Julian v. Stony Creek Red Granite Co.

TTatt., J. The defects in the complaint at the time the defendant’s demurrer was filed, were cured by an amendment made before the overruling of the demurrer. There was no error in the ruling that the complaint was sufficient after such amendment. The finding of the court states that “ the accident to the plaintiff was caused by the lifting or displacement of the clutch or pawl in such a way as to allow the gearing to slip so that the arm of the derrick just after the lowering of the stone fell and struck the plaintiff ”; that the purpose of the clutch was to prevent the gear from the shaft to the drum of the derrick from slipping out of connection, and that the clutch had no weight attached to it and was broken and liable to get out of place unless great care was taken in superintending the operation of the derrick. It appears that the plaintiff knew of the defective condition of the derrick, but the court finds that he did not know or anticipate that there was any danger that the arm would fall after the stone had reached the ground and the derrick was no longer in operation, and that, though familiar from observation with the usual operations of derricks, he had a right to presume after the stone had been deposited in its place that it was safe for him to return to his work, and that he was in the exercise of ordinary care. This is a hearing in damages and the burden rests upon the defendant to go forward with proof that the injury was not caused by defendant’s negligence, and that the plaintiff was guilty of contributory negligence. The defendant has wholly failed to prove these facts. On the contrary, the finding shows that the cause of the accident was the negligence of the defendant in permitting the machinery of the derrick to remain in such a defective condition and so out of repair that the arm of the derrick was liable to fall upon the stone-cutters who were required to work under it. The rule o' law making it the duty of the master to exercise reasonable [638] care to provide for his servant a reasonably safe place in which to work, was clearly violated. The fact that the plaintiff knew of the defective condition of the derrick does not necessarily render him guilty of contributory negligence; and especially since it appears that his knowledge respecting the condition of the derrick and its machinery was not such as to apprise him of any danger in working under it after the stone had been lowered to the ground. Smithwick v. Hall & Upson Co., 59 Conn. 261, 268. The finding does not show that the accident was the result of the carelessness of a fellow-workman in the management of the derrick. It would seem from the record that the derrick was not being operated at the time the arm fell. The act of negligence described in the finding as the cause of the injury, as we have stated, was the failure of the master to perform its duty. The fact sought to be proved by the question asked the plaintiff: “ Were you in a position so you could see whether he (an Italian laborer called Mike) operated (the derrick) or not?”, having been admitted by the defendant, the ruling of the court permitting the question cannot have harmed the defendant. But the fact that the question does not appear to have been answered is a sufficient reason for not considering this assignment of error. Assuming that the evidence certified to this court shows that it was an undisputed fact that the defendant exercised due care in the selection of the foreman to do the work entrusted to him, and that he was qualified for his occupation, and further assuming, as we think is the case, that whether or not the foreman Kittredge was a vice-principal is in this case a question of law to be determined by the facts found,— there is still no reason for correcting the record in these regards, as such changes, if made, could not affect the fact which is decisive of this case, namely, that the injury was caused by the defective condition of the derrick under which the plaintiff was working. The defendant is not entitled to the other corrections of the finding asked for. [639] The record in this case has been very unnecessarily extended by the failure of counsel to observe the rules clearly stated in the Act of 1897 in regard to the character and form of the several documents which may be filed by the appellant in the preparation of an appeal to this court. As a result of such irregular proceeding we have between six and seven pages of the testimony of one witness repeated four times in this record: first in the defendant’s request for a finding, again in the motion for correction, again in Exhibit B certified by the court, and again in the appeal. In only one of these instruments was it proper to set forth this evidence, namely, in Exhibit B. Under § 9 of the Act of 1897, the facts claimed to have been proven, and not the evidence by which such facts are claimed to have been proven, may be incorporated in the draft of the proposed finding. The finding and the proposed finding may, of course, contain such a statement of the questions to witnesses and their answers as is necessary to properly present the rulings of the court upon questions of evidence. As the statute requires the paragraphs both of the finding and of the proposed finding to be numbered, a motion to correct by adding certain paragraphs of the proposed finding, or by striking out certain paragraphs of the finding of the judge, should refer to such paragraphs by number, without repeating the language of the paragraphs, unless it becomes necessary to do so when only a part of a paragraph is referred to. Such repetition of a part of the language of a paragraph ought not often to be required, since each paragraph should contain “ as nearly as may be, a separate allegation.” One of the defendant’s reasons of appeal is as follows: “ The court erred in refusing to find as set forth in paragraphs 13 and 11 of the defendant’s request for a finding, to wit, in refusing to find as follows.” Then follows the language of these paragraphs including the six or seven pages of evidence before referred to, and the full benefit of which the defendant has already received by Exhibit B, certified by the court at the defendant’s request and made a part of the record. [640] When a party appeals from any finding of fact, or refusal to find any fact as requested, he should, under § 10 of the Act of 1897, assign as reasons of appeal the exceptions which under § 9 he has annexed to his motion to correct the finding, without repeating in his reasons of appeal the language of the paragraphs which it is desired to have added to or stricken from the finding. Section 9 provides a form of exception, in which the paragraphs of the finding or request for finding are referred to by number. The assignment of such exceptions or reasons of appeal should be made in the same manner; that is, the appellant should assign as a reason of appeal the finding of the court as stated in paragraph No. of the finding, or the refusal of the court to find as requested in paragraph No. of the appellant’s request for a finding. There is no error. In this opinion the other judges concurred.