Morrisey v. Hughes

The opinion of the court was delivered by TYLER, J. I. The declaration contained an averment of every fact necessary to be proved to bring the case within the statute; therefore it was not necessary that the statute in express terms, should be referred to. Westcott v. Railroad Co., 61 Vt. 438. II. The plaintiff’s evidence tended to show that the trucks and frame of the car were precipitated into the quarry through the negligence of the defendant in not placing and properly securing a blocking at the end of the rails to prevent the car from running off the end of the track into the quarry; while that of the defendant tended to show that the ends of the rails were properly blocked, that the intestate had been instructed by the foreman not to send up large stones in the box to be placed upon the car, and that on this occasion, against the protest of the pitman, he sent up too large a stone, which, when placed on one end of the car, threw the other end up and caused it suddenly and violently to back towards the edge of the quarry, when, despite the blocking, the wheels went over it and the car fell into the quarry, killing the intestate. As the evidence upon this point was con [559] flicting the court could not properly have directed a verdict for the defendant. III. The court correctly stated the rule of law in respect to negligence, as applicable to the case, and, as illustrative of the duty which the defendant owed to his employe, added the remark that the defendant was to act as any prudent man would if he was acting both as employer and employe; that he should not put his help in any place of danger that he, as a prudent and careful man, would not put himself in if he was doing the work himself, both-' as employer and employe. This might not be a correct rule of conduct in all cases. An employer might in certain, circumstances send an employe into places of danger where as a prudent man he would not go himself. In this case the intestate was employed in a dangerous place and assumed all the obvious risks of the employment. The only negligence alleged in the declaration and sought to be established at the trial was that the’ ends of the rails were not properly guarded. If they were properly guarded the defendant was not liable. If they were not, he was liable unless the intestate was himself negligent. The remark of the court therefore had no tendency to mislead the jury in deciding this issue, and we are unable to see how it could have prejudiced his interests. IV. The law now seems to be well settled that when the negligence of the defendant contributes, that is to say has a share in causing the injury, the defendant is liable, even though the negligence of a fellow servant of the plaintiff is also contributory. Grand Trunk R. R. Co. v. Cummings, 106 U. S. 700; Elmer v. Locke, 135 Mass. 575. V. There was no error in what was said by the court upon the subject of damages. He reminded the jury that what was given to the plaintiff for prospective damages was like a payment in advance, and that in fixing the sum that fact should be considered and the amount reduced to its then present worth. He laid down no rule, but suggested [560] what would be the results of different modes of computing interest, and left it to the jury to ascertain the present worth. 'This was in accordance with Fulsome v. Concord, 46 Vt. 141, and was favorable to the defendant. Judgment affirmed.