Stone v. Howe.

• Decision Date: 04 May 1943
• Docket Number: No. 3411.,3411.
• Citation: 32 A.2d 484
• Parties: STONE v. HOWE.
• Court: New Hampshire Supreme Court

32 A.2d 484

STONE

v.HOWE.

No. 3411.

Supreme Court of New Hampshire.

May 4, 1943.

Transferred from Superior Court, Coos County; Blandin, Judge.

Action on the case by Frank O. Stone against Harland B. Howe for injuries sustained by the plaintiff in a fall while he was in the employ of the defendant. Verdict was returned for the plaintiff, and exceptions were taken by defendant.

Case transferred to Supreme Court. Exceptions overruled.

Case, for negligence, arising out of injuries received by the plaintiff in a fall while he was in the employ of the defendant in the defendant's barn at Maidstone, Vermont. Trial by jury resulted in a verdict for the plaintiff. The defendant excepted (1) to the receipt of evidence of the law of Vermont, it not being alleged in the declaration that the law of that state applied; (2) to the denial of his motion for a directed verdict, based on alleged assumption of risk; and (3) the denial of his motion to set the verdict aside on the ground that there was no evidence to support the verdict under the law of the trial. Transferred by Blandin, J. The facts appear in the opinion.

Wyman, Starr, Booth, Wadleigh & Langdell, of Manchester (Louis E. Wyman, of Manchester, orally), for plaintiff.

Harland B. Howe, of Burlington, Vt., pro se.

PAGE, Justice.

I. The claim that evidence of the Vermont law could not be received without specific declaration of that law is not in accordance with our practice. The declaration in tort of facts occurring in New Hampshire assumes that the local law is controlling, even though it be not pleaded. When the declaration shows that the plaintiff seeks to recover for negligence in Vermont, with consequent damages there, the applicability of Vermont law follows as a matter of course. If the law of Vermont is here ascertained in part by evidence, it is also true that we take judicial notice of it. Saloshin v. Houle, 85 N.H. 126, 155 A. 47. It is not a fact that must be pleaded. Even if Vermont law had not been ascertained in the trial court, we would ascertain it here, without amendment of the pleadings. F. C. Adams, Inc., v. Thayer, 85 N.H. 177, 155A. 687, 156 A. 697; Vartan Garapedian, Inc., v. Anderson, N.H., 31 A.2d 371.

II. On the motion for a directed verdict the evidence, taken most favorably for the plaintiff, shows that the plaintiff went to work for the defendant on the morning of August 1, 1940. On that day he raked hay in the meadow and helped get the hay to the barn. If he entered the barn that day, it was not to go into the portion where the hay was stored.

The barn had a second floor, where the hay was stored. This floor was solid except for three holes through which the hay could be pitched down to the live-stock. One of these was near the west end, the end of the barn from which the hay was put in, one in the middle, and one in the east end. The last was the one involved in the accident. The hole measured something in excess of four feet each way. Surrounding each hole, and rising from the second floor, were chutes constructed of four uprights to which were nailed transverse boards at irregular and well-spaced intervals. The holes were uncovered, and no provision was made for covering them. Access to the hay-loft was by a ladder in the middle chute. The distance from the middle chute to each of the others was slightly over nineteen feet. The heights of the chutes varied slightly; that of the east chute, involved in the accident, was ten feet and three inches above the loft floor.

The hay was put into the barn through an opening in the west end by means of a fork that ran on an overhead track. It was dropped by the fork at the back end of the barn, near the east chute. On August 1 the plaintiff did not go into the loft, and saw nothing of the progress of the work there. It was the custom each morning for the men to spread the hay back- mow it back-from the middle of the barn, where the hay-fork had dropped it, to the sides. On the morning of August 2 the plaintiff went to the loft for the first time, by way of the ladder in the middle chute, and helped to mow the hay. He testified that when he went up the hay was so high that the top of his head came to the track of the hay-fork. If he were believed, in spite of the contradictory testimony of others, he stood at least four feet above the top of the east chute, and there was at least that much cover of hay over it. He said that he saw neither the west chute nor the east chute, and that it was rather dark, since the hay partially covered the windows. He further said that nobody warned him about the existence of the end chutes that he failed to see, and though this was disputed, the jury could have found that he had no warning or instructions.

