Palmer Landing v. Town of Fairlee
| Decision Date | 07 October 1941 |
| Citation | 22 A.2d 179,112 Vt. 127 |
| Parties | PALMER LANDING v. TOWN OF FAIRLEE |
| Court | Vermont Supreme Court |
May Term, 1941.
Assumption of risk.---1. Master's Duty to Furnish Employee Safe Place Varies with Conditions.---2. Employee Assumes Risks Comprehended.---3. Employer May Assume Employee Knows Obvious Dangers.---4. Employee Has Burden of Proving Non-Comprehension of Risk.---5. Employee in Gravel Pit Assumes Dangers.---6. Employee in Gravel Pit Charged with Danger of Cave-in.
1. The obligation of a master to furnish his servant a reasonably safe place in which to work and to keep such place in reasonable repair does not apply where the work in which the servant is engaged is of such a nature that its progress constantly produces changes in the conditions and surroundings, for the hazards arising from such a situation are regarded as the ordinary dangers of employment and are assumed by the employee.
2. An employee voluntarily continuing his employment also assumes such extraordinary risks as he has opportunity to ascertain and does in fact ascertain and comprehend or are so plainly observable that he must be taken to know and comprehend.
3. An employer has the right to assume that an employee will see and guard against obvious dangers.
4. The burden of proving that an employee did not know and comprehend a danger of his employment rests upon him and unless there is evidence tending to show that fact his employer is entitled to a directed verdict in an action on account thereof.
5. An employer working in a gravel bank from which gravel was being continuously removed by deepening the pit so that an overhang became greater works under such constantly changing conditions and circumstances that he will be considered to be making his own working place as an incident to his work.
6. A man of ordinary intelligence, experienced in working in a gravel pit, who had warned a fellow employee of the danger of a landslide, would be taken to know and comprehend the obvious danger of a cave-in and a verdict was properly directed against him in an action on account of injuries suffered by such a cave-in.
ACTION OF TORT for negligence. Trial by jury, June Term, 1940 Orange County Court, Cleary, J., presiding. At close of plaintiff's evidence, defendant's motion for directed verdict was granted. Exceptions to the plaintiff. The opinion states the case.
Judgment affirmed.
C O. Granai (I. M. Penn of counsel) for plaintiff.
Raymond Trainor and Alfred A. Guarino for defendant.
Present MOULTON, C. J., SHERBURNE, BUTTLES, STURTEVANT and JEFFORDS, JJ.
The plaintiff was one of a party of five men employed by the defendant town to excavate gravel from a bank. While so engaged the bank caved in and he was seriously injured. Upon trial below a verdict was directed against him and the cause is here upon his exceptions.
There is little or no conflict in the evidence as to the material facts. The bank was between twelve and fifteen feet high, and the pit was about fifty feet wide and extended inward some twenty or thirty feet. The soil was composed of mixed gravel and clay, so hard that it had to be loosened by a pick before a shovel could be used, and the bank, at the back of the pit, slanted inward so that the top extended some three feet over the space where the men were working, of which the plaintiff was aware. The digging was done on the floor of the pit, which became deeper and deeper as the work progressed, and from time to time the soil was taken from the bank, so that it came down into the truck that had been placed to receive it, although the overhang of the bank remained the same from the day when the plaintiff was first employed, on a Monday, until the day of the accident, the following Thursday. No loose material had previously fallen into the pit, but on the day before the accident one of the men sat down with his back against the bank and was warned by the plaintiff and the others that he had better get up, for if the bank should fall he would be injured. When the accident happened the truck had been backed into the pit against the bank under the overhang and the plaintiff was some six or seven feet from its side, loading the gravel into the truck. The earth and gravel fell from the overhanging portion above. The plaintiff who was thirty-eight years old, able bodied and accustomed to work as a laborer, was hired by the foreman in charge, who sent him to the pit on the truck, and who, so far as appears, did not give any specific instructions as to the method of prosecuting the work, or visit the place during the period of the plaintiff's employment. The men did the work as they wanted to do it.
No statutory regulation of the relation of...
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