Lewandoski v. Finkel

• Decision Date: 28 December 1942
• Citation: 29 A.2d 762,129 Conn. 526
• Court: Connecticut Supreme Court
• Parties: LEWANDOSKI v. FINKEL.

29 A.2d 762

129 Conn. 526

LEWANDOSKI

v. FINKEL.

Supreme Court of Errors of Connecticut.

Dec. 28, 1942.

Appeal from Superior Court, New Haven County; O'Sullivan, Judge.

Action by John Lewandoski against Morris Finkel to recover damages for injuries sustained by plaintiff alleged to have been caused by negligence of defendant brought to superior court and tried to the jury. Verdict and judgment for defendant and appeal by plaintiff.

No error.

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

Max H. Schwartz, of New Haven (Alexander Winnick, of New Haven, on the brief), for appellant.

William L. Hadden and Walter T. Faulkner, both of New Haven (Daniel Pouzzner and Clarence A. Hadden, both of New Haven, on the brief), for appellee.

DICKENSON, Judge.

This action arose out of injuries received by the plaintiff while working for a general contractor in the erection of a building. The plaintiff claimed that the injuries were caused by the negligence of the defendant in the operation of a crane, while working in conjunction with the plaintiff. The assignments of error relate to the charge of the trial court and in the brief are pursued on two grounds: (1) failure of the court to properly instruct the jury on the issue of contributory negligence; (2) failure to charge in regard to certain conduct of the defendant which was not specifically referred to in the complaint but which the plaintiff contends was embraced in a general allegation of negligence.

The plaintiff's claims of proof, so far as they are necessary for a consideration of the points raised, are as follows: The plaintiff, an ironworker on a building being erected by his employer, was standing on an I beam twelve or fifteen feet from the ground. Above him were three bare copper wires carrying forty-eight volts of electricity. The defendant was also engaged on the same job, using a crane, the boom of which he would swing under and up between the wires. These were located in a dangerous position in relation to the operation of the crane, as both parties knew, and a few days before the plaintiff had called the defendant's attention to them and asked him to be careful. Had anyone requested the power company maintaining the wires to do so, they would have been moved so that the crane would have been less likely to come in contact with them. The plaintiff and defendant were working together and had agreed on a set of signals for the operation of the crane. As the plaintiff stood on the beam, the boom extended between and above the wires and the plaintiff had grasped a hook hanging from the end of it. He signalled the defendant to lower the boom. As it was being lowered, it swung sideways and came in contact with one of the wires. The plaintiff received an electric shock and fell off the beam to the ground, suffering the injuries for which he claimed to recover.

The defendant claimed to have proved that the plaintiff had been drinking intoxicating liquor shortly before the accident; that the beam on which he stood was covered with slush and was slippery; that no part of the crane came in contact with the live wires; that the boom was stationary; that there were no objective signs indicating that the plaintiff had received an electric shock; and that the plaintiff's fall was caused by his attempt to reach out and grasp the hook which he had released from the sling holding the rafter.

As to the first point claimed by the plaintiff, the insufficiency of the charge on contributory negligence, we start with the premise that the charge is to be considered as a whole. State v. Murphy, 124 Conn. 554, 566, 1 A.2d 274. While in one paragraph of the charge the trial court stated that the plaintiff could not recover "if he was guilty of negligence himself which contributed to his own injuries," on three subsequent occasions he added the adverb "materially" to "contributed." The plaintiff contends that the court should have used the expression "substantial factor," the use of which we approved in Carlin v. Haas, 124 Conn. 259, 265, 199 A. 430. In Smirnoff v. McNerney, 112 Conn. 421, 424, 425, 152 A. 399, 401, we called attention to the synonymy of such expressions as "materially" and substantially" and said that, while a casual reading of these various expressions might suggest that they were intended to convey different conceptions of the principle sought to be stated, "This; of course, is not so." In Lupatin v. Shine, 117 Conn. 698, 699, 169 A. 916, and in Petrillo v. Kolbay, 116 Conn. 389, 394, 165 A. 346, we expressly approved of the phrase "materially contributed." As to the plaintiff's contention that the evidence in the case called for a more extended charge on the subject of contributory...