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the record that advertising for bids might | but gathered from it, it is as much a part of not have safely been done. But, however the contract as if set forth in express words. meritorious Bergeron's claim may be, it can- [Ed. Note.-For other definitions, see Words not constitute a defense in this case. and Phrases, Precise.]

As this holding disposes of the case, it is unnecessary to pass upon the other questions raised and discussed in the briefs of counsel. The decision in this case applies alike in both cases, and the petition is dismissed in both cases, with costs to the petitionees.

(94 Vt. 119)

AMBROSINI v. N. PELAGGIE & CO. (No. 194.)

(Supreme Court of Vermont. Washington. Jan. 20, 1920.)

1. EVIDENCE 318(2)-LETTERS INADMISSIBLE AS HEARSAY.

In an action for stipulated price for cutting a granite bas-relief, where defendant filed a declaration in offset claiming to recover for breach of another contract by which plaintiff agreed to cut the figure of an angel, according to a model furnished, out of granite to be furnished by defendant, plaintiff having refused to cut the figure on account of defective granite furnished him, letters written to defendant by a third person who furnished the granite were inadmissible to show that the granite was of the proper dimensions and quality, being hearsay. 2. CONTRACTS 349(1) EVIDENCE AS TO

GOOD FAITH ON BREACH OF CONTRACT IMMATERIAL.

In an action wherein damages were sought for the breach of a contract to cut, in an artistic manner and precisely according to a model furnished, the figure of an angel, it being claimed by carver that the granite furnished was defective, and not of the proper dimensions, evidence to show that the refusal to carve the angel was in bad faith was not admissible, question of good faith not being involved.

3. CONTRACTS *mm 303(4) AGREEMENT To CARVE STATUTE "PRECISELY" ACCORDING TO

MODEL MEANT EXACTLY IN CONFORMITY.

A carver who agreed to cut, in an artistic manner and precisely according to a model furnished, the figure of an angel, the employer to furnish for the work a block of granite of the measurements required, was not called upon to proceed with the manufacture of the statue, where the block of granite furnished contained a defect and lacked three inches of being large enough to make a figure as large as the model, the word "precisely" meaning accurately, exactly, and in conformity to a model, having a more restricted meaning than "substantially."

Exceptions from City Court of Barre; H. William Scott, Judge.

Action by Angelo P. Ambrosini against N. Pelaggie & Co., in which defendant filed a declaration in offset. From a judgment granting only part of the relief demanded, plaintiff excepts. Reversed and remanded. Argued before WATSON, C. J., and HASELTON, POWERS, TAYLOR, and MILES, JJ.

E. R. Davis, of Barre, for plaintiff. S. Hollister Jackson, of Barre, for defendant.

MILES, J. The plaintiff, who is a granite carver, sued the defendant for the stipulated price for cutting a granite bas-relief. The defendant pleaded the general issue and filed a declaration in offset, under which he claimed to recover for the breach of another contract by which the plaintiff agreed to cut in an artistic manner, and precisely according to a model furnished by the defendant, the figure of an angel, approximately of the dimensions specified. The defendant was to furnish for the work a block of granite of the measurements required, machines, air, and tools, and was to pay a stipulated price in stated installments.

The court found on the plaintiff's claim that he was entitled to recover the sum claimed by him with interest, and to the correctness of this finding no question is made.

[1] Upon the defendant's claim the court found that the plaintiff failed to perform his part of that contract, in consequence of which the defendant was damaged in the sum of $107.57, which sum the court allowed to the defendant and rendered judgment for him in the sum of $48, being the balance between the sum allowed the plaintiff and the sum allowed the defendant. The question here raised, as presented in the plaintiff's brief, is whether letters from the party who furnished the granite for the statue were admissible in evidence, whether the findings of the court were supported by the evidence, and whether there was error in the judgment rendered upon the facts found. The letters consisted of answers by the party furnishing the granite to letters of the defendant charging that party with having furnished a block of granite not suitable for the manu

[Ed. Note.-For other definitions, see Words facture of the statue, and the substance of and Phrases, Precise.]

the answers were that the granite was suit

4. CONTRACTS 168-DUTY MAY BE IMPOSED able for the purpose for which it was fur

BY IMPLICATION.

