Williams v. Norton Bros

• Decision Date: 14 February 1908
• Citation: Williams v. Norton Bros, 69 A. 146, 81 Vt. 1 (Vt. 1908)
• Court: Vermont Supreme Court
• Parties: WILLIAMS v. NORTON BROS.

69 A. 146

81 Vt. 1

WILLIAMS

v. NORTON BROS.

Supreme Court of Vermont. Special Term.

Feb. 14, 1908.

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

Action by David W. Williams against Norton Bros.From a judgment for plaintiff, defendants bring exceptions.Judgment reversed, and cause remanded.

This is an action to recover damages for an injury received by plaintiff who was employed by defendants as a quarryman, in consequence of an accident to a derrick called "an incline," in defendants' slate quarry in Pawlet, Vt. Plaintiff's evidence tended to show that he was injured by being struck by a falling wire cable that had broken at some point many feet above his head, that the break was caused by defendants' negligence in that either the cable was defective when installed, or that it had become defective, and its use thereafter continued, through failure of defendants properly to inspect it.The witness Baker answered in the affirmative the cross-question recited in the opinion.

Argued before ROWELL, C. J., and TYLER, MUNSON, and WATSON, JJ.

Butler & Moloney, for plaintiff.Hunton & Stickney, P. M. Meldon, and Stickney, Sargent & Skeels, for defendants.

TYLER, J.This action was brought to recover damages for injuries received by the plaintiff while at work in the defendant's slate quarry.

1.In the course of the trial a witness, Staples, testified that a cable or wire rope which fell and injured the plaintiff was un sound in certain respects.He was then ask ed by the plaintiff's counsel whether or not the condition that he had described was ob servable—one that might be observed by looking at it.The question called for the knowledge of the witness derived from his observation, whether it was a patent condition or a latent defect.The answer that it was an observable condition was properly received.

2.Witness Pritchard, called by the plain tiff, testified that on the day of the accident he was at work at the quarry on which the broken incline was situated, that, after the accident occurred, he went to the place where the mast which had supported the incline stood, and that he saw there a broken end of wire cable lying on the ground, and described the appearance of the ends of the wires in the cable "as being rusty, and old breaks."On re-examination he was asked: "Was the end of the rope that you say appeared to come down from the sheave—was that the one you were referring to?"The witness answered: "Yes; the one that came over this side on the bank."It is true that the question assumed a fact that the witness had not testified to, but he apparently understood counsel to inquire which end of the rope was rusty.The question cannot be said to have suggested the answer, for the witness had before stated without objection that the piece of rope, the end of which he claimed was rusty, was lying on the bank when he saw it; the other piece having fallen into the pit.

3.Bardwell, a witness for the plaintiff, testified that he went to the place the Sunday after the accident, saw the broken cable, de scribed the appearance of the broken ends, and said that three of the strands were bro ken, and, upon being requested to describe it just as he saw it, said: "There were three that were cut off, and cut off as though they were broken by using the rope, and that there were only three strands that were holding the rope up."The defendants excepted to that part of the answer that gave the witness' conclusion as to how the strands were bro ken.It was not error in the court to allow the answer to stand.It was within the rule in Cavendish v. Troy, 41 Vt. 108, that where the witness has had means of personal observation, and the facts and circumstances which lead the mind of the witness to a conclusion are incapable of being described so as to en able any one but the observer himself to form an intelligent conclusion from them, the witness is often allowed to add his opinion or the conclusion of his own mind.It is permissible for a witness to testify as to the appearance of objects that he has seen.Crane v. Northfield, 33 Vt. 124;Oakes v. Weston, 45 Vt. 430.In Bates v. Sharon, 45 Vt. 474, it was held not error to permit a witness who had examined certain gullies in a highway to state that from their appearance they had been there several days.

5.Baker, a witness called by the defend ants, had testified that he went to the place immediately after the accident and saw the broken cable, and that it was a fresh break.Much latitude is allowed in cross-examination, and it cannot be held as matter of law that it was error to permit the plaintiff's counsel to ask the witness if he was not surprised that a new and sound rope should break.

6.Several exceptions relate to the alleged declarations of defendantEugene R. Norton to the witness Staples concerning the cause of the accident.The plaintiff's evidence tended to show that his injury was caused by being struck by a falling cable which had broken at a point 40 or 50 feet above him, and he claimed that the break was caused by the defendants' negligence, either in that it was a defective cable when it was placed there or had become defective by use, and that the defendants were negligent in not discovering the defect by proper inspection and in continuing to use it without such inspection.Staples' testimony was that he went to the quarry in the week following the accident, in company with said defendant, who then said to him that it was "a pretty bad piece of rope," and that "he would never use any more secondhand rope for a cable"; and, upon being asked the reason, replied that "it was too dangerous"; that he further said that when he had worn out the rest of the secondhand rope he would equip the plant with new rope, either an inch and a half or an inch and three-fourths in diameter; that he also said that after the "cave-in," which has recently occurred, he had set the incline back 15 or 20 feet; and that in the portion of the rope that ran over the sheave, by remaining there so long, a kink was left where the weight came on it which gave it a tendency to break quicker than it otherwise would.These declarations were not made in the other defendant's presence, nor to his knowledge, nor in the course of any business in which the defendants were then jointly interested, and they contend that the declarations were merely a narrative of past events, also that they were only the expression of an opinion by defendantEugene Nor ton.The exception to the admission of these declarations, so far as they affect the liability of the defendant who made them, is not well founded.As they came from a party, the statement about the condition of the cable was more than the expression of an opinion, and must be taken to have been made from the party's knowledge.Chamberlin v. Rankin, 49 Vt. 133.Admissions of a party against his interest are competent in negligence cases as in other cases.6 Thomp. on Neg. 7738.Admissions, says Prof. Wigmore, are prior assertions of a party, which, being inconsistent with his present claim, serve now to discredit by their discrepancy."If a party has chosen to talk about a particular matter, his statement is evidence...