McElligott v. Randolph

• Decision Date: 26 October 1891
• Citation: 22 A. 1094,61 Conn. 157
• Court: Connecticut Supreme Court
• Parties: MCELLIGOTT v. RANDOLPH. RANDOLPH v. MCELLIGOTT.

22 A. 1094

61 Conn. 157

MCELLIGOTT

v. RANDOLPH.

RANDOLPH

v. MCELLIGOTT.

Supreme Court of Errors of Connecticut.

Oct. 26, 1891.

Cross-appeals from superior court, New Haven county; Fenn, Judge.

Action by McElligott, administratrix, against Randolph, to recover damages for the death of plaintiff's decedent. From a judgment for plaintiff by default, both parties appeal. Affirmed.

J. O'Niel, for plaintiff.

S. W. Kellogg, for defendants.

PRENTICE, J. The plaintiff's intestate was in the employ of the defendants, and while so employed was accidentally killed. He left a widow, three minor children, and one child in ventre sa, mere. The complaint alleges that the intestate's death was caused by the defendants' negligence, and claims damages laid at $5,000. The defendants having suffered a default, the damages were assessed by the court, and $1,000 awarded. Both parties appeal.

The plaintiff assigns five reasons of appeal. These reasons, however, are in substance one, namely, that the court failed to assess any damages based upon the pecuniary value of the life of the deceased to hip wife and children. The plaintiff's claim is that the history of legislation in this state, beginning with the act of 1848, providing for the survival of certain actions of tort, and embracing the act of 1853, fixing; a maximum and minimum of recovery where death should result from "Railway accidents, and providing for its distribution, shows that our statutes contemplate and authorize two independent cumulative recoveries,—one for the pain and suffering of the deceased up to the moment of his death; and another for the subsequent loss to the surviving widow, children, and heirs. Former adjudications of this court render a discussion of this claim unnecessary. The precise question here raised was in all its aspects considered and decided in the case of Goodsell v. Railroad Co., 33 Conn. 51. The opinion of the court in that case, in clear and forcible language, discusses the claims urged upon us, explains the objects and relations of the acts of 1845 and 1853, and in plainest terms lays down the rule for the assessment of damages in cases of personal injuries resulting in death. The rule thus laid down the court below applied in the case at bar. The defendants' reasons of appeal are, in substance, that the facts found disclose that they were not guilty of negligence, and that the plaintiff's intestate was guilty of contributory negligence. The deceased was one of 200 factory operatives employed by the defendants. In the wheel pit of the defendants' factory was a large wheel, weighing upwards of 12 tons, which it was desired to remove for the substitution of another of an improved pattern. The work was one of some difficulty, and required the exercise of mechanical skill. It was by the defendants intrusted to one Deming, who was the master mechanic of the factory, and a capable machinist. For the performance of the work he selected from the defendants' hands 10 men, the best adapted for the work. These men were not skilled or trained in mechanical work; with competent instructions, oversight, and direction, however, they were competent to perform the work. Otherwise they were incompetent. Among these 10 was McElligott, who was chosen because he had requested that extra employment be given him whenever practicable, and because he had once assisted in a similar operation. In order that the removal of the wheel might interfere as little as possible with the operation of the factory, the work was performed during the night. The wheel was made up of ten sections. These sections were removed independently. About midnight, some of the sections having been removed, Deming was induced by the entreaties of his little boy, who was present, to go home. The work grew more difficult as the removal progressed. By the removal of the fifth section, Deming having then left, the wheel was put out of gear with the gear wheel on the engine shaft, and it became necessary to support it. Deming had foreseen this contingency, and had given instructions for the use of a certain wooden horse for the suspension of a block and falls, for the purpose of supporting and holding in place the remaining sections of the wheel when it should become out of gear. After Deming's departure one Johnson was regarded as the foreman of the work. He. like his fellows, was without mechanical training or skill. When support of the wheel became necessary, the horse was placed in position, and the block and falls attached thereto. One of the workmen went and got a rope from the defendants' stock, attached it to the shaft of the wheel, and fastened the block and falls to it. Ry means of this apparatus the wheel was supported. It was also blocked up underneath in some way by one of the workmen. There were sufficient and suitable ropes, supports, props, and other appliances, together with others which were insufficient and unsuitable, upon the premises near the point of work. Deming gave no instructions as to which of these, save the wooden horse above referred to, should be used, or how they should be selected. Those used were picked out by one and another workman, as wanted. The rope used to support the wheel was got by one Phalen, and it was by him adjusted into position. Neither the rope nor the method of its adjustment was examined by any one else. Phalen likewise put the blocking into position. This was also done without supervision or examination. This being done, the work progressed safely until during the removal of the eighth section, when the rope and horse gave way, and the wheel fell into the pit. The deceased was at the time sitting upon the hub of the wheel, engaged in his work, and was by the accident cast down to his death. The cause of the accident was, in the language of the finding, "the inadequacy of the support, the rope being insufficient in size and strength for the strain upon it, and the support by which the wheel was blocked being also inadequate, improperly placed to sustain the weight to which it was adopted, and the whole arrangement and device was in the highest degree unsuitable and insecure, in view of the weight to be supported and the extreme hazard involved. "

Upon these facts the defendants claim that they had performed their whole duty in the premises, in that they had provided competent and suitable persons to oversee, direct, and do the work, and also suitable and sufficient appliances, tools, and materials therefor. The rule of duty of master and servant is well settled in this state. It is the master's duty to exercise reasonable care to provide for his servant a reasonably safe place in which to work, reasonably safe appliances and instrumentalities for his work, and fit and competent persons as his co-laborers. It is equally well settled that...