Bunnell v. Berlin Iron Bridge Co.

Hamersley, J. The only reasons of appeal assigned in this case, are the alleged errors of the court in overruling the claims set forth in the finding as made by the defendant upon the facts found. The main grievance of the defendant is the action of the court in overruling his general claim, that upon the facts found “the injuries to the plaintiff did not result from his negligence, and that the negligence of the plaintiff contributed to said injuries.” The defendant was engaged in erecting the iron framework and roof trusses (weighing six tons each) used in a building at the corner of two highways, River street and Ferry street. The apparatus used for raising the trusses consisted of two gin-poles or derricks, 8X52 inches thick and 56 feet in length, with their appropriate appliances'. A truss, which had been raised some twenty feet or more, fell to the ground; the gin-poles parted, the one standing next to Ferry street fell towards the highway, carrying with it the iron framework of the side of the building facing Ferry street; the defendant being in the highway was struck by the framework and injured. The court below found that the falling of the gin-pole and iron framework, was caused by the negligence of the defendant’s servants; and that the plaintiff was in the exercise of due care and contributed in nowise to his injuries. This finding of negligence is a conclusion of fact from the — 33 — evidential facts found, as well as from all the evidence. The question of negligence shown hy the record to have been presented to the court below, clearly depends upon the conduct of the parties under the special circumstances of the case. Did the parties act as men of ordinary prudence would act under like circumstances? “ In cases involving the question of negligence, where the general rule of Conduct is alone applicable, where the facts found are of such a nature that the trier must, as it were, put himself in the place of the parties, and must exercise a sound discretion based upon his experience, not only upon the question what did the parties do or omit under the circumstances, hut upon the further question, what would a prudent, reasonable man have done under those circumstances, and especially where the facts and circumstances are of such a nature that honest, fair-minded, capable men might come to different conclusions upon the latter question, the inference or conclusion of negligence is one to be drawn by the trier, and not by the court as matter of law.” Farrell v. Waberbury Horse R. Co., 60 Conn., 267. The defendant, however, claims that the trial judge, in reaching his conclusion, required of the defendant something which the law does not require of him. The judge finds that the defendant was guilty of negligence in not making an examination of the apparatus after the falling of the truss and before the falling of the gin-pole ; the defendant claims it was not his duty to make such examination, and therefore his failure to do so cannot supp'ort negligence. The only duty involved is the duty to take such precautions in the special emergencies of this case as a man of ordinary prudence should take. The standard of such duty is not the same under all circumstances, so that it can he applied as a matter of law-by the court to the facts found. There is no statute or rule of law defining the duty of a builder under the circumstances found by the court. The duty imposed upon the defendant is one whose measure must vary according to the circumstances presented in each case. “The standard then is that of a reasonable man ; what would a — 34 — reasonable man of ordinary prudence have done under the circumstances as they existed in this case ? In these instances both the measure of duty and the extent of performance must be ascertained as facts.” O’Neil v. Town of South Windsor, 63 Conn., 154. The case under discussion involves the duty of the defendant to take a precaution the necessity of which depends on conditions peculiar to an exceptional emergence', in its nature insusceptible of reproduction, i. e. on the precise circumstances existing in this case, and is therefore clearly distinguishable from cases where the precaution which the defendant fails to take is one required at all times by circumstances not peculiar to a single transaction, but continuing or constantly recurring in the same form; the question how far the duty of taking the precaution called for in such cases may be a conclusion of law-is not now involved. The principle as stated in the cases above cited, is supported by many decisions of this court, and must control the present case. The conclusion of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, was one to be drawn by the trier as a matter of fact, and not by the court as a matter of law. The other claims made by the defendant and overruled by the court, as set forth in the finding, purport to raise questions of law, but they are largely repetitions in detail of the general claim, and are substantially disposed of by the finding of faets. The first claim is that the “ accident resulting from the fall of the gin-pole, as proved, was not set up in the complaint, and therefore the plaintiff could recover only nominal damages.” It seems to us very clear that the allegations of the complaint are broad enough to cover the transaction as proved. In brief, it alleges that the defendant was engaged in hoisting sundry iron trusses and placing them on the building, using for that purpose sundry derricks and other hoisting apparatus ; that by reason of the careless and negligent manner in which the servants of the defendant performed that work, the apparatus broke while one of said — 35 — trusses was being hoisted, and one of said derricks fell against said building, thereby causing a large body of iron to fall into the highway where the plaintiff was, so as to strike and injure the plaintiff. The proof is within these allegations. The work of caring for the apparatus when endangered by the fall of a truss to the ground, was as much a part of the work of hoisting sundry iron trusses as the work of caring for