Henry Blanchard v. Vermont Shade Roller Co.
| Decision Date | 08 May 1911 |
| Parties | HENRY BLANCHARD v. VERMONT SHADE ROLLER COMPANY |
| Court | Vermont Supreme Court |
November Term, 1910.
CASE for negligence. Plea, the general issue. Trial by jury at the June Term, 1911, Addison County, Miles, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.
Judgment affirmed.
Brown & Hopkins and V. A. Bullard for the defendant.
Present ROWELL, C. J., MUNSON, WATSON, HASELTON, AND POWERS, JJ
The plaintiff, an adult employee in the defendant's shade roller factory at Vergennes, while at work throwing out rubbish from the elevator pit, was injured by a truck which came down through an unenclosed elevator opening in the floor above. He had worked in the factory twelve years; during the last ten of which he had kept the boiler fires, and in connection with this had gathered the refuse wood from all parts of the building. In doing this work he had used the elevator, and had become familiar with the manner and extent of its use by the other employees; had seen the number of men at work and the number of trucks in use on the floors above the basement; and must have seen how the trucks stood and were handled in the vicinity of the elevator openings. The conditions affecting the safety of one working in the pit were the same during this period as on the day of the accident. It thus appears from undisputed evidence that the plaintiff engaged in this work with full knowledge of the risks ordinarily attending it; and if the case is to turn upon this point it will be necessary to say that the plaintiff assumed the risk and cannot recover.
But the testimony of the plaintiff as to the circumstances in which he was doing the work introduces another element. He states in substance that the work was being done on this occasion by direction of Graves, the superintendent, and in his presence; that when he entered the pit the elevator was standing at the first floor above, with the bottom even with the floor; that when Graves sent the elevator up to that point some one came along and said, "you ought to put slats under the elevator to keep it from coming down," and that thereupon Graves, who was standing close to the rod which controlled the elevator, said, "No, Henry, I am going to be here, and will be on the lookout for you:" that he went on with his work relying on what Graves said and did not know when the elevator went up from the floor above. Graves denied that there was any such talk as that testified to by the plaintiff, and testified that when the plaintiff entered the pit the elevator was in the top floor instead of the middle floor; but said that he stood right by the elevator rod all the while, and kept his hand upon it until some one above signalled that he wanted to use the elevator, when he permitted it to go, and that when he did this he told the plaintiff to step out of the pit, and that he did so, but stepped back too quick. These statements were evidence tending to show that the plaintiff was doing the work in reliance upon an undertaking of the superintendent to protect him in respect to the operation of the elevator; and a finding of this fact, if unaffected by other considerations, would relieve the plaintiff's conduct of the effect it would otherwise have as an assumption of the risks attending the ordinary use of the elevator.
The defendant contends that Graves had no authority to promise plaintiff that he would give him this protection. The defendant is a corporation, with its principal office and managing official located at Burlington. This official testified that he went to the factory as occasion required--it might be twice in one week and might be once in three months. It is apparent from all the evidence that Graves had the entire charge of the factory and help. As far as the conditions affecting the safety of the employees depended upon a master's oversight and direction he stood in the place of the defendant. The assurance he gave the plaintiff was incident to the proper management of the business.
It is said further that if Graves had authority to make this arrangement, he was nevertheless a fellow-servant of the plaintiff in attempting to carry it out, and that the defendant is not responsible for his failure therein. The defendant relies in support of this contention upon Brown v. People's Gas Light Co., 81 Vt. 477, 71 A. 204, 22 L.R.A. (N. S.) 738; but we think that case is not in point. This undertaking was a means adopted to make safe for the occupancy of the plaintiff a place that was otherwise unsafe; and neither the place nor the use to be made of it had any relation to the progress of a work of construction. The danger to be incurred if the plaintiff was left unprotected was not one in any way connected with his work, but one due to an existing condition for which the defendant was responsible. The protection promised was to take the place of the ordinary safeguards, the presence of which might have hindered the defendant's work, but the absence of which made the place unsafe; and the plaintiff was entitled to one thing or the other unless both were waived. The supervision was undertaken and exercised in circumstances which indicate that the plaintiff proceeded, and was understood to proceed, in reliance upon it. The protection was not to be secured by performing the duty of a workman, but by an exercise of that control which was a prerogative of the superintendent. In carrying out the arrangement, as well as in making it, Graves must be considered the representative of the defendant.
But the defendant claims that the act of Graves in permitting the elevator to be moved was not the proximate cause of the plaintiff's injury--that the proximate cause was the careless act of the fellow-servant who sent the truck into the space left open by the moving of the elevator. We think the case is one of concurrent causes. The permission...
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