Houston v. Brush

Decision Date17 April 1894
Citation29 A. 380,66 Vt. 331
PartiesHOUSTON v. BRUSH et al.
CourtVermont Supreme Court

duty which the master owes his other servants, and not the negligence of a fellow servant.

9. Where defendant owes a duty to plaintiff to use certain care to prevent an accident, and the thing causing the accident is shown to be under the management of defendant and his servants, and the accident is such as, in the ordinary course of things, does not occur, if those who have the management use proper care, the happening of the accident affords evidence, in the absence of evidence to the contrary, that it arose from the lack of requisite care.

10. Where a servant is injured by the defective manner in which a wheel in the tackle block of a derrick was held in place, and it appears that the pin holding the wheel in place would not have worked out if it had been securely fastened into the block, and had been kept in that condition, the working out of the pin is presumptive evidence that the master failed to exercise ordinary care.

11. A servant employed about a derrick does not assume a risk incident to the master's failure to procure a tackle block having a pin properly fastened, or to his failure to properly inspect the block and keep it in repair in this respect, where the servant was ignorant of these defects.

12. A request to charge that it was as much the servant's duty to inspect the derrick as it was the master's was properly refused.

13. To render a master liable for an injury to a servant, caused by defective machinery, it is not necessary that the master have actual knowledge of the defect, but it is sufficient to show that he could have discovered the defect by the exercise of reasonable care and diligence in performing the duties of master.

14. The fact that the derrick had been in daily use for a long time, and had proved safe and efficient, does not show that the master exercised due care, since he was under a continuing and affirmative duty of inspection.

Exceptions from Caledonia county court; Taft, Judge.

Action on the case by Gary W. Houston against Brush & Curtis for personal injuries. After defendants' demurrer to the declaration had been overruled, they pleaded the general issue, and a verdict was rendered in plaintiff's favor on the trial. Defendants except. Reversed.

The evidence of the plaintiff tended to show that the defendants were engaged in the manufacture of granite, and that he was employed by them as their hired servant; that it was a part of his ordinary duty to work near and about, and in connection with, a derrick; that upon the day of the injury he was engaged, as usual, at work near the foot of said derrick, and was struck by an iron wheel which fell from the tackle block fastened to the upper end of the mast of the derrick,—a distance of about 50 feet from the ground; that the block in question was a double block, containing two iron wheels, which were held in place by a steel pin passing through the block, and through the center of the wheels; that the head of this pin was square, and fitted into a mortise on the side of the block in such a way that the head was flush with the surface of the block, the length of the pin being such that the other end was flush with the surface of the block upon the other side; that as the block came from the shop there was fastened over the head of the pin a piece of tin, to prevent it from working out, but that an examination after the accident revealed the fact that this piece of tin was gone, and that the pin had worked out sufficiently to permit the wheel to fall. The evidence of the plaintiff tended to show that the head of the pin was down, as the block hung in the air, while the evidence of the defendant tended to show that it was up. The defendants made 23 written requests to charge, of which the 14th, 10th, and 22d were as follows: "(14) If the jury find that the only defect in the derrick was that the mast did not stand plumb, the plaintiff cannot recover." "(16) That there was no evidence in the case, to go to the jury, that has any tendency to show that, if the derrick was not plumb, it had any effect upon the block that held up the boom." "(22) The court should instruct the jury that they should return a verdict for the defendants if there is no other defect in the derrick than that it was out of plumb, and should instruct the jury that there is no evidence in the case that connects the cause of the pin coming out, and the want of the mast being plumb." There was nothing in the bill of exceptions to show that the plaintiff claimed that whether the derrick was plumb or not had anything to do with the accident. The other questions raised and decided fully appear in the opinion.

Bates & May and Perley & Taylor, for plaintiff. J. P. Lamson, for defendants.

THOMPSON, J. 1. By pleading over, and going to trial, instead of submitting to judgment on the declaration, the defendants waived their exception to the ruling on the demurrer. Rea v. Harrington, 58 Vt. 181, 2 Atl. 475.

