Eastman v. Curtis

THOMPSON, J. I. The motion to direct a verdict for the defendant was properly overruled, as the evidence introduced by the plaintiff tended to show a cause of action. II. Among other things the court below instructed the jury that “If the defendant had no actual notice of defects in the machine, and no actual fault existed on his part, then there is no contract or undertaking on his part that the machine was free from defects, or that it could be safely used by the plaintiff. If there was no contract or undertaking on his part that the machine could be safely used b}r the plaintiff, the plaintiff must be taken to have assumed the risk of such defects as were not visible to the defendant, or which with reasonable care ought to have been discovered by him. The servant assumes those risks which are ordinarily incident to his employment, but he does not assume those risks that are due to the master or employer, unless he has or ought to have known of them himself.” The defendant contends that there was no evidence tending to show any contract between the plaintiff and the [440] defendant that the elevator could be safely used, and that therefore the use of the word “contract” in this part of the charge misled the jury. This instruction to the words “If there was no contract” is almost a literal compliance with the defendant’s third request to charge, in which he uses the word “contract” in the same sense in which it is used by the court. Having put it into the mouth of the court by his request, the defendant cannot now be heard to say that its use was error. Foster’s Exrs. v. Dickerson, 64 Vt. 233 ; Tucker v. Baldwin, 13 Conn. 136, 33 Am. Dec. 384; Minott v. Mitchell, 30 Ind. 228, 95 Am. Dec. 685. It is also claimed that there is error in this instruction, in that the words “risks that are due to the master” are too indefinite to convey any idea to the ordinary juryman. There can be little doubt but that the learned judge intended to say, and perhaps said, that “The servant assumes those risks which are ordinarily incident to his employment, but he does not assume those risks that are due to the neglect of the master or the employer, unless he has or ought to have known of them himself.” But taking the language as it stands in the exceptions, the phrase “risks due to the master” is not open to the objection urged. From the context it is clear that it was used, and must have been understood in the sense of those risks that belong to the master — that rest upon him. The court had fully and clearly instructed the jury in respect to the duty of the master to furnish safe appliances for the use of the servant while engaged in the master’s service. III. The evidence of the defendant tended to show that contributory negligence on the part of the plaintiff at the time of the accident was a proximate cause of his injury. By his twelfth request the defendant specifically asked the court below to charge upon that subject, but by some inadvertence it omitted to do so, to which the defendant ex [441] cepted. He was entitled to have the jury properly instructed on this subject, and in the failure to do so there was error. IV. The jury was instructed that “The plaintiff, being an employee, was not bound to inspect the elevator, but had a right to rely upon the defendant having put in a proper elevator for his use.” The defendant admits that under some circumstances this charge would be correct, but contends that in this instance it is erroneous, because it is not appropriate to the evidence. The defendant testified in substance that sometime prior to the plaintiff’s injury, the defendant injured one of his feet while operating the elevator, and in consequence of this injury was unable to attend for some time to his business carried on in his store, and on that account employed the plaintiff to work in the store ; and that when he engaged him he told him that he wanted him to take the entire charge of the business, and see that it went right until he was able to be out, and that plaintiff said he would do so. Prior to the time plaintiff was injured the defendant was able to be out again, and at the time of the injury he was in the store at work in his office. If under his employment, according to the defendant’s version of it the plaintiff was vice-principal until the defendant was able to be out, and during that time, as between himself and his principal, was bound to use ordinary diligence, skill and judgment in inspecting the elevator to see that it was in a fit condition for use, yet that duty ^ceased when the defendant was able to be out, and the plaintiff thereby ceased to be vice-principal. The evidence of the plaintiff tended to show that he was not at any time in charge of the business, but that he was all the time simply an ordinary servant. No evidence was introduced tending to show that the accident occurred on account of the failure of the plaintiff to inspect the elevator during the time the defendant claimed he was vice-principal. Whether the plaintiff entered upon his employment as an ordinary ser [442] vant or as vice-principal, he had a right to assume at the time he commenced work that the elevator was reasonably safe, and fit for the use to which it was to be put. The defect in the elevator, if there was any, was claimed to be in the manner in which it was constructed. It is not claimed that either the master or servant actually knew of such a defect prior to the accident. The evidence of the defendant shows that he, knowing all the circumstances attending the construction of the elevator, and the putting it into the store, did not believe any defect nor danger existed. The evidence standing as it did on this phase of the case, it is within the doctrine laid down in Dumas v. Stone, 65 Vt. 442, and Houston v. Brush & Curtis, 66 Vt. 331, and it was not error for the court below to give this instruction. This disposes of all the points made in argument. Judgment reversed and case remanded.