Dirken v. Great N. Paper Co.

• Decision Date: 05 April 1913
• Citation: 86 A. 320,110 Me. 374
• Parties: DIRKEN v. GREAT NORTHERN PAPER CO.
• Court: Maine Supreme Court

86 A. 320

110 Me. 374

DIRKEN

v. GREAT NORTHERN PAPER CO.

Supreme Judicial Court of Maine.

April 5, 1913.

On Motion and Exceptions from . Supreme Judicial Court, Penobscot County, at Law.

Action by John Dirken against the Great Northern Paper Company. Judgment for plaintiff, and defendant moves to set aside the verdict and excepts. Motion and exceptions overruled.

Argued before WHITEHOUSE, C. J., and SAVAGE, KING, BIRD, and HANSON, JJ.

Hersey & Barnes, of Houlton, for plaintiff.

E. C. Ryder, of Bangor, for defendant.

HANSON, J. This is an action for personal injuries sustained by the plaintiff while employed as a painter in the paper mill of the defendant company at Millinocket, and is brought under chapter 258, Public Laws of 1909, entitled "An act relating to the employment of labor."

The plaintiff obtained a verdict for $4,000. The case comes before this court on general motion to set aside the verdict, and on exceptions to the ruling of the presiding justice, involving, among other things, the constitutionality of the "before mentioned act. The following are the material provisions: "Section 1. If personal injury is caused to an employe, who, at the time of the injury, is in the exercise of due care, by reason of:

"First, a defect in the condition of the ways, works or machinery connected with or used in the business of the employer, which arose from, or had not been discovered or remedied in consequence of, the negligence of the employer or of a person in his service who had been intrusted by him with the duty of seeing that the ways, works or machinery were in proper condition; or

"Second, that the negligence of a person in the service of an employer who was intrusted with and was exercising superintendence and whose sole, or principal, duty was that of superintendence, or in the absence of such superintendent, of a person acting as superintendent with the authority or consent of such employer."

"Sec. 8. The provisions of the seven preceding sections shall not apply to injuries caused to domestic servants or farm laborers by fellow employes, or to those engaged in cutting, hauling or driving logs."

The. plaintiff was injured on the 7th day of July, 1911, while engaged in the service of the defendant as painter in a crew of painters, employed in and about the defendant's pulp and paper mill. He had been employed at various times during a period of 12 years and had worked in all the rooms of the mill, and once before in the room where the injury occurred. This room is known as the wet room, its dimensions 60 feet by 200 feet in that room was installed a motor, a switchboard, and connecting compensator, also called a step-down transformer. The motor is 3 1/2 feet from the case of the compensator; the switchboard 4 feet 6 inches from the compensator, which is 19 inches wide, 31 inches high, and 13 inches deep; the three pieces being located in the northeast corner of the room, the compensator standing a few inches from the wall, Its top being 5 feet, 5 1/4 inches above the floor. There are six wires running up to the compensator; three of these come from the electrical plant or switch, and the other three run from the compensator to the motor. The wires running to the compensator under the floor, built especially to protect them, pass through porcelain tubes up the sides of the wall, behind the compensator, and at the top of the compensator turn and enter the terminal blocks, so called, which are screwed onto the top connection of the compensator. The wires terminate there in a flat connection with the terminals, so called, the terminals being 1 1/4 inches by 3 inches; the wires are soldered to the terminals, and these are clamped down to the top of the compensator by two bolts. There are two rows of these, with two bolts to each terminal, making 12 bolts altogether, 6 in each row; the terminals, bolts, and nuts are not insulated.

For several days prior to the accident, the plaintiff had been employed with others in painting the wall of that room. They were under the immediate control of one Rankin Dickinson, foreman of the crew, whose duty, as described by himself, was to look after the painting. On the morning of the injury, the plaintiff was ordered by the foreman to repaint a portion of the wall above the compensator, and, in following the instructions of Mr. Dickinson, he claims the injury occurred.

