Manley Blaisdell v. Dean P. Blake

• Decision Date: 06 February 1940
• Citation: 11 A.2d 215,111 Vt. 123
• Parties: MANLEY BLAISDELL v. DEAN P. BLAKE
• Court: Vermont Supreme Court

11 A.2d 215

111 Vt. 123

MANLEY BLAISDELL v. DEAN P. BLAKE

Supreme Court of Vermont

February 6, 1940

January Term, 1940.

Assumption of Risk, Res Ipsa Loquitur.---1. Comprehension of Risk Assumed.---2. Assumption of Risk Bars Recovery.---3. Burden of Proof to Negative Knowledge of Risk.---4. No Assumption of Risk of Saw.---5. Burden of Proving Freedom from Contributory Negligence.---6. Proving Freedom from Contributory Negligence.---7. Freedom from Contributory Negligence of Saw.---8. Allegations of Fact, not Conclusion.---9. Pleading Particulars not Bar to Res Ipsa Loquitur.---10. Facts Bar Res Ipsa Loquitur.---11. Res Ipsa Loquitur Not Added to Evidence.

1. An extraordinary risk existing by the fault of an employer is not assumed by an employee unless he knows and comprehends it or it is so plainly observable that he would be taken to have known and comprehended it.

2. An employee who knows or should have known of such an extraordinary risk in his employment can not recover for injuries received thereby.

3. Want of knowledge and comprehension of an extraordinary risk existing in connection with employment is an essential element of the case of a plaintiff who was injured in connection therewith and unless he sustains the burden to negative them he will be taken to have assumed the risk and be barred from recovery.

4. When an employee is at his employer's direction standing where and in a position he is directed with his back to a circular saw which the defendant starts, without warning, to the injury of the plaintiff, a jury could find the risk to be an extraordinary one existing by the defendant's fault and not assumed by the employee because he did not know and comprehend it and it was not obvious he should have.

5. Although the burden of proving freedom from contributory negligence is on a plaintiff, it is not necessary that he introduce evidence distinctly directed to that matter.

6. Inferences requisite for a finding of freedom of contributory negligence may be drawn from evidence of a more general character.

7. An employee standing at the direction of his employer with his back to a stationary circular saw who is injured by its being unexpectedly started by his employer could be found to be free from contributory negligence.

8. Allegations which sufficiently allege the plaintiff's ignorance of the conditions and dangers surrounding him when injured from which the conclusion of non-assumption of risk necessarily follows are sufficient without alleging such conclusion.

9. A plaintiff by pleading a particular cause of accident does not lose his right to rely upon the doctrine of res ipsa loquitur.

10. Where all the facts attending an injury are disclosed by the evidence and nothing is left to inference, the doctrine of res ipsa loquitur has no application.

11. When all the facts relating to the alleged negligence of the defendant in the operation of a machine which injured the plaintiff are presented to the jury through the testimony of witnesses of both parties, a conflict therein creates an issue of fact for the jury and to instruct the jury that it might give the plaintiff the benefit of the doctrine of res ipsa loquitur in addition to considering his evidence is error.

TORT FOR NEGLIGENCE by a servant against his master alleging unsafe place to work. Trial by jury, April Term, 1939 Franklin County Court, Hughes, J., presiding. Verdict and judgment for the plaintiff, exceptions to the defendant. Opinion states the case.

Judgment reversed and cause remanded.

M G. Leary, F. S. Bedard, Jr., and P. C. Warner for the defendant.

Sylvester & Ready for the plaintiff.

Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.

OPINION

BUTTLES

This is an action in tort for negligence in failing to provide the plaintiff, a servant of the defendant, with a safe place in which to work, and in starting an unguarded circular saw without warning to the plaintiff when the latter, by direction of the defendant, was working so near the saw that putting it in motion endangered his life and limb. The accident occurred on September 21, 1937, in the yard of defendant's home farm in Fairfax. Defendant, plaintiff and another employee were engaged in relocating and setting up a wood sawing rig which consisted of a wooden frame and table across the top of which there was an arbor or shaft with a circular saw mounted at one end and a pulley at the other. A tractor furnished power to the saw by means of a belt running from a pulley on the tractor to the pulley on the saw rig.

The saw rig had been moved to the desired location and staked down and the belt placed over both pulleys. It was then necessary to get the tractor in such position that the two pulleys would be the proper distance apart and in proper alinement. After this had been accomplished by such moving of the tractor back and forth as might be necessary the tractor had to be made stationary by setting the brakes or blocking the wheels. Whether the process of alinement and setting the brakes or blocking the wheels had been completed when the accident occurred is in dispute, but it is undisputed that the plaintiff, when injured, had taken a position near the saw in order to direct the movement of a truck which was backing toward the saw to receive a load of sawed wood. While the plaintiff was signaling the driver of the truck with his left arm and hand the arm came in contact with the saw and the injury of which he complains was inflicted. The defendant operated the tractor during the process of alinement from the seat thereon where he was still seated when the plaintiff was injured. Trial was by jury with verdict and judgment for the plaintiff and the case comes here on the defendant's exceptions.

The defendant excepted to the denial of his motion for a directed verdict and to the denial of his motion to set aside the verdict. The grounds upon which he relies in support of both motions are that the evidence, viewed in the light most favorable to the plaintiff, showed that the plaintiff assumed the risk, and failed to show that he was not guilty of contributory negligence.

An extraordinary risk existing by the fault of the defendant is not assumed by the plaintiff unless he knows and comprehends it or it is so plainly observable that he will be taken to have known and comprehended it; then, in either case, he cannot recover. Dunbar v. Central Vermont Ry. Co., 79 Vt. 474, 476, 65 A. 528; Dumas v. Stone, 65 Vt. 442, 25 A. 1097. Hence want of such knowledge and comprehension is an essential element of the plaintiff's case, and consequently the burden is on him to negative them, otherwise he would be taken to have assumed the risk and could not recover. Dunbar v. Central Vermont Ry. Co., supra; McDuffee's Admx. v. Boston & M. R. R. Co., 81 Vt. 52, 69, 69 A. 124, 130 Am. St. Rep. 1019; Barney's Admx. v. Quaker Oats Co., 85 Vt. 372, 382, 82 A. 113. Plaintiff's evidence tended to show that he was directed by the defendant to stand in the exact place where he was standing when hurt; that when he took that position the process of alinement had been completed and the saw was not running and was not put in motion until the moment of his injury; that while the plaintiff was standing with his back to the saw and with his arm raised to signal, the defendant started the saw without warning to the plaintiff and caught his upraised arm inflicting injury. From the evidence the jury could find that the risk was an extraordinary one, existing by the fault of the defendant, and that it was not assumed by the plaintiff because he did not know and comprehend it and it was not so obvious that he will be taken to have known and comprehended it.

The burden of proving freedom from contributory negligence was of course, on ...