Babb v. Oxford Paper Co.

• Decision Date: 28 November 1904
• Citation: 59 A. 290,99 Me. 298
• Parties: BABB v. OXFORD PAPER CO.
• Court: Maine Supreme Court

59 A. 290

99 Me. 298

BABB

v. OXFORD PAPER CO.

Supreme Judicial Court of Maine.

Nov. 28, 1904.

(Official.)

Exceptions from Supreme Judicial Court, Oxford County.

Action by D. W. Babb against the Oxford Paper Company for personal injuries sustained by the plaintiff while in the employ of the defendant corporation. The verdict was for the plaintiff in the sum of $2,750. Before opening his case to the jury, the plaintiff asked leave to amend his declaration by adding a second count thereto as appears in the opinion of the court in opening its case to the jury the defendant attempted to use as chalks five photographs numbered, respectively, D1, D2, D3, D4, and D5, to illustrate the defendant's theory of how the accident happened. The plaintiff objected, and the court excluded them, and would not allow them to be used as chalks. The defendant excepted. To these rulings and instructions and refusals to instruct the defendant excepted. Exceptions overruled. New trial granted.

Argued before WISWELL, C. J., and WHITEHOUSE, SAVAGE, PEABODY, and SPEAR, JJ.

A. E. Stearns and J. M. Libby, for plaintiff.

George D. Bisbee and Ralph T. Parker, for defendant.

SAVAGE, J. The defendant company, at the time of the injury complained of, was operating what is called a "coal conveyer," in a building especially prepared for its use. The conveyer itself consisted of two endless chains parallel with each other, running over and propelled by sprocket wheels. Between the chains were hung at regular intervals iron buckets, 19 inches long, 16 1/2 inches wide, and 7 inches deep. The buckets at each end were attached to the chains by swivels, so that they could easily be turned over. When the conveyer was in operation, the chains, moved by the sprocket wheels, carried the buckets along their endless course. Beginning, say, at the top of the building, and above the roof, the endless chain of buckets descended perpendicularly through openings in the roof and floor below about 50 feet to a point just beneath the first floor, where it turned upon a sprocket wheel and proceeded horizontally beneath a coal hopper to the boiler room, then turned underneath another sprocket wheel, and was returned horizontally and again perpendicularly to the top of the building through the roof, and over sprocket wheels to the point of beginning. On the top of the roof of the building, but underneath the chain of buckets, was an ash hopper, made so that its contents could be discharged through a chute into a railroad car standing upon a trestle outside the building. When the conveyer was being operated, the buckets took coal from the coal hopper, as they were passing horizontally towards the boiler room. On reaching the boiler room, they were overturned in their passage by an automatic tripper, and the coal was dumped. Sometimes, but not always, on their return passage they were filled with ashes, cinders, or slag by workmen with shovels. They then carried their contents to the top of the building, where they were tipped by another automatic tripper, and the contents dumped into the ash hopper. At times the ashes and cinders in the boiler room were not taken up to the ash hopper in this way, but were taken out of the boiler room in wheelbarrows, and hauled away by teams.

The plaintiff was a servant of the defendant, and his place of work was in a room on the first floor of the building, between the two lines of buckets. That is to say, as he worked, the descending line of buckets was in front of him, and the ascending line was several feet behind him. His duty was to watch the descending buckets, to see that they were right side up, so as to take the coal when they reached the coal hopper, and to see that they were clean—free from cinders and clinkers or other things which might clog their movements and prevent their turning freely in their swivels. Between the side of the conveyer and the wall of the building was a hole into the pit below. This hole was rectangular, 27 inches by 25 inches, and its sides were formed, roughly speaking, by the edge of the floor on the near side, and a bar of iron on the farther side, and the ends, of course, were marked by the conveyer it self and the wall. The sprocket wheel upon which the conveyer turned just beneath the floor was situated at the edge of this hole, but below the level of the floor.

The plaintiff says that while he was at work, standing within a few inches of the descending buckets, with his head bent slightly forward, perhaps, some object, which he claims was a piece of coal, or clinker, or frozen ashes, fell from the ash hopper above, down through the openings in the roof and the next floor below, which were made for the passage of the descending buckets, and struck him so violently upon the head as to stun him, and to cause him to fall forward into the hole spoken of in such a way as to get his foot caught between the chain and the sprocket wheel, causing the injuries for which he now seeks to recover.

The case comes up on the defendant's exceptions and motion. The first exception relates to the allowance of an amendment to the plaintiff's declaration by adding a new count. In the original declaration the only allegation of negligence on the part of the defendant was in these words: "That on said 9th day of January the said ash box or receptacle became filled, and said defendant corporation negligently and carelessly failed and neglected to have said ash box or receptacle emptied, so that the boxes or buckets failed to properly unload in said ash box or receptacle, and ashes and clinkers were carried out and fell out and over the edge of said ash box or receptacle, and fell through the openings through which the said coal carrier descended." The plaintiff, however, was permitted, against objection, to amend by setting forth in a new count "that the opening or aperture in the second floor of the crusher room building and the opening or aperture in the roof of said building, through which said coal conveyer descended, were larger than necessary for the passage of said conveyer, and were dangerous, hazardous, and unsafe, because of the unguarded open spaces thus left; all of which dangerous, hazardous, and unsafe conditions were due to the carelessness and negligence of the said defendant." The other allegations of negligence in this count are repetitions, in substance, of allegations in the first count.

We think the amendment was properly allowed. It does not introduce a new cause of action. It merely added an additional description of the conditions which might make the defendant's operation of the ash hopper negligent....