Dailey v. Swift & Co.

• Decision Date: 07 October 1912
• Citation: 84 A. 603,86 Vt. 189
• Court: Vermont Supreme Court
• Parties: DAILEY v. SWIFT & CO.

84 A. 603

86 Vt. 189

DAILEY

v. SWIFT & CO.

Supreme Court of Vermont. Brattleboro.

Oct. 7, 1912.

Exceptions from Orleans County Court; Fred M. Butler, Judge. Action for personal injuries by H. L. Dailey against Swift & Co. There was a directed verdict for defendant, and plaintiff excepts. Reversed and remanded.

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

Grout & Grout, of Newport, for plaintiff.

Clarke C. Fitts and Hermon E. Eddy, both of Brattleboro, for defendant.

WATSON, J. The undisputed evidence shows the facts of this case as stated herein. When the plaintiff engaged to work for the defendant, the contract of employment, made with the defendant's foreman and manager, was to ice cars from the defendant's icehouse in Derby, at an agreed price per week, and the plaintiff was to work as long as both parties were satisfied. After the plaintiff had talked over with the defendant the terms of his employment, and before he began work, he told defendant's foreman and manager, who was hiring him, that he had seen the icing work he was to do done on the platform of the icehouse where he was to do his work, and that he regarded it as a careless place to work, unless a train of cars stood in front of the platform, and that he hesitated about taking the employment; whereupon the foreman and manager told the plaintiff: "You never mind the platform. If anything happens to you up there, it will be made all right."

Under this employment, without change in the contract, and relying upon the said assurance of the foreman and manager, the plaintiff worked henceforth until he received the injury for which he now seeks to recover, a period of 18 years. Within the time of his so working, no change, material here, was made in the platform. It remained as it was when the plaintiff entered into his engagement, without any guard or railing on its east side to obviate or lessen the danger of a servant's falling off, in case of accident, when engaged thereon in such work. Unless the plaintiff voluntarily assumed the risk consequent on the known condition of the platform as a working place, the defendant was in duty bound to exercise reasonable care and prudence to provide a reasonably safe place for him to perform his work. On the evidence, whether the platform, without any guard or railing on its east side to prevent a servant from falling off when performing such work, was a reasonably safe place for that purpose, and, if not, whether this was due to defendant's negligence, were questions for the jury. Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416, 74 Atl. 99; Marshall v. Dalton Paper Mills, 82 Vt. 489, 74 Atl. 108, 24 L. R. A. (N. S.) 128.

No claim is made by the plaintiff, nor could there well be in the circumstances of this case, that he did not, when entering into his employment and ever thereafter to the time of the accident, have full knowledge of and appreciate the dangers incident to the structural condition of the platform in the respect named. It was held, in Fraser v. Blanchard, 83 Vt. 136, 73 Atl. 995, 75 Atl. 797, that if the conditions are constant and of long standing, and the danger one suggested by the common knowledge of all, and both the conditions and dangers are obvious to the common understanding, the servant of full age, intelligent, and of adequate experience, and these elements appear without contradiction, the question of the assumption of risk becomes one of law for the court, referring to Butler v. Frazee, 211 U. S. 459, 29 Sup. Ct. 136, 53 L. Ed. 281. The rule thus stated, however, presupposes that the undertaking was voluntarily entered upon by the servant. Whereas, in the case at bar, that is a subject of contention. Where this element is involved, the rule is well settled, as stated by the Supreme Court of the United States in the case last named: "One who understands and appreciates the permanent conditions of machinery, premises, and the like, and the danger which arises therefrom, or, by the reasonable use of his senses, having in view his age, intelligence, and experience, ought to have understood and appreciated them, and voluntarily undertakes to work under those conditions and to expose himself to those dangers, cannot recover against his employer for the resulting injury. Upon that state of facts the law declares that he assumes the risk."

Since the plaintiff, as before seen, entered into his contract with full knowledge of the condition of the platform, and appreciating the dangers attending the performance of his duties thereon, the important, and, perhaps, the sole, question in this branch of the case is: Did he voluntarily encounter the risk, within the meaning of the maxim, "Volenti non fit injuria?" Kilpatrick v. Grand Trunk Ry. Co., 74 Vt. 288, 52 Atl. 531, 93 Am. St. Rep. 887; Drown v. New England Telegraph & Telephone Co., SO Vt. 1, 66 Atl. 801; Duggan v. Heaphy, 85 Vt. 515, 83 Atl. 726.

