Lemmon v. Paterson Const. Co.

• Decision Date: 25 July 1950
• Citation: 137 Conn. 158,75 A.2d 385
• Court: Connecticut Supreme Court
• Parties: LEMMON et al. v. PATERSON CONST. CO., Inc. Supreme Court of Errors of Connecticut

Page 385

75 A.2d 385

137 Conn. 158

LEMMON et al. v. PATERSON CONST. CO., Inc.

Supreme Court of Errors of Connecticut.

July 25, 1950.

Francis J. Moran, New Haven, John E. McNerney, New Haven, for appellant.

Edward L. Reynolds, New Haven, John J. Kinney, Jr., New Haven, for appellee, Lemmon.

Arthur B. O'Keefe, Jr., New Haven, for appellee H. B. Ives Co.

Before BROWN, C. J., and JENNINGS, BALDWIN, INGLIS and O'SULLIVAN, JJ.

BROWN, Chief Judge.

This is an action to recover for personal injuries sustained by the named plaintiff, hereinafter called the plaintiff, when he was struck by the movable portion of a fire escape alleged to have been negligently lowered by the defendant. The court denied the defendant's motion for a directed verdict and the jury returned a verdict of $10,000 for the plaintiffs. The court denied the defendant's motion to set it aside. The defendant has appealed, and the errors assigned relate to the denial of its motions and to the court's charge to the jury.

It is undisputed that the jury could have reasonably found these facts: On March 29, 1946, the plaintiff was employed as a factory carpenter by the Ives Company. It occupied a four-story brick building on Artizan Street in New Haven. Attached to the rear of the building and extending from the fourth floor to the yard below was an iron fire escape with a platform at each floor. An exit door opened on each of these platforms. The fire escape between the fourth and second floors was firmly fixed and immovable. A flight of three stationary steps led down from the platform at the second floor. One end of a movable iron ladder or set of steps was so hinged to the bottom of this flight that the other end could be lowered to the ground. When not so lowered, this section was kept suspended twelve feet in the air in a horizontal position parallel to the wall of the building by means of a heavy counterweight. To change the position of the section so that it would contact the ground, it was necessary, by the application of continuing pressure upon an iron bar which constituted a part of the railing around the second floor platform, to swing one end of the bar through a 90-degree arc toward the wall of the building to release a restraining catch or trigger. Contact with the ground ensued four seconds after the release of the catch. When the section was lowered, it extended past a first-floor rear door; the inside edge of the section was 3 feet 1 inch from the rear wall of the building and its lower end rested on the ground 2 feet 7 inches beyond the doorway. At the second floor, inside the doorway which opened onto the fire escape platform, was a sign reading, 'For Emergency Use Only.' Within the doorway was a room where women employees of the Ives Company worked. Use of the fire escape except in an emergency was forbidden by that company. A person standing on the platform of the fire escape at the second floor had an unobstructed view of the entire area in the rear of the building, including the first-floor doorway and the space underneath and on both sides of the fire escape.

The defendant had a contract with the Ives Company to remove a brick vault located on the second floor of the building at a point approximately eighty feet from the rear emergency exit, and eight to ten of the defendant's employees had been doing work on the premises for some three weeks prior to March 29. During that day and at all times throughout the three-week period, the defendant had kept its truck, equipment, material and tools in the rear of the building at a place in close proximity to the fire escape. There were three possible routes to be taken by a person desiring to go from the second floor of the building to the rear yard: first, the stairs leading from the second to the first floor and thence through the office and other rooms to a rear door; second, an elevator in the building; third, the fire escape. The most direct and quickest route from the second floor to the rear yard was by way of the fire escape.

On March 29, about 11:30 a. m., during the working hours of the employees of both the Ives Company and the defendant, the plaintiff, with a helper named Talmadge, was engaged in carrying a piece of steel mesh eight feet long and four feet wide through the first-floor rear doorway. Inasmuch as the piece was wider than the door entrance, it was necessary for the plaintiff and Talmadge to maneuver and use some force to get it through the opening. This took about two minutes. During this time the plaintiff was outside the rear door and in full view. While he was so engaged and without any warning to him, the movable section of the fire escape tilted downward and struck him on the head, knocking him to the ground and causing the serious injuries complained of. Talmadge saw this happen. He immediately looked up and saw Lowell looking down at him and standing alone on the nearer end of the second floor platform within reach of the bar described above. Lowell was attired in his working clothes. He was an employee of the defendant and had been on the job during the period it was carrying on the work.

In order to charge the defendant with liability, it was essential for the jury to find, further, that, although Lowell saw or in the exercise of reasonable care should have seen the plaintiff standing where the fire escape would strike him if it was lowered, he proceeded, without warning, to push the lever bar over and thus caused the fire escape to go down and strike the plaintiff; that this constituted the negligence which inflicted the plaintiff's injuries; and that in doing what he did Lowell was the agent of the defendant acting within the scope of his...