Frye v. Bath Gas & Electric Co.

• Decision Date: 12 February 1900
• Parties: FRYE v. BATH GAS & ELECTRIC CO.
• Court: Maine Supreme Court

46 A. 804

94 Me. 17

FRYE

v. BATH GAS & ELECTRIC CO.

Supreme Judicial Court of Maine.

Feb. 12, 1900.

Action by Arthur J. Frye, by his next friend, against the Bath Gas & Electric Company. Verdict for plaintiff, and defendant moved for a new trial. Overruled.

This was an action on the case to recover damages for injuries received by the plaintiff, a minor, 20 years of age, while in the employ of the defendant corporation at the city of Bath.

The plaintiff claimed that he had been in the service of the defendant for five months or more, and for two months previous to March, 1898, he had served in the capacity of fireman in the defendant's power house in Bath, and that while so employed he was injured through the negligence of the defendant corporation, in the following manner:

It appears that in the fire room, where the plaintiff was employed, the defendant had caused four holes to be dug, of varying depths, in which to place stone foundations for the support of iron pillars of a massive machine, known as an "economizer," and required for the business of the power house.

One of these holes, about 2 feet deep, was directly opposite the door of furnace No. 3, being some 11 feet distant.

The plaintiff had known of the existence of the hole, as he says, for three days.

On March 10, 1898, while "slicing" the fire in furnace No. 3, the plaintiff stepped backward, and either fell into the hole, or across and upon a plank lying across the hole, from which fall he claimed to have received the injuries complained of, and recovered a verdict against the defendant corporation in the sum of $4,166.

Argued before EMERY, HASKELL, WISWELL, STROUT, SAVAGE, and FOGLER, JJ.

S. L. Fogg and F. E. Southard, for plaintiff. C. W. Larrabee and Geo. E. Hughes, for defendant.

STROUT, J.Defendant had at its power house five furnaces in a line, three of them burning coal, and two sawdust Plaintiff was fireman, whose duty it was to "slice" or rake the fires in these furnaces. This was done with an iron bar 10 feet or more in length. The furnaces were 10 to 12 feet deep. It was necessary to do the slicing or raking rapidly, to prevent steam running down. The raking was begun at the back of the furnace, with the fire-box doors open. It was very hot in front when the doors were open. In raking, plaintiff stood facing the furnace. The raking of one furnace occupied about two minutes.

To obtain foundation for an "economizer," defendant had dug four holes, 6 feet square, more or less, and intended to be 10 or 12 feet deep. Plaintiff at the time of the accident was slicing the fire in coal furnace No. 3.

Directly in front of the fire box, and 8 to 11 feet from it, was one of these holes, then dug to the depth of about 2 feet. It had been there about three days, and was partially covered with plank,—plaintiff says, only one plank upon it. Hanson, superintendent of the excavations, says: It was nearly all covered. That it had been covered all the time the hole was there. "I tried to keep these places covered all we could when we were working in them." And that it was covered at the time of the accident, when they were not working in it, "with a small opening." Sheldon, a witness for defendant, says: That "the hole was partially covered." "A good part of it was covered." That there was an "opening" or "hole large enough for his [plaintiff's] foot to go down through." Plaintiff says the opening was 3 feet or more.

In slicing, plaintiff stood facing the furnace, and back to this hole. In doing his work, it was necessary to step backward from the furnace to slice the fire to its front.

In doing so, he fell into the hole, and was seriously and permanently injured. Plaintiff had previous knowledge of the existence of all the holes.

Plaintiff had a verdict, and the defendant asks that it be set aside as against law and evidence.

Digging the holes for foundation to the economizer was connected with, and a part of, the plant itself. As to this, the master had the responsibility that the work should be done with due care, and made reasonably safe, and that responsibility continued so long as the means were used. If any servant of defendant, employed upon that work, was negligent in leaving the excavation in an unsafe condition, such negligence was that of the master. The doctrine as to negligence of fellow servants does not apply. Shauny v. Androscoggin Mills, 66 Me. 424; Railroad Co. v. Baugh, 149 U. S. 388, 13 Sup. Ct. 914, 37 L. Ed. 772.

The distance from furnace 3 to the hole is placed by one witness at 8 feet, by another at 9, and by another at 11,—the longest given by any witness. Regarding the furnace as 10 to 12 feet deep, and the method of slicing requiring it to begin at the back of the furnace, and the bar then to be drawn forward to the mouth, the operator in the meantime standing face to the furnace, and his back to the hole, and taking into account that, from the heat, when the doors were open he could not approach within 1 or 2 feet of it, it is obvious that in his backward steps he would probably (almost inevitably) pass upon or over a portion of this hole. Whether at the time it had one or more planks over it, the fact that he fell into it is conclusive that there was an opening in the covering sufficient to permit a fall into it.

Was it negligent in defendant to leave such opening, under the conditions existing? The jury have said it was, and we are not disposed to differ from the jury in that finding.

But it is said that plaintiff assumed the risk. He knew the hole was there, but it does not appear that he knew before the accident that it was partially uncovered.

He testified that it had but one plank over it, from examination after the accident, but he does not state that he knew that condition before he fell into it in the fall or extrication of plaintiff, the planking was likely to be disturbed or partly removed.

It is well settled that the servant assumes the ordinary and apparent risks of his employment; but, as is said in Shanny v. Androscoggin Mills, supra, "under his contract for service he assumes such risks only as are incident...