Negligence, In building in process of construction. Practice, Civil, Order of trial, Exceptions.
In an action under St. 1898, c. 565, for the death of the plaintiff's intestate caused by the falling of the roof of an engine room, owned and to be operated by the defendant and then in process of construction, it appeared, that the roof consisted of steel trusses then partly covered with terra cotta, that these trusses rested on steel columns, that the columns gave way, bending inward and causing the accident, that the columns were to have been enclosed in brick work, but that this only partly had been done, so that the brick wall was about ten feet short of two steel runway girders one on each side of the room, supporting a steel crane with a movable hoist which extended from one side of the room to the other, that the crane was worked by electricity, lifted fifteen tons, and itself weighed forty-eight tons, that it was furnished by the same contractor that made the steel work of the roof, that the crane was to be ready for use before the completion of the building, and that one of the uses to be made of it was in hoisting and moving various heavy articles needed to complete and equip the building, that the steel work was done, except some connecting pieces that could not be put in until the brick work was more complete, that the plaintiff's intestate was at work in the employ of a contractor doing the mason work, that the crane was not under the control of the plaintiff's employer and its operator was not in his employ. There was evidence that the crane was used to move stones for the engine foundations not a part of the work of that contractor, and in moving machinery and steam pipes not shown to be covered by any contract with an independent contractor, and the defendant offered no explanation as to how it happened that the crane which it had caused to be placed in position was used for these various purposes. Held, that the jury were warranted in finding that the accident was due in part to the operation of the crane before the steel work had been strengthened by the brick wall, that the crane was so operated by the defendant, and that this was negligence.
An action under St. 1898, c. 565, for the death of the plaintiff's intestate caused by the falling of the roof of an engine room, owned and to be operated by the defendant and then in process of construction, was tried at the same time with an action by the same plaintiff for the same death against the steel company which made the steel trusses of the roof that fell and also made the steel columns that failed to support the trusses. At the close of the plaintiff's evidence, the defendant owner elected to rest on the plaintiff's case and put in no evidence. The judge refused to order a verdict for the defendant owner, and also refused to allow him to go to the jury immediately and before the defendant steel company had put in its evidence in the other case, and the steel company proceeded to introduce evidence tending to show that it was not liable and to cast the liability on the owner. At the conclusion of the evidence, the arguments in both cases were made, and the judge submitted both cases to the jury, instructing them, that as against the defendant owner they could consider no evidence introduced after he rested his case. The jury found against the defendant owner. Held, that, the questions, whether the cases should be tried together, and at what stage of the trial the case of the resting defendant should be submitted to the jury, were within the discretion of the presiding judge, and that, if the defendant owner was prejudiced, his only remedy was by a motion for a new trial.
Where two cases were tried together and the judge left it to the jury to say whether certain plans had been introduced against both of the defendants or only against one of them, when probably he ought to have decided that question for himself, this will not sustain an exception, if it nowhere appears that the plans contained anything prejudicial to the objecting defendant.
HAMMOND, J.
The immediate cause of the fall of the roof was the "buckling" or bending of several steel columns at the easterly end of the northerly wall of the engine room. Although the evidence as to the cause of this bending was vague and rather unsatisfactory, still it would warrant a finding in accordance with the testimony of the only expert witness called by the plaintiff, that the bending was due in part to the jar and strain caused by the operation of the crane before the brick wall which was to encase and strengthen the steel columns had been carried to a sufficient height; and that the operation of the crane under the circumstances was a negligent act.
At the trial it was contended by the defendant that, even if this was true, still the evidence failed to show that the crane was operated by the defendant or by any one for whose acts it was answerable, the ground of the contention being that the work upon the building was all being done under independent contractors over whom the defendant had no control. And the real question on this part of the case is whether or not the evidence was sufficient to warrant a finding that the crane was operated by the defendant.