A duty may be imposed upon a party to a contract by necessary implication, and, when such implication is not external to the contract

nished. As claimed by the plaintiff, the offer was to show that the granite furnished was suitable for the manufacture of the statue as called for by the contract, and that the

(108 A.)

whether it was possible for the most expert granite man to detect so slight a variation as was testified to by Pelaggie. In view of the disposition of the case upon another point, it becomes unnecessary to pass upon this question.

letters were received for that purpose; but In a statue of that size it may be doubted the defendant claimed that they were offered and received to show the lack of good faith on the part of the plaintiff in refusing to go on with the job. It is not clear which is right, and that is of no importance; for, if received for the former purpose, they were not admissible, because they were clearly Assuming, but not deciding, that Pelaggie's hearsay evidence, and they were equally inad- testimony tended to show that the stone furmissible if received for the latter purpose, nished was such as would have enabled the for no question of good or bad faith is in- plaintiff to manufacture a statue whose divolved in this case. It was error to receive mensions would meet all the requirements of the letters. They had no tendency to prove the contract in that respect, still it was only any issue raised by the pleadings in the case. evidence that the stone was of sufficient diThe real question in the case is whether mension to enable the plaintiff to perform the plaintiff was justified in abandoning the the contract to that extent. It would not job as he did. The case shows that, when he justify a finding that it was sufficient to endiscovered the claimed defect in the granite able the plaintiff to manufacture a statue in furnished, and communicated his discovery an artistic manner and precisely according to to the defendant and tried to arrange with a model, and the court has not so found. him to either get a block of granite about The court simply found that the parties emwhich there was no doubt of its suitableness, ployed to finish the job were able to manuor take the risk of a failure to meet the strict facture from the granite furnished a statue requirements of the contract because of the "substantially" as called for by the contract. claimed defects, and the defendant refused Assuming, but not deciding, that there was to do either, he had to choose which of two evidence supporting that finding of the court, courses he would follow; whether he would the judgment rendered would not be justified proceed with the work or abandon the con- by the facts found. tract and take the risk of the damage that might result from such a course. He adopted the latter course. The defendant claims that he was not justified in refusing to go on with the work and complete the job, and that the findings and judgment of the court below are amply supported by the evidence in the case. To support the trial court's finding that the cutters employed by the defendant to complete the job after the defendant abandoned it were able to complete the statue substantially as called for by the contract with the plaintiff, out of the granite furnished, the defendant calls our attention to the testimony of the defendant, Pelaggie, who testified that when the statue was finally completed it did not vary one-sixteenth of an inch from the dimensions called for in the contract; and, though one Johnson, who measured and assisted in finishing the statue after the plaintiff ceased to work on it, testified that when finished it was three inches short in height and five inches short in width, the court made the finding stated above. But there may be a question whether the testimony of Pelaggie, who made no measurement of the statue, but testified from an estimation based upon mere observation not shown to have been made with a view to the ascertainment of the exact dimensions of the statue, can be said to have substantially supported that finding. It was, at most, only the opinion of Pelaggie, and its value as evidence, when taken in connection with the positive testimony of Johnson is not clear. Johnson knew what he was testifying to, and the facts were as he stated, or he must have committed deliberate falsehood, with nothing in the case showing why he should do so.

[2] To justify the judgment rendered, to which exception was taken, it was necessary for the court to find that the defendant not only furnished granite from which the plaintiff could manufacture a statue of substantially the dimensions called for by the contract, but he was to furnish a block of granite from which the plaintiff could cut the statue in an artistic manner and precisely according to the model furnished by the defendant. "Precisely" has a more restricted meaning than "substantially." "Precisely" means accurately, exactly, and in conformity to a model.

[3] Under the contract the defendant was bound to furnish granite of the measurement required; and, while the contract does not in express words state that the granite furnished should be of the character necessary to enable the plaintiff to perform the contract according to its terms, yet such a duty arises from necessity. A duty may be imposed upon a party to a contract by necessary implication; and when such implication is not external to the contract, but gathered from it, it is as much a part of the contract as if set forth in express words. Rioux v. Ryegate Brick Co., 72 Vt. 148, 47 Atl. 406. [4] The duty of the defendant to furnish granite of the dimensions and quality necessary for the plaintiff to perform his part of the contract according to its terms was a condition precedent to performance by the plaintiff, and on failure of the defendant to furnish such granite the plaintiff was not called upon to proceed with the manufacture of the statue. Rioux v. Ryegate Brick Co., supra; Hill v. Hovey, 26 Vt. 109; Welch v. Bradley, 41 Vt. 308; Camp v. Barker, 21 Vt. 469;

