Smithwick v. Hall & Upson Co.

Citation21 A. 924,59 Conn. 261
CourtSupreme Court of Connecticut
Decision Date10 July 1890
PartiesSMITHWICK v. HALL & UPSON CO.

Case reserved from superior court, New Haven county; Fenn, Judge.

J. O'Neill and G. H. Cowell, for plaintiff.

G. E. Terry, for defendant.

TORRANCE, J. The general question reserved for our advice in this case is whether the plaintiff, upon the facts found, is entitled to the substantial damages or only to the nominal damages found by the court below. Inasmuch as that court has expressly found that the negligence of the defendant caused or contributed to the injury for which the plaintiff seeks to recover, the decision of the above general question depends upon this single point, namely, whether the acts and conduct of the plaintiff, as set forth upon the record, constitute or amount to such contributory negligence on his part as will bar his right to substantial damages. The facts found, so far as they bear upon the question for decision, are in substance the following: The plaintiff was a workman in the service of the defendant, and at the time of the injury complained of was engaged in helping to store ice for the defendant in a certain brick building. In doing this work the plaintiff stood upon a platform about 5 feet wide and 17 feet long, raised 15 feet above the ground, and extending from the west side of the building easterly to a point about 2 feet east of the door or aperture through which the ice was taken into the building. A stout plank of suitable height and strength extended along the outer side of the platform as far as the west side of the door, and served as a protective railing or guard to that portion of the platform. In front of the door, and east of it, the platform was without guard or railing of any kind. A short time prior to the injury the foreman of the defendant stationed the plaintiff on the platform just west of the door, and inside the railing, and showed him what his duties were there, and told him 'not to go upon the east end of the platform east of the slide and door, as it was not safe to stand there.' He did not tell the plaintiff why it was not safe, but the danger which he had in mind was the narrowness and unrailed condition of the platform, and the liability by inadvertence to misstep or fall or slip off, the latter being aggravated by the liability of the platform to become slippery from broken ice. These dangers were all manifest. The peril resulting from the accident which happened to the building was not in contemplation. After the foreman went a way the plaintiff, in spite of the orders so given to him, and for reasons of his own apparently, went over to the east end of the platform, and worked there. It is found that there was no sufficient reason or excuse for the change of position. One of his fellow-workmen, seeing the plaintiff in that place, told him that 'it was not safe, and to stand on the other side,' but the plaintiff, notwithstanding such warning, remained at work there. While so at work the brick wall of the building above the platform, in consequence of the negligence of the defendant, gave way, the brick falling upon the platform, and thence to the ground. The plaintiff was struck by portions of the descending mass, and fell to the earth. He was either knocked off, or bis fall, in the condition in which he stood, was inevitable; indeed, had he not fallen when he did, his injuries, which were very serious, would have been worse. Most of the injuries which he actually sustained were occasioned by the fall. The plaintiff had no knowledge that the wall would be likely to fall, or was in any way unsafe, and it is found that "no fault or negligence can be imputed to him in this regard." In contemplation of the peril from the falling wall, it is found that "the spot where the plaintiff stood could not have been considered more dangerous than the place where he was directed to stand, though in fact most of the brick fell upon the side where he stood, and the result demonstrated, therefore, that the other side would have been safer in the event which occurred."

Upon these facts the defendant contends that the plaintiff, in going to and remaining on the east end of the platform, contrary to the orders and in spite of the warning given him, and in view of the obvious and manifest danger in so doing, was guilty of such contributory negligence as bars him of his right to recover more than nominal damages. If the plaintiff's injuries had resulted from any of the perils and dangers attendant upon the mere fact of his standing and working on the east end of the platform, which were obvious and manifest to any one in his...

To continue reading

Request your trial
53 cases
  • Morris v. Dame's ex'R
    • United States
    • Virginia Supreme Court
    • November 16, 1933
    ...on Neg. (6th Ed.), section 95; Thirteen, etc., Passenger Ry. Boudrou, 92 Pa.St. 475, 37 Am.Rep. 707; Smithwick Hall & Upson Co., 59 Conn. 261, 21 Atl. 924, 12 L.R.A. 279, 21 Am.St.Rep. 104; New Jersey Exp. Co. Nichols, 33 N.J. Law, 434, 97 Am.Dec. 722; Matassarin Wichita R., etc., Co., 100 ......
  • Pilmer v. Boise Traction Co., Ltd.
    • United States
    • Idaho Supreme Court
    • February 19, 1908
    ... ... to plaintiff's recovery. ( Smithwick v. Hall & Upson ... Co., 59 Conn. 261, 21 Am. St. Rep. 104, 21 A. 924, 12 L ... R. A. 279, and ... ...
  • Wheeler v. Oregon Railroad & Navigation Co.
    • United States
    • Idaho Supreme Court
    • April 27, 1909
    ... ... Co. v ... Mosley, 75 U.S. (8 Wall.) 397, 19 L.Ed. 437; Texas & P ... R. Co. v. Hall, 83 Tex. 675, 19 S.W. 121.) ... Gray & ... Knight, for Respondent ... The ... Idaho 327, 125 Am. St. 161, 94 P. 432, 15 L. R. A., N. S., ... 254; Smithwick v. Hall etc. Co., 59 Conn. 261, 21 ... Am. St. 104, 21 A. 924, 12 L. R. A. 279.) ... ...
  • Morgan v. Young, 4386.
    • United States
    • Texas Court of Appeals
    • July 21, 1947
    ...whereas the rule stated is applicable only to those acts which concur in producing the injury. Smithwick v. Hall & Upson Co., 59 Conn. [261], 271, 21 A. 924 [12 L.R.A. 279, 21 Am.St.Rep. 104]. If, after the defendant failed to deliver the car load of hulls within a reasonable time, the plai......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT