Geroux's Adm'r v. Graves

• Decision Date: 27 April 1890
• Citation: 62 Vt. 280,19 A. 987
• Court: Vermont Supreme Court
• Parties: GEROUX'S ADM'R v. GRAVES.

19 A. 987

62 Vt. 280

GEROUX'S ADM'R

v. GRAVES.

Supreme Court of Vermont Chittenden.

April 27, 1890.

Exceptions from Chittenden county court; MUNSON, Judge.

This was an action by the administrator of Moses Geroux for the neglect of the defendant resulting in the death of his intestate. The case was heard at the September term, 1889, MUNSON, J., presiding, upon demurrer to the original declaration, and a motion to dismiss the new declaration. The court sustained the demurrer and granted the motion. The plaintiff excepts. The defendant moved to dismiss, for the reason that the new declaration introduced new parties and a new cause of action. In hearing this motion the court confined itself exclusively to the record, and declined to receive evidence dehors. The declarations were as follows: "In a plea of the case for that the plaintiff's intestate, on the 6th day of October, 1887, at said Colchester, was in the employ of the defendant, hired by him to work in his quarry, quarrying stone, and that by virtue of said employment of the plaintiff's intestate by the defendant it became and was the duty of said defendant to furnish said plaintiff's intestate a safe and well-constructed derrick to be used by him in said quarry; yet the defendant, disregarding this duty, on said 6th day of October, 1887, carelessly and negligently and wrongfully gave to the said plaintiff's intestate to use in said quarry, in the course of his employment as aforesaid, a derrick which was unsafe and unsuitable for said work, and improperly constructed, and which was not provided with guy-ropes of sufficient strength for said work, and which was insufficient in several other ways, in so much that it greatly endangered the lives of the men who used it; all which was unknown to the plaintiff's intestate, and all which was fully known by the defendant. And the plaintiff avers that while his said intestate was in the careful and prudent use of said derrick, in said quarry, in the course of his said employment by the defendant, said derrick fell, from the imperfections and insufficiencies aforesaid, and struck the plaintiff's aforesaid intestate, and killed him. Whereby and by reason of all which an action hath accrued to the plaintiff against the defendant,—all which is to the damage of the plaintiff, as administrator, as aforesaid, the sum of $10,000, for the recovery of which, with just costs, this suit is brought. Amended Declaration. In a plea of the case, for that the plaintiff's intestate, the said Moses Geroux, on the 6th day of October, 1887, at said Colchester, was in the employ of the defendant, hired by him to work in big quarry, quarrying stone and removing large stones therefrom, and that by virtue of said employment of the plaintiff's intestate by the defendant it became and was the duty of said defendant to furnish said plaintiff's intestate a safe, suitable, and well-constructed derrick, to be used by him in said quarry; yet the defendant, disregarding this duty, on said 6th day of October, 1887, carelessly and negligently and wrongfully gave to the plaintiff's intestate to use in said quarry, in the course of his said employment, a derrick which was unsafe and unsuitable for said work, and which was not properly constructed, nor provided with guy-ropes sufficient for said work, and which was insufficient in several other ways, insomuch that it greatly endangered the lives of the men who used it,—all which was unknown to ...