Amsden v. Atwood, 68 Vt. 322, 35 Atl. 311; Action of tort for negligence by Peter LaBugbee v. Haynes, 43 Vt. 476; Oakley v. velle's administrator against the Central VerMorton, 11 N. Y. 25, 62 Am. Dec. 49; Hinck-mont Railway Company. Judgment for plainley v. Pittsburg Bessemer Steel Co., 121 U. tiff, and defendant excepts. Judgment reS. 264, 7 Sup. Ct. 875, 30 L. Ed. 967. To en- versed, and judgment for defendant. title the defendant to prevail on his plea in offset it was necessary for him to prove performance of this condition precedent. Oakley v. Morton, supra. By the failure of the court to find that the defendant had performed that condition according to the terms of the contract the judgment was without the support of a necessary finding, and the exception to it must be sustained.

Judgment reversed, and cause remanded.

(94 Vt. 80)

(Supreme Court of Vermont.

7, 1920.)

1. RAILROADS 278 (2)-CAR REPAIRER AS

SUMES RISK OF GOING UNDER CAR WITHOUT
DISPLAYING SIGNALS.

Argued before WATSON, C. J., and POWERS, TAYLOR, MILES, and SLACK, JJ. Herbert G. Barber, Frank E. Barber, and C. Menzies Miller, all of Brattleboro, for plaintiff.

John W. Redmond, of Newport, and W. R. McFeeters, of St. Albans, for defendant.

WATSON, C. J. This action, based on alleged negligence, is brought by the administrator, under the statute, for the benefit of the widow and the next of kin. All the tracks and territory in the railroad yard at LAVELLE'S ADM'R v. CENTRAL VERBrattleboro, south of Bridge street, are the MONT RY. CO. (No. 189.) property of the defendant. The yard of the Windham. Windham. Jan. Boston & Maine Railroad is north of Bridge street, and not material to any issue in this case. All the switching in Brattleboro yard, both that of defendant and of the Boston & Maine, was done by defendant's switch engine and its yard crew. The two railroad companies kept at that place separate and independent combined car inspectors and repair men. Those of the Boston & Maine were decedent, foreman, and John Curry, his helper, These two men were employed and paid by that company, did only its work, and were exclusively under its orders. Whenever cars came into Brattleboro from the north or south over the road of the Boston & Maine, they were inspected by decedent, or under his direction by Curry, and if any repairs were needed a note thereof was made. Later, decedent and Curry found the car in the yard and made the necessary repairs.

Where an experienced repair man of a railroad, with knowledge of rules regarding use of blue lights and flags on cars under which repair men are working, nevertheless went under a car to repair it without displaying the warning signals, and was killed when such car was moved by others being switched by the employés of another railroad, his administrator cannot recover from such other road; decedent having assumed the risk, though not an employé of such other

road.

2. RAILROADS 278 (2)-RECOVERY FOR CAR REPAIRER'S INJURY BY SWITCH CREW OF OTHER ROAD BARRED BY HIS NEGLIGENCE.

A repair man of one railroad, under a car on a switch track of another road, where he had a right to be in the performance of his duties, was entitled to such care on the part of the switch crew of the other railroad for his protection as the law afforded him in the circumstances, which did not render the other road liable for injury from a danger to which the repair man voluntarily exposed himself by failing to display the usual signals that he was under a car repairing it.

On Motion for Reargument.

3. RAILROADS 278 (2) VOLUNTARY AND UNNECESSARY RISK OF KNOWN DANGER NOT

EXCUSED BY RAILROAD CUSTOM.

Custom and usage of railroads using a yard not to require warning signals that cars on a general delivery track were being repaired did not excuse the repair man of a road in voluntarily and unnecessarily risking the known and obvious danger of having a car moved upon him by the other road in switching, by getting under it without displaying the usual repair signals.

On

The main track is west of the freight house, also of the old passenger station. There are several spur tracks east of the main track, extending north. The northerly portion of one of these spur tracks, and governed by a certain switch, is known as the "general delivery track," and is used "for commercial purposes for unloading and reloading" freight cars, though such use is not exclusive. the west side of this track, and between it and the old passenger station and the freight house, is a passageway for people with teams, or otherwise, having business at the freight house, or at cars standing on the "general delivery track," in loading and unloading freight. This passageway is also used by people and teams going to or from warehouses and coal sheds located on the east side of this spur track.

