Laflam v. Missisquoi Pulp Co.

• Decision Date: 27 February 1902
• Citation: 74 Vt 125,52 A. 526
• Parties: LAFLAM v. MISSISQUOI PULP CO.
• Court: Vermont Supreme Court

52 A. 526

74 Vt 125

LAFLAM

v. MISSISQUOI PULP CO.

Supreme Court of Vermont. Orleans.

Feb. 27, 1902.

Exceptions from Orleans countycourt; Tyler, Judge.

Action by Edmund Laflam against J. T. Shepley and D. M. Shepley, partners as the Missisquoi Pulp Company.Judgment for plaintiff, and defendants bring exceptions.Reversed.

Argued before ROWELL, MUNSON, START, WATSON, and STAFFORD, JJ.

John W. Redmond, for plaintiff.

Alfred A. Hall, for defendants.

START, J.The action is case for the recovery of damages alleged to have been caused by the defendants' negligence.At the close of the evidence the defendants moved for a verdict, for that the plaintiff's negligence contributed to the injury, and because no negligence on the part of the defendants was shown.The motion was denied, and the defendants excepted.

The plaintiff, when 18 years of age, was employed by the defendants to work in their pulp mill.After working two nights, he received the injury complained of, by having his hand caught between two revolving cogwheels while attempting to oil a pump.From the evidence it is considered that the plaintiff knew that there were revolving wheels attached to the pumps, and that contact with them would be dangerous.It is also considered that the evidence tended to show he did not know how to oil the pumps without exposure to this danger; that this want of knowledge was not due to his failure to exercise ordinary care; that there was a reasonably safe way, known to the defendants, by which this work could be done without exposure to the particular danger to which the plaintiff was subjected; and that he did not know of this way, and in this particular was in need of instruction.The plaintiff had worked in the mill only two nights when he received the injury complained of.His evidence tended to show that, under his employment, it was his duty to oil the pumps, and that the reason he did not go on the other side of the pump, instead of reaching over the wheels as he did, was because he did not consider there was a good chance to get around there, with all of the wheels turning.In view of the noise and confusion attending the operation of machinery, the fact that the plaintiff had never attempted to do this kind of work before, and all of the circumstances, conditions, and surroundings disclosed by the evidence, we cannot say, as a matter of law, that a prudent person in like circumstances would not have so considered, and not have attempted to oil the pump by reaching over as the plaintiff did.