Early on August 3 the plaintiff again went aloft to mow the hay, which he said was then so high that he could not stand erect under the track of the hay-fork. While at work, he fell through the east chute to the ground floor and received the injuries complained of.

The defence of assumption of risk in the circumstances presented is not an absolute one. Under Vermont law there is understood to be an absolute assumption by the servant of risks inherent in the service, “the natural, ordinary and obvious risks incident to the employment”, those existent without the negligence of the master. This seems in effect merely the announcement that a servant cannot recover unless he is injured in consequence of the failure of the master to exercise some duty of care owed to the servant. If he is injured as the result of the master's breach of the duty of due care, the risk is said to be extraordinary, and it is assumed only if the servant knew or ought to have known of the dangerous condition and comprehended it, or must be taken to have known and comprehended it. Carleton v. E. & T. Fairbanks & Company, 88 Vt. 537, 549, 93 A. 462; Duggan v. Heaphy, 85 Vt. 515, 525, 83 A. 726.

The question, then, is whether the defendant had any duty of care with respect to the plaintiff. If he did, the failure in performance of the duty on the part of any of the defendant's agents, whether they be called fellow-servants or not, is the failure of the master. The master's duty with respect to the safety of the work-place is a continuing one, and if the place, though once safe, becomes temporarily unsafe, and the master in the exercise of due care ought to have known of the unsafety, he owes the duty of reasonable care to remedy the condition, which is regarded as extraordinary. Marshal v. Dalton Paper Mills, 82 Vt. 489, 499, 502, 74 A. 108, 24 L.R.A.,N.S., 128.

This rule does not apply when the work is of such a nature that the servant is constantly producing changes in the conditions and surroundings, and consequently the hazards. In that case the hazards are regarded as “ordinary” and the servant assumes them as a matter of law. But if the hazards are increased by what other servants do, and the servant suing has no part in increasing them, then they are “extraordinary”, since the master still has the continuing duty to exercise reasonable care to provide a reasonably safe place. Lassasso v. Jones Bros. Company, 88 Vt. 526, 533, 93 A. 266. As will be later noted, the plaintiff findably had no part in the creation of the conditions that existed when he was first assigned to work in the loft. The risks he there encountered must be treated as those for which the defendant may be held responsible.

The lack of a proper covering for the hidden holes might be found to be due to the want of care to make the place reasonably safe and keep it so. Severance v. New England Talc Company, 72 Vt. 181, 47 A. 833; Dunbar v. Central Vermont Railway Company, 79 Vt. 474, 65 A. 528. Whether or not the absence of a guard or covering rendered the place unsafe, and if so whether the lack of safety was due to negligence, were questions of fact for the jury. Dailey v. Swift & Company, 86 Vt. 189, 192, 84 A. 603. Whether the defendant ought to have known about the lack of protection, and whether he had proper inspections made at suitable intervals were also jury questions. Cross v. Passumpsic Fibre Leather Company, 90 Vt. 397, 407, 408, 98 A. 1010.

Since the jury might properly find negligence in one or the other of these respects, the next question is whether the plaintiff assumed the risk negligently created by the defendant. The tests have been variously phrased. There is no assumption in such a case unless the servant “has knowledge of the danger thereby caused, and voluntarily continues in the employment.” Adm'r of Carbine v. Bennington & R. R. Company, 61 Vt. 348, 351, 17 A. 491, 492. Actual knowledge is not necessary. The plaintiff must show that “he neither knew nor was negligent in not knowing.” Dumas v. Stone, 65 Vt. 442, 444, 25 A. 1097, 1098. Another phrase is “knew, or ought to have known”. Severance v. New England Talc Company, supra, 72 Vt. at page 182, 47 A. at page 834. The risk is not assumed unless the plaintiff “knew and comprehended it, or it was so plainly observable that he will be taken to have known and comprehended it.” The burden of proof here is on the plaintiff, but he is under no duty as a matter of law to exercise care to...