44 Vt. 34 | Vt. | 1871
The opinion of the court was delivered by
The defendant was not entitled to the charge ho requested, according to his requests, unless the requests as made were sound in law and applicable to the case.
The first request was not sound in law, for the plaintiff had a right to have dangerous work done in a careful manner for himself, and if the defendant undertook to-do it in a careful manner and did it in a careless manner, and the defendant’s carelessness did damage to the plaintiff without any fault of the plaintiff, the plaintiff would be entitled to recover for this damage. The request would cut off this right.
The second request was not sound in law, for the same rule would apply to the danger from a seam blast that would to danger from any blast, and the plaintiff had a right to have such work done by any blast in a careful manner, and to a remedy for carelessness about doing it, as before stated.
Neither was the third request sound, for there was some evidence tending to show that the defendant did carelessly what he
Although the defendant was not entitled to have these requests complied with as made, they were sufficient to call the attention of the court to the subjects of them, and to entitle the defendant to a full charge upon those subjects.
The defendant’s counsel have not in argument criticised the rule laid down by the court below, as to the degree of care, skill and prudence that the defendant was bound to bring to the plaintiff’s employment. That rule is treated as being correct. When that court charged the jury that if the defendant used a less degree of care, skill and prudence than the rule laid down required, ho was guilty of negligence, it is understood that the court meant actionable negligence. If no one but the defendant had any control over, or participation in, the work which the plaintiff complains that the defendant did negligently and carelessly, the want of due care, skill and prudence would have constituted actionable negligence on the part of the defendant, and this part of the charge of the court would have been correct. But the evidence tended to show that the plaintiff himself had and exercised some control over and direction about the manner of doing what the defendant did in the same behalf that the plaintiff complains of, and it was not clear upon the trial that the negligence of the plaintiff did not contribute in some degree to the injury complained of, and for which, under the charge of the court, he recovered. It is as well settled that negligence of a defendant which docs no damage to the plaintiff that the negligence of the plaintiff does not contribute to is not actionable, as it is that negligence of the defendant which does damage to the plaintiff without any contributory negligence on the part of the plaintiff is actionable.
The court seems to have omitted the plaintiff’s own negligence from among the elements to be considered in finding whether the defendant was guilty of actionable negligence or not, when that element, if it had been submitted with the rest, might have been found to have existed, and to have been operative to an extent sufficient to show that the negligence of the defendant was con-
In connection with the requests, the exceptions appear to set forth the whole charge upon that subject. The charge as set forth does not appear to have left the jury to find against the defendant without he was guilty of negligence, but it does appear to have left them to find against him when he might not have been guilty of actionable negligence.
Judgment reversed, and cause remanded.
