DocketNumber： Action on the Case No. 96
Citation Numbers： 19 Del. 423
Judges： Lore, Spruance
Filed Date： 12/13/1901
Status： Precedential
Modified Date： 7/20/2022
We think that question is admissible.
Q,. Was your attention ever directed to any rules of the company (that is the. Brandywine Granite Company) governing the operation of its quarries ?
(Objected to upon two grounds: first as to form, and second that it is immaterial whether the defendant company had any rules posted up or not; that the count in the narr alleging lack of rules was accepted by defendant’s counsel simply as an averment of lack of notice of a particular peril that led up to the injury; that the question is, did this man get notice of the peril out of which the injury grew.)
Mr. Whiteman, of counsel for plaintiff, contended that such testimony was perfectly proper, and had been so clearly laid down by repeated decisions of Delaware courts, citing Rex vs. Pullman Palace Car Company, 2 Marvel, 337, and Murphy vs. Hughes Brothers & Bangs, 1 Pennewill, 250.
Speuance, J.:—We have a great many decisions upon that subject. It was passed upon in the case of Wheatley vs. P., W. & B. R. R., 1 Marvel, 305, to this extent, that among the duties of the master, as summed up by the Court, we find the following: “And it may be he should make and promulgate rules for the government of his establishment whenever it is so large or complicated as to make his personal supervision impracticable.”
(Question withdrawn.)
Q. Was or was not your attention ever directed to any rules of this company governing the conduct of its business ?
(Objected to.)
Speüance, J.:—We think this question is admissible in the present form.
Q. Did you, or did you not, ever see any rules furnished by the defendant company in the Italian language ?
(Objected to.)
Spruance, J.:—The objection is overruled. We hold that the question is a proper one.
Q. Did the Brandywine Granite Company ever furnish any rules of any kind in any way governing its employees in the conduct of its business ?
(Objected to on the same grounds as before stated, and further for the reason that supposing the plaintiff was injured notwithstanding the rules and in spite of any violation of them, there is no evidence that he was injured by reason of the violation of any rules whatever, and, therefore, it is not pertinent as the case stands.)
(Objection overruled.)
Q. What particular work were you employed by the defendant company to perform ?
A. When first I went to work for the Brandywine Granite Company I worked as a laborer; ran a crushing machine; after-wards I was put in the quarry to split stones with a sledge.
(Form of question objected to and objection sustained.)
Q,. Was or was it not anything that came from the blast that injured you?
(Objected to as suggestive.)
Spruance, J.:—We think the question is a proper one.
Q. Have or have not you been able to see anything since you were hurt on the day of that explosion?
(Objected to and objection overruled.)
Q. What person or company was operating those quarries at the time you were injured?
(Objected to, unless ground is laid for witness’ knowledge; also as leading. Objection overruled.)
On cross-examination the plaintiff was asked, among others, the following questions:
Q,. When you were in the office of Mr. Peter L. Cooper, in the Ford Building in this city, in the early spring of this year, did not Mr. Cooper ask you who told you to work with Caparello on the day you were hurt?
A. The lawyer asked me who sent me to work with Caparello.
Q. Did you not answer Mr. Cooper, in the presence of Louiga Di Mayo, at the time and place mentioned, by saying, “ Caparello told me,” or words to that effect?
(Objected to on the ground that this was an interview between the plaintiff and Mr. Cooper, who was then his counsel, and was protected as a privileged communication.)
Antonio Parillo, a witness on behalf of plaintiff, was asked by Mr. Whiteman the following question:
Q. Were or were not you ever told to fire off a small blast by Caparello when you were both employed by the Brandywine Granite Company, and Caparello shot off a large blast, close to you, without giving you notice?
Mr. Smithers:—I object. In the first place, it is a historical narrative suggested to the witness in the way of a question; second, it- is pursuing the same line that we announced some time ago that we were against, and we have been taking exceptions along that line ever since.
Grubb, J.:—You mean, undertaking to show incompetency by particular instances?
Mr. Smithers:—Yes, sir; without showing similarity between the two situations. And it is leading.