The plaintiff's account is this: He had worked for some years for the defendant, and on one occasion painted in the same room, but had not worked on or about the compensator, and had received no warning as to any danger attending the work. On the day of the accident, he was painting in the wet room, when Mr. Dickinson came to him and said, "John, I want you to go back and paint over that transformer and in the corner. * * * I went and did the work. My ladder went up against the wall, * * * and there was nothing over the transformer. * * * The paint pail was hooked on the first round of the ladder and hung below the second round. It was secured to the ladder by a short rope with a hook on each, one on the pail, the other on the first round of the ladder, permitting the pail to hang down." He continues: "I got up on my ladder and, after putting my pail there, some fellow hollered over on some of the machines. I turned around and looked. I saw it was some of the fellows; I didn't bother my head about it I thought it was Dick, first, hollering, and I went to put my brush into the pail and I looked down. I don't know what drew my attention to look down, .but my brush was held like that [illustrating]. I can't say what was the cause of it, but there was a kind of blue haze come up all at once. When it did I took a kind of a jump, like that, on the ladder. That is all I remember; I don't know what happened. Q. After the blue blaze, did you see any other flash? A. I didn't have time to see nothing. Q. Did you hear any noise? A. I was knocked from my ladder back into a blaze of fire."

As a result of the accident, the plaintiff was burned about the face, neck, arms, and hands, and has lost the use of his hands.

The motion: It is contended for the plaintiff that there was actionable negligence on the part of the defendant company in two particulars at least: (1) The use of a compensator without adequate protection or shield, while the plaintiff, who was unacquainted with its use, was painting over the compensator when it was in operation. (2) That the defendant did not warn the plaintiff of the danger of painting over or near the compensator while thus in use.

There was evidence tending to show that the plaintiff had painted in the same room once before without injury or apparent knowledge of danger; that, at the time of the accident, he had no knowledge or appreciation of the peril involved. It is conceded that he had been warned to avoid contact with wires, and the evidence tends to show that he heeded that warning; but he contends that here there were no live wires or wires of any kind to remind him of the warning or prompt him to use the caution so necessary to avoid injury; that on receiving the order to paint above the compensator he at once obeyed and made such preparations as were necessary. He raised the only available ladder to position, a ladder furnished by the master, and in the only position suitable for painting the wall pointed out to him by the foreman, and ascended the ladder to the point where his judgment dictated the paint pail should be attached, and there attached it to the first round of the ladder.

The plaintiff claims that while on the ladder above the compensator, and in the act of painting, and in the exercise of due care, an explosion occurred. While he is not able to explain the cause of the explosion, his testimony indicates, and it is conceded, that contact, either directly or indirectly, with the exposed, uninsulated portion of the top of the compensator caused the fire and explosion, resulting in his injury. The plaintiff claims that the compensator was not furnished with an adequate covering to protect or warn the workmen. A few days before the accident, the electrician in charge had caused a covering of canvas to be made and nailed to a frame 22 inches square to protect the compensator from falling dust or paint and moisture; but, at the time of the accident, the testimony is overwhelming that there was no covering over the compensator.

So far as the case discloses, no covering had been used on the compensator until a few days before the accident, and its use for the intervening days was irregular. The testimony shows that there was burning paint on the top of the compensator and on the floor after the explosion, while the covering was found afterward, standing against the wall, untouched by Are or paint. The theory of the plaintiff is that the paint from the plaintiff's brush dropped on the compensator, and, coming in contact with the exposed parts of the nuts, bolts, and terminals, caused first the flash of fire, and then an explosion, burning the arms, hands, and body of the plaintiff, enveloping him "in a blaze of fire."

The plaintiff was a common laborer and was so employed on this occasion. He knew that electricity was being used as a motive power, and had a general knowledge of the dangers of coming in contact with live wires, but had no information as to the particular danger of working over the compensator, or of its construction, or of any means to be adopted to avoid danger. He was not informed of any danger from contact with any part of the top of the compensator, and was not instructed in regard to the care to be observed by him, and had received no warning and did not appreciate the danger.

The defendant's counsel contends that at the time of the accident, the plaintiff was in charge of Rankin S. Dickinson, a head painter; that Dickinson had no authority to hire or discharge men, and was himself under the direct supervision of one Thorndike,...