Marshal v. Dalton Paper Mills

74 A. 108, 82 Vt. 489, 1909 Vt. LEXIS 317

Opinion

Watson, J.

At the close of the evidence defendant moved for a verdict on the grounds, (1) that there was no evidence from which the jury could find the defendant guilty of negligence; (2) that the injury was caused by the negligence of a fellow servant; and (3) that the plaintiff assumed the risk.

It is argued that the plaintiff failed to show that his injury resulted from the accumulation of grease on the running board. The only testimony relating to the condition of the running board at the time of the accident was that of the broke hustler, Clarence W. Raymond, who testified that he was standing on the floor about twelve feet from the plaintiff; that he was watching the plaintiff as he came along the running board guiding the paper in turn over one and under another .roll; that in some way the paper did not go just right and the plaintiff reached in to catch it, slipped, and went in; that the witness helped to carry the plaintiff into the finishing room, from which place he was taken home; that immediately thereafter the witness went to look at the place “right where he slipped,” noticed it, and that a quantity of grease was there, six or seven inches long, and about the width of the running board; that it was a good deal thicker in the middle than on the edges; and quite a little above the ridges of the running board. Upon this evidence uncontradicted the jury might well find that there was on the running board at the time and place in question an accumulation of grease in quantity as described by the witness, and that the slipping of the plaintiff was caused thereby. The plaintiff testified that the grease which dropped on the running board became very hard, which fact in itself, in the minds of the jury, might sufficiently account for the lack of evidence showing indications of a track made by'him at the time of accident.

After the witness Eaymond had testified as above stated, the plaintiff was called, and subject to objection was permitted to testify that it would take three or four days for grease to accumulate on the running board in the condition described by that witness; that sometimes it would form faster than others, yet it would never accumulate as described in a less time. No objection was made to the competency of the plaintiff to give such testimony, and the only ground urged why the evidence should have been excluded is that since the plaintiff’s injury was not shown to have resulted from the grease the length of time in which it would so form was immaterial. But as under our holding above this ground of objection fails, the exception is without merit.

It is said that inasmuch as the running board contained no structural defects and it became dangerous only by the accumulation of grease thereon, the defect shown by the evidence was due to the negligence of a fellow servant, the spare back tender, whose duty it was to keep the machine clean; that the performance of this duty pertained to the operation of the machine, and that such work of operation is not the w'ork of the master, but of a servant, and consequently can be delegated to a competent person without responsibility for his negligence. Assuming that cleaning the machine relates to the operation, and therefore is the work of a servant for the mere negligence of whom, if he be a competent person, the master is not liable (see Quigley v. Levering, 167 N. Y. 58, 60 N. E. 276, 54 L. R. A. 62; Cregan v. Marston, 126 N. Y. 568, 27 N. E. 952, 22 Am. St. Rep. 854; Stewart v. International Paper Co., 96 Me. 30, 51 Atl. 237; DeYoung v. Federal Match Co. (N. J.) 69 Atl. 500; American Bridge Co. v. Seeds, 144 Fed. 605, 75 C. C. A. 407, 11 L. R. A. (N. S.) 1041; Wallace v. Railroad, 72 N. H. 504, 57 Atl. 913; Burke v. National India-Rubber Co., 21 R. I. 446, 44 Atl. 307), yet the duty of the master to provide a reasonably safe working place is a continuing one, and notwithstanding the place furnished was in the first instance a proper performance of this duty, if it afterwards became temporarily unsafe and the master knew, or in the exercise of due care ought to have known, of such unsafe condition, the obligation of the master required him to remedy it; and the fact that the unsafe condition was caused by the negligence of a fellow servant does not exempt the master from this duty. Santa Fé P. R. R. Co. v. Holmes, 202 U. S. 438, 50 L. ed. 1094, 26 Sup. Ct. 676; Kreigh v. Westinghouse, Church, Kerr & Co., 214 U. S. 249, 53 L. ed., 984, 29 Sup. Ct. 619; Loranger v. The Lake Shore & M. S. Ry. Co., 104 Mich. 80, 62 N. W. 137.

