Lassasso v. Jones Bros.

"Watson, J.

'At the close of the plaintiff’s evidence, defendant moved for a directed verdict in its favor on the grounds, (1) that the evidence does not show negligence by the defendant; (2) that if any negligence is shown, it was the negligence of a fellow servant; (3) that the plaintiff was on an equality with defendant in knowing of the danger which resulted- in his injury, and being so on an equality he can not recover; (4) that the plaintiff is confined by his declaration to negligence by defendant in having, maintaining, or leaving said bank or wall of granite in an unsafe position by reason of stones on and at the top thereof becoming loose, unstable, and liable at any time to fall into the quarry and injure anyone there working, all of which defendant well knew, there being no allegation of a failure to give, or of a duty to give, warning of any danger on the part of anyone; (5) that if there was any negligence aside from that of a fellow servant, it was contributory negligence by the plaintiff; (6) that the uneontradicted evidence shows that defendant had appliances, equipments, and competent men on the quarry to make the place safe; (7) that the failure of the workmen to carry out the instructions in making the place safe was not a matter for which defendant must answer in this action.

*532 The motion was overruled, to which defendant excepted. No eviden'cé was introduced by the defendant.

The evidence, viewed most strongly in favor of the plaintiff as' it must be in determining the questions raised by the exception to the overruling of this motion, fairly and reasonably tended to show the facts appearing in the statement of the case.

Regarding the duty of defendant to provide the plaintiff a reasonably safe place in which to work, it is argued in behalf of the defendant that this case is so like the ease of Conroy’s Admx. v. Nelson, 86 Vt. 175 , 84 Atl. 737 , as to be governed by it.' In that case the intestate was the rockman of a certain incline in a slate quarry. On the day of the accident he was engaged in quarrying slate rock in that incline, having three helpers under him, one of whom was there to help the intestate in the work of blasting then to be done. At the place named there was a head of slate projecting from the butt of the quarry with a supporting pillar of rock underneath it. Holes had been'drilled underneath this‘projecting head of slate for the purpose of blasting out the supporting pillar of rock, so the head of slate could be freed in the process of quarrying. Undér orders from the 'foreman, the intestate fifed the holes, and later noticing a crack he put powder into that and fired it. He then saw a small stone, weighing about fifty pounds, over where he and his helpers were working and right under the projecting-héad of slate. ' To get this small stone down, the intestate punched around it with a bar until it fell, followed within a few seconds by the big overhanging rock’s tipping out' and coming down upon him,' producing fatal injuries. It was' contended, as in the case before us, that the master was negligent' in not furnishing the employee a safe place to work. In' disposing of the case, this Court said that at the time in question the intestate was doing work along the line of the ordinary duties of his employment; that'the! getting out of the head of slate was the purpose and object of the blásting done to take away the supporting rock, and the holes fired were well calculated-to cause it to fall; that the intestate and his fellow workmen were practically making their own working place as an incident to the quarrying being done; that every’ succeeding blast effected a change in the conditions and surroundings, and the dangers to which they were exposed'were the direct result of their, own operations; and that in'such circumstances the *533 ordinary rule requiring the master to furnish the servant a safe place in which to work, does not apply.

The reason why the safe-place rule is held not to be applicable in such circumstances is, that the very work which the servant is employed in doing is of such a nature that its progress constantly produces changes in the conditions and surroundings, and consequently the hazards arising therefrom, to which the servant is exposed, are regarded as the ordinary dangers of his employment and as such assumed by him.

