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

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, nor was it an incident of it. Fraser v. Red River Lumber Co., 45 Minn. 235;Burns v. Sennett Miller, 99 Cal. 363; Robinson v.Blake Mfg. Co., 143 Mass. 528; Richards v. Hayes,45 N.Y.S. 234; 2 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;Gerrish v. New Haven Ice Co., 63 id. 9, 16. This duty was a continuing one, and included that of maintenance.Hough v. Railway Co., 100 U.S. 213; Shanny v. AndroscogginMills, 66 Me. 420; Ford v. Fitchburg R. Co., 110 Mass. 240;Tierney v. Minneapolis St. L. Ry. Co., 33 Minn. 311; IndianaCar Co. v. Parker, 100 Ind. 181; Moore v. Wabash,St. L. P. Ry. Co., 85 Mo. 588; Bailey v. Rome, W. O.R. Co. 139 N.Y. 302. The duty of maintenance necessarily involved that of reasonable inspection and repair. UnionPacific Ry. Co. v. Daniels, 152 U.S. 634; Tierney v. Minneapolis St. L. Ry. Co., 33 Minn. 311; Armour v. Brazeau,191 Ill. 117; Comben v. Belleville Stone Co., 59 N.J.L. 226;Munch v. Great Northern Ry. Co., 75 Minn. 61; LouisvilleE. St. L. C. R. Co. v. Utz, 133 Ind. 265; Richmond D.R. Co. v. Burnett, 88 Va. 538.

The defendant says that the cause of the accident was the failure to insert thimbles in the loops made in splicing the cable, and argues therefrom that as their absence was due to the failure of Toole, the superintendent, to insert them, and as the defendant had provided sufficient thimbles to be used when needed, it had not failed in its duty as master, and the intestate's injuries were the consequence of the negligence of Toole in respect to his service as the intestate's fellow-servant.

This contention is unsound in both its premise and the conclusions drawn therefrom. It is enough for our present purpose to pursue at length the first of these dual propositions. In thus limiting our discussion, however, we do not wish our silence to imply our assent to the legal principle which, in so far at least as maintenance and repair is concerned, is vigorously urged upon us, to wit: that a master upon whom rests the duty of using reasonable care to provide and maintain for the use of his servants in their work reasonably safe mechanical instrumentalities may perform that duty by furnishing to a fit and competent agent the materials or parts out of or by means of which the instrumentality as a working entity can be either created or maintained, and that for the shortcomings of the agent in his utilization or failure to utilize this material or these parts the master assumes no responsibility. In so far as the defendant's contention assumes that there is a difference as respects the master's duty between construction and maintenance, it is without foundation. To whatever extent the contention is carried it also involves principles which have had the repeated disapproval of this court. The master's duty requires performance. It may be performed in person or by one delegated to that end. In either event the thing required must be done. Delegation to a fit and competent agent is not sufficient. Wilson v. Willimantic Linen Co.,50 Conn. 433; McElligott v. Randolph, 61 id. 157; Gerrish v. New Haven Ice Co., 63 id. 9, 16.

Let us return now to the defendant's premise that the proximate cause of the injury complained of was the superintendent's failure to place thimbles in the loops of the splice. It is doubtless true that had thimbles been inserted in making the splice the cables would not by use have become so worn and defective at the points of tension that they would have parted when they did. To this extent the failure to insert the thimbles was without doubt the cause — but the remote one — of the accident. The proximate cause, however, was the worn and defective condition into which the cables had been suffered to lapse by being used for a considerable period of time without such repair or replacement as was necessary in view of the way in which the splice was made, to maintain the requisite condition of strength. The cable as spliced was not able to stand as great a strain as one spliced with thimbles; but it does not appear that without them it was not originally sufficiently strong to do the work required of it. Its original strength became dissipated as the consequence of wear and tear and a failure in the duty of maintenance. The worn and weakened condition which resulted may not have been known to the defendant or its superintendent, and apparently was not, as it is found that no inspection was made; but that is of no legal consequence, since it is found that it was so apparent that an inspection would have revealed it. In other words, the failure which was the true proximate cause of the parting of the cable, and thus of the intestate's injuries, was one in the master's duty of reasonable inspection. The manner of the splice was known, for Toole made it; the consequences thereon of wear were palpable, and therefore such as the defendant and Toole were bound to anticipate. The duty of inspection was one to be exercised in the light of these conditions. The facts, therefore, disclose a clear failure on the part of the defendant as master in the performance of its duty towards the intestate.

If it be suggested that the cable was by the manner of the splice inherently weak and thus defective, the master is not thereby exonerated. In that event, his failure in the duty of using reasonable care to provide reasonably safe instrumentalities only assumes a slightly different aspect; but it is the same duty. The duty of the master is the same in its essence whether it, in a given case, assumes the immediate form of original provision, maintenance, or inspection as an incident of maintenance. All are involved in the general duty of provision, which, as we have seen, is a continuing one and an unchanging one.

Three rulings upon the admission of evidence are assigned as erroneous. Only one is pursued in the brief. The intestate's widow being upon the stand, the court permitted the plaintiff to ask her the age of his parents at their death, as bearing upon his health and constitution. Her reply was seventy-eight and seventy years, respectively. Rulings of this character, where the vice, if any, in the evidence offered, is remoteness, can seldom be of sufficient consequence to warrant the granting of a new trial. Much must be left to the discretion of the court. State v. Kelly, 77 Conn. 266. This ruling furnishes no exception to the general rule.

None of the corrections which the defendant claims should be made in the finding assume any importance in view of our conclusions.

There is no error.

In this opinion the other judges concurred.