Dumas v. Stone

• Decision Date: 18 January 1893
• Court: Vermont Supreme Court
• Parties: DUMAS v. STONE.

25 A. 1097

65 Vt. 442

DUMAS

v. STONE.

Supreme Court of Vermont. Chittenden.

Jan. 18, 1893.

Exceptions from Chittenden county court; Taft, Judge.

Action on the case by John Dumas against Charles Stone for personal injuries sustained through the neglect of defendant. Judgment for plaintiff on the report of a referee. Defendant excepts. Affirmed.

The plaintiff was a stone mason in the employ of the defendant, and was injured by the fall of a derrick, occasioned by the breaking of a guy rope. The derrick had been set up under the personal supervision of the defendant. It was held in place by four guy ropes, three of which were wire ropes. In putting these wire ropes up it was noticed that they were rusted, and the strands of one of them became broken, and were repaired. These facts were known to the defendant, and he Inspected the ropes, and thought them sufficiently strong. The plaintiff was not present when the derrick was set up, but knew that there bad been some discussion among the men who were there as to the sufficiency of the ropes, and expressed some doubts upon that point himself. The referee found that neither the plaintiff nor the defendant thought the ropes were Insufficient, or that it was unsafe to work under them. In point of fact, the rope which had been repaired broke in another place in handling the second stone. The referee reported that a prudent man would have tested this guy before putting men to work under it; that the defendant was negligent in no other respect; and that the plaintiff knew that it had not been tested.

Roberts & Roberts, for plaintiff.

W. L. Burnap and H. F. Wolcott, for defendant.

ROWELL, J. The servant assumes the usual and ordinary risks incident to the business in which he engages; but he does not assume the unusual and extraordinary risks thereof, unless they are, or ought to have been, known to and comprehended by him, in which case he assumes those also, whatever they are. When the servant shows that his injury was caused by a danger not usually and ordinarily incident to the business, and which ought not to have existed, and would not have existed, had the master performed his duty to him, and of which he neither knew nor was negligent in not knowing, the master is liable. It is not enough for the master, in such a case, that the servant was apprehensive, merely, of possible danger, especially when, as here, the master himself, knowing the circumstances, did not believe the danger to exist....