Houston v. Brush
| Decision Date | 17 April 1894 |
| Parties | GARY W. HOUSTON v. BRUSH & CURTIS |
| Court | Vermont Supreme Court |
JANUARY TERM, 1894
Case for the negligence of the defendant. Heard at the June term 1893, Caledonia county, TAFT, J., presiding. The defendant demurred to the declaration. The demurrer was overruled and the declaration adjudged sufficient, to which the defendant excepted. Thereupon the defendant plead the general issue and a trial by jury was had. Verdict for the plaintiff. The defendant excepts.
Judgment reversed and cause remanded.
J.P Lamson for the defendants.
I. By pleading over and going to trial instead of submitting to judgment on the declaration, the defendant waived his exception to the ruling on the demurrer. Rea v. Harrington,58 Vt. 181.
II. It was the duty of the defendants, as master, 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; Deering on Neg., s. 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 all 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. Cent. Vt. R. R. Co.,56 Vt. 710; Gahagan v. B. & L. R. R. Co., 83 Mass. 187; Maguire v. Middlesex R. R. Co.,115 Mass. 239.
III. 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; Carpenter v. Willey,65 Vt. 168. 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. 620; Fraser v. Tupper, 29 Vt. 409; Bryant v. Railroad, 56 Vt. 710; Carpenter v. Gleason, 58 Vt. 244; Bemis v. Railroad, 58 Vt. 636; Moore v. Haviland, 61 Vt. 58.
IV. 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. Stephen's Ev. (May's Ed.), 55.
V. On cross examination of one of defendant's 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 what."
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 upon subject matter opened up by the defendants in their examination of the witness, and the contrary not appearing, it is to be presumed that such was the case, and that the court properly permitted this inquiry for that reason.
But were it assumed to be otherwise there was no error. The unanswered questions were not evidence, and it was not error to permit them to be put. Carpenter v. Corinth,58 Vt. 214; Smith v. Ins. Co.,60 Vt. 682. The answers given to the other questions in connection with the questions could not have worked the defendants harm, as they elicited no fact.
VI. The defendants offered evidence tending to show how the tackle block was fastened to the mast and it was excluded as immaterial. That the plaintiff made no claim of any defect in regard to the fastening is not decisive as to the admissibility of this evidence. There was a conflict between defendants' evidence and plaintiff's in respect to the position of the head of the pin at the time of the accident. If the head of the pin was up it might well be claimed that the tin over it would not have to be so strongly fastened to the block to keep the pin from working out as it would were the head down. Thus the position of the head of the pin bore directly upon the question of the care which the defendants ought to have exercised in so securing it that it would not work out. It is apparent that the position of the block and consequently that of the head of the pin was determined by the manner in which the block itself was attached to the top of the mast. Hence this evidence was material and it was error to exclude it. No further offer by the defendants was necessary to make this exception available, as the exclusion of the evidence on the ground that it was immaterial was a ruling that no inquiry on the subject matter would be allowed. Winchell v. Natl. Ex. Co.,64 Vt. 15.
VII. The defendants contend that there was error in not directing a verdict for them at the close of the evidence, as they requested. The evidence tended to prove that the plaintiff was the servant of the defendants; that they furnished a derrick for the plaintiff to use in their work in which he was engaged, and that while he was thus using it he was injured, without his fault, by the falling of a wheel from the tackle block attached to the top of the mast of the derrick; that this block had two wheels in it, which were fastened in by a steel pin passing through the block; that one end of the pin had a square head which, by means of a mortise, was sunk into the upper side of the block so that it was flush with that side, and the other end of the pin was flush with the other side of it; that when the block came from the shop where it was manufactured, there was a small piece of tin tacked on over the head of the pin. The plaintiff's evidence further tended to show that on the day of the accident this tin had come off and the pin had worked out far enough to let the wheel out, and that it fell about fifty feet, striking him upon the head and inflicting the alleged injuries. There was evidence tending to show that the tin covering the head of the pin had never been suitably tacked on in its place. The only defect claimed in this derrick was in this tackle block, and the plaintiff offered no evidence and made no claim that the block was unsuitable in make or workmanship, if it had been kept in proper repair and the head of the pin had been properly secured. The evidence of the plaintiff tended to prove that at the time of the accident the pin was head down and had worked down, while that of the defendants tended to prove that the head was up and that their foreman, Bailey, skilled in the care and management of derricks, had often been to the top of the mast to see that everything was safe, and that the last time he made such inspection was about thirty days next before the accident. There was no evidence that either the plaintiff or the defendants had any apprehension that an accident like this might happen, or knew that the tin was off. The case standing thus, the plaintiff clearly had the right to go to the...
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