Tavares v. Dewing
Tavares v. Dewing
Opinion of the Court
This is an action of trespass on the case to recover damages for personal injuries alleged to have been caused by the negligence of the defendant.
The case has been tried three times before a jury and has been three times before this court upon exceptions. The first trial before a jury in the Superior Court resulted in the nonsuit of the plaintiff. This court, on exceptions, set aside *176 the decision of nonsuit and ordered a new trial (33 R. I. 424). The second trial before a jury resulted in a verdict for the plaintiff for thirteen thousand dollars. On motion of the defendant the justice presiding in the Superior Court granted a new trial. The action of said justice was sustained by this court. On the third trial before Mr. Justice Brown of the Superior Court sitting with a jury, a verdict was rendered for the plaintiff for four thousand dollars. On motion for a new trial said verdict was approved by the justice presiding. The case is now before us upon the defendant's exception to the decision of said justice on the motion for a new trial and on exceptions to certain rulings made by said justice in the course of the trial.
The facts of the case are very fully set forth in the opinion heretofore rendered by this court in Tavares v. Dewing, 33 R. I. 424. It is sufficient now to say that, at the time of the alleged injury, the defendant was the owner of a gasoline motor boat, named the “Mary Lou,” in command of a captain, which the defendant used oh the Providence River and Narragansett Bay in connection with her oyster business; that the plaintiff was employed on said boat as a servant of the defendant; that on the morning of the second day of such employment and while said boat was proceeding down the bay with its machinery in motion, the plaintiff was engaged in bailing water from the bilge through an opening in the floor of the cabin of said boat; that in said bilge, beneath said flooring, and adjoining said opening, was a rapidly revolving shaft which at that place was surrounded by a coupling bolted to two sections of said shaft. The plaintiff was bailing said water by means of a small pail which he held in one hand and put down through said opening into the water near said shaft. He then poured the water so bailed into a larger pail standing on the floor of the cabin. The water thus collected in the larger pail was carried to theMeck and thrown overboard. The flooring of said cabin, upon which the plaintiff was standing, was greasy and slippery. While the plaintiff was so engaged his right foot *177 slipped from the flooring into said opening, against said shaft or coupling and he was severely injured. It became necessary to amputate a portion of his right leg. The plaintiff alleges and sought to prove at the trial that he was bailing the water in this manner at the command of said captain; that he was in the exercise of due care; that he was wholly unacquainted with machinery; that at the time he was so engaged the light was dim in said cabin; that he was ignorant of the presence of the rapidly revolving shaft in said opening; that the risk was not obvious to him; that he had no knowledge or appreciation of the danger involved in the situation; that the defendant through her said captain knew or but for the want of reasonable care would 'have known that the plaintiff was unacquainted with machinery and ignorant of said danger; and that it was the duty of the defendant through her said captain to warn the plaintiff of the presence of said shaft, of the danger of bailing said water in the manner stated and of the danger which might result from slipping from the flooring and into said opening.
The evidence upon the issues in the case is conflicting. Two j uries have found in favor of the plaintiff. After reading the entire transcript we cannot say that the justice committed error in denying the defendant’s motion for a new trial.
The defendant has also brought before us her exceptions to the refusal of said justice to instruct the jury, as requested by her, that under the allegations of the declaration the jury should not consider any evidence as to the lack of repair of said power pump or the absence of a hand pump. In our opinion all of these exceptions of the defendant are governed by the same principle and we will consider them together.
The defendant contends that the evidence in question, should have been excluded because the facts that the power pump was out of repair and that there was no hand pump on the boat are not alleged in the declaration as breaches, of duty by the defendant and hence those matters are immaterial to the issue raised by the pleadings, which is: that the defendant was guilty of negligence by reason of her failure to warn the plaintiff of the dangers incident to bailing out the water with a hand pail in the manner described above. That was the sole issue raised by the pleadings; but it is a fundamental principle that the master’s duty to warn the servant is dependent on the master’s knowledge of the danger. The master is bound to know the normal condition of his premises. The defendant must be held to know that a power pump was installed upon her boat, that a hand pump had formerly been among its furniture. With these appliances the water might be re-, moved from the bilge without danger to the crew arising *180 from the revolving shaft or coupling and the duty to warn the plaintiff would not arise. If these appliances were not available then the work of removing the water from the hold, necessary for the navigation of the boat, must be carried on through the opening in the floor near said revolving shaft. If these conditions had existed so long that knowledge of them should be imputed to the defendant, then she would be bound to know that any one and all of the crew, in the ordinary navigation of said boat, might be set to work to bail out the water near the revolving shaft; and the duty would clearly arise in her to warn an inexperienced man of dangers not obvious to him. Whether or not the captain’s knowledge of such conditions should be imputed to the defendant, the plaintiff should be permitted to show actual or constructive knowledge on the part of the defendant herself of the conditions upon said boat which necessitated the removal of water through the opening in the floor of the cabin. If the jury found that the defendant knew of these conditions, and that the plaintiff was inexperienced, and that the danger was not apparent then the defendant would surely be charged with the duty a breach of which is alleged in the declaration. Said requests for instructions to the jury were also properly refused.
The defendant also urges what he claims is an exception to the refusal of the court to strike out a statement made by plaintiff’s counsel. His exception appears on page 13 of the *181 transcript. The ruling of the court was not a refusal to strike out any part of a statement of counsel, but was a refusal to strike out an answer of a witness appearing upon page 8 of the transcript. The ruling of the court was proper.
From an examination of the requests by the defendant for instructions to the jury which said justice either refused to give or modified we are of the opinion that said refusals and modifications were not erroneous.
The other of the defendant’s exceptions are without merit and require no special discussion.
All of the defendant’s exceptions are overruled and the case is remitted to the Superior Court for entry of judgment for the plaintiff on the verdict.
Reference
- Full Case Name
- Bernardo Tavares v. Ardelia C. Dewing.
- Status
- Published