Eliza Cole v. North Danville Cooperative Creamery Association

• Decision Date: 07 October 1930
• Parties: ELIZA COLE v. NORTH DANVILLE COOPERATIVE CREAMERY ASSOCIATION
• Court: Vermont Supreme Court

151 A. 568

103 Vt. 32

ELIZA COLE v. NORTH DANVILLE COOPERATIVE CREAMERY ASSOCIATION

Supreme Court of Vermont

October 7, 1930

May Term, 1930.

"Invitee"---Negligence---Duty Toward Invitee---Necessity of Warning of Hidden Danger---Assumptions Which Invitee Had Right To Make---Jury Questions---Assumption of Risk---Question Offered on Qualifications and Experience of Expert Calling for Opinion of Witness---Competency of Witness---Escaping Steam---Evidence as to Cost and Practicability of Piping Steam from Safety Valve To Reduce Noise---Standard Practice in Caring for Steam from Safety Valve---Harmless Error---Evidence as to Possibility of Preventing Blowing Off of Safety Valve by Watching Steam Gauge---Sufficiency of Evidence To Justify Inference That Injury Disclosed by X-ray Photograph Was Caused by Accident Complained of---Effect on Duty To Warn Invitee of Hidden Dangers Not Obviated by Adoption of Best Possible Method of Disposing of Exhaust Steam---Instructions to Jury---Construction of Charge as a Whole---Sufficiency of Charge Respecting Negligence in Permitting Escape of Steam from Safety Valve---Effect of Withdrawal from Jury's Consideration of Ground of Error Erroneously Submitted.

1. Plaintiff who entered premises of defendant creamery company for purpose connected with defendant's business there carried on, parties having a mutual interest in subject-matter of visit, was an "invitee."

2. Creamery company had duty toward invitee to keep premises in a safe and suitable condition, so that invitee would not be unnecessarily or unreasonably exposed to danger.

3. If hidden danger existed, known to creamery company, but unknown to its invitee to its premises, it was duty of creamery company to give warning thereof.

4. Invitee had right to assume that premises of creamery company, aside from obvious dangers, were reasonably safe for purpose for which adapted, and that proper and safe appliances had been provided.

5. In ACTION OF TORT for negligently permitting escape of steam from safety valve at defendant's creamery, whereby plaintiff's horse became frightened, ran away overturning buggy, throwing plaintiff, who was invitee, to ground, and causing her injury, evidence held to make question of defendant's negligence for jury.

6. In such case, whether plaintiff assumed risk of horse becoming frightened from steam escaping from safety valve of boiler at defendant's creamery, held for jury.

7. In cases not involving contractual relationship, doctrine of assumption of risk is confined to cases where plaintiff knew and appreciated danger, and voluntarily put himself in way of it, mere knowledge of danger alone not necessarily involving consent to it.

8. Evidence held insufficient basis for holding as matter of law that plaintiff knew and appreciated danger that steam would escape and voluntarily chose to expose herself to it.

9. Question offered on qualifications and experience of expert as to whether there was any substantial difference between problem of reducing sound of steam escaping from safety valve and sound made by exhaust of steam engine, held erroneously allowed, since question itself called for an opinion, but not shown to have been prejudicial.

10. Evidence as to competency of expert was addressed to court, not jury.

11. Admission of expert's opinion that it was practicable to pipe steam from safety valve of defendant's boiler so it would discharge outdoors, thereby reducing noise one-half without impairing efficiency of plant, held without error since it was claimed that defendant was negligent in failing to follow well-known and standard practice in that regard which would have eliminated or lessened danger of horse becoming frightened by escaping steam from such safety value.

12. Fact that experts, in testifying that it was standard practice to pipe steam from safety valve of boiler of creamery to outside of building, did not say that this method was only standard practice, did not make evidence excludable.

13. Evidence that making change to pipe steam from safety valve of boiler of creamery so it would discharge outdoors instead of in building, thereby minimizing danger of frightening invitee's horse, would only cost $20 to $30, held admissible.

14. Where invitee's horse was frightened by noise of steam escaping from safety valve of boiler at creamery plant, in action by such invitee against creamery company for personal injuries received because of horse so becoming frightened and running away, admission of testimony as to noise heard by person inside building of third person, when safety valve of boiler therein was discharged outside, if error, held not shown to have been harmful.

15. In action of tort for negligently permitting escape of steam from safety valve at defendant's creamery, whereby plaintiff's horse became frightened, ran away overturning buggy and throwing plaintiff, who was invitee, therefrom to ground, and causing her injury, evidence that in experience of witness blowing off of safety valve could generally be prevented by watching steam gauge, held properly received.

