Rincicotti v. John J. O'Brien Contracting Co.

• Citation: 77 Conn. 617,60 A. 115
• Court: Supreme Court of Connecticut
• Decision Date: 09 March 1905
• Parties: RINCICOTTI v. JOHN J. O'BRIEN CONTRACTING CO.

60 A. 115

77 Conn. 617

RINCICOTTI

v. JOHN J. O'BRIEN CONTRACTING CO.

Supreme Court of Errors of Connecticut.

March 9, 1905.

Appeal from Superior Court, Fairfield County; William T. Elmer, Judge.

Action by Bianca Rincicotti, administratrix, against the John J. O'Brien Contracting Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The defendant was engaged in building a stone retaining wall along the Naugatuck river, in Ansonia. One Toole was the superintendent of the work, and had charge thereof and of the men employed upon it. The plaintiff's intestate was a mason so employed, and foreman of the masons. For the prosecution of the work the defendant used a heavy steam-hoisting derrick, having a mast 50 feet in height and a boom 58 feet long, operated by what is known as a "bull wheel." By its use the defendant was enabled to lift the heavy blocks of stone, of which the wall was constructed, from the cars, and swing them into position upon the wall. The derrick rested upon a foundation prepared for it, and was supported in its upright position by twisted wire cables which radiated in various directions from the top of the mast to secure points, where they were fastened. As the construction of the wall progressed so far that the boom would no longer serve at the point where stones were desired to be placed, the derrick was moved and relocated. Work upon the wall had been in process for some time when the intestate received his injuries, and two such relocations had been made. Toole was an expert derrick rigger, and it was a part of his duty, and his duty alone, to take care and charge of the derrick, including its locations, removals, and preparation for use. The masons had no duty in that regard. At the time of the last location of the derrick, which, like the others, was made under Toole's direction, and about one month prior to the accident, it was supported in position by 6 cables, varying from 186 to 413 feet in length. One of them was 360 feet in length, and extended from the masthead across the river, where it was made fast to a tree. Owing to the distance which this cable had in the former locations of the derrick been required to span, Toole had spliced it. The new conditions necessitated the same extension, and the spliced cable was used, the point of splicing being about 15 or 20 feet from the tree and across the river. The splice was made by doubling back the end of each piece of the cable, inserting one of the loops thus formed into the other, and fastening each, and thus doubled back to the cable by iron clamps of approved design. Interlocked loops were thus made. As the result of the use of the derrick after the splicing, and the constant strain and friction at the points of contact within the loops, these parts of the cable had, before the accident, become chafed and worn, and some of the strands had parted. At the time of the accident the derrick was being used to carry a stone into position. When the stone was in mid-air, said cable parted at the worn and weakened part within one of the loops. As the result, the derrick fell, striking the intestate. Toole never at any time inspected the cable to ascertain its condition. In making cable splicings such as have been described, it is customary and prudent to place a device called a "thimble" in each of the loops in such manner as to furnish the bearing in both directions. By the use of the thimbles the cables are prevented from bending as sharply as they otherwise would, the tension is distributed, and the friction and chafing obviated. Added strength and durability are thus obtained. There were suitable thimbles furnished by the defendant in a chest upon or near the premises, which fact was known to Toole.

Seymour C. Loomis and Earnest C. Simpson, for appellant. Stiles Judson, Jr., and John J. Cullinan, for appellee.

PRENTICE, J. (after stating the facts). The plaintiff's intestate, while acting as the defendant's servant, received injuries, from which he died, by reason of the fall of an instrumentality used in the work upon which he was employed. The injuries were not occasioned by any negligence in the use of the instrumentality. The instrumentality was not one whose construction, preparation, adaptation for use, care, or inspection entered into the performance of the intestate's work or duty, or was an incident of it. Fraser v. Red River Lumber Co., 45 Minn. 235, 47 N. W. 785; Burns v. Sennett & Miller, 99 Cal. 363, 33 Pac. 916; Robinson v. Blake Mfg. Co., 143 Mass. 528, 10 N. E. 314; Richards v. Hayes (Sup.) 45 N. Y. Supp. 234; Labatt on Master & Servant, § 589. It was a mechanical apparatus furnished by the master to co-operate with and facilitate the intestate and his fellow masons in the work upon which they were engaged. The duty of the defendant as master, under such circumstances and in respect to such an instrumentality, was to use reasonable care to provide one which should be reasonably safe for the work to which it was to be put. McElligott v. Randolph, 61 Conn. 157, 22 Atl. 1094, 29 Am. St Rep. 181; Gerrish v. New Haven Ice Co., 63 Conn. 16, 27 Atl. 235. This duty was a continuing one, and included that of maintenance. Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Shanny v. Androscoggin Mills, 66 Me. 420; Ford v. Fitchburg R. Co., 110 Mass. 240, 14 Am. Rep. 598; Tierney v. Minneapolis, etc., R. Co., 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35; Indiana Car Co. v. Parker, 100 Ind. 181; Moore v. Wabash, St. Louis & P. R. Co., 85 Mo. 588; Bailey v. Rome, W. & O. R. Co., 139 N. Y. 302, 34 N. E. 918. The duty of maintenance necessarily involved that of reasonable inspection and repair. Union Pacific R. Co. v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597; Tierney v. Minneapolis, etc., R. Co., 33 Minn. 311, 23 N. W. 229, 53 Am. Rep. 35; Armory v. Brazeau, 191 Ill. 117,...