Anderson v. Androscoggin Pulp Co.

| Me. | Dec 13, 1926

Wilson, C. J.

An action to recover for personal injuries received by the plaintiff, a lad of fourteen years, through his hand being caught between two rolls while attempting to operate one of the machines in the defendant’s pulp mill. At the trial below after the evidence for the plaintiff was in, on motion of the defendant, the Justice presiding granted a non-suit. The case is before this Court on exceptions to this ruling.

The exceptions must be overruled. The case is clearly governed by the principles laid down in Welch v. Me. C. R. R., 86 Me., 552, and Nelson Admr. v. Burnham Morrill Co., 114 Me., 213. The plaintiff was not in the employ of the defendant company. No obligation of master to servant existed. He was not in the defendant’s mill to further any purpose of the defendant or of his own, except that of his own pleasure. He was not an invitee. The superintendent had ordered him to stay out. He was by permission or sufferance of the workmen and a foreman, but without authority, so far as the case shows, allowed *to play about the mill and, for his own pleasure or to convenience some of the workmen, occasionally allowed to operate some of the machines.

On the occasion of his injury, he had taken the place of one of the workmen while he went out to smoke. So far as the defendant was concerned, he appears to have been a trespasser, but, even if a licensee, it owed him no duty, except not wantonly to injure him. Russell v. M. C. R. R. Co., 100 Me., 406; Stanwood v. Clancy, 106 Me., 72; Austin v. Baker, 112 Me., 267; Elie v. Street Railway, 112 Me., 178. The evidence would not warrant a jury in finding such wanton disregard for the plaintiff’s safety as the law requires to render an owner of property liable for injuries to a mere trespasser or even a licensee.

Again, in an action of this nature, the burden of showing due care on his part rests upon the infant as well as the adult, differing only in the degree required of one of his years. In the case at bar, however, there is not a scintilla of evidence showing due care on the part of the plaintiff or any care whatsoever. In fact no evidence was offered to show how he happened to catch his hand in the rolls, except that he reached over them to smooth out the pulp as it passed through, as he had seen the operators do, but how he did it, or how it happened that his hand was caught is not disclosed. Due care must affirmatively appear.

Exceptions overruled.