16. In such action, whether ordinary care required defendant to watch steam gauge and prevent blowing off of steam from safety valve, under circumstances of case, held for jury.

17. In such action, evidence held sufficient to warrant inference that a healed Colles' fracture, disclosed by an X-ray of plaintiff's right radius, was caused by accident, and that although undiscovered by physicians attending plaintiff for other injuries, it was healed by an appropriate treatment applied in ignorance of its existence, hence that it was not error to receive evidence, in response to question assuming break to have been in existence when other injuries caused by accident were treated, as to why physician had not then discovered such Colles' fracture.

18. Duty of creamery company to give warning to invitee of noise unavoidably produced by escape of steam from safety valve of its boiler, would not be obviated by adoption of best possible method of disposing of exhaust steam, if noise so produced constituted hidden danger.

19. Charge should be taken as a whole, and, although it may contain some expressions that, taken alone, would be error, if as a whole it breaths true spirit and doctrine of law, and there is no fair ground to say jury has been misled, it ought to stand.

20. Charge with respect to question of negligence, in permitting escape of steam from safety valve of boiler of creamery plant which frightened invitee's horse, held without error.

21. Error, if any, in submitting one of several grounds of negligence to jury, held, cured by its subsequent withdrawal from their consideration, although such withdrawal was not made until the jury had deliberated over night.

ACTION OF TORT for negligence in permitting escape of steam from safety valve of boiler of creamery plant, thereby frightening horse of plaintiff, who was an invitee, causing it to run away and injure plaintiff. Plea, general denial. Trial by jury at the June Term, 1929, Caledonia County, Sherburne, J., presiding. Verdict for plaintiff, and judgment thereon. The defendant excepted. The opinion states the case.

Judgment affirmed.

Shields & Conant for the defendant.

The law does not warrant holding defendant negligent under the facts shown by the evidence, viz.: That the use of a safety valve is necessary to the safe operation of a steam engine; that its purpose is to prevent too great a pressure of steam in the boiler; that when a safety valve operates it necessarily makes a noise; that the pop safety valve, with top discharge, as installed on defendant's boiler in its creamery, was standard and proper equipment of a type far more prevalent in creameries in the vicinity than any other kind; that boiler and safety valve were properly installed by experts, who were to furnish and did furnish standard equipment therefor; and that noise made by discharge of this safety valve as installed was not shown to be any greater than usual in the ordinary operation of similar plants. Powers v. Grand Trunk Ry. Co., 78 Vt. 436, 63 A. 139; Daugherty v. Southern Cotton Oil Co., 138 Ark. 329, 221 S.W. 179, 4 A. L. R. 1341; Cook v. Rice Lake Milling Co., 146 Wis. 439, 130 N.W. 953, 32 L. R. A. (N. S.) 1225; Louisville, N. A. & C. Ry. Co. v. Schmidt (Ind.), 33 N.E. 774; Whitney v. Railroad Co., 69 Me. 208; Gooding v. Fuson (Ky.), 60 S.W. 293; Lane Brothers Company v. Barnard (Va.), 69 S.E. 969, 31 L. R. A. (N. S.) 1209; Omaha & R. V. R. R. Co. v. Clarke, 35 Neb. 867, 57 N.W. 545, 32 L. R. A. 504; 33 Cyc. 937--939; Chesapeake & 0. Ry. Co. v. Robinson, 219 Ky. 26, 292 S.W. 485; Schaff v. Boland, 115 Okla. 191, 241 P. 792.

The plaintiff assumed the risk, since she was chargeable with such risks or dangers as she knew and comprehended, or such as a person of ordinary knowledge and prudence ought to have known and comprehended. Skinner, Admr. v. Carpenter's Estate, 73 Vt. 336, 50 A. 1099; Gover v. Central Vt. Ry. Co., 96 Vt. 208; Grayson & McLeod Lumber Co. v. Carter (Ark.), 88 S.W. 597; "Negligence," 20 R. C. L., p. 110, 97; Texas Co. v. Washington B. & A. Electric R. Co., 147 Md. 167, 127 A. 752, 40 A. L. R. 495; Wilbourn v. Charleston Cooperage Co., 127 Miss. 290, 90 So. 9.

The doctrine of assumption of risk is not limited to cases where relationship of master and servant exists. Gover v. Central Vermont Ry. Co., supra; Texas Co. v. Washington B. & A. Electric R. Co., supra; Wilbourne v. Charleston Cooperage Co., supra.

It was error to admit evidence of practicability of piping steam from safety valve to outdoors, since negligence cannot be inferred from failure to do act in some other way, not shown to be safer, 45 C. J., p. 698, 70; Wood v. Phila....