It is further argued that the duty of the master in this respect as applied to machinery and appliances relates only to structural fitness as distinguished from temporary conditions incident to operation; and that the law does not require the master to stand by and watch the working place all the time. The answer to this position may be given in the language of Mr. Justice Day speaking for the court in the Kreigh case cited above: “But while this duty (providing a safe place) is imposed upon the master, and he cannot delegate it to another and escape liability on his part, nevertheless, the master is not held responsible for injuries resulting from the place becoming unsafe through the negligence of the workmen in the manner of carrying on the work, where he, the master, has discharged his primary duty of providing a reasonably safe appliance and place for his employees to carry on the work, nor is he obliged to keep the place safe at every moment, so far as such safety depends on the due performance of the work by the servant and his fellow workmen. * * * Nevertheless, the duty of providing a reasonably safe place for the carrying on of the work is a continuing one, and is discharged only when the master furnishes and maintains a place of that character. * # * The duty is a continuing one and must be exercised whenever circumstances demand it.”In the case before us the master knew with what frequency grease might drop on the running board, and the risks and dangers attending the use of the latter as a working place for its servants, if not kept clean. The evidence tended to show such an amount of grease thereon at the time and place of the accident as could not have accumulated in less than three or four days’ time. While the case was without evidence showing actual knowledge thereof by the master, the facts and circumstances disclosed were sufficient to go to the jury on the question, whether in the exercise of due care the master would not have known of the unsafe condition in season to avoid the accident. The master will be charged with notice of a defect in the instrumentalities, which has existed for such a length of time that in the exercise of the care and diligence required on its part the defect must have been discovered in time to avoid the injury, and on the evidence it was a question for the jury to determine. Houston v. Brush, 66 Yt. 331, 29 Atl. 380; Vwillancourt v. Grand Trunk By. Go., decided this term. The verdict for the plaintiff shows that the jury must have found such negligence by the defendant as charged it with notice of the unsafe condition of the running board. In these circumstances the law required the defendant to exercise proper care to make it reasonably safe as a working place, and its failure so to do was a proximate cause of the accident. Noyes v. Smith, 28 Vt. 59, 65 Am. Dec. 222; Klineintie v. Nashua Mfg. Co., 74 N. H. 276, 67 Atl. 573; Leazette v. Jackson Mfg. Co., 74 N. H. 840, 69 Atl. 640; Burke v. National India-Rubber Co., 21 R. I. 446, 44 Atl. 307; Venbuor v. Lafayette Worsted Mills, 27 R. I. 89, 60 Atl. 770; Gilman v. Eastern R. R. Co., 13 Allen, 442, 90 Am. Dec. 210; Reed v. Boston & Albany R. R. Co., 164 Mass. 129, 41 N. E. 64; Johnson v. Bank, 79 Wis. 414, 24 Am. St. Rep. 722, 48 N. W. 712. The fact that the negligence of a fellow servant of the plaintiff was a contributing proximate cause is immaterial and' affords no ground of defence. Morrisey v. Hughes, 65 Vt. 553, 27 Atl. 205. This in effect also disposes of the questions based upon the fellow servant doctrine raised by exceptions to the charge.

Our attention is called to Lambert v. Missisquoi Pulp Co., 72 Vt. 278, 47 Atl. 1085, and to Garrow v. Miller, 72 Vt. 284, 47 Atl. 1087, known as the “staging eases,” as authorities strongly indicating the distinction for which the defendant here contends between work of construction and repair and work of operation; and further as establishing the principle that a servant assumes the risk of injury from the negligence of a fellow-servant. Yet in those cases it is said that there is a plain distinction between places prepared by the master through the agency of one Class of servants for the occupancy of another class in some employment to be therein carried on, and places prepared for temporary use in the erection of a building by those employed for that work; and that the latter are not places in which to work in the.ordinary sense of the term, but instrumentalities provided by the workmen themselves as means of carrying on the work they are employed to do. That in such cases the master is responsible for the sufficiency of the materials, but not for the manner in which the servants use them. The case before us is of the other class. The running board is a permanent platform furnished by the defendant as a working place for its servants, and the rule requiring the master to provide a reasonably safe place applies. McCarthy v. Claflin, 99 Me. 290, 59 Atl. 296; Channon v. Sanford Co., 70 Conn. 573, 40 Atl. 462, 41 L. R. A. 200, 66 Am. St. Rep. 133; Sims v. American Steel Barge Co., 56 Minn. 68, 57 N. W. 322, 45 Am. St. Rep. 451; also cases cited in note, 75 Am. St. Rep. 631.