2. It was the duty of the defendants, as masters, to provide a derrick reasonably fit for the use to which it was to be put by the plaintiff in their employ, and to inspect and keep it in reasonably good repair for such use. Whether they undertook to perform this duty personally, or by their foreman, Mr. Bailey, any negligence in respect to it was their negligence, for which they are liable. Davis v. Railroad Co., 55 Vt. 84; Deer. Neg. § 198. As tending to prove that they had not been negligent in performing this duty, the defendants offered to show the care their foreman "took of the management of the machinery, derricks, and the things that were being used by the workmen,—whether he was a careful and capable man for the place." This offer was excluded, to which the defendants excepted. General evidence of the care and prudence of the foreman at other times, and in respect to other things, would have no tendency to prove care and prudence on his part in regard to this particular tackle block. His care and prudence as to that must be decided upon the evidence showing his acts in relation to it. The defendants were permitted to show "the care, inspection, condition, and ail things relating to the derrick causing the accident." This was all they were legally entitled to show, as the issues were made. Strong v. Slicer, 35 Vt. 40; Bryant v. Railroad Co., 56 Vt. 710; Gahagan v. Railroad Co., 1 Allen, 187; Maguire v. Railroad Co., 115 Mass. 239.

3. Defendants' witness Benjamin was asked whether the tackle block was suitable for the purpose for which it was used, and the question was excluded. In connection with this ruling, there was no offer by the defendants to show anything by this witness on the subject-matter of the question; and it cannot be assumed that he would have given testimony favorable to them, in response to it. Hence, the record does not show error in the exclusion of this inquiry. Roach v. Caldbeck, 64 Vt. 593, 24 Atl. 989; Carpenter v. Willey, 65 Vt. 168, 26 Atl. 488. This view of the matter disposes of the exceptions to the exclusion of questions put to this and all other witnesses, where there was no offer to show anything by the witness, except in the instances where the exclusion was upon the ground that the subject-matter of the inquiry was immaterial. As the points have been fully argued, and the case must go back for a new trial, it may not be amiss to say that if there had been a specific offer to show by Benjamin that the tackle block, in his opinion, was suitable, and, by Carrick, the manner in which, in his judgment, the pin could have worked up so as to let the wheel out, such evidence would have been inadmissible. Whether the block was in suitable repair at the time of the accident was the ultimate question to be decided by the jury. The only defect claimed was that the pin was not originally fastened into the block properly, or that, if properly secured when the block was made, the block had not been kept in suitable repair in that respect. When its structure, its strength, the method of its use, the manner in which the tin over the head of the pin was fastened to the block, and the position of the head, in regard to being up or down, had been fully described, the inference whether the block was reasonably safe was one which required no particular knowledge or skill to draw, but was one which the jurors exercising their sound judgment could as well decide as any witness. So, too, they could determine whether the pin worked up or down, and how, if it were necessary, as well as any one, in the light of all the evidence. Hence, the subject of these inquiries, was not within the rule which admits opinion evidence. Clifford v. Richardson, 18 Vt. 626; Eraser v. Tupper, 29 Vt. 409; Bryant v. Railroad Co., 56 Vt. 710; Carpenter v. Town of Corinth, 58 Vt. 214, 2 Atl. 170; Bemis v. Railroad Co., 58 Vt 637, 3 Atl. 531; Moore v. Haviland, 61 Vt. 58, 17 Atl. 725.

4. The defendants insist that it was error not to allow them to show, by several witnesses of experience in the use of derricks and tackle blocks, that "they never knew of a pin in a tackle block like this one working out." The court properly excluded this evidence, as offered. It in no way related to the tackle block in question, but wholly to collateral matter. It in no way bore upon the defendants' care or negligence in regard to this block. Steph. Dig. Ev. (May's Ed.) 55.

5. On cross-examination of one of defendants' witnesses, the plaintiff was permitted, against their exception, to interrogate him as follows: "Q. Do you know what this derrick cost? A. No, sir; I could not say. Q. Did you ever hear any one say? (No answer.) Q. Ask you if it is a fact that they told you it cost one hundred dollars? (No answer.) Q. Did you ever hear how much it cost? A. I should presume I have heard." The exceptions do not show that this line of inquiry was not strictly cross-examination...

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