Ryder v. Vermont Last Block Co. , 91 Vt. 158 ( 1917 )

Haselton, J.

This is an action to recover for personal injuries received by the plaintiff while in the service of the defendant. Trial was hy jury, and verdict and judgment were for the plaintiff. The defendant brings exceptions.

The main questions are presented by an exception to the refusal of the court at the close of the evidence to direct a verdict for the defendant. In considering this exception we are to treat as proved what the evidence making in the plaintiff’s favor fairly and reasonably tended to show, and the case so made may be briefly stated in narrative form as follows:

The defendant, at the time of the accident, operated a factory in which it was engaged in the manufacture of shoe lasts, croquet balls and other wooden things. Wood was cut into rough blocks on the first floor of the factory, and these rough blocks were carried to the second floor by belt conveyors which dropped the blocks into spouts or troughs which tipped at such an angle that the blocks dropped from ends of the spouts to the floor. The spouts were so high above the floor that they did not interfere with the passing of men under them.

The plaintiff was in the employ of the defendant and worked at a saw-bench on the second floor of the factory, and a part of his duty was to wheel a truck, to get waste material, to the bench from a point so located that direct and convenient course took him under and past one of the spouts or troughs in question, and that he was going under such trough by direction of his foreman when a block of wood came over the side of the trough and in falling hit the plaintiff on the head and inflicted the injury complained of.

One ground of the motion for a verdict was that the plaintiff’s ease did not tend to show proximate negligence on the part of the defendant. Evidence on behalf of the plaintiff tended to show that the block of wood that struck him came over the side of the trough and fell upon him instead of sliding down the trough, because a metal lining of the trough was broken or torn up, and that this condition of the metal lining had existed for a month or so.

The defendant was bound to furnish the plaintiff a reasonably safe place to work and to keep it in reasonable repair; and evidence tended to show that the plaintiff was working in the place furnished by the master, that it was not reasonably safe because of the overhead conditions referred to, and that because of the long standing character of those conditions the defendant had neglected the duty of inspection and repair.

So the question of proximate negligence on the part of the defendant was for the jury. Lassasso v. Jones Bros. Co., 88 Vt. 526, 93 Atl. 266; Pette’s Adm’r v. Old English, etc., Quarry, 90 Vt. 87, 96 Atl. 596; Lincoln v. Central Vt. Ry. Co., 82 Vt. 187, 72 Atl. 821, 137 Am. St. Rep. 998; Vaillancourt v. Grand Trunk Ry. Co., 82 Vt. 416, 74 Atl. 99; Marshal v. Dalton Paper Mills, 82 Vt. 489, 74 Atl. 108, 24 L. R. A. (N. S.) 128; McDuffee’s Adm’x v. Boston Maine & R. R., 81 Vt. 52, 69 Atl. 124, 130 Am. St. Rep. 1019; Morrisette v. Canadian Pacific Ry. Co., 74 Vt. 232, 52 Atl. 520; Geno v. Fall Mountain Paper Co., 68 Vt. 568, 35 Atl. 475; Houston v. Brush, et al., 66 Vt. 331, 29 Atl. 380; Davis v. Central Vt. Ry. Co., 55 Vt. 84, 45 Am. Rep. 590.

Another ground of the motion was that the plaintiff assumed the risk. But his place of work was on the floor, he had nothing to do with those overhead arrangements and his testimony was to the effect that he did not know that anything was wrong with the trough in question; and, although he had worked in the room for some time, he had no duty of inspection and cannot be taken, as matter of law, to have known of the risk consequent upon the master’s negligence and voluntarily to have assumed it. So the question of assumption of risk was for the jury for they might reasonably conclude from the evidence that he did not know of and voluntarily assume the risk in question. Bilodeau v. Moose, etc., Co., 90 Vt. 190, 97 Atl. 671; Fowlie’s Adm’x v. McDonald, etc., Co., 86 Vt. 395, 85 Atl. 692; Dailey v. Swift & Co., 86 Vt. 189, 84 Atl. 603; Duggan v. Heaphy, 85 Vt. 515, 83 Atl. 726; Blanchard v. Shade Boiler Co., 84 Vt. 446, 79 Atl. 911; Miner v. Franklin County, etc., Co., 83 Vt. 311, 75 Atl. 653, 26 L. R. A. (N. S.) 1195; Williams v. Norton Bros., 81 Vt. 1, 69 Atl. 942; Dunbar v. Central Vt. Ry. Co., 79 Vt. 474, 65 Atl. 528; Vaillancourt v. Grand Trunk R. Co., 82 Vt. 416, 74 Atl. 99; Marshal v. Dalton Paper Mills, 82 Vt. 489, 74 Atl. 108, 24 L. R. A. (N. S.) 128; Skinner v. C. V. Ry. Co., 73 Vt. 326, 50 Atl. 1099; Chesapeake, etc., Ry. Co. v. Proffitt, 241 U. S. 463, 60 L. ed. 1102, 36 Sup. Ct. 620; Seaboard Air Line v. Horton, 233 U. S. 492, 504, 58 L. ed. 1062 34 Sup. Ct. 635, L. R. A. 1915 C, 1, Ann. Cas. 1915 B, 475; Gila Valley Ry. Co. v. Hall, 232 U. S. 94, 102, 58 L. ed. 521, 34 Sup. Ct. 229; Smith v. Baker, 1 App. Cas. (1891) ; Williams v. Birmingham, etc., Co., 2 Q. B. 338 (1899).

