Nicholas Lassasso v. Jones Brothers Co.
| Decision Date | 08 February 1915 |
| Citation | 93 A. 266,88 Vt. 526 |
| Parties | NICHOLAS LASSASSO v. JONES BROTHERS COMPANY |
| Court | Vermont Supreme Court |
[Copyrighted Material Omitted]
November Term, 1913.
CASE for negligence. Plea, the general issue. Trial by jury at the March Term, 1913, Washington County, Fish, J., presiding. Verdict and judgment for the plaintiff. The defendant excepted.
Judgment affirmed.
John W. Gordon and Fred L. Laird for the defendant.
J Ward Carver and S. Hollister Jackson for the plaintiff.
Present: POWERS, C. J., MUNSON, WATSON, HASELTON, AND TAYLOR, JJ.
At the close of the plaintiff's evidence, defendant moved for a directed verdict in its favor on the grounds, (1) that the evidence does not show negligence by the defendant; (2) that if any negligence is shown, it was the negligence of a fellow servant; (3) that the plaintiff was on an equality with defendant in knowing of the danger which resulted in his injury, and being so on an equality he can not recover; (4) that the plaintiff is confined by his declaration to negligence by defendant in having, maintaining, or leaving said bank or wall of granite in an unsafe position by reason of stones on and at the top thereof becoming loose, unstable, and liable at any time to fall into the quarry and injure anyone there working, all of which defendant well knew, there being no allegation of a failure to give, or of a duty to give, warning of any danger on the part of anyone; (5) that if there was any negligence aside from that of a fellow servant, it was contributory negligence by the plaintiff; (6) that the uncontradicted evidence shows that defendant had appliances, equipments, and competent men on the quarry to make the place safe; (7) that the failure of the workmen to carry out the instructions in making the place safe was not a matter for which defendant must answer in this action.
The motion was overruled, to which defendant excepted. No evidence was introduced by the defendant.
The evidence, viewed most strongly in favor of the plaintiff as it must be in determining the questions raised by the exception to the overruling of this motion, fairly and reasonably tended to show the facts appearing in the statement of the case.
Regarding the duty of defendant to provide the plaintiff a reasonably safe place in which to work, it is argued in behalf of the defendant that this case is so like the case of Conroy's Admx. v. Nelson, 86 Vt. 175, 84 A. 737, as to be governed by it. In that case the intestate was the rockman of a certain incline in a slate quarry. On the day of the accident he was engaged in quarrying slate rock in that incline, having three helpers under him, one of whom was there to help the intestate in the work of blasting then to be done. At the place named there was a head of slate projecting from the butt of the quarry with a supporting pillar of rock underneath it. Holes had been drilled underneath this projecting head of slate for the purpose of blasting out the supporting pillar of rock, so the head of slate could be freed in the process of quarrying. Under orders from the foreman, the intestate fired the holes, and later noticing a crack he put powder into that and fired it. He then saw a small stone, weighing about fifty pounds, over where he and his helpers were working and right under the projecting head of slate. To get this small stone down, the intestate punched around it with a bar until it fell, followed within a few seconds by the big overhanging rock's tipping out and coming down upon him, producing fatal injuries. It was contended, as in the case before us, that the master was negligent in not furnishing the employee a safe place to work. In disposing of the case, this Court said that at the time in question the intestate was doing work along the line of the ordinary duties of his employment; that the getting out of the head of slate was the purpose and object of the blasting done to take away the supporting rock, and the holes fired were well calculated to cause it to fall; that the intestate and his fellow workmen were practically making their own working place as an incident to the quarrying being done; that every succeeding blast effected a change in the conditions and surroundings, and the dangers to which they were exposed were the direct result of their own operations; and that in such circumstances the ordinary rule requiring the master to furnish the servant a safe place in which to work, does not apply.
The reason why the safe-place rule is held not to be applicable in such circumstances is, that the very work which the servant is employed in doing is of such a nature that its progress constantly produces changes in the conditions and surroundings, and consequently the hazards arising therefrom, to which the servant is exposed, are regarded as the ordinary dangers of his employment and as such assumed by him.
The essentials to the application of the rule applied in the Conroy case, are entirely lacking in the present case, where on the evidence the plaintiff and his helper were not engaged in a work that produced changes in the conditions and surroundings, and they had no part in producing the conditions which caused their injuries. In these circumstances, not that rule, (Superior Coal and Min. Co. v. Kaiser, 229 Ill. 29, 82 N.E. 239, 120 Am. St. Rep. 233; Casey v. Kelly-Atkinson Constr. Co., 240 Ill. 416, 88 N.E. 982; Kranz v. Long Island Ry. Co., 123 N.Y. 1, 25 N.E. 206, 20 Am. St. Rep. 716; Highland Boy Gold Min. Co. v. Pouch, 61 C.C.A. 40, 124 F. 148; Corby v. Missouri & K. Telph. Co., 231 Mo. 417, 132 S.W. 712; Ft. Smith & W. R. Co. v. Ketis, 26 Okla. 696, 110 P. 661; Novy v. Breakwater Co., (Conn.) 92 A. 668,) but the safe-place rule, requiring the master to exercise reasonable care and prudence to provide his servant a reasonably safe place in which to do the work assigned him, is applicable. Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416, 74 A. 99; Davis v. Central Vermont R. R. Co., 55 Vt. 84, 45 Am. Rep. 590; Marshall v. Dalton Paper Mills, 82 Vt. 489, 74 A. 108, 24 L.R.A. (N. S.) 128; Dailey v. Swift & Co., 86 Vt. 189, 84 A. 603.
The foreman on the quarry in the afternoon when the blast was fired and also the next morning when the plaintiff was injured, had full charge there, (the superintendent being absent,) and consequently he was intrusted with the performance of this duty resting upon the master. He stood in the place of the master, was vice-principal, and notice to him by the powderman immediately after the blast of the dangerous condition of the header, was in law notice to the master, and for the foreman's negligence, if any, in not remedying the defect so as to make reasonably safe the working place where the plaintiff was engaged when injured before sending him there, the master is liable. Davis v. Central Vermont R. R. Co., cited above; McKane v. Marr & Gordon, 79 Vt. 13, 63 A. 944; Comeau v. Manuel & Sons Co., 84 Vt. 501, 80 A. 51. Whether upon the evidence the foreman was in fact guilty of such negligence, was a question for the jury. The fact, if it be a fact as argued by defendant, that it was the duty of the powderman (a fellow servant) after firing the blast, to remove all loose stones resulting therefrom, makes no difference; for if the master knew, or in the exercise of due care ought to have known, of the unsafe condition before the accident, it was a breach of duty on its part not to exercise due care to remedy such condition, and the law...
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