82 Vt. 230 | Vt. | 1909
The plaintiff’s intestate, James Fowlie, was killed while in the defendant’s employ. He was, at the time, assisting one MeGranahan in operating a dump-car on the grout pile of the defendant’s quarry. The waste stone was hoisted out of the quarry by steam power, run out over the dump, a distance of several hundred feet, on a blondin, lowered onto the dump-car, run to the edge of the grout pile, and dumped over. Generally speaking, the car was of the type known as the Standard Grout Car. It consisted of a four wheeled truck, on which was mounted a truck-frame of heavy timbers decked over with double hardwood plank, on which was bolted an iron circle about two feet in diameter. The top of the car consisted of a heavy plank platform, on the top of which were fastened two pieces of railroad
A large stone came ont on the blondin. The car was placed in position and trigged. The stone was lowered onto it and released from the chain which held it. McGranahan kicked out the trig which held the car, and he and Fowlie by pushing started the car along the track toward the place where the stone was to be dumped. As they started the car, it suddenly tipped toward them as they stood behind it, shot forward, and the stone slid off onto Fowlie and crushed him. The platform was in proper position, the rear chain was fastened, and nothing about the car was broken or damaged by the accident.
I. The first point made.by the defendants is that there is a fatal variance between the allegations and the proof, in that the declaration alleges that the injuries were received by Fowlie while he was at work between the quarry and the dump, while the proof shows that the accident happened while he was at work on the dump. The point is not well taken. In the first place, the defendants misconstrue the allegation referred to. It is practically the same in each count, and amounts to this: “ * * * the said plaintiff’s intestate, in pursuance of said employment, was then and there put to work by the said defendants in the use and operation of a certain dump-car furnished by the said defendants for the said plaintiff’s intestate to work with and assist in operating in removing refuse and grout from said defendant’s quarry to the defendant’s dump. This language does not necessarily imply that Fowlie’s duties required him to participate in all the processes whereby the removal of the grout from the quarry proper to its final resting place on the dump was accomplished. It is quite consistent with the facts proved, — - that the car was one of the instrumentalities employed in that general undertaking, and that Fowlie’s duties pertained to one part of that general undertaking. But whether the proof literally conforms to the allegation or not, whatever of variance there may be is immaterial. The only purpose of the allegation quoted is to show that Fowlie was then engaged in the line of duty in the use of an instrumentality furnished him by the defendants with which to do his work. Further than this the pleader need not have gone. The words “in removing refuse,” etc., might ás well have been omitted. It is only the matter of essential description that need be proved as laid. Generally
II. As the cause was tried and submitted below, it was-material for the plaintiff to show that Fowlie was an inexperienced man in the business he engaged in, and that he ought to have been warned of the dangers incident to the use of the-car and instructed how to avoid them. To prove his inexperience, the plaintiff offered the opinion testimony of McG-ranahan and other experienced quarrymen, based upon their observation of Fowlie’s appearance when he was doing the work. This was objected to by the defendants on the ground that it could not be shown by expert testimony. After some discussion of the matter, the court enquired of the plaintiff’s counsel, “What you propose to show by this witness [McGranahan] is, not only what is required in this kind of work, but that this man [Fowlie] acted as if he was an unskilled laborer, is that it?” To which counsel for the plaintiff replied, “Yes, unacquainted with the business.” Thereupon, various questions were asked, objections: made, questions and answers withdrawn and stricken out, and considerable discussion had about the admissibility of the evidence, — counsel for the plaintiff all the time insisting upon the-right to show by the witness that Fowlie appeared to be unacquainted with the business, and counsel for the defendants all' the time insisting that such evidence was improper and inadmissible. On one or more occasions, counsel for the defendants said in substance that there was no objection to the witness stating how Fowlie worked, what he did, and all about it. Finally, after much discussion, the court, having twice warned plaintiff’s counsel of the hazard of the testimony offered, said to him: “We-have made the suggestions that we have made in regard to this line of testimony, and we have concluded that, subject to the-
During all this time, counsel for tbe defendants yielded nothing of bis original position regarding opinion evidence being admissible. Iiis assent to tbe witness stating bow Fowlie did bis work manifestly related only to the methods employed by bim, and allowed the witness to state facts only. Tbe character of tbe witness was such, that it should have been apparent to all that if this line of examination was pursued it would result in the witness merely giving an opinion of Fowlie’s experience. In all tbe circumstances, we think tbe responsibility rested upon plaintiff’s counsel and that tbe risk of this line of testimony was bis; it seems plain that be so understood it at tbe time. Tbe general exception allowed by tbe court (to say nothing of those specifically taken from time to time) is sufficient to raise tbe question of the admissibility of tbe testimony.
In determining this question of admissibility, it is to be borne in mind that Fowlie’s experience in quarry work generally is not involved; it was only important to know whether be was so ignorant of this particular department of tbe work as to require instructions.
Tbe offer of this testimony was first put upon tbe ground that tbe witness could speak as an expert. But when tbe court was required to make a finding on tbe question of competency, it announced that the witness knew bow to do the work be was then engaged in, and to testify about it but that be was not qualified to pass upon Fowlie’s work or to say whether be was experienced or inexperienced. If this is to be construed as a finding of fact against tbe competency of the witness, it will have to stand unless it appears from tbe evidence to be erroneous or founded on an error of law. Lamoille Talley R. R. Co. v. Bixby,
III. The defendants moved for a verdict on grounds which may properly be stated as follows: 1. That the plaintiff failed to prove that Fowlie was ignorant of the defects complained of, and that there was no evidence to that effect. 2. That MeGranahan’s negligence was that of a fellow-servant and therefore assumed by Fowlie.
1. The law of this state is as claimed by the defendants. Dunbar v. C. V. Ry. Co., 79 Vt. 474, 65 Atl. 528. It is but another way of saying that a plaintiff must by his pleading and proof show that he did not assume the risk. But this rule does not require the testimony of one who can make direct and positive
2. Nor was there error in overruling the motion on the second ground. Therein the motion assumes that the evidence showed negligence on the part of MeG-ranahan; but at most, the record only discloses a conflict on that point; McG-ranahan’s own testimony shows that the stone was of proper size to be safely handled and that it was properly loaded on the car. And however that might have been, the motion loses sight of the concurring negligence of the master which the evidence of the plaintiff tended to establish.
Reversed, and remanded.