Carl Labor, B/N/F v. Don Carpenter,

• Decision Date: 05 February 1930
• Parties: CARL LABOR, b/n/f v. DON CARPENTER, ET AL
• Court: Vermont Supreme Court

148 A. 867

102 Vt. 418

CARL LABOR, b/n/f v. DON CARPENTER, ET AL

Supreme Court of Vermont

February 5, 1930

January Term, 1930.

County Courts---What Findings and Orders Are To Be Treated as Judicial Action of Court---G. L. 1601---Sufficiency of Evidence To Support Finding of Fact---Trial---Inference from Findings Made as Obviating Necessity of Express Finding---Presumptions---Statement of Conclusions from Full and Specific Facts Found.

1. Only findings and orders of a majority of members of county court who participate in trial have any force and effect, and these alone are to be treated as judicial action of court under G L. 1601.

2. Finding of fact by court must stand, if record discloses evidence which, upon any rational view, supports it.

3. In ACTION OF TORT to recover damages for personal injuries sustained through alleged negligent explosion of dynamite in public highway over which plaintiff was proceeding by automobile, evidence held sufficient to support court's finding that workman on road gave warning to plaintiff which latter failed to heed.

4. Where, from facts found and in support of judgment, there is a reasonable inference of a finding opposed to requests to find, such inference makes unnecessary, as matter of law, an express finding.

5. Supreme Court will presume in favor of judgment that court below inferred such facts from those certified up as it ought to have inferred, or as it fairly might have inferred, such presumption being strengthened in view of burden of proof being on plaintiff.

6. It was unnecessary for court to incorporate in its findings conclusions claimed from full and specific facts found as to relationship of defendants to each other, to a workman who warned plaintiff, and to work being done, at time of explosion of dynamite in public highway.

ACTION OF TORT to recover damages for personal injuries sustained through alleged negligent explosion of dynamite in public highway, over which plaintiff was proceeding by automobile. Plea, general issue. Trial by court at the September Term 1928, Orleans County, Willcox, J., presiding. Judgment for defendants. The plaintiff excepted. The opinion states the case. Affirmed.

Judgment affirmed.

Porter Witters & Longmore for the plaintiff.

Searles, Graves & Waterman for the defendant.

Present: POWERS, C. J., SLACK, MOULTON, and THOMPSON, JJ., and GRAHAM, Supr. J.

OPINION

GRAHAM

The action is for the recovery of damages for personal injuries sustained through the alleged negligent explosion of dynamite in the public highway, over which the plaintiff was proceeding by automobile.

Judgment was rendered by a majority of the court for all defendants on facts found by a majority of the court. A minority finding and judgment order was also signed and filed. It is only the findings and orders of a majority of the members of the court who participate in the trial which have any force and effect, and these alone are to be treated as the judicial action of the court. G. L. 1601; Leonard v. Willcox et al., 101 Vt. 195, 208, 142 A. 762; Saund v. Saund, 100 Vt. 176, 178, 136 A. 22; Thorworth v. Blanchard, 87 Vt. 38, 42, 87 A. 52, Ann. Cas. 1916A, 1226; Dwire v. Dwire, 86 Vt. 474, 86 A. 164; State v. Bradley, 67 Vt. 465, 475, 476, 32 A. 238. No claim is made otherwise in the briefs, but we deem it expedient to make this reference in order to clear the record of any possible uncertainty.

This case and the case of George Sheltra against these same defendants were by the trial court consolidated, tried together, and decided on a joint findings of fact. This accounts for the use of plurals when referring to the plaintiff in the herein quoted portions of the findings.

The case comes here on plaintiff's exceptions. The findings and the reporters transcript of the evidence are made a part of the exceptions. The exceptions briefed are to certain of the findings, to the failure of the court to find as requested, and to the judgment.

From the findings not excepted to it appears that defendant Carpenter was the foreman in charge of the widening and improving of an unselected highway leading from Barton to East Albany by virtue of an appointment made by the State highway department, and thereon was expending money which had been apportioned to the town of Barton to assist in the maintenance and improvement of its unselected highways. The accident took place on October 3, 1927, at about four o'clock in the afternoon.

The defendant Carpenter in prosecuting the work employed defendant Kilgarlen to do certain blasting, and furnished him with the necessary dynamite. He also employed defendant Conley to remove rocks and other obstructions from the highway. One Bullock was employed by Conley to drive one of his teams engaged in the work. Carpenter, as foreman of the job and by virtue of his appointment, had directed the extent of the improvement of the highway and the nature of the work to be done, including the giving of directions as to the use of dynamite. On the afternoon of the accident Carpenter was not present. Only defendants Kilgarlen and Conley were present and engaged in the work.

In order to remove some of the obstructions on the easterly side of the road two sticks of dynamite had been placed by Kilgarlen, and in order to warn the traveling public Kilgarlen sent Bullock up the road in the direction of East Albany, and from which direction the plaintiff was coming, and instructed him to warn the traveling public of the danger. Kilgarlen and Conley went in the opposite direction to warn travelers.

One charge of dynamite was set off by Conley and the other was set off by Kilgarlen. The charge set off by Conley exploded just as the automobile in which the plaintiff was riding was abreast of the place where the dynamite had been planted, causing the injuries complained of.

No signs indicating that road construction was going on or that dynamite was being used were placed along the highway, but the plaintiff knew that road construction was going on at the place of accident for he went over the road earlier the same day and saw some of the defendants there working. When Bullock went up the road, as directed by Kilgarlen, he had with him Conley's...