#### Henry *A.*Hatch *v.*O. W. Reynolds’ Estate.

October Term, 1907.

Present: Rowell, C. J., Tyler, Munson, and Watson, JJ.

Opinion filed October 5, 1907.

*Master and Servant*— Injury *of Servant*— Extraordinary *Danger*— Assumption *of Risk*— Burden *of Proof*— Evidence— *Sufficiency*— Directed *Verdict.*

In an action by a servant against his master for injuries resulting from an extraordinary danger, tbe burden is on plaintiff to show that be did no.t assume tbe risk, and to do that, be must show that be did not comprehend it, and that it was not so plainly observable that tbe law will charge him with having comprehended it.

*295In an action against a' testator’s estate for injuries alleged to have heen received by plaintiff because of the testator’s negligence in sending him to repair the testator’s reservoir, which contained a walk, known to the testator, but unknown to plaintiff, to he unsafe, and which fell with plaintiff upon it, whereby he was thrown into the reservoir and hurt, the testimony of plaintiff’s wife that she did not know of his working on the reservoir before the accident,. there being no ground to infer that she would have known it if he had, did not tend to show that' plaintiff never worked on the reservoir before, and so warrant the inference that he did not know of the condition of the walk because of lack of opportunity; and that being the only evidence relied on as tending to show that plaintiff did. not assume the risk, a verdict was properly directed for defendant.

Appeal from the disallowance by the commissioners of a claim presented against the estate of O. W. Reynolds by Henry A. Hatch. Declaration in case for personal injuries caused by the testator’s alleged negligence. Plea, the general issue. Trial by jury at the December Term, 1906, Lamoille County, *Miles,*J., presiding. At the close of plaintiff’s evidence, the court directed a verdict for the defendant for that there was no evidence tending to show that the plaintiff did not assume the risk by voluntarily encountering the danger after he comprehended it. The defendant excepted.

The plaintiff’s evidence tended to show only that from October, 1890, to the time of the accident plaintiff was employed by the testator as a clerk in his store; that on July 12, 1898, and for some years previous thereto, the testator owned a water reservoir in the village of Cambridge, Vermont, which was covered by a roof extending to the ground; that beneath this roof a plank walk extended from east to west over the reservoir about in its center; that on July 12, 1898, the testator sent his son and plaintiff to do something in respect of that reservoir, but it did not appear what; that thereupon those two went to the reservoir, and while they were standing together at the west end of said walk, it fell and threw plaintiff into the reservoir and severely injured him; that either the cleat which supported that end of the walk “had rotted off or the nails had rusted and-pulled off”; and that immediately after the accident, the *296testator said to plaintiff, “I am sorry I sent you up there, if I could have got anyone else I wouldn’t have sent you.”

*V. A. Bullard*and *B. E. Bidlard*for the plaintiff.

The unexplained giving away of the walk upon which plaintiff was standing made a case sufficient to require the submission to the jury of the question whether the master was negligent. *Salorz*v. *Manhattan B. Go.,*Misc. 656; Thomp. Neg., 1106; *Stoher*v. *St. Louis etc. Go.,*91 Mo. 509; *MulcaÁms*v. *Janesville,*67 Wis. *24;*34 Cent. Dig. 1595; *Moynihan*v. *Hills,*146 Mass. 586; *McBeath*v. *Bawle,*93 111. App. 212; *By. Go.*v. *Wood,*63 S. W. (Tex.) 164; Am. Dig. 1901, B-2730; *Alabaster Go.*v. *Lonergan,*90 111. App. 353; *Morion*v. *Zwierzykowski,*91 111. App. 462.

Since the testator ordered plaintiff into a situation of greater danger than the work for which he was employed, namely, that of clerk in a store, plaintiff had a right to assume that the walk was fit and safe to walk upon, and so it was error to direct a verdict for defendant. *Miller*v. *Union Pac. By. Co.,*17 Fed. 67; *Lalor*v. *Chicago, etc., 52*111. 401; *Lehman*v. *Siggeman,*35 111. App. 161; *Consolidated Goal Go.*v. *Haenni,*48 111. App. 115; *Coal Go.*v. *Hoodlet,*129 Ind. 327; *Chicago, etc.*v. *Haney,*28 Ind. 28; *Jones*v. *By. Go.,*49 Mich. 573; *Nuttal*v. *Shipbuilding Wks., 4*Lane. Law. Rev. 161; *Norfolk*v. *Ward,*9 Ya. 687; *Swoboda*v. *Ward,*40 Mich. 420; 34 Cent. Dig. 1545.

In an action against a master for personal injuries to his servant, due care on the part of the servant may be inferred from the absence of evidence of negligence, as from the positive acts of diligence. *Caron*v. *By. Co.,*164 Mass. 523; *By. Go.*v. *Day,*91 Ga. 676.

There being no affirmative evidence of plaintiff’s negligence, it was for the jury to determine why he was upon the walk at the time it fell. *Calvin*v. *New York,*112 N% Y. 223; *Con. By. Co.*v. *McMullen,*117 Ind. 439.

Plaintiff’s lack of contributory negligence may be inferred from the circumstances, it need not be directly shown. *Nelson*v. *By. Co.,*38 Iowa 564; *Mayo*v. *By. Co.,*104 Mass. 137; *Sickles*v. *Ice Co.,*153 N. Y. 83; 99 Am. Dig. 2890; *Corbin*v. *Electric Co.,*78 111. App. 516; *Stewart*v. *Ferguson,*34 N. Y. App. Div. *297515; *Dumas*v. *Stone,*65 Vt. 442; *Eastman*v. *Curtis,*67 Vt. 432.

That a servant knew of the danger incident to the failure of his master to supply proper appliances, and therefore took the risk thereof, will not be ground for non-suit, unless such ¡knowledge clearly appears, or the inference thereof is unavoidable. *Ellengson*v. *Chicago etc. Co.,*60 Mo. App. 679; *Appel*v. *Búfalo etc.,*2 N. Y. St. Rep. 257; *Eulihan*v. *Creen Bay Co.,*68 Wis. 520; *Nadan*v. *Liimber Co.,*76 Wis. 120; *Davidson*v. *Cornell,*132 N. Y. 228; *By. Co.*v. *Currier,*108 Fed. 19; *Bridge •Co.*v. *Olsen,*108 Fed. 335. ,

*J. W. Bedmond*and *B. W. Eulburd*for the defendant.

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 *298saying 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.*