Jones v. Herrick

Ladd, C. J. — 1. Master and servant: negligence of master: evidence. I. The plaintiff is administratrix of the estate of her deceased husband, who, on August 14, 1906, was killed by the falling of an elevator attached to a grader. This machine was moved by ten or twelve horses in front and six or eight horses behind. At the side, at right angles with the grader, was an elevator, or carrier, two or two and one-half feet wide and about nine feet long, hinged to the grader near the bottom, and supported by a chain on each side attached near the outer end. These chains passed back to the grader and in some way were connected with another which was fastened to a wheel, by turning which the end of the elevator was raised or lowered as might seem necessary. The earth was taken from the plow beneath the grader and carried on an apron or belt up the elevator to the end, where it was dropped into a wagon hauled along as the grader moved. Several men and teams were engaged in hauling the dirt so loaded to a dump about thirty rods distant, and among these was deceased. The grader was operated by three men, one of whom drove the teams in front, and another those behind, and the third, Meeker, who rode on the grader, managed the plow which threw up the dirt and the carrier which elevated it to the wagons, and he was in charge of the work generally. The earth frequently clogged the elevator, when it became necessary to clean it out with shov [617] els from above or to assist in starting it by tightening the apron. This was done by seizing the apron from beneath and pulling down when the grader started or was moving. On the occasion in controversy, Foster, who was employed to do anything required, noticed the elevator stop, and, as he went for a shovel, deceased leaped from his wagon, some twenty feet away, and went beneath the carrier as Foster returned to it, when Meeker, who was in charge of the work, called out, “Stand back boys! get away from there! Foster, get away!” or “Stand back, Foster! get away! stand back!” or “Stand back, boys! stand back, Foster!” and, as Foster moved back slightly, deceased pulled down on the apron, the chain broke, and the carrier fell on him, inflicting injuries owing to which he expired in a few minutes. The negligence charged is that an insufficient and defective chain was used to work the carrier. As this chain was but three-eighths of an inch in diameter, and the evidence tended to show it had been broken a short time previous, and that the link, broken was half worn through, and also that it was at a place readily observable by Meeker, the jury might have found defendant to have been negligent in the respects charged. 2. Same: negligence safe place to work: contributory negligence. II. And it can not be said as a matter of law that deceased, if in the line of his duty, was negligent. If required to go beneath the carrier in order to aid in starting the apron, the employees had the right to assume that the machinery was so constructed that the place was a reasonably safe p£ace £0 of course, if a chunk of earth were toppling from the end of the elevator, any one would know, as a witness testified, that it would be dangerous to go beneath it. So, too, if any one was aware that the chains were insecure. But there is nothing in the record before ns indicating that deceased knew of or was put on inquiry concerning any defect in the machinery. The warning of Meeker was at the instant the ele [618] vator fell and was not necessarily inconsistent with deceased continuing at wbat he was doing. Pulling down on tbe apron merely aided tbe machine when it started, or was going, to move tbe apron with its load of dirt. The grader was standing, and deceased might well have construed wbat Meeker said as warning tbe other men to stand aside, as be was about to start, and especially as be directed Poster, who was about to shovel the dirt out, to get away. In view of tbe circumstances, we are of opinion that tbe issue as to whether deceased by bis own negligence contributed to bis injury was for tbe jury. 3. Same scope of employment: evidence. III. But appellee contends that deceased was . a mere volunteer and not engaged in the line of his employment. .He was an employee, with two teams and wagons was ^gagel hi hauling dirt from tbe elevator to the dump. The evidence was to £he effect that Meeker frequently went beneath the elevator, when clogged, and pulled down on the apron so as to aid in starting it. There was no showing that the teamsters then engaged in hauling did this or were requested to. One Hinton testified that some time previous Meeker..had requested him to assist in starting the elevator, but that he had refused because he could not leave his team. One Hanson, who drove one of the teams of deceased for about a month prior to the middle of July previous, though on the same grade about one and one-half miles from where the accident occurred, testified that, when the elevator clogged, the teamsters would go underneath it and pull down on the apron to start it, that Meeker had directed him to do so even when a wagon was not under the end, and that this was of frequent occurrence, though he was not employed to do this work, and that he had heard him call on other men to assist in starting the elevator. There was no showing of what deceased was employed to do, other than as stated. As the grader was being operated by the same person who [619] employed the teamsters, he might have required them to assist in managing the elevator as well as driving the teams. That they did so frequently at the instance of the person in charge of the work, even though some weeks previous to the accident, tended to show that this was the method employed in performing the work, and that in going beneath the elevator and pulling on the apron deceased and other teamsters were acting within the line of their employment. From such evidence the jury might have found that this was the customary method df doing the work, and therefore that deceased in what he did was not a volunteer, but in the performance of a duty exacted from teamsters when the elevator clogged. 4. Same: custom: evidence. IY. Appellee urges that the custom in doing the work can not be proven by a single witness. Of course, a single act or transaction is not enough to warrant the inference that such act or transaction i? customary; but we know of no authority ° declaring the practice or method of per- forming labor may not be proven by one witness. True, there has been some controversy as to whether a local custom may be shown by a single witness, but the rule .seems to have been settled by modern decisions that the testimony of one witness may be sufficient. Southwest Va. M. & L. Co. v. Chase, 95 Va. 50 (27 S. E. 826); Robinson v. U. S., 13 Wall. 363 (20 L. Ed. 653); Vail v. Rice, 5 N. Y. 155; Partridge v. Forsyth, 29 Ala. 200; 3 Wigmore on Evidence, section 2053. But the testimony was not of a local custom, but of the particular method' or system adopted by defendant in. operating a grading outfit, and for that purpose it was competent (see 1 Wigmore, Evidence, section 379) and in connection with other ■ evidence was sufficient to carry the issue as to whether deceased was engaged in his line of duty to the jury. — Reversed.