Hill v. A. L. A. Const. Co.

• Decision Date: 05 February 1965
• Docket Number: No. 10636,10636
• Citation: 99 R.I. 228,206 A.2d 642
• Parties: James HILL v. A. L. A. CONSTRUCTION CO., Inc. Ex.
• Court: Rhode Island Supreme Court

Page 642

206 A.2d 642

99 R.I. 228

James HILL v. A. L. A. CONSTRUCTION CO., Inc.

Ex. No. 10636.

Supreme Court of Rhode Island.

Feb. 5, 1965.

John F. McBurney, Pawtucket, for plaintiff.

Francis V. Reynolds, Leonard A. Kiernan, Jr., Providence, for defendant.

CONDON, Chief Justice.

This is an action of trespass on the case for negligence which was tried to a jury in the superior court and resulted in a verdict in the sum of $18,000 for the plaintiff. Thereafter the defendant's motion for a new trial was denied. The case is here on its bill of exceptions to such denial, to the denial of its motion for a directed verdict, and to the trial justice's action in allowing certain testimony to be read to the jury in response to their request made some time after they had retired to consider their verdict.

The plaintiff predicated his cause of action on an injury which he received on May 4, 1959 as a result of the alleged negligent act of an employee of defendant. The incident occurred at the city of Pawtucket's Stump Hill Reservoir in the town of Lincoln. At that time plaintiff was working on the floor of the reservoir in the company of certain other employees of the city. On the rim of the reservoir, about 23 feet above the floor, defendant had a force of men, including three carpenters, who were doing certain work on the rim under a contract which defendant had with the city. The work being done on the rim was preparatory to defendant constructing an aluminum cap over the reservoir. The city's employees were engaged in cleaning the floor of the reservoir. To make possible the doing of such work and the performance of defendant's contract the reservoir had been emptied.

On the morning of May 4 the city's employees were cleaning the floor at a point in approximately the southwest section of the reservoir, directly below the rim where defendant's employees were working. From that point two pieces of lumber about two-by-four were thrown or dropped from the rim, one of which struck plaintiff in the back of his neck and right shoulder, knocking him unconscious.

Two of plaintiff's fellow laborers saw the falling pieces of lumber but neither could tell who threw or dropped them, but both testified that they came from the rim where defendant's employees were working. One of the witnesses testified that he heard someone holler 'Throw down the lumber' and that when he looked up he saw a lightcomplected fellow whom he did not know throw down two pieces of lumber into the reservoir. He further testified that the man was dressed in work clothes and wore a blue baseball cap.

The defendant presented only two witnesses, its president and its superintendent. The latter was in immediate charge of its employees who were working on the rim on the day of the accident. The president testified that defendant never received any notice from plaintiff of a claim against it for an accident caused by its employee or employees on May 4, 1959, and that the first time it was made aware of such a claim was 'a good two years later' when it was served with plaintiff's writ. He further testified that the company had a superintendent on the job at the reservoir who was required to be there daily while the work was in progress.

The superintendent testified that he was in complete control of the job for defendant; that he did not personally see plaintiff struck by a two-by-four piece of lumber on May 4, 1959; that he never received any report from any of his employees that plaintiff had been struck on that date as a result of the action of any one of them; and that during the whole period defendant was on the job at the reservoir neither plaintiff nor anyone in his behalf had ever reported to him that plaintiff had been injured as a result of such action.

In direct examination he testified that in the early part of May 1959 he had among his other employees three carpenters who were building an outhouse, a field office and doing work on the wall. He admitted the carpenters were using wooden forms, sized two by eight made of 'plywood face and two by fours nailed to the back side,' but he further testified that the forms were constructed off the job at defendant's yard on Atwood avenue and that it was not necessary to use any additional two-by-fours on the job to join the several forms together.

On cross-examination he admitted that he had asked the carpenter foreman, Reginald Sherman, whether or not one of his men had thrown this two-by-four. He did not inquire of the other two carpenters concerning the matter. The defendant did not call any of them to testify nor did it indicate for the record that they were unavailable as witnesses.

On this state of the evidence defendant moved for a directed verdict on the ground that there was no evidence to go to the jury that identified the person who threw the object which is alleged to have struck and injured plaintiff. The trial justice denied the motion for the reason substantially that there was evidence from which it could be reasonably inferred that a two-by-four was thrown by one of defendant's employees who was working with such material on the rim of the reservoir. He relied further upon the fact that there was no evidence any of the employees of the city were working on the rim or that they were using two-by-fours. Another inference favorable to plaintiff he felt could be reasonably drawn by the jury from the circumstances that though the carpenters were admittedly using two-by-fours defendant did not call any of them to testify. He concluded, 'that there was enough circumstantial evidence for the Jury in passing upon the question of whether or not the individual or individuals who actually threw the object were or were not employees or servants of the defendant corporation.'

As is well known, in considering defendant's motion for a directed verdict...