It appeared that on Saturday, July 21, 1917, defendant's switching crew moved all cars from the "general delivery track" so that it Exceptions from Windham County Court; might be repaired on Sunday, and that thereFred M. Butler, Judge. after no cars were on that track until about

(108 A.)

such signals constitute notice to switchmen that workmen are under or about the engine, car, or train so protected, and that such engine, car, or train (in the words of the rule) "must not be coupled to or moved." Decedent had been furnished with, and at the time in question had in his possession at the tool house, blue flags to be used as such signals.

9 o'clock in the morning of the following Mon-, for their safeguard from danger to which day, at which time said crew placed three they would otherwise be exposed in the percars thereon, halting them in the space be-formance of their duties; and when displayed tween a point 80 feet and a point 180 feet north of the switch governing that particular track. The south car of the three so placed was a box car, the middle car was loaded with coal, and the north car was loaded with windows. Thereupon the switch engine and crew went to what is known as the "scale track," and nosed onto the south end of a string of twelve cars there standing, and pushed them north onto the "general delivery track" and into collision with the three cars mentioned, at a speed of about 4 miles an hour. The three cars were thereby suddenly moved along on the track. The time which The time which elapsed between the placing of these cars where they were standing and the collision was 10 or 12 minutes. At the time of the collision, decedent and his helper were under the middle one of these cars, engaged in repairing it, and decedent suffered injuries from which he soon died. No other person was near those cars when the switching train was being pushed toward them, and neither the decedent nor his helper saw that train, nor did any of the switching crew see them, or have any reason to believe they were under or about the cars but a few minutes previously placed on that track.

At the close of the evidence defendant moved that a verdict be directed in its favor on several grounds named, only one of which need be mentioned, namely, that on the evidence, viewed in the light most favorable to the plaintiff, the decedent assumed the risk of going beneath the cars in the circumstances as he did without taking any means of safeguarding himself against attending dangers. To the overruling of the motion defendant excepted.

At the time of the accident the decedent had worked in that same yard for the Boston & Maine Railroad as foreman car inspector and car repairer continuously for 34 years. Under him, Curry had worked as helper for 11 years. 11 years. Decedent had that company's Rule Book, studied it, and was thoroughly conversant with the two rules shown and discussed above. In March, 1915, he and other repair foremen on the same division of that system of railroads were called together by the master mechanic (in the line of his duties) and given instructions regarding their duties and protection under the two rules mentioned, and instructed that they must live up to them at all times; and in June, 1916, the decedent was sent a copy of a circular issued by the superintendent of motive power, on the subject, "Protection for Repair Men," particularly cailing "attention to the rules relative to furnishing protection to car repair men in view of" a serious accident which had then recently occurred on another railroad. Rule 26 and the rule then in force similar to rule 983, quoted above, were set forth in the circular. The copy of this circular sent to decedent was found, after his death, among, the files in the tool house mentioned, where it was always kept by him after receiving it.

The undisputed evidence showed that switching was done in that yard every day,

Of the operating rules of the Boston & more generally in the morning from 9 o'clock Maine Railroad are the following:

(26) "A blue signal, displayed at one or both ends of an engine, car, or train, indicates that workmen are under or about it; when thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. * * *",

(983) "When inspecting or repairing cars which they (car inspectors and repair men) do not wish removed, they must first display the proper signals as prescribed by rule 26."

until noon, but sometimes later; that it was of frequent occurrence that cars were switched back and forth on the "general delivery track"; that there was no rule whereby a car, when placed on that track, was placed to be unloaded where it stood; that in switching cars were frequently backed onto that track and then drawn out; and that almost

daily, about 9 or 10 o'clock in the morning, such switching movements were made over it.

[1, 2] On the morning of the accident decedent and his helper, without taking any precautionary measures for their safety, went under the most southerly of the three cars standing on the "general delivery track,"

These rules, or similar ones, have been in force on that railroad ever since June 21, 1909. Rule 26 is a standard, adopted, in sub-making repairs there occupying about five stance at least, by most of the railway companies in this country. The defendant company has a similar rule (of same number), which has been in force ever since June 18, 1911.

The signals thus required to be displayed by such inspectors and workmen are intended

minutes of time, and thence under the middle car to put a bolt into the tie plate underneath the "draw rigging." It was when they were engaged in putting in this bolt that the collision took place and the decedent fatally injured. Considering decedent's long term of service as inspector and repair man in that

at the time in question, without putting up the blue signal.

