Fowlie's Adm'x v. McDonald, Cutler & Co.

• Decision Date: 19 May 1909
• Citation: 72 A. 989,82 Vt. 230
• Court: Vermont Supreme Court
• Parties: FOWLIE'S ADM'X v. McDONALD, CUTLER & CO.

72 A. 989

82 Vt. 230

FOWLIE'S ADM'X

v. McDONALD, CUTLER & CO.

Supreme Court of Vermont. Washington.

May 19, 1909.

Exceptions from Washington County Court; Eleazer L. Waterman, Judge.

Action by James M. Fowlie's Administratrix against McDonald, Cutler & Co. Judgment for plaintiff, and defendant brings exceptions. Reversed and remanded.

Argued before ROWELL, C. J., and MUN SON, WATSON, HASELTON, and POW ERS, JJ.

Richard A. Hoar and H. R. Bygrave, for plaintiff. John W. Gordon and S. Hollister Jackson, for defendant.

POWERS, J. The plaintiff's intestate, James Fowlie, was killed while in the defendant's employ. He was, at the time, assisting one McGranahan in operating a dump car on the grout pile of the defendant's quarry. The waste stone was hoisted out of the quarry by steam power; run out over the dump a distance of several hundred feet on a blondin lowered onto the dump car; run to the edge of the grout pile, and dumped over. Generally speaking, the car was of the type known as the "Standard Grout Car." It consisted of a four-wheeled truck, on which was mounted a truck frame of heavy timbers decked over with double hardwood plank, on which was bolted an iron circle about two feet in diameter. The top of the car consisted of a heavy plank platform, on the top of which were fastened two pieces of railroad rails running lengthwise of the car, and to the under side of which was attached an iron table. The under side of the table was shaped into a circle corresponding with the one on the truck frame. A kingbolt passed down through this table, through the centers of the two circles, and through the plank of the truck frame. It was designed to hold the platform and truck frame firmly together, but to allow the platform to turn freely on the circles as a turntable. The kingbolt had a square head on the top end, and a thread with a heavy nut on the lower end. On the front end of the iron table was attached a cross arbor, which at each end passed through iron lugs attached to the under side of the platform. At the rear end of the iron table was a similar arbor, but instead of its passing through two lugs, its ends engaged two iron jaws fastened to the under side of the platform. The front arbor allowed the platform to tilt forward until the front end of it came down into contact with the sills of the truck frame; the jaws rising from the rear arbor and returning to re-engage it when the platform was restored to its position. A chain in the rear was attached to the platform, and hooked over a hood in the truck frame. This chain prevented the platform from turning around on the circles, and from tilting forward accidentally. The turntable allowed the platform to turn on the truck frame so it could be tilted to either side or to the rear, but it was always the same end of the platform that went down. So if it was desired to dump a stone to one side or the rear, the platform had first to be turned on the turntable so that the nose pointed in the desired direction. The plaintiff's evidence tended to show that the platform of the car was too long for the trucks; that it was one which was made for a larger car, and was taken therefrom and attached to this car at some previous time when this car was being repaired; that it made the car dangerously top-heavy; that the hole through which the kingbolt passed was too large for the pin, thereby giving the table unnatural instability, causing it to "wobble," the witness said; and that the nut on the lower end of the kingbolt had worn into the wood of the frame some distance, thereby giving the turntable and platform a "play" which increased the tendency of the platform to tilt unexpectedly; and that these defects and conditions proximately contributed to the disaster. Other defects were testified to, but it does not seem clear that they had anything to do with the accident, so we make no reference to them. A large stone came out on the blondin. The car was placed in position and trigged. The stone was lowered onto it, and released from the chain which held it. McGranahan kicked out the trig which held the car, and he and Fowlie by pushing started the car along the track toward the place where the stone was to be dumped. As they started the car, it suddenly tipped toward them as they stood behind it, shot forward, and the stone slid off onto Fowlie and crushed him. The platform was in proper position, the rear chain was fastened, and nothing about the car was broken or damaged by the accident.

1. The first point made by the defendants is that there is a fatal variance between the allegations and the proof, in that the declaration alleges that the injuries were received by Fowlie while he was at work between the quarry and the dump, while the proof shows that the accident happened while he was at work on the dump. The point is not well taken. In the first place the defendants misconstrue the allegation referred to. It is practically the same in each count, and amounts to this: "* * * The said plaintiff's intestate, in pursuance of said employment, was then and there put to work by the said defendants in the use and operation of a certain dump car, furnished by the said defendants for the said plaintiff's intestate to work with and assist in operating in removing refuse and grout from said defendants' quarry to the defendants' dump." This language does not necessarily imply that Fowlie's duties required him to participate in all the processes whereby the removal of the grout from the quarry proper to its final resting place on the dump was accomplished. It is quite consistent with the facts proved that the car was one of the instrumentalities employed in that general undertaking, and that Fowlie's duties pertained to one part of that general undertaking. But whether the proof literally conforms to the allegation or not, whatever of variance there may be is immaterial. The only purpose of the allegation quoted is to show that Fowlie was then engaged in the line of duty, in the use of an instrumentality furnished him by the defendants with which to do his work. Further than this the pleader need not have gone. The words "in removing refuse," etc., might as well have been omitted. It is only the matter of essential description that need be proved as laid. Generally speaking, an allegation not necessary to the statement of the cause of action—to which class this allegation belongs —is formally, rather than essentially, descriptive, and need not be proved as laid. This is the doctrine of our cases, including those cited by the defendants. It is now urged that the evidence disclosed that the defendants owned and operated other quarries with dumps, and cars, and so the variance referred to became misleading, and like the one in Derragon v. Rutland, 58 Vt. 128, 3 Atl. 332. But it does not appear that this point was made below, and therefore it will not be here considered, since it does not appear that the "variance is material and substantial, affecting the right of the matter." P. S. 1980.

2. As the cause was tried and submitted below, it was material for the plaintiff to show that Fowlie was an inexperienced man in the business he engaged in, and that he ought to have been warned of the dangers incident to the use of the car, and instructed how to avoid them. To prove his inexperience the plaintiff offered the opinion testimony of McGranahan and other experienced quarry-men, based upon their observation of Fowlie's appearance when he was doing the work. This was objected to by the defendants, on the ground that it could not be shown by expert testimony. After some discussion of the matter the court inquired of the plaintiff's counsel: "What you propose to show by this witness (McGranahan) is, not only what is required in this kind of work, but that this man (Powlie) acted as if he was an unskilled laborer, is that it?" To which counsel for the plaintiff replied: "Yes;...