79 Vt. 224 | Vt. | 1906
A former decision of this case is reported in 73 Vt. 35. It appeared upon the trial then under review that plaintiff was employed for the defendant by one Snow, that he had always worked with and under the direction of Snow, and that he was specially directed by Snow to do the act which resulted in his injury; but it did not appear what plaintiff’s counsel claimed from this in argument or by way of request, Defendant’s counsel argued an exception to the failure of the court to instruct the jury upon the doctrine of fellow-servant, and the court held that the exception could not be sustained because it did not appear that the plaintiff stood upon any ground that entitled the defendant to- a charge on that subject. Upon the trial now before us the court treated this as a holding that the fellow-servant doctrine was not in the case, and declined to charge the jury in regard to it. This was a misapprehension of the scope of our decision; and it will be necessary to inquire whether the fellow-servant question
Plaintiff testified in substance that he was employed for the defendant by Snow, who had charge of the defendant’s plant at Barre; that he had had but little experience in climbing, and that the climbing he had done had not included the work of stripping; that he told Snow that he wanted to work up from the bottom and learn the business; that he was to work with Snow and under his directions, doing whatever he was capable of doing; that he expected he would have to climb sometime, as he went on learning the business; that he always worked with and under the directions of Snow, and was doing so when the accident occurred; that he was not fully aware of the dangers arising from decaying poles, had no knowledge of the methods of staying them to prevent their falling, and had never received any instructions upon these matters. It is evident that in this trial the plaintiff’s case was put upon the theory that he was an ignorant and inexperienced workman who needed caution and instruction, and that he was recognized as such by the terms of his employment.
The defendant sought to' show by a cross-examination of the plaintiff, and the introduction of other evidence, that the plaintiff was not as ignorant as he professed to be, that during his previous experience as a lineman he had taken his regular turn with his fellow linemen in climbing and stripping poles, and that he contracted to do the work of a lineman without reservation. Snow testified that he acted under the manager, and did not have any general direction of the business; that plaintiff applied to him and wanted to go onto the line to work; that the duties of a lineman include climbing, and that he knew from previous observation that plaintiff had been
Upon this evidence, plaintiff claimed that he was inexperienced and entitled to instruction, that Snow was the representative of the defendant as regards* the duty of instruction, and that Snow’s failure to caution and instruct him was the negligence of the defendant; while defendant claimed that plaintiff was an experienced lineman, that there was no duty of instruction, and that Snow was merely a fellow servant of the plaintiff.
The question whether Snow was in this matter the representative of the defendant, or merely a fellow servant of the plaintiff, would depend upon whether the situation was one that imposed on the defendant the duty of instruction, and this would depend upon what might be found as to the plaintiff’s knowledge and experience. Hayes v. Colchester Mills, 69 Vt. 1. The duty of instruction may arise in the case of an inexperienced adult as well as in the case of a child. Reynolds v. Boston & Maine R. R. Co., 64 Vt. 66. It is clear that the claims regarding the plaintiff’s capacity and undertaking entitled the defendant to a charge upon the doctrine of fellow servant. It is not necessary to consider the subject' as related to the claimed incompetence of Snow.
The defendant’s second request was as follows: “That the plaintiff undertook and contracted with the defendant when he entered its employment, voluntarily to assume all the natural and ordinary risks of that employment, including those arising from the misconduct of his fellow-servants.” In taking up the requests during the charge the court said to the reporter, “You may note that the second request is not complied with, as it relates to the fellow-servant doctrine.” The eleventh
The plaintiff claims that it was not error to refuse to comply with the second and eleventh requests as drawn. We do not find it necessary to inquire regarding this. The court did not reject the requests as erroneous in themselves, but because of the subject-matter contained in them. It disposed of every request touching the doctrine of fellow servant by saying in substance, in the course of the charge, that there was nothing in the case that called for instructions upon that subject. In these circumstances, the exception to “the charge as given in respect to said requests” may well be construed as an ■exception to what was said in the charge upon that subject, which was a refusal to give any instructions regarding it. The court must have so understood the exception. An exception to the refusal to charge on that subject would have been more apt in terms, but cannot be held to have been necessary, in view of the manner in which the subject was taken up- and disposed of. This will require a reversal of the case; and will also require that it be remanded for a new trial, unless it be held
.The defendant moved for a verdict on grounds which maybe summarized as follows: That the plaintiff was guilty of contributory negligence in not doing his work by climbing the opposite pole; in climbing the pole he did without inspecting it or testing it in any manner; and in releasing the span wire from that pole while the guy wire was still attached to it; that the plaintiff’s want of prudence in these matters was the proximate cause of the accident; and that the accident resulted from a risk which the plaintiff assumed in entering defendant’s employment.
It was held in reviewing the former trial that there was no evidence of negligence on the part of the defendant, and that a verdict should have been directed in its favor. The present motion stands upon the claim that it appears from uncontradicted evidence that the plaintiff was guilty of contributory negligence. It was said in the former case that the lineman’s employment involves the necessity of working upon poles in various stages of decay; that he contracts with reference to this necessity, and must be held to< assume the risks involved in it; that the inspection of poles to determine whether they are safe to climb is a part of the lineman’s duty; and that it is for him to determine, from the result of this inspection, which of the different available methods and appliances should be used in proceeding with his work. But these views cannot be held determinative of the present case, unless the evidence bearing upon the plaintiff’s capacity and undertaking stands substantially the same. Upon the evidence as it stood in the former case, the plaintiff was treated as one who had undertaken the full duties of a competent and experienced lineman. It cannot be said but that the testimony above recited was
We do- not consider it necessary to take up the exceptions regarding the evidence. Some of them were manifestly based upon views of the case now held untenable, and others relate to questions which can -easily be avoided without detriment if thought to be at all doubtful.
Judgment reversed and cause remanded.