84 Me. 161 | Me. | 1892
An employee in the defendant’s lumber yard connected with its repair shops, recovered a verdict of three-hundred dollars for damages resulting from the fracture of his-thigh bone, caused by the falling- upon him a pile of lumber’ near -which he and his co-employees were piling other lumber as it was being unloaded from a platform car — which verdict the defendant seeks to have set aside.
The report shows that, two to three hundred thousand feek of oak timber, sawed invarious specified dimensions, are annually-unloaded from platform cars, piled at right angles with, and’ alongside of a track extending across the defendant’s yard to its. shops and worked up into cars.
Timber of the same thickness is piled by itself in double tiers. — two pieces in width. Each pile rests upon sawed oak skids, placed horizontally upon the ground, with sticks an inch thick between the several layers extending across both tiers. As timber of a particular dimension is wanted for use in the shops, a pile containing it is transferred to the shops; and other timber as it arrives, is unloaded from the car and piled in the places thus, left vacant.
The timber is handled by three or four men to a car under thesupervision of a foreman who stands by to take account of the number and dimensions of the sticks and note the number of the car from which it is taken.
On April 30, 1889, a car of green oak timber arrived and was placed before one of the vacant spaces, four feet wide, from which a pile had been transferred, a week or two before, to the shops. On the north side of the vacant space was a pile two or three feet high. On the south side was another pile, consisting of sticks five inches thick and nine inches wide, stuck up in the usual manner, five or six feet in height, resting upon oak skids
The plaintiff, with three others and a foreman went to the car and commenced to unload it in their usual manner, by one man standing upon the car and pushing one end of a stick of timber from the car when the others would take it and deposit it upon the skids. When the end of the first stick was pushed from the car upon the ground, the other three, one at each end and the plaintiff at the middle, took it along over the skids, and (in the language of the plaintiff), "when we found it in place, let it drop three or four feet,” upon the skids. "It did not fall as it should and we went to place it in line with the other piles and had not time to place it before the [south] pile fell ” and broke the plaintiff’s leg.
The plaintiff and his fellow laborers who handled the timber were Frenchmen. His fellows testified that the pile was not plumb, but leaned toward the open space, and they talked about it in French in the presence of the plaintiff, who says he did not hear the conversation nor notice that the pile was not perpendicular. Other witnesses declared that the pile was plumb and stood firm.
We do not think it is material whether it was or was not plumb. If it so leaned as to attract the attention of his fellow employees, the plaintiff must, or ought in the exercise of ordinary care, to have seen it. The plaintiff had worked there the entire month of April, and he testified that he "had passed this pile about every day and sometimes many times a day.” Ordinary care on his part demanded that he should use his eyes when about his ordinary employment, and if the pile leaned, he had the same opportunity of seeing which others had, who were engaged there with him.
Moreover, whether it leaned or not, or whether or not he saw it if it did lean, he and his fellows were guilty of gross negligence in their manner of handling the timber which was the obvious cause of the accident. For instead of taking the stick of heavy, green oak timber along and laying it down upon the skids which they knew extended under the pile, they let it drop
We are of opinion that the verdict was clearly against law.
Motion sustained. New trial granted.
