Cross v. Passumpsic Fiber Leather Co.

• Decision Date: 10 October 1916
• Citation: 98 A. 1010
• Parties: CROSS v. PASSUMPSIC FIBER LEATHER CO.
• Court: Vermont Supreme Court

98 A. 1010

CROSS

v. PASSUMPSIC FIBER LEATHER CO.

Supreme Court of Vermont. St. Johnsbury.

Oct. 10, 1916.

[Copyrighted material omitted.]

Exceptions from Caledonia County Court; Frank L. Fish, Judge.

Action by William J. Cross against the Passumpsic Fiber Leather Company. There was judgment for plaintiff, and defendant excepts. Judgment reversed, and cause remanded for retrial on the question of liability only, with direction.

Argued before MUNSON, C. J., and WATSON, HASELTON, POWERS, and TAYLOR, JJ.

Porter, Witters & Harvey, of St. Johnsbury, for plaintiff. Harry Blodgett and Dunnett & Shields, all of St Johnsbury, for defendant.

POWERS, J. This plaintiff sues for injuries received while at work in the defendant's leather board mill at Passumpsic. In this mill the defendant maintained several drying rooms in which during the winter the stock was dried out. One of these rooms was in two sections, one of which was directly over the other. This room was known as "No. 1," and the lower section was sometimes called "lower No. 1," and the other "upper No. 1." It was necessary for the workmen engaged in this room to go from one section to the other with some frequency, and for this purpose an elevator was provided. This elevator was sometimes out of commission, and at such times the men could go from one section to the other by using a certain stairway and ladder, which for present purposes need not be further described.

At the time of the plaintiff's injury there had been installed and was in operation in lower No. 1 a large, rapidly revolving fan located near the southwest corner of the room. Prior to the installation of this fan, and at the time of the accident, there was a plank running in a northerly and southerly direction along and about two feet from the west wall of the room. This plank was nearly a foot wide and about ten feet long. It was so placed that the lower or southerly end was some two feet lower than the other end. It was supported on crosspieces at each end, and the lower end was fastened to the crosspiece by a spike driven through it nearly in the middle. This spike did not hold the plank firm, but allowed it to "play," as the upper end was tilted. At the upper end of the plank the crosspiece was on a slant, the easterly end of it being much lower than the other, and the plank was not fastened to it at all. The westerly edge of the plank rested on the crosspiece, but owing to the slant the easterly edge did not, and a little downward force exerted on the plank would cause the easterly edge to drop down an inch and a half, tilting it toward the revolving fan. On the upper side of the plank crosswise cleats were nailed, to make it easier for one to walk up or down on it. Before the fan was put in the plank was in common use by the workmen as a passway between the two sections of this dry room; there being an open space in the floor above its upper end through which they could pass. The fan was installed in October, 1912. At that time the floor of lower No. 1 was cut away to allow the edge of the fan to run below it, and this left the lower end of the plank inaccessible when the machinery was running. The opening in the upper floor was then boarded over, but the plank was not removed, and it could be and was used in connection with operating a steam valve near it. Later on, and before this accident, a trapdoor was cut in the floor between upper and lower No. 1, practically over the upper end of the plank.

Theodore Chase was the defendant's general manager; Charles Webster, its foreman in charge; and Leslie Thomas, boss of the dry rooms. Webster told the plaintiff to do whatever Thomas directed. Prior to the accident the plaintiff had seen the men go up and down through the trapdoor, and he had seen both Webster and Thomas do this. He knew all about the location of the fan, the plank, and the steam pipes, but he did not know that the plank was insecure and would tip when stepped on, and supposed it was safe. Webster knew that the men passed up and down through the trapdoor when the machinery was not running, and that there was nothing to prevent their doing so at other times; no order forbidding the use of the plank and trapdoor when the machinery was running had ever been given the men, and the defendant never inspected the plank or its supports. At the time of the accident the plaintiff was assisting Thomas, and in the course of the work it became necessary for them to go from the upper to the lower room. They tried the elevator, but it was not working. Thereupon Thomas directed the plaintiff to go down through the trapdoor. The plaintiff obeyed this order, and let himself down onto the plank, which tilted under his weight and threw him into the revolving fan. The injuries sued for resulted. There was no evidence that the defendant actually knew that the plank would tip as it did, and no direct evidence to show how long it had been in that condition.

