Powlie's Adm'x. v. McDonald, Cutler & Co.

• Decision Date: 09 January 1913
• Citation: Powlie's Adm'x. v. McDonald, Cutler & Co., 85 A. 692, 86 Vt. 395 (Vt. 1913)
• Court: Vermont Supreme Court
• Parties: POWLIE'S ADM'X. v. MCDONALD, CUTLER & CO.

85 A. 692

86 Vt. 395

POWLIE'S ADM'X.

v. MCDONALD, CUTLER & CO.

Supreme Court of Vermont. Washington.

Jan. 9, 1913.

Exceptions from Washington County Court; Frank L. Fish, Judge.

Action by James Fowlie's administratrix against McDonald, Cutler & Co. Judgment for plaintiff, and defendant excepts.Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

John W. Gordon and S. Hollister Jackson, both of Barre, for plaintiff.

H. R. Bygrave, of Boston, Mass., and R. A. Hoar, of Barre, for defendant.

HASELTON, J.The action is case for negligence.Trial by jury was had, and the plaintiff obtained a verdict on which judgment was rendered.The defendants excepted.

The plaintiff's intestate was killed in the defendants' employment, and while assisting in the operation of a dump car.While he and the man he was assisting were pushing a car into which a stone had been previously loaded, the car tipped up towards them in consequence, as some of the evidence tended to show, of defects in the car, the stone came off, and the intestate was killed.The case has been twice before this court(82 Vt. 230, 72 Atl. 989;85 Vt. 439, 82 Atl. 677), and enough has already been said to make a general statement of the case unnecessary at this time.

The sole claim which the defendants now make is that there is no evidence in the case tending to show nonassumption by the intestate of the extraordinary risk, and that, therefore, a verdict should have been directed for the defendants.The question is raised by an exception to the action of the trial court in overruling a motion for a directed verdict.This same question was in the case when it was first here, and the contention of the defendants was not sustained.

The transcript of the evidence has been made a part of the exceptions in this case, and we do not undertake to say that the evidence is so far the same as that received on the first trial as to make the doctrine of the law of the case applicable here.But the evidence bearing upon this question is so similar that the decision of the point made when the case was first here is of great authority.

The court then recognized the rule as to the burden of proof for which the defendants contend and which is familiar law in this state, but, applying a general rule to the specific case, said of the nonassumption of risk: "It may be established by the proof of such facts and circumstances as warrant the jury in drawing therefrom an inference that Fowlie was ignorant of the defects or its dangers.* * * The character of the alleged defects, their location and extent, Fowlie's short experience with the car, his opportunity to take note of its...