Ada Watterlund v. Alvah B. Billings And Jesse D. Billings

Decision Date06 January 1942
Citation23 A.2d 540,112 Vt. 256
CourtVermont Supreme Court

Special Term at Rutland, November, 1941.

Injury to Licensee.---1. Consideration of Evidence on Motion for Verdict.---2. Revocation of License.---3. Landowner's Duty to Person There with Permission.---4. Duty of Care to Person on Premises.---5. Employee's Duty to Person on Premises.---6. Due Care of Person on Premises.---7. Assumption of Risk Without Contractual Relation.---8. Principle of Assumption of Risk.---9. Application of Assumed Risk Doctrine.---10. Charge on all Points.---11. Enlarging Issues by Agreement.---12. Issue Raised Without Objection.---13. Assumption of Risk Through Due Care.---14. Assumption of Risk Not Charged by Contributory Negligence.---15. Danger in Standing in Doorway After Warning.---16. Anticipating Person's Presence on Premises.---17. Contradiction in Evidence Creating Jury Issue.

1. Upon consideration of a defendant's motion for a verdict the evidence must be considered in the most favorable light to the plaintiff, excluding the effect of modifying evidence.

2. Where a person is upon another's property with the owner's permission to be there from time to time to remove the person's belongings from the house which he formerly occupied, it can not be said as a matter of law that because some time has passed since the permission was given and a subsequent request that he should move as quickly as possible his right to be there had terminated.

3. The owner of premises is not bound to keep the premises safe for a person there as a trespasser or licensee nor to warn him of the dangerous condition of the premises, but owes him the duty of active care to protect him from injuries from force negligently brought to bear upon him.

4. If the owner of premises or his servants knew or ought to have known of the presence of a trespasser or licensee thereon, it is incumbent upon him to exercise reasonable care to avoid injury to such person.

5. Whether the employee of the owner of premises as a prudent man should give warning of the presence of a third party upon the premises to other workmen demolishing the building and throwing the debris from an upper window or whether other workmen under the circumstances should have taken steps to ascertain the third party's presence so that proper precautions against dropping things in his vicinity could have been taken are questions of fact.

6. Whether the conduct of a person in standing in a doorway near which employees of the owner of the building are throwing debris is in the exercise of reasonable care in standing there is a question of fact.

7. The doctrine of assumption of risk may apply where there is no contractual relation between the parties.

8. The doctrine of assumption of risk implies that the person against whom it is invoked has voluntarily, by the exercise of free will and intelligent choice, put himself in the way of a danger which he knew and comprehended or which was so obvious that he must be taken to have known and comprehended it.

9. Under the circumstances, it can not be said as a matter of law that a person has assumed the risk incident to standing in a doorway near which workmen were passing down boards.

10. A court is bound to charge upon every essential part of a case without request.

11. As a general rule cases are tried on the issues made by the pleadings but counsel may, by conduct or agreement, limit or enlarge such issues.

12. Though a question is not raised by the pleadings, an issue may be raised by presentation on trial of a motion for a verdict and argument to the jury without objection by the other party.

13. A person may voluntarily assume the risk of a known danger and bar recovery for injury to person or property, even though in the exercise of due care.

14. A proper charge on the law of contributory negligence is not sufficient if the evidence makes a case for the application of the doctrine of assumed risk.

15. Sufficient evidence to require submission of the question of knowledge of danger and assumption of risk to the jury appears when the evidence tends to show that boards were being passed or thrown out of a window near the doorway in which a person was standing, that he knew this that he was warned of the danger and remained there after warning although there was sufficient time to move to a place of safety before an injury was received.

16. No error appears in instructing the jury that under the circumstances it was the defendant's duty to use due care to anticipate another person's presence on the premises when there was evidence tending to show that defendant's servants knew or ought to have known of his presence.

17. A contradiction in evidence as to the giving of a warning and the timeliness thereof if given by employees of the owners of premises to a person known to be there creates an issue of fact.

TORT for personal injuries caused by employees of landowner. Trial by jury, March Term, 1941, Rutland County Court, Blackmer J., presiding. Verdict and judgment for the plaintiff. Exceptions by the defendants. The opinion states the case.

Judgment reversed and cause remanded.

Clayton H. Kinney and Philip B. Billings for defendants.

Asa S. Bloomer for plaintiff.



This is an action in tort to recover for personal injuries alleged to have been caused by the acts of the defendants' employees. The verdict and judgment were for the plaintiff and the cause is here on the defendants' exceptions.

The first of these concerns the denial of a motion for a directed verdict, made upon the grounds that the evidence failed to show actionable negligence on the part of either or both of the defendants, that it conclusively appeared that the plaintiff was contributorily negligent, and that she assumed the risk of injury.

Taking the evidence in the most favorable light for the plaintiff, and excluding the effect of modifying evidence, as we must when the question arises upon a defendant's motion for a verdict (Tinney v. Crosby, 112 Vt. 95, 101, 22 A.2d 145, 148), the material facts as the jury might have found them are these: The house belonging to the plaintiff's father, in which she and her husband lived, had been sold to the defendants on February 6, 1940, and at the time of the accident was being demolished to make room for the erection of a gasoline filling station. All of the household furniture had been removed from the upper floor and taken away from the premises, but on the lower floor there remained the plaintiff's piano, cook stove, a folding cot bed, several chairs and some kitchen utensils. With the permission of the defendants, who, at the time of the sale, had assured her that there was no hurry about her moving, although early in March they asked her to move as quickly as possible, the plaintiff had been sleeping and getting her meals at the house during a part of the time since it was sold and had been there every day to superintend the removal of the furniture. She stopped spending the nights there on April 20 and thereafter employed a watchman to remain on the premises to safeguard such property as remained therein. Her presence from day to day was known to the workmen employed by the defendants in tearing down the partitions and taking up the flooring on the upper floor. On the morning of April 23, she went to the house to prepare breakfast for the watchman and herself. Two employees of the defendants were throwing boards out of the window directly over the front door or passing them to two others, who were in the front yard to receive them. When the plaintiff entered she spoke to the men upstairs, and was answered. She discovered a quantity of plaster in the front hall and, in order to prevent injury to her piano, she closed the door leading from the hall to the room in which it was kept, and then went to the front door and asked Austin Taylor, one of the men in the yard, not to drop any boards upon two barberry bushes which she had permission from the defendants to remove. Taylor told her to look out as she might be hurt because the lumber was being passed out and she stopped where she was, inside the door with the casing of the door over her head where, as she said, she did not think that she would be hit. Just as she spoke a board was passed out which was too short for Taylor to reach. The man at the window dropped it and it fell, striking the plaintiff on her left foot, and causing a laceration of the flesh and a fracture of one of the metatarsal bones which resulted in a painful and incapacitating injury.

The defendants argue that the plaintiff was a trespasser, or at most a licensee with a standing no better than that of a trespasser, hence that they can be held liable only for a wilful or wanton injury, and that no act of that nature was shown to have been committed. As we have seen, the evidence tended to show that she was in the house by the permission of the defendants and it cannot be said as a matter of law, as the defendants insist, that because of the length of time that had passed since the permission was given and the subsequent request that she should move as quickly as possible, her right to be there had...

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