This brings us to the consideration of the question of whether the plaintiff, while reaching over to oil the pumps, omitted to take any precautions for his safety that a prudent person in like circumstances would have taken.The plaintiff's evidence tended to show that he had never seen pumps of this kind before, that both pumps were working, that they were very near together, that he was suddenly ordered by the foreman to oil them, and that in doing so he was required to work about rapidly-moving machinery.From this evidence, and the description of the machinery about the pumps and their location, the jury might fairly find that there was danger in reaching over the revolving wheels, that a prudent man, acting without previous experience or instruction, would not have fully comprehended and guarded against.We cannot say, as a matter of law, that the plaintiff did not encounter such danger, nor that he did or omitted to do anything that a prudent person in like circumstances would have done or omitted.We cannot say that a prudent person in like circumstances would not have reached out his hand, with a view of resting it upon the capping on the opposite side of the pump, in order to make his position more secure, and, in doing so, encountered a danger that had not been foreseen and comprehended by him.In 7 Am. & Eng. Enc.Law (2d Ed.) 378, numerous cases are cited in support of the rule that there has been no want of ordinary care when, under all the circumstances and surroundings of the case, the person injured, or those whose negligence is imputable to him, did or omitted nothing which an ordinarily careful and prudent person similarly situated would not have done or omitted, and, conversely, that there has been a want of ordinary care when, under all the circumstances and surroundings of the case, something has been done or omitted that an ordinarily careful and prudent person so situated would not have done or omitted to do The fact that the plaintiff knew that there were revolving wheels attached to the pump, and that contact with them would be dangerous, is not, as a matter of law, controlling.The fact that danger is knowingly incurred in the performance of necessary work is not always decisive upon the question of contributory negligence.While an employe is held to assume the ordinary risks incident to his employment, and known dangers, if he is forced into a place of danger by the command of a superior, and encounters a danger known to the master and unknown to him, which he could not reasonably have foreseen as one of the hazards of the place, and an injury results to him by the negligence of the master, he is not, as a matter of law, disentitled to recover.In such an instance the injury results not from a known danger, the risk of which was assumed, but from an extraneous cause; and, when the evidence tends to show that the injury was received under such circumstances, the issue of contributory negligence is for the jury.Dumas v. Stone, 65 Vt. 442, 25 Atl. 1097;Reynolds v. Railroad Co., 64 Vt. 66, 24 Atl. 134, 33 Am. St. Rep. 908;7 Am. & Eng. Enc.Law (2d Ed.) 396, 397, 423;Gray v. Scott, 66 Pa. 345, 5 Am. Rep. 371.In Cook v. Railway Co., 34 Minn. 45, 24 N. W. 311, it is held that while the servant assumes the ordinary risks of his employment, and, as a general rule, such extraordinary risks as he may knowingly and voluntarily see fit to encounter, he does not stand upon the same footing as the master as respects the matter of care in inspecting and investigating the risk to which he may be exposed.He has the right to presume that the master will do his duty in that respect, so that, when directed by proper authority to perform certain services, or to perform them in a certain place, he will ordinarily be justified in obeying orders without being chargeable with contributory negligence, or the assumption of the risk of so doing; but he must not rashly and deliberately expose himself to unnecessary and unreasonable risks, which he knew and appreciated.In 7 Am. & Eng. Enc.Law (2d Ed.) 392, many cases are cited in support of the rule that even though the person injured knew of the danger, or had reason to apprehend it, yet it does not necessarily follow that he has been guilty of contributory negligence.Notwithstanding his knowledge of or reason to apprehend danger, he may have been in the exercise of ordinary care to avoid injury, and in such event his injury may be solely due to the negligence of another.Thus one may voluntarily and unnecessarily expose himself or his property to a known danger without being guilty of contributory negligence, as a matter of law; and while, in so doing, he is held to assume all risks of injury which a careful and prudent person would apprehend as likely to flow from his conduct, yet, if injured by the negligence of another, without any negligence upon his own part proximately contributing to the injury, he may recover.

The statement of the plaintiff immediately after the accident that he was careless, and he alone to blame, was not conclusive proof of contributory negligence, but was open to neutralization by showing that, on reflection and consideration, he had come to think other wise.This is the holding In Stowe v. Bishop, 58 Vt. 498, 3 Atl. 494, 56 Am. Rep. 569.The testimony tending to show that the plaintiff on the former trial testified that he did not know what he was doing with his left hand when he was oiling the machinery with his right was not controlling, as a matter of law, upon this question.If the testimony given by the plaintiff on this trial, without the testimony tending to show different statements on the former trial, presented a case proper for the consideration of the jury, the question was for the jury, with this testimony.The source from which the evidence came, and its nature, did not change the question of fact to one of law.The evidence tending to show what the plaintiff stated on the former trial was impeaching evidence; also evidence tending to show how the accident occurred, and upon the question of contributory negligence,—but was not controlling.It was for the jury, from all the evidence before them, to say how far the plaintiff was impeached by this evidence, and how the accident occurred.Herrick v. McCawley, 72 Vt. 240, 47 Atl. 784.

It is also considered that the plaintiff's evidence tended to show negligence on the part of the defendants in not giving him needed instructions as to the manner of oiling the pumps, and its attending danger.The evidence tends to show that the plaintiff was 18 years of age; that the defendants had known him since he was 6 years of age; that, at the time he was employed, the defendants asked him if he had ever worked in a mill, and he told them he had worked around a sawmill; that the plaintiff was ignorant of machinery; that he had never before seen pumps of the kind used in the defendants' mill; that the wheels were revolving so rapidly that he could not see the cogs on them, and did not know they were there; that he had worked in the mill only two nights; that there were dangers connected with the oiling of the pumps that an inexperienced workman might fail to perceive; that this was or ought to have been known to the defendants; and that he was suddenly called upon to perform this service, without any instruction as to the manner of doing it, or caution respecting its danger.The...