Dixon v. Swift

• Decision Date: 08 December 1903
• Citation: 98 Me. 207,56 A. 761
• Parties: DIXON v. SWIFT et al.
• Court: Maine Supreme Court

56 A. 761

98 Me. 207

DIXON

v. SWIFT et al.

Supreme Judicial Court of Maine.

Dec. 8, 1903.

(Official.)

Action by John J. Dixon against Custavus Swift and others. Case reported. Judgment for defendants.

From the evidence offered by the plaintiff, it appeared that the defendants on the 7th and 8th days of October, 1901, owned, managed, and controlled a rendering plant at East Deering, and were in the business of rendering tallow, etc. Their factory was located on the easterly side of Presumpscot street, and about 30 rods from the street The premises were uninclosed, and an open driveway led from Presumpscot street to the factory. The engine house was situated on the northerly end of the factory building, and the two were connected by a narrow, covered passageway, about 7.9 feet wide, from which passageway there were entrances both to the factory and the engine house. There were doors leading into the passageway both from the easterly and westerly ends. In the passageway were four tanks or vats, three of which were along the southerly side, and one directly in front of the door at the easterly end; these tanks being used for the reception of hot fat. The dimensions of the latter tank were 5.66 feet by 3.8 feet, and 3.1 feet in depth; and it was covered by a wooden cover, hung on hinges, which, when opened, rested against the northerly side of the passageway. This passageway was in common use for all persons, both employees and others, for entrance to the factory and to the engine house. There were no signs, either at the entrance to the premises, or at the door of the factory, or anywhere on the premises, forbidding persons to go there.

On said 7th day of October, Michael L. Quigley, an employs of said defendants, whose duty it was to skim the fat in said vat, opened the cover of the vat for the purpose of skimming it, leaving the door opening into the easterly end of the passageway open, or at least unfastened, and immediately returned to the main building to perform other work, leaving the open vat and the door unguarded, and with no notice on the door or elsewhere to warn any person approaching of danger.

At the time when the vat was opened, plaintiff's intestate, William J. Dixon, was on the premises, and immediately thereafter started from the stable of the defendants to go into the engine house, and through the covered passageway. Reuben Misener, an employe of said defendants, who was then at said stable, and who was acquainted with the location of the vat in front of the door of the passageway, knew that Dixon was going into the engine house, but gave him no warning of the existence or location of the vat.

As Dixon approached the easterly door of the passageway, and was near to it, one Melvin Bell, the engineer of defendants, who was standing on the platform on the easterly side of the building, and within six feet of Dixon, and who knew that the vat was open and the door unfastened, spoke to Dixon, and at the same time saw that he was going directly toward the passageway, but did not warn him of the danger of entering by said door.

Dixon stepped into the door, stopped and looked into the passageway, but, failing to see the open vat, stepped forward, and at the first step plunged into the open vat, which was filled, or nearly so, with fat heated to a temperature of about 200 degrees. He died on the following morning from the injuries so received.

Dixon's purpose in entering the premises was to deliver a business message to one Henry Hawkins, the fireman of the defendants, and in their employ in the engine house. This message did not pertain to the business of the defendants, but was a message sent by Hawkins' brother through Dixon.

The evidence introduced by the defendants tended to show that Dixon and one Sanborn were merely loafing on the premises when the accident happened. Dixon himself was acquainted with the buildings, and in particular with the interior of the passageway. Once he entered the passageway by the westerly door, and stood about 15 minutes while the vats were being skimmed, watching the process. He went up to the rendering company now and then in a friendly way. He never worked for the company. Sanborn testified that Dixon said, when they met on the morning of the accident: "Let's go up to the rendering company. I want to see some of the boys up there"—and that accordingly he went up there, "merely loafing around."

On the day Dixon left Nashua, N. H., for Portland, one Henry Hawkins asked Dixon to take a message to Hank Hawkins—in his own words, "I told him to tell Hank to send me up a barrel or a half a barrel of clams." Hawkins went on to state that clams were sometimes dug by the men on the flats near the rendering company.

Misener, with whom Dixon talked in the stable for about 15 minutes, testified that Dixon and Sanborn were wandering leisurely about the premises of the...