Cowan v. Umbagog Pulp Co.

91 Me. 26 | Me. | 1897

Savage, J.

Action to recover damages for personal injuries suffered by the plaintiff while operating machinery in the pulp-mill of the defendant.

One Roderick, a foreman in charge of a crew operating the grinders in the defendant’s mill, plugged a certain pipe supplying water which furnished power or pressure to one of the pockets of the grinder operated by the plaintiff, who was the defendant’s servant. Tt is claimed that the plugging of this pipe rendered the machine operated by the plaintiff unsafe and dangerous to operate, and that the injuries sustained by the plaintiff resulted from the condition of the machine so rendered unsafe and dangerous to operate by this act of Roderick.

We must hold, in accordance with well-settled rules of law, that Roderick was the plaintiff’s fellow-servant; Doughty v. Penobscot Log Driving Co., 76 Maine, 143; Dube v. Lewiston, 83 Maine, 211; that the plaintiff assumed all the risks which might arise from the negligence of any fellow-servant, though the latter might not be of the same grade as himself; and that the defendant is not responsible to the plaintiff for any injury caused by the negligence of Roderick, as a fellow-servant. Lawler v. Androscoggin R. R. Co., 62 Maine, 463; Conley v. Portland, 78 Maine, 217. The jury were correctly so instructed.

But the counsel for the plaintiff claims that “if a machine is rendered unsafe and dangerous-to operate, even by a fellow-servant, and injuries are received in consequence, the condition of the machine is the proximate cause, and the master is not relieved from liability, simply because the machine was rendered unsafe by a fellow-servant.”

Assuming this to be a correct statement of the law, we think it is not applicable to this case, unless it also appears that the master was at fault in not discovering and amending the unsafe and dangerous condition of the machine, after it was rendered so by Roderick. The case does not disclose what the plaintiff’s contention was upon this question of fact. If we assume that this question was in issue before the jury, we must also assume that appropriate instructions were given. Lewiston v. Harrison, 69 Maine, 504. In fact, the jury were instructed that “the defendant would be responsible for the consequences of any want of diligence or due care or caution on the part of those whose duty it was to make repairs, but that it would not be responsible for the negligent and unauthorized act of Roderick, unless there was also negligence on the part of those whose duty it was to make repairs in not discovering the dangerous condition before the accident.” The instructions were full, accurate and apposite. It is the duty of the master to provide good and sufficient machinery for the servant to operate, and to exercise reasonable care in keeping it so. Shanny v. Androscoggin Mills, 66 Maine, 420. But the master is not liable for injuries occasioned by machinery which has become defective and unsafe, whether rendered so by a fellow-servant or otherwise, unless he knew, or ought to have known, its defective and unsafe condition. Hull v. Hall, 78 Maine, 114.

The plaintiff complains that undue pressure was put upon the jury by the court to make them agree. It is not error for the presiding justice to impress upon the jury the propriety of coming to an agreement, of harmonizing their views. Emery v. Estes, 31 Maine, 155; Virgie v. Stetson, 73 Maine, 452; State v. Rollins, 77 Maine, 380. It is a discretion to be exercised wisely by the presiding justice. A careful examination of the proceedings in this case discloses no abuse of that discretion.

The plaintiff claims that the jury were sent out a third time in violation of II. S., c. 82, § 86. But it does not appear that they were sent out a third time “ in consequence of their disagreement,” nor does it appear that they were sent out at all after the first time, “on account of difficulties not stated when they first came into court.”

The motion for a new trial is not relied upon.

Motion and exceptions overruled.