109 A. 854 (Vt. 1920), Irving E. Coburn v. Village of Swanton

Citation:109 A. 854, 94 Vt. 168
Opinion Judge:SLACK
Attorney:D. W. Steele and Elmer Johnson for the plaintiff. F. L. Webster and D. G. Furman for the defendant.
Judge Panel:Present: WATSON, C. J., POWERS, TAYLOR, MILES, and SLACK, JJ.
Case Date:March 16, 1920
Court:Supreme Court of Vermont

Page 854

109 A. 854 (Vt. 1920)

94 Vt. 168




Supreme Court of Vermont

March 16, 1920

November Term, 1919.

ACTION OF TORT to recover for personal injuries. Heard on defendant's demurrer to the declaration in vacation after the March Term, 1919, Franklin County, Wilson, J., presiding. Demurrer sustained, declaration adjudged insufficient, and judgment for the defendant. The plaintiff excepted. The opinion states the case.

The judgment dismissing the action is reversed. In other respects the same is affirmed, and cause remanded with leave to apply.

D. W. Steele and Elmer Johnson for the plaintiff.

F. L. Webster and D. G. Furman for the defendant.




Page 855

[94 Vt. 169] This is an action of tort to recover for personal injuries sustained by Irving E. Coburn, a boy twelve years of age.

The case is here on exceptions to the action of the trial court in sustaining the demurrer to the declaration.

The allegations in the declaration, material to our inquiry, are, in substance: That the defendant, at the time of the accident, and for a long time before, owned and operated an electric power plant where it generated, and distributed to the public, electricity; that the plant consisted of a power house wherein were located a large dynamo, machinery, and other appliances, for use in that business; that the public had been admitted to the plant and power house during all this time, without restriction, for the purpose of viewing the place, examining the machinery, etc., with the knowledge and consent of the defendant; that the plant was operated continuously night and day, and was in charge, principally, of three men, only one of whom, as a rule, was on duty at a time, and when alone such employee had full charge of the plant. Then follows a description of the location and purpose of the dynamo and transmission wires, and a description of the defect which it is alleged caused the injury, viz., defective insulation of an unprotected transmission wire, and an allegation that the defendant knew or ought to have known of this condition, and that the plaintiff had no knowledge thereof. It is then alleged that at the time of the injury one Barr, who had been in the employ of the defendant for several years, was working the night shift, the period of which kept him on duty [94 Vt. 170] the following morning until after his breakfast hour; that while on the night shift Barr worked alone, was the only employee of the defendant at the plant, and had full charge and supervision thereof, with full authority from the defendant to invite and admit people, including the plaintiff, to the power house, and to exclude them therefrom; that about three months before the accident Barr hired the plaintiff to carry Barr's breakfast to him, each morning while he was working the night shift, and deliver the same within the power house; that pursuant to such engagement, and upon the special request and invitation of Barr, the plaintiff carried Barr's breakfast each morning from the time the plaintiff was so engaged down to and including the morning of his injury and delivered it within the power house according to the request and direction of Barr; that Barr's practice of inviting the plaintiff to the premises and within the power house as aforesaid was known, or ought to have been known, to the...

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