Tinney v. Crosby

Decision Date07 October 1941
Citation22 A.2d 145,112 Vt. 95
CourtVermont Supreme Court

May Term, 1941.

Negligence Explosives.---1. Uniform Expert Testimony Act, No. 47 of the Acts of the Acts of 1939.---2. Construction of Uniform Acts.---3. Purpose and Intent of Uniform Expert Testimony Act, No. 47 of the Acts of 1939.---4. No. 47 of the Acts of 1939 Not Expansion of Expert Testimony.---5. Facts for Jury Not Expert Opinion.---6. Omission of Improper Evidence on Consideration of Directed Verdict.---7. Consideration of Evidence on Motion for Directed Verdict.---8. Omission of Modifying Evidence on Motion for Directed Verdict.---9. Contradictions for Jury.---10. Tendency, Not Weight, of Evidence in Viewing Favorably.---11. Employer's Duty to Supply Safe Place.---12. Employer's Duty to Caution Employee.---13. Dynamite a Dangerous Agency.---14. Employer's Duty re Dynamite.---15. Degree of Care in Handling High Explosives.---16. Jury Question in High Explosives Case.---17. Inference from Previous Blasting.---18. Employee's Right to Assume Place Not Unsafe.---19. Employee's Assuming Ordinary Risk.---20. Assumption of Risk Distinguished from Contributory Negligence.---21. No Assumption of Risk on Part Knowledge.---22. No Imputing Knowledge of Danger of Which Ignorant.--- 23. Employee Not Bound to Inquire Into Employer's Judgment.---24. Parental Anxiety.---25. Assumption of Risk Overcome by Employer's Acts.---26. Employee Obeying Employer.

1. No 47 of the Acts of 1939 is practically identical with Section 9 of the Uniform Expert Testimony Act, differing in employing the word "opinions" instead of the word "inferences."

2. Comment in a handbook of the Conference of Commissioners on Uniform State Laws and the wording of a Uniform Act may be referred to as an aid to the construction of the act.

3. The purpose and intent of No. 47 of the acts of 1939 allowing the use of an opinion of an expert witness is to exempt the inquirer from the requirement of using the hypothetical question in the examination but to accord him the option of using it, both in the discretion of the Court, and to permit the opposing party to call for a hypothetical specification of data used as the basis of the opinion.

4. No 47 of the Acts of 1939 does not enlarge the scope of expert testimony or the class of subjects upon which opinion evidence is receivable.

5. When the facts and circumstances concerning an alleged negligent act of a defendant, such as the alleged use of an improper amount of explosive, improperly placed, and failing to supply the plaintiff with a safe place to work, as in the case at bar, are susceptible of being made clear to the jury and the inference to be drawn from the evidence is one which the members of the jury in the exercise of their sound judgment under the instructions of the Court are capable of drawing for themselves and does not require a particular knowledge and skill, the question of negligence under the circumstances is for them to determine and is not the subject of opinion evidence and an opinion given under these circumstances should be struck out.

6. In passing upon a motion for directed verdict, the Supreme Court will omit consideration of opinion evidence erroneously received under objection and exception.

7. In passing upon a motion for a directed verdict, the evidence must be taken in the light most favorable to the plaintiff and the ruling of the trial court sustained when the evidence so viewed fairly and reasonably tends to support the verdict.

8. In viewing evidence in the light most favorable to the plaintiff upon a motion for directed verdict, the effect of modifying evidence is to be excluded.

9. Contradictions and contradictory inferences are for a jury to resolve.

10. The tendency of evidence and not its weight is to be considered in viewing evidence in the light most favorable to one party.

11. An employer is bound to furnish an employee with a reasonably safe place in which to work.

12. It is the duty of an employer to instruct and caution his employee concerning a danger of which the latter is excusably ignorant.

13. Dynamite is, as a matter of law, a dangerous agency.

14. In handling a dangerous agency such as a high explosive, it is encumbent upon an employer to take every proper precaution to prevent injury to his employee.

