Robie v. Boston & M. R. R.

• Decision Date: 01 May 1917
• Citation: 91 Vt. 386,100 A. 925
• Court: Vermont Supreme Court
• Parties: ROBIE v. BOSTON & M. R. R.

100 A. 925

91 Vt. 386

ROBIE

v. BOSTON & M. R. R.

Supreme Court of Vermont. Orleans.

May 1, 1917.

Exceptions from Orleans County Court; E. L. Waterman, Judge.

Action by Robie against the Boston & Maine Railroad. Judgment for plaintiff, and defendant brings exceptions. Affirmed.

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

Porter, Witters & Harvey, of St. Johnsbury, for plaintiff. George B. Young and Walter H. Cleary, both of Newport, for defendant.

POWERS, J. Robie sues the company under the federal Employers' Liability Act. He was a section man, and was, when injured, riding to his work on a pump hand car provided by the defendant for that purpose. At the close of the evidence the defendant moved for a directed verdict, and the only questions presented for review are brought here by exceptions to the action of the court below in overruling this motion.

The evidence was sharply conflicting; but, viewing it in the light most favorable to the plaintiff (as we must under the motion), the following facts were fairly and reasonably within its tendency: The plaintiff did not arrive at the carhouse on the morning of the accident until his fellow workmen had loaded the handcar and were about ready to start out for their work. It was the well-known custom of the workmen to carry tools, bolts, and other material on the car, but never before during the plaintiff's employment had any loose bolts been carried on the floor of the car; they had always been carried in a box or keg provided for the purpose. On this particular morning, in addition to the usual number of bars, shovels, picks, and adzes, there had been dumped onto the floor of the car a quantity of loose bolts. About half of them were without nuts, and they would roll about on the floor, and there was nothing to prevent them from rolling to the parts of the car occupied by the plaintiff. When he arrived that morning seven men had already taken their places on the car. Three stood on the south end, two on the north end, and two between the handles. He did not see the bolts, and did not know they were there. He mounted the car, and took his place on the south end, finding there plenty of room, and took hold of the pumping bar with his right hand, standing sideways. Leach stood at the bar to his left, and Bovin to his right. As the bar went down in the operation of the car, all let go of it as it passed below normal reach, catching it again as it came back up, which was a safe and proper method. The plaintiff had frequently ridden on the front end of the car, and knew all about the perils incident to that position. The car proceeded south at about four or five miles an hour, the track was smooth, and the car was in good repair. The plaintiff was watching the track for defects, as was his duty according to instructions from his superior. All at once Leach bumped against him, and as he took a step backward he stepped on a bolt. This rolled under his foot, and he lost his balance and fell from the car, and suffered the injuries sued for.

We are well aware that the foregoing is a very different case from that treated in the defendant's brief, but it is the case made by the record before us. The defendant ignores the testimony given by the plaintiff himself, and the inferences fairly deducible therefrom, but we cannot. This testimony may have been unreasonable; it may have been inconsistent; it may have been contradictory; but it was not impossible, and therefore it was for the jury to weigh and consider. Pocket v. Almon, 90 Vt. 10, 96 Atl. 421; Jacksonville Elec. Co. v. Dillon, 67 Fla. 114, 64 South. 669.

We agree with the defendant that the gist of the action is negligence (Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475), but we cannot agree that there was no evidence to carry the case, to the jury on that question. The fact that these loose bolts were carried on the floor of the car instead of in the box or keg, where they were liable to roll around or be scuffled about by the feet of the men, until, as might reasonably have been expected, one was stepped on with disastrous results, was enough to warrant the inference that whoever put them there or suffered them to remain there failed to act the part of a prudent man according to the requirements of the safe place rule as interpreted by the federal Supreme Court. Seaboard Air Line Ry. v. Horton, supra. Whether this was the act of a coservant or a vice principal is of no consequence in this action. Mondou v. New York, N. H. & H. R. Co., 223 U. S. 3, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A (N. S.) 44; Pedersetn v. Delaware, L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153.

Nor did the plaintiff assume the risk. To be sure, he assumed the normal hazards incident to riding on the front end of this car. But this particular risk—the risk of being thrown from the car by stepping on a rolling bolt carelessly left on the floor by a fellow workman—he did not assume; for...