Spruance, J.:—The objection is sustained. The question is overruled.
Franeiseo Pi Prisco, another witness on behalf of plaintiff, was asked the following questions:
Q. Did you ever know Caparello to get hurt any times before the time he was killed, when blasting for the Brandywine Granite Company?
(Objected to by Mr. Smithers on the same ground as before stated, being in the same line as pursued before.)
(Mr. Whiteman cites Bailey on Master and Servant, Section 1506.)
Sprtjajvoe, J.:—That does not sustain your position. The allegation there was, negligence in turning a switch, and it seems to have been admitted that it was an improper turning of the switch. The parties were allowed to give evidence of the improper turning of the switch by the employee on former occasions, or other similar wrongful acts. But the Court did not allow them to give evidence without regard to the cause "on former occasions when he was present.
Your question would be wholly immaterial unless it is to be followed by proof that the explosions referred to in the question were occasioned by Caparello’s incompetency or negligence.
Do you undertake to, or believe that you can make that proof? Of course you might be mistaken, but do you believe it?
Mr. Whiteman:—Yes, sir; I will undertake to do that. I say in good faith that I believe that I can do it, and if it is not done I agree that it shall be stricken out.
Spruance, J.:—You will undertake to prove that this accident to which your question refers, was occasioned by the negligence or carelessness or incompetency of Caparello, and to bring that knowledge home in the proper and lawful manner to the defendant company?
Mr. Whiteman;—I will undertake to do that, and if I do not succeed I will ask to have it stricken out.
Spruahce, J.:—The question under this statement of Mr. Whiteman is admitted.
Q. How did he upon those occasions get hurt ?
(Objected to because the question presupposes that this witness is able to tell the Court and jury the physical condition, and has sufficient expert knowledge to draw an inference for the benefit of the Court and jury.)
Spruance, J.:—We are asking about the facts. He may have been present and seen the whole thing. We think the question is a proper one.
Q,. Do you know the general reputation—that is, what people living and working around John Caparello said of him—as a competent, careful, painstaking blaster. Answer the question, yes or no.
(Objected to. Objection overruled.)
Salvatori Verderame, one of plaintiff’s witnesses, was produced and was allowed to testify, against the objection of defendant’s counsel, as to three accidents that happened to Caparello while blasting; the third one being the one in which he lost his life and which resulted in the injuries in question to the plaintiff. The witness was then asked by Mr. Whiteman the following questions:
Q,. Did you know the general reputation of John Caparello; that is, what the people about him said with respect to his being a capable, careful and trustworthy blaster ? Answer yes or no.
(Objected to. Objection overruled and question allowed.)
A. Yes, sir.
Q. What was that general reputation ?
A. The last time he got hurt, and after he was put back to work again in the same capacity, all the people were afraid and were saying also that some day he would kill somebody there.
Q. Did you ever see men about the quarry refuse to go to assist Caparello in blasting when he would ask them?
(Objected to.)
Spruance, J.:—The objective point, of course, in all these questions, is to prove Caparello’s want of skill, knowledge, care, etc., and we have already decided that that may be proved by individual instances of carelessness or by general reputation of carelessness or want of skillfulness.
This witness has testified as to three instances under his personal observation, which he has undertaken to describe which— the other side claim—tend to show carelessness in those particular instances. He has followed that up by testimony of this witness as to the general reputation of Caparello for carelessness and want of skill.
Now, he asks the question, “ Did you every see men about that quarry refuse to go to assist Caparello in blasting when he would ask them ?” He says if he gets an affirmative answer to that question he will follow that up by proof that these men refused to go for the reason that they were afraid to work with Caparello on account of his unskillfulness or carelessness.
■ Mr. Smithers:—He testifies instead of the man himself on that subject.
Spruance, J.:—He further promises that he will show not only the fact of the refusal, but the reason of the refusal, and further he promises to show us that that was brought to the knowledge of this defendant company through its authorized agents, and that notwithstanding, those men were ordered to go with Caparello.
In the opinion of the majority of the Court, it is an eminently proper question and is admitted.