It will be observed that the opinion is not based on a violation of that rule, but rather the rule is shown and discussed because, considering decedent's knowledge of it and of its purpose, and the explicit instruction to him by his superior concerning its obeyance, it necessarily, with the other evidence, leads to the conclusion that the danger to which decedent exposed himself was to him known and obvious. The necessity of giving notice in some manner of his presence under the cars was essential to reasonable safety, and, making no endeavor in this respect, he acted at his peril. The fact that his presence there might be discovered by the switching crew in

lision is no answer to the position that he knowingly consented to incur the risk attendant upon his course of action. In law his assent dispensed with any duty by defendant to take care. O'Maley v. South Boston Gaslight Co., 158 Mass. 135, 32 N. E. 1119, 47 L. R. A. 161; Thomas v. Quartermaine (opinion of Lord Justice Bowen), 18 Q. B. Div. (1887) 685; Woodley v. Metropolitan District Ry. Co. (opinion of Chief Justice Cockburn) 2 Exch. Div. 384; 8 Harv. L. Rev. 458, 459.

yard, there can be no doubt that he had full knowledge concerning the several tracks, their accustomed use in switching cars, the time or times of day when switching was likely to be done, and the risks attendant upon his work when in its performance it was necessary to go under cars at rest on a track used for switching purposes. The importance of observing the mandate of the rules respecting precautionary measures had twice been particularly called to his attention by his superiors in the same department of service within 2 years; the latter being by official circular within about a year and one month before his death. Giving the evidence the view most favorable to the plaintiff, the decedent knew and appreciated the dangers to which he was exposing himself in going un-season to avoid injury by reason of such colder the cars to make the repairs at the time in question without using the means of protection prescribed for use by repair men in such circumstances. Instead of acting according to the official mandate in this behalf, he followed a course of his own choosing, one whereby he voluntarily went under the cars to make the needed repairs without safeguarding himself against imminent dangers in any manner whatsoever. Clearly the maxim volenti non fit injuria applies, and no recovery can be had. Article, 8 'Harv. L. Rev. [3] The asserted waiver is not claimed by 457; Latremouille v. Bennington & Rutland the plaintiff to have been express or special, Ry. Co., 63 Vt. 336, 22 Atl. 656; Dailey v. but as the result of custom and usage in conSwift & Co., 86 Vt. 189, 84 Atl. 603. Nor does nection with the particular track named. We the fact that the decedent was not an em- may assume, though we do not decide, that ployé of the defendant change the result. the evidence was such as to warrant a jury As an employé of the Boston & Maine he in finding such a waiver; yet it does not afwas where he had a right to be in the per-fect the result reached in the opinion handed formance of his duties, and was entitled to such care on the part of the defendant, for his protection, as the law afforded him in the circumstances (Sawyer v. Rutland & B. R. Co., 27 Vt. 370; In re Merrill, 54 Vt. 200; Ingram's Adm'x v. Rutland R. R. Co., 89 Vt. 278, 95 Atl. 544, Ann. Cas. 1918A, 1191); yet this does not render the defendant liable for injury arising from danger to which, within the meaning of the above maxim, he voluntarily exposed himself (Drown v. New England Telephone & Telegraph Co., 80 Vt. 1, 66 Atl. 801; Woodley v. Metropolitan District Ry. Co. [opinion of Cockburn, C. J.], 2 Exch. Div. 384, 389).

The motion for a directed verdict should have been granted.

down. For custom and usage will not excuse the voluntary and unnecessary risk of a known and obvious danger, whether a rule exists or not. This was expressly held by the court of last resort in Alabama, in a case to recover damages for personal injuries, wherein the plaintiff sought to avoid the effect of a violation of (apparently) the same standard blue flag rule. Alabama Great Southern R. Co. v. Roach, 110 Ala. 266, 20 South. 132. With such a waiver assumed, the case of Latremouille v. Bennington & Rutland Ry. Co., 63 Vt. 336, 22 Atl. 656, is much in point, if not decisive on this question. There, so far as appears from the reported case, the railroad company had no blue flag rule, nor

Judgment reversed, and judgment for de- any rule answering the same purpose; but the

fendant to recover its costs.

On Motion for Reargument.

deceased, a car inspector and repairer, was alone to determine the help he needed to make the required repair and call for them. The only helper he had, if present, was hold

After the foregoing opinion was promulgat-ing the drawbar in place while the deceased ed, the plaintiff was permitted to file a motion for reargument, the real ground of which is that the blue flag rule had been waived by the defendant so far as the "general delivery track" was concerned, and therefore it cannot be said that decedent assumed the risk

went under the car to put in a pin to hold it there. The latter called for no more or different help, and had no one to keep watch for a coming or moving train. When thus under the car a train was backed down on the same track, unseen and unheard, running

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