Morrisey v. Hughes
| Decision Date | 17 July 1893 |
| Citation | 27 A. 205,65 Vt. 553 |
| Parties | ELLEN MORRISEY, ADMINISTRATRIX v. WILLIAM H. HUGHES |
| Court | Vermont Supreme Court |
GENERAL TERM, 1893
Action on the case for the negligence of the defendant, resulting in the death of the plaintiff's intestate. Plea, the general issue. Trial by jury at the March term, 1892, Ross, Ch. J presiding. Verdict and judgment for the plaintiff. The defendant excepts.
Judgment affirmed.
J.C Baker for the defendant.
Before: TYLER, MUNSON, START AND THOMPSON, JJ.
I. The declaration contained an averment of every fact necessary to be proved to bring the case within the statute; therefore it was not necessary that the statute in express terms, should be referred to. Westcott v. Railroad Co., 61 Vt. 438, 17 A. 745.
II. The plaintiff's evidence tended to show that the trucks and frame of the car were precipitated into the quarry through the negligence of the defendant in not placing and properly securing a blocking at the end of the rails to prevent the car from running off the end of the track into the quarry; while that of the defendant tended to show that the ends of the rails were properly blocked, that the intestate had been instructed by the foreman not to send up large stones in the box to be placed upon the car, and that on this occasion, against the protest of the pitman, he sent up too large a stone, which, when placed on one end of the car, threw the other end up and caused it suddenly and violently to back towards the edge of the quarry, when, despite the blocking, the wheels went over it and the car fell into the quarry, killing the intestate. As the evidence upon this point was conflicting the court could not properly have directed a verdict for the defendant.
III. The court correctly stated the rule of law in respect to negligence, as applicable to the case, and, as illustrative of the duty which the defendant owed to his employe, added the remark that the defendant was to act as any prudent man would if he was acting both as employer and employe; that he should not put his help in any place of danger that he, as a prudent and careful man, would not put himself in if he was doing the work himself, both as employer and employe. This might not be a correct rule of conduct in all cases. An employer might in certain circumstances send an employe into places of danger where as a prudent man he would not go himself. In this case the intestate was employed in a dangerous place and assumed all the obvious risks of the employment. The only...
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