Luigi Pette's Admr. v. Old English Slate Quarry

• Decision Date: 04 February 1916
• Citation: Luigi Pette's Admr. v. Old English Slate Quarry, 96 A. 596, 90 Vt. 87 (Vt. 1916)
• Parties: LUIGI PETTE'S ADMR. v. OLD ENGLISH SLATE QUARRY
• Court: Vermont Supreme Court

96 A. 596

90 Vt. 87

LUIGI PETTE'S ADMR. v. OLD ENGLISH SLATE QUARRY

Supreme Court of Vermont

February 4, 1916

October Term, 1915.

CASE for negligence.Plea, the general issue.Trial by jury at the September Term, 1914, Rutland County, Slack, J., presiding.Verdict and judgment for the plaintiff.The defendant excepted.The opinion states the case.

Judgment reversed and new trial ordered on terms that the plaintiff pay defendant's costs up to the time of filing a new declaration, and take none during that time if he finally recovers, except for service of the writ and entry of the action.If a new trial is not accepted on these terms let judgment on the verdict be arrested with costs in this Court and in the court below.Cause remanded.

T W. Moloney and Walter S. Fenton for the defendant.

Phelps & Pratt and Lawrence, Lawrence & Stafford for the plaintiff.

Present MUNSON, C. J., WATSON, HASELTON, POWERS, AND TAYLOR, JJ.

OPINION

POWERS

Luigi Pette, a laborer in the defendant's quarry, was killed by a stone that fell and crushed him.He was at work on a bench in the pit and the stone was being hoisted out of the quarry by a half-inch chain hitched around it.When it was about to pass over the butt of the quarry in its passage along the cable to its destination, the cable sagged so much that the stone struck against the bank; at that instant the chain broke, and the stone in falling struck an iron pin set in the ledge, glanced off to the south and fell upon the intestate.There was evidence fairly and reasonably tending to show that this chain was insufficient in size and strength to handle stones of the size it was then being required to carry; that it was an old chain, had been in use for some time, and that such chains deteriorate with use; that it had been frequently repaired; that an accident befell the cable on which the carrier ran shortly before this accident, and it had been so temporarily repaired that it sagged under a load and this was how the stone happened to strike the butt of the quarry,--whereas if the cable had been in its former condition the stone would have swung clear and passed over the butt without touching it; and that the inspection of the chain by the superintendent was inadequate.It is very plain from this that the question of the defendant's negligence was for the jury.

There was no direct evidence that the intestate was ignorant of the condition of the cable or the insufficiency of the chain, but the circumstances tended strongly to indicate that he was ignorant of these matters, and the jury was fully justified in so finding.If the fault in the chain was its insufficient size, it would require judgment, experience and special knowledge to determine its insufficiency.The approximate weight of the stone to which it was fastened would also be a matter of judgment and experience.The character of the intestate's duties, the short time he had worked in this quarry, the lack of occasion and opportunity on his part of inspecting the chain or the loads put upon it, and the character of the man as shown by the record were circumstances warranting an inference that he was ignorant of the facts referred to.So far as the condition of the cable is concerned, the evidence shows that he was not present when it was injured or repaired and the evidence tended to show that he knew nothing about it.The question of assumption of risk was for the jury.When the stone started up out of the pit, Rossi, the man who chained it and who was at work on the same bench, called to the intestate to "look out."Thereupon the latter, who was not then near the stone, ran over to the corner of the bench about ten feet way, and when the warning sound indicated that the stone was about to fall, he started toward the west to avoid its hitting him.It is quite apparent that the intestate was far enough to one side of the stone,--one witness put the distance at fifteen feet--that he would have been safe if the stone had not in falling struck the pin and glanced off in his direction.When it did fall be was too late to escape it.That he did not in fact reach a place of safety does not necessarily imply that he did not use due care.Ingram's Admrx. v. Rutland R. Co., 89 Vt. 278, 95 A. 544.The question is, did he exercise the care of a prudent man?He seasonably sought a place of safety, and had it not been for the glancing of the stone, the place selected would have availed him.It was for the jury to say whether or not his conduct measured up to the prudent man standard.

Kilroy v. Foss, 161 Mass. 138, 36 N.E. 746andKinney v. Corbin, (Pa.)19 A. 141, cited by the defendant, are not authorities to the contrary.The former involved only the fall of a stone by the breaking of a chain; the plaintiff voluntarily put his foot under the stone and made no attempt to keep out from under it.In the latter case, the plaintiff not only voluntarily went under the stone, but he knew that the chain was considered unsafe.In neither of the cases did any unusual condition, like the bounding of this stone from the pin, appear.It was not error to exclude the testimony as to instructions given by the defendant to Rossi in regard to inspecting the chain.The duty of the master to furnish reasonably safe instrumentalities and to keep them in that condition is non-delegable.If Rossi negligently discharged that duty or omitted it altogether, the shortage was that of the defendant.James Moloney a pit-man of 22 years' experience was improved as a witness and testified in effect that a half-inch chain is not heavy enough to handle a stone the size of the one which is here in question.The defendant objected and excepted to this testimony on the ground that the witness "had made no special observation of this subject."But the witness testified to his experience with chains of various sizes and that he had observed by comparison the strength of various sized chains.This warranted a finding that he was qualified to give an opinion as to the suitability of a half-inch chain and the ruling was without error.

The defendant also complains that this witness was allowed to state that he did not use a half-inch chain because it is not strong enough, without any showing that the conditions under which he used a chain were at all similar to those in the defendant's quarry.But the transcript shows that the kind of a chain used by the witness was brought out in his cross-examination; and that when on re-direct examination he was asked why he did not use a half-inch chain only a general objection was made that his answer...