Quinn v. Moore

• Decision Date: 13 July 1972
• Citation: 292 A.2d 846
• Parties: James QUINN v. Robert E. MOORE, d/b/a Robert E. Moore Co., et al.
• Court: Maine Supreme Court

Page 846

292 A.2d 846

James QUINN v. Robert E. MOORE, d/b/a Robert E. Moore Co., et al.

Supreme Judicial Court of Maine.

July 13, 1972.

Mahoney, Desmond, Robinson & Mahoney by Lawrence P. Mahoney, Jack L. Schwartz, Portland, for plaintiff.

Preti & Flaherty by John J. Flaherty, and Thomas A. Cox, Portland, for defendants.

Before DUFRESNE, C. J., and WEBBER, WEATHERBEE, POMEROY and ARCHIBALD, JJ.

DUFRESNE, Chief Justice.

Dawson, Johnson & Kibler, Inc. was the general contractor under a written agreement of February 16, 1961 with the Canal National Bank of Portland, Maine, to erect for the Bank a branch bank office building at 383-389 Forest Avenue, in Portland. The general contractor, by the terms of the contract, was responsible for the general management of the building operation and had full directing authority over the execution of the subcontracts. The defendant Moore was a subcontractor whose duty it was to install flooring lath upon which the general contractor agreed to pour the cement floor. On April 10, 1961 the plaintiff, James Quinn, while employed by the general contractor in the pouring and spreading of wet concrete, crashed through the metal lath which Moore had installed and fell from the first floor level to the cellar, sustaining serious personal injuries for which the jury rendered a verdict in his favor in the amount of fifteen thousand five hundred ($15,500.00) dollars.

Moore appeals to this Court for relief on the ground that the Justice below erred in denying his motions for a directed verdict both at the close of the plaintiff's case in chief and at the close of all the evidence as well as in his denial of the plaintiff's motion for judgment notwithstanding the verdict and for a new trial. Rules 50 and 59, M.R.C.P. Furthermore, during the course of the trial the defendant's counsel moved for mistrial on the basis of a prejudicial statement made by the plaintiff's counsel before the jury. The motion was denied and this denial is also included in the points on appeal.

For purposes of this appeal we must afford the plaintiff the most favorable view of the facts and of every justifiable inference to be drawn from them, whether the appeal is based on the failure to grant a motion for a directed verdict (Andreu, Dostie v. Wellman, 1949, 144 Me. 36, 63 A.2d 926), or the appeal is grounded on the denial of a motion for judgment notwithstanding the verdict or for a new trial (Ogden v. Libby, 1963, 159 Me. 485, 195 A.2d 414; Scammon v. City of Saco, 1968, Me., 247 A.2d 108).

Viewed in the light most favorable to the finding of the jury, the evidence properly supports the following summary:

In the erection of the branch bank building within which the plaintiff was working at the time of his accident, it is undisputed that the defendant's employees were installing the metal lath flooring while the general contractor's men were performing other construction work. Their respective operations were integrated. The laying of the metal lath flooring had to be, and was, done prior to the pouring of the concrete floors. As a matter of fact, defendant's subcontractual metal lath flooring job had been completed about one week prior to the time the general contractor was ready to start pouring the concrete over the mesh floor installed by the defendant's men to receive it. On the day of his injury, the plaintiff and his co-workers had completed the 'first pour' of concrete in a certain area of the building and this 'first pour' covered the lath flooring to such an extent that it became impossible to know, when stepping in that area, whether one would be treading over the center of a lath or on a bar joist over which the lath flooring was installed. The plaintiff's duties at the time consisted of shoveling wet concrete from the high spots to the low spots to facilitate the work of the men who smoothed the concrete with a straight edge. The second pouring of concrete was done while the 'first pour' was stiff but not completely dry. In attempting to fetch a shovelful of concrete to fill in a low spot, Quinn took a few steps back and fell through the wet concrete and metal lathing to the floor below, sustaining bodily injuries for which he was hospitalized twenty-eight (28) days and out of work for seven (7) months.

The defendant himself conceded, and this is overwhelmingly supported by other witnesses, that there is an accepted method to be used in installing the reference wire mesh flooring to receive wet concrete. The safe and sound procedure is to tie around the ribs as opposed to tying between the ribs through the grate, and the ends of strips should be overlapped one on the other at least twelve inches with double ties around the ribs. The jury justifiably could conclude that the defendant's lath flooring installation was not done in accordance with proper workmanship requirements.

The defendant, nevertheless, presses his claim of reversible error in the Court's denial of his motions for a directed verdict, for judgment n. o. v. and for new trial, on the ground that at no time did he owe a duty of due care to the plaintiff. The defendant says that the work under his subcontract had been completed and he had no more control of the metal lath flooring which, as he contends, was never intended for use as a support for the general contractor's workmen whose duty it was to pour the cement floor. Negligence is gauged by the ability to anticipate. The jury was warranted in finding that the defendant, through his long experience in the construction filed and in the installation of metal lath flooring to receive wet cement, knew or should have known that his men were not the only ones to work on the project, that the cement pouring would soon follow the laying of the wire mesh and that he could reasonably anticipate that the workmen engaged in pouring the cement might of necessity or under the requirements of reasonable convenience in the course of their work step on the wire mesh and not necessarily over the bar joists when in the process of laying the 'second pour.' It was the defendant's duty to install the metal lath flooring with due regard for the natural and customary use by others whose subsequent work was directly and integrally connected with such preliminary installation. If reasonable care would have anticipated such use (and, in the instant case, the jury was justified from the evidence in so finding), then it was the duty of the defendant to use reasonable care to install the metal lath flooring according to safe and sound methods of installation.

The defendant cites Masciarelli v. Powell, 1968, 30 A.D.2d 342, 291 N.Y.S.2d 967, as supporting his claim of non-liability. There, the defendant subcontractor had not securely attached to supporting posts the...