It is further argued that in view of the plaintiff’s knowledge touching the frequent dropping'- of grease on to the running board; and by reason thereof the necessity ordinarily for cleaning it off daily, his appreciation of the danger attending the performance of his work, if it was not kept clean, his knowledge that ITayes had no regular time for cleaning it and that he had not at all times performed his duty in this respect with sufficient frequency, it should be held that the risk attending the accumulation of grease in question was assumed by the plaintiff. It is said that he knew or ought to have known that Hayes was as likely to neglect his duty one time as another; that the running board was in plain view of the plaintiff, and that whenever he passed to the wet end of the machine it was within the range of his vision all the time, and that breaks in the paper some times occurred often. There was no evidence, however, that grease had ever before accumulated on the running board to such an amount, nor that the plaintiff had reason to believe it would, nor that he knew it was there on the night of the accident before he was injured. On the other hand his testimony that he did not know of any trouble with the running board that night was uncontradicted. When before that time there had been a break in the paper during the time the plaintiff was on duty, or when he had previously been called upon to pass over the running board to or from the wet end of the machine, does not appear. He was then working nights only. On that particular night the light in the mill was not good. On the occasion in question in going to the wet end of the machine he ran on the floor between the machine and the side of the room. In returning, guiding the paper over and under the driers and felt rolls, necessarily his whole attention was constantly given thereto. He could not look down to see where' nor on what he was stepping, without great danger of being caught by and drawn into the machine. The jury has found in effect that but for the defendant’s negligence the unsafe condition would not have existed. The risk was therefore not an ordinary one incident to the plaintiff’s employment, but an extraordinary and unusual one which he was not in law obliged to anticipate. He had a right to assume that the master had used due diligence to provide him_ a suitable place in which to work, and he did not assume the risk of the master’s negligence in the performance of that duty. Upon the facts and circumstances shown we counot say as a matter of law that the plaintiff knew of the unsafe condition, nor that it was so plainly observable that he will be taken to have known of it. The question of assumption of the risk was therefore for the jury. Dumas v. Stone, 65 Vt. 442, 25 Atl. 1097; Dunbar v. Central Vt. Ry. Co., 79 Vt. 474, 65 Atl. 528; Morrisette v. Canadian Pacific R. R. Co., 74 Vt. 232, 52 Atl. 520; Place v. Grand Trunk Ry. Co., 80 Vt. 196, 67 Atl. 545; Drown v. New England Tel. & Tel. Co., 80 Vt. 1, 66 Atl. 801; Vaillancourt v. Grand Trunk Ry. Co., cited above.

This disposes of all the questions presented upon the motion for a verdict, and in overruling the same there was no error.

As back tender the plaintiff received two dollars and fifty cents per day for his work, the usual compensation paid for such services. For the purpose of enhancing the damages he was permitted to testify against objection that at the time of his injury, with his experience, he was capable of running the machine, a position then and since worth three dollars and fifty cents a day. The case does not show that any vacancy existed in the higher position, nor that one was likely to exist within any reasonable time in the future, nor that there was any rule under which .the defendant promoted its employees according to rank, even though competent to fill the higher position. Whether in any event evidence of prospective promotion with increase of pay attending it is admissible we do not decide. Certainly testimony by the injured servant that by his experience in holding positions of lower grades in a particular line of work, he is capable of doing the work of a higher position than he ever held, carrying more pay than' he was receiving at the time of his-injury, standing alone, is too problematical and uncertain to have any probative force on the question of damages in cases of this character, and its admission was error. Richmond & Danville R. R. v. Elliot, 149 U. S. 268, 37 L. ed. 728, 13 Sup. Ct. 837; Brown v. Chicago, R. I. & Pac. Ry. Co., 64 Iowa, 652, 21 N. W. 193; Richmond & Danville R. Co. v. Allison, 86 Ga. 145, 11 L. R. A. 43, 12 S. E. 352; Mississippi Central R. R. Co. v Hardy, 86 Miss. 732, 41 S. 505.

