Hatch v. Reynolds' Estate

Rowell, C. J. Appeal from the decision of commissioners. The plaintiff declares in case for personal injuries alleged to have been received by him because of the testator’s negligence in sending him to alter or repair the testator’s reservoir, which contained a walk, known to the testator, but unknown to the plaintiff, to be insufficient and unsafe, and which fell with plaintiff upon it, whereby he was precipitated into the reservoir and hurt. Suppose the risk to have been extraordinary, which is most .favorable to the plaintiff, the burden was on him to show that he did not assume it; and to do that, it was necessary for him to show that he did not know and comprehend it, and that it was hot so plainly observable that the law will charge him with knowing and comprehending it. Dunbar v. Central Vt. R. R. Co., 79 Vt. 474, 65 Atl. 528. And the declaration recognizes this necessity, for it alleges want of such knowledge. But the testimony does not tend to prove the allegation. All the testimony there is that the plaintiff claims tends to prove it, comes from his wife when she says she did not know of her husband’s working on the reservoir before the time of the accident. The plaintiff claims that this testimony tends to show that he never •did work on the reservoir before, and therefore that it laid the foundation for an inference that he did not know the condition •of the walk because of his want of opportunity to know. But that testimony does not tend to show that the plaintiff never worked on the reservoir before. It amounts to no more than [298] saying that the witness did not know whether he had or not, as there is no ground to infer that she would have known of it if he had. The defendant’s motion for a verdict was properly sustained because plaintiff’s knowledge of the risk was not negatived. Judgment affirmed, and ordered to he certified down.