Lewes v. John Crane & Sons

• Decision Date: 21 November 1905
• Parties: LEWES v. JOHN CRANE & SONS.
• Court: Vermont Supreme Court

62 A. 60

78 Vt. 216

LEWES

v. JOHN CRANE & SONS.

Supreme Court of Vermont. Caledonia.

Nov. 21, 1905.

Exceptions from Caledonia County Court; Munson, Judge.

Action by M. A. Lewes against John Crane & Sons. There was a judgment for plaintiff, and defendants excepted. Reversed.

Argued before TYLER, START, WATSON, and HASELTON, JJ.; and reargued before ROWELL, C. J., and TYLER, WATSON, HASELTON, and POWERS, JJ.

Herbert I. Goss and Dunnett & Slack, for plaintiff. J. P. Lamson, for defendants.

HASELTON, J. This was an action on the case in which the plaintiff sought to recover for injuries alleged to have been sustained through the negligence of the defendants. The cause was tried by jury at the June term, 1901, of the Caledonia county court. A verdict was returned for the plaintiff, and judgment was rendered thereon. The defendants excepted.

The defendants were set up in the writ as John Crane, Charles Crane, and George Crane, "as individuals or as partners under the firm name and style of John Crane & Sons." Before the introduction of any evidence the defendants moved that the plaintiff be required to elect whether he would proceed against the defendants as individuals or as partners. But the doctrine invoked was not applicable. The action being what it was, the defendants were not entitled to have the plaintiff ordered to elect in what way he would attempt to connect the defendants. The motion was properly overruled.

In an opening statement to the jury the plaintiff's counsel briefly outlined his claim with regard to the law of negligence. The gist of the statement in this regard was that negligence is a shortage of duty; but some expressions were used which deviated from an accurate definition of negligence. Counsel expressly disclaimed that such statement was made in correct legal form, and at the outset reminded the jury that they were to take the law from the court. There was nothing of an inflammatory character in the statement, and what was said about the law was put forward in a way that suggested to the jury that the claim of the defendants would differ from that of the plaintiff. An exception was taken to the opening statement, but it avails nothing. In so holding there is no intention on the part of the court of giving countenance to the idea that counsel may argue the law to the jury, or read law to the jury, or treat as open questions of law upon which the court has ruled, or in any way seek to have the jury understand that they can do otherwise than to take the law from the court.

At the close of the plaintiff's opening statement the defendants claimed that the plaintiff had alleged more than one cause of action in the same count and moved that the plaintiff be compelled to elect which of such causes of action he would rely upon. The motion was overruled, and the defendants excepted. This motion was properly overruled. If the count in question was bad for duplicity and the defendants desired any ruling or action of the court on that account, they should have demurred. Onion v. Clark, 18 Vt. 363.

The following quotation from the exceptions shows, in brief, what the case on trial was: "The accident occurred November 3, 1899, while plaintiff was working for the defendants on a barn they were building on their premises in Cabot. The negligence complained of was the furnishing by defendants of an unsafe iron hook which sustained one end of a swing staging." Evidence as to the kind of a staging used was received under objection and exception by the defendants; but very clearly nobody could testify intelligibly about the character of the hook in question, unless evidence was received with regard to the kind of a staging of which it formed a part and with regard to its function as a part of such staging.

Evidence on the part of the plaintiff tended to show that in the August next before the accident the defendants purchased some ladders at the price put upon them, which was $7.50, and that at the time of the purchase they were shown the staging hook in question and another, and allowed, if they desired, to take the hooks with the ladders without paying anything in addition to the price put upon the ladders; that the defendants paid the price put upon the ladders and took the hooks with them, and that the hooks were put into a stable and were not used until a few days before the accident. The testimony as to the amount paid for the ladders and as to the throwing in of the hooks was received subject to objection and exception on the part of the defendants. But the fact, if it was a fact, that in the sale and purchase of the ladders the hooks were treated as the testimony tended to show they were, was a circumstance proper for the jury to consider along with the other circumstances which they might find in their efforts to determine what the defendants knew or ought to have found out about the hook in question. The price paid for the ladders, or any other fact about the ladders, taken by itself, was wholly immaterial, as there was no claim or evidence that the ladders had anything to do with the accident. The price paid for the ladders could not have been received and treated otherwise than as an incident of the transaction through which the defendants got the hook in question; and we discover no error in the reception of the testimony on the part of the plaintiff relative to the acquirement by the defendants of the hooks and ladders.

It appeared that the hook in question was procured by the defendants from one Parlin, and there was evidence tending to show that one Wales, a blacksmith, did some work upon the hook during the summer before the occurrence of the claimed injury to the plaintiff, and while Parlin had the use of the hook. Wales was a witness in behalf of the plaintiff, and was permitted to testify to the character of the hook upon which he did the work and to the effect which his work upon the hook would tend to have in weakening it, and that he told one of the defendants about this poor hook. A part of this evidence was received under objection and exception, but all of it was admissible, since, as had been said, there was evidence tending to show that the hook upon which the blacksmith Wales did his work was the hook complained of.

Evidence in the case tended to show that the defendants had no hooks except the two already referred to. In connection With this evidence one Ada Stone, who it appeared was at the defendants' house when an officer went there to serve the writ in the case, was permitted to testify that at that time Mrs. Crane showed the parts of the broken hook, and said witness Ada described the pieces so exhibited, the shape and size of the hook, the angle and location of the break, and the indications of welding. This was not evidence on the part of Mrs. Crane, but was the evidence of a competent witness tending to show the appearance of the parts of the hook in question when she chanced to see them. This testimony of Ada Stone was received subject to objection and exception by the defendants, but there can be no doubt of its admissibility. In their brief the defendants' counsel make no serious contention here, but say: "Perhaps the evidence of Ada Stone was admissible." The exceptions state that "at the trial the defendants were requested to produce the parts of the hook which broke, but did not know their whereabouts." This statement makes it doubly sure that there was no error in the reception of the evidence of Miss Stone.

Charles Preston, a carpenter, was one of the plaintiff's witnesses. It is stated in the exceptions that on cross-examination by the defendants he testified as to "the general danger arising from swing stagings." Thereafter, upon re-examination, he testified, in effect, that he thought the danger that such a staging would swing away from the building might be avoided. This testimony upon re-examination came in under objection and exception on the part of the defendants. But we assume from the language of the exceptions that the defendants had on cross-examination made Preston their witness in respect to the danger arising from the use of swing stagings, and that so they have no ground to complain because during the re-examination of the witness in behalf of the plaintiff he was examined upon that point.

It appeared that the second day before the breaking of the hook it was repaired by one Myers, the repairs consisting in cutting and mending. The plaintiff called Myers as a witness, and the witness told how he mended the hook. Under the defendants' objection and exception he was then asked whether it could have been repaired in any other way by a blacksmith. His reply was: "It could...