Elwell v. Hacker

• Decision Date: 17 May 1894
• Citation: 86 Me. 416,30 A. 64
• Parties: ELWELL v. HACKER et al.
• Court: Maine Supreme Court

30 A. 64

86 Me. 416

ELWELL

v. HACKER et al.

Supreme Judicial Court of Maine.

May 17, 1894.

(Official.)

Exceptions from supreme Judicial court, Cumberland county.

Action by John O. Elwell against Edward S. Hacker and others. To an order directing a nonsuit, plaintiff excepts. Exceptions overruled.

J. J. Perry and D. A. Meaher, for plaintiff.

Barrett Potter, for defendants.

FOSTER, J. This is an action to recover damages for personal injuries sustained by the plaintiff by the fall of a staging which he was taking down while in the employ of the defendants.

The case comes up on exceptions to the ruling of the judge of the superior court in directing a nonsuit at the close of the plaintiff's evidence.

To maintain an action against his employer for an injury such as the plaintiff claims, he must establish some neglect of duty on the part of the defendants, arising out of the relation between them, which was the direct cause of the injury, and which, as matter of law, they were bound to guard against.

In this case there is no evidence upon which a verdict would be sustained showing any negligence on the part of the defendants. In such case, if, upon the unquestioned facts and uncontroverted testimony, it is apparent that the plaintiff's action cannot be maintained, it is not only competent, but proper, for the presiding judge so to declare by directing a nonsuit. White v. Bradley, 66 Me. 254. Ordinarily, the question of due care and of negligence is for the jury. Especially is this true when the facts bearing upon those questions are in dispute (Larrabee v. Sewall, 66 Me. 376; Algen v. Railroad Co., 132 Mass 423); or even when the facts are undisputed, and intelligent and fair-minded men may reasonably arrive at different conclusions (Nugent v. Railroad, 80 Me. 62, 70, 12 Atl. 797). But where the facts are undisputed, and there is no evidence, or the evidence is too slight or trifling to be considered by the jury, then it is the duty of the court to order a nonsuit Where the burden rests upon a party to prove negligence, the evidence in support of it must have some legal weight. A case must not necessarily be submitted to the jury because there is a scintilla of evidence. That doctrine has long been exploded, inasmuch as it would avail nothing for a jury to find a verdict which the court would set aside for the want of evidence having any legal weight to sustain it. Connor v. Giles, 76 Me. 132; Nason v. West, 78 Me. 253, 256, 3 Atl. 911.

Here the plaintiff had built the staging himself, from materials of his own selection. There is no evidence that these materials were unsuitable. On the contrary, the evidence seems to be conclusive that they were suitable, from the fact that the staging had done its work, and held up the brick and mortar of a great mill, and was being leveled to the ground at the time of the accident. There is no evidence that the defendants, or either of them, personally superintended the removal of the staging. The plaintiff had built it, and worked for months upon...