The essentials to the application of the rule applied in the Conroy case, are entirely lacking in the present case, where on the evidence the plaintiff • and his helper were not engaged in a work that produced changes in the conditions and surroundings, and they had no part in producing the conditions which caused their injuries. In these circumstances, not that rule, (Superior Coal and Min. Co. v. Kaiser, 229 Ill. 29 , 82 N. E. 239 , 120 Am. St. Rep. 233; Casey v. Kelly-Atkinson Constr. Co., 240 Ill. 416 , 88 N. E. 982 ; Kranz v. Long Island Ry. Co., 123 N. Y. 1 , 25 N. E. 206 , 20 Am. St. Rep. 716 ; Highland Boy Gold Min. Co. v. Pouch, 61 C. C. A. 40 , 124 Fed. 148 ; Corby v. Missouri & K. Telph. Co., 231 Mo. 417 , 132 S. W. 712 ; Ft. Smith & W. R. Co. v. Ketis, 26 Okla. 697 , 110 Pac. 661 ; Novy v. Breakwater Co., (Conn.) 92 Atl. 668 ,) but the safe-place rule, requiring the master to exercise reasonable care and prudence to provide his servant a reasonably safe place in which to do the work assigned him, is applicable. Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416 , 74 Atl. 99 ; Davis v. Central Vermont R. R. Co., 55 Vt. 84 , 45 Am. Rep. 590 ; Marshall v. Dalton Paper Mills, 82 Vt. 489 , 74 Atl. 108 , 24 L. R. A. (N. S.) 128; Dailey v. Swift & Co., 86 Vt. 189 , 84 Atl. 603 .

The foreman on the quarry in the afternoon when the blast was fired and also the next morning when the plaintiff was injured, had full charge there, (the superintendent being absent,) and 'consequently he was intrusted with the performance of this duty resting upon the master. He stood in the place of the master, was vice-principal, and notice to him by the powdermah immediately after the blast of the dangerous condition of the header, was in law notice to the master, and for the foreman’s negligence, if any, in hot remedying the defect so as to make reasonably safe the working place where the plaintiff was engaged when injured, before sending him there, *534 the master is liable. Davis v. Central Vermont R. R. Co., sited above; McKane v. Marr & Gordon, 79 Vt. 13 , 63 Atl. 944 ; Comeau v. Manuel & Sons Co., 84 Vt. 501 , 80 Atl. 51 . Whether upon the evidence the foreman was in fact guilty of such negligence, was a question for the jury. The fact, if it be a fact as argued by defendant, that it was the duty of the powderman (a fellow servant) after firing the blast, to remove all loose stones resulting therefrom, makes no difference; for if the master knew, or in the exercise of due care ought to have known, of the unsafe condition before the accident, it was- a breach of duty on its part not to exercise due care to remedy such condition, and the law will not look beyond the master and will not inquire by whose fault the omission actually occurred. This is in accordance with the ruling in Vaillancourt v. Grand Trunk Ry. Co., and in Marshal v. Dalton Paper Mills , both cited above.

Nor can the motion for a verdict be sustained upon the ground that the plaintiff was on an equality with the defendant in knowing of the danger resulting in his injury; nor upon the ground of contributory negligence. These two grounds of the motion are so closely related upon the evidence that they may be more conveniently disposed of together. As already seen the tendency of the evidence was that the attention of the foreman was called to the unsafe condition of the header directly after 'the blast; while the plaintiff, though he looked at the wall of the quarry above when going to- his assigned place of work, could not see the bulge in the header, nor could he see it from any place where he had been working since it had existed; nor upon some of the evidence did he have any knowledge or information thereof, though there was some evidence of more or less force tending to show that he was told of the danger within five minutes or a little more before the stones fell. Moreover, it being the duty of the defendant to exercise the requisite degree of care in furnishing the plaintiff a reasonably safe place in which to work, the latter, in the absence of knowledge or information. to the contrary, had the right to assume that defendant had performed its duty in this respect. Upon the evidence, each of the questions named was for the jury. Lincoln v. Central Vermont Ry. Co., 82 Vt. 187 , 72 Atl. 821 , 137 Am. St. Rep. 998 ; Vaillancourt v. Grand Trunk Ry. Co., cited above; Marshall v. Dalton Paper Mills , cited above.

*535 Since the foregoing in effect disposes of all the grounds presented, the motion for a verdict was properly overruled.

