94 Me. 17 | Me. | 1900
Defendant had at its power-house five furnaces in a line, three of them burning coal and two saw-dust. Plaintiff was fireman, whose duty it was to “slice” or rake the fires in these furnaces. This was done with an iron bar ten feet, or more, in length. The furnaces were ten to twelve feet deep. It was necessary to do the slicing or raking rapidly, to prevent steam running down. The raking was begun at the back of the furnace, with the fire-box doors open. It was very hot in front when the doors were open. In raking, plaintiff stood facing the furnace. The raking of one furnace occupied about two minutes.
To obtain foundation for an “economizer”, defendant had dug four holes, six feet square, more or less, and intended to be ten or twelve feet deep. Plaintiff, at the time of the accident, was “slicing” the fire in coal furnace number 3.
Directly in front of tbe fire-box, and eight to eleven feet from it was one of these holes, then dug to the depth of about two feet. It had been there about three days, and was partially covered with plank, — plaintiff says only one plank upon it. Hanson, superintendent of the excavations, says it was nearly all covered — that it had been covered all the time the hole was there. “I tried to keep these places covered all we could when we were working in them”, and that it was covered at the time of the accident, when they were not working in it, “with a small opening”. Sheldon, a witness for defendant, says that “the hole was partially covered”, “a good part of it was covered” — that there was an “opening” or “hole large enough for his (plaintiff’s) foot to go down through”. Plaintiff says the opening was three feet or more.
In slicing, plaintiff stood facing the furnace and back to this hole. In doing his work it was necessary to step backward from the furnace to slice the fire to its front.
In doing so, he fell into the hole and vas seriously and permanently injured. Plaintiff had previous knowledge of the existence of all the holes.
Digging the holes for foundation to the “ economizer,” was connected with- and a part of the plant itself. As to this, the master had the responsibility that the work should be done with due care, and made reasonably safe, and that responsibility continued so long as the means were used. If any servant of defendant employed upon that work was negligent in leaving the excavation in an unsafe condition — such negligence was that of the master — the the doctrine as to negligence of fellow-servants does not apply. Shanny v. Androscoggin Mills, 66 Maine, 424; B. & O. Railroad v. Baugh, 149 U. S. 388.
The distance from furnace 3 to the hole is placed by one witness at eight feet, by another at nine, and by another at eleven — -the longest given by any witness. ' Regarding the furnace as ten to twelve feet deep,, and the method of slicing requiring it to begin at the back of the furnace and the bar then to be drawn forward to the mouth, the operator in the meantime standing face to the furnace and his back to the hole, and taking into account that from the-heat when, the doors were open he could not approach within one or two feet of it, it is obvious that in his backward . steps he would probably, almost inevitably, pass upon or over a portion of this hole. Whether at the time it had one or more planks over it, the fact that he fell into it is conclusive that there was an opening in the covering sufficient to permit a fall into it. ,
Was it negligent in defendant to leave such opening, under the conditions existing? The jury have said it was, and we are not disposed to differ from the jury in that finding.
But, it is said that plaintiff assumed the risk. He knew the hole was there, but it does not appear that he knew before the accident, that it was partially uncovered.
He testified that it had but one plank over it, from examination after the accident, but he does not state that he knew that condition before he fell into it; In the fall or extrication of plaintiff, the planking was likely to be disturbed or partly removed.
It is well settled, that the servant assumes the ordinary and
If such servant in attempting to discharge the master’s duty is negligent it is imputed to the master as his negligence. Donnelly v. Booth Brothers, 90 Maine, 110.
The plaintiff, under his general employment, did not assume the risk arising from inattention or negligence of the master in regard to these holes. In determining the question of the liability of defendant upon the facts in this case, the familiar doctrine as to negligence of fellow-servants, and assumption of the risks of the employment by the servant are eliminated, as inapplicable.
If the defendant was guilty of negligence in not sufficiently covering this hole, it became liable to compensate the plaintiff for his injury, if he was in the exercise of due care at the time, and no negligence of his contributed to it. ,It is true, that if a known and appreciated peril exists, though resulting from the fault of the master, and the servant continues in the employment exposed to the danger, and receives an injury therefrom, he cannot recover from the' master. In a sense, in such case, he may be said to assume the peril, not as incident to his employment, but as a voluntary undertaking at his own risk, to do the work, subject to such peril. He deliberately takes the chances upon himself to the exoneration of the master.
But, as was said in Kane v. Northern Central Railway, 128 U. S. 95, “in determining whether an employee has recklessly exposed himself to peril, or failed to exercise the care for his personal safety that might reasonably be expected, regard must always be had to the exigencies of his position, indeed to all the circumstances of the particular occasion.” In that case, a brakeman on a freight train
So here, while defendant may well be chargeable with negligence in not sufficiently covering the hole, considering its proximity to the furnace where plaintiff was at work, and the method and exigencies of that work, it was peculiarly a question for the jury, whether he acted recklessly, regardless of his safety, or whether he exercised that degree of care reasonably to be expected in that situation and under all the circumstances.
It must not be forgotten that, if the defendant’s witnesses are to be believed, the hole was not only intended to be covered, but that it was in fact nearly covered, and may have presented, and probably did, an appearance of safety to casual observation, — but being in fact unsafe, while it invited the confidence of the servant, — it operated as a trap to his feet. It was really more dangerous if wholly uncovered, as, in that case, the peril would have been obvious and the servant put upon his guard. He relied, as he had a right to rely, upon the presumption that defendant had discharged its duty, until its neglect became obvious, and was not bound to make a critical examination when its general appearance was that of safety. Fox v. Sackett, 10 Allen, 586.
If the jury found, as the evidence justified, if it did not require them to find, that the hole was covered except a small opening sufficient to allow plaintiff’s foot to pass through, they might well find also that the covering presented a general appearance of safety, and was not suggestive of peril; and that plaintiff was justified in relying upon it, and was not wanting in due care. Where the evidence is such that different minds may reach opposite conclusions upon the question of reasonable and proper care, it is always submitted to the jury to determine that question, and their
The case was submitted to the jury upon a charge, to which no exception is taken, which fully and very clearly presented the relative rights, duties, liabilities and responsibilities which the law imposes upon the relation of master and servant. The questions' involved were those of fact, within the province of the jury to determine. The verdict of that tribunal is entitled to respect, and should not be disturbed unless it is so clearly wrong as to compel the conclusion that it was the result of prejudice, or failure to comprehend the facts and the legitimate inferences therefrom, or is antagonized by some controlling rule of law.
It is not for the court to substitute its judgment for that of the jury. The facts have been found by the constitutional tribunal in favor of the plaintiff, and we cannot say that the evidence did not justify the finding. The rules of law applicable are not inconsistent with the verdict. Campbell v. Eveleth, supra.
Motion overruled.
