Gallant v. Great N. Paper Co.

• Decision Date: 08 December 1915
• Citation: 95 A. 889
• Parties: GALLANT v. GREAT NORTHERN PAPER CO.
• Court: Maine Supreme Court

95 A. 889

GALLANT

v. GREAT NORTHERN PAPER CO.

Supreme Judicial Court of Maine.

Dec. 8, 1915.

Report from Supreme Judicial Court, Androscoggin County, at Law.

Action by Joseph Gallant against the Great Northern Paper Company. On report. Judgment for defendant.

Argued before SAVAGE, C. J., and SPEAR, ICING, BIRD, HALEY, and HANSON, JJ.

McGillicuddy & Morey, of Lewiston, for plaintiff. White & Carter, of Lewiston, for defendant.

KING, J. Action to recover damages for personal injuries sustained by the plaintiff on May 12, 1914, while in the defendant's employ as a river driver.

The action was brought under the provisions of chapter 258 of the Public Laws of 1909, known as the Employers' Liability Act. An amendment was allowed, adding a count at common law, with a stipulation of the parties to report the case to the law court upon the evidence and the special finding by the jury as to damages, that court to direct such judgment as the law and evidence require, both as to the defendant's liability and as to the amount of damages.

The material facts are not in controversy. The plaintiff was working in a crew of river drivers on the defendant's drive on Elm stream, in the northern part of the state. Prank Crockett was the foreman of that crew. He worked with the other men in driving, and his duty as foreman was to see that the crew worked efficiently. He received his orders from an assistant superintendent of the whole drive on the stream. On the day the plaintiff was injured he and eight other men, including the foreman, went in a boat a short distance up Elm stream pond to release and bring down a quantity of logs that were being kept back or jammed by ice. Sticks of dynamite, primed and ready for use in breaking the jam, were taken in the boat in an open box. There was also a bag containing dynamite put into the boat The plaintiff thus describes the accident that caused his injuries:

"The foreman, until we got up where the logs were, opposite the logs, stood in the middle of the boat, between the second and third seats. When we got up where he wanted to stop, he gave orders for us to stop the boat, stepping over the second and forward seat, and began to light some of the dynamite, standing directly over the box. He lit a few sticks, and finally— I was seated back to him—I turned around, and see him light one stick, and saw the fire sputter, and the match drop in the box. I was looking on the ice every time he threw a stick, and I kind of turned my head towards the ice where he was in the habit of throwing the sticks, and the whole thing exploded."

As a result of the explosion three of the men in the boat, including the foreman, were killed, and the plaintiff was badly injured.

1. It is provided in the Employers' Liability Act, supra (section 8), that its provisions shall not apply to injuries to persons "engaged in cutting, hauling or driving logs." The plaintiff, however, contends that the work he was doing when injured should be regarded as a part of the defendant's process of manufacturing pulp and paper, since the logs he was working on were to be used ultimately by the defendant for that purpose at its pulp and paper mills, and therefore that he was not "driving logs" within the meaning of the exemption in the act. We think that contention is without merit. The work in which the plaintiff was engaged was being carried on more than 100 miles from the defendant's manufacturing plant. It was, in fact, the work of 'driving logs," and we are unable to perceive any reason why it must not be so classified, regardless of the ownership of the logs or the use to be made of them. The language of the exemption is explicit and unqualified. The meaning of the expression "driving logs" is clear, and free from all uncertainty. It includes, we think, any actual log driving labor, regardless of whether the employer is the owner of the logs driven or not, and irrespective of the use he may intend to make of the logs after they have been driven. We entertain no doubt, therefore, that the plaintiff was engaged in "driving logs" at the time of his Injuries, and for that reason the Employers' Liability Act affords him no remedy therefor.

2. It remains to be considered if the plaintiff has established that he is entitled to recover under his count at common law.

That the use of dynamite in log-driving operations is a common practice is conceded. It is customarily furnished by the proprietors of such operations to be used by their servants in breaking ice and log jams, and otherwise in the work of driving logs; nor was the plaintiff ignorant of the custom. He was an experienced log driver, and testified that he knew that dynamite was used by river drivers to blow jams, and for any purpose that such power is required. Moreover, he knew that it was being used on that drive, and he had seen it used there. The defendant therefore cannot be held negligent because of the fact that it furnished dynamite for use on this drive; nor can the plaintiff claim want of information of that fact, for he knew it.

He alleges that the defendant failed to provide for him a safe place to work. The boat...