Bubar v. Bernardo

• Citation: 27 A.2d 593
• Parties: BUBAR v. BERNARDO.
• Decision Date: 21 July 1942
• Court: Supreme Judicial Court of Maine (US)

27 A.2d 593

BUBAR

v. BERNARDO.

Supreme Judicial Court of Maine.

July 21, 1942.

Exceptions from Superior Court, Washington County; Albert Beliveau, Presiding Justice.

Action by Arden T. Bubar against Antonetta Bernardo for injuries sustained in the course of plaintiff's employment by defendant. Order of nonsuit, and plaintiff brings an exception.

Exception sustained.

Before STURGIS, C. J., and THAXTER, HUDSON, MANSER, WORSTER, and MURCHIE, JJ.

Myer W. Epstein and Abraham Stern, both of Bangor, for plaintiff.

Eaton & Peabody, of Bangor, and Thomas L. Marcaccio, of Providence, R. I., for defendant.

MURCHIE, Justice.

The plaintiff brings this case to the court on an exception to the ruling of the justice presiding in the trial court in ordering a nonsuit.

On the record it would have been necessary, had the issue been submitted to a jury, for findings to have been made that the plaintiff, as an employee of defendant, on September 8, 1938, while operating a jack hammer in defendant's quarry, where six or more persons were regularly employed, suffered an eye injury from a chip of steel or iron which flew either from a hand hammer which he was wielding to remove a bit from the rod of the jack hammer or from the bit itself, or that the question as to whether it came from the one or the other was uncertain. The extent of the damage is not presently material, but as a result of the injury, the plaintiff lost the sight of his left eye where the chip struck. Necessary findings also, bearing in mind that there was no denial of any of the statements made in the plaintiff's testimony, would have been that the hammer was a home-made one; that it was defective; that the plaintiff had called the attention of defendant's foreman and general manager (described in the testimony as "the big boss") to the defect; and that undertaking had been made by an agent of the defendant, possessing authority, to fix it up or furnish another one.

Point is made by the defendant in argument that plaintiff's action was not commenced until almost three years after the accident. The record discloses that the plaintiff quit work immediately following the injury; that he reported the injury promptly to the defendant's foreman and to her general manager; that he left the quarry shortly thereafter to secure medical attention and did not return to work for several days; and that until relieved by surgery more than a year and a half later, he was never able to stand the vibration which is a necessary incident to the operation of a jack hammer.

The declaration seeks to ground liability in negligence on the part of the defendant in furnishing an unsafe and defective hammer for the performance of a part of the plaintiff's necessary duties, when she knew or should have known of the defect. In separate counts the plaintiff alleges (1) his own due care, and (2) that defendant, in operating the quarry at the time of the injury, was subject to the provisions of the Workmen's Compensation Act, R.S.1930, Chap. 55. In the first case brought before this court after the enactment of that statute, where recovery was sought against an employer who was not an assenting one under its terms, on a declaration in common-law form, this court declared, although the issue was not there involved, that there was no inconsistency in joining such separate counts in one declaration. Nadeau v. Caribou Water, Light & Power Co., 118 Me. 325, 108 A. 190. That principle we now affirm.

In any case where the propriety of an ordered nonsuit is brought up for review under an exception, the plaintiff is entitled to have this court view the evidence presented in the cause most favorably to his claim. Johnson et al. v. New York, New Haven & Hartford Railroad et al., 111 Me. 263, 88 A. 988; Shackford v. New England Telephone & Telegraph Co., 112 Me. 204, 91 A. 931. In McTaggart v. Maine Central Railroad Co., 100 Me. 223, 60 A. 1027, where a case was submitted on report, it was stipulated that it was to be considered as if a verdict for the plaintiff was under review on a motion of the defendant for new trial, in which situation, as in the present one, all conclusions and inferences of fact which a jury would have been warranted in finding for the plaintiff must be considered by us in that beneficent light.

But for the applicability of the Workmen's Compensation Act, the issue under the count wherein the plaintiff alleges his own due care would be a very narrow one, to be controlled within the established rule that an employee assumes the risks which are incidental to his employment, Golden v. Ellis et al., 104 Me. 177, 71 A. 649; Cooney v. Portland Terminal Co., 112 Me. 329, 92 A. 178, as modified by the principle recognized in Dempsey v. Sawyer, 95 Me. 295, 49 A. 1035, that while he must be held to assume all normal risks, including that of defective machinery, such do not include particular defects previously reported to his employer, as to which assurance of remedy has been given. On this count, disregarding entirely the provisions of the compensation act, it seems apparent that the plaintiff's own testimony, if believed, might have been considered sufficient, by a proper trier of the fact, to bring his case within the exception to the rule of one hundred percent risk assumption, and absolve him from any charge of contributory negligence. The issues as to the credibility of his testimony and the weight to which it was entitled were questions for a jury rather than for the court under our system of jurisprudence, Sweetser v. Lowell et al., 33 Me. 446; Sawyer v. Nichols, 40 Me. 212; Parsons v. Huff, 41 Me. 410; Blackington v. Sumner et al., 69 Me. 136, unless decision should properly hinge on one of the controls which the defendant asserts are fundamental and which will be discussed hereafter.

The same thing is true with reference to the count which seeks to eliminate questions as to the assumption of risk and contributory negligence by allegation that the defendant is "subject to" the provisions of the Workmen's Compensation Act. There may be thought to be some confusion in the authorities, so far as this court is concerned, as to whether or not the burden rests upon a plaintiff who seeks to recover on this basis to plead the status of his employer affirmatively. In the Nadeau case, supra, Mr. Justice Deasy discussed this question in considering exceptions (1) to the refusal of the justice presiding in the trial court to instruct the jury that the plaintiff must show that the defendant had more than five workmen or operatives employed in the business in which plaintiff was employed at the time of his injury, and (2) to an instruction that it was not a defense in the case that the plaintiff was negligent. The majority of the court declared that such burden did rest upon such a plaintiff, with the burden of allegation of the fact, but notwithstanding no such allegation was contained in the declaration, the exceptions were overruled because evidence on the point,...