Lucas v. Kelley

• Decision Date: 01 October 1929
• Parties: JOHN LUCAS v. W. A. KELLEY
• Court: Vermont Supreme Court

147 A. 281

102 Vt. 173

JOHN LUCAS v. W. A. KELLEY

Supreme Court of Vermont

October 1, 1929

May Term, 1929.

Failure To Strike Out Answer Given before Objection and Exclusion of Question---Opinion Evidence---Matters Where Jury May as Well Draw Inferences as Witness---Negligence---"Invitee"---Extent of Invitation Extended to Invitee---Master and Servant---"Volunteer"---Duty Owed Volunteer---Exception Where Coupled with Interest---Insufficiency of Facts To Show Invitation.

1. Where plaintiff called defendant as witness and latter answered question asked him in negative before objection was interposed and question excluded, and answer was not stricken out nor request made to that end, although lower court, and parties in their brief treated question as unanswered, held that, under circumstances of case, answer should be treated as part of record, and plaintiff's exception as unavailing.

2. In ACTION OF TORT for negligence to recover damages for personal injuries received in sawmill, exclusion of opinion of expert witness, who had examined slab-saw bench where plaintiff was injured, as to its safety, held without error, where no conditions existed in and about such saw-bench that could not be made clear to jury so that they, in exercising their sound judgment, could as well draw inferences from such conditions as witness.

3. Where plaintiff went to defendant's sawmill to get some lumber for his employer, he was an "invitee," since facts showed that he entered mill for purpose connected with defendant's business there carried on, and that parties had mutual interest in subject-matter of visit.

4. Ordinarily, invitation to one entering another's premises as invitee extends only to such part of premises as are reasonably required for purpose of his visit, and duty of owner or occupant toward him to keep premises safe is restricted accordingly.

5. Where plaintiff went to defendant's sawmill to get some lumber for his employer, and, without being requested so to do, went to assistance of defendant and latter's son, who were having some difficulty in handling a timber they had just "sized" on board-saw to be used in repairs on mill, and was seriously cut and mangled by getting a foot under slab-saw bench where it was caught by saw, held that he was a mere volunteer, since he had no occasion to go down by slab-saw bench to ask defendant about lumber for which he came, there was no emergency calling for his aid, and accomplishment of his object in entering mill did not depend in any way upon movement of timber on which defendant was working.

6. One owes no duty to another who merely volunteers to assist in his service, except to prevent wanton or wilful injury subject to qualification that if party acting has an interest in work going on, and, for his own advantage or that of his employer, undertakes to assist another or his servants, at their request or with their consent, he is not a mere volunteer, but one with an interest, and is not subject to disabilities of a volunteer, but is entitled to such protection as proportionate care would afford him.

7. To bring one within exception to rule that only duty owed volunteer is to prevent wanton or wilful injury, by reason of interest in work being performed, he must show that enterprise in which he engaged was one in which he or his master had a direct and not an incidental or remote interest and that such interest was substantial rather than trivial.

8. Where plaintiff went to defendant's sawmill to get some lumber for his employer, and, without being requested so to do, went to assistance of defendant and latter's son, who were having some difficulty in handling a timber to be used in repair of mill, and was seriously injured by getting his foot under slab-saw bench where it was caught by saw although defendant knowingly accepted such assistance, that alone was not sufficient to require him to give warning to plaintiff of dangerous conditions, or to keep premises safe for him, since neither knowledge, acquiescence, nor permission, standing alone, amounts to an invitation, and at most plaintiff was no more than licensee in that part of mill where injured, and, as such, defendant owed no greater duty to him than to a trespasser, which was to protect him from injuries from force negligently brought to bear on him.

ACTION OF TORT for negligence. Plea, general issue. Trial by jury at the September Term, 1928, Orleans County, Willcox, J presiding. Verdict directed for defendant, and judgment thereon. The plaintiff excepted. The opinion states the case. Affirmed.

Affirmed.

Hubert S. Pierce and Raymond L. Miles for the plaintiff.

Searles, Graves & Waterman for the defendant.

Present: WATSON, C. J., POWERS, SLACK, and MOULTON, JJ.

OPINION

POWERS

The defendant owned and operated a sawmill in the town of Derby. It was equipped with a board-saw, the carriage of which ran on iron trucks set on stringers--one of which stringers ran to the slab-saw rig. The slab-saw rig consisted of a box-like structure made of plank, about three feet long and two feet wide and two feet high. It was so arranged that when the slab-saw was not in actual use, it dropped down into this box; and when it was needed, a lever was operated and it came up through a slit in the top of the structure for its work. On the side next to the stringer above referred to, this bench was not boarded up and opposite the position of the slab-saw, there was a hole in the stringer some four inches wide and three inches deep, said to have been made by an oversized saw.

The plaintiff, an employee of one Ansboro, went to this mill to get some lumber for the latter. He entered the mill through a door at the south end and found the defendant and his son pulling out a stick of timber which they had just "sized" on the board-saw, and was to be used in repairs on the mill. Seeing that the defendant and his son were having some difficulty in handling this timber, the plaintiff went to their assistance, and pushed on the rear end of the timber so as to work it along on the slab-saw rolls and over the bench. When he thought the timber had been moved so far that the Kelleys could handle it, he stepped back, and in some way, his left foot went under the slab-saw bench far enough to be caught by the saw, which was then running, and was seriously cut and mangled. This action for damages followed. At the trial below, a verdict was ordered for the defendant. The plaintiff brings the case here on exceptions.

The plaintiff called the defendant as a witness; and in the course of his examination asked him if he had "any warning sign or anything around that slab-saw where that hole was" to indicate that it was dangerous. To this question, the defendant answered, "No." Then the defendant's counsel objected and the question was excluded; but the answer was not stricken out, and no request to that end was made. The plaintiff excepted. This exception is briefed by both parties as though the question was unanswered, and it was evidently so treated by the court when the ruling was made. Ordinarily, we should so treat it here, as was done in Fadden v. McKinney, 87 Vt. 316, 323, 89 A. 351. But in the circumstances here presented, we think the answer should be treated as a part of the record. So without discussion, we so treat it, and the exception goes for naught.

The plaintiff improved as a witness Alec Brigham, an experienced millman, who had examined the slab-saw bench, and asked him if in his opinion it was safe. On objection by the defendant, this question was excluded, and the plaintiff excepted. There was no error in this ruling, there was nothing about the conditions existing in or about this saw-bench that could not be made clear to the jury; indeed, photographs made everything plain, and the inference to be drawn from such conditions as to the safety of the place was one which the jurors, exercising their sound judgment, could as well draw as the witness. In such circumstances, opinion evidence is to be rejected. Houston v. Brush, 66 Vt. 331, 338, 29 A. 380.

The facts recited above show that the plaintiff entered the mill for a purpose connected with the defendant's business there carried on, and that the parties had a mutual interest in the subject-matter of his visit. One so entering the premises of another is, in law, an invitee. Coburn v. Swanton, 95 Vt. 320, 325, 115 A. 153. But ordinarily, his invitation extends only to such part of the premises as are reasonably required for the purposes of...