Exceptions were taken to two statements made by plaintiff’s attorney in the closing argument to the jury: one in effect that the indications in the case were that defendant was paying more money for lawyers to defend the case than it did in having the running board looked after and kept clean; and the other that the defendant had tried to keep the plaintiff along until this case was disposed of — gave him a job of tender or third hand. In neither of these statements was there reversable error. As to the former the evidence showed the particular employee upon whom rested the .duty of keeping the machine clean, and his daily wage. It was observable to the jury that three lawyers were engaged defending the ease. It cannot be said that the indications ■ were not to some extent at least in substance as stated, and if the jury thought the argument not warranted the statement was harmless. As to the latter, we need not refer particularly to the evidence, suffice it that the attorney was within its fair import.

Since the sole error found upon the record is one touching the question of damages only, the question arises whether a new trial should be granted of the whole case, or only of that part affected by the error. It'is laid down in Tidd’s Practice, 1179, that “if the judgment consists of several distinct and independent parts, it may be reversed as to one part only; as for costs alone, or damages in scire facias, or for damages and costs in a qui'tam action,” referring to cases which support the text: Bellew v. Asylum, 1 Str. 188; Henrique v. Dutch West India Co., 2 Str. 807, 2 Ld. Raym. 1532; Sir Thomas Frederick v. Lookup, 4 Burr. 2018. The case of Hutchinson v. Piper, 4 Taun. 555, was a qui tarn action. The plaintiff was nonsuited below. Gibbs, J., said: “If a new trial be granted because a judge has improperly nonsuited the plaintiff, I apprehend the new trial must take place upon the whole record, not but that there may be eases in which the new trial may be restrained to a particular part of the record, as if the judge gives leave to move on a point or part only, upon a stipulation understood, between the judge and the counsel, that he shall not move on anything else, or if on the evidence, the court above thinks that justice has not been done, but that they shall do more injustice by setting the matter at large again, they may restrict the parties to certain points on the second trial. ” In Davenport v. Bradley, 4 Conn. 309, the error was confined to the assessment of damages. It was held that the judgment must be reversed, but that the reversal will not open the cause below beyond the exigencies of justice; that when there exists an error in the assessment of damages only, it is entirely incompatible with justice that the previous proceedings in the cause should be set aside; that so far as they are legal they must be permitted to remain. And the reversal was so limited. To the same effect are Zaleski v. Clark, 45 Conn. 397; Fritts v. New York & N. E. R. Co., 63 Conn. 452, 28 Atl. 529.

This rule is applicable as well where the trial was by jury, and it was applied in the following cases: Winn v. Columbian Ins. Co., 12 Pick. 279; Boyd v. Brown, 17 Pick. 453; Ryder v. Hathaway, 21 Pick. 298; Kent v. Whitney, 9 Allen, 62, 85 Am. Dec. 739; Pratt v. Boston Heel & Leather Co., 134 Mass. 300; Lisbon v. Lyman, 49 N. H. 553; Payne v. Cutler, 13 Wend. 605; Braunsdrof v. Fellner, 76 Wis. 1, 45 N. W. 97; Jones v. Coffey, 109 N. C. 515, 14 S. E. 84; Smith v. Whittlesey, 79 Conn. 189, 63 Atl. 1085. Many more authorities might be cited, but it is unnecessary. We think upon the record that to put the plaintiff to the expense of, a new trial of the whole ease, when all questions involved have been correctly tried and, so far as appears rightly determined, except the one question of damages, would be an injustice to him. And as the defendant’s just ground of complaint is confined accordingly, its legal right is satisfied by a reversal in effect limited to that question.

Judgment affirmed except as to the question of damages, and as to that question, judgment is reversed and cause remanded.