J & K Const. Co. v. Molton

• Decision Date: 24 February 1964
• Docket Number: No. 20614,20614
• Citation: 390 P.2d 68,154 Colo. 214
• Parties: J & K CONSTRUCTION COMPANY, a Corporation, Plaintiff in Error, v. Oscar MOLTON, Defendant in Error.
• Court: Colorado Supreme Court

Page 68

390 P.2d 68

154 Colo. 214

J & K CONSTRUCTION COMPANY, a Corporation, Plaintiff in Error, v. Oscar MOLTON, Defendant in Error.

No. 20614.

Supreme Court of Colorado, In Department.

Feb. 24, 1964.

Rehearing Denied March 23, 1964.

Tilly & Skelton, Denver, for plaintiff in error.

Elias J. Candell, Lakewood, for defendant in error.

PRINGLE, Justice.

We will refer to the parties as they appeared in the trial court where plaintiff in error was defendant and defendant in error was plaintiff.

This writ of error is brought to review a judgment entered for the plaintiff Molton for personal injuries sustained by him while assisting in the erection and placing of long-span joists or trusses between the tops of the sidewalls of a building being constructed by the defendant J & K Construction Company for an automobile dealer. The cause was tried to a jury of six which returned a verdict in the amount of $41,925.32, upon which judgment was accordingly entered.

The defendant contends for reversal that:

I. There was insufficient evidence presented by the plaintiff of negligence on the part of the defendant to permit the case to go to the jury and the question of 'general' negligence was not presented by the plaintiff's amended complaint.

II. Plaintiff was, as a matter of law, the employee of the defendant and, therefore, was estopped from asserting his common law remedy against it by reason of the provisions of the Workmen's Compensation Act or was, as a matter of law, limited to recovery of $10,000 by reason of being an employee 'loaned' to the defendant.

III. The trial court erred in failing to admonish the jury with respect to implications it might draw from an alleged 'improper contact' between a proposed witness and the jurors.

We find no merit in the defendant's contentions for reasons which hereafter appear.

I.

Was there sufficient evidence presented by the plaintiff of the defendant's negligence to carry the case of the jury and was the allegation of 'general' negligence presented by the plaintiff's amended complaint? The answers are in the affirmative.

Considering the latter point first, it is the defendant's contention that the amended complaint asserts only two grounds for relief: (1) negligence per se based upon a purported violation of CRS '53, 80-16-1, which provides in substance that one who employs or directs another to perform labor in the erection or construction of a building shall not furnish or erect for the performance of work any unsafe scaffolding, hoists, stays, ladders or other mechanical contrivances and shall not construct nor operate the same so as to give improper protection to the employee, and (2) res ipsa loquitur. Defendant contends that 'general' negligence is not alleged in the amended complaint. At the conclusion of the plaintiff's case, the trial court, in considering the defendant's motion for a directed verdict, determined that negligence per se, based upon a purported violation of the above statute, would not lie and the plaintiff relinquished any contentions he might have had based upon the doctrine of res ipsa loquitur.

The pertinent paragraphs of the amended complaint are as follows:

'4. At said time and place defendant was negligent toward plaintiff by directing him to perform certain labor in the erection of said building without furnishing or erecting for the performance of such labor, scaffolding, hoists, stays, ladders, or any other mechanical contrivances constructed, placed and operated so as to give proper protection to the life and limb of the plaintiff so engaged.

'5. At said time and place defendant was negligent toward plaintiff by directing him to perform certain labor in the erection of said building, which labor required plaintiff to stand upon a steel joist about 20 feet above the ground, which joist had been fabricated by the defendant and was under its exclusive control in the inspection, fabrication, erection, and all other phases of the use thereof.

'6. While plaintiff was standing upon the said steel joist to perform the labor as directed, the joist fell from its support, throwing the plaintiff to the ground and landing on top of him.

'7. The above accident happened through no fault of the plaintiff and never would have happened but for the negligence of the defendant.'

