38 A. 333 (Me. 1897), Sawyer v. J.M. Arnold Shoe Co.

• Docket Number: .
• Date: 01 June 1897
• Citation: 90 Me. 369,38 A. 333
• Parties: SAWYER v. J. M. ARNOLD SHOE CO.
• Court: Maine Supreme Court

Page 333

38 A. 333 (Me. 1897)

90 Me. 369

SAWYER

v.

J. M. ARNOLD SHOE CO.

Supreme Judicial Court of Maine.

June 1, 1897

P. H. Gillin and C. J. Hutchings, for plaintiff. F. A. Wilson and C. F. Woodard, for defendant.

WISWELL, J.

This action was to recover for personal injuries sustained by the plaintiff, and caused, it is alleged, by a defective elevator of the defendant, which the plaintiff had occasion to use in the course of his employment. The alleged defect was the manner in which one of the dogs used in holding up the elevator gate was attached to the gate. Various exceptions are alleged in regard to the admission of testimony, and as to the instructions to the jury, which we will consider in detail.

1. An expert upon mechanical devices, called by the plaintiff, was allowed to answer, against the defendant's objection, this question: "How might that dog have been fastened on so there would be no danger of the dog moving except in the natural or intended way?" We think that the question was properly allowed. The issue for the jury to pass upon was whether the defendant had used ordinary care, in view of the particular circumstances of the situation, in providing a reasonably safe elevator for the plaintiff to use in the course of his employment. It did not by any means follow that the manner of securing the appliance which the witness might describe in his answer was the only proper way in which it could be done, or that it was a practical or necessary way, or that the defendant was negligent in not having adopted that method. But, to enable the jury to pass upon the question of whether the defendant had used ordinary care in the particular respect complained of, it was certainly proper for a qualified person to describe the way, or the different ways, that the device could have been secured so as to have been safe.

2. Counsel for defendant requested this instruction: "An employer performs his duty when he furnishes appliances of ordinary character and reasonable safety, and 'reasonable safety' means safe according to the usages, habits, and ordinary risks of the business. No man is held to a higher degree of care than the fair average of men in the same line of business conducted under substantially similar circumstances." In answer to which the justice presiding said: "That is so; but what would be due care in driving a dull horse would not be in driving a locomotive." The defendant excepts to the qualification. We think that there is nothing objectionable in this remark. It was simply an illustrative way of saying that ordinary care in any case depended upon the circumstances of the case; that what might be ordinary care under some circumstances would be gross negligence under others,--a proposition too clear and well settled to need comment.

3. Counsel for the defendant requested this instruction: "However strongly the jury may be convinced that there may...