Cullicut v. Burrill

• Decision Date: 05 November 1921
• Citation: 115 A. 172
• Parties: CULLICUT v. BURRILL et al.
• Court: Maine Supreme Court

115 A. 172

CULLICUT

v. BURRILL et al.

Supreme Judicial Court of Maine.

Nov. 5, 1921.

Motion from Superior Court, Penobscot County, at Law.

Action by John T. Cullicut against Thomas F. Burrill and others. Verdict for plaintiff. On motion for new trial. Motion granted and verdict set aside unless plaintiff remits.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, DUNN, WILSON, and DEASY, JJ.

George H. Morse, of Bangor, and W. B. Pierce, of Dexter, for plaintiff.

Gillin & Gillin, of Bangor, for defendants.

CORNISH, C. J. This is an action of tort for personal injuries. The plaintiff, at the time of the accident, October 30, 1917, was an employee of Cyr Bros., who were building a dam in Corinna for the defendants, near the defendants' woolen mill. Above the plaintiff as he worked, and about 15 feet from the ground, was a 12-inch galvanized iron blower pipe 80 feet long, which connected the defendants' woolen factory on one side with a picker house on the opposite side of the stream. Near this blower pipe were two wooden ventilator shafts, extending up through the roof of the dyehouse to a height of 22 feet; the opening of the shaft being about 2 feet 6 inches square.

In a heavy wind on the day alleged, one of these shafts fell upon the blower pipe, which in turn gave way and fell upon the plaintiff, causing the injuries complained of.

Cyr Bros, were assenting employers under the provisions of the Workmen's Compensation Act, and a settlement has been effected between the employer, employee, and the insurance company which was carrying the risk. This action is brought under the provisions of R. S. c. 50, § 26, for the benefit of the insurer, and was properly instituted in the name of the employee. Donahue v. Thorndike & Hix, 119 Me. 20, 109 Atl. 187.

The jury rendered a verdict for the plaintiff in the sum of $7,000, and the case is before the law court on defendants' general motion for a new trial.

Regardless of the subrogation element of the action, the same issues are involved as in an ordinary action of tort for negligence between parties who do not sustain the relation of employer and employee to each other. There was no claim by the defendants of any contributory negligence on the part of the plaintiff. That leaves simply the question of negligence on the part of the defendants and the amount of the verdict to be considered.

The negligence complained of is in the faulty construction, insecure fastening, inadequate support, and improper maintenance and repair of the ventilator shaft. The defendants' answer is that the shaft was properly constructed and maintained, and that the accident was caused solely by a hurricane, for which they were not responsible. These two issues were sharply contested. Upon both, the jury found in favor of the plaintiff. The method of construction of the shaft, the strength and character of the materials used, and the manner in which it was supported or stayed in order to withstand the...