In our view, the amended complaint was sufficient to put the defendant on notice that 'general' negligence was being asserted. The test to be applied is whether the complaint gives fair notice to the adverse party to enable him to answer and prepare for trial and one does not stand or fall on a 'theory' or 'cause of action' as obtained under the practice prior to adoption of the Rules of Civil Procedure, under which the substance and not the form of the claim is of controlling significance. Hutchinson v. Hutchinson, 149 Colo. 38, 367 P.2d 594; Smith, for and on Behalf of Leech v. Mills, 123 Colo. 11, 225 P.2d 483; Bridges v. Ingram, 122 Colo. 501, 223 P.2d 1051; 2 Moore's Federal Practice, 2d Ed., Sec. 8.13, pp. 1692, 1695 and Sec. 8.14, p. 1713. Spomer v. City of Grand Junction, 144 Colo. 207, 355 P.2d 960, contains the following highly pertinent comment:

'Rulings of this court under former practice and procedure that pleadings are construed most strongly against the pleader are not in harmony with present day procedure in civil actions. The rule now is that pleadings are to be construed in favor of the pleader. * * *'

The record shows that throughout the entire proceedings counsel for the defendant was clearly aware of the conduct which the plaintiff contended constituted negligence on the part of defendant and that the defense was grounded on the contention that none of these acts amounted to negligence. Under such circumstances, we cannot say that the defendant was prejudiced in any way by the particular manner in which 'general' negligence was alleged in the complaint.

We now proceed to a consideration of the evidence which was presented to prove negligence. The accident in question occurred while the plaintiff was engaged in connecting 'X-bracing' in the middle of a truss. X-bracing' consists of metal rods or pipes which are fastened near the top chord of each truss and connect to a point near the bottom chord of each adjacent truss, providing perpendicular stability from truss to truss and tending to make one complete unit of all the trusses installed for roof support. While the plaintiff was connecting this 'X-bracing,' the truss on which he was working rolled and the plaintiff fell to the ground some fifteen or twenty feet below. The two-ton truss followed him down and struck him upon the leg, inflicting very serious injuries.

Each truss had an overall length of some eighty feet, made up of two forty-foot sections bolted together, and measuring approximately ten inches across the top chord. There was an open 'web' leading to the lower chord, which was another reinforced flat steel plate somewhat shorter in overall length. The assembled truss, when placed in position on the walls, rested upon steel plates in the walls supporting either end of the longer or upper chord, and the lower chord hung directly below into the building area. The lower part of the upper chord, bearing on the metal plates in the walls, was to be welded to those metal plates after 'X-bracing' had been attached. The trusses were designed to span the building between its sidewalls and to support the roof.

As indicated above, the trusses were composed of two forty-foot sections. These sections were bolted together at the job site by defendant's employees under the direct supervision of defendant's foreman. A crane was employed for the purpose of lifting and placing the trusses between the walls. The crane operator, acting upon signals from men on top of the walls and with the assistance of other men on the ground, would attach cables to two points on each truss, lift the truss into the air and swing it into its proper position resting upon the metal plates on the walls. On each wall a man was stationed to supervise the landing of the truss and after it was placed in position these men would walk out on the truss to the point where the cables were attached and release them.

Shortly before noon on the day of the accident in question, the truss from which the plaintiff fell was placed in its position between the walls. The cable supports of the crane were released and the workmen went to lunch. After lunch, the plaintiff walked out along the top of the truss to connect the 'X-bracing' in the middle and while he was so occupied the truss rolled resulting in the events described above.

Since the jury brought in a verdict for the plaintiff, we must examine the evidence in the light most favorable to the plaintiff's case and every inference fairly deducible from the evidence must be drawn in favor of the judgment. Maloney v. Jussel, 125 Colo. 125, 241 P.2d 862; McCarthy v. Eddings, 109 Colo. 526, 127 P.2d 883; Venetucci v. City of Colorado Springs, 99 Colo. 389, 63 P.2d 462. Viewed in this light, the evidence in support of the verdict establishes that the truss in question had afforded some difficulty to the defendant's crew when assembling the two forty-foot sections in that the holes of the plates by which the sections were assembled were not properly aligned and were at an angle. The bolts were then forced into the assembly slaunch-ways by the use of an air hammer and socket. A journeyman ironworker with twenty-two years of experience in the field testified that the proper procedure in such a situation was to use a cutting torch to make the holes match. The same witness testified that when the bolt was forced into the assembly the plate curled. The defendant's foreman testified that while all of the trusses were somewhat bowed, this particular truss was bowed more than the others; that a bowed truss has a tendency to roll; and that the plaintiff's weight on this particular truss ...