Blaisdell v. Blake, 535
| Decision Date | 06 February 1940 |
| Docket Number | No. 535,535 |
| Citation | 11 A.2d 215 |
| Parties | BLAISDELL v. BLAKE. |
| Court | Vermont Supreme Court |
Exceptions from Franklin County Court; Orrin B. Hughes, Judge.
Action in tort for personal injuries by Manley Blaisdell against Dean P. Blake. Verdict and judgment for plaintiff. On defendant's exceptions.
Judgment reversed, and cause remanded.
Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.
Sylvester & Ready, of St. Albans, for plaintiff.
F. S. Bedard, Jr., and P. C. Warner, both of St. Albans (M. G. Leary, of Burlington, of counsel), for defendant.
This is an action in tort for negligence in failing to provide the plaintiff, a servant of the defendant, with a safe place in which to work, and in starting an unguarded circular saw without warning to the plaintiff when the latter, by direction of the defendant, was working so near the saw that putting it in motion endangered his life and limb. The accident occurred on September 21, 1937, in the yard of defendant's home farm in Fairfax. Defendant, plaintiff and another employee were engaged in relocating and setting up a wood sawing rig which consisted of a wooden frame and table across the top of which there was an arbor or shaft with a circular saw mounted at one end and a pulley at the other. A tractor furnished power to the saw by means of a belt running from a pulley on the tractor to the pulley on the saw rig.
The saw rig had been moved to the desired location and staked down and the belt placed over both pulleys. It was then necessary to get the tractor in such position that the two pulleys would be the proper distance apart and in proper alinement. After this had been accomplished by such moving of the tractor back and forth as might be necessary the tractor had to be made stationary by setting the brakes or blocking the wheels. Whether the process of alinement and setting the brakes or blocking the wheels had been completed when the accident occurred is in dispute, but it is undisputed that the plaintiff, when injured, had taken a position near the saw in order to direct the movement of a truck which was backing toward the saw to receive a load of sawed wood. While the plaintiff was signaling the driver of the truck with his left arm and hand the arm came in contact with the saw and the injury of which he complains was inflicted. The defendant operated the tractor during the process of alinement from the seat thereon where he was still seated when the plaintiff was injured. Trial was by jury with verdict and judgment for the plaintiff and the case comes here on the defendant's exceptions.
The defendant excepted to the denial of his motion for a directed verdict and to the denial of his motion to set aside the verdict. The grounds upon which he relies in support of both motions are that the evidence, viewed in the light most favorable to the plaintiff, showed that the plaintiff assumed the risk, and failed to show that he was not guilty of contributory negligence.
An extraordinary risk existing by the fault of the defendant is not assumed by the plaintiff unless he knows and comprehends it, or it is so plainly observable that he will be taken to have known and comprehended it; then, in either case, he cannot recover. Dunbar v. Central V. Ry. Co., 79 Vt. 474, 476, 65 A. 528; Dumas v. Stone, 65 Vt. 442, 25 A. 1097. Hence, want of such knowledge and comprehension is an essential element of the plaintiff's case, and consequently the burden is on him to negative them, otherwise he would be taken to have assumed the risk and could not recover. Dunbar v. Central V. Ry. Co., supra.; McDuffee's Adm'x v. Boston & M. R. R. Co., 81 Vt. 52, 69, 69 A. 124, 130 Am.St.Rep. 1019; Barney's Adm'x v. Quaker Oats Co., 85 Vt. 372, 382, 82 A. 113. Plaintiff's evidence tended to show that he was directed by the defendant to stand in the exact place where he was standing when hurt; that when he took that position the process of alinement had been completed and the saw was not running and was not put in motion until the moment of his injury; that while the plaintiff was standing with his back to the saw and with his arm raised to signal, the defendant started the saw without warning to the plaintiff and caught his upraised arm, inflicting injury. From the evidence the jury could find that the risk was an extraordinary one, existing by the fault of the defendant, and that it was not assumed by the plaintiff because he did not know and comprehend it and it was not so obvious that he will be taken to have known and comprehended it.
The burden of proving freedom from contributory negligence was, of course, on the plaintiff, but it was not necessary that the plaintiff should introduce evidence distinctly directed to that matter. The requisite inferences might be drawn from evidence of a more general character. Ryder v. Vermont Last Block Co., 91 Vt 158, 166, 99 A. 733; Higgins Adm'r v. Metzger, 101 Vt. 285, 294, 143 A. 394. From what has been said it is apparent that, with the evidence standing as it did, the jury was not precluded from finding that the plaintiff was not guilty of negligence which contributed proximately to cause the injury. There was no error in the denial of these motions.
The defendant excepted to the denial of his motion in arrest of judgment, briefing only the claim that the motion should have been granted because the declaration alleged a relationship of master and servant between the parties to the cause and failed to allege nonassumption of the risk. But the plaintiff by an amendment to his declaration alleged that he "had no knowledge or warning that said saw was to be put in motion while he, the said plaintiff occupied the position in close proximity of said saw, which position he had assumed at the direction of the defendant, and had no knowledge that said saw was to be put in motion by the said defendant until he, the said plaintiff, had removed from...
To continue reading
Request your trial