The land was owned by the defendant and the building was being erected thereon by its procurement, and when completed was to be used by the defendant in its own business. In the absence of any explanation of the relation between the actual workers upon the building and the defendant, these facts of themselves would justify a finding that they were its agents and servants. It appeared however that there were several independent contractors upon the work, the Pennsylvania Steel Company, which had a contract covering the crane and all the other steel work; Whidden, by whom all the brick and mason work was to be done; and perhaps McIntosh, who put on the terra cotta and other roof material. It further appeared that the engine foundation stones were to be furnished by the Cape Ann Granite Company and set by Whidden, but the nature of the contract with the Cape Ann company did not directly further appear. There was no evidence of any other independent contractors.
The crane was in position, and on several days before the accident was operated "for moving or hoisting foundation stones, machinery, big steam pipes, flagging and things connected with the engine, . . . but it did not appear under whose direction or control it was operated on any of these occasions unless it can be inferred from the evidence stated" in the bill of exceptions. "It did appear, however, that the crane was in no way under the control of Whidden, and that the operator of the crane was not in [his] employ."
Whidden testified that during the time the crane was thus in operation "the stone on one of the engine foundations had been set, and one stone on the second foundation . . .; that is, one whole foundation had been set and part of another." He also testified that the stones were brought into the building by the "granite man," who furnished them; and when asked what means were used for bringing the stones into the building and putting them into position where he could set them replied: "They were unloaded from the team by the crane." He further said that he could not tell whether or not the foundation stones which were thus laid before the accident were brought into the building and handled again before the crane was operated. Upon being shown the photograph of the date of July 18, he said that it appeared to him from the photograph "as if there were some of those stones piled down at the base of one of the engine foundations, and that one of the stones there was large enough to be the main foundation stone." It is clear that the jury might properly have concluded that this crane was used to move stones for the engine foundations, and that that work was a part of the contract neither with Whidden nor the granite company. There is nothing to show that the work done by the crane in hoisting or moving the machinery and steam pipes is covered by any contract with an independent contractor. It is to be noted also, and the fact is admitted by the defendant on its brief, that the crane was to be ready for use before the completion of the building; and it is a fair inference that one of the uses to be made of it was the hoisting and moving of various heavy articles needed to complete and equip the building. It is further to be noted that the defendant declined to offer any explanation as to how it happened that the crane which it had caused to be placed in position was used for these various purposes.
In view of the ownership of the land and building, the purpose for which the latter was being constructed, the provision in the contract between the defendant and the Pennsylvania Steel Company that the crane should be ready some time before even the completion of the steel work, the work to which the crane was put, the fact that the work does not appear to have been covered by any agreement with an independent contractor, and the entire lack of any explanation of the defendant or any offer of evidence whatever on its part to clear up the matter, it is clear that the jury would be warranted in finding that the crane was operated by the defendant, its agents and servants. The first and fifth requests, therefore, were rightly refused.
The jury were instructed that the fall of the roof was not evidence of negligence on the part of the defendant. Whether it was evidence of neglect on the part of the steel company was not material to the case against the defendant.
The case against the defendant and the case against the steel company, which were pending at the same time, arose out of the same accident and were for the same injury. The evidence in each case was very largely the same, and it was within the discretion of the court to order that they be tried together. It was within the discretion of the judge at what time to submit each case to the jury, and we see no error of law in the course taken by the presiding judge. If the course taken was prejudicial to the defendant, the remedy is by motion for a new trial in that court.
Although the evidence as to the connection of Mr. Ball with the work is slight, still we see no error in the way in which the judge dealt with the requests as to his connection with the work.
The presiding judge seems to have left to the jury the question whether certain plans had during the trial been admitted in the case against the defendant, or only in the case against the Pennsylvania Steel Company. Assuming that he should have decided that question for himself, it nowhere appears in the bill of exceptions whether they contained anything prejudicial to the defendant, and hence we cannot see how it was harmed by this method of dealing with the matter.
While the judge declined to give the eleventh request in terms, still, so far as respects the purlines to be placed upon the easterly end of the building, the error, if any there was, seems to have been corrected in the colloquy between him and counsel for the defendant at the close of the charge, and the defendant has no ground for complaint as to this request.
The definition of gross negligence given at the end of the charge was sufficiently favorable to the defendant.
The charge was full and correct, and the case was properly left to the jury under instructions sufficiently favorable to the defendant.
Exceptions overruled.