Ryder v. Vermont Last Block Co.

• Decision Date: 19 January 1917
• Citation: Ryder v. Vermont Last Block Co., 91 Vt. 158, 99 A. 733 (Vt. 1917)
• Parties: RYDER v. VERMONT LAST BLOCK CO.
• Court: Vermont Supreme Court

99 A. 733

91 Vt. 158

RYDER

v. VERMONT LAST BLOCK CO.

Supreme Court of Vermont. Windham.

Jan. 19, 1917.

Exceptions from Windham County Court; Willard W. Miles, Judge.

Action by Affra H. Ryder against the Vermont Last Block Company.Verdict and judgment for plaintiff, and defendant excepts.Judgment affirmed, except as to damages, and as to that question reversed and cause remanded.

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

Chase & Chase and Barber & Barber, all of Brattleboro, for plaintiff.Gleason & Willcox, of Montpelier, for defendant.

HASELTON, J.This is an action to recover for personal injuries received by the plaintiff while in the service of the defendant.Trial was by jury, and verdict and judgment were for the plaintiff.The defendant brings exceptions.

The main questions are presented by an exception to the refusal of the court at the close of the evidence to direct a verdict for the defendant.In considering this exception we are to treat as proved what the evidence making in the plaintiff's favor fairly and reasonably tended to show, and the case so made may be briefly stated in narrative form as follows:

The defendant, at the time of the accident, operated a factory in which it was engaged in the manufacture of shoe lasts, croquet balls, and other wooden things.Wood was cut into rough blocks on the first door of the factory, and these rough blocks were carried to the second floor by belt conveyors, which dropped the blocks into spouts, or troughs, which tipped at such an angle that the blocks dropped from ends of the spouts to the floor.The spouts were so high above the floor that they did not interfere with the passing of men under them.

The plaintiff was in the employ of the defendant and worked at a saw bench on the second floor of the factory, and a part of his duty was to wheel a truck, to get waste material, to the bench from a point so located that a direct and convenient course took him under and past one of the spouts, or troughs, in question, and that he was going under such trough by direction of his foreman when a block of wood came over the side of the trough and in falling hit the plaintiff on the head and inflicted the injury complained of.

One ground of the motion for a verdict was that the plaintiff's case did not tend to show proximate negligence on the part of the defendant.Evidence on behalf of the plaintiff tended to show that the block of wood that struck him came over the side of the trough and fell upon him instead of sliding down the trough, because a metal lining of the trough was broken or torn up, and that this condition of the metal lining had existed for a month or so.The defendant was bound to furnish the plaintiff a reasonably safe place to work and to keep it in reasonable repair; and evidence tended to show that the plaintiff was working in the place furnished by the master, that it was not reasonably safe because of the overhead conditions referred to, and that because of the long-standing character of those conditions, the defendant had neglected the duty of inspection and repair.So the question of proximate negligence on the part of the defendant was for the jury.Lassasso v. Jones Bros. Co., 88 Vt. 526, 93 Atl. 266;Pette's Adin'r v. Old English, etc., Quarry, 90 Vt. 87, 96 Atl. 596;Lincoln v. Central Vt. Ry. Co., 82 Vt. 187, 72 Atl. 821, 137 Am. St. Rep. 998;Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416, 74 Atl. 99;Marshal v. Dalton Paper Mills, 82 Vt. 489, 74 Atl. 108, 24 L. R. A. (N. S.) 128;McDuffee's Adm'x v. Boston & Maine Ry. Co., 81 Vt. 52, 69 Atl. 124, 130 Am. St. Rep. 1019;Morrisette v. Canadian Pacific Ry. Co., 74 Vt. 232, 52 Atl. 520;Geno v. Falls River Paper Co., 68 Vt. 568, 35 Atl. 475;Houston v. Brush, 66 Vt. 331, 29 Atl. 380;Davis v. Central Vt. R. Co., 55 Vt. 84, 45 Am. Rep. 590.

Another ground of the motion was that the plaintiff assumed the risk.But his place of work was on the floor; he had nothing to do with those overhead arrangements, and his testimony was to the effect that he did not know that anything was wrong with the trough in question; and, although he had worked in the room for some time, he had no duty of inspection, and cannot be taken, as matter of law, to have known of the risk consequent upon the master's negligence and voluntarily to have assumed it.So the question of assumption of risk was for the jury, for they might reasonably conclude from the evidence that he did not know of and voluntarily assume the risk in question.Bilodeau v. Moose, etc., Co., 90 Vt. 190, 97 Atl. 671;Fowlie's Adm'x v. McDonald, etc., Co., 86 Vt. 395, 85 Atl. 692;Dailey v. Swift & Co., 86 Vt. 189, 84 Atl. 603;Duggan v. Heaphy, 85 Vt. 515, 83 Atl. 726;Blanchard v. Shade Roller Co., 84 Vt. 446, 79 Atl. 911;Miner v. Franklin County, etc., Co., 83 Vt. 311. 75 Atl. 653, 26 L. R. A. (N. S.) 1195;Williams v. Norton Bros., 81 Vt. 1, 69 Atl. 942;Dunbar v. Central Vt. Ry. Co., 79 Vt. 474, 65 Atl. 528;Vaillancourt v. Grand Trunk R. Co., 82 Vt. 416, 74 Atl. 99;Marshal v. Dalton Paper Mills, 82 Vt. 489, 74 Atl. 108, 24 L. R. A. (N. S.) 128;Skinner v. C. V. R. Co., 73 Vt. 336, 50 Atl. 1099;Chesapeake, etc., Ry. Co. v. Proffitt, 241 U. S. 463, 36 Sup. Ct. 620, 60 L. Ed. 1102;Seaboard Air Line v. Horton, 233 U. S. 492, 504, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475;Gila Valley Ry. Co. v. Hall, 232 U. S. 94, 102, 34 Sup. Ct. 229, 58 L. Ed. 521;Smith v. Baker, 1 App. Cas.(1891);Williams v. Birmingham, etc., Co., 2 Q. B. 338(1899).

Another ground of the motion for a verdict was that there was no evidence tending to show that the plaintiff himself was in the exercise of due care and caution; that even if the defendant was guilty of proximate negligence, there was no evidence tending to show that the plaintiff was free from proximate contributory negligence.Although the burden of showing freedom from contributory negligence is in this state on the plaintiff, it is not necessary that the plaintiff should introduce evidence distinctly directed to that matter.The...