Sheridan v. Gorham Mfg. Co.

• Decision Date: 03 April 1907
• Citation: 28 R.I. 256,66 A. 576
• Parties: SHERIDAN v. GORHAM MFG. CO.
• Court: Rhode Island Supreme Court

66 A. 576

28 R.I. 256

SHERIDAN

v. GORHAM MFG. CO.

Supreme Court of Rhode Island.

April 3, 1907.

Exception from Superior Court, Providence County.

Action by Hugh J. Sheridan against the Gorham Manufacturing Company. Judgment for defendant, and plaintiff excepts. Exceptions overruled.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Thomas J. Flynn, for plaintiff. Vincent, Boss & Barnefield, for defendant.

PARKHURST, J. This is an action of trespass on the case for negligence, and is now in this court on the plaintiff's exceptions to the action of the superior court in sustaining a demurrer to the declaration.

The declaration states that the plaintiff was a servant of the defendant, and that in the course of the plaintiff's employment as an electrician it became necessary to use a ladder for the purpose of reaching a ceiling of one of the rooms in the defendant's factory; that the ladder which the defendant provided and gave to the plaintiff was unsafe and defective, in that certain iron points, or spurs, with which said ladder was equipped at its lower ends, had become dull and smooth, so that said ladder while in use was likely to slip on the floor; and that while plaintiff in using said ladder was standing on one of its rounds said ladder slipped and precipitated the plaintiff to the floor, thereby injuring him. The usual allegations of knowledge by the defendant and lack of knowledge by the plaintiff, who is alleged to have been in the exercise of due care, are contained in the declaration.

To this declaration the defendant demurred upon the following grounds: First. Because it does not appear in said declaration that the plaintiff could not, in the exercise of reasonable diligence, have known that the iron points in the end of each side of the ladder were dull and smooth before he placed himself upon said ladder. Second. Because it appears in and by said declaration that the plaintiff had an equal opportunity with the defendant of knowing of the condition of said ladder. Third. Because it appears in and by said declaration that the plaintiff was not in the exercise of due care. This demurrer was heard before Mr. Justice Brown in the superior court on October 30, 1906, and the demurrer was sustained by decision rendered on November 13, 1906. To this decision the plaintiff duly excepted, and filed a notice of intention to prosecute a bill of exceptions according to law. The bill of exceptions was duly allowed, and the case was thereupon certified to this court. The exceptions simply raise the question of whether or not Mr. Justice Brown erred as a matter of law in sustaining the demurrer.

The plaintiff contends that inasmuch as he has alleged in his declaration that he was in the exercise of due care, and had no knowledge of the danger of slipping incident to the use of the ladder, he has tendered proper issues of fact upon these points, and his declaration is not, for that reason, demurrable; but his citations in support of this point fail to sustain his contention. In Flynn v. International Power Co., 24 R. I. 291, 52 Atl. 1089, the only point of the decision relevant to the case at bar was that the failure of the plaintiff to allege that he did not know of the defect complained of as negligence made the first count of the declaration demurrable. It was not decided that the presence of such an allegation under any or all circumstances would forbid a demurrer. And in Dalton v. R. I. Company, 25 R. I. 574, 57 Atl. 383, it was held that the want of an allegation negativing the assumption of a known risk, or stating an excuse for continuing the work if the risk was known, made the declaration demurrable. It was not decided that the presence of such allegations would under all circumstances forbid a demurrer. On the contrary, the principle laid down by this court in the case of Baumler v. Narra. Brewing Co., 23 R. I. 430, 50 Atl. 841, is equally applicable to the case at bar. Tillinghast, J., on page 435 of 23 R. I., page 842 of 50 Atl., speaks for the court as follows: "The plaintiff further argues that the...