Leslie Thomas was called as a witness by the plaintiff. He testified, in substance, that he had not seen workmen go up and down through the trapdoor. Thereupon plaintiff's counsel asked him if on a specified occasion he did not tell the examiner that he had seen the men make such use of the trapdoor. The defendant objected on the ground that this would amount to an attempt to impeach the plaintiff's own witness. The objection was overruled, and the defendant excepted. The witness answered that he might have told the examiner so, but, if he did, he did not understand the question then asked him.

The general rule is, as the defendant contends, that a party cannot impeach his own witness by showing that he has made previous statements at variance with his testimony; but if this witness was, in the opinion of the court, adverse, such statements could,' by leave of the court, be shown. P. S. 1597. When the contrary does not appear, this court, will, when necessary to support the ruling, assume that the trial court found the fact to be that the witness was hostile. Jewell v. Hoosac Tunnel & W. E. Co., 85 Vt. 64, 81 Atl. 238. But here the contrary does appear, for the transcript is referred to and made controlling, and from that it appears that the question of the witness' hostility was not referred to, and nothing appears to support a finding that the witness was adverse. On the contrary, he appears from the transcript to have been fair and frank. Though the objection made was specific, the ruling seems to have been grounded upon the assumption that it involved only the allowance of a leading question. The plaintiff insists that the answer given shows that the error did no harm, and cites Coolidge v. Ayers, 77 Vt. 448, 61 Atl. 40. But there the answer was wholly noncommital; while here it was an indirect admission. There no inference could be drawn from it one way or the other; here the jury was warranted in inferring from the answer that the witness did in fact make the statement inquired about.

John Perham, a graduate surveyor, was a witness for the plaintiff. He testified that he examined the premises after the accident and made measurements and plans thereof. He was asked if he then took hold of the plank or its framework to see how solid the former was, and replied, without objection, that he did. Counsel then said: "Tell us whether or not it was solid?" The defendant objected on the ground that there was no evidence in the case "that it was in any such condition at the time of the accident." This objection was overruled, and the defendant excepted. The witness answered: "It swung very easily." No objection was made to this answer, so the question for consideration relates solely to the propriety of the question.

The objection made was without foundation. The transcript shows that Theodore Chase, Wesley Converse, and Charles Webster gave testimony tending to show that no changes had been made in the plank or its supports since the accident. Moreover, counsel for the defendant, in open court, while discussing a proposed jury view, had previously stated, in reply to a question from the bench, that though a guard had been put on the fan, no change had been made "that would affect this accident in any way."

Charles Webster was a witness for the defendant. He testified to the effect that the trapdoor was installed for the purpose of ventilating the lower room. The plaintiff's claim was that it was intended for a passway, and there was evidence from which this could reasonably be inferred. So, while neither side made the original purpose of cutting through this door the only question to be determined, both regarded it as of importance in the determination of what the workmen's rights therein were. And important it surely was; for, if the plaintiff used it for just the purpose for which the master intended it, he was certainly justified, other questions aside, in such use. On the other hand, if he used it for a purpose not contemplated or intended by the master, such use would not here be justified without proof of further facts. In cross-examination of Webster the plaintiff was allowed to show that for ventilating purposes it would have been better if the door had been cut in another location. This was proper cross-examination as it tended to discredit the direct testimony of the witness.

Theodore Chase also testified for the defendant that the trapdoor was intended for ventilating purposes, and the plaintiff was properly allowed to show by his cross-examination that none of the other dry rooms had such an arrangement, and that, as a ventilator, it had certain specified disadvantages.

At the close of the plaintiff's evidence the defendant moved for a directed verdict, and excepted when this motion was overruled. It then proceeded with its defense; and at the close of all the evidence renewed its motion, and excepted when the court again overruled it. This last exception is for consideration.

The defendant insists that the plank and...