grader and the nearest part of the paver.A truck waiting to discharge material upon the skip was standing with its rear toward it, only six or seven feet away.

Plaintiff's intestate came to the job to measure the depth between the forms to see that there would be a proper amount of concrete laid.He left his car and passed behind the paver, close to its operator, who was in his place upon it.With another representative of the highway department, he ran a string across the top of the forms and, standing between them, took the measurements.While he was doing this, the drums of the paver continued to revolve, but the skip was held in a vertical position.When he had finished taking the measurements, he started in a diagonal direction toward the front of the paver, crossing the form nearest it and proceeding between it and the form, evidently intending to pass between the paver and the grader and across in front of the former to reach his car parked on the farther side of it.When he was about opposite the middle of the paver, the skip began to descend.At the same time, at the signal of the batch boy, the truck began to back toward it.The boy, seeing the plaintiff's intestate proceeding toward the front of the paver, shouted to him, ‘Look out.’He was then some six or seven feet from the end of the nearest guardrail.Startled by the shout, he turned his head toward the paver and, looking up in an apparent effort to discover the source of the danger, started quickly forward.He came slightly into contact with the projecting part of the grader, lost his balance and, staggering back two or three steps, came between the ends of the guardrails and was struck by the descending skip.

When the skip began to descend, plaintiff's intestate, outside the guardrails, was not in a position of any danger, but he might have come into one if he had continued through the narrow opening between the paver and the grader and, turning to cross in front of the former, had passed too close to it or had been caught between the skip and the backing truck.Had the machinery remained stationary, he could have proceeded without danger.The jury could well have found that his injury was caused by the starting into motion of the skip and the backing of the truck, without notice to him, while he was in a position where, if he proceeded, he was likely to come into peril, coupled with fright caused by the sudden loud shout of the batch boy to ‘look out.’They could reasonably have found that the defendant, through its employees, failed to exercise proper case not to subject him to danger while he was leaving the place where he had been working.They could also have concluded that he was not guilty of contributory negligence in coming into contract with the projecting part of the grader, startled as he was and looking in the opposite direction and upward in the effort to discover the source of danger.His conduct could have been found to be the involuntary result of sudden fright, and so not negligent.Koskoff v. Goldman, 86 Conn. 415, 420, 85 A. 588;Jacobsen v. Cummings, 318 Ill.App. 464, 471, 48 N.E.2d 603;and seeFrench v. W. W. Mertz Co., 116 Conn. 18, 20, 163 A. 457.

Under our law, in an action by an administrator or executor to recover for injuries to a decedent, the damages may properly include compensation for his pain and suffering before his death, and medical, surgical and hospital bills, but not funeral expenses and like charges on the estate.Reynolds v. Maisto, 113 Conn. 405, 406, 155 A. 504;Bunnell v. Waterbury Hospital, 103 Conn. 520, 529, 131 A. 501.The principal element of damages is ordinarily the economic loss to the estate of the decedent due to his untimely death.White v. L. Bernstein & Sons, Inc., 123 Conn. 300, 302, 194 A. 723;Ratushny v. Punch, 106 Conn. 329, 335, 138 A. 220;Broughel v. Southern New England Telephone Co., 73 Conn. 614, 620, 48 A. 751, 84 Am.St.Rep. 176.Damages of the latter nature are peculiarly difficult to fix with any degree of certainty, and the amount of the award must be left largely to the determination of the jury.In this case the majority of the court, while deeming that the amount of damages awarded is generous, are of the opinion that they are not so excessive that the trial court should have granted the motion to set the verdict aside.There is no error in the denial of that motion.

At the begining of the trial, defendant's counsel presented to the clerk a list of eight jurymen in attendance, to be challenged in the order in which the names appeared on the list, if they should be drawn to form the panel for the trial of the case, until the four challenges allowed him by the statute had been exhausted.

The clerk refused to accept a list containing more than four names of jurors as challenged, and the trial court sustained his action in so doing.The defendant claims...