15. The high degree of care commensurate with dangerous character of a high explosive is gauged by the care and prudence that careful and prudent men would exercise in like circumstances.

16. In a case for negligent use of high explosives where the evidence tends to show that the place where the exciting battery was placed and the plaintiff told to operate it was not reasonably safe, that the plaintiff was excusably ignorant of the size of the blast and was given no warning and that the method of blasting was more dangerous than other methods the question of negligence was for the jury.

17. In a case for negligent use of high explosives where nothing untoward had happened previously on the day in question, it might be inferred under the circumstances that the plaintiff was justified in assuming that the blasts were not as heavy as on previous days.

18. An employee has the right to presume that his employer will warn and save him from needless exposure to injury.

19. While an employee assumes the ordinary risks of his employment he does not assume the risks arising from the negligence of his employer unless he knew and comprehended them or they were so obvious that he must be taken to have such knowledge and comprehension.

20. The doctrine of assumption of risk differs from that of contributory negligence in that the act involved must also be shown to be the result of intelligent choice.

21. Evidence which tends to show that an employee did not know all the details or amounts of various charges of dynamite which, when set off, injured him falls short of conclusively showing that he knew and comprehended the risk and voluntarily assumed it.

22. The law does not impute knowledge of danger of which the evidence indicates the person sought to be charged is ignorant.

23. An employee has the right to assume that his employer is mindful of his safety and is not bound to inquire the reason for the course taken or to pass judgment upon the method employed or its sufficiency.

24. That an employee just prior to discharging at his employer's direction a large blast of high explosives took pains to ascertain the safety of his children may be explained by natural parental anxiety as well as realization of the danger of his own position.

25. An employer's assurance to an employee that a charge of high explosive was not excessive and ignoring the employee's suggestion to remove the exciting battery to a great distance might be the basis for an inference that the employer lulled the employee into a sense of security and refute the inference of voluntary assumption of risk.

26. That an employee fired a blast of dynamite where and in the manner ordered by his employer tends to rebut any inference of voluntary assumption of risk.

TORT FOR NEGLIGENCE in use of high explosives. Trial by jury, September Term, 1940, Rutland County Court, Cushing, J., presiding. Verdict and judgment for the plaintiff. Exceptions by the defendant. The opinion states the case.

Judgment reversed and cause remanded.

Lawrence & O'Brien for defendant.

Asa S. Bloomer for plaintiff.



The plaintiff was struck and severely injured by a stone thrown as the result of a blasting operation, in which he was employed. He brought this action in tort against the defendant, who was in charge, alleging negligence in the amount of explosive used, in the manner of placing it, and in failing to supply him with a safe place in which to do his work. The verdict was for the plaintiff, and the cause is here on the defendant's exceptions. These exceptions are to the admission of certain opinion evidence, and to the denial of a motion for a verdict.

The exceptions to the evidence present only one question. The plaintiff called several witnesses who testified to their experience in blasting and in the use of dynamite and other explosives. Each was asked substantially the same questions and was permitted to give substantially the same answers, subject to clearly expressed exceptions by the defendant. One instance will suffice to illustrate the point involved.

The witness Adelord Merrow was asked whether, based upon the evidence in the case, he had an opinion as to the cause of the injury to the plaintiff, and answered that he had. The next question was: "State what in your opinion was the cause of the injury to this plaintiff?", to which he replied "Well I should call it negligent use of high explosive. " A motion to strike out this testimony was made and denied, subject to defendant's exception.

No. 47 of the Acts of 1939, upon which the plaintiff relies to support the rulings to which we have just referred, reads as follows: "Section 1. Experts, testimony. An expert witness may be asked to state his opinions, whether these opinions are based upon the witness' personal observation, or on evidence introduced at the trial and seen or heard by the witness, or on his technical knowledge of the subject, without first specifying hypothetically in the question the data on which these opinions are based. Section 2. Same. An expert witness may be required, on direct or cross-examination, to specify the data on which his opinions are based."

This statute is practically identical with section 9 of the Uniform Expert Testimony Act adopted by the National Conference of Commissioners on Uniform...

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