Dumas v. Stone

The opinion of the court was delivered by ROWELL, J. The servant assumes the usual and or [444] dinary risks incident to the business in which he engages; but he does not assume the unusual and extraordinary risks thereof, unless they are, or ought to have been, known to and comprehended by him, in which case he assumes those also, whatever they are. When the servant shows that his injury was caused by a danger not usually and ordinarily incident to the business, and which ought not to have existed, and would not have existed had the master performed his duty to him, and of which he neither knew nor was negligent in not knowing, the master is liable. It is not enough for the master in such a case that the servant was apprehensive merely of possible danger, especially when, as here, the master himself, knowing the circumstances, did not believe the danger to exist. Carbine's Admr. v. Bennington and Rutland R. R. Co., 61 Vt. 348; Nadauv. White River Lumber Co., 76 Wis. 120 (20 Am. St. Rep. 294) ; Johnson v. First National Bank, 79 Wis. 414, (24 Am. St. Rep. 722). The referee ‘£ does not find any negligence on the part of the plaintiff, unless the court on the facts reported holds that what he did constitutes negligence.” This ig equivalent .to saying that he was not negligent unless the facts reported constitute negligence as matter of law, which they do not, because not sufficiently decisive to make that question one of law. Worthington v. Central Vt. R. R. Co., 64 Vt. 107. The plaintiff therefore is without fault; and his injury having been caused by a danger not ordinarily incident to-the business, and one that ought not to have existed, and would not have existed but for the negligence of the defendant whose duty it was to furnish the plaintiff a reasonably safe place in which to work, and whose negligence as found caused the injury, the judgment is clearly right, and it is Affirmed.