63 Vt. 336 | Vt. | 1891
The opinion of the court was delivered by
This is an action to recover damages, suffered by the widow and next kin of Solomon Latremouille resulting from his death, claimed to have been caused by the neglect of the defendant, in whose employ he was at the time of the accident causing his death. The neglect complained of was that it did not furnish the deceased a safe place to work, and did not employ and furnish competent and sufficient fellow servants to assist him in that work. At the time of his death, the deceased was, and had been, a car inspector and repairer for the defendant
The plaintiff contends that this is a question of negligence, and that negligence is a fact inferable, or determinable from all the facts and circumstances of the case; a mixed question of law and fact, always, under the decisions of this state, to be
2. On the trial against the defendant’s exception, the plaintiff was permitted to inquire of several witnesses whether Sullivan, who was sent as a helper, was bright or otherwise, intelligent, etc. The witnesses had known him and seen him work. When it became necessary to inquire in regard to the skill or capacity of a person in any given direction, the inquiries should be so framed as to direct the witness’ attention to the precise point desired. Whether Sullivan was as bright or intelligent as ordinary men, of whether lie sometimes hesitated when attempting to speak, could not be helpful to the jury, to determine whether he was a competent helper for the deceased in making the required repair. He might not be bright, or witty, or intelligent, on the current topics of the day, and yet be skillful with tools, obedient to orders, active and careful in doing wliat he was told to do. We think the inquiries were too general. They assume that unless he was bright, intelligent, and a ready, fluent speaker, he was incompetent as a helper, and it was negligence for the defendant to send him as such. Capacity is many-sided. Frequently a very bright, intelligent person, and a ready, fluent speaker, would be a very incompetent, improper person to send to help a mechanic repair a broken car, when his helpfulness depends mainly upon his knowledge of tools and skill in using them, upon his activity, his comprehension, of and obedience to the orders of his superior. The inquiries should have been directed to show what Sullivan’s duties were as such helper, and his capacity, as known to the witnesses, from seeing him perform the same kind and class of duties, or those requiring like skill and capacity. If a person’s character for truth and veracity is required, it does not help to inquire
3. We think the court should have complied with the defendant’s second request. The soundness of the law therein embodied, is conceded. The court puts its failure to comply with it, on the ground that the plaintiff did not claim to the contrary. While the plaintiff did not so claim, the jury uninstructed, might think that a presumption of negligence arose from the fact that the deceased was injured while in the employ of the defendant. The request was a proper one and should have been complied with.
4. The deceased entering and continuing in the defendant’s service as car inspector and repairer, impliedly agreed to exercise ordinary observation, and reasonable skill and diligence therein, to ascertain and avoid the dangers attendant upon the discharge of his duties. In other words, he assumed the risk of all such dangers as should be known by him by the exercise of such observation, care, skill and diligence. In substance the defendant’s seventh and eighth requests, called upon the court to instruct the jury that the deceased, in addition to dangers actually known by him, assumed the risk of such as he might have known by the exercise of ordinary observation or reasonable skill and diligence in his- department of service. In its charge the court only held him to assume such dangers as he knew existed. The court said, in answer to these requests: “ If the deceased knew the danger to which he would be exposed in the work under the car standing upon the track in the yard, and knew that a train might come along and run into the car, and he had charge of the work, and he entered voluntarily upon the work without a watcher or assistant, or sent the watcher or assistant that he had elsewhere, or put him at work elsewhere, and he continued to work at the repairs under the car alone, did so voluntarily, without direction of his superior, he would assume the known and obvious dangers of such employment.” The word obvious, as here used,
Anderson v. Minn. & N. W. R. R. Co. 39 Minn. 523, (38 Am. & E. Ry. Ca. 209.)
5. The charge of the court makes the defendant liable for any injury received by the deceased from the incompetency of Sullivan, although the deceased knew of his incoinpetency, which caused the injury, and received him as helper without objection. It is well established that an employe assumes all dangers from the known ineompeteney or unskillfulness of a fellow servant, of which he does not complain or make known to his employer. 17 Am. & E. R. R. Cases, 638 Note; 38 Pa. St. 104; 49 N. Y. 521; 33 Ohio St. 468; 8 Fed. Rep. 544. We think there was error in this portion of the charge in this respect. For these errors the judgment is reversed. While we hold that it was the duty of the court to have entertained the defendant’s motion to direct a verdict and enter judgment in its favor; and while generally it is the duty of this court to enter such judgment as the trial court should have done, yet, if the trial court had sustained the defendant’s motion, the plaintiff might have desired, and been permitted to introduce further evidence, and she may desire to do so on another trial, hence, the cause is remanded for new trial.