the apparatus when strained by the weight of a truss hanging in the air; the negligence of the defendant consisted in the negligent manner in which his servants performed that work. The charge of negligence in the complaint covers the conduct of the defendant’s servants in the use of their appliances during the whole transaction from the first lifting of the truss mentioned, to the falling of the gin-pole and framework which caused the injury to the plaintiff. Nor is there any ground for the defendant’s claim made in argument, that because the particular acts of the defendant’s workmen which constituted the “ careless and negligent manner” in which they performed the work mentioned, were not specified in the complaint, the allegation of negligence must be held to be merely an allegation of a conclusion of law. Such particularity is not ordinarily necessary — especially when the want of particularity is not objected to by appropriate pleading — and is rarely employed. The complaint substantially alleges that the defendant so carelessly and negligently managed the apparatus described in the performance of the work described, that the derrick fell against the iron framework, causing that to fall and injure the plaintiff. This is in substance the sufficient and well established form for all such cases. Any want of clearness that may be claimed in its statement is a defect of form, and not of substance, and is cured by the judgment on default. The second claim, “ that since the apparatus was proper and the employees of Taylor competent, negligence could not be presumed from the mere falling of the gin-poles,” states a proposition of law not applicable to the facts as found. The court did not presume negligence from the mere falling of the gin-pole; and the judge in overruling in general the — 36 — claims of the defendant, containing this proposition which lie had no occasion to apply, did not rule as a matter of law that negligence could, be so presumed. The finding of negligence is based on facts proved by the evidence from which the court inferred actual negligence on the part of the defendant’s servants. The defendant criticises the process of reasoning used in the opinion of the court, and especially the inference of the judge by which he finds facts proved as to which no direct evidence was offered; but there was direct evidence from which such inference might be drawn. It is the right, and sometimes the duty, of the trier to infer what a man has actually done, from his conduct, beyond the positive testimony'- in a case. Union Bank v. Middlebrook, 33 Conn., 100; Dubuque v. Coman, 64 Conn., 479. Such inference is one of fact, and cannot present a question of law; at least where, as in this case, tiie inference is one which cannot be said to be palpably wrong. The third and fourth claims relate to the question of contributory negligence, and are fully disposed of by the finding of the court that the plaintiff in fact was in the exercise of due care at the time of the injury to him ; except the claim of law that because Ferry street was a highway little used, and at the time of the accident largely occupied by building material to be used in the construction of the adjoining building, the defendant in going upon the street assumed the risk of the accident; and this claim is not well founded. Every one has a right to use a public highway, however little it may be used by others. The defendant had a right to be in Ferry street either for the purpose of traveling or of satisfying his curiosity. But it is true that being there lawfully he might so act, in view of the condition of the street and all the circumstances, as to contribute to his injury by his own actual want of ordinary care. Whether he did so contribute or not is a question of fact, settled both by the general and particular findings of the court. The fifth claim, that the falling of the truss did not cause the accident, and that none of the acts of negligence claimed — 37 — by the,plaintiff caused the injuries, is disposed of by the finding and the discussion of the other claims. This action, so far as the original defendant is concerned, is undisposed of by the judgment against Taylor, and is still pending in the Superior Court. The question was mooted during argument whether the separate judgment against Taylor, under such circumstances, is a “final judgment” from which an appeal can be taken. In Finch v. Ives, 24 Conn., 387, and 28 id., 112, it was held that a judgment for costs upon a motion in error is such “final judgment,” although not disposing of the merits of the cause, and Ihe action is entered on the court docket for further proceedings. That case seems to establish the principle that a “ final judgment,” within the meaning of our statute of appeal, may include any judgment in its nature final and separable from any other-judgment that may be rendered in the action, although not finally disposing of the action. Independently however of such authority, we think the provisions of the Practice Act for including in one action parties defendant having separate and even antagonistic interests, and for authorizing the court by orders for separate trials and otherwise to protect their differing interests, clearly implies the possibility of a “ final judgment” as to one party, although the action continues in court for the disposition of the rights of other parties. There can be no question, therefore, of our jurisdiction of such an appeal as this; whether any defects exist in the manner of taking the appeal is a question not before us; if such defects exist they must.be considered as waived by the parties. The operation of these separate judgments in one action may raise questions of difficulty, and we call attention to the matter in order that this case may not be deemed an authority on such questions beyond the one question considered, viz: a separate judgment against one of several defendants may be a “final judgment ” from which an appeal may be taken in the proper manner, before final judgment is rendered as to all parties to the action. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred.