Labor v. Carpenter

• Decision Date: 05 February 1930
• Citation: 148 A. 867
• Court: Vermont Supreme Court
• Parties: LABOR et al. v. CARPENTER et al.

148 A. 867

LABOR et al.

v. CARPENTER et al.

Supreme Court of Vermont. Orleans.

Feb. 5, 1930.

Exceptions from Orleans County Court; Julius A. Willcox, Judge.

Actions by Carl Labor, b. n. f., and by George Sheltra, against Don Carpenter and others, which were consolidated and tried together. Judgment for defendants, and plaintiffs bring exceptions. Affirmed.

Argued before POWERS, C. J., SLACK, MOULTON, THOMPSON, JJ., and GRAHAM, Superior Judge.

Porter, Witters & Longmoore, of St. Johnsbury, for plaintiffs.

Searles, Graves & Waterman, of St. Johnsbury, for defendants.

GRAHAM, Superior Judge. The action is for the recovery of damages for personal injuries sustained through the alleged negligent explosion of dynamite in the public highway, over which the plaintiff was proceeding by automobile.

Judgment was rendered by a majority of the court for all defendants on facts found by a majority of the court. A minority finding and judgment order was also signed and filed. It is only the findings and orders of a majority of the members of the court who participate in the trial which have any force and effect, and these alone are to he treated as the judicial action of the court. G. L. 1601; Leonard v. Willcox et al., 101 Vt. 195, 208, 142 A. 762; Saund v. Saund, 100 Vt. 176, 178, 136 A. 22; Thorworth v. Blanchard, 87 Vt. 38, 42, 87 A. 52, Ann. Cas. 1916A, 1226; Dwire v. Dwire, 86 Vt. 474, 86 A. 164; State v. Bradley, 67 Vt. 465, 475, 476. 32 A. 238. No claim is made otherwise in the briefs, but we deem it expedient to make this reference in order to clear the record of any possible uncertainty.

This case and the case of George Sheltra against these same defendants were by the trial court consolidated, tried together, and decided on a joint findings of fact. This accounts for the use of plurals when referring to the plaintiff in the herein quoted portions of the findings.

The case comes here on plaintiff's exceptions. The findings and the reporters transcript of the evidence are made a part of the exceptions. The exceptions briefed are to certain of the findings, to the failure of the court to find as requested, and to the judgment.

From the findings not excepted to it appears that defendant Carpenter was the foreman in charge of the widening and improving of an unselected highway leading from Barton to East Albany by virtue of an appointment made by the state highway department, and thereon was expending money which had been apportioned to the town of Barton to assist in the maintenance and improvement of its unselected highways. The accident took place on October 3, 1927, at about 4 o'clock in the afternoon.

The defendant Carpenter in prosecuting the work employed defendant Kilgarlen to do certain blasting, and furnished him with the necessary dynamite. He also employed defendant Conley to remove rocks and other obstructions from the highway. One Bullock was employed by Conley to drive one of his teams engaged in the work. Carpenter, as foreman of the job and by virtue of his appointment, had directed the extent of the improvement of the highway and the nature of the work to be done, including the giving of directions as to the use of dynamite. On the afternoon of the accident Carpenter was not present. Only defendants Kilgarlen and Conley were present and engaged in the work.

In order to remove some of the obstructions on the easterly side of the road two sticks of dynamite had been placed by Kilgarlen, and, in order to warn the traveling public, Kilgarlen sent Bullock up the road in the direction of East Albany, and from which direction the plaintiff was coming, and instructed him to warn the traveling public of the danger. Kilgarlen and Conley went in the opposite direction to warn travelers.

One charge of dynamite was set off by Conley, and the other was set off by Kilgarlen. The charge set off by Conley exploded just as the automobile in which the plaintiff was riding was abreast of the place where the dynamite bad been planted, causing the injuries complained of.

No signs indicating that road construction was going on or that dynamite was being used were placed along the highway, but the plaintiff knew that road construction was going on at the place of accident, for he went over the road earlier the same day and saw some of the defendants there working. When Bullock went up the road, as directed by Kilgarlen, he had with him Conley's team, and was walking behind the horses, and, when the plaintiff appeared, he turned his horses to the right side of the road, and the plaintiff drove up beside him.

After stating the plaintiff's claim that Bullock gave him no warning, and that he drove past Bullock without any knowledge that he was endangering himself, the court makes this specific finding: "We find (further) that said Bullock did give warning to the plaintiffs, that they did not heed the warning which he gave but drove on to the point where the dynamite exploded." This finding is excepted to on the ground that it is not supported by the evidence.

The finding must stand if...