Another ground of the motion for a verdict was that there was no evidence tending to show that the plaintiff himself was in the exercise of due care and caution, that even if the defendant. was guilty of proximate negligence, there was no evidence tending to show that the plaintiff was free from proximate contributory negligence. Although the burden of showing freedom from contributory negligence is in this State on the plaintiff, it is not necessary that the plaintiff should introduce evidence distinctly directed to that matter. The requisite inferences may be drawn from evidence of a more general character.

There was evidence indicating that the plaintiff was in the exercise of the care and prudence of a prudent man in going where he did, which was where he was told to go, that he went by the standard of the trough, where nothing would have fallen upon him but for defects due to proximate negligence on the part of the defendant which he did not know of and had a right to assume did not exist, and so there is no ground for the claim that the question of contributory negligence was not for the jury. Morris v. Trudo, 83 Vt. 44, 74 Atl. 387, 25 L. R. A. (N. S.) 33; Pette’s Adm’x v. Old English, etc., Co., 90 Vt. 87, 96 Atl. 596. And see other cases hereinbefore cited.

The defendant excepted to some portions of the charge as given and to omissions to charge with reference to the questions we have already considered. But in those respects we find nothing of which the defendant can reasonably complain.

The court charged correctly as to the effect to be given to declarations of parties and witnesses respectively, made out of court, and commented sensibly upon the infirmities that attach to testimony of such declarations. The defendant took a rather blind exception to the failure of the court to say more in connection with what it did say, but the exception is without merit. While the court is bound, without request, to charge upon all the substantial issues in the case, it is not bound to make every conceivable comment upon the evidence and the weight of it.

The plaintiff was about 46 years of age and the evidence tended to show that his expectancy of life was about 23 years. The charge of the court permitted the jury to conclude that the accident had destroyed the earning capacity of the plaintiff for the remainder of his life, and followed an argument to that effect made by the plaintiff’s counsel. T'o the argument and the charge in this respect the defendant excepted on the ground that they were unwarranted by the evidence. And such was in fact the case. What the plaintiff’s evidence tended to show was that the serious injury resulting to him from the- blow on the head was not visible but was obscure, was something about which, in respect to its continuance and impairment of ability in the long future, a layman could form no well-grounded opinion, could do no more than indulge in the merest speculation. Expert medical testimony could alone lay a foundation for the claim made by counsel and submitted to the jury by the court. The principle is the same that ordinarily governs in malpractice cases, where the opinion of laymen that a physician or surgeon has not exercised due skill and care is not enough to permit recovery, — medical expert testimony to that effect being requisite to a recovery. Sheldon v. Wright, 80 Vt. 288, 317, 67 Atl. 807; Wilkins v. Brock, 81 Vt. 332, 343, 70 Atl. 572; Lawson v. Crane, 83 Vt. 115, 119, 74 Atl. 641. Here there was an entire absence of expert testimony as to the probable progress and duration of the plaintiff’s trouble, and while the argument might have done no harm if it had been followed by a correct charge, the charge left the jury to determine future damages as a matter of unfounded guesswork or conjecture and cannot be sustained. Damages could not be assessed on the basis of life-long and complete inability to earn, without competent evidence to sustain an assessment on such basis.

We find no error relating to the liability of the defendant, but such only as relates to the question of damages.

Accordingly judgment is affirmed except as to damages. As to that question judgment is reversed and the cause is remanded.