The defendant contends that if the condition of the platform is to be treated as the proximate cause of the injury—a question hereinafter considered—the plaintiff assumed the risk, under the general rule that an employe assumes the ordinary risks incident to his employment, and such extraordinary risks as he knows and comprehends, or are so plainly observable that he will be taken to have known and comprehended them; while the plaintiff, asserting to the contrary, contends that by reason of the assurance made to him by the defendant's foreman and manager at the time the contract of employment was made, and of the plaintiff's entering upon and continuing in the performance of the contract relying upon such assurance, he did not, in law, voluntarily take upon himself the risk; and hence the general rule stated does not apply.

Exceptions to this general rule are not infrequent. The law is well established that, where a defect occurs during the servant's employment, and on complaint made by him the master promises to repair the defect, and thereby induces the servant to continue in the employment, the latter may recover for injuries received within a reasonable time following, unless the danger is so imminent that no reasonably prudent man would continue in the service. The effect of the promise is to relieve the servant from the assumption of the risk during such reasonable time. The case of Harris v. Bottom, 84 Vt. 27, 77 Atl. 945, is of this sort. See, also, Carbine's Adm'r v. Bennington & Rutland R. R. Co. 61 Vt. 348, 17 Atl. 491. In Morden Frog & Crossing Works v. Fries, 228 Ill. 246, 81 N. E. 862,119 Am. St. Rep. 428, it was held that, to the general rule that the servant assumes all of the ordinary hazards arising from the performance of the duties of his voluntary engagement, the law creates an exception or modification where the servant, after acquiring knowledge of a defect, gives notice thereof to the master, and the latter promises to remedy the defect; that the effect of the promise is to relieve the servant from assumption of risk for a reasonable time thereafter; that the servant may continue in the performance of his duties for a reasonable time, unless the danger is so imminent that no prudent person would encounter it. "By the promise a new relation is created, whereby the master impliedly agrees that the servant shall not be held to have assumed the risk for a reasonable time following the promise." In Holmes v. Clarke, 6 H. & N. 349, Chief Baron Pollock, delivering the opinion of the Court of Exchequer, said in such circumstances: "It must be considered that the master takes upon himself the responsibility of any accident that may occur during that period." To the same effect are Eureka Co. v. Bass, 81 Ala. 200, 8 South. 216, 60 Am. Rep. 152; Greene v. Minneapolis & St. Louis Ry. Co., 31 Minn. 248, 17 N. W. 378, 47 Am. Rep. 785; Hough v. Texas & Pacific R. R. Co., 100 U. S. 213, 25 L. Ed. 612; Yerkes v. Northern Pacific Ry. Co., 112 Wis. 184, 88 N. W. 33, 88 Am. St. Rep. 961; Rice v. Eureka Paper Co., 174 N. Y. 385, 66 N. E. 979, 62 L. R. A. 611, 95 Am. St. Rep. 585; Fox v. Kinnear, etc., Co., 75 N. J. Law, 716, 67 Atl. 1011. In Counsell v. Hall, 145 Mass. 468, 14 N. E. 530, it was held that the promise was a circumstance to be considered by the jury in determining whether the servant assumed the risk in the meantime, and whether he was using due care in working when he knew there was danger; the court, by Holmes, J., saying: "But no case, we believe, has gone the length of deciding that the promise entitles the servant to recover as matter of law, which was the effect of the ruling asked." In Dunkerley v. Wibendorfer Mach. Co., 71 N. J. Law, 60, 58 Atl. 94, it was held that the master is not exculpated from its negligence in the first instance, unless the willingness of the servant to incur the risk is shown or reasonably inferred from the circumstances of the case; that such willingness is not shown, nor is it reasonably inferred, from knowledge of the danger by the servant, where the other circumstances negative such inference; that the circumstances that the servant complains, receives a promise of repair, and continues to work in reliance upon the promise, negative the inference of willingness on his part to exempt the master from liability; that by making the promise the master relieves the servant from the assumption of risk and remains liable for his negligence, notwithstanding the servant's knowledge; and that the right of recovery does not rest upon the promise, but upon the master's negligence, and the fact that the application of the principle expressed in the maxim, "Volenti non fit injuria," is negatived by the servant's reliance upon the promise.

Of a somewhat different class, and in facts more like the case in hand, is Blanchard v. Vermont Shade Roller Co., 84 Vt. 442, 79 Atl. 911. There the plaintiff was injured while at work in an elevator pit throwing rubbish therefrom, with full knowledge of the risks ordinarily...