The powderman testified in direct examination to trying the stones in the bulge, with a bar, immediately after the blast, and to telling the foreman, there present, that they did not look right — it was not safe. In cross-examination by defendant’s attorney the witness was asked: “You mean to say as powder-man of five years’ experience and as a quarryman of long experience, if you knew of a dangerous place you were not to communicate it?” The witness answered that he generally took it down; that it would be his duty to tell others; that the reason he did not tell others was because he did not see them and because there was another man over him, and he supposed that after the blast was fired a man coming near it would look to see if there was danger; that the men were to look out for themselves if he did not tell. In redirect examination the witness stated that there was a reason why he did not stay and work on the bulging stones. He was then asked to state the reason. To this defendant excepted on the ground that the reason was not communicated to it. The witness answered that, the foreman told him to go to another part of the quarry and fire some holes. Thera was no error in this ruling. The evidence tended to show that the.unsafe condition of the header was allowed to remain by reason of the neglect of the vice-principal, rather than by the neglect of a fellow servant, as claimed by defendant. Besides, in view of the cross-examination, it was within the court’s discretion to permit in redirect examination, the evidence objected to, as explanatory of the action of the witness at the time to which his testimony related. Hyde v. Swanton, 72 Vt. 242 , 47 Atl. 790 .

Defendant made several requests to charge looking to the application of the fellow-servant doctrine, all of which were refused, and defendant excepted. The alleged negligence of the defendant was its failure to provide a safe working place. As to that, we have already said enough to show that the fellow-servant rule had no application, because the duty rested by law upon the master, and for any negligence in its performance by a delegated person the master is responsible.

Defendant also requested the court to charge that it could not be liable for the acts of an employee on the occasion in question, who in the necessary transaction of the work might *536 render the place unsafe for the plaintiff. This request was properly refused for the simple reason, if for no other, that it failed to require consideration of the element of defendant’s knowledge or information of the unsafe condition so produced and, consequent on such knowledge or' information, its duty to make the place safe, before sending the plaintiff there to work. For the same reason, if for no other, defendant’s requests concerning transitory and passing risks and dangers, were also properly refused. The dangerous condition of the header had existed since between two and three o’clock in the afternoon of the day before the accident, and the evidence tended to show knowledge thereof all that time by the vice-principal, without any steps being taken to remedy it.

Defendant further requested the court to charge, that if the plaintiff had means of knowing the result of the blast and the condition of the bank equally with the defendant, he could not recover on the ground of the failure of the defendant to furnish him a safe place to- work. There was no error in refusing this request. It ignored the right of the plaintiff, in the absence of knowledge or information of the defect, to assume that defendant had performed its duty by way of providing a safe place for him to work. Another request along' the same line, that if the jury should find from the evidence that the danger was equally obvious to the defendant and the plaintiff, they were upon an equality and the defendant was not liable. This request takes no notice of the important fact (within the tendency of the evidence) that the defendant’s attention was called to the defect in the header immediately after the blast, the plaintiff having no knowledge or information concerning it; neither does it take notice of the fact (also within the tendency of some of the evidence) that the plaintiff was notified of the impending danger just before the accident occurred. Since this request was based upon a part only of the important evidence bearing upon the conclusion stated therein, it was unsound in law and properly refused. Hyde v. Swanton , cited above; Ashley v. Hendee, 56 Vt. 209 ; Sherwin v. Rutland R. R. Co., 74 Vt. 1 , 51 Atl. 1089 ; Taplin & Rowell v. Marcy, 81 Vt. 428 , 71 Atl. 72 .

Defendant requested the further charge that under the declaration the plaintiff could not.recover for failure to warn him that the stones were liable, to fall. The record shows that *537 the plaintiff, in his declaration and on the evidence, based his right of recovery solely on defendant’s negligence in not furnishing him a safe place to do the work assigned him; and the case was submitted to the jury on the ground of such negligence and no other on the part of the defendant. This being so, there was no occasion to charge, negating the right to recover on any other basis, and the request was rightly refused.- Judgment affirmed.